Terms and Conditions for the Purchase of Goods

1. Definitions

In the Contract, unless the context otherwise requires, the following terms have the meanings given to them below:

“Catalogue and Pricing Schedule” means the catalogue of Goods to be supplied and details of the pricing of the Goods set out in the Supplier’s submission within the PCS-T Commercial Envelope.

“Clause” means a specific point or provision in these Terms and Conditions.

“Commencement Date” means the commencement date, as specified in the contract award letter.

“Commercial Envelope” means the pricing schedule section within the Public Contracts Scotland e-tendering portal.

“Contract” means any formal Contract entered into between the Supplier and North Ayrshire Council for the supply of the Goods. 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 Supplier’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 Purchasers staff appointed for the purposes of overseeing the Contract, monitoring the performance of the Supplier and ensuring that the standards 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 Supplier 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 Supplier to the Purchaser and identified as a deliverable in accordance with the Ordering Procedures.

“Force Majeure” 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 Supplier under the same or similar circumstances.

“Goods” means the Goods as are to be supplied by the Supplier to the Purchaser as set out in the Catalogue and Pricing Schedule and as may be ordered in accordance with the Ordering Procedures.

“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 Contract by or on behalf of the Supplier.

“ITT” means the Purchaser’s 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 Supplier must adhere to.

“Law” means:

“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 Goods set out in the ITT, Quick Quote Project Brief or Single Tender Action documents.

“Party” means the Supplier and Purchaser respectively.

“Parties” means the Supplier and Purchaser 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 Goods are to be delivered or installed, as specified in the Contract.

“Pricing Schedule” means the details of the pricing of the Goods as at the Commencement Date set out in the Suppliers 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 Goods placed in accordance with the Ordering Procedures.

“Purchaser” 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.

“Purchaser Property” means any corporeal moveable property issued or made available to the Supplier by the Purchaser in connection with the Contract.

“Purchaser Protected Information” means any specific protected information detailed in the ITT.

“Quick Quote” means a low value procurement exercise progressed by online quotation via PCS-T.

“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 Supplier and sent to the Purchaser.

“Specification” means the document forming part of the procurement process which sets out the Purchaser’s requirements and objectives of each stage of the delivery of the Goods.

“Sub-Contract” means a Contract between two or more Suppliers, at any stage of remoteness from the Purchaser 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.

“Supplier” means the person, firm or company to whom the Contract is issued.

“Supplier Representative” or “Supplier Representatives” or “Supplier’s Representatives” means all persons engaged by the Supplier 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 Supplier (whether approved under Clause 21 (Assignation and Sub-Contracting) or otherwise).

“Staff” means any persons employed by the Supplier, and any persons employed by a third party but working for and under the control of the Supplier, who are or may be at any time concerned with the Contract or any part of.

“Tender” means the tender submitted by the Supplier to the Purchaser 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 Purchaser, the Supplier 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 Purchaser. The parties acknowledge that if this condition has not been fulfilled any performance of this Contract by the Supplier shall be at the risk of the Supplier and the Purchaser shall not be liable for and the Supplier irrevocably waives any entitlement to payment of any fees, expenses or other payments in relation to such performance. Where the Supplier has failed to fulfil this condition prior to and no later than the Commencement Date the Purchaser shall have the right to terminate the Contract by notice in writing to the Supplier.

4. Nature of the Contract

4.1 The Contract is a public supply contract within the meaning of regulation 2(1) of the Public Contracts (Scotland) Regulations 2015.

4.2 The Contract is for the purchase or hire or the purchase and hire of Goods.

4.3 Save to the extent specifically provided for in the Contract, the Supplier acknowledges that it is not the exclusive supplier of the Goods to the Purchaser and as such no guarantee of work or volume of work has been granted by the Purchaser.

5. Purchaser's Obligations

Save as otherwise expressly provided, the obligations of the Purchaser under the Contract are obligations of the Purchaser in its capacity as a contracting counterparty and nothing in the Contract shall operate as an obligation upon, or in any other way fetter or constrain the Purchaser in any other capacity, nor shall the exercise by the Purchaser of its duties and powers in any other capacity lead to any liability under the Contract (howsoever arising) on the part of the Purchaser to the Supplier.

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 Purchaser may, by giving notice to the Supplier, 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 Purchaser may extend the period of the Contract on more than one occasion.

7. Specification and Key Performance Indicators

The Supplier must comply with the Specification. In particular, the Supplier must meet or exceed the Key Performance Indicators.

8. Catalogue and Pricing Schedule

8.1 The Catalogue and Pricing Schedule sets out details of:

8.1.1 the Goods that are to be supplied under the Contract; and

8.1.2 the pricing of those Goods.

8.2 The list of Goods in the Catalogue and/or Pricing Schedule are either not to be varied 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 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.

8.4 Accordingly, the Supplier may not unilaterally increase the prices in the Catalogue and Pricing Schedule. But nothing in the Contract prevents the Supplier from improving on the prices in the Catalogue and Pricing Schedule for the purposes of a particular Order.

8.5 The Catalogue may be varied by substitution or by addition of a product, or products, provided such product is, or products are, similar to the product/ products originally listed in the Catalogue. Any such substitution or addition requires the Purchaser’s prior written approval.

9. Ordering Procedures and Management Arrangements

9.1 The Ordering Procedures may be invoked by the Purchaser 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 Supplier must maintain the capacity to supply Goods throughout the period of the Contract.

