2 Basis of Agreement
2.1 The Purchase Order constitutes an offer by the Customer to purchase the Goods and/or Services subject to and in accordance with the terms and conditions of the Agreement.
2.2 The offer comprised in the Purchase Order shall be deemed to be accepted by the Supplier on receipt of any acceptance of said Purchase Order, or receipt of any Goods and/or Services as specified by said Purchase Order.
3 Supply of Goods and/or Services
3.1 In consideration of the Customer’s agreement to pay the Charges, the Supplier shall supply the Goods and/or Services to the Customer for the Term subject to and in accordance with the terms and conditions of the Agreement.
3.2 In supplying any Services, the Supplier shall:
3.2.1 co-operate with the Customer in all matters relating to the Services and comply with all the Customer’s instructions;
3.2.2 perform the Services with all reasonable care, skill and diligence in accordance with good industry practice in the Supplier’s industry, profession or trade;
3.2.3 use Staff who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Agreement;
3.2.4 ensure that the Services shall conform with all descriptions and specifications set out in the Specification;
3.2.5 comply with all applicable laws;
3.2.6 obtain all Necessary Consents required for the performance of the Services; and
3.2.7 provide all equipment, tools and vehicles and other items as are required to provide the Services.
3.3 The Customer may by written notice to the Supplier at any time request a variation to the scope of the Services. In the event that the Supplier agrees to any variation to the scope of the Services, the Charges shall be subject to fair and reasonable adjustment to be agreed in writing between the Customer and the Supplier.
3.4 In supplying any Goods the Supplier shall co-operate with the Customer in all matters relating to the supply of Goods and comply with the Specification and all the Customer’s instructions and the Supplier warrants, represents, undertakes and guarantees that the Goods supplied under the Agreement shall:
3.4.1 be free from defects (manifest or latent), in materials and workmanship and remain so for 12 months after Delivery;
3.4.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and comply with any applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;
3.4.3 conform with the specifications (including the Specification), drawings, descriptions given in quotations, estimates, brochures, sales, marketing and technical literature or material (in whatever format made available by the Supplier) supplied by, or on behalf of, the Supplier
3.4.4 be free from design defects;
3.4.5 be fit for any purpose held out by the Supplier or made known to the Supplier by the Customer expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgement. The Supplier acknowledges and agrees that the approval by the Customer of any designs provided by the Supplier shall not relieve the Supplier of any of its obligations under this sub-clause; and
3.4.6 and the Supplier itself shall comply with all applicable laws.
Cancellation of Goods
3.5 The Customer shall have the right to cancel the order for the Goods, or any part of the Goods, which have not yet been Delivered to the Customer. The cancellation shall be made in writing or by email. Without prejudice to the generality of the foregoing, the Customer shall pay such Charges or that part of the Charges for Goods which have been Delivered to the Customer or, on the deemed date of service of the notice of cancellation, are already in transit and the costs of materials which the Supplier has purchased to fulfil the order for the Goods and which cannot be used for other orders or be returned to the supplier of those materials for a refund. For the avoidance of doubt the Customer shall not be liable for any loss of anticipated profits or any consequential loss.
Delivery of Goods
3.6 The Supplier shall Deliver the Goods to the Customer on or by the Date of Delivery. Unless otherwise agreed in writing by the Customer, Delivery shall be on the date and to the address specified by the Customer or otherwise agreed between the Parties. Delivery of the Goods shall be completed once the completion of unloading the Goods from the transporting vehicle at the Delivery address has taken place and the Customer has signed for the Delivery.
3.7 Any access to the Customer’s premises and any labour and equipment that may be provided by the Customer in connection with Delivery of the Goods shall be provided without acceptance by the Customer of any liability in respect of any actions, claims, costs and expenses incurred by third parties for any loss of damages to the extent that such loss or damage is not attributable to the negligence or other wrongful act of the Customer or its servant or agent. The Supplier shall indemnify the Customer in respect of any actions, suits, claims, demands, losses, charges, costs and expenses, which the Customer may suffer or incur as a result of or in connection with any damage or injury (whether fatal or otherwise) occurring in the course of Delivery or installation to the extent that any such damage or injury is attributable to any act or omission of the Supplier or any of his sub-contractors.
3.8 Delivery of the Goods shall be accompanied by a delivery note which shows the Purchase Order Number and the type and quantity of the Goods and, in the case of part Delivery, the outstanding balance remaining to be Delivered.
3.9 Unless otherwise stipulated by the Customer, Deliveries shall only be accepted by the Customer on Working Days and during normal business hours.
