Standard Terms and Conditions of Contract

Transcription

1 Standard Terms and Conditions of Contract If you need this information in another language or format, please contact us to discuss how we can best meet your needs. Phone:

2 Standard Terms and Conditions of Contract A General Provisions A1. Definitions and Interpretation A2. Period A3. Contractor s Status and Conduct A4. Council s Obligations A5. Notices A6. Publicity A7. Audit A8. Unauthorised Supply A9. Conflict of Interest A10. Disruption A11. Mistakes in information A12. Environmental Requirements A13. Ethical Requirements A14. Intellectual Property Rights A15. Confidentiality A16. Best Value A17. TUPE A18. Ordering Procedures A19. Cancellation or Variation of Purchase Order A20. Provision and Removal of Equipment A21. Complaints A22. Staff B. Payment B1. Price B2. Payment and VAT B3. Payment of a Sub-contractor B4. Recovery of Sums Due B5. Fluctuating Offer B6. Price Book C. Control of the Contract C1. Assignation

3 C2. Sub-contracting C3. Waiver C4. Variation C5. Severability C6. Remedies in the event of inadequate performance C7. Remedies C8. Monitoring of Contract Performance C9. Entire Agreement D. Liabilities D1. Liability and Indemnity D2. Insurance D3. Warranties and Representations E. Termination E1. General E2. Termination on Default E3. Termination on insolvency or change of control E4. Termination due to corrupt or illegal practices E5. Termination due to Fraud E6. Termination on Conflict of Interest E7. Termination upon ceasing to be registered under SIA Approved Contractor Scheme E8. Termination due to information received from Strathclyde Police under the Protocol E9. Force Majeure E10. Consequences of expiry/termination E11. Termination due to non-payment of PAYE or National Insurance Contributions F. Dispute Resolution F1. Dispute Resolution G. Statutory Obligations G1. Law of Scotland G2. Prevention of Corruption G3. Prevention of Fraud

4 G4. Health and Safety G5. Disclosure and Freedom of Information G6. Equalities G7. Human Rights G8. Data Protection G9. Security Industry Authority Licence G10. SIA Approved Contractor Scheme G11. Protection of Vulnerable Groups employer engaging others G12. Protection of Vulnerable Groups individual not engaging others G13. Tax Arrangements X. Supplies X1. Specification X2. Discontinued Goods X3. Delivery X4. Packaging X5. Guarantees X6. Quality X7. Ownership and Risk X8. Rejection of Goods X9. Non-Delivery X10. Estimated/Minimum Quantities X11. Inspection of Contractor s premises Z Services Z1. Services to be provided Z2. Key Personnel Z3. Manner of carrying out the Services Z4. Notification of inability to provide the Services Z5. Nationality Checking Requirements

5 The following sections apply whether the Contract is for the supply of goods or the provision of services A General Provisions A1 Definitions and Interpretation A1.1 For the purposes of the Contract:- Approval means the prior written consent of the Council which shall not be unreasonably withheld or delayed Best Value means the statutory duty on a local authority to secure best value as specified in Part 1 of the Local Government in Scotland Act 2003 and includes the effect of or implications of any judicial interpretation thereof, regulations made thereunder and any guidance issued by the Scottish Ministers in terms thereof Commencement Date means the date advised to the Contractor by the Council as the commencement date notwithstanding the date or dates of signature of the Contract by the Council and the Contractor Confidential Information means any information regarding any Service User gained in the course of providing the Services or other information agreed between the Council and the Contractor in the Tender as being confidential for the purposes of the Contract. Contract means this written agreement between the Council and the Contractor consisting of the following clauses, the Schedule(if any)and any written variation or amendment thereof, the ITT, the Tender and the Letter of Award. Contractor means the party identified in the Letter of Award Contract Period means the period from the Commencement Date to:-

6 (a) (b) (c) the date of expiry set out in clause A2; or such earlier date of termination or partial termination of the Contract in accordance with the law or the provisions of the Contract; or following an extension, if any, the date of expiry of the Extended Period Council means South Lanarkshire Council established in terms of the Local Government etc (Scotland) Act 1994 and having their principal offices at Council Offices, Almada Street, Hamilton, ML3 0AA Data Controller shall have the meaning assigned to it by the DPA Date for Delivery means the date and time specified in the Purchase Order, or otherwise agreed between the Parties, as being the time when the Goods are proposed to be Delivered. Delivery means the time at which the Goods/Services have been physically supplied to the Council and Deliver and Delivered shall be construed accordingly. Unless otherwise provided in the relevant Purchase Order, Delivery shall include the unloading, stacking or (where appropriate) installation of the Goods by the Staff or the Contractor s Sub-contractors or carriers at such place as the Council shall reasonably direct. DPA means the Data Protection Act 1998 and any legislation primary or secondary amending it. Default means any breach of the obligations of the relevant Party (including but not limited to fundamental breach or breach of a fundamental term) or any other default, act, omission, negligence or negligent statement of the relevant Party or the Staff in connection with or in relation to the subject matter of the Contract and in respect of which such Party is liable to the other.

