CENTRAL PHARMA CELL AND GENE THERAPY LIMITED TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
1. DEFINITIONS AND INTERPRETATION
1.1 In this Contract, unless the context otherwise requires, the following expressions have the following meanings:
“Affiliate” any entity that directly or indirectly ”controls”, or is ”controlled” by, or is under common ”control” with either Party, ”control” meaning the beneficial ownership of more than fifty per cent of the issued share capital of a company or other legal entity or the legal power to direct or cause the direction of the general management of the company or other legal entity, and ”controlled” shall be construed accordingly;
“Applicable Laws” all laws, regulations, codes of practice and guidelines, that are compulsory in the country or jurisdiction in which the relevant Party is established or supplies or receives the Services or the Deliverables from time to time which are applicable to that Party and its business, including: (i) those set by any governmental authority or Regulatory Authority concerning the supply or receipt of the Services or the Deliverables; (ii) (to the extent applicable) the EU’s Medical Device Regulation 2017/745/EU and Directive 93/42/EEC and subsequent amendments to it; (iii) the UK’s Medicines and Medical Devices Act 2021 and regulations made pursuant to it and (iv) Good Distribution Practice and Good Manufacturing Practice as set out in the relevant laws and regulations concerning pharmaceuticals, cosmeceuticals and medical devices;
“Background Materials” any Materials which are used by Central Pharma in the provision of the Services or the Deliverables but which are not specifically created, designed, discovered or invented for Customer as part of the Services, and which have or may have more general application with other customers or clients of Central Pharma or for other products or services, including any computer or digital programme, object or source code, script, operating information or applications, routines, algorithms or tools, howsoever used, developed or represented by or on behalf of Central Pharma;
“Business Day” any day other than: (i) a Saturday; (ii) a Sunday; (iii) a day which is a bank holiday in England or (iv) a day when Central Pharma is not open for business;
“Central Pharma” Central Pharma Cell and Gene Therapy Limited, a company incorporated and registered in England under company number 12769240, whose principal place of business and registered office are at Caxton Road, Elm Farm Industrial Estate, Bedford, Bedfordshire, MK41 0HT, England;
“Confidential Information” the terms of this Contract, and any information in any form or medium concerning the other Party or one if its Affiliates or the other Party’s business or the business of one of its Affiliates in relation to this Contract which is expressly marked as confidential or which a reasonable person would reasonably consider to be confidential whether disclosed or obtained before, on or after the effective date of this Contract together with any reproductions of such information or any part of such information;
this “Contract” these Terms and Conditions and the terms of the relevant Order (except to the extent that the terms of the Order deviate from the Quotation (if any) or from the Long Term Agreement (if any), or are not otherwise agreed by Central Pharma in writing);
“Customer” the customer of Central Pharma whose details are more set out in the relevant Order or the Long Term Agreement between the Parties;
“Customer Brand” any trade mark, service mark, trade name, brand, logo or domain name owned by or licensed to Customer (whether registered or unregistered);
“Customer Materials” any Materials including Products provided or to be provided or made available by Customer to Central Pharma in connection with the provision of the Services pursuant to this Contract and which Central Pharma has not created, designed, discovered or invented, as described in the relevant Order;
“Customer Site” the site where Customer is based, or such other site as Customer stipulates for the delivery of the Products or the Deliverables or the receipt of the Services in any Order (or as may be stipulated in any Long Term Agreement);
“Deliverables” any Materials which are provided or are to be provided by Central Pharma to Customer pursuant to this Contract, and which are specifically made or created or adapted or customised for Customer as part of the Services, as may be more particularly described in an Order; but excluding any Background Materials;
“Event of Force Majeure” any event beyond the reasonable control of either Party including any act of God, actions or omissions of any third party which is not an Affiliate of the Party seeking to rely on Clause 12 (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, protests, rallies, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, seizure or forfeiture, breaking off of diplomatic relations or similar actions, national emergencies, national event (including death of a member of the Royal Family), terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workers (other than of the Party seeking to rely on Clause 12), unusual traffic volumes, closure or disruption to roads or transport or particular areas, epidemic or pandemic (including COVID-19), compulsory or recommended measures to avoid epidemic or pandemic, fire, explosion, storm, flood, drought, adverse weather conditions (including cold, heat, wind, rain, snow, ice or fog), loss at sea, earthquake, volcano, ash cloud, natural disaster, accident, collapse of building structures, failure of machinery (other than used by the relevant Party) or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation;
“Fees” any fees payable by or on behalf of Customer to Central Pharma for the Services as stipulated in the relevant Order or any Long Term Agreement;
“Intellectual Property Rights” copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, 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;
“Liability” liability in or for breach of contract (including liability under any indemnity), tort (whether deliberate or not), negligence, breach of statutory duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Contract, including liability expressly provided for under this Contract or arising by reason of the invalidity or unenforceability of any term of this Contract (and for the purposes of this definition, all references to “this Contract” shall be deemed to include any collateral contract including any technical or quality agreement, but each Order shall constitute a separate ”Contract”);
“Long Term Agreement” any written agreement entered into between the Parties governing the long term relationship concerning the supply of Services by Central Pharma to Customer, including in the form of Customer’s agreement to proceed with placing an Order following Central Pharma’s written confirmation of the Parties’ overall relationship terms in response to Customer’s completed account application form, the terms of which agreement may be updated with immediate effect by Central Pharma informing Customer in writing of any variation to the same from time to time (and which terms are agreed by Customer’s conduct in proceeding with placing an Order following receipt of Central Pharma’s relevant written communication);
