Terms and Conditions
1.1 In these terms and conditions:
“Authority” means the Secretary of State for Business, Innovation and Skills;
“Authority’s Premises” means land or buildings occupied by the Authority;
“Contract” means the agreement concluded between the Authority and the Contractor for the supply of the Services into which these terms and conditions are incorporated;
“Contractor” means the person who agrees to supply the Services to the Authority and includes any person to whom all or part of the Contractor’s obligations are assigned pursuant to clause 4.1;
“Force Majeure Event” has the meaning ascribed by clause 23.1;
"Government Property” means anything issued or otherwise provided to the Contractor in connection with the Contract by or on behalf of the Authority;
“Material Default” means any breach of these terms and conditions or of the Contract by the Contractor which the Authority considers to be sufficiently material as to justify termination of all or part of the Contract. A breach of any of the following of these terms and conditions by the Contractor shall be a Material Default: clause 2.1 (contractor’s warranties), clause 3.2 (contractor’s personnel), clause 7.6.3 (security of electronic data) clause 8.2 (confidentiality) clause 15 (contractor’s insurance requirements); clause 16.2 (bribery) clause 17 (official secrets), clause 19 (non discrimination and equality) and clause 22 (health and safety);
“OGC” means the Office of Government Commerce;
“Party” means the Authority or the Contractor and “Parties” shall be interpreted accordingly;
“Price” means the price payable by the Authority to the Contractor in consideration of the provision of the Services, excluding VAT;
“Services" means the services to be supplied to the Authority by the Contractor under the Contract;
“TUPE” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246)
“VAT” means value added tax.
“Working Day” means any day which is not a Saturday, a Sunday, a bank holiday or a public holiday in England;
1.2 The interpretation and construction of the Contract shall be subject to the following provisions:
1.2.1 clause headings shall not affect the interpretation of these terms and conditions;
1.2.2 a reference to any statute, enactment, order, regulation or similar instrument is a reference to it as in force from time to time taking account of any amendment or re-enactment;
1.2.3 a reference to a statute or statutory provision shall include any subordinate legislation made under that statute or statutory provision;
1.2.4 references to a “person” includes a natural person and a corporate or unincorporated body;
1.2.5 words in the singular shall include the plural and vice versa;
1.2.6 a reference to one gender shall include a reference to the other genders;
1.2.7 references to clauses are to clauses in these terms and conditions.
2.1 The Contractor warrants to the Authority that:
2.1.1 the Contractor will perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards;
2.1.2 the manner in which the Services are provided will conform with the Authority’s specification and the terms of the Contract;
2.1.3 the Services will be provided in accordance with all applicable legislation from time to time in force and the Contractor will inform the Authority as soon as it becomes aware of any changes in that legislation.
2.2 The Contractor will provide timely commencement and provision of the Services in accordance with time scales agreed by the Authority. Time shall only be of the essence of the Contract if the Authority so specifies in writing.
2.3 The Authority's rights under these terms and conditions are in addition to the statutory terms implied in favour of the Authority by the Supply of Goods and Services Act 1982 and any other statute.
2.4 Without prejudice to any other rights or remedies of the Authority (including but not limited to those in clause 25):
2.4.1 the Authority may reduce the Price payable in respect of any Services by a reasonable amount in circumstances where in the reasonable opinion of the Authority the Contractor has either failed to provide those Services or has provided them inadequately;
2.4.2 where the Authority notifies the Contractor that the Authority considers any work comprising part of the Services to be inadequate or in any way differing from the Contract (and this is other than because of the Authority’s own default) the Contractor shall at its own expense re-schedule and perform the work in accordance with the Contract within such reasonable time as may be specified by the Authority;
2.4.3 the Contractor shall reimburse the Authority for all reasonable costs incurred by the Authority which have arisen as a direct consequence of the Contractor’s delay in the performance of the Contract arising other than as a result of a Force Majeure Event.
2.5 The Authority may at any time notify the Contractor in writing to suspend provision of the Services. If the Authority gives such notification to the Contractor or otherwise delays the Contractor’s ability to provide the Services (other than as a consequence of a Force Majeure Event or a breach of contract or breach of duty on the part of the Contractor) the Authority shall, subject to the Contractor using its best endeavours to mitigate its losses, reimburse the Contractor:-
2.5.1 for any resulting unavoidable and reasonably foreseeable direct losses; and
2.5.2 for the cost of any binding commitments entered into by the Contractor with a third party which cease to be required due to the suspension or delay and in respect of which the Contractor cannot obtain a refund (where the Contractor has already paid in relation to the commitment) or is obliged to pay (where the Contractor has not already paid in relation to the commitment).
2.6 The Authority shall have the power to inspect and examine the performance of the Services at the Authority's Premises at any reasonable time or, provided that the Authority gives reasonable notice to the Contractor, at any other premises where any part of the Services is being performed.
2.7 The provisions of this clause 2 shall survive any performance, acceptance or payment pursuant to the Contract and shall extend to any substituted or remedial services provided by the Contractor.
3.1 The Contractor agrees that if required by the Authority it will submit any person employed by the Contractor or its sub contractors to the Authority’s security vetting procedure. The Contractor further agrees that unless the Authority agrees otherwise in writing any individual who refuses to submit to such vetting procedure or who does not attain the requisite clearance will not carry out any work on the Services supplied under the Contract.
