UNIVERSITY OF
STRATHCLYDE
Conditions of Contract
For the Purchase of Goods and Services
Document
Reference
Version Number
Confidentiality
N/A
Author
Procurement
Version 7
Date
December 2016
Unclassified – for anyone inside or outwith the Client
the place of useful learning
The University of Strathclyde is a charitable body, registered in Scotland, number SC015263
Page 1
CONDITIONS OF CONTRACT FOR THE PURCHASE OF GOODS AND/OR SERVICES
TABLE OF CLAUSES
CLAUSE NO.
TITLE
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
DEFINITIONS
INTERPRETATION
BASIS OF CONTRACT
THE GOODS
LABELLING AND PACKAGING
DELIVERY
EXCESS DELIVERIES
CLIENT MATERIALS
INSPECTION AND TESTING
PRICE AND PAYMENT
TITLE AND ACCEPTANCE
RISK
HEALTH AND SAFETY
FORCE MAJEURE
VARIATIONS AND CHANGE CONTROL
TERMINATION
INSOLVENCY
DEFAULT
ASSIGNATION AND SUB-CONTRACTING
INDEMNITY AND INSURANCE
WARRANTY
INTELLECTUAL PROPERTY RIGHTS
CONFIDENTIALITY
DEDUCTION OF SUMS DUE
WAIVER
SEVERABILITY
ARBITRATION
STATUTES
NOTICES
AUDIT
DATE CHANGE DISRUPTION
GOVERNING LAW
BRIBERY
DISCRIMINATION
CONFLICT OF INTEREST
MODERN SLAVERY
THIRD PARTIES
ENTIRE AGREEMENT
CONDITIONS FOR THE PURCHASE OF SERVICES
39
49
41
42
43
44
45
46
47
48
49
50
SERVICES
RESPONSIBILITY FOR INFORMATION
QUALITY OF SERVICE
MATERIALS USED
MANNER OF CARRYING OUT THE SERVICE
ACCESS TO THE PREMISES
SUPPLIER’S PERSONNEL
SUPPLIER’S STATUS
NOTIFICATION PROCEDURE
COMPLETION TESTS
TUPE
CHANGE TO CONTRACT REQUIREMENTS
Page 2
51
HEALTH & SAFETY
Page 3
1.
DEFINITIONS
1.1
“Acceptance” means the acceptance of the Goods in terms of clause 11.
1.2
“Anti-slavery Policy” means the anti-slavery policy of the University of Strathclyde.
1.3
“Business Day” means a day (other than a Saturday, Sunday or a public holiday) when the Client is
open for business.
1.4
“Bribery Legislation” means the Bribery Act 2010 and any law that prohibits corruption, bribery or
any offence similar to the offences contained in the Bribery Act 2010, in any part of the world where
the Supplier carries out its obligations under the Contract.
1.5
“Client” means University of Strathclyde established by Royal Charter dated 14th August 1964 and
registered as a charity in Scotland number SC015263.
1.6
“Conditions” means these conditions of contract as set out in this document as amended from time
to time in accordance with clause 15.
1.7
“Contract” means the contract between the Client and the Supplier for the purchase of Goods and/
or Services and consisting of the Supplier’s tender and the Client’s acceptance thereof (or the Order
and the Supplier’s acceptance thereof, or otherwise, as the case may be), these Conditions, and any
other documents (or parts thereof) specified or referred to therein or annexed thereto expressly
incorporating these Conditions.
1.8
“Client Materials” means any materials, tools, equipment, components, drawings, specifications, and
data issued by the Client and used directly or indirectly in the performance of the Contract.
1.9
“Goods” means any goods, articles or materials supplied or to be supplied to the Client by the Supplier
pursuant to or in connection with the Contract.
1.10
“IPR” means all patents, designs and registered trademarks, and any applications for any of the
foregoing and the right to apply for same, copyright, design rights, database rights, rights in the nature
of copyright, trademarks, trade names and business names, moral rights, topography rights, utility
model rights, rights in confidential and proprietary information, rights in inventions and discoveries,
know-how and any and all other industrial or intellectual property rights whatsoever which exist or arise
anywhere in the world.
1.11
“Order” means the Client’s order for the Goods and/or Services as set out in the Client’s purchase
order form or in the Client’s written acceptance of the Supplier’s quotation, as the case may be.
1.12
“Party” means a party to the Contract and “Parties” shall be construed accordingly.
1.13
“Premises” means the location or locations where the Services are to be performed, as specified in
the Contract.
1.14
“Services” means the services or minor works to be provided by the Supplier as specified in the
Contract and shall, where the content so specifies, include any Goods.
1.15
“Specification” means the formal description (if any) of the Goods and/or Services, including any
related plans and drawings, contained in or referred to in the Contract.
1.16
“Supplier” means the company or other person named in the Contract from whom the Client
purchases the Goods and/or Services and where the context so requires shall include any subSupplier.
2
INTERPRETATION
2.1
The interpretation and construction of this Contract shall be subject to the following provisions:
2.1.1
A reference to a person is to be construed to include references to a natural person, a
corporation, firm, company, partnership, joint venture, corporate or unincorporated body,
individual or any state or agency of a state (whether or not having separate legal personality).
Page 4
2.1.2
Words importing the singular shall include the plural and vice versa and words denoting any
gender shall include all genders.
2.1.3
A reference to a party includes its personal representatives, successors or permitted
assignees.
2.1.4
A reference to a statute or statutory provision is a reference to such statute or provision as
amended or re-enacted, and includes any subordinate legislation made under that statute or
statutory provision, as amended or re-enacted.
2.1.5
Any phrase introduced by the words ‘including’, ‘include’, ‘in particular’ or any similar
expression shall be construed as illustrative and shall not limit the sense of the words
preceding those terms.
2.1.6
A reference to writing or written includes faxes and e-mails.
2.1.7
Clause and paragraph headings are for ease of reference only and shall not affect the
interpretation of these Conditions.
2.1.8
Reference to a clause is a reference to the whole of that clause unless stated otherwise.
3.
BASIS OF CONTRACT
3.1
The Order constitutes an offer by the Client to purchase Goods and/or Services in accordance with
these Conditions.
3.2
The Order shall be deemed to be accepted on the earlier of:
3.2.1
the Supplier issuing a written acceptance of the Order; or
3.2.2
the Supplier doing any act consistent with fulfilling the Order.
3.3
The Contract shall come into existence upon the acceptance of the Order or, if applicable, when the
Client accepts the Supplier’s tender.
4.
THE GOODS
4.1
The Supplier shall ensure that the Goods shall be to the entire satisfaction of the Client and be of
satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended).
4.2
The Supplier shall ensure that the Goods correspond with their description, any applicable
Specification and in all respects with the Contract.
4.3
The Supplier shall ensure that the Goods shall be fit and sufficient for the purpose for which such
goods are ordinarily used and for any particular purpose made known to the Supplier by the Client
expressly or by implication, and in this respect, the Supplier acknowledges that the Client has relied
and shall rely on the skill, care and judgement of the Supplier in the supply of the Goods and the
execution of the Contract.
4.4
The Supplier shall comply with all applicable statutory and regulatory requirements relating to the
manufacture, labelling, packaging, storage, handling and delivery of the Goods.
4.5
The Supplier shall ensure that at all times, it has and maintains all licences, permissions,
authorisations, consents and permits that it needs to carry out its obligations under the Contract.
5.
LABELLING AND PACKAGING
5.1
The Goods shall be packaged and, as necessary, palletised in a safe and secure manner and in
accordance with the Client’s instructions to enable them to reach their destination in good condition.