“Materials” any and all materials, plans (including strategic and business plans), documents (including advice documents), reports, research, recommendations, evaluations, results, ideas, records, works of authorship, deliverables, software (including source code and object code), routines, algorithms, tools, processes, systems, methods, methodologies, spreadsheets, techniques, flowcharts, manuals, databases, catalogues, descriptions, output, products, notes, concepts, discoveries, know-how, information, data, theories, format of presentations, lists, processes, inventions, creations, photographs, images, videos, audio-visual material, diagrams, designs, models, drawings, equipment and specifications, and all applications or manifestations or expressions of any of the foregoing (in whatever form and on whatever media, including physical, chemical, biological, molecular, electronic or written form)
“Normal Working Hours” 9:00 to 17:00 on each Business Day;
“Order” a request by Customer to Central Pharma for the provision of particular Services, which shall be in accordance with the terms of any corresponding Quotation or any Long Term Agreement;
“Party” either Central Pharma or Customer;
“Product” any medicine, pharmaceutical, cosmeceutical, medical device or other product, whether in bulk or finished form, of Customer in respect of which Central Pharma provides or is to provide Services to Customer pursuant to this Contract;
“Quotation” a written quotation from Central Pharma to Customer detailing the Services which Central Pharma is willing in principle and subject to contract to supply to Customer in respect of a particular Order;
“Regulatory Authority” a regulatory authority or agency with competence to issue any permission, approval or consent for the supply or receipt of the Services or the distribution, marketing or sale of the Products or any other issuing regulatory authority relevant to Central Pharma, Customer or both in respect of the Services, the Deliverables or the Products;
“Services” any services provided or to be provided by Central Pharma to Customer pursuant to this Contract, including the storage or packaging of the Products as may be more particularly described in the Order;
”Terms and Conditions” these terms and conditions for the supply of services; and
“United Kingdom” the United Kingdom of Great Britain and Northern Ireland, namely
England, Scotland, Wales and Northern Ireland.
1.2 In this Contract:
1.2.1 references to Clauses are to clauses of these Terms and Conditions;
1.2.2 headings are inserted for convenience only and shall not affect the interpretation or construction of this Contract;
1.2.3 words imparting the singular shall include the plural and vice versa;
1.2.4 words imparting a gender shall include the other gender and the neutral and references to ”persons” shall include an individual, company, corporation, firm or partnership;
1.2.5 where the words “include(s)”, “including” or “in particular” are used in this Contract, they are deemed to have the words “without limitation” following them;
1.2.6 any obligation in this Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce to that thing being done;
1.2.7 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
1.2.8 references to “written” or in “writing” (except in respect of sending a notice in accordance with Clause 13) includes in electronic form.
2. CONTRACT
2.1 The terms of this Contract apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Customer. These Terms and Conditions apply to Central Pharma’s supply of all Services. The placement of any Order, the giving by Customer of any instructions to Central Pharma regarding the Services or the acceptance by Customer of the delivery of any Deliverables or any Products by Central Pharma shall constitute unqualified acceptance by Customer of these Terms and Conditions.
2.2 This Contract (together with any documents referred to in it) constitutes the whole agreement and understanding of the Parties as to its subject matter and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in this Contract.
2.3 Save as expressly provided in this Contract, it (together with any documents referred to in it) shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties preceding the date of this Contract and in any way relating to the subject matter of this Contract. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to this Contract except as expressly stated in this Contract. Neither Party shall have any remedy in respect of any untrue statement made by the other Party upon which that Party relied in entering into this Contract (unless such untrue statement was made fraudulently or as to a fundamental matter) and that Party’s only remedies shall be for breach of contract as provided in this Contract.
2.4 Subject to Clause 2.3, all Materials and other particulars furnished by Central Pharma to Customer prior to any Quotation or any Long Term Agreement, or in Central Pharma’s sales or marketing materials or other documents (including its catalogues, trade literature, brochures, price lists or website) or made orally by Central Pharma, are given for general information purposes only and Customer acknowledges that it is not entering into this Contract in reliance upon any such Materials or other particulars (except to the extent that such Materials or particulars form part of this Contract).
2.5 Customer shall submit each Order in writing through such medium or third party as stipulated, permitted or made available by Central Pharma and in such form as Central Pharma requires from time to time.
2.6 Each Order placed by Customer with Central Pharma shall be deemed to be an offer to purchase the relevant Services on the terms of this Contract. Subject to Clause 2.7, unless Central Pharma indicates a contrary method of acceptance in writing, this Contract shall be legally formed and the Parties shall be legally bound on acceptance of the relevant Order by Central Pharma to Customer in writing.
2.7 Central Pharma may at any time before delivery of any Products or any Deliverables (or collection by Customer, if permitted by Central Pharma) without Liability inform Customer that Central Pharma is cancelling or rejecting all or any part of the Order and terminating all or part of this Contract if the relevant Deliverables are not in stock (or with the required shelf-life in accordance with this Contract) or need to be restricted by Central Pharma (in its absolute discretion) due to a shortage of supply or an Event of Force Majeure. If there is any cancellation or termination due to a shortage or supply restriction, Customer may place a subsequent Order (which will be a separate Contract if accepted by Central Pharma).
2.8 No change to this Contract shall be binding unless it is agreed in writing by both Parties or their authorised representatives.
2.9 In the event of any conflict between this Contract or any Long Term Agreement, then the Long Term Agreement will prevail except to the extent otherwise expressly agreed by the Parties in writing.
