Terms & Conditions of Purchase

Paragon Health Limited – Terms and Conditions of purchase of products, materials and equipment. Effective 1 July 2020.

 

1. Interpretation

The definitions and rules of interpretation in this clause apply in these conditions.

• Definitions:

• Contract: the Purchase Order and the Supplier's acceptance of it in accordance with condition 3.

• Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.

• UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.

• Product: the product, material or equipment agreed in the Contract to be purchased by Paragon Health from the Supplier (including any part of it).

• Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation 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, those rights, and all similar or equivalent rights or forms of protection in any part of the world.

• Purchase Order: Paragon Health's written instruction to supply the Product, incorporating these conditions.

• Software: any and all computer programs and computer software (of whatever type and in whatever form or media) installed on or supplied with the Product at the time of its delivery and either necessary for its operation in the manner contemplated by Paragon Health or otherwise referred to in the Purchase Order.

• Supplier: the person, firm or company who accepts the Purchase Order in accordance with condition 3.

  • Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

  • A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

  • A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

  • Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

  • Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

  • A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

  • A reference to writing or written includes faxes and email.

  • References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.

  • 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.

1. Application of conditions

   • These conditions shall:

     • apply to and be incorporated in the Contract; and

     • prevail over any inconsistent terms or conditions contained in or referred to in the Supplier's quotation, acceptance, correspondence or elsewhere or implied by law, trade custom, practice or course of dealing.

   • No addition to, variation of, exclusion or attempted exclusion of the Purchase Order or these conditions or any of them shall be binding on Paragon Health unless in writing and signed by a duly authorised representative of Paragon Health.

   • Where the Purchase Order is for more than one item, it shall (following acceptance by the Supplier) be regarded as a single Contract for all Product supplied pursuant to that Purchase Order.

2. Effect of Purchase Order

   • Paragon Health shall only be bound by an order if it is issued on Paragon Health's standard Purchase Order form and signed by a duly authorised representative of Paragon Health.

   • The Purchase Order constitutes an offer by Paragon Health to purchase the Product subject to these conditions. Accordingly, any acceptance of the Purchase Order by the Supplier shall establish a contract for the sale and purchase of that Product on these conditions. Any counter-offer made by the Supplier to supply the Product on other conditions shall only be validly accepted if that acceptance is in writing and signed by a duly authorised representative of Paragon Health.

   • The execution and return of the acknowledgement copy of the Purchase Order form by the Supplier, or the Supplier's execution, commencement of work or commencement of delivery pursuant to the Purchase Order constitutes acceptance of the Purchase Order on these conditions by the Supplier.

3. Supplier's warranty

   • The Supplier warrants to Paragon Health that:

     • the Product will conform with the quality, description and other particulars of the Product stated in the Purchase Order;

     • the Product will conform to all samples, drawings, descriptions and specifications provided to Paragon Health by the Supplier;

     • the Product will conform with all standards referred to on any part of the Product and in any packaging and/or documents in, with or in relation to which the Product is supplied;

     • the Product will be of satisfactory quality and fit for any intended uses expressly or impliedly made known to the Supplier, including for the manufacture of Type IIR medical masks, and will be free from all defects in materials, workmanship and installation for a period of 12 months from the date of delivery;

     • the Product will comply with all performance and other specifications stated in the Purchase Order, and all applicable legislation for the time being in force;

     • if relevant to the Product, the Supplier will allow Paragon Health, at any time within 12 months from the date of delivery of the Product, to enter with the Supplier into a maintenance agreement for the Product in all respects on the Supplier's standard conditions (including without limitation as to price and duration);

     • where, at any time, Paragon Health has not entered into a maintenance agreement of the kind referred to at condition 1(f), it will be entitled to maintain the Product itself, or by or through any third party; and

     • if relevant to the Product, it will provide to Paragon Health high quality user manuals and training and other documents for the Product without further charge in the form and quantities as Paragon Health may reasonably stipulate at any time before five days after delivery.

