IMPERIAL COLLEGE LONDON SUPPLY OF EQUIPMENT TERMS & CONDITIONS OF CONTRACT

Transcription

1 IMPERIAL COLLEGE LONDON SUPPLY OF EQUIPMENT TERMS & CONDITIONS OF CONTRACT 1 DEFINITIONS AND INTERPRETATION In this Contract (as hereinafter defined), except where the context otherwise requires, the following expressions shall have the meanings hereby ascribed to them 1.1 The word College" when used shall have the same meaning as Imperial College London or any wholly owned or associated subsidiary thereof so named at the address stated 1.2 The "Authorised Officer" means the person, to whom the Director (see 1.3 of this Clause) has delegated wholly or in part the functions, rights and powers conferred by this Agreement. 1.3 "Director" means Director of Finance to the College for the time being or other Director appointed from time to time by the College and notified in writing to the Contractor to act as the Director for the purposes of the Agreement in place of the said Director of Finance, to exercise the functions, rights. and powers conferred by this Agreement upon the College. 1.4 "Agreement" means the Conditions of Contract, Specifications, Priced Schedules, the Tender and the written acceptance thereof. 1.5 The "College" means Imperial College London, any successor institution, and any body to which all or part of the functions of the College may lawfully be transferred. 1.6 "Contractor" means the person or persons firm or company whose tender has been accepted by the College and includes the Contractor's personal representative successors, and permitted assigns. 1.7 "Conditions" means these conditions of Contract including the Specification and any modifications thereof duly made in accordance with their provision. 1.8 "Contract Documents" means the working documents in the Agreement comprising of the Conditions of Contract, Specifications, Pricing Schedule, and Appendices. 1.9 "Equipment" means the Equipment, accessories, materials, spare parts and plant supplied by the Contractor under this Agreement "Specification" means the supply of the Equipment and service of the Equipment and any modification thereof "Commencement Date" means the date stated in the Specification to be the commencement date for the supply of the Equipment by the Contractor "Service" means the supply and servicing of the Equipment including delivery, installation, training, technical support, servicing and maintenance requirements as set out in the specification to be carried out by the Contractor in accordance with the Agreement, and includes any modifications thereof made pursuant to these conditions. 1

2 1.13 "Contract Price" means the sum so named in the Agreement together with any additions thereto or deductions therefrom agreed in writing under the Agreement "Premises" means the location within the College to which the Equipment is to be delivered, installed and commissioned or where work is to be done "Place of Use" means that part of the premises where the Equipment is to be delivered, installed and operated Official College Order means the College s authorised Purchase Order Form issued against this Agreement which details the instructions to the Contractor "Delivery" means delivery including off loading and setting in the designated Place of Use the Equipment supplied in accordance with this Agreement as specified in the Official College Order. For the avoidance of doubt delivery shall not under any circumstances imply acceptance of the Equipment Installation means the installation of the Equipment onto the site and into the operating environment specified by the College and certified as acceptable for the installation of the Equipment in accordance with Clause 24 of this Agreement. Where the Equipment supplied in accordance with this Agreement comprises or includes computer hardware, installation shall include the loading of the operating system software and any other to be specified and to be supplied under this Agreement Completion Date means the date specified in this Agreement for the completion of the Delivery, and if applicable, the date by which it is intended that the Acceptance Certificate will be signed by the College "Month" means a calendar month 1.21 "Year" means a calendar year Words importing the singular shall include the plural and vice versa Words importing the masculine gender shall include the feminine gender and vice versa Words importing persons shall include firms and corporations and vice versa Reference to employees of the Contractor shall be deemed to include the Contractor's agents and subcontractors unless the context otherwise requires Headings of Clauses should not affect the interpretation of such clauses The Contract shall be governed by and construed in accordance with English Law A reference to any Act of Parliament, or to any Order, Regulation. Statutory Instrument or the like shall be deemed to include a reference to any amendment or reenactment of the same. 2 CONTRACT DOCUMENTS 2.1 Except as otherwise expressly provided, the Contract Documents are to be taken as mutually explanatory to one another. Any ambiguities or discrepancies, shall be resolved by the Authorised Officer who shall 2