2.10 Customer shall ensure that each Order contains full details of the Services to be supplied, the quantity of each Product which is the subject of the Order, the identity of Customer and the requested delivery date. Any price or delivery requirement other than in accordance with this Contract is of no effect.
2.11 Customer shall ensure that all information supplied by it to Central Pharma in respect of each Order is complete and accurate. Customer shall be responsible for ensuring that each Order meets its particular requirements.
2.12 Any advice or recommendation given by or on behalf of Central Pharma to Customer as to storage, transport, application or use of the Products or the Deliverables is for convenience only and unless confirmed in writing by an authorised representative of Central Pharma that it is binding on Central Pharma it shall be entirely at Customer’s own risk to follow any such advice or recommendation without Central Pharma owing any Liability to Customer.
2.13 Once accepted by Central Pharma each Order shall constitute a separate contract. There may be more than one contract between the Parties in force at the same time as this Contract.
2.14 Sketches, plates, dies, moulds, tooling and samples shall remain the property of Central Pharma unless otherwise stated in this Contract.
3. THE SERVICES
3.1 Central Pharma shall:
3.1.1 use its reasonable skill, care, attention and diligence in providing the Services;
3.1.2 ensure that anyone providing the Services on behalf of Central Pharma has the necessary skill, training and qualifications to provide the Services;
3.1.3 provide the Services in a professional, competent and workmanlike manner in accordance with standard practices in the pharmaceutical industry;
3.1.4 comply with all Applicable Laws in the provision of the Services;
3.1.5 obtain and pay for and at all times maintain and comply with and conform to, all necessary licences, authorisations, approvals, consents, permissions and certificates required for the provision of the Services;
3.1.6 take reasonable care of any Customer Materials in its possession or under its control, including against loss and destruction;
3.1.7 dispose of any waste or hazardous materials in an appropriate manner;
3.1.8 make its representatives available at all reasonable times for discussion and meetings with Customer and Customer’s staff and representatives, and regulators regarding this Contract and the Services, including any Regulatory Authority;
3.1.9 ensure that while any of Central Pharma’s staff or representatives are at Customer Site they conform to all reasonable rules, regulations, procedures and codes of practice applicable to Customer Site for staff, security, health and safety and dress practice, and any other reasonable requirements of Customer;
3.1.10 advise Customer if Central Pharma becomes aware of any circumstances which may cause delay, disruption or failure to perform the Services or this Contract and Central Pharma shall use its reasonable endeavours to mitigate against such problems;
3.1.11 provide independent and unbiased advice to Customer; and
3.1.12 subject to Central Pharma’s reasonable confidentiality, security policies and other requirements, allow Customer and its representatives upon reasonable advance notice and during Normal Working Hours but no more than twice in any calendar year (except where required due to the requirements of a Regulatory Authority or Applicable Laws or where the audit is being conducted to ensure remedial actions have been implemented by Central Pharma), access to inspect the facilities of Central Pharma used in the provision of the Services to check Central Pharma’s compliance with its obligations under this Contract.
3.2 Central Pharma does not warrant that the Services will meet any individual requirements of Customer other than any requirements specifically set out in this Contract. Central Pharma is not responsible for any deliverables or services not expressly stipulated in this Contract. Customer is responsible for any deliverables and services that it obtains or needs to obtain from any person other than Central Pharma. Except for any matter expressly provided for in this Contract, Central Pharma shall not be responsible or have any Liability for advising on, or failing to advise on, or doing, or failing to do, anything else.
3.3 Central Pharma shall use its reasonable endeavours to perform its obligations within any timescales set out in this Contract, but time shall not be of essence for the performance of the Services and Central Pharma shall have no Liability for any delays or failure to accurately perform its obligations within such timescales: (i) if it has used those endeavours; or (ii) to the extent caused by any failure or delay in the provision of any Customer Materials or information by Customer or on Customer’s behalf or by any breach by Customer of this Contract or any other agreement between the Parties.
3.4 Subject to Clause 7 (Liability), title and risk of loss or damage to any Customer Materials including any Products shall remain with Customer provided always that Central Pharma shall be liable to Customer for loss and damage suffered by Customer and caused to any Customer Materials including any Products resulting from Central Pharma’s breach of this Contract. Customer shall be entitled to inspect all Customer Materials including any Products held by Central Pharma during Normal Working Hours by giving Central Pharma at least three Business Days’ notice of its intention to visit the relevant premises of Customer Pharma.
3.5 Unless otherwise agreed in writing by the Parties, Central Pharma shall deliver any Deliverables and any Products to Customer Ex Works (Incoterms 2020) at a location nominated by Central Pharma in the United Kingdom.
3.6 Where Central Pharma delivers any Deliverables or any Products to Customer Site, Central Pharma shall offload the Deliverables or the Products at the nearest entrance to the delivery address and at ground floor level only. It is Customer’s responsibility to move or transfer the Deliverables or the Products from that point to any other part of the delivery address or destination. Customer shall provide or procure the provision of Central Pharma’s delivery vehicle with reasonable access to park and deliver the Deliverables or Products, or give Central Pharma sufficient notice for reasonable arrangements for making deliveries.
3.7 Customer shall sign, or shall procure that its courier or other agent signs, a delivery note and other documentation upon receipt of any Deliverables or any Products from Central Pharma. The signing of any such documentation shall be evidence that the Deliverables or the Products have been delivered and in the quantities stipulated in the documentation. Customer shall inspect or shall require its courier or other agent to inspect the Deliverables or the Products and their packaging for any obvious damage (including breakages) and make a note of any obvious damage when signing.