The contents shall be clearly marked on each container and/or pallet and all containers of hazardous
Goods (and all documents relating thereto) shall bear prominent and adequate warnings. The Supplier
shall indemnify the Client in full against all actions, proceedings, claims, demands, losses, damages,
charges, costs and/or expenses (including legal fees) which the Client may suffer or incur as a result
of or in connection with any breach of this clause.
Page 5
5.2
Each container or pallet shall be accompanied by delivery or advice notes securely attached detailing
the date of the Order, the Client’s Contract reference number, description of the contents, quantity,
weight, special storage instructions, information for the safe handling of the Goods and, if the Goods
are being delivered by instalments, the outstanding balance of the Goods remaining to be delivered.
5.3
All packaging materials will be considered non-returnable unless otherwise agreed in writing, in which
case they will be returned to the Supplier at the cost of the Supplier.
6.
DELIVERY
6.1
The Supplier shall deliver the Goods and or Services on the date specified in the Contract. If no such
date is specified, the Supplier must contact the Client within two Business Days of receipt of order to
clarify delivery requirements.
6.2
In the case of the Contract being performed at regular or defined times, the Supplier shall deliver the
Goods and or Services at the times specified in the Contract. The Supplier is responsible for ensuring
that intended delivery times are acceptable to the Client.
6.3
The time of delivery of the Goods and or Services shall be of the essence of the Contract and failure
to deliver within the time promised or specified shall entitle the Client (at the Client’s option), and
without prejudice to any of its other rights and remedies, to exercise any one or more of the following
remedies, whether or not it has accepted the Goods and or Services and whether in respect of any
repaired or replacement Goods and or Services:
6.3.1
to terminate the Contract;
6.3.2
to reject the Goods and or Services (in whole or in part) and return them to the Supplier at the
Supplier’s own risk and expense;
6.3.3
to require the Supplier to repair or replace the rejected Goods and or Services, or to provide
a full refund of the price of the rejected Goods and or Services (if paid);
6.3.4
to refuse to accept any subsequent delivery of the Goods and or Services which the Supplier
attempts to make;
6.3.5
to recover from the Supplier any costs incurred by the Client in obtaining substitute Goods
and or Services from a third party; and
6.3.6
to claim damages for any other costs, loss or expenses incurred by the Client which are in any
way attributable to the Supplier’s failure to carry out its obligations under the Contract.
6.4
Unless otherwise agreed with the Client, the Supplier is responsible for the delivery of the Goods at
no additional charge to the place of delivery stated in the Contract. Any access to premises and any
labour and equipment that may be provided by the Client in connection with delivery or off-loading
shall be provided without acceptance by the Client of any liability whatsoever.
6.5
Where any access to the Client’s premises is necessary in connection with delivery the Supplier shall
at all times comply with the Client’s site regulations and all safety, hygiene and other requirements
applicable to the premises and shall ensure that his employees and all others for whom he is legally
liable so comply.
6.6
Delivery of the Goods shall be completed on the completion of unloading of the Goods at the place of
delivery stated in the Contract.
7.
EXCESS DELIVERIES
7.1
If the Supplier delivers quantities in excess of the quantity due, the Client shall have the right to accept
at a reduced price or to reject the quantity in excess of that due. Any rejected Goods shall be returnable
at the Supplier’s risk and expense. The Client shall not be obliged to accept delivery of the Goods
prior to the Client’s specified delivery date and if the Client shall do so:
7.1.1
the Client shall be entitled to charge storage to the Supplier; and
Page 6
7.1.2
the date for payment shall be calculated according to the due delivery date and such payment
terms as are specified in the Contract.
8.
CLIENT MATERIALS
8.1
Any Client Materials used directly or indirectly in the performance of the Contract or any other assets
of the Client in the possession of the Supplier or the subject of the Contract shall remain at all times
the property of the Client and shall be identified and clearly marked by the Supplier and recorded as
such in all documentation. The Supplier shall maintain all such articles in good order and condition
and shall use such materials solely in connection with the Contract. The Supplier shall notify the Client
of any surplus materials remaining after completion of the Contract and shall dispose of them as the
Client may direct. Damage to Client Materials and other assets and waste of materials arising from
poor workmanship or negligence of the Supplier shall be made good at the Supplier’s expense.
8.2
Without prejudice to any other rights of the Client, the Supplier shall deliver up to the Client on demand
all Client Materials and other assets, whether processed or not.
8.3
In the event of the Client’s termination or cancellation of the Contract for any reason, all Client Materials
and any other assets of the Client in possession of the Supplier shall be returned immediately to the
Client who shall be granted unencumbered free rights of access to the Supplier’s premises at any time
for such purposes as the Client may decide are appropriate.
9.
INSPECTION AND TESTING
9.1
The Client may at any reasonable time inspect or test or arrange for the inspection or testing of the
Goods or any part of them, in the course of production and/or upon completion at the Supplier’s
premises and/or those of its sub-Supplier as the Client may reasonably require. No failure to make
complaint at the time of such inspection or test and no approval given during or after such inspection
or test shall constitute a waiver by the Client of any rights or remedies in respect of the Goods.
9.2
The Client may by notice to the Supplier reject any of the Goods that fail to comply with the Contract.
Such notice shall generally be given within 30 Business Days after delivery to the Client or such longer
period as may be reasonable in all the circumstances or within a reasonable time after any latent
defect in the Goods has become apparent. Should the Client reject any of the Goods pursuant to this
clause, the Client shall be entitled without prejudice to its other rights and remedies to recover from
the Supplier the full cost of inspection and/or testing from time to time and:
9.2.1
require that within the time specified at the time of rejection and as the Client may elect, the
Goods be either repaired by the Supplier or replaced by the Supplier, with Goods which comply
in all respects with the Contract; or
9.2.2
obtain a full refund from the Supplier in respect of the Goods rejected; or
9.2.3
obtain the Goods elsewhere and recover from the Supplier any additional costs thereby
incurred.
9.3
Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the
Goods and any such inspection shall not reduce or otherwise affect the Supplier’s obligations under
the Contract, and the Client shall have the right to conduct further inspections and tests after the
Supplier has carried out its remedial actions.
10
PRICE AND PAYMENT
10.1
The price of the Goods and/or Services shall be as stated in the Contract and shall be firm and
unchangeable for the duration of the Contract and shall include all the requirements referred to in the
Contract and no variation shall be effective unless agreed in writing and signed by the Client. Unless
otherwise agreed in writing, the price shall be a delivered price, including packing, carriage, and
insurance to the specified place of delivery.
10.2
All prices shall be in Pounds Sterling.
10.3
Unless otherwise agreed in writing by the Client, the Supplier shall render an invoice retrospective to
the completion of delivery of the Goods and on completion of the Contract in respect of Services, such
completion in each case to be to the satisfaction of the Client. Value Added Tax, where applicable,
Page 7
will be shown separately on all invoices as a strictly net extra. The Client’s Contract reference number
must be quoted on all invoices and the Client reserves the right to reject any invoices that fail to meet
these criteria.
10.4
Payment shall be made within 30 Business Days following the receipt of a valid invoice with which the
Client has no dispute.
10.5
All invoices clearly marked with the purchase order and where relevant contract reference number
shall be sent to Accounts Payable, Finance Office, McCance Building, 16 Richmond St, Glasgow G1
1XQ.
11.
