(1)Device Access (UK) Limited incorporated and registered in England and Wales with company number 07257316 whose registered office is at (Supplier).
(2)The Customer (Customer) whose name, place of incorporation, customer number and correspondence address is set out in the Quotation for Market Access Services NHS England (Quotation for Market Access Services).
BACKGROUND
(A) The Supplier is in the business of providing the Services.
(B) The Customer wishes to obtain and the Supplier wishes to provide the Services on the terms set out in this agreement.
(C) These terms and conditions should be read in conjunction with the Quotation for Market Access Services. In the event of a conflict between the quotation and these terms, the quotation shall prevail.
AGREED TERMS
1. INTERPRETATION
The following definitions and rules of interpretation apply in this agreement.
1.1 Definitions.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Deliverables: the Documents and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Intellectual Property Rights: copyright and related rights, moral rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered 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.
Services: the services to be provided by the Supplier under this agreement, as set out in the Quotation for Market Access Services.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
1.2 Clause and Schedule headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.6 A reference to writing or written includes email.
1.7 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.8 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.9 References to clauses are to the clauses of this agreement.
1.10 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. SUPPLIER'S RESPONSIBILITIES
2.1 The Supplier shall use reasonable endeavours to provide the Services and deliver the Deliverables to the Customer, in accordance with the Quotation for Market Access Services in all materials respects.
2.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Quotation for Market Access Services but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement.
3. CUSTOMER'S OBLIGATIONS
3.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide, in a timely manner, such information as the Supplier may reasonably require in connection with the Services, and ensure that it is accurate in all material respects;
(c) pay for the services;
(d) reimburse expenses, fees and any applicable VAT in accordance with clause 5.4 below.
3.2 If the Supplier's performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.
3.3 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of 12 months after the completion of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
4. CHANGE CONTROL
4.1 If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other party in writing and the Supplier shall, as soon as reasonably practicable after receiving the Change Request, provide a revised quotation to the Customer setting out:
(a) the likely time required to implement the proposed change;
(b) details of the impact which the proposed change will have on:
(i) the Services;
(ii) the Supplier’s existing charges;
(iii) the timetable of the Services; and
(iv) any of the terms of this agreement.
4.2 Unless both parties consent to any Changes, there shall be no change to the Services and any other terms of this agreement.
5. CHARGES AND PAYMENT
5.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in the Quotation for Market Access Services.
5.2 Where the Services are provided on a ‘day rate’ basis:
(a) the charges payable for the Services shall be calculated in accordance with the Supplier's standard daily fee rates;
(b) the Supplier's standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked on a Business Day;
(c) all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate;
(d) the Supplier shall invoice the Customer monthly in arrear for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 5.2 and clause 5.4. Each invoice shall set out the total number of Business Days spent by each individual whom it engages on the Services and provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.
5.3 Where the Services are provided for a fixed price:
(a) The total price for the Services shall be the amount set out in the applicable Quotation for Market Access Services.
(b) The Customer shall pay the total price to the Supplier (without deduction or set-off) in instalments, as follows:
(i) 50% of the fixed price shall be payable immediately upon acceptance of the Quotation for Market Access Services;
(ii) The balance (together with all expenses payable pursuant to clause 5.4) shall be payable upon completion of the services in accordance with clause 5.5 below.
5.4 Any fixed price and daily rate contained in Quotation for Market Access Services excludes:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the in line with the table below:
| Mileage | 50p per mile |
| Parking | At cost |
| Flights | Domestic and EU flights- At cost of standard British Airways economy/flexible ticket Outside Europe- at cost of British Airways Club Class ticket |
| Hotels | up to a maximum of £125 per night for UK destinations (outside London), and a maximum of £200 per night for London and international destinations |
| Rail/Taxis | At cost |
| Clinical Research papers/ literature reviews | At cost |
| Phone calls/ admin | No charge |
(b) bank transfer fees, international processing fees levied by the banks and shall reimburse the Supplier any losses due to currency exchange where payment is not made in pounds sterling all of which shall be borne by the Customer, and
(c) VAT, which the Supplier shall add to its invoices at the appropriate rate
5.5 Unless otherwise stated in the Quotation for Market Access Services, the Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 15 days of receipt to a bank account nominated in writing by the Supplier, save that invoices issued pursuant to clause 5.3b for first and interim instalment payments shall be payable immediately.