10. Supplier's Status

At all times during the period of the Contract the Supplier is an independent supplier and nothing in the Contract establishes a contract of employment, a relationship of agency or partnership or a joint venture between the Parties. 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 Supplier or to the Purchaser in the following manner:

11.2.1 For the Supplier – 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 Purchaser – 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 Supplier or the Purchaser.

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 Supplier shall advise the Purchaser, 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 Purchaser may change its address for Goods delivery by sending a notice in accordance with this Clause.

11.8 The Purchaser shall not be responsible for any failure to intimate or delay in intimation arising out of or in consequence of the Supplier’s omitting to advise the Purchaser of a change of the Supplier’s address under this Clause.

12. Price

12.1 In consideration of the Supplier’s performance of its obligations relating to an Order, the Purchaser must pay:

12.1.1 the price due in accordance with the Catalogue and 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 No additional payment is due to the Supplier in respect of:

12.2.1 providing documentation in accordance with clause 20.25.5 (Supply of Goods);

12.2.2 packaging and labelling the Goods in accordance with clause 22 (Packaging and Labelling); or

12.2.3 the cost of installing the Goods or providing training in accordance with clause 26 (Installation and Training), where applicable.

12.3 The Supplier may not suspend the supply of Goods if it considers that the Purchaser has failed to pay the price due.

13. Payment and Invoicing

13.1 The Purchaser must pay all sums due to the Supplier within 30 days of receipt of a valid invoice or 30 days of the date of accepted delivery of the Goods by the Purchaser, whichever is the later.

13.2 The Supplier must render invoices monthly in arrears.

13.3 The Supplier must ensure that each invoice contains appropriate Contract and Purchase Order references, and a detailed breakdown of the Goods supplied. The Supplier must supply such other documentation reasonably required by the Purchaser 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 Purchaser, the sums referred to in this clause must be properly invoiced by the Supplier.

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 Purchaser will not be liable to pay for any Goods supplied by the Supplier unless specified in a Purchase Order.

13.8 The Supplier 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 Supplier, that sum may be deducted from any sum then due, or which at any later time may become due, to the Supplier under this Contract or under any other agreement or contract between the Supplier and the Purchaser.

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 Supplier acknowledges that Personal Data described in the scope of the Schedule (Data Protection) will be processed in connection with the Goods under this Contract. For the purposes of any such Processing, Parties agree that the Supplier acts as the Data Processor and the Purchaser 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, Clauses 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 Supplier under Data Protection Laws and the Supplier hereby agrees to comply with those obligations and duties.

15.5 The Supplier will, in conjunction with the Purchaser and in its own right and in respect of the Goods, make all necessary preparations to ensure it will be compliant with Data Protection Laws.

15.6 The Supplier will provide the Purchaser 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 Supplier 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 Purchaser (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 Supplier is subject; in which case the Supplier must inform the Purchaser 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 Supplier’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 Purchaser’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 Supplier Personnel who have access to the Personal Data and ensure that the Supplier 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 Supplier shall not engage a sub-contractor to carry out Processing in connection with the Goods without prior specific or general written authorisation from the Purchaser. In the case of general written authorisation, the Supplier must inform the Purchaser of any intended changes concerning the addition or replacement of any other sub-contractor and give the Purchaser an opportunity to object to such changes.

15.9 If the Supplier engages a sub-contractor for carrying out Processing activities on behalf of the Purchaser, the Supplier must ensure that same data protection obligations as set out in this Contract are imposed on the sub-contractor by way of a written and legally binding contract, in particular providing sufficient guarantees to implement appropriate technical and organisational measures. The Supplier shall remain fully liable to the Purchaser for the performance of the sub-contractor’s performance of the obligations.

15.10 The Supplier must provide to the Purchaser 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 3 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 Supplier must assist the Purchaser in complying with the Purchaser’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 Contract relating to Processing the Supplier must, on written instruction of the Purchaser, delete or return to the Purchaser all Personal Data and delete existing copies unless storage of the Personal Data is required by law.

15.13 The Supplier 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 Supplier’s day to day business.

15.15 The Supplier must maintain written records including in electronic form, of all Processing activities carried out in performance the Contract or otherwise on behalf of the Purchaser containing the information set out in Article 30(2) of the UK GDPR.

15.16 If requested, the Supplier 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 condition 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 Supplier shall keep secret and not disclose and shall procure that the Supplier’s Representatives keep secret and do not disclose any information of a confidential nature or business data obtained by the Supplier by reason of this Contract except information which is in the public domain otherwise than by reason of a breach of this provision.

17.2 All information related to the Contract will be treated as commercial in confidence by the parties except that the Supplier or Purchaser or both may disclose any information as required by law or judicial order to be disclosed.

17.3 The Supplier shall at all times comply with the Purchaser’s “IT and Cyber Security Policy” (“the Policy”) and it is the Supplier’s responsibility to ensure that the Supplier and the Supplier’s Representatives are familiar with and comply with the Policy as well as with any of the Purchaser’s related security standards, guidelines and procedures in relation to the Policy. The Policy can be obtained on request by contacting the Purchaser’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 Supplier shall keep and maintain until the date falling seven (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 Goods supplied under it, all expenditure reimbursed by the Purchaser, and all payments made by the Purchaser. The Supplier shall on request afford the Purchaser such access to those records as may be requested by the Purchaser 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 Supplier shall not use the North Ayrshire Council logo without the prior written consent of the Purchaser.

