Terms And Conditions For The Supply Of Services
PASSPHARMA LIMITED TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
1. Definitions and Interpretation
1.1 The following words and expressions shall have the following meanings unless the context otherwise requires:
“Additional Charges” means any expenses reasonably incurred in the provision of the Services and as detailed in the Schedule which are capable of being charged in addition to the Price;
“PassPharma ” means PassPharma Limited
“PassPharma Representative” means the nominated employee of PassPharma, identified in the Schedule, who shall manage the provision of the Services on a day to day basis;
“Coach” means the nominated employee of the Customer, identified in the Schedule, who may be trained by PassPharma as part of the Services to enable that person to deliver the training courses to the Learners on behalf of the Customer;
“Conditions” means these terms and conditions including the Schedule;
“Contract” means any agreement for the supply of Services from PassPharma to the Customer in accordance with Condition 2.4;
“Customer” means the person or firm which has accepted these Conditions;
“Deliverables” means all documents and materials developed by PassPharma and identified in the Schedule as being part of the Services;
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral 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 for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Location” means the location where PassPharma is to deliver the Services to the Customer as detailed in the Schedule;
“Price” means the price due from the Customer for the supply of the Services as detailed in the Schedule, plus any Additional Charges and any other charges as referred to in Conditions 5.1 and 5.2;
“Proposal” means any proposal, tender, estimate or quotation submitted to the Customer by PassPharma prior to the Contract being made;
“Quality Assurance” means those Services provided by PassPharma which relate to the monitoring and confirmation of work undertaken by the Coach as further defined in the Schedule;
“Schedule” means the specific details of the Contract as notified to the Customer in writing and which may be included within PassPharma order acknowledgement or other document or form of correspondence and identified as containing such Contract details;
“Services” means the services and any Deliverables to be provided by PassPharma to the Customer as detailed in the Schedule;
“Learner(s)” means those persons who are to receive the benefit of the Services and in particular the training courses, and as detailed in the Schedule;
“VAT” means value added tax chargeable under English law for the time being and any similar additional tax; and
“Working Day” means any day from Monday to Friday other than a statutory holiday or public holiday in England.
1.2 In these Conditions:
1.2.1 a reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation;
1.2.2 words in the singular include the plural and words in the plural include the singular;
1.2.3 a reference to one gender includes a reference to the other gender and the neutral;
1.2.4 words importing persons include firms, companies and corporations and vice versa;
1.2.5 the headings to Conditions or the Schedule do not affect the interpretation of these Conditions including the Schedule;
1.2.6 any reference to a Condition or Schedule is to the relevant Condition or Schedule to these Conditions and any reference to a sub-condition or paragraph of the Condition or Schedule in which it appears;
1.2.7 where the word ‘including’ is used in these Conditions, it shall be understood as meaning ‘including without limitation’ and where the context permits, the words ‘other’ and ‘otherwise’ are illustrative and shall not limit the sense of the words preceding them; and
1.2.8 any reference to ‘writing’ or any cognate expression includes communications by post, facsimile and email transmission but excludes text messages.
2. Basis of Contract
2.1 These Conditions shall apply to the sale and supply by PassPharma of all Services purchased by the Customer and these Conditions shall govern the Contract to the exclusion of any other terms and conditions introduced or submitted by the Customer.
2.2 No variation of these Conditions shall be binding or valid unless agreed in writing either by the PassPharma Representative or by a director of PassPharma and no collateral or supplemental contract may be made or construed unless confirmed in writing by a director of PassPharma.
2.3 Any Proposal submitted to the Customer will not constitute an offer and shall remain valid for the period stated therein, but if no period is specified such Proposal shall be valid for the date of issue.
2.4 Each order or acceptance of a Proposal for the supply of Services by the Customer shall be deemed to be an offer by the Customer to purchase the Services subject to these Conditions. The Contract shall be made when PassPharma acknowledges the order placed by the Customer in writing and not before.