3 thereupon issue to the Contractor appropriate instructions in writing and the Contractor shall carry out and be bound by such instructions. 2.2 Following the formation of a binding agreement, no deletion from, addition to, or variation of the Conditions shall be valid or of any effect unless agreed in writing and signed by the Director personally or such other representative as the Director may in writing appoint and by a duly authorized representative of the Contractor. 3 SUFFICIENCY OF INFORMATION AND TENDER 3.1 The Contractor shall be deemed to have satisfied itself before submitting its tender as to the accuracy and sufficiency of the rates and prices stated by the Contractor in its tender which shall cover all the Contractor s obligations under the Agreement and shall be deemed to have taken into account any information in connection therewith which may have been provided by the College and to have obtained for itself all necessary information as to risks, contingencies and any other circumstances which might reasonably influence or affect the Contractor s tender. 4 DELAYS ATTRIBUTABLE TO THE CONTRACTOR 4.1 Any time or period for delivery, dispatch, installation and/or completion shall be the essence of this Agreement. If the Contractor fails to complete: any specific portion of the installation by the date(s) specified in the Programme of Work (or such revised dates as may be agreed in accordance with Clause 18 of this Agreement) the installation of the Equipment by the Completion Date (or such revised dates as may be agreed in accordance with Clause 17 of this Agreement) the College shall have the right to either: cancel any specific Official College Order issued against this Agreement and/or terminate this Agreement whereupon the College s rights shall be as described in Clause 14 hereof, or proceed with the fulfillment of the Official College Order and/or this Agreement whereupon the College shall have the right to recover any losses which they may have suffered from the Contractor as set out in Clause 4.3 hereof It shall be for the College to notify the Contractor of their intention to cancel the Official College Order and/or terminate this Agreement or proceed with fulfilment of the Agreement, such decision being at the sole and absolute discretion of the College which shall be full and final. 4.2 In the event that the College shall elect to proceed with the fulfillment of this Agreement, and the College shall have suffered a loss, then without prejudice to the College s rights as aforesaid the College shall have the right to deduct, as Liquidated and Ascertained Damages and not by way of a penalty, from the Contract Price a sum equivalent to 1% (one per cent) of the total Contract Price stated on the face of the Official College Order for each week or part thereof between the Completion Date and the Acceptance Date. Any such deduction shall be in full satisfaction for the failure of the Contractor as aforesaid. 3

4 4.3 In any event the amount so deducted shall not exceed a maximum of ten per cent (10%) of the total Contract Price as stated on the order and/or in the schedule to this Contract. Any such deduction shall be in full satisfaction for the failure of the Contractor as aforesaid. 4.4 The rights of the College under this condition shall be without prejudice to any other of its rights under this Agreement. 5 CONFIDENTIALITY 5.1 The Contractor shall not and shall ensure that its employees do not divulge to any third party any information, including the Contract Documents or information contained therein, which comes into its or their possession in the course of providing the Equipment. 5.2 The Contractor shall indemnify and keep indemnified the College against all actions, claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect of any breach by the Contractor of this Clause 5. 6 AGENCY 6.1 Neither the Contractor nor its employees shall in any circumstances hold itself or themselves out as being, the servant or agent of the College, nor in any circumstances hold itself or themselves out as being, authorised to enter into any contract on behalf of the College, or in any other way to bind the College to the performance, variation, release or discharge of any obligations. 7 OBSERVANCE OF STATUTORY REQUIREMENTS 7.1 The Contractor shall comply with all statutory and other provisions to be observed and performed in connection with the supply of the Equipment and shall indemnify the College against all actions, claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect of any breach by the Contractor of this Clause The Contractor shall at all times and at it s own cost take all such steps and precautions as are necessary to protect the health and safety of all persons employed by it. Without limitation to the foregoing, the Contractor shall comply with the requirements of the Health and Safety at Work etc Act, 1974 and of all Statutory Instruments and Codes of Practice made thereunder (any amendments or re-enactment s thereof) and of all other Acts, EC Directives, Regulations, Orders, Directions, Bye-laws, Codes of Practice and Working Rules or Safety Manuals for the appropriate industry which pertain to the health, safety or welfare of employed persons. 8 EQUAL OPPORTUNITIES 8.1 The Contractor shall, in performing the Services comply with the requirements of the Race Relations (Amendment) Act 2000 and all relevant codes of practice issued by the Commission for Racial Equality, and so far as practicable operate an equal opportunities policy which complies with the practical guidance and recommendations contained in the said codes of practice. 9 ASSIGNMENT & SUB-CONTRACTING 9.1 The College shall be entitled to assign the benefit of the Contract or any part thereof and shall give written notice of any assignment to the Contractor. 4