19.2 The Supplier shall not disclose any details relating to Contract performance and operations with the Purchaser to any other Party without the prior written consent of the Purchaser.

19.3 The Supplier 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 Purchaser.

20. Supply of Goods

20.1 The Supplier must supply and where required install the Goods:

20.1.1 in accordance with the Specification, Quick Quote Project Brief, Single tender Action documents, the Key Performance indicators, the Catalogue and Pricing Schedule and the Ordering Procedures; and

20.1.2 in accordance with the particular requirements of each Purchase Order.

20.2 The Goods must be:

20.2.1 designed and constructed so as to be safe and without risk to the health or safety of those using them when installed and properly used;

20.2.2 to the satisfaction of the Purchaser acting reasonably;

20.2.3 fit and sufficient for the purposes for which such goods are ordinarily used (having regard to the manufacturer’s published specifications);

20.2.4 fit and sufficient for any particular purposes set out in the Specification, Quick Quote Project Brief or Single Tender Action documents or otherwise made known to the Supplier by the Purchaser; and

20.2.5 accompanied by all documentation (such as instructions, manuals and guides) that are normally supplied by the manufacturer or supplier of the Goods or are otherwise necessary to make use of the Goods.

20.3 The Supplier acknowledges that the Purchaser relies on the skill, care, diligence and judgment of the Supplier in the supply of the Goods and the performance of its obligations under the Contract.

20.4 The Purchaser may inspect or test the Goods either complete or in the process of manufacture during Working Hours on reasonable notice at the Supplier’s premises. The Supplier must at its expense provide all reasonable assistance and facilities in relation to any such inspection or test.

20.5 If requested by the Purchaser, the Supplier must provide the Purchaser with samples of the Goods for evaluation and approval, at the Supplier’s expense.

20.6 For each Purchase Order for the supply of Goods, subject to any contrary requirements of the Purchaser communicated in accordance with the Ordering Procedures, the provisions of Clauses 20 to 26 inclusive and Clause 12 (Price) apply.

21. Delivery and Non-Delivery

21.1 The Supplier must deliver the Goods at the time(s) and date(s) and to the location(s) specified by the Purchaser.

21.2 On dispatch of any consignment of the Goods the Supplier must send the Purchaser a notice specifying the means of transport, the place and date of dispatch, the number of packages and their weight and volume.

21.3 The Goods are not deemed to be delivered unless an authorised representative of the Purchaser has signed an acknowledgement that the Goods have been delivered.

21.4 The Goods must not be unloaded and left outside any Purchaser’s premises.

21.5 Accordingly, delivery includes the unloading and stacking of the Goods at such place as the Purchaser reasonably directs.

21.6 Notwithstanding Clause 21.3, the point of delivery of the Goods is:

21.6.1 when the Goods are removed from the transporting vehicle at the Purchaser’s premises, in cases where the Goods are delivered by the Supplier; and

21.6.2 when the Goods are loaded on the Purchaser’s vehicle, in cases where the Goods are collected by the Purchaser.

21.7 The Purchaser is not required to accept:

21.7.1 Goods supplied earlier than the required date and time for delivery;

21.7.2 delivery by instalments; or

21.7.3 defective Goods, or Goods which fail to conform to the requirements of the Contract or meet the particular requirements of the Purchase Order

21.8 Where the Goods are not delivered to the Purchaser at the due date and time for delivery or have been damaged in transit, the Purchaser may give notice to the Supplier of that fact and may require the Supplier at its expense to deliver substitute Goods or repair the Goods within the timescales specified by the Purchaser.

22. Packaging and Labelling

22.1 The Supplier must ensure that all packaging is of adequate size and of suitable quality to prevent damage to the Goods. The Goods must be packed in a proper manner.

22.2 Packaging must be marked with or The Goods must be accompanied by a delivery note stating:

22.2.1 the name of the contents;

22.2.2 the net, gross and tare weights; and

22.2.3 appropriate Contract and Purchase Order references.

22.3 All containers of fragile or hazardous Goods must bear prominent and adequate warnings.

22.4 It is agreed that packaging materials are not to be returned to the Supplier.

23. Acceptance and Rejection

23.1 The Purchaser is deemed to have accepted the Goods only if it expressly states the same in writing or fails to reject the Goods in accordance with Clause 23.3.

23.2 Accordingly the issue by the Purchaser of a receipt note for the Goods does not constitute any acknowledgement of the condition, quantity or nature of those Goods, or the Purchaser’s acceptance of them.

23.3 The Purchaser may by notice to the Supplier within a reasonable time after delivery of the Goods reject any of the Goods which are defective or fail to conform to the requirements of the Contract or meet the particular requirements of the Purchase Order (for example, where an excess quantity of Goods has been delivered). 23.4 If the Purchaser rejects any of the Goods pursuant to Clause 23.3 the Purchaser may either:

23.4.1 have such Goods promptly, and in any event within 5 Working Days, removed and replaced by the Supplier at the Supplier’s expense with Goods which conform in all respects with the requirements of the Contract, and due delivery is not deemed to have taken place until such replacement has occurred; or

23.4.2 obtain a refund (if payment for any Goods has already been made) promptly, and in any event within 30 days, from the Supplier in respect of the Goods concerned together with payment of any additional expenditure reasonably incurred by the Purchaser in obtaining other Goods in replacement provided that the Purchaser uses its reasonable endeavours to mitigate any additional expenditure in obtaining replacement Goods.