3.8 Where this Contract provides for the collection of any Deliverables or any Products by Customer from Central Pharma or the delivery of any Deliverables or any Products by Central Pharma to Customer, if Customer does not collect the Deliverables or the Products or Customer is not available to accept delivery at the agreed date and time, (without prejudice to any other right or remedy available to it) Central Pharma will be entitled to charge Customer for Central Pharma’s storage fees at its then prevailing storage rates and for Central Pharma’s other reasonable relevant costs and expenses.
3.9 Except where expressly provided for in this Contract, Central Pharma excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by Applicable Laws in respect of the Services.
4. CUSTOMER’S ADDITIONAL OBLIGATIONS
4.1 Customer shall:
4.1.1 provide Central Pharma in a timely manner with all Materials and information reasonably required by Central Pharma for it to perform its obligations and exercise its rights under this Contract;
4.1.2 ensure that all Customer Materials including Products are in good working order, suitable for the purposes for which they are to be used in relation to the Services, safe, non-hazardous, comply with all Applicable Laws and do not harm or cause damage to any of Central Pharma’s staff, other representatives, premises or other property;
4.1.3 prepare the Customer Site, if applicable, for receipt and supply of the Deliverables, the Products and the Services and provide proper, adequate, safe, comfortable and suitable environmental and operating conditions if Central Pharma undertakes any work or provides any Services at the Customer Site;
4.1.4 inform Central Pharma of any rules and regulations relevant to Central Pharma’s supply of the Deliverables, the Products and the Services and any timings for their supply;
4.1.5 where appropriate, ensure that the relevant staff and representatives of Customer are available at the Customer Site at any agreed time to enable Central Pharma to perform its obligations and exercise its rights under this Contract;
4.1.6 comply and shall ensure that its staff and representatives comply with any policies, rules or regulations of Central Pharma applicable to any premises of Central Pharma when visiting said premises, and shall provide full co-operation with and cause minimal obstruction to Central Pharma in receiving the Services;
4.1.7 ensure it has all necessary rights, permissions, consents and licences to enter into and perform its obligations and exercise its rights under this Contract without breaching any agreement and without infringing any third party rights, including any Intellectual Property Rights;
4.1.8 comply with all Applicable Laws in connection with its receipt and use of any Services, Deliverables, and Products, to its use and supply of any Customer Materials including any Products and otherwise in the performance of its obligations and the exercise of its rights under this Contract; and
4.1.9 make its representatives available at all reasonable times for discussion and meetings with Central Pharma and Central Pharma’s staff and representatives, and regulators regarding this Contract and the Services, including any Regulatory Authority.
4.2 It is Customer’s responsibility to ensure that the Services and the Deliverables supplied by Central Pharma pursuant to this Contract are sufficient and suitable for Customer’s purposes and will meet Customer’s individual requirements. Customer shall be responsible for any decision or implementation by Customer and its Affiliates in relation to any advice, suggestion, recommendation, output, evaluation or course of action proposed by Central Pharma in the provision of the Services and the Deliverables.
4.3 Customer shall indemnify Central Pharma and its Affiliates and keep Central Pharma and its Affiliates fully and effectively indemnified against all losses, liabilities, damages, costs and expenses (including reasonable legal fees and costs) suffered or incurred by Central Pharma or its Affiliates in connection with any claims, demands, actions or other proceedings made or brought against Central Pharma or its Affiliates by any third party as a result of or in connection with:
4.3.1 any negligence or misconduct by or on behalf of Customer in the performance of this Contract;
4.3.2 the use or supply of any Customer Materials including any Products, in the form supplied by or on behalf of Customer, including any claim for breach of any third party Intellectual Property Rights;
4.3.3 any non-compliance with any Applicable Laws, by or on behalf of the Customer in the performance of this Contract; or
4.3.4 any breach by Customer of its obligations under this Contract.
5. QUALITY
5.1 Subject to the other provisions of this Clause 5, Central Pharma warrants that, as at delivery to Customer, the Deliverables and the Products shall be undamaged, free from material defects, and conform to any specifications for or description of the Deliverables and the Products specified in this Contract.
5.2 Customer shall ensure that its appropriate representative checks the Deliverables and the Products for obvious damage upon their delivery by Central Pharma to Customer.
5.3 Subject to Clauses 5.4 and 5.5, as Customer’s sole remedy, Central Pharma shall at its option, within a reasonable timeframe:
5.3.1 replace;
5.3.2 repay an appropriate portion of the Fees; or
5.3.3 provide a credit note in respect of a reasonable part of;
any Deliverables or any Products which are delivered by Central Pharma and which are not in conformance with the warranty set out in Clause 5.1.
5.4 Central Pharma shall have no Liability for providing any Deliverables or any Products to the extent caused by Central Pharma’s compliance with and reliance on Customer’s instructions or requirements or Central Pharma’s compliance with any Applicable Laws, or for any damages or defects in any Deliverables or any Products which were present at the time of the delivery of the relevant Customer Materials including any Products by Customer to Central Pharma.