7 "Disclosure Scotland" means the Disclosure Bureau empowered under Part V of the Police Act 1997 to issue criminal record certificates and enhanced criminal record certificates and based for the time being at the Scottish Criminal Record Office, Pacific Quay, Glasgow, G51 1EA Disclosure Record means a (a) Scheme Record, (b) Short Scheme Record or (c) Statement of Scheme Membership disclosed under Part 2 of the PVG Act. Employee Liability Information means the information a Contractor is required to provide in the event of a relevant transfer under TUPE Enhanced Disclosure means an enhanced criminal record certificate issued by Disclosure Scotland under Part V of the Police Act 1997 Environmental Information Regulations means the Environmental Information (Scotland) Regulations 2004 and any guidance and/or codes of practice issued by the Scottish Information Commissioner or relevant government department in relation to such legislation Equal Opportunities means the prevention, elimination or regulation of discrimination between persons on the grounds of sex or marital status, on racial grounds or on grounds of disability, age, sexual orientation, language or social origin or of other personal attributes, including religion (or lack thereof), beliefs or opinions, such as religious beliefs or political opinions or lack of such religious or philosophical beliefs

8 Equipment means any equipment supplied and used by the Contractor (but not hired, leased or loaned from the Council) in the performance of its obligations under the Contact. Extended Period means the period of extension offered by the Council in terms of clause A2.2 and accepted by the Contractor. FOISA means the Freedom of Information (Scotland) Act 2002 and any subordinate legislation made under this Act from time to time together with any guidance and/or codes of practice issued by the Scottish Information Commissioner or relevant government department in relation to such legislation. Force Majeure means any event or occurrence which is outside the reasonable control of the Party concerned and which is not attributable to any act or failure to take preventative action by that Party,including fire, flood, violent storm,pestilence,explosion,malicious damage, armed conflict, acts of terrorism,nuclear,biological or chemical warfare or any other disaster,natural or man-made,but excluding: any industrial action occurring within the Contractor s or any Subcontractor s organisation; or the failure by any Sub-contractor to perform its obligations under any Sub-contract. Fraud means any offence under laws creating offences in respect of fraudulent acts in relation to the Contract or defrauding or attempting to defraud or conspiring to defraud the Crown. Good Industry Practice means standards, practices, methods and procedures conforming to the law and the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in a similar type of undertaking under the same or similar circumstances.

9 Goods means the goods to be supplied in terms of the Contract as set out in the Purchase Order Information for the purposes of Clause G5 of the Contract has the meaning given under section 73 of the FOISA. Intellectual Property Rights means patents, inventions, trademarks, service marks, logos, design rights (whether registerable or otherwise), applications for any of the foregoing, copyright, database rights, domain names, trade or business names,moral rights and other similar rights or obligations whether registerable or not in any country (including but not limited to the United Kingdom) and the right to sue for passing off ITT means the Council s invitation to Contractors for formal offers to supply it with the Goods /provide the Services and shall include any pre-qualification questionnaire issued by the Council Key Personnel means those persons named in the Specification the ITT and/or the Tender as being key personnel. Letter of Award means the letter issued by the Council to the successful Contractor accepting their Tender in relation to the Contract Licensable Conduct has the meaning assigned to it by the Private Security Industry Act 2001 Month means calendar month Nominated Person means the person appointed by the Contractor and the Council to liaise with each other in relation to all matters connected with the supply of the Goods/ provision of the Services under the Contract

10 Officials means in relation to a company its directors and in relation to a partnership its partners Party means a party to the Contract Personal Data shall have the meaning assigned to it by the DPA Premises means the location where the Goods/Services are to be Delivered Price means the sum specified in the Letter of Award payable by the Council to the Contractor in exchange for the supply of the Goods/ provision of the Services as detailed in clause B1 or where pursuant to a Purchase Order means the sum payable by the Council to the Contractor in exchange for the supply of the ordered Goods/the provision of the ordered Services, charged at the rates specified in the Pricing Schedule. Price Book means a document or on-line provision produced and updated by the Contractor in consultation with and agreed by the Council that provides the Council with prices for the Services Pricing Schedule means the schedule of rates or prices submitted by the Contractor in its Tender in respect of the Goods/Services. Process shall have the meaning assigned to it by the DPA Processing shall have the meaning assigned to it by the DPA Protocol means the Protocol entered into between the Chief Constable of Police Scotland and the Council dated 19 October 2010 as extended or substituted therefor which (1) regulates the disclosure of sensitive personal data about certain individuals by Police Scotland to the Council and the subsequent processing of that information by the Council and (ii) allows Police Scotland, in response to a request by the Council, at their discretion, to provide the Council with information

