Translate1. Definitions
In the Contract, unless the context otherwise requires, the following terms have the meanings given to them below:
“Clause” means a specific point or provision in these Terms and Conditions.
“Client” means North Ayrshire Council a local authority constituted in terms of the Local Government etc. (Scotland) Act 1994 and having its principal offices at Cunninghame House, Irvine, Scotland, KA12 8EE and their statutory successors whomsoever.
“Commencement Date” Means the commencement date, as specified in the contract award letter.
“Commercial Envelope” means the pricing schedule section within the PCST e-tendering portal.
“Consultancy Services” means the services as are to be supplied by the Consultant to the Client as set out in the Specification and as may be ordered in accordance with the Ordering Procedures.
“Consultant” means the person, firm or company to whom the contract is issued.
“Consultant Representative” or “Consultant Representatives” means all persons engaged by the Consultant in the performance of its obligations under the Contract including but not limited to:
- its Staff;
- its agents, suppliers and carriers; and
- any sub-contractors of the Consultant (whether approved under Clause 24 (Assignation and Sub-Contracting) or otherwise).
“Contract” means any formal Contract entered into between the Consultant and North Ayrshire Council for the supply of the Consultancy Services. The documents that form part of the Contract include, but are not limited to, the ITT, Quick Quote Project Brief or Single Tender Action documents, the Consultant’s bid, any clarification sought as part of the procurement process, these Terms and Conditions and the award letter.
“Contract Administrator” means the member of the Clients staff appointed for the purposes of overseeing the Contract, monitoring the performance of the Consultant and ensuring that the standards of service specified in the Contract are delivered. The Contract Administrator and their deputy shall be named at contract award.
“Data Breach” means any event that results, or may result, in unauthorised access to Personal Data held by the Consultant or any sub-contractor under or in connection with the Contract, and/or actual or potential loss and/or destruction and/or corruption of Personal Data in breach of the Contract, including but not limited to any Personal Data Breach.
“Data Controller” has the meaning given in the Data Protection Laws.
“Data Processor” has the meaning given in the Data Protection Laws.
“Data Protection Laws” means any law, statute, subordinate legislation regulation, order, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements of any regulatory body which relates to the protection of individuals with regard to the processing of Personal Data to which a Party is subject including the Data Protection Act 2018 and any statutory modification or re-enactment thereof and the UK GDPR.
“Data Subject” has the meaning given in the Data Protection Laws.
“Default” means any failing by a Party to perform its obligations under the Contract or meet the conditions of the Contract (including material breach) or any negligent act, omission or statement of a Party in connection with or in relation to the Contract.
“Deliverable” means anything to be delivered by the Consultant to the Client and identified as a deliverable in accordance with the Ordering Procedures.
“Force Majeure Event” means any cause hindering the performance by a Party of its obligations, arising directly from acts, events or omissions which is beyond the reasonable control of the Party concerned and which is not attributable to the wilful act, neglect, or failure to take reasonable preventative action by that Party, its agents or employees, including, but not limited to, industrial action, fire, flood, violent storm, pestilence, explosion, malicious damage, armed conflict, acts of terrorism, any disaster, epidemic, pandemic, war or civil unrest, nuclear, biological or chemical warfare, or any other disaster, natural or man-made.
“Good Industry Practice” means standards, practices, methods and procedures conforming to legal and regulatory requirements 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 as the Consultant under the same or similar circumstances.
“Information Commissioner” means the Commissioner as set out in Part 5 of the Data Protection Act 2018.
“Intellectual Property Rights” means all copyright, patent, trademark, design right, database right and any other right in the nature of intellectual property whether or not registered, in any materials or works in whatever form (including but not limited to any materials stored in or made available by means of an information technology system and the computer software relating thereto) which are created, produced or developed as part of the Services by or on behalf of the Consultant.
“ITT” means the Clients invitation to tender.
“Judicial Order” means an ineffectiveness order or an order shortening the duration of the contract made in relation to the Contract under Chapter 6 of the Public Contracts (Scotland) Regulations 2015.
“Key Performance Indicators” means the performance measures detailed within the Contract which the Consultant must adhere to.
“Law” means:
in each case in force during the period of the Framework Agreement in Scotland.
“Management Arrangements” means the arrangements for the strategic management of the relationship between the Parties, including arrangements for monitoring of the Supplier’s compliance with the Specification, the Key Performance Indicators, the Ordering Procedures and these Terms and Conditions.
“Milestone” means any event or task which must be completed by a particular date under the Contract, such as the delivery of a Deliverable, identified as a milestone in accordance with the Ordering Procedures.
“Ordering Procedures” means the procedures for ordering particular Consultancy Services set out in the ITT, Quick Quote Project Brief or Single Tender Action documents.
“Party” means the Consultant and the Client respectively.
“Parties” means the Consultants and the Client collectively.
“PCST” means the Public Contracts Scotland – Tender e-tendering portal.
“Personal Data” has the meaning given in the Data Protection Laws.
“Personal Data Breach” has the meaning given in the Data Protection Laws.
“Premises” means the location where the Consultancy Services are to be performed, as specified in the Contract.
“Pricing Schedule” means the details of the pricing of the Consultancy Services as at the Commencement Date set out in the Consultants commercial response, submitted via the PCST Commercial Envelope.
“Processing” has the meaning given in the Data Protection Laws and cognate expressions shall be construed accordingly.
“Procurement Card” means a type of company charge card used for smaller purchases to achieve greater cost efficiency, control and convenience. Procurement cards are also known as Purchasing Cards or P-Cards.
“Project Brief” means the invitation bid document associated with a Quick Quote.
“Purchase Order” means an order for particular Consultancy Services placed in accordance with the Ordering Procedures.
“Quick Quote” means a low value procurement exercises progressed by online quotation via PCS-T.
“Service Levels” means the Service Levels identified as such in the Specification.
“Single Tender Action” means a procurement exercise progressed without a call for competition, as the circumstance meets an exemption reasons detailed in the Procurement (Scotland) Regulations 2016, Part 3 General Duties, Circumstances in which a contract can be awarded without competition.
“SPD” means the Single Procurement Document completed by the Consultant and sent to the Client.
“Specification” means the document forming part of the procurement process which sets out the Client’s requirements and objectives of each stage of the delivery of the Consultancy Services.
“Sub-Contract” means a Contract between two or more Consultants, at any stage of remoteness from the Client in a sub-contracting chain, made wholly or substantially for the purpose of performing (or contributing to the performance of) the whole or any part of this Contract.
“Supervisory Authority” has the meaning given in the Data Protection Laws.