5.5 Central Pharma’s Liability for defective or damaged Deliverables or Products is subject to:
5.5.1 Customer informing Central Pharma in writing of any claim promptly upon discovery of the defect or damage and in any event: (i) in respect of a defect which is apparent from a visual inspection within seven days of delivery and (ii) in respect of a latent defect which is not apparent from a visual inspection within seven days of Customer discovering the defect (other than anything that involves potential danger to health or for Products requiring temperature controlled storage, in which case it shall be no more than two Business Days), specifying with reasonable detail the way in which it is alleged that the relevant Deliverables or Products do not conform with the requirements of this Contract;
5.5.2 Customer having provided Central Pharma with Central Pharma’s delivery note number and such other information and documentation as Central Pharma reasonably requires at the same time as the written information specified in Clause 5.5.1;
5.5.3 Customer showing to Central Pharma’s reasonable satisfaction that the defect or damage is solely attributable to Central Pharma’s (or Central Pharma’s subcontractors’) defective Materials or workmanship or breach of this Contract and not: (i) from normal use; or (ii) any acts or omissions by anyone after delivery of the relevant Deliverables or Products by Central Pharma (including Customer’s carrier);
5.5.4 the relevant Deliverables or Products having not been: (i) misused or subjected to neglect, improper or inadequate care or carelessness (including subject to wrong storage conditions or open to contamination); or (ii) dealt with, used or stored contrary to good trade practice or any oral or written instructions, advice or recommendation of Central Pharma; or (iii) adversely affected by anything done or not done after the Deliverables or the Products had been delivered by Central Pharma (including any accident or attempt at alteration, change or modification or inspection);
5.5.5 Customer holding the Deliverables or the Products safely and securely in good condition;
5.5.6 Customer allowing and procuring for Central Pharma and Central Pharma’s representatives the opportunity to have access to and inspect the relevant Deliverables or Products;
5.5.7 Customer having paid Central Pharma for the relevant Deliverables or Products on time and in full; and
5.5.8 if and to the extent Central Pharma requests, at Central Pharma’s option, within seven days of Customer informing Central Pharma of the defective or damaged Deliverables or Products, Central Pharma collecting such Deliverables or Products or Customer returning such Deliverables or Products carriage and insurance paid at Customer’s risk to Central Pharma’s premises or to such other location stipulated by Central Pharma and carefully packed to avoid damage in transit. Unless and until Central Pharma inspects, repairs or receives the relevant Deliverables or Products, Customer shall hold such Deliverables or Products safely and securely in good condition.
5.6 If the Parties disagree as to the compliance of any Deliverables or Products with the warranty in Clause 5.1, the Parties agree to have the relevant Products tested by an independent expert chosen by the Parties or by an independent third party body selected by Central Pharma in its absolute discretion if the Parties are unable to agree on the choice of expert within fourteen days of one Party informing the other Party in writing that it wishes to make a referral. The independent laboratory shall act as an expert and not as an arbitrator. The independent laboratory’s decision shall be final and binding, and, except in the case of manifest error, not subject to appeal. The Party who was in error shall bear all the costs of the analysis procedure and the laboratory. If the independent laboratory finds in Customer’s favour, Customer will be entitled to the remedies described in Clause 5.3.
5.7 The warranty contained in this Clause 5 is specifically limited to Customer. No warranty is made to any other person, whether subsequent buyer or user or customer, or to any bailee, licensee, assignee, employee, agent or otherwise.
5.8 If Customer makes an invalid claim under the warranty, Central Pharma may charge Customer for its fees and costs of examining, testing, storing and replacing the Deliverables or the Products and dealing with the claim and removing and supplying the Deliverables or the Products.
6. WARRANTIES
6.1 Each Party warrants to the other Party that:
6.1.1 there is no legal or contractual provision nor any third party rights imposed or binding upon it, or other circumstance, restricting or limiting its ability to perform its obligations under this Contract;
6.1.2 it has all necessary corporate authority to enter into and perform all its obligations under this Contract; and
6.1.3 it is a party to this Contract and not acting as agent for any third party for the purposes of this Contract.
7. LIABILITY
7.1 This Clause 7 prevails over all other clauses of this Contract and sets out the entire Liability of Central Pharma, and the sole and exclusive remedies of Customer, in respect of:
7.1.1 the performance, non-performance, purported performance, delay in performance or mis-performance of this Contract or of any Services or Deliverables provided or to be provided by Central Pharma in connection with this Contract; or
7.1.2 otherwise in relation to this Contract or entering into this Contract.
7.2 Central Pharma does not exclude or limit its Liability for:
7.2.1 its fraud;
7.2.2 death or personal injury caused by its negligence;
7.2.3 any breach of the non-excludable obligations implied by law as to having title to supply goods; or
7.2.4 any other Liability which cannot be excluded or limited by Applicable Laws.
7.3 Subject to Clause 7.2, Central Pharma does not accept and hereby excludes any Liability for negligence other than any Liability arising pursuant to the terms of this Contract.
7.4 Subject to Clause 7.2, Central Pharma shall have no Liability in respect of any:
7.4.1 indirect or consequential losses, damages, costs or expenses;
7.4.2 loss of actual or anticipated profits;
7.4.3 loss of contracts;
7.4.4 loss of use of money;
7.4.5 loss of anticipated savings;
7.4.6 loss of revenue;
7.4.7 loss of goodwill;
7.4.8 loss of reputation;
7.4.9 ex gratia payments;
7.4.10 loss of business;
7.4.11 loss of operation time;
7.4.12 loss of opportunity; or
7.4.13 loss of, damage to or corruption of, data;
whether or not such losses were reasonably foreseeable or Central Pharma or its agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 7.4.2 to 7.4.13 apply whether such losses are direct, indirect, consequential or otherwise.