11 regarding the suitability of organisations, their Officials and Sub- Contractors to provide works or Services to the Council Purchase Order means the purchase order for Goods/Services issued by the Council to the Contractor. For the avoidance of doubt each Purchase Order issued by the Council to the Contractor in connection with the Contract shall be derived from the Contract and shall incorporate the terms and conditions of the Contract. Any other terms and conditions included within the Purchase Order or referenced by the Purchase Order shall be null and void and have no effect insofar as they are inconsistent with the Contract. PVG Act means the Protection of Vulnerable Groups (Scotland) Act 2007 and any amendments thereto, all secondary legislation made thereunder and any guidance issued by the Scottish Government Quality Standards means unless otherwise specified in the ITT the quality standards published by BSI British Standards, the National Standards Body of the United Kingdom, the International Organisation for Standardisation or other reputable or equivalent body (and their successor bodies) that a skilled and experienced operator in the same type of industry or business sector as the Contractor would reasonably and ordinarily be expected to comply with and any other applicable quality standards, Government codes of practice and guidance. Regulated Work has the meaning assigned in terms of Sections 91 and Schedules 2 and 3 of the PVG Act Relevant Transfer shall have the meaning assigned to it by TUPE Replacement Contractor means any third party contractor appointed by the Council to supply any Goods/ provide any Services which are substantially similar to any

12 of the Goods/Services and which the Council receives in substitution for any of the Goods/Services following the expiry, termination or partial termination of the Contract. Requests for Information means for the purposes of clause G5 of the Contract any apparent request for information under FOISA or the Environmental Information Regulations Schedule means the Schedule, if any, annexed and executed as relative to and forming part of the Contract Scheme means the Scheme established under and in terms of the PVG Act. Scheme Member means an individual who is a member of the Scheme administered by the Scottish Ministers in terms of Section 44 of the PVG Act Scheme Record means a document comprising (a) a Scheme Member's Statement of Scheme Membership, and (b) vetting information about the Scheme Member which Ministers discover as a result of enquiries or arrangements made under section 47 of the PVG Act. Services means the Services to be provided by the Contractor in terms of the Contract as detailed in the Schedule/Purchase Order Service User means a person who benefits from the Services to be provided in terms of the Contract. Seventh Data Protection Principle shall mean the Seventh Principle set out in Part 1 of Schedule 1 to the DPA

13 Short Scheme Record means a document which (a) includes a Scheme Member's Statement of Scheme Membership, (b) specifies the date on which the Scheme Member's Scheme Record was last disclosed under section 52 of the PVG Act, (c) says whether any vetting information was included in the Scheme Member's Scheme Record on that date, (d) if any new vetting information has been included in the Scheme Member's Scheme Record since that date, says when that information was so included, and (e) if any vetting information has been removed from the Scheme Member's Scheme Record since that date, says when that information was so removed. Specification means the detailed description of the Goods/Services all as more particularly described in the ITT and/or the Tender or as agreed between the Parties Staff means all persons employed or appointed by the Contractor to perform its obligations under the Contract together with the Contractor s agents, suppliers and Sub-contractors used in the performance of its obligations under the Contract Statement of Scheme Membership means a document which (a) sets out the type of Regulated Work in relation to which an individual participates in the Scheme established by the PVG Act, (b) confirms that the individual is not barred from doing that work, (c) says if Ministers are considering whether to list the individual in relation to that type of work, and (d) contains such other information about the individual as may be prescribed Sub-contract means any contract or agreement or proposed contract or agreement between the Contractor and any third party whereby that third party agrees to supply the Goods/provide the Services or any part thereof to the Contractor Sub-contractor means the third party with whom the Contractor or its agents enters into a Sub-contract

14 Subject Access Request means a request for information made in terms of section 7 of the DPA Tender means the document(s) submitted by the Contractor to the Council in response to the ITT. TUPE means the Transfer of Undertakings (Protection of Employment) Regulations 2006 Variation means any amendment to or variation of any of the terms of the Contract proposed by the Council in terms of clause C4. VAT means value added tax in accordance with the provisions of the Value Added Tax Act 1994 Working Day means any day excluding Saturday and Sunday and statutory holidays as fixed by the Council. A1.2 The interpretation and construction of this Contract shall be subject to the following provisions:- (a) Any reference in the Contract to any Statute,Statutory Instrument,order,regulation or other similar instrument shall be construed as a reference to the Statute, Statutory Instrument,order, regulation or instrument or part thereof as amended by any subsequent enactment,modification,order, regulation or instrument as subsequently amended or re-enacted; (b) References to the singular include the plural and vice versa and references to male include female unless the context otherwise requires; (c) Clause headings and sub headings are for reference purposes only and shall not affect the construction of anything in the Contract. Reference to a clause is a reference to the whole of that clause unless stated otherwise; (d) Reference to any person shall include natural persons and partnerships, firms and other incorporated bodies and all other legal persons of whatever kind and however constituted and their successors and permitted assignees or transferees and