TITLE AND ACCEPTANCE
11.1
Title in the Goods and in the materials, components and equipment to be incorporated in the Goods
shall pass to the Client either:
11.1.1 upon delivery or incorporation in accordance with the Contract, or
11.1.2 when payment or part payment in respect thereof is made to the Supplier, whichever is the
earlier.
11.2
Where title to the Goods passes to the Client upon Acceptance at the Supplier’s premises or under
clause 11.1.2, the Goods, their component parts and equipment so far incorporated therein shall be
identified and clearly marked by the Supplier as being the property of the Client and recorded as such
in all documentation.
11.3
Acceptance of the Goods shall take place if upon the lapsing of 30 Business Days from the delivery
date at the place of delivery stated in the Contract, or a longer period of time from the delivery date at
the place of delivery stated in the Contract as may be reasonable in the circumstances, or such
reasonable time from the delivery date at the place of delivery stated in the Contract within which any
latent defects in the Goods would become apparent, the Client does not issue a notice informing the
Supplier that the Goods fail to comply with the Contract.
12.
RISK
The risk in the Goods shall pass to the Client upon delivery to the Client at the place of delivery stated in the
Contract.
13.
HEALTH AND SAFETY
13.1
The Supplier warrants that at all times the Contract shall be performed in strict accordance with the
requirements of the Health and Safety at Work Act etc 1974 and in accordance with any regulations
made under the said Act and the Goods shall be designed, tested and constructed so as to be safe
and without risks to health and safety and all necessary information and instructions for the safe and
proper use of the Goods must be supplied to the Client prior to delivery of the Goods.
13.2
The Supplier shall promptly notify the Client as soon as it has identified any operational or health risk
which may arise during the handling, storage, use or disposal after use, including known mis-uses of
the Goods.
14.
FORCE MAJEURE
14.1
Neither the Client nor the Supplier shall be liable or deemed to be in default on account of delaying
any delivery or failure to perform its obligations under the Contract due to circumstances which could
not have been reasonably contemplated and which are beyond the Party’s reasonable control.
14.2
The delaying Party shall notify the other Party immediately if they become aware of a potential or
actual force majeure situation. The delaying Party shall provide the reasons for the delay and the
likely duration of the delay and they shall be entitled to a reasonable extension of time for the
performance of their contractual obligations.
Page 8
14.3
A Party affected by an event of force majeure shall make every reasonable effort to minimise the
effects thereof and shall promptly resume performance as soon as reasonably possible after the
removal of the event of force majeure.
15.
VARIATIONS and CHANGE CONTROL
15.1
Except as set out in these Conditions, any variation to the Contract, including the introduction of any
additional terms and conditions, shall be binding only when agreed in writing and signed by the Client.
15.2
The Client reserves the right at any time by written notice to the Supplier to modify the quality and
quantity of the Goods and order any variation to any part of the Services that for any other reason shall
in the Client’s opinion be desirable. Any alteration in the price or the completion date arising by reason
of such change shall be agreed between the parties. A failure to agree shall not be a reason for the
Supplier failing to undertake and complete the Contract. Failing agreement, the matter shall be
determined in accordance with the provisions of clause 27.
15.3
Where any provision of this Agreement provides that the mechanism set out in this Schedule should
apply, or where the Client or the Supplier proposes any change or modification of the design,
specification, quality or quantity of the Goods and or Services or the addition, omission or substitution
of any work or the time or location at which the Goods and or Services will be performed, the provisions
contained in Appendix I shall apply.
16.
TERMINATION
16.1
In addition to their rights of termination under clauses 17 and 18, the Client shall be entitled to terminate
or suspend the Contract for any reason in whole or in part at any time by giving written notice to the
Supplier, whereupon the Supplier shall discontinue all work on the Contract. The Client shall pay a
fair and reasonable price for any Goods and/or Services supplied satisfactorily at the time of
termination or suspension, provided that the Client has accepted such Goods and/or Services and
acquired title to such Goods.
16.2
Termination of the Contract shall not prejudice or affect any right of action or remedy which shall have
accrued or shall thereupon accrue to the Client.
17.
INSOLVENCY
17.1
Without prejudice to any other rights or remedies of the Client, the Client shall have the right forthwith
to terminate the Contract by written notice to the Supplier or the appropriate trustee in bankruptcy or
sequestration, receiver, liquidator, administrator or similar officer upon the occurrence of any of the
following events:
17.1.1 where the Supplier is an individual, if a petition is presented for the Supplier’s bankruptcy or
the sequestration of his estate or a criminal bankruptcy order is made against the Supplier, or
the Supplier is apparently insolvent, or makes any composition or arrangement with or for the
benefit of creditors, or makes any conveyance or assignation for the benefit of creditors, or if
an administrator or trustee is appointed to manage the Supplier’s affairs; or
17.1.2 where the Supplier is not an individual but is a firm or a number of persons acting together in
any capacity, if any event in clauses 17.1.1 or 17.1.3 occurs in respect of the firm or any
partner in the firm or any of those persons or a petition is presented for the Supplier to be
wound up as an unregistered company; or
17.1.3 where the Supplier is a company, if the company passes a resolution for winding-up or
dissolution (otherwise than for the purposes of and followed by a solvent amalgamation or
reconstruction) or the court makes an administration order or a winding-up order, or the
company makes a composition or arrangement with its creditors, or an administrator,
administrative receiver, receiver and manager, trustee or provisional liquidator or similar
officer is appointed in respect of the Supplier or any part of its undertaking or assets, or
possession is taken of any of its property under the terms of a floating charge, or the Supplier
is subject to notice of any application for such appointment or taking of possession.
18.
DEFAULT
Page 9
18.1
If the Supplier is in default then without prejudice to any of its other rights and remedies the
Client may require the Supplier within 14 days (or such other period as the Client may specify,
acting reasonably) to produce a draft remedial plan to remedy the default for the approval of
the Client, such approval not to be unreasonably withheld or delayed.
18.2
The Supplier will implement the remedial plan approved by the Client pursuant to Clause 18.1
of this Section.
18.3
Failure by the Supplier to comply with any of the Conditions or any other provision of the
Contract shall enable the Client (at their option) to terminate the Contract by written notice to
the Supplier with immediate effect and release themselves from any obligation to accept and
pay for the Goods and/or Services and/or to cancel all or part of the Contract, in either case
without prejudice to their other rights and remedies.
18.4
Where the Client has so released themselves and/or cancelled all or part of the Contract under
clause 18.3, the Client shall be entitled to replace all or any of the Goods and/or Services by
purchasing other goods and/or services of the same or similar description or allocate other
goods and services to the purposes for which the Contract was required and all costs in excess
of the price stated (or otherwise provided for) in the Contract shall be recoverable from the
Supplier.
19.
ASSIGNATION AND SUB-CONTRACTING
19.1
The Client may assign, transfer, charge, sub-contract or deal in any other manner with any or all of its
rights or obligations under the Contract at any time without approval or consent of the Supplier.
19.2
The Supplier shall not without the prior written consent of the Client assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract or
any part thereof.
19.3
Sub-contracting any part of the Contract shall not relieve the Supplier of any obligation or duty
incumbent on him under the Contract.
19.4
Where the Client has consented to the placing of sub-contracts, copies of each sub-contract shall be
sent by the Supplier to the Client immediately.