7.5 Subject to Clause 7.2, the total aggregate Liability of Central Pharma in respect of any Order shall be limited to the greater of: (a) £5,000; or (b) 110% of the total sums paid and total other sums payable, in aggregate, by Customer to Central Pharma pursuant to the relevant Order.
7.6 The limitations of Liability under Clauses 7.4 and 7.5 have effect in relation to both any Liability expressly provided for under this Contract and to any Liability arising by reason of the invalidity or unenforceability of any term of this Contract.
8. FEES AND PAYMENT
8.1 Customer shall pay to Central Pharma the Fees and all other charges, expenses and other sums due under this Contract by the times required.
8.2 Unless otherwise stipulated in any Quotation or any Long Term Agreement (or otherwise agreed between the Parties in writing):
8.2.1 Central Pharma may issue an invoice to Customer for the Fees (or the relevant part) and all other sums due under this Contract on or prior to performance of the Services; and
8.2.2 Customer shall pay Central Pharma in full prior to performance of the Services.
8.3 Where Central Pharma requires payment in advance of performance of the Services, any such performance is conditional on Central Pharma first receiving the advanced payment in cleared funds in full.
8.4 Where Central Pharma agrees in writing to extend credit to Customer (which Central Pharma may change in its absolute discretion by informing Customer in writing with immediate effect from time to time), then unless otherwise agreed in writing by the Parties and subject to any credit limit that Central Pharma has for Customer (as may updated by Central Pharma informing Customer in writing with immediate effect from time to time), Customer shall pay Central Pharma within 30 days of Customer receiving the relevant invoice.
8.5 The Fees and all other sums due under this Contract are exclusive of any value added tax or other sales, import and export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of the Fees and all other sums due by Customer.
8.6 Customer shall pay Central Pharma by any payment method reasonably stipulated by Central Pharma. No cash payments shall be permitted.
8.7 Unless otherwise stipulated in this Contract or agreed in writing between the Parties, Customer shall pay all sums due to Central Pharma under this Contract in Pound Sterling or such other currency which is force in England from time to time.
8.8 The payment of the Fees and all other sums due under this Contract by Customer shall be deemed made by Customer when Central Pharma has received cleared funds in full from Customer.
8.9 Customer shall make payment of the Fees and all other sums due to Central Pharma under this Contract in full without any set-off, deduction or withholding whatsoever.
8.10 Without prejudice to any other right or remedy available to Central Pharma (whether under this Contract, in equity, at law or by any statute, regulation or bye-law, or otherwise), if Customer is late in paying any part of any monies due to Central Pharma under this Contract or any other contract between the Parties, Central Pharma will be entitled to exercise one or more of the following remedies in its absolute discretion:
8.10.1 charge interest and claim other costs on the amount due but unpaid at an annual rate of interest of five per cent above the base rate of the National Westminster Bank from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
8.10.2 sell or otherwise dispose of any Deliverables which are the subject of any Order, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment; and
8.10.3 suspend Central Pharma’s performance of this Contract and any other contract between the Parties until Customer has paid Central Pharma in full.
9. CONFIDENTIALITY
9.1 Each Party shall keep and procure to be kept secret and confidential the Confidential Information of the other Party and shall not use nor disclose the same save:
9.1.1 for the purposes of the proper performance of this Contract or any Long Term Agreement;
9.1.2 as otherwise permitted by this Contract or any Long Term Agreement;
9.1.3 as required under any Applicable Law, or by order of a court or governmental body or authority of competent jurisdiction (including any tax authority); or
9.1.4 with the prior written consent of the other Party.
9.2 Each Party shall protect the other Party’s Confidential Information with at least the same degree of care (which shall not be less than a reasonable standard of care) that it uses in connection with the protection of its own confidential information.
9.3 Where one Party discloses Confidential Information of the other Party to its representative, employee, consultant, subcontractor, supplier, customer, agent, professional adviser, auditor or insurer, it shall do so on a need-to-know basis and subject to obligations equivalent to those set out in this Clause 9. Each Party shall be responsible for the compliance with said obligations by its own representative, employee, consultant, subcontractor, supplier, customer, agent, professional adviser, auditor or insurer.
9.4 The obligations of confidentiality in this Clause 9 shall not extend to any information which either Party can show:
9.4.1 is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Contract;
9.4.2 was already in its written records prior to receipt;
9.4.3 was independently developed by it; or
9.4.4 was independently disclosed to it by a third party entitled to disclose it.
9.5 If either Party is required to disclose any Confidential Information of the other Party under any Applicable Law, or by order of a court or governmental body or authority of competent jurisdiction (including any tax authority), then the Party so required may disclose the Confidential Information to the extent required but shall, prior to any disclosure where practicable, give the other Party as much warning as practicable and consult with the other Party in writing and, at the other Party’s request and cost, fully co-operate with and assist that other Party in opposing any such disclosure.
9.6 If either Party becomes aware of any unauthorised use or disclosure of the Confidential Information of the other Party, that Party shall promptly inform the other Party in writing of such use or disclosure. Each Party shall if requested assist the other Party (at the other Party’s cost) in taking any reasonable steps to help the other Party regain possession of its Confidential Information and prevent its further unauthorised use or disclosure as the other Party may determine.