5 9.2 The Contractor shall not 10 NOTICES assign the Contract or any part thereof or the benefit or advantage of the Contract or any parts thereof to any person whatsoever, other than as provided for in this Agreement; Sub-Contract the supply of the Equipment or any part thereof to any person without the previous written consent of the College, which consent shall be in the discretion of the College and if given, shall not relieve the Contractor from any liability or obligation under the Agreement and the Contractor shall be responsible for the acts, default or neglect of any sub-contractor, its employees or agents in all respects as if they were the acts, defaults or neglect of the Contractor, its employees or agents Any demand, notice, or other communication required to be given hereunder shall be sufficiently served if served personally on the addressee, or if sent by prepaid first class recorded delivery post, by telex, electronic mail or facsimile transmission to the registered office or last known address of the party to be served therewith and if so sent shall, subject to proof to the contrary, be deemed to have been received by the addressee on the second business day after the date of posting or on successful transmission as the case may be. 11 FORCE MAJEURE 11.1 Neither party shall be liable for breach of this Agreement if and to the extent that fulfillment of a term has been prevented, hindered or delayed by causes beyond either party s control including, but not limited to riots, civil commotion's, war, national or international, emergency, destruction or damage due to natural forces, fires, explosions, labor disputes, or any governmental law, order, regulation or ordinance. 12 RECOVERY OF SUMS DUE TO THE COLLEGE 12.1 Whenever under the Agreement any sum of money shall be recoverable from or payable by the Contractor to the College the same may be deducted from any sum then due or which at any time thereafter may become due to the Contractor under this Agreement or any other contract with the College. 13 INDEMNITY AND INSURANCE 13.1 The Contractor shall fully and properly indemnify and throughout the contract period keep indemnified the College against injury to, or death of, any person, and loss of, or damage to, any property including property belonging to the College, and any other liability except. and to the extent that it may arise out of the act default or negligence of the College its employees or agents not being the Contractor or employed by the Contractor and except as aforesaid against all actions claims, demands, proceedings. damages, costs, charge, and expense whatsoever in respect thereof, or in relation thereto Without thereby limiting its responsibilities under this Clause, the Contractor shall insure with an insurance company approved by the College against the injury to, or death of, any person and loss of, or damage to, any property arising out of or in consequence of the contractor's obligations under this Agreement and against all actions, claims, demands, proceeding, damages, costs, charges and expenses in respect thereof. The limit of 5