19.5
Where the Supplier enters into a sub-contract for the purpose of performing the Contract or any part
thereof, it shall cause a term to be included in such a sub-contract which requires payment to be made
of undisputed sums by the Supplier to the sub-Supplier within a specified period not exceeding 30
days from the receipt of a valid invoice as defined by the sub-contract requirements. The Supplier
shall indemnify and keep indemnified the Client in full from and against all actions, proceedings, claims,
demands, losses, damages, charges, costs and/or expenses (including reasonable legal
fees/expenses/costs) which the Client may suffer or incur as a result of or in connection with any
breach of this clause.
20.
INDEMNITY AND INSURANCE
20.1
Without prejudice to any rights or remedies of the Client (including the Client’s rights under clause 18),
the Supplier shall indemnify the Client in full against all liability, actions, claims, proceedings, demands,
losses (whether direct or indirect), damages, charges, costs, interest, penalties, fees (including legal
and other professional fees) and expenses awarded against or incurred or paid by the Client as a
result of or in connection with any claim made against the Client by any person for any loss, damage
to property or in respect of any injury (whether fatal or otherwise) to any person which may result
directly or indirectly from any defect in the Goods, any deficiency in the provision of Services or any
negligent or wrongful act or omission of the Supplier.
20.2
During the term of the Contract and for a period of five years thereafter, the Supplier shall effect and
maintain in force, with a reputable insurance company, a policy or policies of insurance covering all
matters which are the subject of indemnities under the Contract including Product Liability insurance
to a minimum of the value of the Contract, Public Liability insurance to a minimum sum of £5,000,000
and Employers’ Liability insurance to a minimum sum of £5,000,000, in each case in respect of any
one incident and unlimited as to the number of incidents unless otherwise agreed by the Client in
writing. Where the Contract relates to Professional Services, the Supplier shall maintain in force with
reputable insurers Professional Liability insurance in the sum of not less than £1,000,000 in respect of
Page 10
any one incident and unlimited as to numbers of claims. The Client reserves the right to require
adjustments to such insurance cover if they consider that to be necessary.
20.3
At the request of the Client, the Supplier shall produce within 48 hours, the policies required under
clause 20.2 together with receipts or other evidence of payment of the latest premium due thereunder.
20.4
The Client’s rights and remedies under these Conditions are in addition to its rights and remedies
implied by statute and common law.
21.
WARRANTY
21.1
The Supplier warrants that the Goods shall conform to the Contract, are of good material and
workmanship, are free from defects, are of satisfactory quality and are fit for purpose.
21.2
The warranty given under clause 21.1 shall be in effect for a guarantee period of one year after the
date of Acceptance of the goods by the Client and this and any additional warranties and guarantees
given to the Client by the Supplier shall survive inspection, test, Acceptance and payment, and shall
benefit the Client, its successors, assignees and customers and clients.
21.3
If the Client shall within such guarantee period under clause 21.2 or within 30 Business Days thereafter
give notice in writing to the Supplier of any defect in any of the Goods as may have arisen during such
guarantee period, the Supplier shall (without prejudice to any other rights and remedies which the
Client may have) as quickly as possible remedy such defects (whether by repair or replacement as the
Client shall elect) without cost to the Client.
21.4
The Supplier warrants that the Goods shall be free from any liens and encumbrances.
22.
INTELLECTUAL PROPERTY RIGHTS
22.1
Except to the extent that the Goods are made in accordance with designs furnished by the Client, the
Supplier warrants, represents and undertakes that none of the Goods will infringe any patent, trade
mark, registered design, copyright or other IPR of any third party and the Supplier shall indemnify the
Client in full against all actions, claims, proceedings, demands, losses, damages, charges, costs and
expenses (including legal and other professional fees) which the Client may suffer or incur as a result
of or in connection with any breach of this clause.
22.2
All IPR (including ownership and copyright) in any specification, instruction, plan, drawing, pattern,
model, design or information or any material similar to any of the foregoing furnished to or
commissioned by the Client or made available to the Supplier by the Client (including by any person
acting on the Client’s behalf) shall remain vested in the Client and the Supplier shall not (except to the
extent necessary for the performance of the Contract) without the prior written consent of the Client
use or disclose any such specification, instruction, plan, drawing, pattern, model, design or information
or other materials (whether or not relevant to the Contract) which the Supplier may obtain in the
performance of the Contract.
22.3
All inventions, designs, methods, processes, know how, data and software discovered or generated
as a result of or in the course of the Contract and all IPR arising therein or relating thereto and/or in
anything produced in the course of the performance of the Contract shall with immediate effect from
its or their creation vest in and belong to the Client and the Supplier without charge assigns to the
Client, by way of present assignation of future rights, its entire right, title and interest in and to all
copyright and other IPR which exists and/or which may hereafter exist or arise in the same which is
capable of being assigned to the fullest extent permitted at law. The Supplier shall from time to time
at the reasonable request of the Client take such action and execute such documents, forms, deeds
and authorisations as reasonably requested by the Client to give effect to the rights granted to the
Client pursuant to this Agreement.
23.
CONFIDENTIALITY
23.1
The Contract and the subject matter thereof and any samples and information supplied by the Client
(including the items referred to in clause 22.2 and/or relating in any way to the Client’s business,
processes, research or property shall be used for the exclusive purpose of performing the Contract
and be treated as and kept confidential by the Supplier who shall not use such for its own benefit or
the benefit of any third party or disclose such or any details thereof for any purpose whatsoever
(including advertisements, display or publication) without the Client’s prior consent in writing.
Page 11
23.2
The Client may be required to disclose information in compliance with the Freedom of Information
(Scotland) Act 2002 (the decisions of the Client in the interpretation thereof shall be final and
conclusive in any dispute, difference or question arising in respect of disclosure under its terms), any
other law, or, as a consequence of judicial order, or order by any court or tribunal with the authority to
order disclosure.
23.3
When disclosing such information it is recognised and agreed by both parties that the Client is unable
to impose any restriction upon the information that they provide. Such disclosure shall not be treated
as a breach of this agreement.
23.4
The Supplier acknowledges that the Client:
23.4.1 is subject to the requirements of the Freedom of Information (Scotland) Act 2002 ("FOISA")
and the Environmental Information (Scotland) Regulations 2004 ("EIRS");
23.4.2 may be obliged under FOISA or EIRS to disclose Information without consulting with the
Supplier; and
23.4.3 shall be responsible for determining at its absolute discretion any information held by it is
exempt from disclosure in accordance with the provisions of FOISA or EIRS and/or is to be
disclosed in response to a request for information.
24.
DEDUCTION OF SUMS DUE
Wherever under the Contract any sum of money is recoverable from or payable by the Supplier, the Client
may, without limiting any other rights or remedies it may have, deduct that sum from any sum due, or which at
any later time may become due, to the Supplier under the Contract or under any other agreement or contract
with the Client.
25.
WAIVER
The failure of either Party to seek redress for breach or insist upon strict performance of any term, condition
or provision of the Contract, or the failure of either Party to exercise any right or remedy to which it is entitled
hereunder, shall not constitute a waiver thereof and shall not cause a diminution of the obligations established
by the Contract. A waiver of any default shall not constitute a waiver of any subsequent default. No waiver of
any of the terms, conditions or other provisions of the Contract shall be effective unless it is expressly stated
in writing and communicated to the other Party.
26.
SEVERABILITY
If any provision of the Contract is held by any court of competent jurisdiction or other competent authority to
be invalid, illegal or unenforceable in whole or part, such provision shall be severed and the validity of the
provisions of the Contract shall continue in full force and effect as if the Contract had been executed without
the invalid, illegal or unenforceable provision.
27.