23.5 In the case of excess Goods, the Purchaser may: 23.5.1 have the excess Goods removed in accordance with Clause 23.4.1; and

23.5.2 obtain payment from the Supplier of any costs incurred by it as a result of over-delivery (such as any costs of moving or storing the excess Goods).

24. Return and Refund

24.1 The Purchaser may by notice to the Supplier within a reasonable time after delivery of the Goods return any of the Goods where the Goods to be returned are in a re-saleable condition. Returned Goods must be removed promptly at the Supplier’s expense, within 5 Working Days.

24.2 If the Purchaser has paid any part of the price due in respect of any returned Goods, the Purchaser is entitled to obtain a refund from the Supplier promptly, and in any event within 30 days.

24.3 The Purchaser must, if requested by the Supplier, give reasons for returning the Goods.

25. Risk and Ownership

25.1 Risk in the Goods passes to the Purchaser at the time of delivery, except that risk in any excess Goods referred to in Clause 23 (Acceptance and Rejection) remains with the Supplier unless they are accepted by the Purchaser.

25.2 Risk in any Goods rejected or returned in accordance with Clauses 23 (Acceptance and Rejection) or 24 (Return and Refund) is with the Supplier.

25.3 Ownership of the Goods passes to the Purchaser at the time of delivery.

26. Installation and Training

26.1 The Supplier must carry out any installation work required by the Supplier at the date(s), time(s) and location(s) required by the Purchaser as detailed in the Specification, Quick Quote Project Brief or Single Tender Action documents. The Supplier must not begin any work without the prior written approval of the Purchaser.

26.2 When the Supplier believes acting reasonably that it has completed any installation works it must notify the Purchaser. The Purchaser may thereafter inspect the installation work and, by notice to the Supplier:

26.2.1 accept the installation works; or

26.2.2 providing reasons, reject the installation works.

26.3 Where the Purchaser rejects installation works in accordance with clause 26.2.2 the Supplier must immediately rectify or remedy any defects.

26.4 The Supplier is deemed to have inspected the premises at which the installation will take place so as to have understood the nature and extent of the installation to be carried out and is deemed to be satisfied in relation to all matters connected with the installation and the location. The Purchaser shall, at the request of the Supplier, grant such access as may be reasonable for this purpose.

26.5 The Supplier must carry out any out any training required by the Supplier at the date(s), time(s) and location(s) required by the Purchaser detailed in the specification, Quick Quote Project Brief or Single Tender Action documents.

27. Guarantee

27.1 The Supplier guarantees the Goods from the date of delivery against defects in design, materials or workmanship.

27.2 Where a defect in any of the Goods arises under proper and normal use by the Purchaser during the guarantee period, and the Purchaser gives notice of that fact to the Supplier, the Supplier must promptly, and in any event within 5 Working Days, remove and replace the defective Goods with Goods which conform in all respects with the requirements of the Contract.

28. Hire of Goods

28.1 For each Purchase Order for the hire of Goods, subject to any contrary requirements of the Purchaser communicated in accordance with the Ordering Procedures: 28.1.1 the provisions of clauses 20 to 27 apply, except Clauses 25.3 (Risk and Ownership) and 27 (Guarantee); and

28.1.2 the provisions of Clauses 28 to 34 apply.

28.2 The hire period agreed in accordance with the Purchase Ordering Procedures may be brought to an earlier end upon three (3) months’ notice by the Purchaser.

29. Purchaser's Rights

29.1 The Purchaser has the right to quiet possession of the hired Goods, and the hired Goods shall be not be encumbered by any form of security.

29.2 Where a defect in any of the hired Goods arises under proper and normal use by the Purchaser the Supplier must, at its expense and without delay:

29.2.1 repair the defective Goods; or

29.2.2 remove the defective Goods and replace them with non-defective Goods of the same type and upon the same terms as the original hired Goods.

30. Purchasers Obligation in Respect of Hired Goods

30.1 The Purchaser must make reasonable efforts to:

30.1.1 keep the hired Goods in a good and serviceable condition but no betterment by the Purchaser is required; and

30.1.2 use them in accordance with any documentation provided by the Supplier.

30.2 The Purchaser must not, without the written consent of the Supplier (such consent not to be unreasonably withheld or delayed):

30.2.1 modify or replace the hired Goods except in accordance with Clause 32 (Upgrades, Downgrades and Improvements);

30.2.2 use the hired Goods as security for a loan or other obligation;

30.2.3 sell, or attempt to sell or part with possession of the hired Goods;

30.2.4 allow anyone to obtain a lien over, or right to retain, the hired Goods;

30.2.5 move the hired Goods from the Purchaser’s premises except where it is necessary to do so for the purposes of maintaining or repairing the hired Goods.

31. Ownership of Hired Goods

31.1 Ownership in the Goods remains with the Purchaser throughout the hire period agreed in accordance with the Purchase Ordering Procedures.

31.2 The Ordering Procedures apply to any proposal during the hire period that any of the hired Goods be purchased by the Purchaser.

32. Upgrades, Downgrades and Improvements

32.1 The Supplier must provide support and guidance to the Purchaser in determining the most effective and efficient way of using the hired Goods to meet the Purchaser’s requirements, including by bringing to the Purchaser’s attention possible upgrades, downgrades and improvements that the Supplier is able to provide (including the replacement of component parts or the installation of new software).