5.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date:
(a) the Customer shall pay interest on the overdue amount at the rate of 8% per annum above Lloyds Bank Plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
(b) the Supplier may suspend all Services under any Quotation for Market Access Services until payment has been made in full.
5.7 All sums payable to the Supplier under this agreement shall become due immediately on its termination, despite any other provision. This clause 5.7 is without prejudice to any right to claim for interest under the law, or any such right under this agreement.
5.8 All amounts due under this agreement 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).
6. INTELLECTUAL PROPERTY RIGHTS
6.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables shall be owned by the Supplier. Subject to clause, the Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If this agreement expires or is terminated in accordance with clause 8, or if the Customer is in breach of any of the conditions contain in clause 6.2, this licence will automatically terminate.
6.2 The licence referred to in clause 6.1 above shall be limited as follows:
(a) No use shall be made of Intellectual Property Rights, Deliverables or data contained within them for marketing purposes;
(b) The Deliverables and data may not be re-sold or disclosed to third parties;
(c) Any use of the Deliverables and the data contained within them must conform to any guidelines which the Supplier issues to the Customer, either now or in the future.
7. LIMITATION OF LIABILITY
7.1 Nothing in this agreement shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
7.2 Subject to clause 7.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use, inaccuracy or corruption of software, data or information; and
(g) any indirect or consequential loss.
7.3 Subject to clause 7.1, where the Supplier may provide coding advice or may indicate values or rebates or reimbursement expectations for medical procedures. Although the Supplier uses its reasonable endeavours to ensure the accuracy of such information the Supplier gives no warranties or guarantees in relation thereto. The Customer acknowledges that Reimbursement policies change frequently and the Supplier accepts no responsibility for verifying reimbursement coverage. Any liability for the timeliness, accuracy and completeness of information relating to reimbursement policy is specifically excluded.
7.4 Subject to clause 7.1, the Supplier's total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to the amount paid by the Customer under the applicable Quotation for Market Access Services.
7.5 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
8. TERMINATION
8.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;
(b) 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) 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;
(d) 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 that other party (being a company);
(e) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.1(b) to clause (inclusive); or
(f) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
8.2 For the purposes of clause 8.1(a) material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of this.
8.3 Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 28 days after being notified in writing to make such payment.
9. CONSEQUENCES OF TERMINATION
9.1 On termination or expiry of this agreement:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) the following clauses shall continue in force: clause 6 (Intellectual property rights),), clause 7 (Limitation of liability), clause 21 (Governing law) and clause 22 (Jurisdiction).9.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.10. FORCE MAJEURE
10.1 Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority (which includes Health and Social Care Information Centre) , including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant or withdrawing a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident; and
(g) interruption or failure of utility service, computer virus, hacking or corruption of data.
10.2 If the Supplier is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
11. ASSIGNMENT AND OTHER DEALINGS
11.1 This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
11.2 The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.
12. VARIATION
Subject to clause 4, no variation of this agreement shall be effective unless it is agreed in writing by the parties.
13. WAIVER
13.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
13.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14. RIGHTS AND REMEDIES
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
15. SEVERANCE
15.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
15.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
16. ENTIRE AGREEMENT
16.1 This agreement, together with the Quotation for Market Access Services, constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
17. NO PARTNERSHIP OR AGENCY
17.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
18. THIRD PARTY RIGHTS
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
19. NOTICES
19.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by pre-paid first-class post or other next Business 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 specified in the Quotation for Market Access Services.
19.2 Any notice shall be deemed to have been received:
(a) if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service.
(b) if sent by email, at 9.00am on the next Business Day after transmission.
19.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20. COUNTERPARTS
20.1 This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
20.2 Transmission of an executed counterpart of this agreement (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this agreement. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.
20.3 No counterpart shall be effective until each party has executed and delivered at least one counterpart.
21. GOVERNING LAW
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
22. 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 this agreement or its subject matter or formation.
This agreement has been entered into on the date stated at the beginning of it.