3.2 Whenever requested to do so by the Authority in writing the Contractor shall within five Working Days provide a list of the names and addresses of all persons who may at any time require admission to the Authority’s Premises in order to provide the Services. This list will include any such persons employed by or under the control of the Contractor’s consultants, agents or sub-contractors. The Contractor shall specify the role of each person on the list and provide such other particulars as the Authority may reasonably require.
3.3 The Authority reserves the right to refuse admission to the Authority’s Premises to any person employed by the Contractor or its consultants, agents or sub-contractors whose admission would, in the reasonable opinion of the Authority, be undesirable.
4.1 The Contractor shall not without the prior written consent of the Authority (not to be unreasonably withheld or delayed) assign, novate, charge, mortgage, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
4.2 If the use of sub-contractors is approved by the Authority the Contractor shall be responsible for the acts and omissions of its sub-contractors as though they were its own.
4.3 If the Contractor uses a sub-contractor for the purpose of performing the Services or any part of them, the Contractor shall include in the relevant sub-contract a provision which requires the Contractor to pay for those goods or services within 30 days of the Contractor receiving a correct invoice from the sub-contractor.
4.4 The Contractor shall not use the services of self-employed individuals in connection with the Contract without the previous agreement in writing of the Authority.
4.5 The Authority may at any time assign, novate, transfer or charge the Contract and may sub-contract or delegate in any manner all of its obligations under the Contract to any third party or agent.
5.1 The Contractor shall submit invoices to the Authority at the times or intervals and in the format specified by the Authority in the Contract or as otherwise notified to the Contractor in writing. The Contractor shall ensure that any invoice it submits to the Authority contains the Authority’s purchase order or contract number. Such invoices will normally be paid by the Authority within 30 days of receipt.
5.2 If the Contractor is registered for VAT, the Authority shall pay to the Contractor in addition to the Price, a sum equal to the VAT chargeable on the value of the Services provided in accordance with the Contract.
5.3 For the avoidance of doubt the Contractor shall not be entitled to charge for the provision of any services that are not part of the Services unless the Contract has been properly varied in accordance with the procedure in clause 30 of these terms and conditions.
5.4 If the Contractor believes that payment for a correctly submitted invoice is overdue, the Contractor should, in the first instance, speak to the Authority’s named first point of contact on the face of the Contract. In the event that the problem is not satisfactorily resolved, the Contractor should write to the Authority’s Head of Procurement setting out its case.
5.5 For the purpose of calculating any statutory interest under the Late Payment of Commercial Debts (Interest) Act 1998, the relevant date for the payment of the debt shall be deemed to be the last day of a period of 30 days commencing on the day when the Authority received the invoice, or, if the Contractor had not completed the Services (or the part of the Services to which the invoice relates) before submitting the invoice, the last day of a period of 30 days commencing on the day when the Contractor completed the Services (or the part of the Services to which the invoice relates).
5.6 If the Authority disputes any part of any invoice issued by the Contractor, the Authority shall:
5.6.1 promptly notify the Contractor of the reasons for the dispute; and
5.6.2 be obliged to pay only the undisputed part of the invoice on the due date.
6.1 In this clause “Intellectual Property Rights” means patents, inventions, trade marks, service marks, logos, design rights (whether registrable or not), applications for any of those rights, copyright (including Crown copyright), database rights, domain names, trade or business names, moral rights and other similar rights or obligations, whether registrable or not, in any country (including but not limited to, the United Kingdom) and the right to sue for passing off.
6.2 Subject to any pre-existing Intellectual Property Rights of the Contractor or any third party, the Contractor assigns to the Authority with full title guarantee and free from all third party rights the Intellectual Property Rights comprised in all reports, data, databases, plans, drawings, patents, patterns, models or other material prepared for the Authority in the provision of the Services.
6.3 If the Contractor in providing the Services uses any materials in which there are pre-existing Intellectual Property Rights owned by itself or its agents, sub-contractors or third parties:
6.3.1 the Contractor shall itself provide, or procure from such agent, subcontractor or third party a non-exclusive licence (or sub-licence) allowing the Authority to use, reproduce, modify, adapt and enhance those materials as the Authority sees fit. Such licence (or sub-licence) shall be perpetual, irrevocable and granted at no cost to the Authority;
6.3.2 the Contractor shall ensure that all royalties, licence fees or similar expenses in respect of such pre-existing Intellectual Property Rights are paid and included in the Price.
6.4 The Contractor indemnifies the Authority against all claims and proceedings, and all costs and expenses incurred in connection therewith, made or brought against the Authority for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the performance of the Contract by the Contractor save where such infringement or alleged infringement is caused by or contributed to by any act or omission on the part of the Authority.
6.5 Nothing in the Contract or done under the Contract shall be taken to diminish Intellectual Property Rights which would, apart from the Contract, vest in the Crown or the Authority.
6.6 If the Authority reimburses the Contractor for the cost of any equipment acquired by the Contractor for providing any of the Services such equipment shall become the property of the Authority. The Contractor will deliver such equipment to the Authority on request. The Contractor shall keep a proper inventory of such equipment and shall ensure that whilst it remains in the Contractor’s possession or control it is securely stored when not in use and is insured for its full replacement value in the event of theft, loss or damage.
