1 BACKGROUND
1.1 The Supplier is in the business of sourcing, importing and wholesale dealing certain Products and delivering them to customers in the pharmaceutical industry. Such Products are then delivered by the Supplier’s customers to individual patients to whom a Prescription has been issued.
1.2 The parties acknowledge that the Supplier does not itself manufacture or otherwise create, develop or modify any Products, but the Products have been manufactured by a third party manufacturer, as identified on the label of the relevant Product.
1.3 The Supplier wishes to sell and the Customer wishes to purchase certain Products in accordance with these Terms. The Customer must have completed an Onboarding Form, and been approved by the Supplier as a customer, prior to issuing any Order.
2 INTERPRETATION
2.1 Definitions:
Anonymised Data means any data provided by the Customer (wholly or in part) manipulated to such a degree that it cannot be reverse-engineered such that it can be so identified as Personal Data.
Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours means the period from 9.30 am to 5.30 pm on any Business Day.
Contract means the contract between the Supplier and the Customer for the sale and purchase of the Products in accordance with these Terms.
Controller and Personal Data are each as defined in the Data Protection Legislation.
Customer means the person who purchases the Products from the Supplier, as identified in an Order.
Customer Personal Data has the meaning given to it in clause 9.1.
Data Protection Legislation means the General Data Protection Regulation (EU) 2016/679, the Data Protection Act 2018 (DPA), the UK GDPR (as defined in section 3(10) and 205(4)) of the DPA) and any other relevant local laws relating to the protection of personal data, the privacy of individuals and the privacy of electronic communications.
Delivery Location means the delivery location in the Territory, as accepted in the Onboarding Form (or thereafter any delivery location agreed between in the parties in accordance with clause 5.2).
Force Majeure Event means an event, circumstance or cause beyond a party's reasonable control.
MHRA means the UK Medicines and Healthcare products Regulatory Agency.
Onboarding Form means the onboarding form to be completed by the Customer and approved by the Supplier prior to the Customer issuing any Orders and the parties entering into this Contract.
Order means the Customer's order for the Products as set out in the Customer's purchase order form which shall include at least those details set out in clause 3.3.
Prescription means a current and valid prescription issued to an individual named patient by a clinician licensed by a regulatory authority in one of the Territories with the authority to prescribe medicines.
Products means the products listed in the Product List to be purchased by the Customer as set out in the Order.
Product List means the Supplier's product list setting out details of each Product, available to relevant parties on request from the Supplier.
Supplier means Hologram Health Limited (registered in England and Wales with company number 14679257).
Territory means the United Kingdom and the Crown Dependencies (and any other territory that the Supplier is entitled to supply the Products, as notified to the Customer from time to time).
2.2 Interpretation:
2.2.1 A party means the Customer or the Supplier (as applicable) and together, the parties.
2.2.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.2.3 A reference to a party includes its personal representatives, successors and permitted assigns.
2.2.4 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
2.2.5 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
2.2.6 A reference to writing or written includes email.
2.2.7 If there is any conflict or ambiguity between the provisions of these Terms and the Order together with its associated invoice, the terms of the Order/invoice shall have priority over these Terms (including with respect to any special terms specifically agreed).
3 ORDERS
3.1 These Terms apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing (including the Customer's own terms of sale, if any).
3.2 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Terms. The Customer is responsible for ensuring that the information described in the Order is complete and accurate.
3.3 Each Order shall include at least the following (together with any other information reasonably requested by the Supplier from time to time):
3.3.1 name, description and/or SKU number of each Product;
3.3.2 type and strength of each Product;
3.3.3 quantity of Product(s);
3.3.4 requested Delivery Location (if different to that set out in the Onboarding Form which must, in any case, be pre-approved as an appropriate Delivery Location by the Supplier before being dispatched);
3.3.5 requested date of delivery from the date of the Order (if any) (which shall be subject at all times to clause 5.4);
3.3.6 a copy of the redacted (such that it constitutes only Anonymised Data) Prescription of the relevant named patient(s) to whom the Products are to be supplied by the Customer and/or any other evidence requested by the Supplier from time to time to confirm the Product is being supplied under the relevant authorisations or direction.
3.4 The Order shall only be deemed to be accepted when the Supplier issues an invoice for that Order, at which point and on which date this Contract shall come into existence. The Supplier is under no obligation to accept all or any part of an Order and all Orders are subject to Product availability and the Supplier's sole discretion to ensure a fair and balanced supply to all its customers based on date and size of each relevant customer order.
3.5 No Order for which the Supplier has issued an invoice may be amended or cancelled by the Customer except with the prior written agreement of the Supplier and subject to any additional charges or expenses to be paid by the Customer as was incurred by the Supplier as a result of such amendment or cancellation.