“Staff” means any persons employed by the Consultant, and any persons employed by a third party but working for and under the control of the Consultant, who are or may be at any time concerned with the Consultancy Services or any part of them.
“Tender” means the tender submitted by the Consultant to the Client in response to the ITT.
“UK GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the Processing of personal data and on the free movement of such data as it forms part of the law of the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018, as amended by The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 and 2020.
“Working Day” means a day other than a Saturday, Sunday or bank holiday in Scotland..
“Working Hour” means an hour between 0900 hours and 1700 hours on a Working Day.
2. Interpretations
2.1 The interpretation and construction of the Contract is subject to the following provisions:
2.1.1 words importing the singular meaning include, where the context so admits, the plural and vice versa;
2.1.2 words importing the masculine include the feminine and neuter;
2.1.3 reference to a clause is a reference to the whole of that clause unless stated otherwise;
2.1.4 references to any statute, enactment, order, regulation or other similar instrument are construed as a reference to the instrument as amended by any subsequent instrument or re-enacted;
2.1.5 references to any person 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;
2.1.6 reference to “expiry or termination” of the Contract includes the making of a Judicial Order;
2.1.7 the words “include”, “includes” and “including” are to be construed as if they were immediately followed by the words “without limitation”; and
2.1.8 headings are included in the Contract for ease of reference only and do not affect the interpretation or construction of the Contract.
3. Parent Company Guarantee
It shall be a condition of this Contract that, if required by the Client, the Consultant shall deliver a validly executed parent company guarantee in the form set out in the ITT, Quick Quote Project Brief or Single Tender Action documents. The rights and obligations of the Parties shall have no force or effect unless the parent company guarantee has been properly executed and delivered to the Client. The parties acknowledge that if this condition has not been fulfilled any performance of this Contract by the Consultant shall be at the risk of the Consultant and the Client shall not be liable for and the Consultant irrevocably waives any entitlement to payment of any fees, expenses or other payments in relation to such performance. Where the Consultant has failed to fulfil this condition prior to and no later than Commencement Date the Client shall have the right to terminate the Contract by notice in writing to the Consultant.
4. The Consultancy Services
4.1 The Consultant shall complete the Consultancy Services with reasonable skill, care and diligence in accordance with the Contract.
4.2 The Consultant shall provide the Client with such reports of their work on the Consultancy Services at such intervals in such form as the Client may from time to time require.
4.3 The Client reserves the right by notice to the Consultant to modify the Client’s requirements in relation to the Consultancy Services and any alteration to the Contract fee or the completion date arising by reason of such modification shall be agreed between the Parties. Failing agreement, the matter shall be determined by arbitration in accordance with the provisions of Clause 43 (Dispute Resolution).
5. Nature of the Contract
5.1 The Contract is a public services contract within the meaning of regulation 2(1) of the Public Contracts (Scotland) Regulations 2015.
5.2 Save to the extent specifically provided for in this Contract, the Consultant acknowledges that it is not the exclusive supplier of the Consultancy Services to the Client and as such no guarantee of work or volume of work has been granted by the Client.
6. Period
6.1 The period of the Contract is detailed in the ITT, Quick Quote Project Brief or Single Tender Action documents unless it is terminated earlier under the terms of the Contract, or extended under Clause 6.2.
6.2 The Client may, by giving notice to the Consultant, extend the period of the Contract to an extension date specified in the ITT, Quick Quote Project Brief or Single Tender Action documents where applicable. Subject to that constraint, the Client may extend the period of the Contract on more than one Occasion.
7. Specification
The Consultant must comply with the Specification. In particular, the Consultant must meet or exceed the Service Levels.
8. Pricing Schedule
8.1 The Pricing Schedule sets out details of the pricing of the Consultancy Services.
8.2 The prices in the Pricing Schedule are either not to be increased or may be varied for the period of the Contract in accordance with the arrangements set out in the PCST Commercial Envelope and the ITT, Quick Quote Project Brief or Single Tender Action documents.
8.3 Accordingly, the Consultant may not unilaterally increase the prices in the Pricing Schedule. But nothing in the Contract prevents the Consultant from improving on the prices in the Pricing Schedule for the purposes of a particular Order.
9. Ordering Procedures and Management Arrangements
9.1 The Ordering Procedures may be invoked by the Client at any time during the period of the Contract.
9.2 The Parties must comply with the Ordering Procedures and Management Arrangements.
9.3 The Consultant must maintain the capacity to supply the Consultancy Services Throughout the period of the Contract.
10. Consultants Status
At all times during the period of the Contract the Consultant is an independent Consultant and nothing in the Contract establishes a contract of employment, a relationship of agency or partnership or a joint venture between the Parties or between the Client and any Consultant Representative. Accordingly, neither Party is 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.
11. Notices
11.1 Any notice to be given from one Party to the other under the Contract shall be valid only if it is made in writing.
11.2 Further any such notice which is to be given by either Party to the other, except for the purpose of court proceedings, shall be given by email or physical letter sent by hand or by a signed for special delivery postal service (for example, Royal Mail Signed For or Royal Mail Special Delivery Guaranteed). Such notices shall be addressed to the Consultant or to the Client in the following manner:
11.2.1 For the Consultant – to the address shown on the Purchase Order, or to such other address as the Party may by notice to the other have substituted therefor in accordance with this Clause;
11.2.2 For the Client – addressed to Senior Manager (Corporate Procurement), 1st Floor West, Cunninghame House, Irvine KA12 8EE or via email to procurement@north-ayrshire.gov.uk, or to such other address as the Party may by notice to the other have substituted therefor in accordance with this Clause.
11.3 Where a notice is delivered by hand, it shall be deemed to have been delivered when it is left and signed for at the relevant Party’s address set out in Clause 11.2.
11.4 Where a notice is delivered by a signed for special delivery postal service, provided that it is not returned as undelivered, it shall be deemed to have been given at the earlier of: two Working Days after the day on which the letter was posted, or acknowledgement of receipt of such a letter by the Consultant or the Client.
11.5 Where a notice is delivered by email it shall be deemed effective on the day of transmission, unless such transmission is not done on a day in which is not a Working Day or occurs after 1700 hours in which case it shall be deemed effective on the next Working Day.
11.6 The Consultant shall advise the Client, as soon as practicable and in any event no later than seven days after any change, of a change of address for service by sending a notice in accordance with this Clause.
11.7 The Client may change its address for service by sending a notice in accordance with this Clause.
11.8 The Client shall not be responsible for any failure to intimate or delay in intimation arising out of or in consequence of the Consultant’s omitting to advise the Client of a change of the Consultant’s address under this Clause.