2.5 PassPharma may at any time without notifying the Customer make any changes to the Services which do not materially affect the nature or quality of the Services.
2.6 PassPharma ‘ employees or agents are not authorised to make any representations concerning the Services unless confirmed by PassPharma in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed save that nothing in this Condition excludes PassPharma liability for fraudulent misrepresentation.
2.7 In the event that the Customer wishes to cancel a Contract, it may only do so with the written consent of PassPharma and on the terms that the Customer shall indemnify PassPharma in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by PassPharma as a result of cancellation.
2.8 Any typographical, clerical or other omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information or Deliverable issued by PassPharma shall be subject to correction without any liability on the part of PassPharma.
3. Services
3.1 PassPharma shall perform the Services on the date(s) specified by PassPharma in the Schedule or as otherwise agreed in writing between the parties.
3.2 The Services shall be performed at the Location or at such other location agreed between the parties in writing.
3.3 Where the Customer wishes to reduce the number of Learners or vary the provision of any part of the Services, including the re-arranging of agreed delivery dates, then it must notify PassPharma in writing within 10 Working Days of the date on which the Services were due to be provided. Failure to provide notice within this timescale shall entitle PassPharma to invoice the Customer in accordance with Condition 5 in full for the planned Services regardless of whether performed. PassPharma are indemnified from giving refunds of any services unless they deem it appropriate to do so.
3.4 Where PassPharma are providing the Services to Learners, PassPharma shall be entitled to request the removal of a Learner on reasonable grounds including but not limited to; mis-conduct and displays of abusive and/or aggressive behaviour PassPharma shall advise the Customer as soon as reasonably possible of such an event.
3.5 Where the Customer has appointed a Coach no other person shall be entitled to use any of the Deliverables in order to provide the training courses to the Learners other than the Coach.
3.6 In all instances the Customer shall ensure that the Learners complete and return the feedback form contained as part of the Deliverables on completion of any training course whether undertaken by PassPharma or the Coach (“Feedback Forms”).
3.7 Where PassPharma is performing Quality Assurance as part of the Services and it identifies that the Coach is not providing the training to the Learners in accordance with PassPharma ‘ instructions or in such a way that the Feedback Forms suggest poor performance by the Coach in such training sessions which could impact on the quality of the training received by the Learners, then PassPharma shall notify the Customer in writing detailing the areas of non-compliance.
3.8 On receipt by the Customer of a notice raised in accordance with Condition 3.7, the parties shall meet as soon as reasonably practicable (but in any event within 5 Working Days) to identify the areas of concern and to agree a rectification plan.
3.9 Following the process identified in Condition 3.8 PassPharma shall be entitled to monitor the Coach at the next 3 training sessions. Where PassPharma still reasonably believes that the training is not being performed in accordance with its instructions or at a poor performance then it shall be entitled to terminate the Contract in accordance with Condition 10.2.1 with immediate affect.
4. Customer Obligations
4.1 The Customer warrants that:
4.1.1 it will co-operate with PassPharma in all matters relating to the Services;
4.1.2 it will provide, for PassPharma, its employees, agents and sub-contractors, in a timely manner and at no charge, access to the Location including access to such facilities reasonably requested by PassPharma;
4.1.3 it will provide, in a timely manner, such data, reports and all other information as PassPharma may request in order to assist PassPharma in the provision of the Services and ensure that it is accurate in all material respects;
4.1.4 carry out all actions specified in the Schedule by the times and dates set out in the Schedule;
4.1.5 it shall take all reasonable precautions to ensure the health and safety of PassPharma, its employees, agents, or sub-contractors whilst present at the Location and will inform PassPharma of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Locations;
4.1.6 that all services, including without limitation, any projector screens, digital projectors and extension leads provided at the Locations are in good working order and suitable for the purposes for which they are used in relation to the Services and conform to all relevant United Kingdom standards or requirements; and
4.1.7 it will obtain before the date on which the Services are to start and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the Services and the use of the data referred to in Condition 4.1.3
4.2 If PassPharma performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, PassPharma shall not be liable for any costs, expenses, losses or charges sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5. Price & Payment Terms
5.1 PassPharma reserves the right to charge the Customer, for any additional work undertaken over and above that which would have been otherwise required, (including any expenses or financial penalties incurred by PassPharma) as a result of any instructions supplied by the Customer being incomplete, incorrect, inaccurate, illegible, out of sequence, in the wrong form, or provided to PassPharma too late to enable it to meet a deadline.