   • Paragon Health's rights under the Contract are in addition to the statutory terms implied in favour of Paragon Health by the Sale of Goods Act 1979 and any other statute.

   • The provisions in this condition 4 shall survive any delivery, inspection, acceptance, payment or performance pursuant to the Contract and shall extend to any replacement, repaired, substitute or remedial Product provided by the Supplier.

4. Quantities

Unless Paragon Health has agreed otherwise in writing, the Supplier shall deliver the exact specified quantities of the Product in accordance with the Purchase Order. Without affecting its other rights and remedies, Paragon Health reserves the right to reject incomplete deliveries and to return excess quantities at the Supplier's risk and expense.

1. Inspection and testing of Products

   • The Supplier shall:

     • carefully test and inspect the Products before delivery to ensure that it complies with the requirements of the Purchase Order and will be suitable for the manufacture of Type IIR medical masks; and

     • if so requested by Paragon Health, give Paragon Health reasonable advance notice of those tests (which Paragon Health shall be entitled to attend).

   • Paragon Health reserves the right to call for certificates or test certificates for the Product at any stage of manufacture or assembly. Those certificates shall clearly state Paragon Health's order numbers and any item or Product numbers. If, as a result of any inspection or test, Paragon Health finds that the Product or any items comprised within it or do not comply with the Purchase Order, or are unlikely to comply with it on completion of manufacture, processing or performance, Paragon Health may inform the Supplier, and the Supplier shall take those steps as are necessary to ensure compliance.

2. Delivery and acceptance of Product

   • The Supplier shall deliver the Products on the date specified in the Purchase Order or, if no such date is specified, within 28 days of the date of the Purchase Order. Time is of the essence as to the delivery of the Products under the Contract and if the Supplier does not comply with its obligations in the preceding sentence, Paragon Health may, without prejudice to any other rights or remedies that it may have:

     • cancel the Contract in whole or in part without incurring any liability to the Supplier;

     • refuse to accept any subsequent delivery of items comprised in the Product which the Supplier attempts to make;

     • purchase substitute items elsewhere; and/or

     • hold the Supplier accountable for any loss and additional costs incurred.

   • The Products shall be properly packed and secured in such manner as to enable it to reach its destination in good condition. No charge shall be made for wrapping, packing, cartons, boxes, crating or containers unless specified in the Purchase Order, and Paragon Health shall not be responsible for returning those materials.

   • The Products shall be delivered by the Supplier carriage free to the place of delivery specified in the Purchase Order, or as otherwise specified by Paragon Health by means of advice notes quoting Paragon Health's order number. The Products shall be received at the place of delivery, subject to Paragon Health's inspection and approval. Any Product which Paragon Health rejects as not conforming with the Purchase Order shall be returned at the Supplier's risk and expense.

   • Paragon Health shall not be deemed to have accepted the Product until it has had seven days to inspect it after delivery. Paragon Health may also reject the Product as though it had not been accepted for two months after any latent defect in the Product has become apparent.

3. Risk and property

   • The Product shall be at the risk of the Supplier until delivery to Paragon Health at the place of delivery specified in the Purchase Order, or as otherwise specified by Paragon Health in accordance with condition 3. The Supplier shall off-load the Product at its own risk as directed by Paragon Health.

   • Ownership of the Product shall pass to Paragon Health on completion of delivery (including off-loading) in accordance with the Purchase Order, except that if the Product is paid for before delivery ownership shall pass to Paragon Health once payment has been made. The passing of ownership in the Product is without prejudice to any right of rejection to which Paragon Health may be entitled under the Contract or otherwise.

4. Prices

All prices shall be as stated in the Purchase Order. All prices are fixed and inclusive of delivery, packaging, packing, shipping, carriage, insurance and other charges and dues, and are not subject to adjustment save as specifically provided in these conditions or the Purchase Order.