12. Price
12.1 In consideration of the Consultant’s performance of its obligations relating to a Purchase Order, the Client must pay:
12.1.1 the price due in accordance with the Pricing Schedule and the Ordering Procedures; and
12.1.2 a sum equal to the value added tax chargeable at the prevailing rate.
12.2 The Consultant may not suspend the provision of services if it considers that the Client has failed to pay the price due.
12.3 The Consultant shall be entitled to be reimbursed by the Client only for expenses reasonably and properly incurred by the Consultant in the performance of the duties hereunder, subject to production of such evidence thereof as the Client may reasonably require.
13. Payment and Invoicing
13.1 The Client must pay all sums due to the Consultant within 30 days of receipt of a valid invoice.
13.2 The Consultant must render invoices monthly in arrears.
13.3 The Consultant must ensure that each invoice contains appropriate Contract and Purchase Order references and a detailed breakdown of the Consultancy Services provided. The Consultant must supply such other documentation reasonably required by the Client to substantiate any invoice.
13.4 Value added tax, where applicable, must be shown separately on all invoices as a strictly net extra charge.
13.5 Interest is payable on the late payment of any undisputed sums of money in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. In the case of sums due by the Client, the sums referred to in this clause must be properly invoiced by the Consultant.
13.6 In this clause 13, ‘valid invoice’ includes an electronic invoice meeting all the requirements set out in regulation 70A of the Public Contracts (Scotland) Regulations 2015.
13.7 The Client will not be liable to pay for any Consultancy Services carried out by the Consultant unless it is specified in a Purchase Order.
13.8 The Consultant shall be obliged to accept payment by means of BACS (Banks Automated Clearing Service) or Procurement Card.
14. Recovery of Sums Due
Wherever under this Contract any sum of money is recoverable from or payable by the Consultant, that sum may be deducted from any sum then due, or which at any later time may become due, to the Client under this Contract or under any other agreement or contract between the Consultant and the Client
15. Data Protection
15.1 The Data Schedule will define the data relationship and dependent on this either paragraph 15.2 or 15.3 shall be applicable. Where there are aspects of duality within the relationship then both paragraphs 15.2 and 15.3 shall apply.
15.2 The Consultant acknowledges that Personal Data described in the scope of the Schedule (Data Protection) will be processed in connection with the Consultancy Services under this Contract. For the purposes of any such Processing, Parties agree that the Consultant acts as the Data Processor and the Client acts as the Data Controller.
15.3 Notwithstanding Clause 15.2, the parties acknowledge that they are Joint Controllers for the purposes of the Data Protection Laws in respect of the Personal Data described in Schedule 1 as being under Joint Control. In respect of Personal Data under Joint Control, Clause 15.1 to 15.16 (under exception of 15.3) will not apply and the Parties agree to put in place a Data Sharing and Processing Contract (Controller to Controller).
15.4 Both Parties agree to negotiate in good faith any such amendments to this Contract that may be required to ensure that both Parties meet all their obligations under Data Protection Laws. The provisions of this Clause 15 are without prejudice to any obligations and duties imposed directly on the Consultant under Data Protection Laws and the Consultant hereby agrees to comply with those obligations and duties.
15.5 The Consultant will, in conjunction with the Client and in its own right and in respect of the Consultancy Services, make all necessary preparations to ensure it will be compliant with Data Protection Laws.
15.6 The Consultant will provide the Client with the contact details of its data protection officer or other designated individual with responsibility for data protection and privacy to act as the point of contact for the purpose of observing its obligations under the Data Protection Laws.
15.7 The Consultant must:
15.7.1 agree and comply with the terms of the data processing provisions set out in the Schedule (Data Protection);
15.7.2 process Personal Data only as necessary in accordance with obligations under the Contract and any written instructions given by the Client (which may be specific or of a general nature), including with regard to transfers of Personal Data outside the United Kingdom unless required to do so by any legal or regulatory requirement to which the Consultant is subject; in which case the Consultant must inform the Client of that legal or regulatory requirement (unless prohibited from doing so by law) before Processing the Personal Data only to the extent, and in such manner as is necessary for the performance of the Consultant’s obligations under this Contract or as is required by the Law;
15.7.3 subject to Clause 15.7.2 only Process or otherwise transfer any Personal Data in or to any country outside the United Kingdom in accordance with the Data Protection Laws and with the Client’s prior written consent and subject to a security risk assessment being undertaken;
15.7.4 take all reasonable steps to ensure the reliability and integrity of any Consultants Personnel who have access to the Personal Data and ensure that the Consultants Personnel:
15.7.5 implement appropriate technical and organisational measures including those set out in the Schedule (Data Protection) and in accordance with Article 32 of the UK GDPR to protect Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure, such measures being appropriate to the harm which might result from any unauthorised or unlawful Processing accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected and complete the security risk assessment.
15.8 The Consultant shall not engage a sub-contractor to carry out Processing in connection with the Consultancy Services without prior specific or general written authorisation from the Client. In the case of general written authorisation, the Consultant must inform the Client of any intended changes concerning the addition or replacement of any other sub-contractor and give the Client an opportunity to object to such changes.
15.9 If the Consultant engages a sub-contractor for carrying out Processing activities on behalf of the Client, the Consultant must ensure that same data protection obligations as set out in this Contract are imposed on the sub-contractor by way of to implement appropriate technical and organisational measures. The Consultant shall remain fully liable to the Client for the performance of the sub-contractor’s performance of the obligations.
15.10 The Consultant must provide to the Client reasonable assistance including by such technical and organisational measures as may be appropriate in complying with Articles 12-23 of the UK GDPR, including any subject access request and/or responding to any enquiry made, or investigation or assessment of processing initiated by the Information Commissioner in respect of the Personal Data as soon as is possible but in any event within three business days of receipt of the request or any other period as agreed in writing with the Data Controller from time to time.
15.11 Taking into account the nature of the Processing and the information available, the Consultant must assist the Client in complying with the Client’s obligations concerning the security of Processing, reporting requirements for Data Breaches, data protection impact assessments and prior consultations in accordance with Articles 32 to 36 of the UK GDPR. These obligations include:
15.12 At the end of the provision of Consultancy Services relating to Processing the Consultant must, on written instruction of the Client, delete or return to the Client all Personal Data and delete existing copies unless storage of the Personal Data is required by law.
15.13 The Consultant must:
15.14 Parties acknowledge that the inspecting Party will use reasonable endeavours to carry out any audit or inspection under Clause 15.13 (b) with minimum disruption to the Consultant’s day to day business.