15 (e) The words include, includes and including are to be construed as if they were immediately followed by the words without limitation A1.3 The provisions of the Interpretation Act 1978 with respect to interpretation and construction shall apply mutatis mutandis. A2. Period A2.1 The Contract shall start on the Commencement Date and shall continue for the period specified in the Letter of Award when it will terminate automatically without the need for notice unless terminated earlier or extended in accordance with the provisions of the Contract. A2.2 In the event of the Council having indicated in the ITT that the Council has a discretion to extend the Contract the Council shall carry out a review of the Contractor s performance as detailed in clause C8 and may, at their sole option, offer to extend the Contract for the period specified in the ITT subject to the availability of funding and the Council having secured all necessary approvals. A2.3 In the event of the Council exercising its discretion to extend the Contract in the circumstances set out in clause A2.2 the provisions of the Contract will apply subject to any Variation agreed between the Parties in terms of clause C4 throughout the Extended Period A3 Contractor s Status and Conduct A3.1 At all times during the Contract Period the Contractor shall be an independent contractor and nothing in the Contract shall create a contract of employment, a relationship of agency or partnership or a joint venture between the Parties and accordingly neither Party shall be authorised to act in the name of, or on behalf of, or otherwise bind the other Party save as expressly permitted by the terms of the Contract. A3.2 The Contractor shall conform to Good Industry Practice when performing its obligations under the Contract and shall not at any time do or fail to do anything which may bring the standing or reputation of the Council into disrepute or attract adverse publicity and shall have due regard to this when supplying the Goods/providing the Services.

16 A4. Council s Obligations A4.1 Save as otherwise expressly provided the obligations of the Council under the Contract are obligations of the Council in its capacity as a contracting party and nothing in the Contract shall operate as an obligation upon, or in any other way fetter or constrain the Council in any other capacity, nor shall the exercise by the Council of its duties and powers in any other capacity lead to any liability under the Contract (howsoever arising) on the part of the Council to the Contractor. A4.2 The Council shall provide such assistance and information as may reasonably be required by the Contractor to enable the Contractor to perform its obligations under the Contract. A5. Notices A5.1 Except as otherwise expressly provided within the Contract, no notice or other communication from one Party to the other shall have any validity under the Contract unless made in writing by or on behalf of the Party concerned. A5.2 Any notice or other communication which is to be given by either Party to the other shall be given by letter sent by first class recorded delivery post addressed to the Nominated Person. A5.3 Provided the relevant notice or communication is not returned as undelivered the notice or communication shall be deemed to be duly served 48 hours after posting. In proving service it shall be sufficient to prove that the envelope containing the notice was duly addressed to the addressee in accordance with clause A5.2 and accepted by the Post Office for posting. A5.4 Either Party may change its address for service by serving a notice in accordance with this clause. A6 Publicity A6.1 The Contractor shall not make any press announcements or publicise the Contract or any part thereof in any way, nor use the Council s name or brand in any promotional or marketing material or announcements except with the Approval of the Council.

17 A6.2 The Contractor shall take such reasonable steps to ensure that the Contractor s Staff comply with the terms of clause A6.1 A7. Audit A7.1 The Contractor shall provide the Council with access to all relevant records, including administration, management and staff records, in connection with all reasonable purposes associated with the Contract during normal working hours. In making such requests the Council shall act reasonably and shall treat all records provided in response to such requests as strictly private and confidential. The Contractor shall cooperate fully with all Council staff and other persons authorised by them for the purposes of ensuring and evaluating the supply of the Goods/ provision of the Services by the Contractor in accordance with the Contract. A8 Unauthorised Supply A8.1 The Contractor must not supply any Goods/provide any Services to or for any department, officer or agent of the Council without first receiving a Purchase Order for such Goods/Services issued by an authorised officer of the Council. A8.2 The Council will not be liable for the cost of any Goods supplied /Services provided as the case may be by the Contractor unless such Goods/ Services are detailed in the Schedule/Purchase Order. A9 Conflict of Interest A9.1 The Contractor will not act for any person or body or otherwise in any way which conflicts actually or potentially with the Contractor s obligations in terms of the Contract. A9.2 The Contractor will notify the Council immediately of any actual or potential conflict of interest and the parties shall discuss whether the Contractor can continue to fulfill its obligations under the Contract or whether the Contract should be terminated

18 A9.3 In the event of the Contractor failing to inform the Council of any actual or potential conflict of interest and the Council becoming aware of such actual or potential conflict of interest the Council shall be entitled to terminate the Contract with immediate effect by notice in writing. A10. Disruption A10.1 The Contractor shall take reasonable care to ensure that in the performance of its obligations under the Contract it does not disrupt the operations of the Council, its employees or any other contractor employed by the Council. A10.2 The Contractor shall immediately inform the Council of any actual or potential industrial action, whether such action is being taken/is to be taken by their own Staff or others, which affects or might affect its ability at any time to perform its obligations under the Contract. A10.3 In the event of industrial action by its Staff, the Contractor shall seek Approval from the Council in respect of its proposals to continue to perform its obligations under the Contract. A10.4 If the Contractor s proposals referred to in clause A10.3 above are considered insufficient or unacceptable by the Council acting reasonably, then the Council shall have the right to terminate the Contract with immediate effect by notice in writing. A10.5 If due to no fault of the Contractor the Contractor is temporarily unable to fulfil the requirements of the Contract owing to disruption of the normal business of the Council, the Contractor may request the Council s Approval for a reasonable allowance of time to fulfill their obligations under the Contract. A11 Mistakes in information A11.1 The Contractor shall be responsible for the accuracy of all drawings, documentation and information supplied to the Council by the Contractor in connection with the supply of the Goods/provision of the Services and shall pay the Council any extra costs occasioned by any discrepancies, errors or omissions therein.