3.10 Where (i) the Supplier fails to Deliver the Goods or part of the Goods or (ii) the Goods or part of the Goods do not comply with the provisions of clause 3.4, then without limiting any of its other rights or remedies implied by statute or common law, the Customer shall be entitled
3.10.1 to terminate the Agreement;
3.10.2 request the Supplier, free of charge, to deliver substitute Goods within the timescales specified by the Customer;
3.10.3 to require the Supplier, free of charge, to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
3.10.4 to reject the Goods (in whole or part) and return them to the Supplier at the Supplier’s own risk and expense and the Customer shall be entitled to a full refund on those Goods or part of Goods duly returned; or
3.10.5 to buy the same or similar Goods from another supplier and to recover any expenses incurred in respect of buying the goods from another supplier which shall include but not be limited to administration costs, chargeable staff time and extra delivery costs.
Property and Guarantee of Title
3.11 Without prejudice to any other rights or remedies of the Customer, title and risk in the Goods shall pass to the Customer when Delivery of the Goods is complete (including off-loading and stacking)
3.12 The Supplier warrants that:
3.12.1 it has full clear and unencumbered title to all the Goods; and
3.12.2 at the date of Delivery of any of the Goods it shall have full and unrestricted right, power and authority to sell, transfer and deliver all of the Goods to the Customer. On Delivery the Customer shall acquire a valid and unencumbered title to the Goods.
4.1 The Agreement shall take effect on the date specified in Purchase Order and shall expire on the Expiry Date, unless it is otherwise extended in accordance with clause 4.2 or terminated in accordance with the terms and conditions of the Agreement.
4.2 The Customer may extend the Agreement in accordance with its own contract procedure rules. If this is agreed with the Supplier the terms and conditions of the Agreement shall apply throughout any such extended period.
5 Charges, Payment and Recovery of Sums Due
5.1 The Charges for the Goods and/or Services shall be as set out in the Purchase Order and shall be the full and exclusive remuneration of the Supplier in respect of the supply of the Goods and/or Services. Unless otherwise agreed in writing by the Customer, the Charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services and/or the supply of the Goods including but not limited to the costs of packaging, insurance, delivery, unloading, stacking and carriage.
5.2 All amounts stated are exclusive of VAT which shall be charged at the prevailing rate. The Customer shall, following the receipt of a valid VAT invoice, pay to the Supplier a sum equal to the VAT chargeable in respect of the Goods and/or Services.
5.3 The Supplier shall invoice the Customer for Services in arrears as such intervals as may be agreed and for Goods following delivery of the Goods. Each invoice shall include such supporting information required by the Customer to verify the accuracy of the invoice, including the relevant Purchase Order Number and a breakdown of the Goods and/or Services supplied in the invoice period.
5.4 In consideration of the supply of the Goods and/or Services by the Supplier, the Customer shall pay the Supplier the invoiced amounts no later than 60 days after verifying that the invoice is valid and undisputed and includes a valid Purchase Order Number. The Customer may, without prejudice to any other rights and remedies under the Agreement, withhold or reduce payments in the event of unsatisfactory performance.
5.5 If the Customer fails to consider and verify an invoice in a timely fashion the invoice shall be regarded as valid and undisputed for the purpose of paragraph 5.4 after a reasonable time has passed.
5.6 If there is a dispute between the Parties as to the amount invoiced, the Customer shall pay the undisputed amount. The Supplier shall not suspend the supply of the Goods and/or Services unless the Supplier is entitled to terminate the Agreement for a failure to pay undisputed sums in accordance with clause 16.4. Any disputed amounts shall be resolved through the dispute resolution procedure detailed in clause 19.
5.7 If a payment of an undisputed amount is not made by the Customer by the due date, then the Customer shall pay the Supplier interest at the interest rate specified in the Late Payment of Commercial Debts (Interest) Act 1998.
5.8 Where the Supplier enters into a sub-contract, the Supplier shall include in that sub-contract:
5.8.1 provisions having the same effects as clauses 5.3 to 5.7 of this Agreement; and
5.8.2 a provision requiring the counterparty to that sub-contract to include in any sub-contract which it awards provisions having the same effect as 5.3 to 5.8 of this Agreement.
5.8.3 In this clause 5.8, “sub-contract” means a contract between two or more suppliers, at any stage of remoteness from the Customer in a subcontracting chain, made wholly or substantially for the purpose of performing (or contributing to the performance of) the whole or any part of this Agreement.
5.9 If any sum of money is recoverable from or payable by the Supplier under the Agreement (including any sum which the Supplier is liable to pay to the Customer in respect of any breach of the Agreement), that sum may be deducted unilaterally by the Customer from any sum then due, or which may come due, to the Supplier under the Agreement or under any other agreement or contract with the Customer. The Supplier shall not be entitled to assert any credit, set-off or counterclaim against the Customer in order to justify withholding payment of any such amount in whole or in part.