6 indemnity under the Public Liability Policy shall be 5,000,000 in respect of any one incident 13.3 The College shall indemnify and keep indemnified the Contractor against the injury to, or death of, any person, or loss of, or damage to, any property including property belonging to the Contractor to the extent that it may arise out of the act, default, or negligence of the College, its employees or agents other than the Contractor its employees and agents and against all actions, claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto. 14 TERMINATION 14.1 If the Contractor shall have offered, or given, or agreed to give to any person any gift or consideration of any kind as an inducement or reward for doing, or forbearing to do, or having done or forborne to do any action in relation to the obtaining of the Agreement, or any other contract with the College, or for showing or forbearing to show favour, or disfavour, to any person in relation to the Agreement, or any other Contract with the College, or if the like acts shall have been done by any person employed by the Contractor, or acting on the Contractor's behalf (whether with or without the knowledge of the Contractor), or if in relation to the Agreement, or any other contract with the College, the Contractor or any person employed by the Contractor, or acting on the contractor's behalf, shall have committed an offence under the Prevention of Corruption Act 1972 or shall have given any fee or reward to any employee of the College, which shall have been exacted or accepted by such officer by virtue of office or employment and is otherwise than such employee's proper remuneration, the College shall be entitled to terminate the Contractor's employment under the Agreement and without prejudice to Clause 14.3 to recover from the Contractor the amount of any loss resulting from such termination If the Contractor commits a breach of any of its obligations under the Agreement; or where the Contractor is a registered company, the making of an administration order or any voluntary arrangement with his creditors; the appointment of a receiver or manager; the passing of any resolution, or making of any application to the court for, the winding up of the Contractor other than for the purposes of amalgamation or reconstruction under circumstances where the amalgamated or reconstructed company is to assume all the obligations of the Contractor under the Contract; or where the Contractor is an individual, the insolvency of the individual, or, where the Contractor is a partnership, the insolvency of any partner; provided that for the purposes of this clause insolvency shall include the making of any voluntary arrangement with creditors, the presentation of a bankruptcy petition, and the making of any conveyance or assignment for the benefit of any creditor; or the Contractor ceases or threatens to cease to carry out his business then in any such circumstances the College may. without prejudice to any accrued rights or remedies under the Agreement, terminate the Contractor's employment under the Agreement by notice in writing having immediate effect. 6

7 14.3 If the Contractor's employment is terminated as provided in Clause 14.1 or 14.2 and is not reinstated, the College shall: cease to be under any obligation to make further payment until the costs, loss and/or damage resulting from or arising out of the termination of the Contractor's employment shall have been calculated and provided such calculation shows a sum or sums due to the Agreement; be entitled to exercise a lien over any of the materials, equipment, or other Equipment belonging to the Contractor for any sum due hereunder or otherwise from the Contractor to the College, be entitled to employ and pay other persons to provide and complete the supply of the Equipment or any part thereof; be entitled to deduct from any sum or sums which would but for Clause 14.3 have been due from the College to the Contractor under this Agreement or any other contract or be entitled to recover the same from the Contractor as a debt, any loss or damage to the College resulting from or arising out of the termination of the Contractor s employment. Such loss or damage shall include the reasonable cost to the College of the time spent by its staff in terminating the Contractor's employment and in making alternative arrangements for the supply of the Equipment or any part thereof; when the total costs, loss and/or damage resulting from or arising out of the termination of the Contractor's employment have been calculated and deducted so far as practicable from any sums due which would but for Clause l4.2 have been due to the Contractor any balance shown as due to the College shall be recoverable as a debt The rights of the College under this Clause 14 are in addition to and without prejudice to any other rights the College may have whether against the Contractor directly or pursuant to any guarantee, indemnity or bond. 15 WAIVER 15.1 Failure by the College at any time to enforce the provisions of the Contract or to require performance by the Contractor of any of the provisions of the Agreement shall not be construed as a waiver of any such provision and shall not affect the validity of the Agreement or any part thereof or the right of the College to enforce any provision in accordance with its terms. 16 SEVERANCE 16.1 If any provision of the Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other provision all of which shall remain in full force and effect. 17 ARBITRATION 17.1 Any dispute or difference which may arise between the College and Contractor in connection with or arising out of the Agreement may, by agreement of both parties, be resolved by arbitration in which event, such dispute or difference shall be referred to a single arbitrator in accordance with the Arbitration Act, 1950 or any statutory modification or re-enactment thereof. 7