15.15 The Consultant must maintain written records including in electronic form, of all Processing activities carried out in performance of the Consultancy Services or otherwise on behalf of the Client containing the information set out in Article 30(2) of the UK GDPR.
15.16 If requested, the Consultant must make such records referred to in Clause 15.15 available to the Supervisory Authority on request and co-operate with the Supervisory Authority in the performance of its tasks.
16. Public Access to Information
No term of this Contract, whether express or implied, shall preclude the Purchaser from making public, if required under the Freedom of Information (Scotland) Act 2002 (referred to in this clause as the “2002 Act”) or the Environmental Information (Scotland) Regulations 2004 (referred to in this clause as “the EIRS”) or both any information held relating to the Contract. In exercising its obligations under the 2002 Act and the EIRS, the Purchaser shall have due regard to the commercial interests of the Supplier but without prejudice to its duty to discharge its obligations under the 2002 Act or the EIRS. The interpretation of the Acts by the Purchaser, and any exemptions therein, will be final and conclusive subject only to any decision or binding ruling on the matter made by the courts. The Supplier will facilitate compliance by the Purchaser, with its obligations under the 2002 Act and the EIRS and comply with any requests from the Purchaser, for that purpose.
17. Confidentiality
17.1 The Consultant shall keep secret and not disclose and shall procure that the Consultant’s Representatives keep secret and do not disclose any information of a confidential nature or business data obtained by the Consultant by reason of this Contract except information which is in the public domain otherwise than by reason of a breach of this Clause.
17.2 All information related to the Contract will be treated as commercial in confidence by the parties except that the Consultant or Client or both may disclose any information as required by law or Judicial Order to be disclosed.
17.3 The Consultant shall at all times comply with the Client’s “IT and Cyber Security Policy” (“the Policy”) and it is the Consultant’s responsibility to ensure that the Consultant and the Consultant’s Representatives are familiar with and comply with the Policy as well as with any of the Client’s related security standards, guidelines and procedures in relation to the Policy. The Policy can be obtained on request by contacting the Client’s ICT Security Team by email at cybersecurityteam@north-ayrshire.gov.uk.
17.4 The provisions of this Clause 17 shall apply during the continuance of this Contract and after its termination howsoever arising.
18. Audit
18.1 The Consultant shall keep and maintain until the date falling 7 years after the date of expiry of the Contract or any period of extension, or as long a period as may be agreed between the parties, full and accurate records of the Contract including the orders placed, Consultancy Services supplied under it, all expenditure reimbursed by the Client, and all payments made by the Client. The Consultant shall on request afford the Client such access to those records as may be requested by the Client in connection with the Contract.
18.2 The provisions of this Clause 18 shall apply during the continuance of this Contract and after its termination howsoever arising.
19. Advertising
19.1 The Consultant shall not use the North Ayrshire Council logo without the prior written consent of the Client.
19.2 The Consultant shall not disclose any details relating to the Contract performance and operations with the Client to any other party without the prior written consent of the Client.
19.3 The Consultant shall not communicate in any form with the media, or make any publication or announcement, on any matter concerning the operation, involvement in or performance of the Contract, without the prior written consent of the Client.
20. Provision of the Consultancy Services
20.1 The Consultant must provide the Consultancy Services:
20.1.1 in accordance with the Specification and the Ordering Procedures;
20.1.2 in accordance with the particular requirements of each Purchase Order; and
20.1.3 to the satisfaction of the Client acting reasonably.
20.2 The Consultant acknowledges that the Client relies on the skill, care, diligence and judgment of the Consultant in the supply of the Consultancy Services and the performance of its obligations under the Contract.
20.3 For each Purchase Order for the provision of the Consultancy Services, subject to any Contrary requirements of the Client communicated in accordance with the Ordering Procedures, the provisions of Clauses 20 and 21 apply.
20.4 The period for any Purchase Order agreed in accordance with the Ordering Procedures may be brought to an earlier end upon 3 months’ notice by the Client.
21. Deliverables and Milestones
21.1 The Consultant must provide the Consultancy Services, including any Deliverables:
21.1.1 at the date(s), time(s) and location(s) required by the Client; and
21.1.2 in good time to meet any Milestones required by the Client.
21.2 When the Consultant believes acting reasonably that it has provided any Deliverable or completed any Milestone in accordance with the Contract it must notify the Client.
21.3 The Client may thereafter by notice to the Consultant acting reasonably:
21.3.1 accept the provision of the Deliverable or the completion of the Milestone (as appropriate), having regard to any acceptance criteria communicated in accordance with the Ordering Procedures; or
21.3.2 providing reasons, reject the provision of the Deliverable or the completion of the Milestone.
21.4 Where the Client rejects the completion of a Milestone or provision of a Consultancy Service or Deliverable in accordance with clause 21.3.2, the Consultant must at its expense immediately rectify or remedy any defects and/or delays.
21.5 Risk and ownership in any Deliverables that are corporeal movables and in any physical media in which any Deliverables are delivered vests in the Client upon acceptance in accordance with this clause.
21.6 Whether the defect or delay is due to the Client or not, the Consultant shall deploy all additional resources to address the consequences of the default or delay. Where such default or delay is solely due to the Client, any additional costs in respect of the said additional resources shall be agreed between the parties both acting reasonably.
22. Consultant's Personnel
22.1 The Consultant shall provide full particulars as required by the Client of all Consultant Representatives, including but not limited to, a list of names and addresses of Consultant Representatives, specifying the capacities in which they are so concerned with the Consultancy Services provided and the performance of the Contract. The Consultant shall take all reasonable steps to avoid changes of Consultant Representatives performing the Contract and shall provide the Client with one month’s written notice and full particulars of any proposed additional or replacement Consultant Representatives.
22.2 At any time, the Client may give notice to the Consultant that any Consultant Representatives are not to become or be involved further with the performance of the Contract and may require the Consultant to replace any Consultant Representatives removed under this Clause with another suitably qualified person. The decision of the Client regarding the Consultant Representatives shall be final and conclusive. The Consultant shall act immediately on receipt of such notice to comply with the notice, including but not limited to, taking all necessary steps to avoid unauthorised person(s) from gaining access to the Client’s Premises.
22.3 The Consultant shall bear the cost of any notice, instruction or decision of the Client under this Clause 22.
23. Intellectual Property Rights
23.1 All Intellectual Property Rights in any material including but not limited to reports, guidance, specification, instructions, toolkits, plans, data, drawings, databases, patents, patterns, models, designs which are created or developed by the Consultant on behalf of the Client for use, or intended use, in relation to the performance by the Consultant of its obligations under the Contract are hereby assigned to and shall vest in the Client absolutely.