5.2 Where a Learner is eligible for external funding to undertake the training courses of the nature provided by PassPharma (where the Services so determine), PassPharma shall make the application for such funding directly. Where the Learner fails to complete the training within the time period specified by the relevant funding body to entitle access to such funding then the Customer shall be liable to PassPharma for any outstanding fees in relation to that Learner. The Customer hereby warrants that where it may have commenced applications for external funding relating to a Learner or any of its employees it will disclose this information to PassPharma as soon as practicable to ensure that PassPharma does not duplicate the application process.
5.3 All Prices quoted are exclusive of VAT or any other sales tax which will be charged at the rate in force at the time of despatch.
5.4 The payment terms in this Condition apply save to the extent that they are inconsistent with any specific payment terms set out in the Schedule or agreed in writing between PassPharma and the Customer.
5.5 PassPharma shall be entitled to invoice the Customer for the Price and where applicable any Additional Charges on or at any time after despatch of the Deliverables and within 5 Working Days of the provision of the Services or any instalment thereof. In the event that any Additional Charges arise following the issue by PassPharma of the invoice, PassPharma will be entitled to invoice the Customer as and when such Additional Charges arise.
5.6 The Customer shall make payment of the Price and where applicable any Additional Charges in sterling, unless agreed otherwise in writing. Any payment received by PassPharma in any other currency will not be deemed to be payment for the Services in question. Payment will not be deemed payment for the Services in question unless and until it is received in full and in cleared funds.
5.7 The Customer shall pay each invoice from PassPharma without any set-off or other deduction within 30 days from the invoice date.
5.8 PassPharma invoices shall be payable in accordance with these Conditions, notwithstanding that provision of all the Services may not have taken place. The time of payment of PassPharma invoices shall be of the essence of the Contract.
5.9 If the Customer fails to pay in full any undisputed invoice from PassPharma by the due date for payment without prejudice to any other right or remedy PassPharma may have:
5.9.1 all invoices issued by PassPharma in respect of any similar services sold or supplied and any Additional Charges pursuant to any other contract which may exist between the parties shall immediately fall due for payment;
5.9.2 PassPharma shall be entitled (without prejudice to any other right or remedy it may have) to:
5.9.2.1 cancel or suspend any further provision of any Services to the Customer; and
5.9.2.2 charge the Customer interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Santander Plc, accruing on a daily basis until payment is made.
5.10 Unless otherwise agreed in writing by PassPharma, all queries from the Customer regarding any invoice must be received prior to the required payment date specified in Condition 5.7.
5.11 PassPharma may, without prejudice to any other rights it may have, set off any liability of the Customer to PassPharma against any liability of PassPharma to the Customer.
6. Intellectual Property Rights
6.1 The Customer acknowledges that PassPharma is the owner of the Intellectual Property Rights in the Services. The Customer further acknowledges that the Intellectual Property Rights supplied by PassPharma for the purpose of the Contract and these Conditions shall remain vested at all times in PassPharma and the Customer agrees that it will not assert ownership of the Intellectual Property Rights against PassPharma.
6.2 PassPharma grants to the Customer a non-exclusive, royalty free licence to such extent necessary to enable the Customer to use the Services only. On completion of the Services or in the event of PassPharma terminating the Contract in accordance with Condition 10 this licence will automatically terminate.
6.3 Unless stated to the contrary in the Schedule, the licence granted to the Customer in accordance with Condition 6.2 shall only permit the right to use, copy and disclose any Deliverables for the relevant number of Learners and the Coach.