6 Premises and equipment
6.1 If necessary, the Customer shall provide the Supplier with reasonable access at reasonable times to its premises for the purpose of supplying the Services. All equipment, tools and vehicles brought onto the Customer’s premises by the Supplier or the Staff shall be at the Supplier’s risk.
6.2 If the Supplier supplies all or any of the Services at or from the Customer’s premises, on completion of the Services or termination or expiry of the Agreement (whichever is the earlier) the Supplier shall vacate the Customer’s premises, remove the Supplier’s plant, equipment and unused materials and all rubbish arising out of the provision of the Services and leave the Customer’s premises in a clean, safe and tidy condition. The Supplier shall be solely responsible for making good any damage to the Customer’s premises or any objects contained on the Customer’s premises which is caused by the Supplier or any Staff, other than fair wear and tear.
6.3 If the Supplier supplies all or any of the Services at or from its premises or the premises of a third party, the Customer may, during normal business hours and on reasonable notice, inspect and examine the manner in which the relevant Services are supplied at or from the relevant premises.
6.4 The Customer shall be responsible for maintaining the security of its premises in accordance with its standard security requirements. While on the Customer’s premises the Supplier shall, and shall procure that all Staff shall, comply with all the Customer’s security requirements.
6.5 Where all or any of the Services are supplied from the Supplier’s premises, the Supplier shall, at its own cost, comply with all security requirements specified by the Customer in writing.
6.6 Without prejudice to clause 3.2.7, any equipment provided by the Customer for the purposes of the Agreement shall remain the property of the Customer and shall be used by the Supplier and the Staff only for the purpose of carrying out the Agreement. Such equipment shall be returned promptly to the Customer on expiry or termination of the Agreement.
6.7 The Supplier shall reimburse the Customer for any loss or damage to the equipment (other than deterioration resulting from normal and proper use) caused by the Supplier or any Staff. Equipment supplied by the Customer shall be deemed to be in a good condition when received by the Supplier or relevant Staff unless the Customer is notified otherwise in writing within 5 Working Days.
7 Staff and Key Personnel
7.1 If the Customer reasonably believes that any of the Staff are unsuitable to undertake work in respect of the Agreement, it may, by giving written notice to the Supplier:
7.1.1 refuse admission to the relevant person(s) to the Customer’s premises;
7.1.2 direct the Supplier to end the involvement in the provision of the Services of the relevant person(s); and/or
7.1.3 require that the Supplier replace any person removed under this clause with another suitably qualified person and procure that any security pass issued by the Customer to the person removed is surrendered, and the Supplier shall comply with any such notice.
7.2 The Supplier shall:
7.2.1 ensure that all Staff are vetted in accordance with the Staff Vetting Procedures (if applicable);
7.2.2 if requested, provide the Customer with a list of the names and addresses (and any other relevant information) of all persons who may require admission to the Customer’s premises in connection with the Agreement; and
7.2.3 procure that all Staff comply with any rules, regulations and requirements reasonably specified by the Customer.
7.3 Any Key Personnel shall not be released from supplying the Services without the agreement of the Customer, except by reason of long-term sickness, maternity leave, paternity leave, termination of employment or other extenuating circumstances.
7.4 Any replacements to the Key Personnel shall be subject to the prior written agreement of the Customer (not to be unreasonably withheld). Such replacements shall be of at least equal status or of equivalent experience and skills to the Key Personnel being replaced and be suitable for the responsibilities of that person in relation to the Services.
7.5 The Customer may require the Supplier to ensure that any person employed in the provision of the Services has undertaken a Disclosure and Barring Service check. The Supplier shall ensure that no person who discloses that he/she has a conviction that is relevant to the nature of the Services, relevant to the work of the Customer, or is of a type otherwise advised by the Customer (each such conviction a “Relevant Conviction”), or is found by the Supplier to have a Relevant Conviction (whether as a result of a police check, a Disclosure and Barring Service check or otherwise) is employed or engaged in the provision of any part of the Services.
8 Assignment and sub-contracting
8.1 The Supplier shall not without the written consent of the Customer assign, sub-contract, novate or in any way dispose of the benefit and/ or the burden of the Agreement or any part of the Agreement. The Customer may, in the granting of such consent, provide for additional terms and conditions relating to such assignment, sub-contract, novation or disposal. The Supplier shall be responsible for the acts and omissions of its sub-contractors as though those acts and omissions were its own.
8.2 Where the Customer has consented to the placing of sub-contracts, the Supplier shall, at the request of the Customer, send copies of each sub-contract, to the Customer as soon as is reasonably practicable.
8.3 The Customer may assign, novate, or otherwise dispose of its rights and obligations under the Agreement without the consent of the Supplier provided that such assignment, novation or disposal shall not increase the burden of the Supplier’s obligations under the Agreement.