9.7 Except to the extent necessary for the other Party to continue exercising its rights and performing its obligations under this Contract or at law (or for its own normal retention of records which any reasonable business would wish to retain, including to show performance of its obligations under this Contract or any agreement or for dealing with customers’ issues or for regulatory reasons), upon expiry or termination of this Contract and at such other times as the Party owning the Confidential Information may reasonably request, the owner of Confidential Information may at its option require the other Party to delete promptly all Confidential Information belonging to the Party requiring the action from any computer disks, tapes or other material in its possession or under its control or promptly deliver up or destroy materials and tangible items in its possession or under its control which contain any such Confidential Information.
9.8 Neither Party shall make any announcement of any kind in respect of the subject matter of this Contract except with the prior written consent of the other Party (such consent not to be unreasonably conditioned, withheld or delayed) or as is required by Applicable Law.
9.9 The obligations in respect of the other Party’s Confidential Information in this Clause 9 shall continue after expiry or termination of this Agreement for whatever reason.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Central Pharma acknowledges that, as between Central Pharma and Customer, Customer or its licensors own all Intellectual Property Rights in the Customer Brand, the Customer Materials including the Products and the Deliverables. Central Pharma shall not have any rights over or to use the Customer Brand or the Customer Materials including the Products other than to provide the Services and Deliverables or as expressly provided under this Contract. To the extent that Intellectual Property Rights in the Products, the Customer Brand, the Customer Materials or the Deliverables may vest in Central Pharma, Central Pharma hereby irrevocably assigns, transfers and conveys to Customer all Intellectual Property Rights, title and interest therein. Central Pharma shall, at Customer’s cost, give Customer all reasonable assistance and execute all documents necessary to assist or enable Customer to perfect, preserve, register and record its rights in such Intellectual Property Rights.
10.2 Customer acknowledges that, as between the Parties, Central Pharma and its licensors own all Intellectual Property Rights in the Background Materials. Customer shall not have any rights over or to use the Background Materials other than as expressly provided under this Contract. To the extent that Intellectual Property Rights in the Background Materials may vest in Customer, Customer hereby irrevocably assigns, transfers and conveys to Central Pharma all Intellectual Property Rights, title and interest therein for the full term of such rights and renewals and extensions, together with all accrued rights of action. Customer shall, at Central Pharma’s cost, give Central Pharma all reasonable assistance and execute all documents necessary to assist or enable Central Pharma to perfect, preserve, register and record its rights in such Intellectual Property Rights.
10.3 Central Pharma hereby grants to Customer a royalty-free, worldwide, non-exclusive, sub-licensable (but only to Customer’s Affiliates on the same terms as under this Clause 10) licence to use the Background Materials for the purposes of exercising its rights and benefiting from the Services and Deliverables under this Contract for its own usual business purposes. Subject to anything else to the contrary in this Contract, Customer shall not and shall procure that Customers’ Affiliates will not use the Background Materials for any other purpose or disclose them to any third party, except to the extent that Central Pharma gives its express prior written consent.
10.4 Customer hereby grants to Central Pharma a royalty-free, worldwide, non-exclusive, sub-licensable licence to use and reproduce the Customer Brand, the Customer Materials and the Deliverables and supply and work with the Deliverables and the Customer Materials including the Products, for the purposes of performing its obligations under this Contract (including the provision of the Services and Deliverables) during the term of this Contract. Customer also hereby grants to Central Pharma a royalty-free, worldwide, perpetual, non-exclusive, sub-licensable licence to use and reproduce the Customer Brand for use in Central Pharma’s marketing materials and to describe who its clients are including when pitching for business. Subject to anything else to the contrary in this Contract, Central Pharma shall not use the Customer Brand, the Customer Materials including the Products or the Deliverables for any other purpose or disclose it to any third party, except to the extent that Customer gives its express prior written consent.
10.5 If either Party becomes aware of any improper or wrongful use of the Intellectual Property Rights owned or used by the other Party, that Party shall promptly inform the other Party in writing of such use. Each Party shall if requested by the other Party assist the other Party (at the other Party’s cost) in taking any steps in connection with the protection or defence of the Intellectual Property Rights owned or licensed by the other Party as the other Party may reasonably determine.
11. TERM AND TERMINATION
11.1 This Contract shall commence when it becomes legally binding in accordance with Clause 2.6 and, unless terminated earlier by either Party exercising any right of cancellation or termination as set out in this Contract or by operation of law, shall continue in force until the later of:
11.1.1 Customer having paid Central Pharma in full for all sums due under this Contract; and
11.1.2 Central Pharma having performed all the Services.
11.2 Notwithstanding anything else contained in this Contract, it may be terminated by either Party by notifying the other Party with immediate effect if:
11.2.1 the other Party is in material breach of any of its obligations under this Contract which is incapable of remedy;
11.2.2 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Contract after having been required in writing to remedy such breach within a period of no less than 30 days;
11.2.3 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 that” did not appear in sections 123(1)(e) or 123(2);
11.2.4 the other Party begins 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;
11.2.5 the other Party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
11.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other Party (being a company, limited liability partnership or partnership), 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;
11.2.7 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;
11.2.8 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;
11.2.9 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;
11.2.10 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 fourteen days;
11.2.11 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 Clauses 11.2.3 to 11.2.10;
11.2.12 the other Party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
11.2.13 the other Party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Contract is in jeopardy.
11.3 Central Pharma may terminate this Contract by notifying Customer with immediate effect if Customer is at least seven days late in paying any sum due under this Contract or any other contract between the Parties.
11.4 The expiry or termination of this Contract will be without prejudice to any other rights or remedies which either Party may be entitled to under this Contract or at law and will not affect any accrued rights or liabilities of either Party.