32.2 The Ordering Procedures apply to any proposal during the hire period for upgrades, downgrades or improvements to the hired Goods.

33. End of the Hire Period

33.1 As soon as practicable upon, and in any event within five (5) Working Days of, expiry of the hire period the Supplier must, at its expense, collect the hired Goods from the Purchaser.

33.2 On or before the date of collection by the Supplier the Purchaser must, at its expense, ensure that the hired Goods are in the same working order and condition as when delivered or installed, subject to due allowance being made for wear and tear.

33.3 In the event that the Purchaser is unable to make any of the hired Goods available for collection by the Supplier, the Purchaser must pay to the Supplier the residual value of the Goods, calculated in accordance with the Catalogue and Pricing Schedule.

33.4 This Clause 33 does not apply to the extent that the Parties agree that any of the hired Goods are to be purchased by the Purchaser.

34. Special Pricing Provision

The Purchaser is not liable to pay any hire charges or other recurrent or automated charges in respect of periods prior to or after the hire period.

35. Intellectual Property Rights

35.1 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 Supplier on behalf of the Purchaser for use, or intended use, in relation to the performance by the Supplier of its obligations under the Contract are hereby assigned to and shall vest in the Purchaser absolutely.

35.2 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 Supplier by or as directed by the Purchaser shall remain the property of the Purchaser.

35.3 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.

35.4 The Supplier must not infringe any Intellectual Property Rights of any third party in providing the Goods or otherwise performing its obligations under the Contract. The Supplier shall indemnify the Purchaser against all actions, claims, demands, losses, charges, costs and expenses which the Purchaser may suffer or incur as a result of or in connection with any breach of this Clause 35.4.

35.5 The Supplier shall, at the request of the Purchaser, provide the Purchaser with a complete and up-to-date copy of all electronically stored data and all other information necessary to ensure that the Purchaser can continue to use the electronically stored data so provided by the Supplier; all to the reasonable satisfaction of the Purchaser.

35.6 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 Supplier shall store all data on a suitable medium in either its native format or in a neutral file format to suit the Purchasers requirements.

35.7 The Purchaser reserves the right to verify and validate any information contained within the electronically stored data within one year from completion of the Contract. The Supplier shall remedy at their own expense any defects or inadequacies discovered during the said one year and notified by the Purchaser to the Supplier and such defects or inadequacies shall be remedied within 14 Working Days of receipt of such notification.

35.8 The Supplier shall not have the right to use any reports, or other materials referred to in Clause 35.1 without the prior written consent of the Purchaser and then only upon such terms as may be imposed in connection therewith, except for information which is in the public domain.

35.9 The provisions of this Condition shall apply during the continuance of this Contract and after its termination howsoever arising.

36. Assignation and Sub-Contracting

36.1 The Supplier shall not assign or sub-contract any portion of the Contract without the prior written consent of the Purchaser. Sub-contracting any part of the Contract shall not relieve the Supplier of any obligation or duty attributable to the Supplier under the Contract or these Terms and Conditions.

36.2 Where the Purchaser has consented to the placing of any Sub-Contract(s), the Purchaser reserves the right to obtain and keep copies of any Sub-Contract(s) from the Supplier, and the Supplier shall send copies of any Sub-Contract(s) to the Purchaser immediately at the Purchasers request.

36.3 Where the Purchaser has consented to the placing of any Sub-Contract, and the Supplier enters into a Sub-Contract, the Supplier must ensure that provisions are included which:

36.3.1 requires payment to be made of all sums due by the Supplier 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 Purchaser has made payment to the Supplier in respect of the Goods, or any part of the Goods, and the sub-contractor’s invoice relates to such Goods then, to that extent, the invoice must be treated as valid and, provided the Supplier is not exercising a right of retention or set-off in respect of a breach of contract by the sub-contractor or in respect of a sum otherwise due by the sub-contractor to the Supplier, payment must be made to the sub-contractor without deduction;

36.3.2 notifies the sub-contractor that the Sub-Contract forms part of a larger Contract for the benefit of the Purchaser 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 Purchaser;

36.3.3 provides the Supplier 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 Clause 36.3 occur;

36.3.4 requires the sub-contractor to include provisions having the same effect as Clauses 36.3.1, 36.3.2, and 36.3.3 above in any Sub-Contract it awards; and

36.3.5 in the same terms as that set out in this Clause 36.3 (including for the avoidance of doubt this Condition 36.3.5) subject only to modification to refer to the correct designation of the equivalent Party as the Supplier, sub-contractor and sub-sub-contractor as the case may be.

36.4 Suppliers to the Purchaser 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. Any breach of this Condition 36 by the Supplier is a material breach for the purposes of Clause 54.2 (Termination).

37. Change of Name/Contract Novation

37.1 If the Supplier’s company name changes during the Contract but their company registration remains the same, the Supplier will be required to provide a copy of their “Certificate of Incorporation on Change of Name” at the earliest opportunity.

37.2 Where the company registration number changes the Supplier must inform the Purchaser immediately of any changes.

37.3 Where there is a change to any of the following the Purchaser reserves the right to terminate the Contract with immediate effect:

• Location of service;
• Management structure;
• Staff providing the service;
• Operational policies and procedures.

37.4 Subject to the above the Purchaser reserves the right to consider continuing the Contract with the new company provided that the company:

• Meets any pre-qualification and minimum conditions that were applied when the original Contract was awarded;
• scores at least the same scores for the quality criteria that were applied at the procurement evaluation stage;
• Signs a Deed of Novation confirming that they accept all contractual obligations and liabilities contained within the contract.