19 A12. Environmental Requirements A12.1 The Contractor shall satisfy themselves that no Goods supplied under the Contract will endanger the health of any person, will cause significant damage to the environment during manufacture, use or disposal, will consume a disproportionate amount of energy during manufacture, use or disposal, will cause unnecessary waste because of over packaging or because of an unusually short shelf life or will contain materials derived from threatened species or threatened environments. A12.2 The Contractor shall:- A A A consider and wherever possible address sustainability and accessing issues when Delivering the Goods; and have regard to the Council s own sustainability, accessibility and corporate social responsibility standards and targets when Delivering the ordered Goods; and give due regard to environmental considerations in meeting their obligations under the Contract throughout the Contract Period, including the use of materials that are or can be recycled and materials that are proven to be environmentally safe. A13. Ethical Requirements A13.1 The Contractor shall perform its obligations under the Contract in accordance with the Council s ethical sourcing policy which is to promote appropriate standards regarding legal, ethical and social issues including, for example, health and safety, security of employment rights,equality,corruption and fair trade,in particular in low cost or developing countries. If requested by the Council the Contractor shall provide the Council with a copy of its ethical sourcing policy A14. Intellectual Property Rights A14.1 It shall be a condition of this Contract that, except to the extent that the Goods are made up in accordance with designs provided by the Council, none of the Goods will infringe on any Intellectual Property Rights and the Contractor shall indemnify the Council against all actions, claims, demands, losses, charges, costs and expenses which the Council may

20 suffer or incur as a result of, or in connection with, any breach of this Clause. A14.2 All Intellectual Property Rights in the Specification or other material provided to or made available to the Contractor by the Council pursuant to this Contract shall remain vested solely in the Council and the Contractor shall not (except to the extent necessary for the implementation of this Contract) without the Approval of the Council use or disclose any such Specification or material (whether or not relevant to this Contract) which the Contractor may obtain pursuant to this Contract in any advertisement without the Council s Approval. A14.3 The Contractor grants to the Council a royalty free, irrevocable and nonexclusive licence (with a right to sub-licence) to use any Intellectual Property Rights that the Contractor owned or developed prior to the Commencement Date and which the Council reasonably requires in order to exercise its rights and take the benefit of this Contract including the Services provided A14.3 The provisions of this Clause shall apply during the Contract Period, the Extended Period (if any) and after its termination, howsoever arising. A15. Confidentiality A15.1 The Contractor:- (i) shall treat all Confidential Information belonging to the Council or any Service User as confidential and safeguard it accordingly; and (ii) shall not disclose any Confidential Information belonging to the Council or any Service User to any other person without the Approval of the Council, except to such persons and to such extent as may be necessary for the performance of the Contract or except where disclosure is otherwise expressly permitted by the provisions of this Contract. A15.2 The Contractor shall take all necessary precautions to ensure that all Confidential Information obtained from the Council or any Service User under or in connection with the Contract:- (i) is given only to such of its Staff and professional advisors or consultants engaged to advise it in connection with the Contract as is strictly

21 (ii) necessary for the performance of the Contract and only to the extent necessary for the performance of the Contract; is treated as confidential and not disclosed (without Approval of the Council) or used by any Staff or such professional advisors or consultants' otherwise than for the purposes of the Contract. A15.3 Where it is considered necessary in the opinion of the Council, the Contractor shall (i) ensure that Staff or such professional advisors or consultants sign a confidentiality undertaking before commencing work in connection with the Contract. (ii) provide a copy of the draft confidentiality undertaking for Approval prior to it being signed and shall provide a copy of the signed undertaking to the Council A15.4 The Contractor shall not use any Confidential Information received otherwise than for the purposes of the Contract. A15.5 The provisions of Clauses A15.1 to A15.4 shall not apply to any Confidential Information received by the Contractor from the Council:- (i) which is or becomes public knowledge (otherwise than by breach of this clause); (ii) which was in the possession of the Contractor, without restriction as to its disclosure, before receiving it from the Council; (iii) which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; (iv) is independently developed without access to the Confidential Information; or (v) which must be disclosed pursuant to a statutory or legal obligation placed upon the Contractor. A15.6 Nothing in this clause A15 shall prevent either Party from using any techniques, ideas or know-how gained during the performance of the Contract in the course of its normal business, to the extent that this does not result in a disclosure of Confidential Information or an infringement of Intellectual Property Rights.