ARBITRATION
27.1
All disputes, differences or questions at any time arising between the parties as to the construction of
the Contract, or as to any matter or thing arising out of the Contract shall be referred to the arbitration
of a single arbiter who shall be agreed between the two parties. Failing such agreement, a single
arbiter shall be appointed at the request of either Party by the then President of the Law Society of
Scotland. The arbitration shall be held in Scotland and the Arbitration (Scotland) Act 2010 shall apply.
27.2
In any arbitration to follow hereon the Parties agree that rule 41 of the Scotland Arbitration Rules set
out in schedule 1 to the Arbitration (Scotland) Act 2010 shall not apply.
28.
STATUTES
28.1
The Supplier warrants that at all times in the performance of the Contract it shall comply with all
Statutes, statutory requirements and obligations.
Page 12
28.2
29.
All references to Statutes shall include any directly applicable provisions of the EU Treaties, any EU
directive, regulations or any Act of Parliament, including those made by the Scottish Parliament or
Scottish Executive as the case may be, any subordinate legislation, any codes of practice, guidelines,
recommendations or safety procedures published or approved from time to time including but not
limited to those published by the Health & Safety Executive or approved by the Health & Safety
Commission, any regulation, bylaw or decision or permission of any local authority or of any statutory
undertaking, public body or company any of which relate to the Contract and any future amendments
and re-enactments of the same.
NOTICES
Any notice given under or pursuant to the Contract may be sent by hand or by post or by registered post or by
recorded delivery service or transmitted by telex, facsimile transmission or other means of telecommunication
resulting in the receipt of a written communication in permanent form and if so sent or transmitted to the
address of the Supplier shown on the face of the Contract, or to such other address as the Supplier may by
notice to the Client have substituted, or to the Client at the address shown on the face of the Contract and to
the address and for the attention of the Client employee to which invoices are rendered under clause 10,
quoting the Client Contract reference number, or such other address as the Client may by notice to the Supplier
have substituted, shall be deemed effectively given on the day when in the ordinary course of the means of
transmission it would first be received by the addressee in normal business hours.
30.
AUDIT
The Supplier shall keep and maintain, until two years after the Contract has been completed, records, to the
satisfaction of the Client, of all expenditures which are reimbursable by the Client and of the hours worked and
costs incurred in connection with any employees of the Supplier on a time charge basis. The Supplier shall
on request afford the client or its representative such access to those records as may be required by the Client
in connection with the Contract.
31.
DATE CHANGE DISRUPTION
31.1
The Supplier warrants that the Goods conform in all respects to the requirements of BSI-Disc PD 20001 and shall include design, functionality and performance so that the Client shall not experience any
abnormality in the performance or results returned from the Goods prior to, during or after any date
change.
31.2
All date references and markings on the Goods, associated documentation or electronic
communications shall state the calendar year as a four-digit number unless otherwise previously
agreed in writing by the Client.
32.
GOVERNING LAW
The Contract shall be governed by and construed in accordance with Scots Law and any disputes arising shall
be subject to the non-exclusive jurisdiction of the Scottish Courts.
33.
BRIBERY
33.1
The Client shall be entitled to terminate the Contract with immediate effect and without liability on the
Client whether in contract, delict (including negligence) or otherwise and to recover from the Supplier
all costs or losses resulting from such termination where the Supplier or any person acting on behalf
of the Supplier:
33.1.1 has offered, given, or agreed to give any person, any gift or consideration of any kind in
connection with the Contract;
33.1.2 has committed an offence under the Bribery Act 2010 or breached any of the provisions of the
Bribery Legislation or breached clauses 33.2 or 33.3; or
33.1.3 has offered, given, or agreed to give any fee or reward, the receipt of which would constitute
an offence under section 68(2) of the Local Government (Scotland) Act 1973.
33.2
The Supplier undertakes to act in a way to uphold the Client’s good name and reputation at all times
Page 13
and not to do or attempt to do any act or thing which is intended or which in fact causes any damage
to or brings discredit upon the Client, its good name or reputation.
33.3
The Supplier shall:
33.3.1 take steps to ensure that neither the Client nor its employees, agents, sub-Suppliers or others
performing services for the Client has done (or agreed to do) or shall do (or agree to do)
anything which constitutes a breach of any Bribery Legislation;
33.3.2 procure that it, and each of its agents, sub-Suppliers and others involved in performing the
Contract has in place, operates and monitors, adequate and effective procedures to prevent
a breach of the Bribery Legislation;
33.3.3 have in place commitments from its directors or other senior managers confirming the
Supplier’s anti-bribery stance and the involvement of such directors or other senior managers
in activities required to comply with the Bribery Act 2010;
33.3.4 carry out periodic risk assessments to identify possible areas where any Bribery Legislation
may be breached and implement any steps required to prevent identified risks;
33.3.5 carry out appropriate due diligence investigation, firstly, where areas of risk in respect of
breaching any Bribery Legislation are uncovered including as a result of carrying out risk
assessments and, secondly, where the possibility of a breach of Bribery Legislation is real,
including based on historic practices or local customs;
33.5.6 issue communications explaining the Supplier’s anti-bribery stance and circulate internally and
where appropriate, externally to its agents, sub-Suppliers or others involved in performing the
Contract;
33.5.7 provide training to its employees and all other workers in relation to Bribery Legislation;
33.5.8 notify the Client immediately if any owner whether direct or beneficial, shareholder, officer,
director, employee, third party representative, agent of the Supplier or any family relation of
any such person, is or becomes a Government Official;
33.5.9 promptly report to the Client, any request or demand for any undue financial or other
advantage of any kind received by the Supplier in connection with the performance of the
Contract;
33.5.10 promptly report to the Client, any suspicion of any breach or alleged breach of any Bribery
Legislation by the Supplier including each of its employees, agents, sub-Suppliers or others
involved in performing the Contract and co-operate with the Client or any regulator or
prosecutor in any investigation relating to the same; and
33.5.11 to the extent permitted by law, confirm to the Client that (i) there is no outstanding, and within
the last six years there has been no, investigation into it or any of its associated companies;
(ii) it has not been convicted of any offence under any Bribery Legislation or reached any
settlement in relation to any alleged breach of any Bribery Legislation; and (iii) it has not selfreported any breach or suspected breach of any Bribery Legislation.
34.
DISCRIMINATION
The Supplier shall not unlawfully discriminate either directly or indirectly on such grounds as race, colour,
ethnic or national origin, disability, sex or sexual orientation, religion or belief, or age and without prejudice to
the generality of the foregoing the Supplier shall not unlawfully discriminate within the meaning and scope of
the Employment Equality (Age) Regulations 2006, the Equality Act 2006, the Human Rights Act 1998, the
Equality Act 2010, the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and
the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 or other relevant or
equivalent legislation, or any statutory modification or re-enactment thereof. The Supplier shall take all
reasonable steps to secure the observance of this clause by all employees and representatives of the Supplier.
The Supplier must not commit any breach of the Employment Relations 1999 Act (Blacklists) Regulations 2010
or section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992, or commit any breach of
the Data Protection Act 1998 by unlawfully processing personal data in connection with any blacklisting
Page 14
activities. Breach of this clause is a material default which shall entitle the Purchaser to terminate the Contract
with immediate effect.
35.
CONFLICT OF INTEREST
35.1
The Supplier shall ensure that no conflict of interest exists such as may be likely to prejudice the
independence and objectivity of the Supplier in performing the Contract.
35.2
Where the Supplier becomes aware of any conflict of interest that exists, or may exist, during the
performance of this Contract (whether the conflict existed before the award of this Contract or arises
during its performance) it shall immediately notify the Client 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 the Client may reasonably require.