38. Amendment

The Contract may be amended only by the written agreement of both Parties. Accordingly, the Supplier may not unilaterally amend the Contract.

39. Compliance with Law etc.

Throughout the duration of the Contract the Supplier shall be bound and obliged to comply with all applicable law, Good Industry Practice and the standards relevant to the Goods (including regulatory bodies). 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.

40. Supplier's Responsibility for Staff

40.1 The Supplier is responsible for the acts and omissions of all Supplier Representatives relating to the Contract as though such acts and omissions are the Supplier’s own.

40.2 The Supplier must ensure that all Supplier Representatives:

40.2.1 are appropriately experienced, skilled, qualified and trained;

40.2.2 carry out their activities connected with the Contract all with due skill, care and diligence; and

40.2.3 obey all lawful and reasonable directions of the Purchaser when carrying out activities under the Contract.

41. Security and Access to the Purchaser Premises

41.1 Any access to, or occupation of, the Purchaser’s Premises which the Purchaser may grant the Supplier from time to time is on a non-exclusive licence basis free of charge. The Supplier must use the Purchaser’s Premises solely for the purpose of performing its obligations under the Contract and must limit access to the Purchaser’s Premises to such individuals as are necessary for that purpose.

41.2 The Supplier must comply with the Purchaser’s controls, procedures and policies concerning security and access to the relevant Purchasers Premises and any such modifications to those controls, procedures and policies or replacement controls, procedures and policies as are notified to the Supplier from time to time.

41.3 The Supplier must notify the Purchaser of any matter or other change in circumstances which might adversely affect future security and access to the Purchasers Premises.

41.4 At the Purchaser’s written request, the Supplier must provide a list of the names and addresses of all persons who may require admission to the Purchaser’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 Purchaser may reasonably request.

41.5 The Supplier must ensure that any individual Supplier Representative entering the Purchaser’s Premises complies with any controls, procedures and policies, if applicable, for obtaining access. The Supplier acknowledges that the Purchaser has the right to deny entry to any individual that does not comply with the Purchaser’s controls, procedures, and policies concerning security and access.

41.6 In accordance with the Purchaser’s controls, procedures and policies concerning visitor access, entry to the Purchaser’s Premises may be granted to individual Supplier Representatives for the purposes of meetings.

41.7 The Purchaser may, by notice to the Supplier, refuse to admit onto, or withdraw permission to remain on, the Purchaser’s Premises any Supplier Representative whose admission or continued presence would, in the opinion of the Purchaser acting reasonably, be undesirable.

41.8 The Purchaser will provide advice and assistance acting reasonably to the Supplier to facilitate the Supplier’s compliance with this Clause 41.

41.9 All decisions of the Purchaser under this Clause are final and conclusive.

41.10 Breach of this Condition 41 by the Supplier is a material breach for the purposes of Condition 55.2 (Termination).

42. Supplier's Equipment

42.1 The Supplier must provide all Equipment necessary to perform any required activities on the Purchaser’s Premises or otherwise necessary for the supply of Goods.

42.2 But the Supplier must not, without the Purchaser’s approval:

42.2.1 bring Equipment onto the Purchaser’s Premises; or

42.2.2 leave Equipment on the Premises.

42.3 Any Equipment brought onto the Purchaser’s Premises:

42.3.1 remains the property of the Supplier; and

42.3.2 is at the Supplier’s own risk and the Purchaser has no liability for any loss of or damage to the Equipment unless the Supplier is able to demonstrate that such loss or damage was caused or contributed to by the Purchaser’s Default.

42.4 The Supplier must keep all Equipment brought onto the Purchaser’s Premises in a safe, serviceable and clean condition. The Purchaser may at any time require the Supplier to remove from the Purchaser’s Premises any Equipment which in the reasonable opinion of the Purchaser is either hazardous, noxious or not in accordance with the Contract and substitute proper and suitable Equipment at the Supplier’s expense as soon as reasonably practicable.

42.5 On completion of any required activities on the Purchaser’s Premises or at the end of a Working Day (as appropriate) the Supplier must at its own expense:

42.5.1 remove all Equipment; and

42.5.2 leave the Purchaser’s Premises in a clean, safe and tidy condition, clearing away all rubbish arising out of the Supplier’s activities.

42.6 The Supplier is solely responsible for making good any damage to the Purchaser’s Premises or any objects contained therein, other than wear and tear, which is caused by the Supplier.

43. Health & Safety

43.1 The Supplier shall perform the Contract in such a manner as to be safe and without risk to the health or safety of persons in the vicinity of the place where the Contract is being performed (whether such persons are in the vicinity of the said place at the time when the Goods are being delivered or otherwise) and in such a manner as to comply with any relevant health and safety or other legislation (including Statutory Instrument, Orders, or Regulations made under the said legislation) and any requirements imposed by a local or other regulatory authority in connection with the performance of the Contract of the type supplied to the Purchaser, whether specifically or generally. The Supplier shall indemnify the Purchaser against all actions, suits, claims, demands, losses, charges, costs and expenses which the Purchaser may suffer or incur as a result of or in connection with any breach of this Clause.

43.2 The Supplier must notify the Purchaser immediately of any risks to health or safety which are identified or arise during the Contract.