3.6 Excluding any formal and authorised Product labelling, any information or materials provided by the Supplier and any descriptions contained in the Product List are provided solely for informational purposes. They are not intended as professional medical advice or promotional material or as any other guidance and shall not form part of these Terms nor have any contractual force.
3.7 A quotation for the Products given by the Supplier shall only be valid for a period of 20 Business Days from its date of issue. No Contract is formed between the Supplier and the Customer until the Customer has submitted an Order and the Supplier has issued an invoice.
3.8 The Customer warrants that:
3.8.1 it will only supply the Products to named patients to whom a Prescription has been issued (either directly in its capacity as a person authorised by a regulatory body in the Territory to dispense medicines or to a registered pharmacy within the Territory duly authorised to dispense medicines);
3.8.2 the Prescriptions are genuine, contain accurate information, have been issued by a licensed person authorised to prescribe medicines for the relevant Product in the Territory, and (other than being redacted to remove any Personal Data) have not been altered or reproduced in any way;
3.8.3 it will not offer the Products for resale in any country to any person other than ultimately to the named patient(s) referred to clause 3.8.1 above;
3.8.4 it will not inappropriately advertise or promote the Products or provide any misleading information to the general public or its patients or otherwise breach any advertising regulations or guidelines issued by the MHRA (including its Blue Guide), the Association of the British Pharmaceutical Industry Code of Practice, the ASA or any other regulatory body in relation to the same;
3.8.5 the use and onwards supply of the Products complies with clause 10.1 at all times;
3.8.6 its personnel are appropriately trained, qualified and skilled in the use, handling, storage and supply of the Products; and
3.8.7 any data provided by the Customer to the Supplier pursuant to this agreement will: (i) only be provided to the Supplier as Anonymised Data and not contain any Personal Data of any recipient/patient of the Products; and (ii) be gathered in the proper execution of its business.
3.9 Without prejudice to the warranties of the Customer under clause 3.8, the Supplier reserves the right to carry out checks with relevant clinicians that the Prescription (and any other evidence required by the Supplier) identified in an Order is correct and legitimate.
4 PRODUCTS
4.1 The Products are as described in the Product List. The Products must be purchased in the quantity and strength stated in a Prescription.
4.2 The Supplier reserves the right to amend any Product specifications if required by any applicable legal or regulatory requirement, and the Supplier shall update the Product List accordingly and, if affected, notify the Customer of such in any such event.
4.3 The Supplier shall give the Client at least 14 days' prior written notice of any decision by it to withdraw any or all of the Products from the Product List. This obligation does not apply where the Supplier decides to withdraw Products due to safety reasons or where the withdrawal is required by law, provided that the Supplier gives as much reasonable notice as possible (together with reasonable details of) such required withdrawal.
4.4 Except, if applicable, to add a dispensing label that reflects the Prescription, the Customer agrees not to remove, alter or obscure any labelling on the Products, nor to relabel the Products at any time, nor to instruct or permit any other person to do any such thing.
5 DELIVERY
5.1 The Supplier shall ensure that:
5.1.1 each delivery of the Products is accompanied by a dispatch note that shows the type and strength of the Product (including the SKU number, where applicable), storage instructions (if any) and a certificate of analysis or compliance (if applicable); and
5.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request.
5.2 The Supplier shall deliver the Products to the Delivery Location or such other location as the parties may agree for a specific Order. All Delivery Locations must be in one of the Territories.
5.3 Delivery is completed on the completion of unloading of the Products at the Delivery Location. If the Customer fails to accept delivery after reasonable attempts, the Product shall be returned to the Supplier and the Customer shall still be required to pay for that Product (unless otherwise agreed by the Supplier in writing).
5.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall use its reasonable commercial efforts to meet any preferred delivery dates requested by the Customer from time to time in an Order, but it shall not be liable for any delay in delivery of the Products.
5.5 If the Supplier fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products. The Supplier shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
6 QUALITY
6.1 The Supplier warrants that on delivery the Products shall:
6.1.1 conform in all material respects with their description;
6.1.2 not be past their listed expiry date on the package;
6.1.3 be free from material defects; and
6.1.4 meet good distribution practice ("GDP"), as that term is defined by the MHRA).
6.2 Subject to clause 6.3, if:
6.2.1 the Customer gives notice in writing, together with reasonable detail, to the Supplier within three Business Days after delivery of the Product that some or all of the Products do not comply with a warranty set out in clause 6.1; and
6.2.2 if appropriate, the Supplier is given a reasonable opportunity of examining such Products; and
6.2.3 the Customer (if asked to do so by the Supplier) returns such Products to the Supplier's warehouse (as notified to the Customer), together with any such additional documentation the Supplier may require (including any declarations as to appropriate storage of Product),
the Supplier shall, at its option, replace the defective Products, or refund the price of the defective Products in full.