8 18 VARIATION 18.1 The College may at any time during the contract period require the Contractor to undertake any revision to the Agreement (herein after referred to as a "Variation"). In the event of such a variation being required, the College shall formally request the Contractor to state in writing the effect such a variation will have on the Agreement and what adjustment, if any, will be required to the Contract Price. The Contractor shall furnish such details within 14 days of receipt of the College s request or such other periods as may be agreed 18.2 The Contractor shall not vary the Agreement in any respect unless instructed in writing to do so by the Authorised Officer A variation under sub-clause 18.1 shall not invalidate the Contract but if such variation involves an increase or decrease in the cost to the Contractor of supplying the Equipment an appropriate adjustment to the Price Schedule shall be made. 19 CERTIFICATES AND PAYMENTS 19.1 Provided the Equipment has been received and comply with the requirements of this Agreement and have been accepted by the College in accordance with this Agreement, the Contractor shall be entitled to claim payment of the percentage of the Agreement Price, specific payments as agreed and detailed in the Schedule to this Agreement, or the Contract Price, whichever is specified as applicable to this Agreement. Payment shall be due at the end of the month following the date of the invoice, or the date of receipt by the College of correct invoice documentation, whichever is the later and provided always that the Equipment has been properly delivered and/or accepted by the College as being in accordance with this Agreement Any payment made shall be without prejudice to the College s rights, should the Equipment prove unsatisfactory or not in accordance with this Agreement If at any time at which payment would fall to be made in accordance with the provisions of this clause there shall be any defect due to the fault of the Contractor in or affecting any part or portion of the Equipment in respect of which such payment is claimed, the College shall have the right to retain the whole of such payment, provided that in the event of such defect being of a minor character, and not such as to affect the use of the Equipment, or the said portion thereof for the purpose intended without serious risk, the College shall not retain a greater sum than represents the cost of making good the said defect. Any sums retained by the College under this Clause shall be paid to the Contractor upon the said defect being made good, subject to the provisions of Clause 19.1 above. 20 VALUE ADDED TAX 20.1 The Pricing Schedule is exclusive of Value Added Tax ("VAT") The College shall pay to the Contractor such Value Added Tax as may be properly chargeable by the Contractor in connection with the supply of the Equipment The Contractor shall not later than the date of the issue of the payment certificate under Clause 20 inform the Director in writing in respect of the Equipment supplied during that period; which part or parts of such Equipment are exempt from VAT. 8

9 which part or parts of such Equipment bear a zero rate of VAT which part or parts of the Equipment that bear a rate of VAT greater than zero, in each case specifying the exact rate chargeable 20.4 Upon receipt of the Contractor's written notice under Clause 19 unless the College objects to any part of such notice, the Director shall calculate the amount of VAT due in accordance with the contents of such notice and shall so certify pursuant to Clause Upon receipt by the Contractor of any payment made by the College pursuant to Clause 20, being a payment including VAT, the Contractor shall forthwith issue to the College an authenticated receipt in such form as may be required by the Value Added Tax Act 1983 ("the Act") or any amendment or reenactment thereof or by any Regulations made thereunder. 21 DELIVERY 21.1 On receipt of the Official College Order the Contractor shall deliver the Equipment in the quantities stated and to the Premises specified in the Specification or within the agreed timescales. The Equipment shall be at the Contractor s risk until delivered to the College at the point specified in the Official College Order unless the College otherwise agrees in writing. Delivered shall mean off-loaded and set in the Place of Use designated by the College, but shall not under any circumstances be deemed to be acceptance of the Equipment by the College If there is an unreasonable delay in the delivery or supply pursuant to any Official College Order then such delay shall constitute a breach of this Agreement and the College shall be entitled to cancel such order and procure the Equipment elsewhere and any additional cost thereby incurred by the College shall be recoverable by it in the manner provided by these Conditions Unless otherwise provided in this Agreement the Contractor shall be considered responsible for the collection and disposal of all returnable packaging at no cost to the College The Equipment shall be transported and off-loaded at the sole risk and expense of the Contractor. The Contractor shall be responsible for the safe custody of any equipment which is the property of the Contractor whilst it is held on the College s site until the Acceptance Date, after which the Contractor shall remove such equipment leaving the site and premises, in a clean and tidy condition. For the avoidance of doubt, any Equipment and/or equipment which are the property of the Contractor shall be held on the College s site at the sole risk of the Contractor. The College shall not be liable for any loss or damage to equipment as aforesaid howsoever caused, and shall have the right to charge for storage of the equipment in the event that the Contractor fails to remove their equipment from site within a reasonable period of time following completion of delivery The Equipment shall remain at the risk of the Contractor until delivery at the College s Premises. The legal and beneficial ownership of the Equipment shall pass to the College on payment in full of the Price. 22 THE PREMISES, PLACE OF USE PREPARATION AND ACCESS FOR THE EQUIPMENT 22.1 The Contractor will as soon as practicable after the date hereof supply to the College adequate information to enable the College to prepare the Premises 9

