Terms & Conditions Goods Not For Resale

PHOENIX IRELAND STANDARD TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS & SERVICES NOT FOR RESALE 

1. Definitions and interpretation 

1. In these Conditions the following words and expressions shall have the following meanings: 

Acceptance Conditions as defined in clause 6.2; 

Applicable Laws means all applicable laws, statutes, regulations from time to time in force; 

Bribery Laws means the Criminal Justice (Corruption Offences) Act 2018 and all other applicable Irish legislation, statutory instruments and regulations in relation to bribery or corruption and any similar or equivalent legislation in any other relevant jurisdiction; 

Business Day a day that is not a Saturday, Sunday or public or bank holiday in the Republic of Ireland; 

Conditions means these terms and conditions of purchase and the Phoenix Ireland Commercial Terms; 

Confidential Information means any commercial, financial or technical information relating to a party’s business (including information relating to a party’s relationship with actual or potential clients, customers or suppliers), information relating to the Deliverables, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract; 

Contract means the Conditions, the Phoenix Ireland Commercial Terms and the Order; 

Data Processing Schedule means the Data Processing Schedule issued by Phoenix to the Supplier; 

Data Protection Legislation means any applicable national laws, regulations and/or secondary legislation as amended or updated from time to time in relation to data privacy laws, including the Data Protection Act 2018 and the General Data Protection Regulation (EU) 2016/679). Data Controller, Data Processor, Processing, Process, Data Subject and Personal Data or similar expressions shall have the meaning given to them in applicable Data Protection Legislation; Data Protection Supervisory Authority means any regulator, authority or body responsible for administering Data Protection Legislation; 

Deliverables means the Goods or Services or both as the case may be; 

FOI Legislation means the Freedom of Information Act 2014, all regulations made under it and the Access to Information on the Environment Regulations 2007 - 2018, and any guidance issued by the Department of Climate, Energy and the Environment (including in each case its successors or assigns) in relation to such legislation; 

Force Majeure means an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; strike, lockout or boycott or other industrial action except strikes or other industrial disputes involving the Supplier’s or its suppliers and/or sub-contractors workforce; 

Goods means the goods and other physical material set out in the Order and to be supplied by the Supplier to Phoenix;

Group means a party and its subsidiaries or associated companies (as defined in the Companies Act 2014) incorporated in Ireland together with such          subsidiaries and associated companies (as so defined) incorporated outside Ireland as the parties may agree in writing from time to time; 

IPR means all intellectual and industrial property rights including patents, know- how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks, rights to prevent passing off for unfair competition, rights in confidential information, copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in Ireland and all other countries in the world and together with all renewals and extensions; 

Location means the Phoenix premises for delivery of the Goods and performance of the Services as set out in the Order;

Materials means all materials, documents, equipment, data and information provided by or on behalf of a party to the other in connection with the Contract;

Order as defined in clause 2.4; 

Phoenix means any one of the following Phoenix entities entering into the Contract with the Supplier: (a) PHX Ireland Group Limited (registration number: 578334); (b) McCabes Pharmacy Limited (registration number:342371);(c) Pemberton Marketing International Limited (registration number: 134768);(d)United Drug (Wholesale) Limited (registration number: 46423); and (e) United Drug Distributors Ireland Limited (registration number: 566401); all with registered office address as United Drug House, Magna Drive, Magna Business Park, Citywest Road, Dublin 24, Ireland; and Temperature Controlled Pharmaceuticals Limited (registration number: 310575; with registered office address as Unit 15-17, Willow Business Park, Knockmitten Lane, Nangor Road, Dublin 12; 

Phoenix Ireland Commercial Terms means the commercial terms signed between the Supplier and Phoenix; 

Proposal means the materials handed to or made available to Phoenix supporting the Supplier's presentation to Phoenix and describing how the Supplier proposes to provide the Deliverables; 

Price as defined in clause 3.1; 

Services means the services set out in the Order and to be supplied by the Supplier to Phoenix; 

Service Levels means the service levels set out in Order or as agreed by the parties in writing; 

Specification in relation to the Deliverables, the technical specifications of those Deliverables, all preparatory, design and development materials which relate to the Deliverables, all information of any description which explains the structure, design, operation, functionality of the Deliverables, all information of any description which relates to the maintenance and/or support of the Deliverables; 

Supplier means the person or company who supplied the Deliverables to Phoenix and whose details are set out in the Order; 

Supplier Personnel means all employees, officers, staff, other workers, agents and consultants of the Supplier, its Group and any of their sub-contractors who are engaged in the performance of the Services from time to time; and 

VAT means value added tax chargeable under Irish law for the time being and any similar tax. 

2. In these Conditions, unless the context requires otherwise: (a) any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions; (b) a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns; (c) a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns; (d) references to the singular include the plural and vice versa and references to any gender include every gender; (e) any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; (f) a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non- transitory form (excluding fax and email);(g) references to any statute or statutory provision shall include any subordinate legislation made under it and shall be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force; and (h) a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any). 