6.4 No rights to use the names, trade marks or logos of PassPharma are granted under the Contract other than with the prior written consent of PassPharma.
7. Confidentiality and PassPharma property
7.1 The Customer shall keep in strict confidence all know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by PassPharma, its employees, agents or sub-contractors and any other confidential information concerning PassPharma business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors (including but not limited to the Learners and the Coach) as need to know the same for the purpose of either making use of the Services or in order to discharge the Customer’s obligations to PassPharma, and shall ensure that such employees, agents or sub-contractors (including the Learners and the Coach) are made aware of the obligations of confidentiality which bind the Customer.
7.2 All Deliverables shall, at all times, be and remain the exclusive property of PassPharma, but shall be held by the Customer in safe custody at its own risk until returned to PassPharma, and shall not be disposed of or used other than in accordance with PassPharma written instructions or authorisation.
7.3 This Condition 7 shall survive termination of the Contract however arising.
8. Data Protection
8.1 In the Contract the terms “Personal Data”, “Sensitive Data”, “Data Processor”, “Data Controller” and “Data Subject” are as defined in the General Data Protection Regulation (EU 2016/679), the Data Protection Act 1998 and any successive legislation (together the “Data Protection Legislation”).
8.2 PassPharma acknowledge that in the provision of the Services:
8.2.1 it may act as a data processor appointed by the Customer who is a Data Controller; and
8.2.2 the Data to which it has access may contain Personal Data and Sensitive Data.
8.3 PassPharma warrants that it will only process the Personal Data for the purposes of the provision of the Services as set out in the Contract on instruction from the Customer.
8.4 PassPharma will at all times comply with any agreement between the Customer and any individual who is the subject of Personal Data in relation to any processing which causes or is likely to cause substantial and unwarranted damage or distress to the individual, or any Court order requiring the rectification, blocking, erasure or destruction of any Personal Data notified to PassPharma by the Customer in writing from time to time.
8.5 PassPharma will assist the Customer in responding to any request made by a Data Subject under the Data Protection Legislation.
8.6 The Customer will not do or omit to do anything which causes PassPharma to breach the Data Protection Legislation or any other law or contravene the terms of any registration, notification or authorisation of PassPharma under the Data Protection Legislation.
9. PassPharma Warranties and Liability
9.1 Subject to the Conditions set out below PassPharma warrants that:
9.1.1 the Services will be performed by PassPharma with reasonable care and skill in a good and workmanlike manner and that PassPharma personnel possess the relevant qualifications, professional competence and experience to carry out such Services subject to the Customer complying with the obligations set out in Condition 4.1; and
9.1.2 the Services will be provided in accordance with all applicable legislation.
9.2 Subject as expressly provided in these Conditions, all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.3 PassPharma shall not be liable for breach of warranty under Condition 9.1 if:
9.3.1 the Customer has failed to follow PassPharma instructions (whether oral or in writing) as to the correct use of the Services; or
9.3.2 the Customer alters the Services in anyway without the written consent of PassPharma.
9.4 Where any valid claim in respect of the Services is made by the Customer PassPharma shall be entitled at its option to:
9.4.1 re-perform or produce the relevant part of the Services found not to conform to warranty at PassPharma ‘ cost; or
9.4.2 at PassPharma sole discretion, refund to the Customer the Price (or a proportionate part of the Price) of the relevant part of the Services found not to conform to warranty,
and subject to Condition 9.5.1, PassPharma shall have no further liability to the Customer.