9 Intellectual Property Rights
9.1 All intellectual property rights in any materials provided by the Customer to the Supplier for the purposes of this Agreement shall remain the property of the Customer but the Customer hereby grants the Supplier a royalty-free, non-exclusive and non-transferable licence to use such materials as required until termination or expiry of the Agreement for the sole purpose of enabling the Supplier to perform its obligations under the Agreement.
9.2 All intellectual property rights in any materials created or developed by the Supplier pursuant to the Agreement or arising as a result of the provision of the Services shall vest in the Supplier. If, and to the extent, that any intellectual property rights in such materials vest in the Customer by operation of law, the Customer hereby assigns to the Supplier by way of a present assignment of future rights that shall take place immediately on the coming into existence of any such intellectual property rights all its intellectual property rights in such materials (with full title guarantee and free from all third party rights).
9.3 The Supplier hereby grants the Customer a perpetual, royalty-free, irrevocable, non-exclusive licence (with a right to sub-license) to use all intellectual property rights:
9.3.1 in the materials created or developed pursuant to the Agreement and any intellectual property rights arising as a result of the provision of the Services;
9.3.2 in the Goods or in any materials accompanying the Goods;
9.3.3 vested in or licensed to the Supplier on the date of the Agreement; and
9.3.4 created during the Term but which are neither created or developed pursuant to the Agreement nor arise as a result of the provision of the Services,
including any modifications to or derivative versions of any such intellectual property rights, which the Customer reasonably requires in order to exercise its rights and take the benefit of the Agreement including the Services provided and/or to allow the Customer full use and enjoyment of the Goods for their intended purpose.
9.4 The Supplier shall indemnify, and keep indemnified, the Customer in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and reasonable legal and other professional fees awarded against or incurred or paid by the Customer as a result of or in connection with any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property arising out of, or in connection with, the supply or use of the Goods and/or Services, to the extent that the claim is attributable to the acts or omission of the Supplier or any Staff.
9.5 The Customer shall promptly notify the Supplier of any infringement claim made against it relating to any Goods or other materials supplied by the Supplier pursuant to the Agreement and, subject to any statutory obligation requiring the Customer to respond, shall permit the Supplier to have the right, at its sole discretion to assume, defend, settle or otherwise dispose of such claim. The Customer shall give the Supplier such assistance as it may reasonably require to dispose of the claim and shall not make any statement which might be prejudicial to the settlement or defence of the claim.
10 Governance and Records
10.1 The Supplier shall:
10.1.1 attend progress meetings with the Customer at the frequency and times specified by the Customer and shall ensure that its representatives are suitably qualified to attend such meetings; and
10.1.2 submit progress reports to the Customer at the times and in the format specified by the Customer.
10.2 The Supplier shall keep and maintain until 6 years after the end of the Agreement, or as long a period as may be agreed between the Parties, full and accurate records of the Agreement including the Services supplied under it and all payments made by the Customer. The Supplier shall on request afford the Customer or the Customer’s representatives such access to those records as may be reasonably requested by the Customer in connection with the Agreement.
11 Confidentiality, Transparency and Publicity
11.1 Subject to clause 11.2, each Party shall:
11.1.1 treat all Confidential Information it receives as confidential, safeguard it accordingly and not disclose it to any other person without the prior written permission of the disclosing Party; and
11.1.2 not use or exploit the disclosing Party’s Confidential Information in any way except for the purposes anticipated under the Agreement.
11.2 Notwithstanding clause 11.1, a Party may disclose Confidential Information which it receives from the other Party:
11.2.1 where disclosure is required by applicable law or by a court of competent jurisdiction;
11.2.2 to its auditors or for the purposes of regulatory requirements;
11.2.3 on a confidential basis, to its professional advisers;
11.2.4 to the Serious Fraud Office where the Party has reasonable grounds to believe that the other Party is involved in activity that may constitute a criminal offence under the Bribery Act 2010;
11.2.5 where the receiving Party is the Supplier, to the Staff on a need to know basis to enable performance of the Supplier’s obligations under the Agreement provided that the Supplier shall procure that any Staff to whom it discloses Confidential Information pursuant to this clause 11.2.5 shall observe the Supplier’s confidentiality obligations under the Agreement; and
11.2.6 where the receiving Party is the Customer:
(a) on a confidential basis to the employees, agents, consultants and contractors of the Customer;
(b) on a confidential basis to any Central or Local Government Body, any successor body to a Central or Local Government Body, and entity which is a funder of the Customer or any company to which the Customer transfers or proposes to transfer all or any part of its business;
(c) to the extent that the Customer (acting reasonably) deems disclosure necessary or appropriate in the course of carrying out its functions; or
(d) in accordance with clause 12.
and for the purposes of the foregoing, references to disclosure on a confidential basis shall mean disclosure subject to a confidentiality agreement or arrangement containing terms no less stringent than those placed on the Customer under this clause 11.