35.3
Where the Client is of the opinion that the conflict of interest notified is not capable of being avoided
or removed, the Client may terminate the Contract forthwith by notice in writing to the Supplier.
35.4
Where the Client is of the opinion that the conflict of interest notified to it under this clause is capable
of being avoided or removed, the Client may require the Supplier to take such steps as will, in the
opinion of the Client, avoid, or as the case may be, remove the conflict.
35.5
If the Supplier fails to comply with the Client's requirements in this respect or if, in the opinion of the
Client, compliance does not avoid or remove the conflict, the Client may terminate the Contract
forthwith by notice in writing to the Supplier.
35.6
If the Contract is terminated pursuant to this clause and in the Client's reasonable opinion the relevant
conflict of interest existed at the time of entering into the Contract and could have been discovered
with the application by the Supplier of due diligence, and ought to have been disclosed, no payment
shall be due for any Goods and/or Services provided by the Supplier.
36.
MODERN SLAVERY
36.1
In performing its obligations under the Contract, the Supplier shall:
36.2
(i)
comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and
codes from time to time in force including, but not limited to, the Modern Slavery Act 2015;
(ii)
comply with the Client’s Anti-slavery Statement, published under the ‘Procurement
Guidance’ tab on the University of Strathclyde’s Procurement webpage;
(iii)
not engage in any activity, practice or conduct that would constitute an offence under
sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were
carried out in the UK; and
(iv)
include in its contracts with its direct subcontractors and suppliers anti-slavery and human
trafficking provisions that are at least as onerous as those set out in this clause 36.1.
The Supplier represents and warrants that neither the Supplier nor any of its officers, employees or
other persons associated with it:
(i)
has been convicted of any offence involving slavery and human trafficking; and
(ii)
having made reasonable enquiries, so far as it is aware, has been or is the subject of any
investigation, inquiry or enforcement proceedings by any governmental, administrative or
regulatory body regarding any offence or alleged offence of or in connection with slavery
and human trafficking.
36.3
The Supplier shall implement due diligence procedures for its direct subcontractors and suppliers to
ensure that there is no slavery or human trafficking in its supply chains.
36.4
The Supplier shall not subcontract its obligations under this Contract without the prior written consent
of the Client. In order to help the Client reach a decision on a proposed subcontract, the Supplier shall
provide the Client with a copy of any proposed subcontract, together with any other information that
the Client may reasonably require about the proposed subcontractor.
Page 15
36.5
If the Client agrees that the Supplier may subcontract its obligations, the Supplier shall implement an
appropriate system of due diligence and training for its subcontractors that is designed to ensure their
compliance with the Anti-slavery Policy.
36.6
The Supplier shall notify the Client as soon as it becomes aware of:
(i)
any breach, or potential breach, of the Anti-slavery Policy; or
(ii)
any actual or suspected slavery or human trafficking in a supply chain which has a
connection with this Contract.
36.7
The Supplier shall indemnify the Client against any losses, liabilities, damages, costs (including but
not limited to legal fees) and expenses incurred by, or awarded against, the Client as a result of any
breach of Anti-slavery Policy.
36.8
The Supplier warrants that it conducts its business in a manner that is consistent with the Anti-slavery
Policy.
36.9
The Client may terminate the Contract with immediate effect by giving written notice to the Supplier if
the Supplier commits a breach of the Anti-slavery Policy
37.
THIRD PARTIES
37.1
Any person who is not a Party to the Contract (including without limitation any employee, officer, agent,
representative, or sub-Supplier of either the Client or the Supplier) shall not have the right to enforce
any term of the Contract, which expressly or by implication confers a benefit on such person without
the prior agreement in writing of both Parties, which agreement should refer to this clause.
37.2
If, notwithstanding the terms of the foregoing clause 36.1, any provision of these Conditions may be
or become enforceable by a person who is not a Party to it, these Conditions or any of them may be
varied, amended or modified, and these Conditions may be suspended, cancelled or terminated, by
agreement in writing between the Parties, and the Contract may be rescinded (in each case) without
the consent of the third party.
38.
ENTIRE AGREEMENT
38.1
These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to
impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
38.2
The Contract constitutes the entire agreement between the parties relating to the subject matter of the
Contract. The Contract supersedes all prior negotiations, representations and undertakings, whether
written or oral, except that this Condition shall not exclude liability in respect of any fraudulent
misrepresentation.
Page 16
CONDITIONS FOR THE PURCHASE OF SERVICES
Where the Contract comprises or includes the purchase of services, the following additional conditions shall
apply: 39.
SERVICES
39.1
The Supplier shall provide the Services to the Client in accordance with the terms of the Contract. The
Supplier shall begin performing the Services from the starting date stated in the Contract and shall
either complete the Services by the completion date stated in the Contract or continue to perform the
Services for the period stated in the Contract, whichever is applicable.
39.2
Time of performance of the Services is of the essence of the Contract. The Client may by written
notice require the Supplier to execute the Services in such order as the Client may decide. In the
absence of such notice, the Supplier shall submit such detailed programmes of work and progress
reports as the Client may from time to time require.
40.
RESPONSIBILITY FOR INFORMATION
The Supplier shall be responsible for any errors or omissions in any drawings, calculations, or other particulars
supplied by him whether such information has been approved by the Client or not, provided that such errors
or omissions are not due to inaccurate information furnished in writing and certified by the Client.
41.
QUALITY OF SERVICE
41.1
The Supplier shall ensure that the Services shall comply in all respects with the Contract or any
authorised modification thereto that may have been agreed and confirmed in writing by the Client. The
Supplier shall co-operate with the Client in all matters relating to the Services, and comply with all
instructions of the Client.
41.2
The Services shall be completed in a proper manner to the standards of best technical and commercial
practices in the Supplier’s industry, profession or trade using competent and appropriately trained staff
performing the Services with all reasonable care, skill and diligence.
42
MATERIALS USED
42.1
The Supplier shall provide all equipment, tools, vehicles and such materials as are required to provide
the Services. All materials and workmanship shall be to the entire satisfaction of the Client and shall
conform in all respects with the Specification in the Contract, be of satisfactory quality, fit for purpose,
including any purpose expressly or impliedly made known to the Supplier by the Client, and in
accordance with any other particulars specified in the Contract.
42.2
All materials supplied and used in the Services or transferred to the Client, will be free from defects in
workmanship, installation and design.
42.3
The Supplier shall hold all Client Materials in safe custody at its own risk, maintain the Client Materials
in good condition until returned to the Client, and not dispose or use the Client Materials other than in
accordance with the Client’s written instructions or authorisation.
43.
MANNER OF CARRYING OUT THE SERVICE
43.1
The Supplier shall comply with the Client’s “Site Regulations” and all health and safety rules and
regulations and other security requirements applicable to the Premises and shall ensure that all
employees and sub-Suppliers so comply.
43.2
When required by the Client a “Permit to Work” duly approved by the Client shall be obtained by the
Supplier prior to the commencement of the Services. Such approval shall not relieve the Supplier from
any of his obligations under the Contract or Statute.
43.3
In the performance of the Contract the Supplier shall not unreasonably interfere with or interrupt the
normal day to day activities of the Client.
Page 17
43.4
The Supplier shall not interfere with the operation of any plant or equipment not included in the Contract
without the prior approval in writing of the Client.
43.5
The Supplier shall make no delivery of materials, plant or other things nor commence any work in or
on the Premises without obtaining the Client's prior consent.