2. Application of these Conditions 

1. These Conditions apply to and form part of the Contract between the Supplier and Phoenix. They supersede any previously issued terms and conditions of purchase or supply. 

2. No terms or conditions endorsed on, delivered with, or contained in the Supplier’s quotation, sales conditions, confirmation of order, Specification or other document shall form part of the Contract. 

3. Subject to clause 2.6, no variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of Phoenix. 

4. Each quotation (including any Proposal) for the Deliverables from the Supplier will be deemed to be an offer by the Supplier to supply the Deliverables. Where a quotation (including any Proposal) is given, the Supplier agrees it remains open for acceptance by Phoenix for 90 (ninety days) and the Contract is only formed when a written or electronic acceptance (including email) of a quotation (including any Proposal) is sent by Phoenix to the Supplier (Order). 

5. Phoenix shall have the right to cancel, without any liability to the Supplier), the Order for the Deliverables or for any part of the Deliverables which have not yet been: (a) in the case of Goods, delivered after ten (10) Business Days of placing that Order; and (b) in the case of Services, performed for Phoenix. 

6. The Supplier acknowledges that Phoenix may at any time make changes in writing relating to the Contract, including changes to the: (a) quantity of Deliverables; (b) packing instructions for the Goods; and/or (c) time and/or the Location of the delivery or performance of the Services. If such changes result in an increase in cost of, or time required for, performance of the Contract an equitable adjustment will be made to the Price, delivery schedule or both. Any such claim or adjustment must be approved by Phoenix in writing before the Supplier proceeds with such changes. 

3. Price 

1. The price for the Deliverables shall be as set out in the Order or, in default of such provision, shall be calculated in accordance with the Supplier’s price list (Price List) notified by the Supplier to Phoenix in accordance with clause 3.3 (Price). No increase in the Price may be made after the Order is placed. 

2. Unless otherwise agreed by Phoenix in the Order, the Price will include packaging, delivery, unloading, unpacking, shipping, carriage, insurance and all other charges or taxes related to the Deliverables. 

3. The Supplier must provide Phoenix with at least three (3) months’ written notice of any increases to the Price List before such increase to the Price List can take effect. 

4. Payment 

1. The Supplier shall invoice Phoenix for: (a) the Goods in accordance with the terms of the Contract; and (b) the Services in accordance with the terms of the Contract. 

2. Phoenix shall pay each validly submitted invoice of the Supplier within 30 days of the end of month following the month of receipt of the invoice. All payments shall be made in euros. 

3. Each invoice must: (a) be sent to Phoenix at the address and marked for the attention of the individual set out in the Contract (or such other address and/or individual as may be notified by Phoenix to the Supplier from time to time); (b) contain the following information: (i) purchase order number (PO); (ii) date of invoice; (iii) invoice number; (iv) period to which the invoice relates;  and (v) the Deliverables to which the invoice relates. Only one PO may be allocated to any single invoice. 

4. VAT shall be charged by the Supplier and paid by Phoenix at the then applicable rate on receipt of a valid VAT invoice. 

5. Time of payment is not of the essence. Where sums due under the Contract (which are not disputed by Phoenix) are not paid in full by the due date, Phoenix shall pay interest on the sum overdue (before and after judgment) on a daily basis until payment in full at the rate of two per cent per annum above the Bank of Ireland rate. The Supplier acknowledges that this is a substantial remedy for the purposes of the European Communities (Late Payment in Commercial Transactions) Regulations 2012.  

5. Delivery & performance 

1. The Goods shall be delivered DDP (Incoterms 2020) to the Location during Phoenix’s normal opening hours, on the date specified in the Order (or if no such date is specified then within 30 (thirty) days of the date of the Order). 

2. The Services shall be performed by the Supplier at the Location on the date(s) specified in the Order. The Services shall be deemed delivered by the Supplier pursuant to the Acceptance Conditions. 

3. The Goods shall be deemed delivered by the Supplier pursuant to the Acceptance Conditions. 

4. The Deliverables shall not be delivered or performed in instalments unless otherwise agreed in writing by Phoenix. 

5. The Supplier will ensure that: (a) the Goods are marked and delivered in accordance with Phoenix’s instructions and any applicable regulations or requirements of the carrier and properly packed and stored so as to reach the Location in an undamaged condition; (b) each delivery or performance of the Deliverables is accompanied by a prominently displayed delivery note which shows: (i) the name of the recipient; (ii) the recipient’s location; (iii) the order number; (iv) date of order; (v) if Goods, number of packages and contents; (vi) if Services, the category, type and quantity of Services performed; and (vii) in the case of approved part delivery, the outstanding balance remaining to be delivered; (c) receipt of the Deliverables is acknowledged by Phoenix at the time the Deliverables are delivered or performed; 

4. Phoenix is supplied on delivery or performance of the Deliverables with all operating and safety instructions, warning notices clearly displayed and other information as may be necessary for their proper use, maintenance and repair; and 

5. in delivering or performing the Deliverables, it will comply with Phoenix’s policies and not act in a manner that could reasonably been seen as being capable of detrimentally affecting Phoenix’s reputation. 