22 A15.7 In the event that the Contractor fails to comply with this Clause A15, the Council reserves the right to terminate the Contract with immediate effect by notice in writing. A16. Best Value A16.1 In accordance with the Council s statutory duty to secure Best Value, the Parties will work together to deliver the Contract in such a way as to achieve Best Value. A16.2 The Council and the Contractor shall co-operate throughout the Contract Period to achieve Best Value. The results of the co-operation between the Parties shall be to benefit both themselves and continually ensure Best Value in terms of cost and quality in the delivery of this Contract. In co-operating the Parties will consider suggestions from the other. A16.3 Nothing in the clause shall be construed as a commitment by the Contractor to incur nor by the Council to fund any additional costs or Goods/Services other than those which are contained within this Contract. A17. TUPE A17.1 In the event that the Council intend to retender for the Services at the expiry/termination of the Contract howsoever occurring and there being a possibility that TUPE might apply then the Council reserve the right to request the Contractor to provide the Council with the relevant Employee Liability Information anonymised as appropriate and to permit the Council to make this information available to all tenderers as part of the tender process. A17.2 In the event of the Council exercising its right in terms of clause A17.1 above the Contractor shall provide the relevant Employee Liability Information to the Council within 10 Working Days of receiving a request to do so from the Council. A17.3 The Contractor warrants that the Employee Liability Information it provides to the Council in terms of clauses A17.1 and A17.2 hereof shall, to the best of the Contractor s knowledge and belief, be complete and accurate.

23 A17.4 This clause A17 shall survive the expiry or termination of this Contract, howsoever occurring, and may be founded upon by the Council and the Contractor notwithstanding such expiry or termination A18. Ordering Procedures A18.1 The Council may during the Contract Period order Goods/Services from the Contractor by and in accordance with any specific requirements contained in a Purchase Order. A18.2 Each Purchase Order is subject to and shall be deemed to incorporate the terms and conditions of this Contract, to the exclusion of any terms and conditions which the Contractor may seek to impose under any quotation, confirmation of order, advice note, delivery note, invoice or similar document. By entering into this Contract the Contractor agrees to the application of the terms and conditions of this Contract. The Contractor and the Council agree that any other terms or conditions (whether or not inconsistent with the terms and conditions of this Contract) contained or referred to in any correspondence or any documentation submitted by the Contractor or elsewhere implied by custom, practice or course of dealing shall not apply. A18.3 The Contractor shall accept all Purchase Orders provided they comply with the terms of this Contract. The placing of a Purchase Order by the Council on the Contractor shall create a contract in respect of the relevant Goods/Services specified in the Purchase Order. A18.4 The Contractor shall provide written acknowledgement of receipt of the Purchase Order to the Council by electronic means as soon as reasonably practicable but in any event within five (5) Working Days of receipt of the same. A18.5 For the avoidance of doubt, each Purchase Order shall survive the expiration of this Contract. A19. Cancellation or Variation of Purchase Order A19.1 Any Purchase Order accepted by the Contractor may only be cancelled or varied by the Contractor at the sole discretion of the Council and on the

24 condition that the Contractor shall indemnify the Council in full against all losses, costs, damages, charges and expenses directly and properly incurred by the Council as a result of such cancellation or variation. A19.2 The Council may vary or cancel any Purchase Order in whole or in part by giving notice to the Contractor whereupon the Contractor shall discontinue all work in relation to that Purchase Order. The Council may cancel or vary any such Purchase Order: A A prior to 3pm on the date of the Purchase Order without charge; at any time following 3pm on the date of the Purchase Order, subject to payment to the Contractor of such proportion of the Price as may be fair and reasonable having regard to the value of the work done by the Contractor in relation to that Purchase Order. For the avoidance of doubt, this shall not include any payment for anticipated profits or consequential loss. A20 Provision and Removal of Equipment A20.1 Unless otherwise agreed with the Council, the Contractor shall provide all the Equipment necessary for the Delivery of the Goods/Services. Any Equipment that may be provided by the Contractor in connection with Delivery shall be provided at the Contractor's own risk without acceptance by the Council of any liability whatsoever and the Contractor shall indemnify the Council in respect of any actions, claims, demands, losses, charges, costs and expenses which the Council may suffer or incur as a result of or in connection with any damage or injury (whether fatal or otherwise) occurring in the course of delivery or installation to the extent that any such damage or injury is attributable to any action or omission of the Contractor or any Sub-contractors. The Contractor shall be wholly responsible for the haulage or carriage of the Equipment to the Premises and the removal thereof when it is no longer required and in each case at the Contractor's sole cost. Unless otherwise stated in this Contract, Equipment brought onto the Premises will remain the property of the Contractor. A20.2 Following Delivery of the Goods/Services, the Contractor shall remove the Equipment together with any other materials used by the Contractor when Delivering the Goods/Services and shall leave the Premises in a clean,