43.6
Access to the Premises shall not be exclusive to the Supplier but only such as shall enable the Supplier
to carry out the Services concurrently with the execution of work by others. The Supplier shall cooperate with such others as the Client may reasonably require.
43.7
The Client shall have the authority at any time during the progress of the Services to order in writing:
43.7.1 the removal from the Premises of any materials which in the opinion of the Client are either
hazardous, noxious or not in accordance with the Contract;
43.7.2 the substitution of proper and suitable alternative materials; and
43.7.3 the removal and proper re-execution (notwithstanding any previous test thereof or interim
payment therefor) of any work which, in respect of material or workmanship, is not in the
opinion of the Client in accordance with the Contract.
43.8
The Supplier shall forthwith comply with any order made under clause 42.7.
43.9
On completion of the Services, the Supplier shall remove the Supplier’s plant, equipment and unused
materials and shall clear away from the Premises all rubbish arising out of the Services and leave the
Premises in a neat and tidy condition.
44.
ACCESS TO THE PREMISES
44.1
The Supplier shall have access (but not exclusive access) only to such parts of the Premises as are
reasonably necessary for the purpose of performing the Contract and to such other parts as the Client
may from time to time authorise. The Supplier shall be responsible for ensuring that his employees
do not enter any other part of the Premises and that they make use only of such roads, routes and
facilities as the Client may authorise from time to time.
44.2
The Supplier is deemed to have inspected the Premises before performance of the Contract so as to
have understood the nature and extent of the Services to be carried out and any implications arising
therefrom and is deemed to be satisfied in relation to all matters connected with the Services and the
Premises.
44.3
The Client shall, at the request of the Supplier, grant such access as may be reasonable for this
purpose.
45.
SUPPLIER’S PERSONNEL
45.1
When requested by the Client, the Supplier shall provide the Client with a list of the names and
addresses of all persons who are or may be at any time concerned with the Contract or any part
thereof. That list shall specify the capacities in which they are so concerned and shall give such other
particulars as the Client may require.
45.2
The Supplier’s personnel shall under no circumstances be regarded as employees of the Client, and
the Supplier shall be liable for all necessary arrangements and the payment of income tax, National
Insurance contributions and other expenses associated with their employment that may become due
as a result of the Contract.
45.3
The Supplier shall take the steps reasonably required by the Client to prevent unauthorised persons
being admitted to the Premises. If the Client gives the Supplier notice that any person is not to be
admitted to or is to be removed from the Premises or is not to become involved in or is to be removed
from involvement in the performance of the Contract, the Supplier shall take all reasonable steps
immediately to comply with such notice and if required by the Client the Supplier shall replace any
person removed under this clause with another suitably qualified person and procure that any pass
issued to the person removed is surrendered.
Page 18
45.4
The decision of the Client shall be final and conclusive as to whether any person is to be admitted to
or is to be removed from the Premises or is not to become involved in or is to be removed from
involvement in the performance of the Contract and as to whether the Supplier has furnished the
information or taken the steps required of the Supplier by this clause.
45.5
The Supplier shall bear the cost of any notice, instruction or decision of the Client under this clause.
46.
SUPPLIER'S STATUS
46.1
In carrying out the Services the Supplier shall be acting as a principal and not as the agent of the
Client.
46.2
The Supplier shall not (and shall procure that the Supplier’s agents and servants shall not) say or do
anything that might lead any other person to believe that the Supplier is acting as the agent of the
Client.
46.3
Nothing in this Contract shall impose any liability on the Client in respect of any liability incurred by
the Supplier to any other person but this shall not be taken to exclude or limit any liability of the Client
to the Supplier that may arise by virtue of either a breach of this Contract or any negligence on the
part of the Client, or the Client’s staff or agents.
47.
NOTIFICATION PROCEDURE
The Supplier shall give immediate notice to the Client in the event of any accident or damage, whether in the
performance of the Services or otherwise, that is likely to form the subject of a claim under the Client’s
insurance. The Supplier shall give all the information and assistance in respect thereof that the Client’s
insurers may require and shall not negotiate, pay, settle, admit or repudiate any claim without their express
written consent. The Supplier shall permit the Client’s insurers to take proceedings in the name of the Supplier
to recover compensation or secure an indemnity from any third party in respect of any of the matters covered
by the said insurance.
48.
COMPLETION TESTS
48.1
Where applicable, completion tests, which shall be in accordance with the Contract, shall be made
upon completion of the Services and at a time to be agreed with the Client, in writing.
48.2
When the Services are complete and all tests to be carried out by the Supplier have been passed to
the entire satisfaction of the Client, the Client shall accept the Services.
48.3
In the event of the Services or any part of them failing to meet the tests specified in the Contract, the
Client may:
48.3.1 require rectification at the Supplier’s expense; or
48.3.2 accept the Services, conditional upon the Supplier’s accepting a reduction in the Contract price
that is acceptable to the Client; or
48.3.3 reject the Services and recover from the Supplier all costs incurred directly or indirectly as a
result of the Supplier’s failure to complete the Services to the Client’s entire satisfaction.
49.
TRANSFER OF UNDERTAKINGS PROTECTION OF EMPLOYMENT (TUPE)
49.1
The Parties to the Contract agree that the Contract is for the supply of services and that the TUPE
Regulations 2006 (as amended 2014) shall not apply on commencement, expiry or termination of the
Contract. The Supplier agrees to perform the Contract (including performance of the Services) in a
manner so that none of its employees or independent Suppliers will spend more than 50% of his
employment or working time on performing the Contract and accordingly the Parties to the Contract
agree that TUPE shall not apply on expiry or termination of the Contract and, in any case, that the
Client shall not be liable if TUPE is applicable.
49.2
The Client may require the Supplier periodically to confirm in writing its compliance with clause 48.1
and failure by the Supplier to comply with clause 48.1 shall entitle the Client to terminate the Contract
Page 19
without prejudice to any other rights or remedies available to it under the Contract or as a result of
breach of Contract or at common law.
49.3
In the event that TUPE is determined (or agreed) to be applicable on expiry or termination of the
Contract or otherwise (a Relevant Transfer, as defined in TUPE) or where the Supplier breaches
clause 48.1 (by allowing its employees or independent Suppliers to spend more than 50% of their
employment or working time on the Contract), the Supplier shall indemnify and keep indemnified the
Client and any new supplier who is not a party to the Contract (“New Supplier”) (or, at the option of the
Client, indemnify the Client on its own behalf and/or on behalf of any New Supplier) in full and hold it
harmless from and against all actions, claims, proceedings, liabilities, demands, losses, damages,
charges, costs or expenses (including reasonable legal fees/costs/expenses) which the Client or the
New Supplier may suffer or incurs as a result of TUPE being applicable or the said breach of clause
48.1.
49.4
Where TUPE is reasonably alleged to apply by either Party to the Contract, during the period of six
months preceding the expiry of the Contract or after the Client has given notice to terminate the
Contract or the Supplier stops trading or within 20 Business Days of being so requested by the Client
or the New Supplier, the Supplier shall fully and accurately disclose, in writing to the Client or the New
Supplier for the purposes of TUPE, all information relating to its employees engaged in performing the
Contract, in particular, but not necessarily restricted to, the following:
49.4.1 the total number of the Supplier’s employees whose employment with the Supplier is liable to
be terminated at the expiry or termination or any variation (howsoever caused) of the Contract,
but for any operation of law;
49.4.2 for each of the Supplier’s employees, age, details of their salary and pay settlements covering
that person which relate to future dates but which have already been agreed and their
redundancy entitlements (the names of the Supplier’s employees do not have to be given);
49.4.3 information about the other terms and conditions on which the Supplier’s employees are
employed (including but not limited to their working arrangements);
49.4.4 details of pension entitlements (if any); and
49.4.5 job titles of the Supplier’s employees affected and the qualifications required for each position.