6. Time of delivery or performance (as the case may be) of the Deliverables is of the essence. If the Supplier  fails  to  deliver  any  of the Goods or perform any of the Services on the date specified in the Order, Phoenix shall (without prejudice to its other rights and remedies) be entitled at Phoenix’s sole discretion: (a) to terminate the Contract in whole or in part without any liability to the Supplier; (b) to purchase the same or similar Deliverables from a supplier other than the Supplier; (c) to recover from the Supplier all costs and losses incurred by Phoenix, including the amount by which the price payable by Phoenix to acquire the Deliverables from another  supplier  exceeds  the  price payable under the Contract; and (d) all or any of the foregoing remedies. 

7. The provisions of clause 5.6 shall not apply to the extent Phoenix fails to make the Location available to the Supplier for performance of the Services or delivery of the Goods. 

8. The Supplier shall ensure whenever possible that packaging materials are only used to the extent necessary to protect the Goods and such packaging materials are environmentally friendly and recyclable. Reusable and returnable containers and/or packaging may only be used with the prior written consent of Phoenix. 

6. Acceptance and inspection 

1. Phoenix shall not have accepted, or be deemed to have accepted, the Deliverables until the Acceptance Conditions are fulfilled. 

2. The Acceptance Conditions are that: (a) for Goods, the Goods have been delivered to or at the Location; (b) for Services, the Services have been performed at the Location; (c) all pre-delivery and post- delivery acceptance tests and inspections have been completed to the satisfaction of Phoenix at its sole discretion; and (d) Phoenix has notified the Supplier in writing that the Deliverables have been delivered or performed (as the case may be) in full compliance with the terms of the Contract. 

3. Phoenix shall be entitled to reject any Deliverables which are not in full compliance with the terms of the Contract. Any acceptance of defective, late or incomplete Deliverables or any payment made in respect thereof, shall not constitute a waiver of any of Phoenix’s rights and remedies, including its right to reject such Deliverables. If the Goods are rejected due to the volume of the Goods exceeding the amounts specified in the Order, the Supplier shall promptly and at its own cost arrange for redelivery of the correct volume. 

4. Any rejected Goods may be returned to the Supplier by Phoenix at the Supplier’s cost and risk. 

5. Phoenix may inspect and test the Deliverables during performance or during manufacture or processing prior to dispatch, and the Supplier shall provide Phoenix with all access and facilities reasonably required. Any inspection or testing of the Deliverables shall not be deemed to be acceptance of the Deliverables or a waiver of any of Phoenix’s rights and remedies, including its right to reject the Deliverables. 

6. The rights of Phoenix in this clause 6 are without prejudice to Phoenix’s rights under the Contract. 

7. Title and risk 

1. Notwithstanding DDP Incoterms 2020, risk in the Goods shall pass to Phoenix once the Acceptance Conditions are fulfilled. 

2. Title to the Goods shall pass to Phoenix once the Supplier has received payment in full and cleared funds for the Goods. 

3. Notwithstanding clause 7.2, Phoenix may use or resell the Goods in the ordinary course of its business. If Phoenix resells the Goods, title to the Goods shall pass to Phoenix immediately prior to the resale. 

8. Warranty 

1. The Supplier warrants and represents that the Deliverables shall: (a) conform to any: 

(i) sample, description, plans, drawings or other documents, individually or collectively, which may have been given in relation to Deliverables; (ii) Proposal; and 

(iii) Specification; (b) be free from defects in design, material and workmanship; (c) if Goods, be so formulated, designed, constructed, finished and packaged as to be safe and without risk to health; (d) comply with all applicable laws, relevant standards, best industry practice and voluntary codes of conduct relating to their sale and supply; (e) if Goods, be of satisfactory quality within the meaning of the Sale of Goods and Supply of Services Act 1980; (f) if Services, be supplied with reasonable care and skill within the meaning of the Sale of Goods and Supply of Services Act 1980 and in accordance with the Service Levels; and (g) be fit for purpose and any purpose held out by the Supplier and set out in the Order and as otherwise required to meet Phoenix’s needs (which, where appropriate, includes Phoenix’s existing systems and procedures). 

2. The Supplier further warrants and represents that: (a) it shall perform its obligations under the Contract in accordance with all Applicable Laws; (b) it shall maintain adequate policies and procedures to ensure compliance with clause 8.2(a); (c) all hazardous, toxic, noxious, fragile or similar Deliverables are properly labelled as such and that this is drawn to the attention of Phoenix, its employees, agents or contractors where appropriate; and (d) it shall have and maintain at its own cost all consents, licences and authorisations necessary to supply the Deliverables. 