11.3 The Parties acknowledge that, except for any Information which is exempt from disclosure in accordance with the provisions of the FOIA, the content of the Agreement is not Confidential Information and the Supplier hereby gives its consent for the Customer to publish this Agreement in its entirety to the general public (but with any Information that is exempt from disclosure in accordance with the FOIA redacted) including any changes to the Agreement agreed from time to time. The Customer may consult with the Supplier to inform its decision regarding any redactions but shall have the final decision in its absolute discretion whether any of the content of the Agreement is exempt from disclosure in accordance with the provisions of the FOIA.
11.4 The Supplier shall not, and shall take reasonable steps to ensure that the Staff shall not, make any press announcement or publicise the Agreement or any part of the Agreement in any way, except with the prior written consent of the Customer.
12 Freedom of Information
12.1 The Supplier acknowledges that the Customer is subject to the requirements of the FOIA and the Environmental Information Regulations 2004 and shall:
12.1.1 provide all necessary assistance and cooperation as reasonably requested by the Customer to enable the Customer to comply with its obligations under the FOIA and the Environmental Information Regulations 2004;
12.1.2 transfer to the Customer all Requests for Information relating to this Agreement that it receives as soon as practicable and in any event within 2 Working Days of receipt;
12.1.3 provide the Customer with a copy of all Information belonging to the Customer requested in the Request for Information which is in its possession or control in the form that the Customer requires within 5 Working Days (or such other period as the Customer may reasonably specify) of the Customer’s request for such Information; and
12.1.4 not respond directly to a Request for Information unless authorised in writing to do so by the Customer.
12.2 The Supplier acknowledges that the Customer may be required under the FOIA and the Environmental Information Regulations 2004 to disclose Information concerning the Supplier or the Goods and/or Services (including commercially sensitive information) without consulting or obtaining consent from the Supplier. In these circumstances the Customer shall, in accordance with any relevant guidance issued under the FOIA, take reasonable steps, where appropriate, to give the Supplier advance notice, or failing that, to draw the disclosure to the Supplier’s attention after any such disclosure.
12.3 Notwithstanding any other provision in the Agreement, the Customer shall be responsible for determining in its absolute discretion whether any Information relating to the Supplier or the Goods and/or Services is exempt from disclosure in accordance with the FOIA and/or the Environmental Information Regulations 2004.
13 Protection of Personal Data and Security of Data
Where a term is not already defined in the definitions to the Agreement, the following terms shall have the following meanings:
Authority Correspondence: any correspondence from a Supervisory Authority in relation to the Processing of the Personal Data.
Controller: has the meaning set out in the UK Data Protection Laws.
Data Processor: has the meaning set out in the UK Data Protection Laws.
Data Protection Laws: means (a) any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) of the United Kingdom which relates to the protection of individuals with regards to the processing of personal data to which a Party is subject, including the Data Protection Act 2018 and the GDPR; and (b) any code of practice or guidance published by a Supervisory Authority from time to time.
Data Subject: has the meaning set out in the UK Data Protection Laws.
Data Subject Request: an actual or purported subject access request or notice or complaint from (or on behalf of) a Data Subject exercising his rights under the UK Data Protection Laws.
Personal Data: any data relating to any person relevant to this Agreement including but not limited to name, address, contact details, date of birth, salary or any other data in relation to any person, including Sensitive Personal Data
Personal Data Breach: has the meaning set out in the GDPR.
Processing: has the meaning set out in the Data Protection Laws (and “Process” and “Processed” shall be construed accordingly).
Sensitive Personal Data: any sensitive personal data or special categories of personal data as defined as such by the Data Protection Laws.
Supervisory Authority: means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws, including the UK Information Commissioner’s Office, or any successor or replacement bodies from time to time
13.2 During the term of this Agreement each Party acknowledges that it has obligations under applicable Data Protection Laws including, without limitation, to:
13.2.1 Make due notification to the Supervisory Authority, including in relation to its use and Processing of the Personal Data and comply at all times with the Data Protection Laws.
13.2.2 Ensure that all Personal Data disclosed or transferred to, or accessed by, the other Parties is accurate and up-to-date, as well as adequate, relevant and not excessive to enable any Party to Process the Personal Data, as envisaged under this Agreement.
13.2.3 Ensure that appropriate operational and technical measures are in place to safeguard against any unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data and where requested provide to the other party evidence of its compliance with such requirement.
13.2.4 Promptly, and in any event within 48 hours of receipt of any Data Subject Request or Authority Correspondence, notify the other Parties in the event that it receives such a Data Subject Request or Authority Correspondence in relation to the processing of Personal Data under, or in connection with, this Agreement.