7.1 The Contractor shall not handle or examine any Government Property bearing a security classification of “Confidential”, “Secret” or “Top Secret” other than at the Authority’s Premises or another Government establishment and the Contractor shall not remove any such Government Property from the Authority’s Premises or a Government establishment without the prior written consent of the Authority.
7.2 Government Property shall only be used by the Contractor in provision of the Services except with the prior agreement in writing of the Authority.
7.3 All Government Property shall be deemed to be in good condition when received by or on behalf of the Contractor unless it notifies the Authority in writing to the contrary within 10 Working Days of it receiving such Government Property.
7.4 The Contractor undertakes to return all Government Property to the Authority on completion of the Contract or upon receipt of any earlier request made by the Authority in writing.
7.5 The Contractor shall repair or replace or, at the option of the Authority, pay compensation for all loss, destruction or damage occurring to any Government Property caused by the Contractor, or by the Contractor’s employees, consultants, agents or sub-contractors.
7.6 Where the Government Property comprises data issued in electronic form to the Contractor (including “personal data” as defined in the Data Protection Act 1998) the Contractor:
7.6.1 shall not process, store, copy, disclose or use such electronic data except as necessary for the performance of its obligations under the Contract or as otherwise expressly authorised in writing by the Authority;
7.6.2 shall perform secure back ups of all such electronic data in its possession and shall ensure that an up to date back up copy is securely stored at a site other than that where any original copies of such electronic data are being stored;
7.6.3 shall, and shall procure that its employees, consultants, agents or sub-contractorsobserve best practice when handling or in possession of any such electronic data. By way of example if the Contractor removes any such data or information from the Authority’s Premises or another Government establishment, or is sent such data or information by the Authority it shall ensure that the data and any equipment or media on which it is stored or is otherwise being processed is kept secure at all times. The Contractor shall impress on any of its employees, consultants, agents or sub-contractors who are required to handle or have possession of such electronic data that they must safeguard it all times, and are not to place it in jeopardy, for example by leaving it unattended in a vehicle or on public transport or by transmitting or posting it by insecure means.
7.7 If at any time the Contractor suspects or has reason to believe that Government Property comprising electronic data has or may become corrupted, lost, destroyed, altered (other than to the extent that the Contractor alters it by lawful processing in accordance with its obligations under the Contract) or degraded so as to be unusable then the Contractor shall notify the Authority immediately and inform the Authority of the remedial action the Contractor proposes to take.
7.8 The Contractor indemnifies the Authority against any loss or expense incurred by the Authority arising from the loss, destruction, alteration (other than by lawful processing permitted by the Contract) or degradation of Government Property (including any Government Property comprising electronic data) where this is caused by any act or omission (including negligence) on the part of the Contractor or its employees, consultants, agents or sub-contractors.
8.1 For the purposes of this clause 8 “Confidential Information” means all non-public information obtained by the Contractor from the Authority or any other department or office of the Government and which is either designated in writing as confidential or which would be regarded as confidential by a reasonable business person.
8.2 Save as provided in clause 8.3 the Contractor agrees not to disclose any Confidential Information to any third party.
8.3 The Contractor may disclose Confidential Information without breaching these terms and conditions:
8.3.1 with the prior written approval of the Authority;
8.3.2 to such of its employees, agents, sub-contractors or professional advisers as need to know it for the purpose of discharging the Contractor’s obligations to the Authority under the Contract provided that such employees, agents, sub-contractors or professional advisers are subject to obligations of confidentiality corresponding to those which bind the Contractor;
8.3.3 if ordered to do so by a court or other regulatory authority.
8.5 Except with the prior consent in writing of the Authority, the Contractor shall not:
8.5.1 communicate with representatives of the general or technical press, radio, television or other communications media, with regard to the existence or subject matter of the Contract; or
8.5.2 make use of the Contract or any Confidential Information otherwise than for the purposes of carrying out the Services.
8.6 The Contractor’s obligations contained in this clause 8 shall continue to apply after termination of the Contract.
9.1 The Contractor acknowledges that the Authority is subject to the requirements of the Freedom of Information Act 2000 (“FOIA”) and the Environmental Information Regulations (SI 2004/3391) (“EIR”) and shall assist and cooperate with the Authority, at the Contractor’s expense, to enable the Authority to comply with this legislation.
9.2 The Contractor shall (and shall procure that its subcontractors shall) at the Contractor’s expense:
9.2.1 transfer any request for information received by it and made pursuant to the FOIA or the EIR to the Authority as soon as practicable after receipt and in any event within 2 Working Days;
9.2.2 provide the Authority with a copy of all information relating to the request in its possession in the form that the Authority requires within 5 Working Days of the Authority requesting that information;
9.2.3 provide all assistance reasonably requested by the Authority to enable it to respond to a request for information within the time limits for compliance contained in section 10 of the FOIA or regulation 5 of the EIR.
9.3 Whilst the Authority may consult the Contractor and take the Contractor’s views into account the Contractor agrees that the Authority shall be responsible for determining at its absolute discretion whether any information:
9.3.1 is exempt from disclosure in accordance with the provisions of the FOIA or the EIR; or
9.3.2 falls to be disclosed in response to either a request for information or a direction from the Information Commissioner, the First-tier Tribunal (Information Rights), the Upper Tribunal or a court.