3. Phoenix may reject any Deliverables that do not comply with clause 8.1 and the Supplier shall, at Phoenix’s option, promptly remedy, repair, replace, correct, re-perform or refund the price of any such Deliverables. 

4. The provisions of these Conditions shall apply to any Deliverables that are remedied, repaired, replaced, corrected or re-performed with effect from the date of delivery or performance of same. 

5. Phoenix’s rights under these Conditions are in addition to, and do not exclude or modify, the rights and conditions contained in the Sale of Goods and Supply of Services Act 1980. 

6. Phoenix shall be entitled to exercise its rights under this clause 8 regardless of whether the Deliverables have been accepted under the Acceptance Conditions and notwithstanding that the Deliverables were not rejected following their initial inspection under clause 6.3. 

7. The Supplier shall at all times insure and keep itself insured with a reputable insurance company against all insurable liabilities under the Contract and in respect of the Deliverables. On an annual basis, or in response to Phoenix’s request, the Supplier shall provide evidence of the insurance policy or policies together with satisfactory evidence of payment of premiums. 

9. IPR 

1. Phoenix authorises the Supplier to use Phoenix’s IPR only to the extent necessary to perform its obligations under the Contract. 

2. The Supplier warrants that neither the Deliverables (including any Supplier Materials), nor their use, resale or importation, infringes the IPR of any other party. 

3. In consideration of the Price payable under the Contract, the Supplier assigns to the Phoenix absolutely with full title guarantee all the present and future IPR in the Deliverables and all other materials created by the Supplier pursuant to the Contract. 

4. Except as expressly agreed above, no IPR of either party are transferred or licensed as a result of the Contract. 

5. Subject to the foregoing, each party shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with the Contract provided always that such skills, techniques or know-how do not infringe the other party’s IPR now or in the future or disclose or breach the confidentiality of the other party’s Confidential Information. 

6. All Phoenix Materials shall: (a) be and remain the exclusive property of Phoenix; (b) be deemed to be in good condition when received by or on behalf of the Supplier unless notified to Phoenix within 3 business days of receiving the same; (c) be held by the Supplier in safe custody at its own risk; (d) be maintained and kept in good condition by the Supplier until returned to Phoenix; (e) not be disposed of other than in accordance with Phoenix’s written instructions; and (f) not be used otherwise than as authorised by Phoenix in writing. 

10. Indemnity & liability 

1. The Supplier shall indemnify Phoenix and the Phoenix Group for any losses, damages, liability, costs and expenses (including professional fees) incurred by it as a result of: (a) any action, demand or claim that the provision of the Deliverables or any Supplier Materials infringes the IPR of any third party (an IPR Claim); (b) any action, demand or claim made against Phoenix or the Phoenix Group by a third party arising from any defect in the delivery or the performance of the Deliverables (including an end-user of the Deliverables) caused by the Supplier’s breach of the Contract (TP Claim); (c) any action, demand or claim by any employee or former employee of the Supplier under any employment legislation and any liabilities which Phoenix incurs as a result of the performance of the Services under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended from time to time) (TUPE Claim); (d) any loss or destruction of or damage to any property of Phoenix or the Phoenix Group) to the extent that such damage is attributable to the acts or omissions of the Supplier its employees, agents or subcontractors; or (e) any breach by the Supplier of clause 15. 

2. Phoenix shall: (a) promptly advise the Supplier in writing of any IPR Claim, TP Claim or TUPE Claim (each a Claim) and provide full details of the same; (b) make no admission as to, or settle or compromise of, any Claim without the Supplier’s prior written consent; (c) give the Supplier, at its request, sole conduct of any defence and any settlement negotiations of any Claim; and 

4. provide the Supplier with reasonable co-operation and such reasonable assistance in the defence or settlement of any Claim. 

3. Phoenix’s reasonable costs of compliance with clause 10.2 shall be paid by the Supplier. 

4. Without prejudice to clause 10.1, if any IPR Claim is made or is reasonably likely to be made, the Supplier may at its option: (a) procure for Phoenix the right to continue using and possessing the relevant Deliverables; or (b) modify or replace the infringing part of the Deliverables so as to avoid the infringement or alleged infringement, provided the Deliverables remain in conformance to the Specification. 

5. The Supplier’s obligations in respect of any IPR Claim or TP Claim shall not apply to the extent that IPR Claim or TP Claim arises from any Deliverables modified or used by Phoenix other than in accordance with the Contract. 

11. Limitation of liability 

1. The extent of the parties’ liability under or in connection with a Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11. 

2. Subject to clause 11.5, Phoenix’s total liability under any Contract shall not exceed the Price paid or payable under that Contract. 

3. Subject to clauses 11.4 and 11.5, neither party shall be liable to the other for consequential, indirect or special losses, economic loss, loss of profit, loss of opportunity, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, or loss of or damage to goodwill. 