43.3 Notwithstanding Clause 41 (Security and Access to the Purchaser’s Premises) of this Contract the Supplier shall comply with any health and safety measures implemented by the Purchaser in respect of the Purchaser’s Premises when accessing and/or occupying the Purchaser’s Premises, and shall notify the Purchaser immediately of any incident(s) which causes or is likely to cause any personal injury or damage to property when accessing and/or occupying the Purchaser’s Premises.

43.4 The Supplier shall notify the Purchaser immediately of any health and safety hazards which may exist or arise at the Premises which may affect the Supplier’s performance of its duties under the Contract.

43.5 The Supplier shall ensure that its health and safety policy statement (as required by The Health and Safety at Work etc. Act 1974) is made available to the Purchaser on request.

44. Tax Arrangements

44.1 Where the Supplier 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.

44.2 Where the Supplier is liable to 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.

44.3 The Purchaser may, at any time during the term of this contract, request the Supplier to provide information which demonstrates how the Supplier complies with sub-clauses 44.1 and 44.2 above or why those clauses do not apply to it.

44.4 A request under sub-clause 44.3 above may specify the information which the Supplier must provide and the period within which that information must be provided.

44.5 The Purchaser may supply any information which it receives under clause 44 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.

44.6 The Supplier shall take all reasonable steps to ensure the observance of the provisions of this clause 44 by all Supplier Representatives.

44.7. Where the Supplier enters into any contract with any Supplier Representative, the Supplier must ensure that a provision is included which is in the same terms as this clause 44 subject only to modification to refer to the correct designation of the equivalent party as the Supplier.

45. Equality

The Supplier 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 Supplier 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 Supplier shall take all reasonable steps to secure the observance of this Clause 45 by all employees and representatives of the Supplier.

46. Blacklisting

46.1 The Supplier 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 Condition is a material default which shall entitle the Purchaser to terminate the Contract.

46.2 Suppliers sub-contracting, assigning or novating any part of the Contract must impose the same conditions on any sub-contractor or party to whom such a part of the Contract is novated or assigned.

47. Conflicts of Interest

47.1 The Supplier must take appropriate steps to ensure that the Purchaser is not placed in a position where, in the reasonable opinion of the Purchaser, there is an actual or potential conflict between the interests of the Supplier and the duties owed to the Purchaser under the Contract.

47.2 The Supplier must disclose by notice to the Purchaser 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.

47.3 Breach of this clause by the Supplier is a material breach for the purposes of clause 55.1.3 (Termination Rights).

48. Corrupt Gifts or Payments

The Supplier shall not offer or give, or agree to give, to any employee or representative of the Purchaser 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 Purchaser 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 Supplier is drawn to the criminal offences created by the Bribery Act 2010.

49. Warranties and Representations

The Supplier warrants and represents that:

49.1 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.

49.2 in entering the Contract it has not committed any offence under the Bribery Act 2010 or of fraud of uttering at common law or any other kind referred to in the Public Contracts (Scotland) Regulations 2015.

49.3 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.

49.4 as at the Commencement Date, all information contained in the SPD and Tender, Quick Quotes or Single Tender Action response remains true, accurate and not misleading, save as may have been specifically disclosed in writing to the Purchaser prior to execution of the Contract.

49.5 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.

49.6 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.

49.7 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 Supplier 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 Supplier’s assets or revenue.

49.8 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.

49.9 in the 3 years prior to the Commencement Date:

49.9.1 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;

49.9.2 it has been in full compliance with all applicable securities and tax laws and regulations in the jurisdiction in which it is established.

49.10 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.

49.11 it has made appropriate inquiries (for example as regards the Purchaser’s premises) so as to be satisfied in relation to all matters connected with the performance of its obligations under the Contract.

49.12 it has in place appropriate technical and organisational measures to safeguard any Purchaser Protected Information provided by the Purchaser; and

49.13 there are no actual or potential conflicts between the interests of the Supplier and the duties owed to the Purchaser under the Contract, save as may have been specifically disclosed in writing to the Purchaser prior to execution of the Contract.

50. Indemnity and Insurance

50.1 Without prejudice to any rights or remedies of the Purchaser, the Supplier shall indemnify the Purchaser against all actions, suits, claims, demands, losses, charges, costs and expenses which the Purchaser 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 Supplier.

50.2 Neither Party is liable to the other Party under the Contract for any:

50.2.1 loss of profits, business, revenue or goodwill; or

50.2.2 indirect or consequential loss or damage.

50.3 But clause 50.2 does not exclude any liability of the Supplier for additional operational, administrative costs or expenses or wasted expenditure resulting from the Default of the Supplier.

50.4 But neither Party excludes or limits liability to the other Party for:

50.4.1 death or personal injury caused by its negligence;

50.4.2 misrepresentation;

50.4.3 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.

50.5 The Purchaser shall indemnify the Supplier 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 Supplier has acted in accordance with the Purchaser’s written instructions, notwithstanding the above, nothing within this Contract relieves the Supplier of any of their own direct responsibilities and liabilities under Data Protection Laws.