6.3 The Customer shall notify the Supplier as soon as possible of any adverse events or complaints in relation to the Products (together with reasonable detail) to the Supplier's quality team at [email protected]. All such reports shall be subject to the confidentiality obligations set out in clause 14.3. To the extent any such reports contain Customer Personal Data, the provisions of clause 9.3 shall apply.
6.4 The Supplier shall not be liable for the Products' failure to comply with any of the warranties set out in clause 6.1 if:
6.4.1 the Customer makes any further use of such Products after giving notice in accordance with clause 6.2;
6.4.2 the defect arises because the Customer failed to follow the instructions as to the storage or use of the Products on the packaging or (if there are none) good trade practice regarding the same;
6.4.3 the Customer alters such Products without the written consent of the Supplier;
6.4.4 the defect arises as a result of wilful damage, negligence, or abnormal storage conditions;
6.4.5 the Customer fails to provide any information or documentation reasonably requested by the Supplier under clause 6.2.3; or
6.4.6 the Product differs from its certificate of compliance as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.5 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in clause 6.1.
6.6 For clarity, these Terms shall apply to any replacement Products.
7 TITLE AND RISK
7.1 The risk in the Products shall pass to the Customer on completion of delivery.
7.2 Title to the Products shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Products in respect of which payment has become due.
8 PRICE AND PAYMENT
8.1 The price of the Products shall be the price set out in the Product List and as per the Supplier's issued invoice (subject to any changes in accordance with clause 8.2 below).
8.2 The Supplier may, by giving notice to the Customer at any time prior to delivery of the Products, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
8.2.1 any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Specification; or
8.2.2 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
The Supplier shall amend and re-issue its invoice accordingly in each case.
8.3 The price of the Products:
8.3.1 excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the Customer receiving a valid VAT invoice; and
8.3.2 excludes any costs associated with shipping of the Products to the Delivery Location, which shall be invoiced to the Customer in addition to the price of the Product.
8.4 The Customer shall pay each invoice issued by the Supplier in accordance with clause 3.4:
8.4.1 within seven (7) days of the date of the invoice or otherwise in accordance with any credit terms which may be agreed by the Supplier and confirmed in writing to the Customer from time to time; and
8.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier.
8.5 Where the Supplier requires payment in advance, the Supplier shall not be obliged to effect delivery of the Products in the relevant Order unless and until it receives payment in full from the Customer.
8.6 If the Customer fails to make a payment due to the Supplier by the due date, then, without limiting the Supplier's remedies under clause 12, 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 4% a year above the Bank of England's base rate from time to time.
8.7 All amounts due to the Supplier shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9 RECORD KEEPING AND PRODUCT RECALLS
9.1 The Customer undertakes to maintain up-to-date and accurate records of all Products received for the period required by applicable law (and in any case, not less than five (5) years) and, if required, to enable the immediate recall of any line of Products or batches of Products. If the Supplier notifies the Customer that certain Products must be recalled, then it shall request the Customer to supply its records which shall include details of any deliveries to named patients to whom the Prescription was issued (including batch numbers, delivery date, name and address of patient, telephone number and email address) (Customer Personal Data).
9.2 The Customer shall, at the Supplier's cost, give any assistance that the Client shall reasonably require to recall, as a matter of urgency, Products from the market.
9.3 Each party shall comply with all applicable requirements of Data Protection Legislation when processing Personal Data (including Customer Personal Data) in connection with these Terms. The parties acknowledge that for the purposes of Data Protection Legislation, each party is an independent Controller in relation to Customer Personal Data.
10 COMPLIANCE WITH LAWS AND AUDIT
10.1 Each party shall, at its own expense:
10.1.1 comply with all laws and regulations in place from time to time relating to its business, including its activities under these Terms; and
10.1.2 obtain and maintain any authorisations, licences, registrations, permits and/or approvals required relating to use and supply of the Products (in the case of the Customer) or delivery of the Products (in the case of Supplier).
10.2 During the period to which these terms apply and for a period of one (1) year after termination, the Customer shall permit the Supplier, upon reasonable notice, to inspect such of the Customer's accounts, records and other information as the Supplier (or its appointed representative) may reasonably request in order to verify the Customer's compliance in accordance with these terms (including, in particular, its compliance with clause 3.8.1 to 3.8.4 and this clause 10).