23.2 Any material, including but not limited to reports, guidance, specification, instructions, toolkits, plans, data, drawings, databases, patents, patterns, models, designs, furnished to or made available to the Consultant by or as directed by the Client shall remain the property of the Client.
23.3 Except as may expressly be provided for in the Contract, neither Party acquires any interest in or license to use the other Party’s Intellectual Property Rights owned or developed prior to or independently of the Contract.
23.4 The Consultant must not infringe any Intellectual Property Rights of any third party in providing the Consultancy Services or otherwise performing its obligations under the Contract. The Consultant shall indemnify the Client against all actions, claims, demands, losses, charges, costs and expenses which the Client may suffer or incur as a result of or in connection with any breach of this Clause 23.4.
23.5 The Consultant shall, at the request of the Client, provide the Client with a complete and up-to-date copy of all electronically stored data and all other information necessary to ensure that the Client can continue to use the electronically stored data so provided by the Consultant; all to the reasonable satisfaction of the Client.
23.6 Electronically stored data shall mean data however stored on a computer storage medium, and shall include data stored in conventional files, databases and computer aided design files, and which contain relevant design information. The Consultant shall store all data on a suitable medium in either its native format or in a neutral file format to suit the Client’s requirements.
23.7 The Client reserves the right to verify and validate any information contained within the electronically stored data within one year from completion of the Consultancy Services. The Consultant shall remedy at their own expense any defects or inadequacies discovered during the said one year and notified by the Client to the Consultant and such defects or inadequacies shall be remedied within 14 Working Days of receipt of such notification.
23.8 The Consultant shall not have the right to use any reports, or other materials referred to in Clause 23.1 without the prior written consent of the Client and then only upon such terms as may be imposed in connection therewith, except for information which is in the public domain.
23.9 The provisions of this Clause shall apply during the continuance of this Contract and after its termination howsoever arising.
24. Assignation and Sub-Contracting
24.1 The Consultant shall not assign or sub-contract any portion of the Contract without the prior written consent of the Client. Sub‑contracting any part of the Contract shall not relieve the Consultant of any obligation or duty attributable to the Client under the Contract or these Clauses.
24.2 Where the Client has consented to the placing of any Sub-Contract(s), the Client reserves the right to obtain and keep copies of any Sub-Contract(s) from the Consultant, and the Consultant shall send copies of any Sub-Contract(s) to the Client immediately at the Client request.
24.3 Where the Client has consented to the placing of any Sub-Contract, and the Consultant enters into a Sub-Contract, the Consultant must ensure that provisions are included which:
24.3.1 requires payment to be made of all sums due by the Consultant to the sub-contractor within a specified period not exceeding 30 days from the receipt of a valid invoice as defined by the sub-contract requirements and provides that, where the Client has made payment to the Consultant in respect of the Consultancy Services, or any part of the Consultancy Services, and the sub-contractor’s invoice relates to such Consultancy Services then, to that extent, the invoice must be treated as valid and, provided the Consultant is not exercising a right of retention or set-off in respect of a breach of the Contract by the sub-contractor or in respect of a sum otherwise due by the sub-contractor to the Consultant, payment must be made to the sub-contractor without deduction;
24.3.2 notifies the sub-contractor that the Sub-Contract forms part of a larger Contract for the benefit of the Client and that should the sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the sub-contractor, to the Client;
24.3.3 provides the Consultant with a right to terminate the Sub-Contract if the relevant sub-contractor fails to comply in the performance of its Contract with any legal obligations in the fields of environmental, social or employment law, or if any of the termination events specified in Claus 41.3 occur;
24.3.4 requires the sub-contractor to include provisions having the same effect as Clauses 24.3.1, 24.3.2, and 24.3.3 above in any Sub-Contract it awards; and
24.3.5 in the same terms as that set out in this Clause 24.3 (including for the avoidance of doubt this Clause 24.3.5) subject only to modification to refer to the correct designation of the equivalent party as the Consultant, sub-contractor and sub-sub-contractor as the case may be.
24.4 Consultants to the Client are requested to address complaints regarding late payment of invoices to, in the first instance, the addressee of the invoice and, in the second instance to the Senior Manager (Corporate Procurement), 1st Floor West, Cunninghame House, Irvine KA12 8EE or via email to procurement@north-ayrshire.gov.uk.
24.5 Any breach of this Clause 24 by the Consultant is a material breach for the purposes of Clause 41.1.3 (Termination).
25. Change of Name/Contract Novation
25.1 If the Consultant’s company name changes during the Contract but their company registration remains the same, the Consultant will be required to provide a copy of their “Certificate of Incorporation on Change of Name” at the earliest opportunity.
25.2 Where the company registration number changes the Consultant must inform the Client immediately of any changes.
25.3 Where there is a change to any of the following the Client reserves the right to terminate the Contract with immediate effect
- Location of service;
- Management structure;
- Staff providing the service;
- Operational policies and procedures.
25.4 Subject to the above the Client reserves the right to consider continuing the Contract with the new company provided that the company:
26. Amendment
The Contract may be amended only by the written agreement of both Parties. Accordingly, the Consultant may not unilaterally amend the Contract.
27. Compliance with Law etc.
Throughout the duration of the Contract the Consultant shall be bound and obliged to comply with all applicable law, Good Industry Practice and the standards relevant to the Consultancy Services (including regulatory bodies). During the period of the Contract the Consultant shall produce such evidence as the Client may require to satisfy the Client that the Consultant has complied with this Clause.
28. Consultant's Responsibility for Staff
28.1 The Consultant is responsible for the acts and omissions of all Consultant’s Representatives relating to the Contract as though such acts and omissions are the Consultant’s own.
28.2 The Consultant must ensure that all Consultant Representatives:
28.2.1 are appropriately experienced, skilled, qualified and trained;
28.2.2 carry out their activities connected with the Contract faithfully and diligently and with all with due skill, care and diligence;
28.2.3 and obey all lawful and reasonable directions of the Client when carrying out activities under the Contract.
29. Security and Access to the Client's Premises
29.1 Any access to, or occupation of, the Client’s Premises which the Client may grant the Consultant from time to time is on a non-exclusive licence basis free of charge. The Consultant must use the Client’s Premises solely for the purpose of performing its obligations under the Contract and must limit access to the Client’s Premises to such individuals as are necessary for that purpose.
29.2 The Consultant must comply with the Client’s controls, procedures and policies concerning security and access to the relevant Client’s Premises and any such modifications to those controls, procedures and policies or replacement controls, procedures and policies as are notified to the Consultant from time to time.