10 and/or Place of Use provide in accordance with all local, national and international regulations, as the case may be (inter alia) a suitable supply of electrical current and such other main services as may be required for any Equipment; all other required electrical and mechanical items and fittings; such space requirements, clearances and environmental conditions as are necessary for the purpose of the Equipment. 23 INSTALLATION OF THE EQUIPMENT 23.1 The Contractor will deliver the Equipment to the Premises and will provide all labour, materials and plant required for the delivery of the Equipment at the Place of Use No Equipment may be delivered or installed without the College's prior permission As soon as practicable following delivery of the Equipment, the Contractor will undertake installation and the necessary training of College staff and demonstrate that the Equipment is ready for service. 24 TESTS AND ACCEPTANCE OF THE EQUIPMENT 24.1 Where the Contractor is required to undertake Acceptance Tests for specific portion(s) of the Installation and/or the complete Installation of the Equipment, the full details of the Acceptance Tests and the rights of the College in the event of the Equipment failing to pass such tests shall be detailed in the Specification detailed in the schedule to this Agreement 25 SOFTWARE 25.1 The Contractor shall be responsible for providing in accordance with this Agreement, all software and associated documentation where: the Equipment comprise of and/or include Computer Hardware and/or the Software and associated documentation is necessary for the satisfactory operation of the Equipment and/or the provision of such Software and associated documentation is specified in this Agreement Where the provision of the Software is not subject to the separate licence arrangements: the Contractor hereby grants to the College a perpetual right to use the Software (whether modified as hereinafter provided or not) on the Equipment the College shall in perpetuity have the right to modify or add to any of the Software without reference or obligation to the Contractor all patent, registered design, copyright and other intellectual property rights of the Contractor in the Software shall remain vested in the Contractor. 10