49.5
The Supplier shall permit each of the Client and the New Supplier to use the information obtained
under clause 48.4 for the purposes of TUPE and re-tendering (including disclosing such information
to potential New Suppliers). The Supplier will co-operate with its obligations under TUPE by allowing
the Client or the New Supplier to communicate with and meet the affected staff and/or their
representatives.
49.6
The Supplier agrees to indemnify and keep indemnified each of the Client and the New Supplier in full
and to hold it harmless at all times from and against all actions, suits, proceedings, claims, judgements,
demands, orders, expenses, awards, costs (including reasonable legal fees/costs/expenses) and all
other liabilities whatsoever in any way connected with or arising from or relating to the inaccurate or
late provision of information under clause 48.4.
49.7
In the event that the information provided by the Supplier under clause 48.4 becomes inaccurate or
the Supplier becomes aware that the information originally given was inaccurate, the Supplier shall
notify each of the Client and the New Supplier, of the inaccuracies and provide the amended
information.
49.8
The Supplier will not in the six month period preceding the expiry of the Contract or after the Client has
given notice to terminate the Contract or the Supplier stops trading, without the prior written consent
of the Client:
49.8.1 vary materially the terms and conditions of the Supplier’s employees working on the Contract;
49.8.2 increase or decrease materially the numbers of the Supplier’s employees working on the
Contract; or
49.8.3 replace any of the Supplier’s personnel working on the Contract with any other members of
the Supplier’s personnel.
Page 20
49.9
Where TUPE is applicable, the Supplier shall maintain personnel records in the format normally
adopted regarding the service of each of the employees affected by the relevant transfer including all
personnel records required to be maintained by law and deliver such records to the Client.
49.10
All remuneration of any kind due to the employees affected by the relevant transfer during the period
up to the relevant transfer date applicable to them shall be paid or settled in full by the Supplier in each
case no later than the date such remuneration is due to be paid.
49.11
The provisions of this clause 48 shall apply during the continuance of the Contract and indefinitely
after its termination.
50.
CHANGE TO CONTRACT REQUIREMENTS
50.1
The Client may order any variation to any part of the Services that for any other reason shall in the
Client’s opinion be desirable. Any such variation may include (but shall not be restricted to) additions,
omissions, alterations, substitutions to the Services and changes in quality, form, character, kind,
timing, method or sequence of the Services.
50.2
Save as otherwise provided herein, no variation of the Services as provided for in clause 38.1 shall be
valid unless given or confirmed in the form of an order given by the Client. All such orders shall be
given in writing provided that if for any reason the Client shall find it necessary to give any such order
orally in the first instance the Supplier shall comply with such oral order which must be confirmed in
writing by the Client within two Business Days of the giving of such oral order by the Client, failing
which the variation made by such oral order shall cease to have effect on the expiry of the said two
working day Business Day period.
50.3
Where any such variation of the Services made in accordance with clause 49.1 and 49.2 has affected
or may affect the costs incurred by the Supplier in providing the Services, the Supplier will notify the
Client in writing of the effect which it has had or may have on the said costs and such notification shall
be considered by the Client, who shall take all of the facts into account (including such information as
may be provided by the Supplier in respect of the effect which such variation has had or may have on
the costs incurred by the Supplier in providing the service) and may authorise such alteration to the
sums to be paid to the Supplier in accordance with the provisions of the Contract as are, in the Client’s
opinion, appropriate and reasonable in the circumstances.
50.4
Where any provision of this Agreement provides that the mechanism set out in this Schedule should
apply, or where the Client or the Supplier proposes any change or modification of the design,
specification, quality or quantity of the Services or the addition, omission or substitution of any work or
the time or location at which the Services will be performed, the provisions contained in Appendix I
shall apply.
51.
HEALTH AND SAFETY
The Supplier shall perform the Services in such a manner as to be safe and without risk to the health or
safety of persons in the vicinity of the place where the Services are being performed (whether such persons
are in the vicinity of the said place at the time when the Services are being performed or otherwise) and in
such a manner as to comply with any relevant health and safety or other legislation (including statutory
instrument, orders, or regulations made under the said legislation) and any requirements imposed by a local
or other regulatory authority in connection with the performance of services of the type supplied to the Client,
whether specifically or generally. The Supplier shall indemnify the Client against all actions, suits, claims,
demands, losses, charges, costs and expenses which the Client may suffer or incur as a result of or in
connection with any breach of this clause.
Page 21
Appendix I
Change Control Procedure
Part One
It is the intention of Client and the Supplier that the Goods/Services will be administered and
delivered in an efficient manner and the Client and the Supplier may during the term of this
Agreement suggest changes or modifications to the other to achieve this aim. Where any provision
of this Agreement provides that the mechanism set out in this Schedule should apply, or where the
Client or the Supplier proposes any change or modification of the design, specification, quality or
quantity of the Goods/Services or the addition, omission or substitution of any work or the time or
location at which the Goods/Services will be performed, the following provisions shall apply:
1.
The party wishing to instigate any change or modification shall give written notice to the other
party of the proposed change or modification, such notice to set out that party’s proposals in
reasonable detail. This notice shall be marked for the attention of the Key Persons at the
Client/Supplier as appropriate.
2.
The party on whom any notice under paragraph 1 is served shall, within the Period for Reply
of receipt of that notice, give notice to the other party either accepting or rejecting the proposal.
3.
If notice is sent under paragraph 2 accepting the proposal, the parties will as soon as
reasonably practicable complete and sign a form as set out in Part 2 of this Schedule. Any
agreed change or modification will take effect on the date of signature of that form by the Key
Person for each of the parties or on such other date as is set out in the relevant form.
4.
If notice is sent under paragraph 2 rejecting the proposal the Key Persons for each of the
parties shall negotiate in good faith in order to establish whether any alternative change or
modification can be agreed. If agreement is reached then the parties shall document such
agreement as set out in paragraph 3. Either party may terminate any negotiations if they
conclude that agreement will not be reached on the proposed change or modification.
5.
Any verbal instruction given to the Supplier shall have no validity unless confirmed by written
instruction from the Client, or confirmed in writing by the Supplier to the Client within seven
business days of the verbal instruction and such confirmation is not disputed in writing by the
Client within the Period for Reply of its receipt.
6.
Changes agreed in accordance with the provisions of this Schedule shall, where this
Agreement provides for the same, be valued in accordance with the provisions of this
Agreement. Where this Agreement does not provide a mechanism for agreeing the valuation
of any change, the value of such change will be agreed between the parties and recorded in
the form set out in Part 2 of this Schedule.
Page 22
Part 2
AMENDMENT TO TERMS OF THE CONTRACT
CHANGE REQUEST FORM
CR No.:
Supplier:
Originator:
Date Received:
Item(s) Affected:
Issue Affected:
Description of Change:
Reason for Change:
Effect of not implementing Change:
Analysis Results:
Resource:
Time:
Agreed Action: Accept / Reject
Value change/price modification:
Implementation Timescale:
Authorised By:
Signed: ……………………..……………… (for Client)
………………………..…………… (for Supplier)
Reason for Rejection:
Page 23
Dated: …… / …… / ……
Dated: …… / …… / ……