13.2.5 Promptly and in no more than 24 hours notify the other Party in writing upon it becoming aware of any actual or suspected breach of clause 13.2.3 in relation to the Personal Data and shall, within such timescale to be agreed by the parties (acting reasonably and good faith):
(a) Implement any measures necessary to restore the security of compromised Personal Data; and
(b) Support the other party to make any required notifications to the Supervisory Authority and affected Data Subjects.
13.2.6 Take reasonable steps to ensure the reliability of any personnel who have access to the Personal Data.
13.2.7 Not transfer any Personal Data to a country or territory outside the European Economic Area (the “EEA”) except for the Supplier’s use in the country or territory which the Supplier carries out the Services without the prior written consent of the Customer.
13.2.8 Hold the information contained in the Personal Data confidentially.
Data Processor Obligations
13.3 To the extent that the Supplier is acting as a Processor for and on behalf of the Customer as the Controller, in relation to the Processing that it is carrying out arising out of, or in connection with, the performance of its obligations under this Agreement, it shall:
13.3.1 Process Personal Data for and on behalf of the Controller for the purposes of performing its obligations under this Agreement, and only in accordance with the terms of this Agreement and any documented instructions from the Controller, and as updated from time to time. Unless prohibited by law, if a Processor is required by UK or European Union law (or the law of one of the Member States of the European Union) to act other than in accordance with the instructions of the Controller, the Processor shall promptly, and in any event within twenty-four (24) hours of becoming aware of the same, notify the Controller.
13.3.2 Notify the Controller immediately (and in any event within twenty-four (24) hours) if it considers, in its opinion (acting reasonably), that any of the Controller’s instructions under clause 13.3.1 infringes any of the Data Protection Laws.
13.3.3 Ensure that appropriate operational and technical measures are in place to safeguard against any unauthorised or unlawful Processing of the Personal Data and against accidental loss or destruction of, or damage to, Personal Data and where requested provide to the Controller evidence of its compliance with such requirement.
13.3.4 Maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of the Controller, containing such information as the Controller may reasonably require.
13.3.5 Not disclose Personal Data to a third party (including a sub-contractor) in any circumstances without the Controller’s prior written consent.
13.3.6 Notify the Controller promptly (and in any event within 24 hours) upon becoming aware of any actual or suspected, threatened or ‘near miss’ Personal Data Breach, and:
(a) implement any measures necessary to restore the security of compromised Personal Data; and
(b) assist the Controller to make any notifications to the Supervisory Authority and affected Data Subjects.
13.3.7 On termination or expiry of this Agreement (as applicable), cease Processing all Personal Data and return and/or permanently and securely destroy (as directed in writing by the Controller) all Personal Data and all copies in its possession or control.
13.3.8 Comply with the obligations imposed upon a Processor under the UK and EU Data Protection Laws.
13.3.9 Use all reasonable endeavours in accordance with good industry practice to assist the Controller to comply with the obligations imposed on the Controller by the Data Protection Laws, at the Processor’s cost.
13.4 Each Party shall use its reasonable endeavours to assist the other Party to comply with any obligations under the Data Protection Laws and shall not perform its obligations under this Agreement in such a way as to cause the other Party to breach any of its obligations under the Data Protection Laws to the extent that such Party is aware, or ought reasonably to have been aware, that the same would be a breach of such obligations.
13.5 The Supplier shall indemnify and keep indemnified the Customer in respect of all Data Protection Losses suffered or incurred by, awarded against or agreed to be paid by, the Customer arising from or in connection with:
13.5.1 Any breach by the Supplier of any of its obligations under this Agreement; and
13.5.2 The Supplier acting outside or contrary to the lawful Processing instructions of the Customer in respect of the processing of Personal Data.
14.1 The Supplier shall not be responsible for any injury, loss, damage, cost or expense suffered by the Customer if and to the extent that it is caused by the negligence or wilful misconduct of the Customer or by breach by the Customer of its obligations under the Agreement.
14.2 Subject always to clauses 14.3 and 14.4:
14.2.1 the aggregate liability of the Supplier in respect of all defaults, claims, losses or damages howsoever caused, whether arising from breach of the Agreement, the supply or failure to supply of the Services, misrepresentation (whether tortuous or statutory), tort (including negligence), breach of statutory duty or otherwise shall in no event exceed a sum equal to 200% of the Charges paid or payable to the Supplier; and
14.2.2 the aggregate liability of the Customer in respect of all defaults, claims, losses or damages howsoever caused, whether arising from breach of the Agreement, misrepresentation (whether tortuous or statutory), tort (including negligence), breach of statutory duty or otherwise shall in no event exceed a sum equal to the value of the Charges paid or payable to the Supplier; and
14.2.3 except in the case of claims arising under clauses 9.4 and 18.3, in no event shall either Party be liable to the other Party for any:
(a) loss of profits;
(b) loss of business;
(c) loss of revenue;
(d) loss of or damage to goodwill;
(e) loss of savings (whether anticipated or otherwise); and/or
(f) any indirect, special or consequential loss or damage.