11 the College shall have copyright in any modifications or additions made to the Software, but shall in no case acquire copyright in the Software itself the College shall not assign or sub-licence to any third party to have the use of the Software, including any translation, compilation, adaptation, enhancement or any other version of the Software, without the prior written consent of the Contractor the College shall only make so many copies of the Software or any portion thereof as are reasonably necessary for operational security and use Where the Contractor provides Third Party Software in accordance with this Agreement or otherwise in order to enable them to meet their obligations under this Agreement, the Contractor shall either: procure for the College a non-exclusive, perpetual and irrevocable licence to use the Software on the Terms and Conditions of a separate Licence Agreement, or grant to the College a sub-licence to use the Third Party Software on the Terms and Conditions of a separate Licence Agreement The Contractor hereby warrants that they have the right in Law to sub-licence the Third Party Software as aforesaid. 26 STANDARD OF SERVICE 26.1 The Contractor shall supply and maintain the Equipment in accordance with the standards of performance and response times contained within the Specification The Contractor shall ensure, and undertakes to ensure that the Equipment maintains the standard of performance specified and/or achieved that are either in the Original Equipment Manufacturer s and/or their authorised Agents and/or the Contractor s published specification for the Equipment, or in the schedule to this Agreement, for either the period of the maintenance contract if the Equipment is to be maintained by the Contractor, or the Warranty period if the Equipment is not to be maintained by the Contractor If the College claims that the Equipment or any portion thereof, is not achieving and maintaining the standard of Performance specified in this Agreement, then, notwithstanding prior acceptance of the Equipment in accordance with Clause 24 hereof the Contractor shall undertake necessary investigations to disprove the College s claims, or to prove that such failure to maintain requisite standards is due to the fault of the College, free of all charges. 27 PATENT, DESIGN AND COPYRIGHT 27.1 The Contractor agrees to defend, indemnify, and hold harmless the College from and against any third party actions, claims, suits or demands, and expenses incident thereto (including costs of defense, settlement and reasonable attorney s fees) alleging the Equipment or any component part thereto, used within the terms of this Agreement, infringes any patent or copyright, or any trade secret, or other intangible property right of any third party. This condition shall continue in force until the termination or expiry of the Agreement. 11

12 27.2 Where development forms part of this Agreement the ownership of any invention, design or copyright arising from such development shall be transferred to the College and the Contractor shall co-operate in any measure necessary to make such transfer effective as soon as any such right arises. 28 WARRANTY 28.1 The Contractor shall be responsible for making good at their own expense on the College site(s) nominated, and within the time scales specified in subclause 28.2 of this clause, any defect in or damage to any of the Equipment which may develop during a period of 12 calendar months, where the Equipment is to be utilised immediately, (which, where an Acceptance Certificate is issued, shall be the date stated on the Acceptance Certificate for the Equipment) or a period of 18 calendar months where the Equipment is not to be utilised immediately, from the date of delivery, whichever is the shortest period hereinafter referred to as the "Warranty Period", for that portion which results in a failure of the Equipment to fulfil the functions or meet the level of performance specified in this Agreement and accepted by the College by the issue of Acceptance Certification or otherwise, which arises from:- 29 LOAN EQUIPMENT defective materials, including software, workmanship or design (other than a design furnished or specified by the College for which the Contractor has disclaimed responsibility in writing within a reasonable time, after the receipt of the College's instructions), or, any act or omission of the Contractor done or omitted during the Warranty Period In circumstances where Equipment or any specific components or parts thereof and/or any Software are removed from site in order to provide Warranty services in accordance with Clause 28 of this Agreement, or for any other reason as may be agreed by the parties, the Contractor shall, upon the request of an Authorised Officer of the College, be required to provide Equipment of an identical or nearest equivalent specification on a free loan basis for the entire period of time for which the original Equipment and/or specific components or parts thereof are held on the Contractor's site. Any Equipment supplied on loan in accordance with this Clause will remain the property of the Contractor but will be held on site at the College's risk, for the duration of the period whilst it is installed and being utilised by the College. 30 REPLACEMENT EQUIPMENT 30.1 In the event that all or any of the Equipment supplied in accordance with this Agreement shall consistently fail to achieve and maintain the standards of performance as specified in the schedule to this Agreement, and provided that the Equipment has been installed and the Equipment is being used by the College in accordance with the installation and/or operating instructions, the Contractor hereby warrants that the Equipment, or specific portion(s) thereof affected by such circumstances shall be replaced with Equipment of equal or nearest equivalent higher specification forthwith and free of all charges For the avoidance of doubt, consistently fail shall be defined as the Equipment requiring a maximum of four (4) visits to provide service repairs, and/or return visits to provide the services to satisfactory standards, for the period and under the Terms and Conditions of the Warranty provided with the Equipment in 12