9.4 Without prejudice to clause 9.3 the Contractor acknowledges that marking or designating information relating to the Contract as “confidential” will not necessarily preclude that information from having to be disclosed by the Authority pursuant to a request made under FOIA or EIR.
9.5 In no event shall the Contractor respond directly to a request for information unless expressly authorised to do so in writing by the Authority.
9.6 The Contractor shall ensure that all information produced or obtained by it relating to the Contract is retained for such period as is required by law. Save as provided in clause 12.2 or where no legal time limit applies the Contractor shall retain such information for a reasonable period which in any event shall be no shorter than one year after the completion of the Services or the termination of the Contract (whichever occurs last).
10.1 In order to comply with the Government’s policy on transparency in the areas of procurement and contracts the Contractor agrees that the Contract and the tender documents issued by the Authority which led to its creation will be published by the Authority on a designated web site.
10.2 The entire Contract and all the tender documents issued by the Authority will be published on the designated web site save where to do so would disclose information the disclosure of which would:
10.2.1 contravene a binding confidentiality undertaking;
10.2.2 be contrary to regulation 43 of the Public Contracts Regulations 2006; or
10.2.3 in the reasonable opinion of the Authority be prevented by virtue of one or more of the exemptions in the FOIA or one or more of the exceptions in the EIR.
10.3 If any of the situations in 10.2.1 to 10.2.3 apply the Contractor consents to the Contract or tender documents being redacted by the Authority to the extent necessary to remove or obscure the relevant material and being published on the designated website subject to those redactions.
10.4 In clause 10.1 the expression “tender documents” means the advertisement issued by the Authority seeking expressions of interest, the pre qualification questionnaire and the invitation to tender.
11.1 In this clause references to “personal data”, “data subjects”, “data controller” and “data processor” are as defined in the Data Protection Act 1998 (“DPA”).
11.2 If the Contractor is a data controller it warrants to the Authority that it has submitted a notification to the Information Commissioner pursuant to section 18(1) of the DPA and will keep that notification up to date.
11.3 The Contractor shall comply with all relevant provisions of the DPA and do nothing which causes, or may cause, the Authority to be in breach of its obligations under the DPA. In particular, to the extent that the Contractor acts as a data processor in respect of any personal data pursuant to the Contract the Contractor shall only process such personal data to the extent necessary to enable it to provide the Services.
11.4 Where the Contractor is required to collect any personal data on behalf of the Authority it shall ensure that it provides the data subjects from whom the personal data are collected with a fair processing notice in a form to be agreed with the Authority.
11.5 The Contractor warrants that it has appropriate technical and organisational procedures in place to protect any personal data it is processing as part of the Services against any unauthorised or unlawful processing and against any accidental disclosure, loss, destruction or damage and undertakes to maintain such measures during the course of the Contract. The Contractor shall also take all reasonable steps to ensure the suitability of its staff having access to any such personal data.
11.6 Upon receipt of written notice from the Authority and at reasonable intervals the Contractor shall:
11.6.1 allow the Authority’s personnel access to any premises owned or controlled by it to enable the Authority to inspect its procedures referred to in clause 11.5;
11.6.2 prepare a report for the Authority detailing the technical and organisational measures it has in place to protect the personal data it is processing as part of the Services.
11.7 When requested by the Authority the Contractor shall at its own expense promptly assist the Authority to comply with any subject access request the Authority receives pursuant to section 7 of the DPA.
11.8 The Contractor shall not transfer any personal data it is processing as part of the Services outside the European Economic Area unless authorised in writing to do so by the Authority.
11.9 Upon the termination of the Contract for any reason the Contractor shall, unless notified otherwise by the Authority or required by law, immediately cease any processing of personal data on the Authority’s behalf and as requested by the Authority destroy or provide the Authority with a copy of that personal data on suitable media.
11.10 The Contractor shall promptly carry out any request from the Authority requiring it to amend, transfer or delete any personal data being processed by the Contractor as part of the Services.
11.11 The Contractor indemnifies the Authority against all claims and proceedings, and all costs and expenses incurred in connection therewith, made or brought against the Authority by any person in respect of the DPA or equivalent applicable legislation in any other country which claims would not have arisen but for some act, omission, misrepresentation non-compliance or negligence on the part of the Contractor or its employees, consultants, agents or sub-contractors.
12.1 The Contractor shall keep full and proper accounts, records and vouchers relating to all payments made to it by the Authority including in respect of any expenditure reimbursed by the Authority.
12.2 The Contractor shall ensure that such accounts, records and vouchers are retained by it for a period of six years after completion of the Services or termination of the Contract (whichever is later).
12.3 The Contractor shall permit the Authority, acting by its employees or an independent auditor, on request and at all reasonable times to examine all such accounts, records and vouchers at the offices of the Contractor or at such other places as the Authority shall reasonably direct, and to take copies of such accounts, records and vouchers and the Contractor shall provide the Authority or its independent auditor with such explanations relating to those documents as the Authority may request.
13.1 Whenever under the Contract any sum of money shall be due from the Contractor to the Authority such sum may be deducted from any amount then due, or which at any time thereafter may become due, to the Contractor under the Contract, any other agreement or arrangement between the Authority and the Contractor or between the Contractor and any other department or office of Her Majesty’s Government.