4. Nothing in this clause 11 shall exclude or limit the liability: (a) of Phoenix to pay for the Deliverables in accordance with the Contract; (b) under any indemnity given by Supplier under the Contract; or (c) a breach by the Supplier of clauses 8.1(d), 8.2, 12, 13 or 14. 

5. Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; or (c) any other losses which cannot be excluded or limited by Applicable Law. 

12. Confidentiality & FOI 

1. Each party shall keep confidential all Confidential Information of the other party (which in respect of Phoenix, includes Confidential Information of the Phoenix Group) and shall only use the same as required to perform the Contract. The provisions of this clause shall survive for five years from the date of disclosure of the Confidential Information. The provisions of this clause shall not apply to: (a) any information which was in the public domain at the date of the Contract; (b) any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement; (c) any information which is independently developed by a party without using information supplied by the other party (which in relation to Phoenix includes information supplied by Phoenix Group); or (d) any disclosure required by law (including FOI Legislation) or a regulatory authority or otherwise by the provisions of the Contract. 

2. No media releases, public announcements or public disclosures by the Supplier or the Supplier’s employees or agents or subcontractors relating to the Contract or its subject matter, including but not limited to promotional or marketing material, (but excluding any announcement intended solely for internal distribution by the parties or any disclosure required by legal, accounting or regulatory requirements) may be made without the prior written approval of Phoenix. 

3. The Supplier acknowledges that Phoenix may be subject to FOI Legislation and agrees to assist and co-operate with Phoenix (at the Supplier’s time and expense) to enable Phoenix to comply with its obligations under FOI Legislation. 

4. Without prejudice to the generality of clause 12.2, the Supplier shall: (a) transfer to Phoenix any FOI Legislation information request relevant to the Contract, the Goods, or any Phoenix Group member that it or they (as the case may be) receive (FOI Request) as soon as practicable and in any event within 2 (two) Business Days of receiving a FOI Request; and (b) in relation to information held by the Supplier on behalf of the Phoenix Group, provide Phoenix with details about and/or copies of all such information that Phoenix requests and such details and/or copies shall be provided within 5 (five) Business Days of a request from Phoenix (or such other period as Phoenix may reasonably specify) and in such forms as Phoenix may reasonably specify. 

5. Phoenix shall be responsible for determining whether information is exempt information under FOI Legislation and for determining what information will be disclosed in response to a FOI Request in accordance with FOI Legislation. 

6. The Supplier shall not respond to any person making a FOI Request, save to acknowledge receipt, unless expressly authorised to do so by Phoenix. 

13. Compliance 

1.  The parties warrant that throughout the term of this Contract they will (i) comply with their respective own group policies and guidelines implemented in relation to compliance (particularly anti-corruption, competition law compliance and code of conduct), (ii) maintain adequate procedures, to ensure compliance with the applicable laws, and (iii) will enforce them where appropriate. The policies and guidelines referred to herein may be regularly amended by the respective party.  Furthermore, both parties shall: a. comply with all applicable laws in the relevant market with respect to anti-corruption, competition and sanctions; b. promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by that party in connection with the performance of this Contract; c. both parties shall ensure that any person associated with that party who is performing the Services does so only on the basis of a written contract which imposes on such person terms and conditions similar to and at least as stringent to those imposed on the parties in this clause 13. 

2.  The parties represent and covenant further that in connection with this Contract, they, their directors, their employees, their officers, and anyone acting on their behalf in connection with the performance of this Contract: 

a) shall not pay, promise to pay, authorize a payment, give, promise to give, or authorize the giving of anything of value or any asset or benefit to any public official, healthcare professional, customer, business partner or any other person (including the commercial sector) for purposes of: 

i. influencing any act or decision of the aforementioned parties affecting private or official decision-making; 

ii. inducing any of the aforementioned parties to do or omit to do any act in violation of the lawful duty;  

iii. securing any improper advantage; or 

iv. inducing any of the aforementioned parties to use their influence to affect or influence any act or decision of the government with respect to any activities undertaken relating to this Contract or induce someone to breach professional duties and standards.  

b) may only provide lawful, adequate, documented and transparent remuneration, gifts, hospitality, sponsoring and donations. 

c) consider facilitation payments as bribe which must accordingly never be given or accepted. 

3. Each of the parties will not make or permit any off-the-books accounts, inadequately identified transactions, recording of non-existent expenditures, entry of liabilities with incorrect identification of their object, or the use of false documents in connection with performing on this Contract. Each of the parties will keep books, accounts, and records that, in reasonable detail, accurately and fairly reflect its transactions and dispositions of funds paid under this Contract. 

4. The Supplier hereby acknowledges and agrees that this Contract is subject to applicable export control and economic sanctions laws and regulations imposed by, inter alia, the European Union, the United Kingdom, the United Nations and the United States ("Export Control and Trade Economic Sanctions Rules"). 