14.3 Nothing in the Agreement shall be construed to limit or exclude either Party’s liability for:
14.3.1 death or personal injury caused by its negligence or that of its Staff;
14.3.2 fraud or fraudulent misrepresentation by it or that of its Staff;
14.3.3 breach of any obligation as to title implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
14.3.4 any other matter which, by law, may not be excluded or limited.
14.4 The Supplier’s liability under the indemnity in clauses 9.4, 13.5 and 18.3 shall be unlimited.
14.5 During the Term, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Agreement, and shall produce to the Customer on request both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
15 Force Majeure
Neither Party shall have any liability under or be deemed to be in breach of the Agreement for any delays or failures in performance of the Agreement which result from circumstances beyond the reasonable control of the Party affected. Each Party shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. In such circumstances the Customer’s obligations to make payments pursuant to the Agreement shall cease while those circumstances persist. If such circumstances continue for a continuous period of more than two months, either Party may terminate the Agreement by written notice to the other Party.
16.1 The Customer may terminate the Agreement in whole or in part at any time by notice in writing to the Supplier to take effect on any date falling at least 1 month (or, if the Agreement is less than 3 months in duration, at least 10 Working Days) later than the date of service of the relevant notice.
16.2 Without prejudice to any other right or remedy it might have, the Customer may terminate the Agreement in whole or in part before Delivery or after Delivery where only part of the Goods have been Delivered by written notice to the Supplier with immediate effect if the Supplier:
16.2.1 (without prejudice to clause 16.2.5), is in material breach of any obligation under the Agreement which is not capable of remedy;
16.2.2 repeatedly breaches any of the terms and conditions of the 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 and conditions of the Agreement;
16.2.3 is in material breach of any obligation which is capable of remedy, and that breach is not remedied within 30 days of the Supplier receiving notice specifying the breach and requiring it to be remedied;
16.2.4 undergoes a change of control within the meaning of section 416 of the Income and Corporation Taxes Act 1988;
16.2.5 breaches any of the provisions of clauses 7.2, 11, 12, 13 and 17;
16.2.6 becomes insolvent, or if an order is made or a resolution is passed for the winding up of the Supplier (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator or administrative receiver is appointed in respect of the whole or any part of the Supplier’s assets or business, or if the Supplier makes any composition with its creditors or takes or suffers any similar or analogous action (to any of the actions detailed in this clause 16.2.6) in consequence of debt in any jurisdiction; or
16.2.7 fails to comply with legal obligations in the fields of environmental, social or labour law.
16.3 The Supplier shall notify the Customer as soon as practicable of any change of control as referred to in clause 16.2.4 or any potential such change of control.
16.4 The Supplier may terminate the Agreement by written notice to the Customer if the Customer has not paid any undisputed amounts within 90 days of them falling due.
16.5 Termination or expiry of the Agreement shall be without prejudice to the rights of either Party accrued prior to termination or expiry and shall not affect the continuing rights of the Parties under this clause and clauses:
2, 3.2, 6.1, 6.2, 6.6, 6.7, 7, 9, 10.2, 11, 12, 13, 14, 16.6, 17.4, 18.3, 19 and 20.7
or any other provision of the Agreement that either expressly or by implication has effect after termination.
16.6 Upon termination or expiry of the Agreement, the Supplier shall:
16.6.1 give all reasonable assistance to the Customer and any incoming supplier of the Goods and/or Services; and
16.6.2 return all requested documents, information and data to the Customer as soon as reasonably practicable.
17.1 The Supplier shall promptly notify the Customer of any health and safety hazards which may arise in connection with the performance of its obligations under the Agreement. The Customer shall promptly notify the Supplier of any health and safety hazards which may exist or arise at the Customer’s premises and which may affect the Supplier in the performance of its obligations under the Agreement.
17.2 The Supplier shall:
17.2.1 comply with the reasonable requirements of the Customer’s security arrangements;
17.2.2 comply with all the Customer’s health and safety measures while on the Customer’s premises; and
17.2.3 notify the Customer immediately in the event of any incident occurring in the performance of its obligations under the Agreement on the Customer’s premises where that incident causes any personal injury or damage to property which could give rise to personal injury.
17.3 The Supplier shall:
17.3.1 perform its obligations under the Agreement in accordance with all applicable equality Law and the Customer’s equality and diversity policy as provided to the Supplier from time to time; and
17.3.2 take all reasonable steps to secure the observance of clause 17.3.1 by all Staff.