13.2 Any over-payment by the Authority to the Contractor whether in respect of the Price or VAT shall be a sum of money recoverable from the Contractor pursuant to clause 13.1.
14.1 Subject to clause 14.3 and the financial limit of clause 14.4 the Contractor indemnifies and shall hold the Authority harmless from all claims and against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Authority arising out of or in connection with:
14.1.1 any breach by the Contractor of the warranties contained in clauses 2.1, 11.2 or 11.5 of these terms and conditions;
14.1.2 the Contractor’s negligence or breach of statutory duty;
14.1.4 any claim made against the Authority by a third party arising out of or in connection with the provision of the Services to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Contractor, its employees, agents or subcontractors.
14.2 The indemnities given to the Authority in clause 14.1 are additional to those contained in clauses 6.4 (infringement of third party intellectual property rights), 7.8 (loss of or damage to Government Property) and 11.11 (data protection) of these terms and conditions.
14.3 Nothing in the Contract shall operate to exclude or limit the Contractor’s liability for:
14.3.2 fraud, fraudulent misrepresentation or deceit; or
14.4 Subject to clause 14.3 the Contractor’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with the Contract or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall not exceed £2,000,000 or twice the contract value, whichever is greater.
14.5 If any third party makes a claim, or notifies an intention to make a claim against the Authority which may reasonably be considered likely to give rise to a liability under one of the indemnities given to the Authority by the Contractor the Authority shall:
14.5.1 as soon as reasonably practicable, give written notice of the claim to the Contractor, specifying the nature of the claim in reasonable detail;
14.5.2 not make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of the Contractor (such consent not to be unreasonably withheld or delayed);
14.5.3 give the Contractor and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Authority, so as to enable the Contractor and its professional advisers to examine them and to take copies (at the Contractor’s expense) for the purpose of assessing the claim.
14.6 Nothing in this clause 14 shall restrict or limit the Authority's general obligation at law to mitigate any loss it may suffer or incur as a result of an event leading to a claim under any of the indemnities provided by the Contractor.
15.1 During the term of the Contract and for a period of at least three months after it ends for whatever reason the Contractor shall maintain in force with a reputable insurance company or companies a policy or policies of insurance providing an adequate level of cover in respect of all liabilities which may be incurred by the Contractor arising out of the Contract.
15.2 Without prejudice to the generality of clause 15.1 the Contractor shall maintain in force the following specific insurance policies with reputable insurance companies:
15.2.2 public liability insurance with a limit of at least £2 million per claim; and
15.3 On the Authority’s written request the Contractor shall promptly provide the Authority with copies of the policy certificates, renewal receipts and details of the cover provided in respect of the insurance policies referred to in clauses 15.1 and 15.2.
16.1 In this clause
16.1.1 “Bribery Act” means the Bribery Act 2010;
16.1.2 “Prohibited Act” means any of the following:
18.104.22.168 to directly or indirectly offer, promise or give any person working for or engaged by the Authority a financial or other advantage to (i) induce that person to perform improperly a relevant function or activity or (ii) reward that person for improper performance of a relevant function or activity; or
22.214.171.124 to directly or indirectly request, agree to receive or accept any financial or other advantage as an inducement or a reward for improper performance of a relevant function or activity in connection with this Agreement; or
126.96.36.199 committing any offence (i) under the Bribery Act; (ii) under legislation creating offences concerning fraudulent acts; (iii) at common law concerning fraudulent acts relating to this Agreement or any other contract with the Authority; or (iv) defrauding, attempting to defraud or conspiring to defraud the Authority.
16.2 The Contractor:
16.2.1 shall not and shall procure that any of its employees, consultants, agents, or sub-contractors shall not commit a Prohibited Act in connection with the Contract.
16.2.2 warrants, represents and undertakes to the Authority that it is not aware of any financial or other advantage being given to any person working for or engaged by the Authority, or that an agreement has been reached to that effect, in connection with the execution of this Contract, excluding any arrangement of which full details have been disclosed in writing to the Authority before execution of this Contract.
16.3 The Contractor shall:
16.3.1 if requested, provide the Authority with any reasonable assistance to enable the Authority to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with the Bribery Act;
16.3.2 if so required by the Authority within 20 Working Days of the Commencement Date, and annually thereafter, certify to the Authority in writing compliance with this clause 16 by the Contractor and all persons associated with it or other persons who are supplying goods or services in connection with this Contract. The Contractor shall provide such supporting evidence of compliance as the Authority may reasonably request.
16.4 The Contractor shall have and maintain an anti-bribery policy (which shall be disclosed to the Authority on request) to prevent it and any of its employees, consultants, agents or sub-contractors from committing a Prohibited Act and shall enforce it where appropriate.
16.5 If any breach of clause 16.2 is suspected or known, the Contractor must notify the Authority immediately.
16.6 If the Contractor notifies the Authority that it suspects or knows that there may be a breach of clause 16.2, the Contractor must respond promptly to the Authority's enquiries, co-operate with any investigation, and allow the Authority to audit books, records and any other relevant documentation. This obligation shall continue for three years following the expiry or termination of this Contract.
17.1 Where the Contractor is a “government contractor” as defined in section 12(2) of the Official Secrets Act 1989 it will abide by the provisions of the Official Secrets Acts 1911 to 1989 and take all reasonable steps by display of notices or by other appropriate means to notify all of its employees, consultants, agents or sub-contractors that the provisions of those Acts apply to them both during and after performance of the Contract.