5. Where Phoenix is required by any Export Control and Economic Sanctions Rules to impose new obligations on the Supplier, the Supplier shall accept such obligations and comply with them. 

6. The Supplier shall not engage in any actions that would violate any Export Control and Economic Sanctions Rules, and will refrain from any actions or omissions that may impose liability on Phoenix Group under any applicable Export Control and Economic Sanctions Rules, which may include laws that are applicable to Phoenix Group only. 

7. The parties agree that all of the representations contained herein shall remain true and accurate throughout the duration of this Contract. Each party must inform the other party promptly and in writing if it becomes aware of any potential breach of this clause 13 or the applicable law of the relevant market or any other change that would render any of the representations herein untrue or inaccurate in connection with the performance of this Contract. Failure to notify the other party under this clause shall constitute a material breach of this Contract entitling the other party to terminate this Agreement. 

8.  Each party shall have the right to suspend or terminate this Contract and any payments thereunder if it has a good faith belief that the other party or any of its personnel may have violated or acted contrary to any of the terms of this clause 13 or Applicable Law.   In the event of termination of the Contract pursuant to this clause 13 the non-breaching party shall not be liable to the other party for any losses incurred by the breaching party in connection with the termination of this Agreement.     

9. The parties will inform and train its employees appropriately in order to enable them to meet the requirements of the compliance obligations as stated under this clause 13. 

10. The Supplier and its employees have the opportunity to report securely and confidentially (suspected) misconduct through Phoenix Group case reporting system: https://phoenixgroup.integrityplatform.org/. The Supplier agrees to make relevant personnel in its organization aware of the availability of this reporting system. 

14. Supplier Code of Conduct 

The Supplier shall and shall procure that its officers, employees, agents and sub- 

contractors (if any) shall comply with the Phoenix Group Supplier Code of Conduct. 

15. Data Protection 

1. The parties agree that to the extent the Supplier is processing Personal Data, Phoenix is the Data Controller and the Supplier is the Data Processor of Personal Data. 

2. Each party shall comply with applicable Data Protection Legislation in relation to Personal Data and neither party shall put the other party in breach of applicable Data Protection Legislation. 

3.    The Supplier shall: (a) process Personal Data during the term of the Contract only for the purposes of providing the Deliverables (and otherwise performing its obligations) under the Contract, the Data Processing Schedule (if applicable) and at all times in accordance with the written instructions of Phoenix (the Permitted Purpose); (b) permit access to Personal Data by the Supplier Personnel or authorised third parties only if: (i) the person accessing Personal Data is under appropriate confidentiality obligations and the Supplier has ensured the reliability of the relevant person; and (ii) the Supplier ensures that the person accesses and processes Personal Data only as necessary for the Permitted Purpose; (c) have in place and maintain appropriate technical and organisational measures to keep Personal Data confidential and secure and to protect Personal Data against accidental loss or unlawful destruction, alteration, disclosure or access (a Data Security Breach); (d) upon becoming aware of a Data Security Breach: (i) provide all such timely information and cooperation as Phoenix may require in order for Phoenix to fulfil its data breach reporting obligations under (and within the timescales required by) applicable Data Protection Legislation; and (ii) take all such measures and actions as are necessary to remedy or mitigate the effects of the Data Security Breach; (e) provide all reasonable and timely assistance to enable Phoenix to comply with its obligations under applicable Data Protection Legislation, including those that relate to the exercising of any rights by a Data Subject or the fulfilment of obligations relating to the notification of any Data Security Breach; (f) not subcontract any processing of Personal Data to a third party sub-processor without the prior written consent of Phoenix and, where any such consent is given, provided that the Supplier: (i) imposes terms on the sub-processor of no lesser standard than as provided by this clause 15; and (ii) remains fully liable for any breach of this clause 15 that is caused by an act, error or omission of any sub- processor; (g) only transfer Personal Data outside the European Economic Area with Phoenix’s prior written consent and (to the extent such consent is given) provided it takes such measures as are necessary to ensure any such transfer is in compliance with applicable Data Protection Legislation; (h) on termination or expiry of the Contract) (and except as otherwise required under applicable law), delete or return to Phoenix (as Phoenix elects) all Personal Data; and (I) on request, make available to Phoenix copies of all information required by Phoenix to enable Phoenix to assess the Supplier’s compliance with this clause 15, and upon notice by Phoenix permit Phoenix or an auditor nominated by Phoenix to audit the Supplier’s premises, records and Supplier- related computer systems for the purpose of assessing the Supplier’s compliance with this clause 15. 

4. The Supplier shall indemnify and keep indemnified Phoenix (and the Phoenix Group) against: (a) all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, sanctions, expenses, compensation paid to Data Subjects (including compensation to protect goodwill and ex gratia payments), demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a Data Protection Supervisory Authority) arising out of or in connection with any breach by the Supplier of its obligations under this clause 15; and (b) all amounts paid or payable by Phoenix (or the Phoenix Group) to a third party which would not have been paid or payable if the Supplier’s breach of this clause 15 had not occurred. 