25 safe and tidy condition. The Contractor is solely responsible for making good any damage caused by the Equipment or other materials to the Premises or any objects contained thereon. A20.3 Unless otherwise expressly agreed between the Parties, no mechanical offloading, lifting, moving, or equipment other than the Equipment nor any form of assistance will be supplied to the Contractor by the Council for the purposes of offloading and placing Goods in the Premises. A21 Investigation of Complaints A21.1 Where a complaint is received about the standard of the Goods/Services or about the manner in which any Goods/Services have been Delivered or about the materials or procedures used by the Contractor or about any other matter connected with the performance of the Contractor s obligations under the Contract, then the Council shall notify the Contractor, and where considered appropriate by the Council, investigate the complaint. The Council may, in its sole discretion, uphold the complaint and take further action in terms of Clause X8 or Clause E2 as appropriate. A22 Staff A22.1 The Contractor will ensure that all Staff supplying the Goods/providing the Services shall do so with all due skill, care and diligence and shall possess such qualifications, skills and experience as are necessary for the proper supply of the Goods/provision of the Services. A22.2 If any of the Contractor s Staff are considered by the Council, in its sole discretion (acting reasonably), to be inadequately or inappropriately skilled or qualified to supply the Goods/provide the Services the Council will notify the Contractor accordingly. Those Staff or agents shall not be permitted to take part in the supply of the Goods/provision of the Services and shall be replaced by other Staff or agents whose skills and qualifications are satisfactory to the Council. A22.3 The Contractor s Staff and Sub-contractors shall not be deemed to be employees or agents of the Council and the Contractor shall at all times be liable for their actions and omissions and shall indemnify the Council in respect thereof.

26 A22.4 If the Council so requests in writing, the Contractor shall provide a list of the names and addresses of all persons who may require admission to the Premises in connection with the Contract, specifying the capacities in which they are concerned with the Contract and giving such other particulars as the Council may reasonably request. A22.5 If the Contractor fails to comply with Clause A22.4, the Council may terminate the Contract with immediate effect by notice in writing, provided always that such termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to the Council. A22.6 Staff engaged within the boundaries of the Premises shall comply with such rules, regulations and requirements (including those relating to security arrangements) as may be in force from time to time for the conduct of personnel when at or within the boundaries of those Premises, and the Contractor shall ensure that all Staff comply with such rules, regulations and requirements. A22.7 The Council may, by written notice to the Contractor, refuse to admit onto, or withdraw permission to remain on, the Premises any member of the Staff or any person employed or engaged by any member of the Staff, whose admission or continued presence would, in the reasonable opinion of the Council, be undesirable. A22.8 The decision of the Council as to whether any person is to be refused access to the Premises and as to whether the Contractor has failed to comply with Clause A22.4 shall be final and conclusive. B Payment and Contract Price B1. Price B1.1 In consideration of the Contractor s performance of its obligations under the Contract the Council shall pay the Price to the Contractor in a manner as agreed between the Parties.

27 B1.2 The Council shall, in addition to the Price and following receipt of a valid VAT invoice, pay the Contractor a sum equal to the VAT chargeable on the value of the Goods supplied/services provided in accordance with the Contract. B1.3 Without prejudice to the provisions of Clauses B1.1 and B1.2:- B1.3.1 B1.3.2 B1.3.3 B1.3.4 B1.3.5 The Contractor will charge the Council for the supply of the Goods/provision of the Services at the rates stated in the Pricing Schedule; the Contractor may invoice the Council for payment of the Price in terms of the Contract at any time after Delivery; the Contractor shall ensure that each invoice submitted contains all appropriate references and a detailed breakdown of the Goods/Services Delivered and is supported by any other documentation reasonably required by the Council to substantiate the invoice; the Council will check the accuracy of any invoice received and shall raise any queries with the Contractor promptly upon receipt of the invoice, failing which the invoice will be deemed to be accurate; the Contractor will respond promptly to any queries raised by the Council in terms of clause B1.3.4 B2 Payment and VAT B2.1 Unless otherwise stated in the Contract payment shall be made within 30 calendar days of receipt and agreement of invoices. Payment may be withheld or reduced by the Council in the event of the Contractor failing to comply with Good Industry Practice in relation to the supply of the Goods/provision of the Services without prejudice to the other rights of the Council under the Contract. B2.2 The Contractor shall indemnify the Council on a continuing basis against any liability, including any interest, penalties or costs incurred which is levied, demanded or assessed on the Council at any time in respect of the Contractor s failure to account for or to pay any VAT relating to payments made to the Contractor under the Contract. Any amounts due under this clause shall be paid by the Contractor to the Council not less than 5 Working Days before the date upon which the tax or other liability is payable by the Council.

28 B3 Payment of a Sub-contractor B3.1 Where the Contractor enters into a Sub-contract with a Sub-contractor for the purpose of performing its obligations under the Contract, it shall ensure that a provision is included in such Sub-contract which:- B3.1.1 B3.1.2 requires payment to be made of all sums due by the Contractor to the Sub-contractor within a specified period not exceeding 30 calendar days from the receipt of a valid invoice and provides that, for the purpose of payment alone, where the Council has made payment to the Contractor and the Subcontractor s invoice includes Goods/Services in relation to which payment has been made by the Council then, to the extent that it relates to such Goods/Services, the Subcontractor s invoice shall be treated as valid and payment shall be made by the Contractor to the Subcontractor without deduction; B4 Recovery of sums due B4.1 The Council reserve the right to deduct from any payment due to the Contractor under this Contract any sum or sums due to the Council by the Contractor under this or any other contract between the Council and the Contractor. B4.2 The Contractor shall make all payments due to the Council without any deduction whether by way of set off,counterclaim,discount,abatement or otherwise unless the Contractor has a valid court order requiring an amount equal to such deduction to be paid by the Council to the Contractor. B5 Fluctuating Offers B5.1 If the Council has indicated in the ITT that the Council may accept fluctuating offers and a fluctuating offer is accepted the Contractor will give the Council at least 30 calendar days prior written notice of any proposed increase in the Price due in terms of the Contract. No variation of the Price will be made without the Approval of the Council. Applications for increases to the Price must comply with any counter-inflation legislation and be accompanied by supporting documentary evidence from an independent source to the satisfaction of the Council.