11 LIMITATION OF LIABILITY
11.1 References to liability in this clause 11 include every kind of liability arising under or in connection with these terms including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.2 Nothing in these terms limits any liability which cannot legally be limited, including liability for:
11.2.1 death or personal injury caused by negligence; or
11.2.2 fraud or fraudulent misrepresentation.
11.3 Subject to clause 11.2:
11.3.1 the Supplier shall under no circumstances whatsoever be liable to the Customer for any loss of business; loss of revenue; loss of contract; loss or depletion of goodwill and/or business opportunity; loss of anticipated earnings or savings or like loss; wasted management, operational or other time; or any special, indirect or consequential losses arising under or in connection with these terms;
11.3.2 the Supplier's liability to the Customer in respect of all claims or losses arising under or in connection with an Order shall in no circumstances exceed the total price paid to the Supplier by the Customer in respect of that Order and then the aggregate and total liability of the Supplier for any and all losses or claims under this agreement shall not in any circumstances exceed £20,000.
11.4 Each party shall maintain in effect during the period of these terms and for a period of two (2) years after termination adequate insurance with a reputable company of such amounts and covering such risks as is usually maintained by companies engaged in a similar business (including, at a minimum, appropriate product liability and professional liability insurances).
11.5 The Customer shall indemnify the Supplier against all losses, costs (including reasonable legal costs), damages, liabilities, claims and expenses suffered or incurred by the Supplier arising out of or in connection with: (i) any material breach of these terms by the Customer; or (ii) any use by the Customer or its agents of any Products other than in accordance with the Supplier's instructions, the certificate of analysis or any Specification.
12 TERMINATION
12.1 Without limiting its other rights or remedies, the Supplier may terminate these terms with immediate effect by giving written notice to the Customer if:
12.1.1 the Customer commits a material breach of any term and, if such a breach is remediable, fails to remedy that breach within ten (10) days of the Customer being notified in writing to do so;
12.1.2 the Customer 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), obtaining a moratorium, 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
12.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business.
12.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Products under these terms if the Customer becomes subject to any of the events listed in clause 12.1.2 to clause 12.1.3, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due on the due date for payment.
12.3 Without limiting its other rights or remedies, the Supplier may terminate these terms with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due on the due date for payment.
12.4 On termination for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices (together with applicable interest, if any) and, in respect of Products supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
12.5 Termination, 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 terms which existed at or before the date of termination.
12.6 Any provision that expressly or by implication is intended to come into or continue in force on or after termination of these terms shall remain in full force and effect including clauses 8, 11 and 14.
13 FORCE MAJEURE
Neither party shall be in breach of these terms or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for two (2) months, the party not affected may terminate these terms by giving ten (10) days' written notice to the affected party.
14 GENERAL
14.1 Exclusion of implied terms. The parties agree that any condition, warranty representation or term (other than the terms implied by section 12 of the Sale of Products Act 1979) which might be implied into or incorporated in these terms, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by law.
14.2 Assignment and other dealings.
14.2.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under these terms.
14.2.2 The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under these Terms without the prior written consent of the Supplier.
14.3 Confidentiality.
14.3.1 Each party undertakes that it shall not at any time during the period of these terms and for a period of two (2) years after termination of these terms, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.3.2.
14.3.2 Each party may disclose the other party's confidential information: (a) to its employees, officers, representatives, contractors, subcontractors and professional advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under these terms. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or professional advisers to whom it discloses the other party's confidential information comply with this clause 14.3; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority (but only to the extent required).
14.3.3 Neither party shall 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.
14.4 Publicity. The Customer will not use, authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Supplier is licensed to use or which is owned by the Supplier in any other manner whatsoever unless such use is approved in writing by an authorised representative of the Supplier and (where appropriate) its licensor.
14.5 Entire agreement. These Terms constitute the entire agreement between the parties. Each party acknowledges that in entering into these terms it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms.
14.6 Variation. These terms may be varied from time to time at the Supplier's discretion on notice by the Supplier to the Customer. Any such updated or amended terms will apply from the date that notice is given.
14.7 Waiver. A waiver of any right or remedy is only effective if given in writing. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
14.8 Severance. If any provision or part-provision of these terms 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. If any provision of these terms is deemed deleted under this clause 14.8 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.
14.9 Notices.
14.9.1 Any notice given to a party under or in connection with these terms 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 address set out in an Order or an invoice (or any other address specified by a party from time to time).
14.9.2 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.
14.9.3 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.
14.10 Third party rights. These terms do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 for any person who is not a party to enforce any term.
14.11 Governing law. These terms, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
14.12 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 or its subject matter or formation.
© Hologram Health. All rights reserved. Terms of Sale. Privacy & Cookies. Terms & Conditions. Cookies Preferences.