17.2 If and when requested by the Authority the Contractor shall procure from each person identified by the request a signed statement confirming that that person understands that the Official Secrets Acts 1911 to 1989 apply to them personally both during and after the performance of the Contract.
18.1 In carrying out its obligations under the Contract the Contractor shall ensure that no conflict of interest arises which will or will be likely to prejudice its independence and objectivity or otherwise detrimentally affect the Contractor’s ability to perform the Contract or cause embarrassment to the Authority.
18.2 Upon becoming aware of any such conflict of interest during the performance of the Contract (whether the conflict existed before the award of the Contract or arises during its performance) the Contractor shall immediately notify the Authority 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 Authority may reasonably require.
18.3 Where the Authority is of the reasonable opinion that a conflict of interest notified to it under clause 18.2 is capable of being ameliorated by the Contractor the Authority may require the Contractor to take such reasonable steps as will, in the Authority’s opinion, avoid or remove the conflict.
18.4 The Authority may terminate the Contract immediately by notice in writing to the Contractor and recover from the Contractor the amount of any losses incurred by the Authority arising from such termination if:
18.4.1 the Contractor fails to comply with the requirements notified to the Contractor by the Authority in accordance with clause 18.3; or
18.4.2 in the reasonable opinion of the Authority, it is not possible to avoid or remove the conflict of interest, or
18.4.3 in the reasonable opinion of the Authority a conflict of interest existed at the time of the award of the Contract to the Contractor which the Contractor should reasonably have discovered with the application of due diligence and ought to have disclosed to the Authority as required by the tender documents pertaining to it.
19.1.1 not unlawfully discriminate either directly or indirectly or by way of victimisation or harassment within the meaning and scope of any law, enactment, order or regulation relating to discrimination (whether in age, disability, gender reassignment, marriage and civil partnerships, pregnancy, paternity and maternity, race, religion or belief, sex or sexual orientation or otherwise) and shall take all reasonable steps to ensure that its employees, consultants, agents or sub-contractors similarly do not unlawfully discriminate;
19.1.2 without prejudice to the generality of clause 19.1.1, not unlawfully discriminate within the meaning and scope of the Equality Act 2010 and all other relevant legislation and any statutory modification or re-enactment of such legislation;
19.1.3 where in connection with the Contract, the Contractor, its agents or subcontractors, or its staff are required to carry out work on the Authority’s Premises or alongside the Authority’s employees on any other premises, comply with the Authority’s own employment policy and codes of practice relating to equality and diversity in the workplace, copies of which are published on the Authority’s website;
19.1.4 in the event that the Contractor enters into any subcontract or linked agreement in connection with the Contract or any aspect of the Services provided under it, impose equality and diversity obligations on its subcontractors and other associates in terms substantially similar to those contained in the Contract;
19.1.5 comply with the Welsh Language Act 1993 and the Authority’s Welsh Language Scheme (as amended from time to time), a copy of which is available on the Authority’s website, as if it were the Authority to the extent that the same relate to the provision of the Services to the public in Wales.
19.2 Should the Contractor or any of its employees, consultants, agents or sub-contractors breach any part of clause 19.1 the Authority shall be entitled to terminate the Contract with immediate effect by notice in writing to the Contractor.
20.1 The Contractor shall comply in all material respects with all applicable environmental laws and regulations in force from time to time in relation to the Services. Without prejudice to the generality of the foregoing, the Contractor shall promptly provide all such information regarding the environmental impact of the Services as may reasonably be requested by the Authority.
20.2 All written outputs, including reports, produced in connection with the Contract shall (unless otherwise specified) be produced on recycled paper containing at least 80% post consumer waste which shall be used on both sides where possible.
20.3 The Contractor shall, when working at the Authority’s Premises, provide the Services in accordance with the Authority’s environmental policy which is to conserve energy, water, wood, paper and other resources, reduce waste and phase out the use of ozone depleting substances and minimise the use of greenhouse gases, volatile organic compounds and other substances damaging to health and the environment.
20.4 The Contractor shall meet all reasonable requests by the Authority for information evidencing compliance with the provisions of this clause 20 by the Contractor.
21.1 Where requested by the Authority, the Contractor shall supply to the Authority and to OGC such information and advice relating to the management of the Contract as the Authority or OGC may require.
21.2 The information and advice referred to in clause 21.1 may include, but is not limited to, the following: Line Item Amount, Invoice Line Description, Invoice Line Number, Currency Code, Order Date, VAT Inclusion Flag, VAT Rate, List Price, Number of Items, Unit of Purchase Quantity, Price per Unit, Supplier Service Code, Service description and/or name, UNSPSC Code, Taxonomy Code and/or Name, Geographical, Project Code, Project description, Project Start Date, Project Delivery Date (Estimate and Actual), Total project cost and Project Stage.
21.3 The information referred to in clause 21.1 shall be supplied in such form and within such timescales as the Authority or OGC may reasonably require.
21.4 The Contractor agrees that the Authority may provide OGC with information relating to the Services procured and any payments made under the Contract.