9.5 Except as expressly provided in Conditions 9.3 and 9.4 PassPharma liability in connection with the sale and supply of Services shall be as follows:-
9.5.1 in respect of death or personal injury caused by the negligence of PassPharma, liability shall be unlimited;
9.5.2 in respect of physical damage to or loss of the Customer’s tangible property to the extent that it results from the wilful default or negligence of PassPharma, its employees, agents or contractors, PassPharma liability shall be limited to an amount of £1000 in respect of each incident or series of connected incidents;
9.5.3 in respect of all other direct loss (whether in contract, tort or otherwise) PassPharma total liability under the Contract shall not exceed the value of the Price paid for the Services;
9.5.4 in respect of any loss of profits, loss of business, loss of goodwill, loss of anticipated savings, loss of use or for any type of consequential, special or indirect loss or damage, PassPharma liability shall be nil.
9.6 PassPharma shall have no liability under the provisions of these Conditions or otherwise (other than for liability occurring in accordance with Condition 9.5.1) if the Services have not been paid for by the due date for payment in accordance with Condition 5.7.
9.7 Any claim by the Customer under this Condition 9 in respect of any Services shall not entitle the Customer to withhold or delay payment in respect of any other Services in respect of which no such claim has been made whether or not those Services form part of the same Contract.
10. Termination
10.1 The Contract shall terminate automatically on completion of the provision of the Services.
10.2 PassPharma shall be entitled to terminate the Contract with immediate effect if:-
10.2.1 the Customer commits a material breach of any of the terms of the Contract and (if such breach is remediable) fails to remedy that breach within 14 days of being notified in writing of that breach; or
10.2.2 the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.2.3 an encumbrancer takes possession or a receiver is appointed, of any of the property or assets of the Customer; or
10.2.4 the Customer ceases, or threatens to cease, to carry on business; or
10.2.5 the Customer has not paid the Price (or part thereof) or any Additional Charges in accordance with Condition 5.7 and such amount remains outstanding after 30 Working Days; or
10.2.6 PassPharma reasonably believes that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
10.3 The right of termination under Condition 10.2 shall be, without prejudice to any other right or remedy available to PassPharma, PassPharma shall be entitled to cancel the Contract and suspend any further deliveries under the Contract without any liability to the Customer and if the Services have been delivered but not paid for, all of PassPharma outstanding invoices to the Customer will become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.4 On termination of the Contract for any reason:
10.4.1 the Customer shall immediately pay to PassPharma all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, PassPharma may submit an invoice, which shall be payable immediately on receipt;
10.4.2 where requested by PassPharma, the Customer shall return all of the Deliverables (including all copies) as soon as reasonably practicable. If the Customer fails to do so, then PassPharma may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
10.4.3 the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11. Force Majeure
11.1 PassPharma shall not be liable to the Customer nor be deemed to be in breach of Contract by reason of any delay in performing, or any failure to perform, any of PassPharma ‘ obligations in relation to the Contract, if the delay or failure was due to any cause beyond PassPharma ‘ reasonable control such as (but without limitation) any strike, lock-out or other form of industrial action, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or government order, rule, regulation or direction, accident, breakdown or plat or machinery, fire, flood, storm or default of supplier or sub-contractors.
12. Third Party Rights
12.1 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
13. No Partnership or Agency
13.1 Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right of power).
14. Notice
14.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Notices sent by post shall be deemed served on the next Working Day following posting where the recipient’s address is in Great Britain, or on the 7 Working Days following posting where the recipient’s address is outside of Great Britain. Any notice delivered personally shall be deemed served at the time of personal delivery, provided the same occurs on a Working Day. Any notice sent by fax or e-mail shall be deemed served at the time of transmission provided that a confirmatory copy of the fax or e-mail is sent by post within 24 hours of transmission of the fax or e-mail.
15. Entire Agreement
15.1 Each Contract constitutes the entire agreement between the parties in relation to its subject matter, supersedes any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
16. Assignment
16.1 PassPharma may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.2 The Customer shall not, without the prior written consent of PassPharma, assign, transfer, charge, sub-contract or deal in any manner with all or any of its rights or obligations under the Contract.
17. Severance
17.1 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions shall remain in full force and effect.
18. Waiver
18.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
18.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
19. Law and Jurisdiction
19.1 The Contract shall be governed by the laws of England, and the parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.