16. Termination 

1. Phoenix shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Supplier written notice whereupon all work on the Contract shall be discontinued and Phoenix shall pay to the Supplier the sums due in respect of the Goods and/or Services received pursuant to and in accordance with the Contract up to the date of termination. 

2. Either party may terminate the Contract at any time by giving notice in writing if the other party: (a) commits a material breach of the Contract and such breach is not remediable; (b) commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach; (c) has any consent, licence or authorisation held by them revoked or modified such that they are no longer able to comply with their obligations under the Contract or receive any benefit to which they are entitled; (d) stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so; (e) is unable to pay its debts either within the meaning of the Personal Insolvency Act 2012; (f) becomes the subject of a company voluntary arrangement under the Personal Insolvency Act 2012; (g) has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income; (h) has a resolution passed for its winding up; (i) has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it; (j) is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced; (k) has a freezing order made against it; (l) is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title those items; or (m) is subject to any events or circumstances analogous to those in clauses 16.1(d) to 16.1(l) in any jurisdiction. 

3. The parties agree any breach of clauses 8.1(e), 8.2, 13, 14 or 21 by a party shall be deemed a irremediable material breach of the Contract and shall entitle the other party to terminate the Contract with immediate effect. 

4. Following expiry or termination of the Contract: (a) clauses 8, 10, 11, 15 16.4, 18, 20, 22.21, 22.22 and 22.23 shall continue in force, together with any other clauses which expressly or impliedly continue to have effect after expiry or termination of the Contract; (b) all other rights and obligations shall immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination; (c) the Supplier shall return all Phoenix Materials; and (d) the Supplier shall promptly, either securely destroy/delete or securely return any Confidential Information of the Phoenix Group. 

17. Force majeure 

1. A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it: (a) promptly notifies the other of the Force Majeure event and its expected duration; and (b) uses all reasonable endeavours to minimise the effects of that event. 

2. If, due to Force Majeure, a party: (a) is or shall be unable to perform a material obligation; or (b) is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days or total of more than 30 days in any consecutive period of 60 days; the other party may, within 30 days, terminate the Contract on immediate notice. 

18. Notices 

1. Subject to clause 18.3, any notice or other communication given under or in connection with the Contract shall be in writing and either (a) delivered by hand; or (b) sent by pre-paid recorded delivery post to: (i) Phoenix at the registered address set out in the Contract marked for the attention of the Company Secretary (or such other person and/or address notified by Phoenix to the Supplier); and (ii) the Supplier at the registered address set out in the Contract marked for the attention of the Company Secretary (or such other person and/or address notified by the Supplier to Phoenix); or (c ) by email to the email address stated in the Order or agreed between the parties. 

2. Any notice or communication given in accordance with clause 18.1 shall be deemed to have been served: (a) if delivered by hand, on receipt of a signature at the time of delivery; and (b) if sent by pre-paid recorded delivery post, at 9.00 a.m. on the second Business Day after the date of posting; and (c) if sent by email at the time of transmission.  

3. This clause 18 does not apply to notice given in legal proceedings. 

19. Conflict of interest 

1. The Supplier shall ensure that there is no conflict of interest as to be likely to prejudice its independence and objectivity in performing the Contract, and undertakes that upon becoming aware of any such conflict of interest during the performance of the Contract (whether the conflict existed before the award of the Contract or arises during its performance), it shall immediately notify Phoenix in writing of the same, giving particulars of its nature and the circumstances in which it exists or arises and shall furnish such further information as Phoenix may reasonably require. 

2. Where Phoenix is of the opinion that the conflict of interest notified to it under clause 19.1 is capable of being avoided or removed, Phoenix may require the Supplier to take such steps as will, in its opinion, avoid, or as the case may be, remove the conflict and: (a) if the Supplier fails to comply with Phoenix’s requirements in this respect; or (b) if, in the opinion of Phoenix, the conflict of interest cannot be avoided or removed, Phoenix may terminate the Contract immediately and recover from the Supplier the amount of any loss resulting from such termination. 

3. Notwithstanding clause 19.2, where Phoenix is of the opinion that the conflict of interest which existed at the time of the award of the Contract should have been disclosed at the time of submission of the Contract of due diligence and ought to have been disclosed as required by the tender documents pertaining to the granting of the Contract to the Supplier, Phoenix may terminate the Contract immediately for breach of a material clause of the Contract and, without prejudice to any other rights, recover from the Supplier the amount of any loss resulting from such termination. 

20. Non-solicitation 

1. The Supplier shall not directly or indirectly (whether alone or in conjunction with or on behalf of any other person, business or organisation) solicit or entice away (or attempt to solicit or entice away) any person employed or engaged by Phoenix or the Phoenix Group in connection with the Contract during the term of this Contract or for a further period of 12 months after the termination of the Contract, other than by means of a public advertising campaign. 