29.3 The Consultant must notify the Client of any matter or other change in circumstances which might adversely affect future security and access to the Client’s Premises.
29.4 At the Client’s written request, the Consultant must provide a list of the names and addresses of all persons who may require admission to the Client’s Premises in connection with the Contract, specifying the capacities in which they are concerned with the Contract and giving such other particulars as the Client may reasonably request.
29.5 The Consultant must ensure that any Consultant Representative entering the Client’s Premises complies with any controls, procedures and policies, if applicable, for obtaining access. The Consultant acknowledges that the Client has the right to deny entry to any individual that does not comply with the Client’s controls, procedures, and policies concerning security and access.
29.6 In accordance with the Client’s controls, procedures and policies concerning visitor access, entry to the Client’s Premises may be granted to individual Consultant Representatives for the purposes of meetings.
29.7 The Client may, by notice to the Consultant, refuse to admit onto, or withdraw permission to remain on, the Client’s Premises any Consultant Representative whose admission or continued presence would, in the opinion of the Client acting reasonably, be undesirable.
29.8 The Client will provide advice and assistance acting reasonably to the Consultant to facilitate the Consultant’s compliance with this Clause 29.
29.9 All decisions of the Client under this Clause are final and conclusive.
29.10 Breach of this Clause 29 by the Consultant is a material breach for the purposes of Clause 41.1.3 (Termination).
30. Tax Arrangements
30.1 Where the Consultant is liable to be taxed in the UK in respect of consideration received under this contract, it shall at all times comply with the Income Tax (Earnings and Pensions) Act 2003 (ITEPA) and all other statutes and regulations relating to income tax in respect of that consideration.
30.2 Where the Consultant is liable to pay National Insurance Contributions (NICs) in respect of consideration received under this contract, it shall at all times comply with the Social Security Contributions and Benefits Act 1992 (SSCBA) and all other statutes and regulations relating to NICs in respect of that consideration.
30.3 The Client may, at any time during the term of this contract, request the Consultant to provide information which demonstrates how the Consultant complies with sub-clauses 30.1 and 30.2 above or why those clauses do not apply to it.
30.4 A request under sub-clause 30.3 above may specify the information which the Consultant must provide and the period within which that information must be provided.
30.5 The Client may supply any information which it receives under clause 30 to the Commissioners of His Majesty's Revenue and Customs for the purpose of the collection and management of revenue for which they are responsible.
30.6 The Consultant shall take all reasonable steps to ensure the observance of the provisions of this Clause 30 by all Consultant Representatives.
30.7 Where the Consultant enters into any Consultant Representative, the Consultant must ensure that a provision is included which is in the same terms as this Clause 30 subject only to modification to refer to the correct designation of the equivalent party as the Consultant.
31. Equality
The Consultant undertakes that it has and shall comply with all statutory requirements in respect of ensuring equal opportunity in employment and has not and shall not unlawfully discriminate either directly or indirectly on such grounds as race, ethnic or national origin, disability, gender, sex or sexual orientation, religion or belief, or age and without prejudice to the generality of the foregoing the Consultant shall not unlawfully discriminate within the meaning and scope of the Equality Acts 2006 and 2010, the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, the Human Rights Act 1998 or other relevant or equivalent legislation, and any statutory modification or re-enactment thereof. The Consultant shall take all reasonable steps to secure the observance of this Clause 31 by all employees and representatives of the Consultant.
32. Blacklisting
32.1 The Consultant must not commit any breach of the Employment Relations Act 1999 (Blacklists) Regulations 2010 or section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992. Breach of this Clause is a material default which shall entitle the Client to terminate the Contract.
32.2 Consultants sub-contracting, assigning or novating any part of the Contract must impose the same Terms and Conditions on any sub-contractor or party to whom such a part of the Contract is novated or assigned.
33. Conflicts of Interest
33.1 The Consultant must take appropriate steps to ensure that the Client is not placed in a position where, in the reasonable opinion of the Client, there is an actual or potential conflict between the interests of the Consultant and the duties owed to the Client under the Contract.
33.2 The Consultant must disclose by notice to the Client full particulars of any actual or potential conflict of interest which may arise and must take such steps as are necessary to avoid or remove the conflict of interest.
33.3 Breach of this clause by the Consultant is a material breach for the purposes of clause 41.1.3 (Termination).
34. Corrupt Gifts or Payments
The Consultant shall not offer or give, or agree to give, to any employee or representative of the Client any gift or consideration of any kind as an inducement or reward for doing or refraining from doing or for having done or refrained from doing, any act in relation to the obtaining or execution of this or any other Contract with the Client or for showing or refraining from showing favour or disfavour to any person in relation to this or any such Contract. The attention of the Consultant is drawn to the criminal offences created by the Bribery Act 2010.
35. Warranties and Representations
The Consultant warrants and represents that:
35.1 it has full capacity and authority and all necessary consents (including where its procedures so require, the consent of its parent company) to enter into and perform its obligations under the Contract and that the Contract is executed by a duly authorised individual;
35.2 in entering the Contract it has not committed any offence under the Bribery Act 2010 or of fraud or uttering at common law or any other kind referred to in the Public Contracts (Scotland) Regulations 2015;
35.3 it has not committed any breach of the Employment Relations 1999 Act (Blacklists) Regulations 2010 or section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992, or committed any breach of the Data Protection Laws by unlawfully processing personal data in connection with any blacklisting activities;
35.4 as at the Commencement Date, all information contained in the SPD, Quick Quote prequalification document, Single Tender Action documents and Tender remains true, accurate and not misleading, save as may have been specifically disclosed in writing to the Client prior to execution of the Contract;
35.5 no claim is being asserted and no litigation, alternative dispute resolution procedure or administrative proceeding is presently in progress or, to the best of its knowledge and belief, pending or threatened against it or any of its assets which will or might have a material adverse effect on its ability to perform its obligations under the Contract;
35.6 it is not subject to any contractual obligation, compliance with which is likely to have a material adverse effect on its ability to perform its obligations under the Contract;
35.7 no proceedings or other steps have been taken and not discharged (nor, to the best of its knowledge, are threatened) for the winding up of the Consultant or for its dissolution or for the appointment of a receiver, administrative receiver, liquidator, manager, administrator or similar officer in relation to any of the Consultant’s assets or revenue;
35.8 it owns, has obtained or is able to obtain, valid licences for all Intellectual Property Rights that are necessary for the performance of its obligations under the Contract;
35.9 in the 3 years prior to the Commencement Date:
35.9.1 it has conducted all financial accounting and reporting activities in compliance in all material respects with the generally accepted accounting principles that apply to it in any country where it files accounts;
35.9.2 it has been in full compliance with all applicable securities and tax laws and regulations in the jurisdiction in which it is established;
35.10 it has not done or omitted to do anything which could have a material adverse effect on its assets, financial condition or position as an ongoing business concern or its ability to fulfil its obligations under the Contract;
35.11 it has made appropriate inquiries (for example as regards the Client’s Premises) so as to be satisfied in relation to all matters connected with the performance of its obligations under the Contract;
35.12 it has in place appropriate technical and organisational measures to safeguard any Client Protected Information provided by the Client;
35.13 there are no actual or potential conflicts between the interests of the Consultant and the duties owed to the Client under the Contract, save as may have been specifically disclosed in writing to the Client prior to execution of the Contract; and
35.14 it is deemed to have inspected any Premises at which the services are to be performed as set out in the Specification before tendering so as to have understood the nature and extent of the Consultancy Services to be carried out and is deemed to be satisfied in relation to all matters connected with the Consultancy Services and the Premises.