11.5 The expiry or termination of this Contract will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
11.6 Upon the expiry or termination of this Contract for any reason:
11.6.1 Central Pharma shall cease to be required to perform this Contract;
11.6.2 Central Pharma may require Customer to receive and pay for any Services that are ready or nearly ready for delivery to Customer (even if not yet delivered) as at termination or expiry;
11.6.3 Customer shall reimburse Central Pharma on demand for any out of pocket costs and expenses reasonably incurred by Central Pharma in anticipation of performing this Contract but where the Services are not delivered by Central Pharma (including the costs and expenses for any Deliverables and Products); and
11.6.4 all outstanding sums owed by Customer to Central Pharma shall become immediately payable, whether invoiced or not.
12. FORCE MAJEURE
12.1 Save for obligations in respect of payment of the Fees, costs and expenses in accordance with this Contract and any other sum owed by Customer to Central Pharma under this Contract, neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations under this Contract which is caused by an Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen.
12.2 Each Party shall inform the other Party in writing upon becoming aware of an Event of Force Majeure, such communication to contain details of the circumstances giving rise to the Event of Force Majeure.
12.3 The performance of each Party’s obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
12.4 If there is an Event of Force Majeure which continues without a break for more than three months, either Party may terminate this Contract by notifying the other Party with immediate effect, in which event neither Party shall have any Liability by reason of such termination save as otherwise described in this Contract.
12.5 Each Party shall use its reasonable endeavours to assist and co-operate with the other Party to mitigate the effects of an Event of Force Majeure, but neither Party shall be required to take steps that it would be unreasonable to expect it to take.
12.6 Subject to the provisions of this Clause 12, if Central Pharma has contracted to provide identical or similar services to more than one customer and is prevented from fully meeting its obligations to Customer by reason of an Event of Force Majeure, Central Pharma may decide in its absolute discretion which contracts it will perform and to what extent.
13. NOTICES
13.1 Any notice required or authorised to be given under this Contract shall be in writing and shall be served by personal delivery or by letter sent by a generally recognised commercial express courier addressed to the relevant Party at its principal place of business as stated in this Contract or at such other address as the relevant Party informs the other Party in writing for this purpose from time to time or at the address of the relevant Party last known to the other Party.
13.2 Any notice served by letter by express courier shall be deemed to have been served two Business Days after the same shall have been despatched, and in proving such service it shall be sufficient to prove that the letter was properly addressed and despatched and delivered, and any notice served by personal delivery shall be deemed served on the date of such delivery.
13.3 This Clause 13 does not apply to the service of any proceedings or any documents in any legal action concerning this Contract.
14. USE OF INFORMATION
14.1 Central Pharma may use data collected about Customer and Customer’s representatives for the following purposes:
14.1.1 credit checks, credit searches, credit scoring, credit insurance and securitisation, and Central Pharma may provide or exchange that information with third parties (including bankers and financiers) for that purpose;
14.1.2 administering Customer’s account and Orders; and
14.1.3 sending details of further products and services with which Central Pharma or its associated people or organisations are involved.
15. ASSIGNMENT
15.1 Subject to Clause 15.2, neither Party shall or shall purport to assign, transfer, novate, sub-license, charge or otherwise encumber, create any trust over or deal in any manner with this Contract or any of its rights, liabilities or obligations under this Contract to any person or entity (whether orally, in writing, by operation of law or otherwise) without the prior written consent of the other Party.
15.2 Central Pharma is entitled to sub-contract any or all of its obligations under this Contact to one or more third parties. Any act or omission of any such subcontractor shall for the purposes of this Contract be deemed to be the act or omission of Central Pharma and Customer will have no contractual relationship with any such third party.
16. WAIVER
16.1 Unless a Party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either Party in exercising any power, right or remedy under this Contract or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that Party’s other powers, rights or remedies under this Contract or at law.
17. SEVERABILITY
17.1 If any provision of this Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Contract, and the validity and enforceability of the other provisions of this Contract shall not be affected.
17.2 If a provision of this Contract (or part of any provision) is found illegal, invalid or unenforceable, the Parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties’ original commercial intention.
18. RELATIONSHIP OF THE PARTIES
18.1 The relationship of the Parties is that of independent contractors dealing at arm’s length. Except as otherwise stated in this Contract, nothing in this Contract shall constitute the Parties as partners, joint venturers or co-owners, or constitute either Party as the agent, employee or representative of the other Party, or empower either Party to act for, bind or otherwise create or assume any obligation on behalf of the other Party, and neither Party shall hold itself out as having authority to do the same.
19. THIRD PARTY RIGHTS
19.1 A person who is not a party to this Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
19.2 The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Contract are not subject to the consent of any other person.
20. GOVERNING LAW AND JURISDICTION
20.1 This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or its formation, shall be governed by, and construed in accordance with, the laws of England and Wales.
20.2 If each Party is domiciled in either the United Kingdom or the European Union, the Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of or in connection with this Contract or its subject matter or its formation (including non-contractual disputes or claims).
20.3 If either Party is or both of the Parties are domiciled outside of the United Kingdom and the European Union, any claim, dispute or matter of difference which may arise out of or in connection with this Contract or its subject matter or its formation (including non-contractual disputes or claims) shall be exclusively referred to and finally resolved by arbitration under the London Court of International Arbitration Rules (the LCIA Arbitration Rules). The LCIA Arbitration Rules are deemed to be incorporated by reference into this Clause 20.3. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.
20.4 All dealings, correspondence and contacts between the Parties shall be made or conducted in the English language.