1. Payment

   • Unless otherwise stated in the Purchase Order, payment of invoices shall be made by the end of the month following the month in which the Product is received by Paragon Health in accordance with the Purchase Order.

   • Without prejudice to any other right or remedy, Paragon Health reserves the right to set off any amount at any time owing to it by the Supplier against any amount payable by it to the Supplier under the Contract.

2. Indemnity

The Supplier shall indemnify and hold Paragon Health harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, Paragon Health as a result or in connection with:

• any alleged or actual infringement of any third party's Intellectual Property Rights or other rights arising out of the use, manufacture or supply of the Product; or

• defective workmanship, quality or materials in or in relation to the Product; or

• any claim made against Paragon Health in respect of any liability, loss, damage, injury, cost or expense sustained by Paragon Health's employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Product as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the Contract by the Supplier howsoever arising.

1. Confidentiality and Paragon Health's property

   • The Supplier shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Supplier by Paragon Health or its agents, and any other confidential information concerning Paragon Health's business or its products which the Supplier may obtain. The Supplier shall restrict disclosure of such confidential material to such of its employees as need to know the same for the purpose of discharging the Supplier's obligations to Paragon Health.

   • All materials, equipment, tools, copyright, rights in designs and any other Intellectual Property Rights in all drawings, specifications and data supplied by Paragon Health to the Supplier shall at all times be and remain the exclusive property of Paragon Health, and shall be held by the Supplier in safe custody at its own risk and maintained and kept in good condition by the Supplier until returned to Paragon Health, and shall not be disposed or used other than in accordance with Paragon Health's written instructions or authorisation. The Supplier shall return all copies of any such material to Paragon Health immediately on Paragon Health's first written request.

   • This condition 12 shall survive the termination of the Contract, however arising.

2. Limitation of liability

   • The following provisions set out the entire financial liability of either party (including without limitation any liability for the acts or omissions of its employees, agents and subcontractors) to the other in respect of:

     • any breach of this agreement howsoever arising; and

     • any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with this agreement.

   • Nothing in this agreement excludes either party's liability:

     • for death or personal injury caused by that party's negligence; or

     • for fraud or fraudulent misrepresentation.

   • Subject to condition 2 and condition 13.4:

     • neither party shall in any circumstances be liable, whether in tort (including without limitation for breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for loss of profits, loss of business or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

     • each party's total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to 200% of the price paid or payable for the Product.

   • The limitations of liability in condition 3(b) shall not apply:

     • in the case of liability of Paragon Health, to liability for damages for any breach by Paragon Health of:

       • its payment obligations;

       • confidentiality under condition 12; and

     • in the case of liability of the Supplier, to liability for:

       • or under any indemnity in this agreement (whether in respect of performance of the indemnity or its breach), including the indemnities under condition 11;

       • any breach of any regulatory requirement by the Supplier which directly or indirectly results in the imposition of any fine or sanction on Paragon Health or Paragon Health otherwise incurring any liability; and

       • any breach by the Supplier of condition 12 (Confidentiality and Paragon Health's property) or condition 17 (Anti-bribery and Anti-slavery).

1. Termination

   • Paragon Health may cancel the Contract (for all or part only of the Product) by giving written notice to the Supplier at any time before delivery, in which case Paragon Health shall pay the Supplier the price for the cancelled Product, less any cost savings accruing to the Supplier by reason of the cancellation.

   • Without prejudice to any other rights or remedies to which Paragon Health may be entitled, Paragon Health may terminate the Contract without liability to the Supplier if:

     • the ability of Paragon Health to accept delivery of the Product is delayed, hindered or prevented by circumstances beyond its reasonable control;

     • the Supplier commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so;

     • the Supplier repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;

     • the Supplier 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;

     • the Supplier 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 its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;

     • 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 Supplier other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;

     • an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Supplier (being a company, partnership or limited liability partnership);

     • the holder of a qualifying floating charge over the assets of the Supplier (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

     • a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

     • a creditor or encumbrancer of the Supplier 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 the Supplier's assets and that attachment or process is not discharged within 14 days;

     • any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 2(b) to condition 14.2(j) (inclusive);

     • the Supplier suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

     • the Supplier's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

   • Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.

   • Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

2. Remedies

If any Product is not supplied in accordance with, or the Supplier fails to comply with, any terms of the Contract, Paragon Health may (without prejudice to any other right or remedy) exercise any one or more of the following rights or remedies, whether or not any part of the Product has been accepted by Paragon Health:

• rescind the Contract;

• reject the Product (in whole or in part) and return it to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Product so returned shall be paid immediately by the Supplier;

• require the Supplier, at the Supplier's expense, either (at Paragon Health's option) to remedy any defect in the Product and carry out such other work as is necessary to ensure that the Product is in all respects in accordance with the Purchase Order or to supply replacement Product, provided that if the Supplier refuses to remedy the defect in the Product or to supply replacement Product within 15 days of receiving such a request, Paragon Health may purchase replacement Product from another source and the Supplier shall reimburse Paragon Health for all costs and expenses reasonably incurred in doing so; or

• refuse to accept any further deliveries of the Product, without liability to the Supplier;

and in any case to claim such damages as it may have sustained in connection with the Supplier's breach or breaches of the Contract not otherwise covered by this condition 15.

1. Force majeure

Paragon Health may defer the date of delivery or payment, or cancel the Contract or reduce the amount of Product ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of Paragon Health or any other party), failure of a utility service or transport or telecommunication network, act of God, pandemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

1. Anti-bribery and anti-slavery

   • The Supplier shall:

     • comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and the Modern Slavery Act 2015 (Relevant Requirements);

     • not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if the activity, practice or conduct had been carried out in the UK;

     • comply with Paragon Health's Anti-Bribery Policy and Anti-Slavery Policy as Paragon Health may update them from time to time (Relevant Policies).

     • have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and will enforce them where appropriate;

     • within one month of the date of this agreement, and annually thereafter, certify to Paragon Health in writing signed by an officer of the Supplier, compliance with this condition 17 by the Supplier and all persons associated with it and all other persons for whom the Supplier is responsible under condition 1(d). The Supplier shall provide such supporting evidence of compliance as Paragon Health may reasonably request.

   • Without prejudice to condition 19 the Supplier shall ensure that any person associated with the Supplier who is performing services or providing goods in connection with this agreement does so only on the basis of a written contract which imposes on and secures from that person terms equivalent to those imposed on the Supplier in this condition 17 (Relevant Terms). The Supplier shall in all circumstances be responsible for the observance and performance by those persons of the Relevant Terms, and shall in all circumstances be directly liable to Paragon Health for any breach by those persons of any of the Relevant Terms howsoever arising.

   • Breach of this condition 17 shall be deemed a breach, which is not remedied within the specified period, under condition 2(b).

   • For the purpose of this condition 17, in the context of the Bribery Act 2010, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this condition 17 a person associated with the Supplier includes but is not limited to any subcontractor of the Supplier.

2. Variation

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

1. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of that right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

1. Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

1. Severance

   • If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

   • If any provision or part-provision of this agreement is deemed deleted under condition 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

2. Assignment

   • The Supplier shall not, without the prior written consent of Paragon Health, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

   • Paragon Health 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.

3. 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.

1. Notices

   • Any notice given to a party under or in connection with this contract shall be in writing and shall be:

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

     • sent by email to its main email address.

   • Any notice shall be deemed to have been received:

     • if delivered by hand, at the time the notice is left at the proper address;

     • if sent by pre-paid first-class post or other next working day delivery service, at 11.00 am on the second Business Day after posting; or

     • if sent by email, at 9.00 am on the next Business Day after transmission.

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

2. Governing law

The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of Northern Ireland.

1. Jurisdiction

Each party irrevocably agrees that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).