36. Indemnity and Insurance
36.1 Without prejudice to any rights or remedies of the Client, the Purchaser shall indemnify the Client against all actions, suits, claims, demands, losses, charges, costs and expenses which the Client may suffer or incur as a result of or in connection with any damage to property or in respect of any injury (whether fatal or otherwise) to any person which may result directly or indirectly from any negligent or wrongful act or omission of the Consultant.
36.2 Neither Party is liable to the other Party under the Contract for any:
36.2.1 loss of profits, business, revenue or goodwill; or
36.2.2 indirect or consequential loss or damage.
36.3 But clause 36.2 does not exclude any liability of the Consultant for additional operational, administrative costs or expenses or wasted expenditure resulting from the Default of the Consultant.
36.4 But neither Party excludes or limits liability to the other Party for:
36.4.1 death or personal injury caused by its negligence;
36.4.2 misrepresentation;
36.4.3 any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or sections 2 or 11B of the Supply of Goods and Services Act 1982.
36.5 The Client shall indemnify the Consultant in respect of all claims, proceedings, actions, damages, fines, costs, expenses or other liabilities which may arise out of, or in consequence of, a breach of Data Protection Laws where the Consultant has acted in accordance with the Client’s written instructions, notwithstanding the above, nothing within this Contract relieves the Consultant of any of their own direct responsibilities and liabilities under Data Protection Laws.
36.6 The Consultant and any Sub-Contractor must effect and maintain with a reputable insurance company:
36.6.1 Public liability insurance, to the value of at least ten million pounds (£10,000,000) sterling in respect of any one event and unlimited in the period;
36.6.2 Professional indemnity insurance, to the value of at least five million pounds (£5,000,000) sterling in the aggregate in the policy period;
36.6.3 Employer’s liability insurance, to the value of at least five million pounds (£5,000,000) sterling in respect of any one event and unlimited in the period;
36.6.4 Products liability insurance, to the value of at least ten million pounds (£10,000,000) sterling in the aggregate in the policy period;
36.6.5 Third-party motor vehicle insurance maintained throughout the period of the Contract, in accord with the provisions of the current Road Traffic Act 1988 (as amended). A valid motor vehicle certificate in the Consultant’s name, or (where there is no fleet but rather the Consultant permits employees to use their personal vehicles for business purposes), a letter signed by a person of appropriate authority, confirming that the Consultant has ongoing arrangements in place to ensure their employees' vehicles are appropriately insured and maintained.
36.7 Such insurance must be maintained for the duration of the Contract and for a minimum of 5 years following the expiry or termination of the Contract.
36.8 The policy or policies of insurance referred to in Clause 36.6 shall be shown to the Client whenever the Client requests, together with satisfactory evidence of payment of premiums, including the latest premium due thereunder.
36.9 The Consultant shall establish a robust internal process to receive and process any insurance claims intimated to it, the detail of which process will be made available to the Client on request.
36.10 In the event that a claim is intimated to the Consultant, the Consultant shall immediately acknowledge receipt of such claim to the claimant, investigate the facts and process the claim with its insurance company to the Client's satisfaction. If required by the Client, the Consultant shall provide any information required on the nature of the claim or the manner in which it is being processed, having in mind that the Client's name cannot be brought into disrepute.
37. Force Majeure
37.1 If either Party to this Contract is prevented or delayed in the performance of any of its obligations under this Contract as a direct result of a Force Majeure Event, and if such Party gives written notice to the other Party specifying the matters constituting the Force Majeure Event together with such evidence as it reasonably can give and specifying the period for which it is estimated that such prevention or delay will continue, then the Party in question shall be excused the performance or the practical performance as the case may be of such obligations in terms of this Contract which are so affected as from the date on which it became unable to perform them and for so long as the Force Majeure Event shall continue.
37.2 If the period during which either Party is delayed in or prevented from the performance of its obligations hereunder by reason of a Force Majeure Event exceeds two months, either Party may serve on the other one month’s notice of termination of the Contract.
37.3 Both Parties agree to use their best efforts to ensure that, during any period when a Force Majeure Event exists, the Consultancy Services are provided to the fullest extent practicable.
38. Dispute Resolution
38.1 In the event of any dispute arising out of or in connection with the Contract between the Parties either Party shall serve a notice on the other Party outlining the terms of the dispute. The Parties must attempt in good faith and in a spirit of mutual trust and co-operation to resolve the dispute as a matter of urgency and no later than 20 Working Days of either Party notifying the other of the dispute.
38.2 In the event of any dispute of an emergency nature arising out of or in connection with the Contract between the Parties the Client shall be entitled to demand that the Consultant attempts in good faith and in a spirit of mutual trust and co-operation to resolve the dispute within any timescale as the Client considers reasonable in the circumstances and the Consultant must comply. The Client shall be the sole judge of what disputes are of an emergency nature.
38.3 Any dispute or difference arising out of or in connection with the Contract, including any question regarding its existence, validity or termination which cannot be resolved in good faith, shall be determined by the appointment of a single arbitrator to be agreed between the Parties, and failing agreement within 14 days after either Party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the Scottish Arbitration Centre on the written application of either Party. The seat of the arbitration shall be in Scotland. The language used in the arbitral proceedings shall be English.