29 B5.2 Any decrease in the Price which affects the Contract with the Council must be notified to the Council and will apply to the Contract with immediate effect. B6. Price Book B6.1 Where requested by the Council and /or required in terms of the ITT the Contractor shall supply the Council with a Price Book at the Commencement Date for use by the Council on a regular basis throughout the Contract Period. In addition a duly revised Price Book will be supplied by the Contractor to the Council immediately after a Variation of the Price and/or the Specification of the Goods/Services takes effect. C. Control of the Contract C1. Assignation C1.1 The Contractor shall not be entitled to assign their rights and obligations under the Contract or any part thereof except with the Approval of the Council subject to:- the Contractor s compliance with the requirements of this clause; and the Council s compliance with its procedural requirements permitting assignation C1.2 Where the Contractor proposes to assign their rights and obligations under the Contract they shall give the Council not less than 6 weeks prior written notice of their intention to assign the Contract. C1.3 To allow the Council to consider the Contractor s request to assign the Contract the Contractor shall provide the Council with such information as it may reasonably request including but not limited to :- (a) the name and address of the proposed assignee together with its relevant company/organisation details (such as its registered office and Company registration number); (b) the proposed date of transfer and details of the nature of the legal relationship between the Contractor and proposed assignee; (c) Evidence that the proposed assignee can meet the Council s requirements

30 (d) (e) Appropriate financial information relative to the proposed assignee to allow the Council to be satisfied as to their financial viability; information about any Premises the assignee intends to use for the supply of the Goods/ provision of the Services. C1.4 Until the completion of the assignation or until the Contract with the Contractor is terminated:- C1.4.1 C1.4.2 the proposed assignee must not supply the Goods/provide the Services or any part thereof and no payments will be made by the Council to the proposed assignee. the Contractor shall continue to be responsible for the performance of and shall be liable to the Council for the acts and omissions of any party to which it may assign, transfer or otherwise dispose of any obligations under the Contract as if they were the acts or omissions of the Contractor. C1.5 In the event that Approval is not granted to the assignation or the assignation does not proceed and the Contractor confirms in writing to the Council that they are unable to continue to supply the Goods/provide the Services to the reasonable satisfaction of the Council, the Council may terminate the Contract with immediate effect by notice in writing. C1.6 The Council shall be entitled to assign its rights and obligations under the Contract without requiring the consent of the Contractor. C1.7 The provisions of this Clause shall apply where the Contractor proposes to restructure their business, including the reorganisation of their legal ownership, or their operational or other structures. Where the Contractor proposes to restructure their business they shall give the Council not less than 6 weeks prior written notice of their intention to do so. For the purposes of this Clause the Council will treat the proposed restructured business as a proposed assignee, and Clauses C1.3 to C1.5 will apply. C2. Sub-contracting C2.1 The Contractor shall not be entitled to sub-contract their rights and obligations under the Contract or any part thereof except with the prior Approval of the Council subject to:-

31 (i) (ii) the Contractor s compliance with the requirements of this clause; and the Council s compliance with its procedural requirements permitting subcontracting C2.2 Where the Contractor proposes to sub-contract their rights and obligations under the Contract they shall give the Council not less than 6 weeks prior written notice of their intention to sub-contract the Contract. C2.3 To allow the Council to consider the Contractor s request to sub-contract the Contract the Contractor shall provide the Council with such information as it may reasonably request including but not limited to :- (a) The name and address of the proposed Sub - contractor together with its relevant company/organisation details (such as its registered office and Company registration number); (b) Appropriate financial information relative to the proposed Sub - contractor to allow the Council to be satisfied as to the financial viability of the proposed Sub-contractor; (c) the part(s) of the Contract the Contractor proposes to subcontract; (d) the terms of the proposed Sub -contract; (e) where appropriate, the monitoring measures to be put in place by the Contractor to ensure that the Sub - contractor complies with the terms of the Contract as if it was the Contractor. C2.4 Where the Council grants Approval to the appointment of a Subcontractor, the Contractor will:- (a) be responsible for the performance of and shall be liable to the Council for the acts and omissions of its Sub-contractors; (b) ensure that any Sub-contractor appointed complies with the requirements of the Contract ; (c) ensure that a provision is included in any Sub -contract requiring the Subcontractor to apply for the Approval of the Council to further subcontract the performance of the Contract; and (d) provide the Council with a copy of the Sub-contract if requested to do so. C2.5 If specified in the ITT that the Council will use the Protocol the following clauses will apply:-