21.5 Upon receipt of the information supplied by the Contractor in response to a request under clause 21.1 or receipt of information provided by the Authority to OGC under clause 21.4 the Authority and the Contractor hereby consent to OGC:
21.5.1 storing and analysing the information and producing statistics; and
21.5.2 sharing the information or any statistics produced using the information, with any other Contracting Authority.
21.6 In the event that OGC shares the information provided under clause 21.1 or 21.3 in accordance with clause 21.5.2, any Contracting Authority (as defined in regulation 3 of the Public Contracts Regulations 2006) receiving the information shall be informed of the confidential nature of that information and shall be requested not to disclose it to any body who is not a Contracting Authority (unless required by law).
21.7 The Authority may make changes to the type of information which the Contractor is required to supply and shall give the Contractor at least one calendar month’s written notice of any such changes.
22.1 While on the Authority’s Premises the Contractor shall comply with any health and safety measures implemented by the Authority in respect of persons working on the Authority’s Premises.
22.2 The Contractor shall:
22.2.1 notify the Authority immediately in the event of any incident occurring in the provision of the Services on the Authority’s Premises where that incident causes any personal injury or damage to property which could give rise to personal injury.
22.2.2 take all necessary measures to comply with the requirements of the Health and Safety at Work etc. Act 1974 and any other acts, orders, regulations and codes of practice relating to health and safety which may apply to those of its employees, consultants, agents or sub-contractors that provide the Services.
22.2.3 ensure that its health and safety policy statement (as required by the Health and Safety at Work etc Act 1974) is made available to the Authority on request.
23.1 In this clause a “Force Majeure Event” means any of the following:
23.1.1 acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
23.1.2 epidemic or pandemic;
23.1.3 war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
23.1.4 terrorist attack, civil war, civil commotion or riots;
23.2 Either Party, provided that it adheres to the provisions of clause 23.3 shall not be in breach of the Contract nor liable for any failure or delay in performance of any of its obligations under the Contract (and, subject to clause 23.4 the time for that Party’s performance of its obligations shall be extended accordingly) arising from or attributable to a Force Majeure Event.
23.3 If either Party is subject to a Force Majeure Event it shall not be in breach of the Contract provided that:
23.3.1 it promptly notifies the other Party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
23.3.2 it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
23.3.3 it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under the Contract in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
23.4 If the Force Majeure Event prevails for a continuous period of more than three months, either Party may terminate the Contract by giving 10 Working Days’ written notice to the other. On the expiry of this notice period, the Contract will terminate. Such termination shall be without prejudice to the rights of either Party in respect of any breach of the Contract occurring prior to such termination.
24.1 The Authority shall be entitled to terminate the Contract, or to terminate the provision of any part of the Services, by giving to the Contractor not less than one calendar month’s notice in writing to that effect. Once it has given such notice, the Authority may extend the period of notice at any time before it expires, subject to agreement on the level of Services to be provided by the Contractor during the period of extension.
25.1.1 the Contractor commits a Material Default; or
25.1.2 the Contractor commits a breach of contract which is not capable of being remedied; or
25.1.3 the Contractor commits a breach of contract which is capable of being remedied but which it has failed to remedy within 10 Working Days of receipt of a notice from the Authority requiring that breach to be remedied; or
25.1.4 the Contractor commits repeated breaches of its obligations under this Contract (whether of the same or different obligations and regardless of whether these breaches are cured), the cumulative effect of which is a Material Default; or
25.1.5 the Contractor fails to pay any amount due to the Authority under the Contract on the due date for payment and remains in default more than 10 Working Days after being required in writing to make such payment;
then without prejudice to any other rights that have accrued under the Contract or any other rights or remedies it may have the Authority may by giving written notice to the Contractor immediately terminate all or part of this Contract. Such termination by the Authority will be without liability to the Contractor.
26.1.1 the Contractor suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) had any partner to whom any of the foregoing apply; or
26.1.2 the Contractor commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Contractor with one or more other companies or the solvent reconstruction of the Contractor; or
26.1.3 a petition is filed, a notice is given, a resolution is passed, or an order is made for or in connection with the winding up of the Contractor other than for the sole purpose of a scheme for a solvent amalgamation of the Contractor with one or more other companies or the solvent reconstruction of the Contractor; or
26.1.4 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Contractor; or
26.1.5 a floating charge holder over the Contractor’s assets has become entitled to appoint or has appointed an administrative receiver; or
26.1.6 a person becomes entitled to appoint a receiver or a receiver is appointed over the Contactor’s assets; or
26.1.7 the Contractor, being an individual, is the subject of a bankruptcy petition or order, dies or by reason of illness or incapacity is incapable of managing their own affairs; or
26.1.8 a creditor or encumbrancer of the Contractor attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against the whole or any part of the Contractor’s assets and such attachment or process is not discharged with 10 Working Days; or
26.1.9 the Contractor suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
26.1.10 the Contractor undergoes a change of control, where “control” has the meaning given in section 416 of the Income and Corporation Taxes Act 1988; or
26.1.11 any event occurs, or proceeding is taken with respect to the Contractor in any jurisdiction to which the Contractor is subject that has an effect equivalent or similar to any of the events mentioned in clauses 26.1.1 to 26.1.10 inclusive
then without prejudice to any other rights that have accrued under the Contract or any other rights or remedies it may have the Authority may by giving written notice to the Contractor immediately terminate all or part of this Contract. Such termination by the Authority will be without liability to the Contractor.