50.6 The Supplier and any Sub-Contractor must effect and maintain with a reputable insurance company:

50.6.1 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;

50.6.2 Professional indemnity insurance, to the value of at least five million pounds (£5,000,000) sterling in the aggregate in the policy period;

50.6.3 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;

50.6.4 Products liability insurance, to the value of at least ten million pounds (£10,000,000) sterling in the aggregate in the policy period;

50.6.5 Third-party motor vehicle insurance maintained throughout the period of the Framework Agreement, in accord with the provisions of the current Road Traffic Act 1988 (as amended). A valid motor vehicle certificate in the Supplier’s name, or (where there is no fleet but rather the Supplier permits employees to use their personal vehicles for business purposes), a letter signed by a person of appropriate authority, confirming that the Supplier has ongoing arrangements in place to ensure their employees' vehicles are appropriately insured and maintained.

50.7 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.

50.8 The policy or policies of insurance referred to in Clause 50.6 shall be shown to the Purchaser whenever the Purchaser requests, together with satisfactory evidence of payment of premiums, including the latest premium due thereunder.

50.9 The Supplier 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 Purchaser on request.

50.10 In the event that a claim is intimated to the Supplier, the Supplier shall immediately acknowledge receipt of such claim to the claimant, investigate the facts and process the claim with its insurance company to the Purchaser's satisfaction. If required by the Purchaser, the Supplier 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 Purchaser's name cannot be brought into disrepute.

51. Force Majeure

51.1 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.

51.2 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.

51.3 Both Parties agree to use their best efforts to ensure that, during any period when a Force Majeure Event exists, the Goods are provided to the fullest extent practicable.

52. Dispute Resolution

52.1 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.

52.2 In the event of any dispute of an emergency nature arising out of or in connection with the Contract between the Parties the Purchaser shall be entitled to demand that the Supplier attempts in good faith and in a spirit of mutual trust and co-operation to resolve the dispute within any timescale as the Purchaser considers reasonable in the circumstances and the Supplier must comply. The Purchaser shall be the sole judge of what disputes are of an emergency nature.

52.3 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.

52.4 Any arbitration under Clause 52.3 is subject to the Arbitration (Scotland) Act 2010.

52.5 Nothing in this Clause 52 shall:

52.5.1 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

52.5.2 diminish the Parties to the Contract’s responsibilities in respect of contract administration.

53. 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.

54. Waiver and Cumulative Remedies

54.1 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.

54.2 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).

54.3 A waiver of any Default is not a waiver of any subsequent Default.

54.4 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.

55. Termination

55.1 The Purchaser may terminate the Contract by notice to the Supplier with immediate effect or at such later date as the Purchaser may specify, if the Supplier commits a Default and if:

55.1.1 the Supplier has not remedied the Default to the satisfaction of the Purchaser within 20 Working Days, or such other period as may be specified by the Purchaser, after issue of a notice specifying the Default and requesting it to be remedied;

55.1.2 the Default is not in the opinion of the Purchaser, capable of remedy; or

55.1.3 the Default is a material breach of the Contract.

55.2 The Supplier shall give notice to the Purchaser as soon as reasonably practicable if the Supplier 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 Contract.

55.2.1 In the event the Supplier gives the Purchaser the notice referred to at Clause 55.2 the Purchaser may terminate the Contract by notice to the Supplier with immediate effect, or such later date as the Purchaser may specify.

55.3 The Purchaser may also terminate the Contract in accordance with any provision in the ITT, Quick Quote Project Brief or Single Tender Action documents.

55.4 The Purchaser may terminate the Contract with immediate effect, or at such later date as the Purchaser may specify, by notice in the event that:

55.4.1 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

55.4.2 the Supplier 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

55.4.3 the Contract should not have been awarded to the Supplier in view of a serious infringement of the Purchaser’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

55.4.5 the Supplier fails to comply in the performance of the 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.

55.5 The Supplier shall notify the Purchaser in writing immediately upon the occurrence of any of the following events:

55.6 On the occurrence of any of the events described in Clause 55.5 or, where the Supplier 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 Purchaser shall be entitled to terminate this Contract by notice to the Supplier with immediate effect, or at such later date as the Purchaser may specify.

55.7 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.

56. Consequence of Expiry or Termination

56.1 Where the Purchaser terminates the Contract under Clause 55 (Termination) the Purchaser may make other arrangements for the supply of Goods, and the Supplier will indemnify the Purchaser against all costs thereof incurred by the Purchaser in making those arrangements. The Purchaser shall be entitled to deduct from any amount due to the Supplier the costs thereof incurred by the Purchaser, and if the total cost to the Purchaser exceeds the amount (if any) due to the Supplier, the difference shall be recoverable by the Purchaser from the Supplier.

56.2 The termination of this Contract in accordance with Clause 55 (Termination) or its expiry shall not affect any right of action or remedy which shall have accrued or shall thereupon accrue of either party, and shall not affect the continued operation of Clauses 18 (Audit) and 35 (Intellectual Property Rights).

56.3 Following the service of a termination notice, the Supplier shall continue to perform its obligations in accordance with the provisions of this Contract until termination.

56.4 On expiry or termination of the Contract the Supplier must:

56.4.1 immediately return to the Purchaser all Purchaser Property and Purchaser Protected Information in its possession; and

56.4.2 destroy or delete any copies of Purchaser Protected Information (whether physical or electronic) in its possession.

57. Governing Law

This Contract shall be governed by and construed in accordance with Scottish law and the Supplier 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 Purchaser to take proceedings against the Supplier 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.

58. Counter Terrorism Prevent Duty

The Supplier shall throughout the period of the Contract assist the Purchaser 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 Purchaser.

59. 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.

60. 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 Purchaser

The obligations and rights of the Purchaser as the Data Controller are set out in Condition 15 of the Contract.