2. If the Supplier breaches clause 20.1 it shall, on demand, pay to Phoenix a sum equal to one year's basic salary or the annual fee that was payable by Phoenix (or the Phoenix Group) to that employee, worker or independent contractor plus the recruitment/sourcing costs incurred by Phoenix (or the Phoenix Group) in replacing such person. The parties agree that this sum is proportionate with regard to enforcing the provisions of this clause 20. 

21. Anti-facilitation of tax evasion 

1. The Supplier shall: (a) not engage in any activity, practice or conduct which would constitute an offence under the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (b) have and shall maintain in place throughout the term of this agreement such policies and procedures as are both reasonable to prevent the facilitation of tax evasion by another person (including without limitation employees of the Supplier) and to ensure compliance with this clause 21.1; and (c) notify Phoenix in writing if it becomes aware of any breach of this clause 21.1 or has reason to believe that it or any person associated with it has received a request or demand from a third party to facilitate the evasion of tax within the meaning of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. The Supplier shall ensure that any person associated with the Supplier who is supplying the Deliverables in connection with the Contract does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Supplier in this clause 21 (Relevant Terms). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to Phoenix for any breach by such persons of any of the Relevant Terms. 

2. The Supplier will, as far as is required by law, be responsible for and will account to the appropriate authorities for all income tax liabilities and Pay Related Social Insurance (PRSI) or similar contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with fees paid and/or benefits provided as a result of the provision of the Deliverables and/or any payment or benefit received by any Supplier Personnel in respect of the provision of the Deliverables and shall indemnify the Phoenix Group against any liability, claim, assessment or demand for the same. 

22. General 

1. The rights and remedies provided in the Contract for Phoenix only cumulative and not exclusive of any rights and remedies provided by law. 

2. Phoenix shall be entitled to set-off under the Contract any liability which the Supplier has to it against any liability which it or the Phoenix Group has to the Supplier, whether such liability is present or future, liquidated or unliquidated, under the Contract or any other contract between the parties (or the Phoenix Group) or other cause of action. 

3. The Supplier shall during the term of the Contract and for the period of 6 years thereafter maintain such records relating to the supply of Goods, the calculation of the price and/or the performance by the Supplier of its obligations under the Contract as Phoenix may reasonably require (including compliance with clauses 8.2, 13 and 14) and shall on request produce them for inspection by Phoenix or, on receipt of reasonable notice, allow or procure for Phoenix and/or its authorised representatives access to any premises where any such records are stored for the purposes of inspecting and/or taking copies of and extracts from such records. 

4. Unless stated otherwise, and only in relation to the Supplier’s obligations, time is of the essence for any date or period specified in the Contract. 

5. The Supplier shall at the request of Phoenix, and at the Supplier’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract. 

6. The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter. 

7. Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract. 

8. No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and is duly signed or executed by, or on behalf of, both parties. 

9. The Supplier may not assign, sub-contract or encumber any right or obligation under the Contract, in whole or in part, without Phoenix’s prior written consent. If Phoenix (in its absolute discretion) gives its consent to the Supplier to sub-contract (or allow its sub-contractors to further sub- contract) any aspect of the Contract to any third party: (a) the Supplier shall ensure it has a written agreement in place with that third party; (b) the Supplier shall remain fully liable for the performance of all its obligations under the Contract and shall ensure that each third party complies fully with the relevant terms of the Contract as if party hereto in place of the Supplier; (c) the Supplier shall be fully liable for the acts and omissions of each third party; and (d) the Supplier shall, if requested by Phoenix, take such action (including legal action) as is necessary to ensure the compliance of any such third party with the relevant terms of the Contract or to remedy any failure in this respect. 

10. Phoenix may assign any or all of its rights under the Contract, provided that it gives the Supplier prior written notice of the assignment including the identity of the assignee. 

11. The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf. 

12. Each party recognises that any breach or threatened breach of the Contract may cause the other irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to a party, each party acknowledges and agrees that the other party is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages. 

13. If any provision of the Contract (in whole or in part) is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed from the Contract and the remaining provisions shall continue in full force and effect as if the Contract had been executed without the invalid, illegal, or unenforceable provision. In the event that in Phoenix’s reasonable opinion such a provision is so fundamental as to prevent the accomplishment of thepurpose of the Contract, Phoenix and the Supplier shall immediately commence good faith negotiations to remedy such invalidity. 

14. No failure, delay or omission by Phoenix in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy. 

15. No single or partial exercise of any right, power or remedy provided by law or under the Contract by Phoenix shall prevent any future exercise of it or the exercise of any other right, power or remedy by Phoenix. 

16. If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail. 

17. The Supplier shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it). 

18. The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the Republic of Ireland. 

19. The parties irrevocably agree that the courts of the Republic of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).