38.4 Any arbitration under Clause 38.3 is subject to the Arbitration (Scotland) Act 2010.
38.5 Nothing in this Clause 38 shall:
38.5.1 prevent the Parties from complying with, observing and performing all their obligations in respect of the Contract regardless of the nature of any dispute between them arising out of or in connection with the Contract and notwithstanding the referral of any such matter or dispute for resolution under this Clause; nor
38.5.2 diminish the Parties to the Contract’s responsibilities in respect of contract administration.
39. Severability
If any provision of the Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision is severed and the remainder of the provisions of the Contract continue in full force and effect as if the Contract had been executed with the invalid, illegal or unenforceable provision eliminated.
40. Waiver and Cumulative Remedies
40.1 Any failure of either Party to insist upon strict performance of any provision of the Contract, or the failure of either Party to exercise, or any delay in exercising, any right or remedy does not constitute a waiver of that right or remedy and does not cause a diminution of the obligations established by the Contract.
40.2 Accordingly, no waiver is effective unless it is expressly stated to be a waiver and communicated to the other Party in writing in accordance with Clause 11 (notices).
40.3 A waiver of any Default is not a waiver of any subsequent Default.
40.4 The rights and remedies provided by the Contract are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy is not to be deemed an election of such remedy to the exclusion of other remedies.
41. Termination
41.1 The Client may terminate the Contract by notice to the Consultant with immediate effect, or at such later date as the Client may specify, if the Consultant commits a Default and if:
41.1.1 the Consultant has not remedied the Default to the satisfaction of the Client within 20 Working Days, or such other period as may be specified by the Client, after issue of a notice specifying the Default and requesting it to be remedied;
41.1.2 the Default is not in the opinion of the Purchaser, capable of remedy; or
41.1.3 the Default is a material breach of the Contract.
41.2 The Consultant shall give notice to the Client as soon as reasonably practicable if the Consultant is unable permanently or temporarily to meet any of the conditions of the Contract, or to observe or perform any of its obligations under the the Contract.
41.2.1 In the event the Consultant gives the Client the notice referred to at Clause 41.2 the Client may terminate the Contract by notice to the Consultant with immediate effect, or such later date as the Client may specify.
41.3 The Client may also terminate the Contract in accordance with any provision in the Specification, ITT, Quick Quote Project Brief or Single Tender Action Documents.
41.4 The Client may terminate the Contract, with immediate effect by notice, or at such later date as the Client may specify, in the event that:
41.4.1 the Contract has been subject to substantial modification which would have required a new procurement procedure in accordance with regulation 72(9) (modification of contracts during their term) of the Public Contracts (Scotland) Regulations 2015; or
41.4.2 the Consultant has at the time of Contract award, been in one of the situations referred to in regulation 58(1) (exclusion grounds) of the Public Contracts (Scotland) Regulations 2015, including as a result of the application of regulation 58(2) of those regulations, and should therefore have been excluded from the procurement procedure; or;
41.4.3 the Contract should not have been awarded to the Consultant in view of a serious infringement of the Client’s obligations under The Public Contracts (Scotland) Regulations 2015 as amended by The Public Procurement etc. (Scotland) Amendment (EU Exit) Regulations 2020, Directive 2014/24/EU of the European Parliament, and any statutory modifications thereof; or
41.4.4 the Consultant fails to comply in the performance of the Consultancy Services with any legal obligations and requirements under all applicable law, including without restriction: environmental law, social law, employment law, the Health and Safety at Work etc. Act 1974, and the Equality Act 2010.
41.5 The Consultant shall notify the Purchaser in writing immediately upon the occurrence of any of the following events:
41.6 On the occurrence of any of the events described in Clause 41.5 or, where the Consultant is an individual if the Supplier shall die or be adjudged incapable of managing his or her affairs within the meaning of the Adults with Incapacity (Scotland) Act 2000 or the Mental Health (Care and Treatment) (Scotland) Act 2003, the Client shall be entitled to terminate this Contract by notice to the Supplier with immediate effect, or at such later date as the Client may specify.
41.7 Notwithstanding any other rights under the Contract or otherwise in law, either Party may terminate this Contract by giving to the other Party not less than thirty (30) days’ notice in writing to that effect.
42. Consequence of Expiry or Termination
42.1 Where the Client terminates the Contract under Clause 41 (Termination), the Client may make other arrangements for the completion of the Consultancy Services, the the Consultant shall indemnify the Client against all costs thereof incurred by the Client. The Client shall be entitled to deduct from any amount due to the Consultant the costs thereof incurred by the Client, and if the total cost to the Client exceeds the amount (if any) due to the Consultant, the difference shall be recoverable by the Client from the Consultant.
42.2 The termination of this Contract in accordance with Clause 41 (Termination) or its expiry shall not affect any right of action or remedy which shall have accrued or shall thereupon accrue to either party and shall not affect the continued operation of Clauses 18 (Audit), and 23 (Intellectual Property Rights)
42.3 Following the service of a termination notice, the Consultant shall continue to perform its obligations in accordance with the provisions of this Contract until termination.
42.4 On expiry or termination of the Contract the Consultant must:
42.4.1 immediately return to the Client all Client Property and Client Protected Information in its possession; and
42.4.2 destroy or delete any copies of Client Protected Information (whether physical or electronic) in its possession.
43. Governing Law
This Contract shall be governed by and construed in accordance with Scottish law and the Consultant hereby irrevocably submits to the jurisdiction of the Scottish courts. The submission to such jurisdiction shall not (and shall not be construed so as to) limit the right of the Client to take proceedings against the Consultant in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.
44. Counter Terrorism Prevent Duty
The Consultant shall throughout the period of the Contract assist the Client with its statutory obligation under section 26 of the Counter-Terrorism and Security Act 2015 to have due regard to the need to prevent people from being drawn into terrorism, as reasonably required by the Client.
45. United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 ("The 2024 Act")
In so far as the Contract, or any part thereof, may relate to “functions of a public nature” the Supplier shall for the duration of the Contract act compatibly with the 2024 Act. During the period of the Contract, the Supplier shall produce such evidence as the Purchaser may require to satisfy the Purchaser that the Supplier has complied with this Clause.
46. Schedule 1 (Data Protection)
Data Processing provision as required by Article 28(3) of the UK GDPR.
This Schedule includes certain details of the Processing of Personal Data in connection with the Services:
Subject matter and duration of the Processing of Personal Data
The subject matter and duration of the Processing of Personal Data are:
The nature and purpose of the Processing of Personal Data
Complete relevant details.
The type of Personal Data to be Processed
Complete relevant details.
The categories of Data Subject to whom Personal Data related
Complete relevant details.
The obligations and rights of the Client
The obligations and rights of the Client as the Data Controller are set out in Clause 15 of the Contract.