17.4 The Supplier shall supply the Services in accordance with the Customer’s environmental policy as provided to the Supplier from time to time.
17.5 The Goods shall be packed and marked in a proper manner and in accordance with any instructions specified by the Customer, any statutory requirements and any requirements of the carriers. All packaging materials shall be considered non-returnable. The Supplier shall indemnify the Customer against all actions, suits, claims, demands, losses, charges, costs and expenses which the Customer may suffer or incur as a result of, or in connection with, any breach of this clause 17.5.
18 Prevention of Fraud and Corruption
18.1 The Supplier shall not offer, give, or agree to give anything, to any person an inducement or reward for doing, refraining from doing, or for having done or refrained from doing, any act in relation to the obtaining or execution of the Agreement or for showing or refraining from showing favour or disfavour to any person in relation to the Agreement.
18.2 The Supplier shall take all reasonable steps, in accordance with good industry practice, to prevent fraud by the Staff and the Supplier (including its shareholders, members and directors) in connection with the Agreement and shall notify the Customer immediately if it has reason to suspect that any fraud has occurred or is occurring or is likely to occur.
18.3 If the Supplier or the Staff engages in conduct prohibited by clause 18.1 or commits fraud in relation to the Agreement or any other contract with the Customer, the Customer may:
18.3.1 terminate the Agreement and recover from the Supplier the amount of any loss suffered by the Customer resulting from the termination, including the cost reasonably incurred by the Customer of making other arrangements for the supply of the Goods and/or Services and any additional expenditure incurred by the Customer throughout the remainder of the Agreement; or
18.3.2 recover on an indemnity basis in full from the Supplier any other loss sustained by the Customer in consequence of any breach of this clause.
19 Dispute Resolution
19.1 The Parties shall attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with the Agreement and such efforts shall involve the escalation of the dispute to an appropriately senior representative of each Party.
19.2 If the dispute cannot be resolved by the Parties within one month of being escalated as referred to in clause 19.1, the dispute may by agreement between the Parties be referred to a neutral adviser or mediator (the Mediator) chosen by agreement between the Parties. All negotiations connected with the dispute shall be conducted in confidence and without prejudice to the rights of the Parties in any further proceedings.
19.3 If the Parties fail to appoint a Mediator within one month, or fail to enter into a written agreement resolving the dispute within one month of the Mediator being appointed, either Party may exercise any remedy it has under applicable law.
20.1 Each of the Parties represents and warrants to the other that it has full capacity and authority, and all necessary consents, licences and permissions to enter into and perform its obligations under the Agreement, and that the Agreement is executed by its duly authorised representative.
20.2 A person who is not a party to the Agreement shall have no right to enforce any of its provisions which, expressly or by implication, confer a benefit on him, without the prior written agreement of the Parties.
20.3 The Agreement cannot be varied except in writing signed by a duly authorised representative of both the Parties.
20.4 The Agreement contains the whole agreement between the Parties and supersedes and replaces any prior written or oral agreements, representations or understandings between them and shall not be replaced or superseded by the submission of any terms and conditions by the Supplier after the date of the Purchase Order. The Parties confirm that they have not entered into the Agreement on the basis of any representation that is not expressly incorporated into the Agreement. Nothing in this clause shall exclude liability for fraud or fraudulent misrepresentation.
20.5 Any waiver or relaxation either partly, or wholly of any of the terms and conditions of the Agreement shall be valid only if it is communicated to the other Party in writing and expressly stated to be a waiver. A waiver of any right or remedy arising from a breach of contract shall not constitute a waiver of any right or remedy arising from any other breach of the Agreement.
20.6 The Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in the Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
20.7 Except as otherwise expressly provided by the Agreement, all remedies available to either Party for breach of the Agreement (whether under the Agreement, statute or common law) are cumulative and may be exercised concurrently or separately, and the exercise of one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
20.8 If any provision of the Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from the Agreement and rendered ineffective as far as possible without modifying the remaining provisions of the Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of the Agreement.
21.1 Any notice to be given under the Agreement shall be in writing and may be served by personal delivery, first class recorded or, subject to clause 21.3, e-mail to the address of the relevant Party notified to the other at or around the time the Purchase Order is issued, or such other address as that Party may from time to time notify to the other Party in accordance with this clause:
21.2 Notices served as above shall be deemed served on the Working Day of delivery provided delivery is before 5.00pm on a Working Day. Otherwise delivery shall be deemed to occur on the next Working Day. An email shall be deemed delivered when sent unless an error message is received.
21.3 Notices under clauses 15 (Force Majeure) and 16 (Termination) may be served by email only if the original notice is then sent to the recipient by personal delivery or recorded delivery in the manner set out in clause 21.1.
22 Governing Law and Jurisdiction
The validity, construction and performance of the Agreement, and all contractual and non contractual matters arising out of it, shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.