27.1 Where following the performance or termination of the Contract the Authority intends to acquire services similar to the Services either by performing them itself or by the appointment of a replacement contractor the Contractor (assuming it does not successfully tender for the work) shall use all reasonable endeavours to ensure that the transition is undertaken with the minimum of disruption to the Authority.
27.2 The Contractor shall co-operate fully during the transition period and provide full access to all non-confidential data, documents, manuals, working instructions, reports or other information which the Authority considers it necessary to see.
27.3 In addition to the legal obligation to provide “employee liability information” under regulation 11 of TUPE the Contractor will, in respect of any person at that time employed by it and assigned to the economic grouping of employees working on the Contract, provide the Authority with information equivalent to employee liability information whenever requested to do so in writing by the Authority (provided that the Authority shall not make such a request more than once in any 6 month period).
28.1 The Parties shall attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with the Contract within 20 Working Days of either Party notifying the other of the dispute. If necessary such efforts shall involve the escalation of the dispute to the finance director (or equivalent) of the Contractor and the Authority’s Head of Procurement.
28.2 Nothing in this dispute resolution procedure shall prevent the Parties from seeking from any court of the competent jurisdiction an interim order restraining the other Party from doing any act or compelling the other Party to do any act.
28.3 If the dispute cannot be resolved by the Parties pursuant to clause 28.1 the dispute shall be referred to mediation pursuant to the procedure set out in clause 28.5 unless the Authority considers that the dispute is not suitable for resolution by mediation or the Contractor does not agree to mediation.
28.4 The performance of the Contract shall not be suspended, cease or be delayed by the reference of a dispute to mediation and the Contractor (and its employees, consultants, agents or sub-contractors) shall comply fully with the requirements of the Contract at all times.
28.5 The procedure for mediation is as follows:
28.5.1 a neutral adviser or mediator (“the Mediator”) shall be chosen by agreement between the Parties. If they are unable to agree upon a Mediator within 10 Working Days after a nomination of a Mediator by one Party to the other or if the Mediator agreed upon is unable or unwilling to act, either Party shall within 10 Working Days from the date of the nomination or within 10 Working Days of discovering that the nominated Mediator is unable or unwilling to act, apply to the Centre for Effective Dispute Resolution (“CEDR”) to appoint a Mediator.
28.5.2 The Parties shall within 10 Working Days of the appointment of the Mediator meet with the appointed Mediator in order to agree a programme for the exchange of all relevant information and the structure to be adopted for negotiations to be held. If considered appropriate, the Parties may at any stage seek assistance from CEDR to provide guidance on a suitable procedure.
28.5.3 Unless otherwise agreed in writing, all negotiations connected with the dispute and any settlement agreement relating to it shall be conducted in confidence, save that details of the settlement may be given to any Central Government department without the permission of the Contractor, and without prejudice to the rights of the Parties in any future proceedings.
28.5.4 If the Parties reach agreement on the resolution of the dispute, the agreement shall be reduced to writing and shall be binding on the Parties once it is signed by their duly authorised representatives.
28.5.5 Failing agreement, either of the Parties may invite the Mediator to provide a non-binding but informative opinion in writing. Such an opinion shall be provided on a without prejudice basis and shall not be used in evidence in any proceedings relating to the Contract without the prior written consent of both Parties.
28.5.6 If the Parties fail to reach agreement in the structured negotiations within 45 Working Days of the Mediator being appointed, or such longer period as may be agreed by the Parties in writing, then any dispute or difference between them may be referred to the Courts.
29.1 All notices required to be given by either Party to the other under the Contract shall be in writing and shall be delivered personally, or sent by fax, pre-paid first-class post or recorded delivery or by commercial courier to the address of the receiving Party set out in the Contract or as otherwise specified by the relevant Party by notice in writing to the other Party.
29.2 Any notice shall be deemed to have been duly received:
29.2.1 if delivered personally, when left at the address referred to in the Contract or Notice; or
29.2.2 if sent by fax, on transmission to the correct fax number; or
29.2.3 if sent by pre-paid first-class post or recorded delivery, at 9.00 a.m. on the second Working Day after posting; or
29.2.4 if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
29.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
30.1 No amendment or variation of the Contract shall be valid unless it is in writing and signed by the Authority and the Contractor.
31.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the specific circumstances for which it is given.
31.2 No failure or delay by either Party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
32.1 If any provision of the Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of the Contract which shall remain in full force and effect.
32.2 The Parties agree, in the circumstances referred to in clause 32.1, to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision. The obligations of the Parties under any invalid or unenforceable provision of the Contract shall be suspended whilst an attempt at such substitution is made.
33.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, nor authorise either party to make or enter into any commitments for or on behalf of the other party.
34.1 A person who is not a Party to the Contract shall not have any rights under or in connection with it.
35.1 The Contract constitutes the whole agreement between the Parties and supersedes all previous agreements between the Parties relating to its subject matter.
35.2 Each Party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Contract.
35.3 Nothing in this clause 35 shall limit or exclude any liability for fraud.
35.4 In the event of any conflict or inconsistency between these terms and conditions and any specific terms of the Contract the latter shall prevail.
36.1 The Contract shall be governed by and construed in accordance with English Law and shall be subject to the exclusive jurisdiction of the courts of England and Wales.
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