13 accordance with Clause 28 or this Agreement, or such other period as may be agreed by the parties in writing. 31 PERFORMANCE GUARANTEE 31.1 Unless otherwise stated, the Contractor shall be solely and entirely responsible for the Specification of the Equipment required to perform the tasks specified and achieve satisfactory levels of performance of the requirements specified by the College in the Invitation to Tender document, and/or any documentation subsequently issued by the College, and agreed by the parties as forming part of this Agreement and appended hereto The inclusion of this Clause in no way seeks to limit any statutory rights which may accrue to the College under this Agreement, and shall not relieve either party of their obligations under this Agreement. 32 CONSEQUENTIAL LOSS 32.1 Except for a breach of the obligations set forth in this Agreement, and to the extent permitted by applicable law neither party shall be liable for any indirect, punitive, special, incidental or consequential damages in connection with or arising out of this Agreement (including loss of business, revenue, profits, use, data or other economic advantage), even if that party has been advised of the possibility of such damage. 33 PROPRIETARY INFORMATION 33.1 Each party to this Agreement agrees to hold all Proprietary Information of the other party in strict confidence and shall not use for any purpose, or disclose to any third party, any such Proprietary Information, except (i) as expressly authorized in this Agreement or in writing by either party, and (ii) solely to benefit either party and/or further the relationship of the parties. 34 MAINTENANCE 34.1 If required by the College before the end of the Warranty Period, the Contractor shall enter into a separate Agreement for the maintenance of the Equipment subject to Terms and Conditions to be agreed separately If a Maintenance Agreement commences on the Acceptance Date the maintenance charges during the Warranty Period shall reflect the Contractor's obligations under Clause 19 of this Agreement. Maintenance charges shall remain firm and inclusive of all contingencies for a period of one year from the date of commencement of this Agreement The Contractor shall be permitted to vary the Contract Price for the maintenance and support of the Equipment on the anniversary of the commencement of the Agreement. Such variations shall be in accordance with changes to the Contractor s variable costs, and shall only be considered by the College if documentary evidence to support the need to vary prices is provided by the Contractor. Requests for such price variations shall be submitted in writing to be received by the College no later than 90 days in advance of the date on which revised prices are due to become effective. 35 FREEDOM OF INFORMATION 35.1 The Supplier acknowledges that the College is a Public Authority for the purposes of the Freedom of Information Act 2000 (the FOIA ) and that the 13

14 College is under a general obligation to make all information held by it, available to the general public on request, unless an exemption under the FOIA applies The Supplier confirms that in providing any information to the College in connection with this Agreement, it accepts that the College may need to disclose such information under the FOIA If the Supplier has a reasonable belief that any of the information that it has or is to be provided in connection with this Agreement is Confidential, then the Supplier must provide a specific written Notice to the College, informing the College of exactly which information the Supplier believes is confidential and providing the College with the Supplier s reasonable rationale for its belief that such information is confidential. Unless and until the Supplier has provided the College with a satisfactory notice and explanation (to be decided at the sole discretion of the College), then the College shall be at liberty to disclose the information as it deems necessary, to comply with the FOIA The Supplier further confirms that notwithstanding Clause 35.3 above and Clause 14, any information provided by the Supplier to the College in connection with this Agreement, may be released to any third party under the following circumstances: A Public Access Request is validly received under the FOIA and the College is unable to refuse disclosure by applying any of the exemptions under the FOIA; A Subject Access Request is validly received under the Data Protection Act 1998 (the DPA ) and the College is unable to refuse disclosure by applying any of the exemption under the DPA; The College is compelled to release the information under any other Legislation, Regulation or other similar directive or order; The College is compelled to release the information under an order from a Court or other similar body of competent jurisdiction; The information has entered the public domain other than by the College s breach In the case of a necessary disclosure, the College will attempt to discuss such disclosure with the Supplier. However the College will be under no obligation to so consult with the Supplier and retains the absolute right to disclose the necessary information in accordance with Clause 35.4 above or otherwise The Supplier confirms that if the College is required to disclose any of the information provided by the Supplier in connection with this Agreement, then the Supplier will use its best endeavours to assist the College to comply with its obligations in this respect. 14