Terms and conditions for the supply of goods and services
- Definitions. In these Conditions, the following definitions apply:
a day other than a Saturday, Sunday or public holiday in Northern Ireland when banks in Belfast are open for business. However, for the avoidance of doubt, it is agreed that Good Friday is a business day but Easter Tuesday is not
these terms and conditions as amended from time to time in accordance with clause 25.7.
any information relating to the disclosing party which is not publicly available including, but not limited to, any information specifically designated by the disclosing party as confidential; any information supplied to the disclosing party by any third party in relation to which a duty of confidentiality is owed or arises; and any other information which should otherwise be reasonably regarded as possessing a quality of confidence or as having commercial value in relation to the business or function of the disclosing party.
The tender completed by the accepted Contractor, the Conditions of the Contract; the specification or operational requirement; the drawings, if any, the schedule of prices or rates or lump sum as submitted by the accepted Contractor, the letter of acceptance issued by the Council to the accepted Contractor together with such correspondence, if any, between the accepted Contractor and the Council, as may be agreed by both parties in writing to form part of the Contract.
the person or firm from whom the Council purchases the Goods and/or Services.
Mid Ulster District Council
has the meaning set out in clause 5.4.9.
all documents, products and materials developed by the Contractor or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
the goods (or any part of them) set out in the Contract and any additional goods as agreed between the parties in writing from time to time.
any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Council and the Contractor.
"Intellectual Property Rights"
patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
the services, including without limitation any Deliverables, to be provided by the Contractor under the Contract.
- Construction. In these Conditions, the following rules apply:
- a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- a references to a party includes its successors or permitted assigns;
- a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
- any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
- a reference to writing or written includes faxes and emails.
- Basis of contract
- The Contract constitutes the entire agreement between the parties relating to the subject matter of the Contract. The Contract supersedes all prior negotiations, representations and undertakings, whether written or oral, except that this Condition shall not exclude liability in respect of any fraudulent misrepresentation.
- This Contract shall take effect on the commencement date and shall remain in force for [•] year(s) but with the written agreement of both parties may be extended annually for a further [•] years(s), unless it is otherwise terminated in accordance with the provisions of these Conditions.
[OR – for projects or contracts where the end date is not known]
This Contract shall take effect on the commencement date and shall remain in force until the completion of the agreed Services and/or Goods, unless it is otherwise terminated in accordance with the provisions of these Conditions.
- These Conditions apply to the Contract to the exclusion of any other terms that the Contractor seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
- Supply of Goods
- The Contractor shall ensure that the Goods shall:
- correspond with their description and any applicable Goods Specification;
- be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Contractor or made known to the Contractor by the Council, expressly or by implication, and in this respect the Council relies on the Contractor's skill and judgment;
- where applicable, be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and
- comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
- The Contractor shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
- The Council shall have the right to inspect and test the Goods at any time before delivery.
- If following such inspection or testing the Council considers that the Goods do not conform or are unlikely to comply with the Contractor's undertakings at clause 3.1, the Council shall inform the Contractor and the Contractor shall immediately take such remedial action as is necessary to ensure compliance.
- Notwithstanding any such inspection or testing, the Contractor shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Contractor's obligations under the Contract, and the Council shall have the right to conduct further inspections and tests after the Contractor has carried out its remedial actions.
- Delivery of Goods
- The Contractor shall ensure that:
- the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
- each delivery of the Goods is accompanied by a delivery note which shows the date of the order, the order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
- if the Contractor requires the Council to return any packaging material for the Goods to the Contractor, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Contractor at the cost of the Contractor.
- The Contractor shall deliver the Goods:
- on the date specified in the Contract or, if no such date is specified, then within fourteen days of the date of the Contract;
- to the Council's premises at Council Offices, Circular Road, Dungannon, BT71 6DT or such other location as is set out in the order or as instructed by the Council before delivery (Delivery Location);
- during the Council's normal hours of business on a Business Day, or as instructed by the Council.
- Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location and, except in circumstances where it is impracticable to do so, evidenced verification by an authorised representative of the Council that the goods received correspond in number, description and quality to those recorded on the delivery note. In circumstances where it is impracticable to verify that the goods delivered match the goods recorded on the delivery note, it is agreed between the parties that the Council will accept the goods in good faith but reserve the right to verify the goods at the earliest practicable date. In such circumstances the Council will notify the Contractor of any discrepancies immediately upon identification of the discrepancy. It will be the responsibility of the Contractor to prove to the Council’s satisfaction that any such discrepancies have been resolved prior to the delivery having been completed.
- If the Contractor:
- delivers less than 100 per cent of the quantity of Goods ordered, the Council may reject the Goods; or
- delivers more than 100 per cent of the quantity of Goods ordered, the Council may at its sole discretion reject the Goods or the excess Goods,
and any rejected Goods shall be returnable at the Contractor's risk and expense. If the Contractor delivers more or less than the quantity of Goods ordered, and the Council accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
- The Contractor shall not deliver the Goods in instalments without the Council's prior written consent. Where it is agreed that the Goods are delivered by instalments, they may, by written agreement between the parties, be invoiced and paid for separately. However, failure by the Contractor to deliver any one instalment on time or at all or any defect in an instalment shall entitle the Council to the remedies set out in clause 6.1.
- Title and risk in the Goods shall pass to the Council on completion of delivery.
- Supply of Services
- The Contractor shall for the duration of this Contract provide the Services to the Council in accordance with the terms of the Contract.
- The Contractor shall meet any performance dates for the Services specified in the Contract or notified to the Contractor by the Council.
- The Contractor shall be deemed to have satisfied himself as regards the nature and extent of the Services, the means of communication with and access to the site, the supply of and conditions affecting labour, the suitability of the Council’s property and the equipment necessary for the performance of the services, subject to all such matters being discoverable by the Contractor.
- In providing the Services, the Contractor shall:
- co-operate with the Council in all matters relating to the Services, and comply with all instructions of the Council;
- perform the Services with the best care, skill and diligence in accordance with best practice in the Contractor's industry, profession or trade;
- use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Contractor's obligations are fulfilled in accordance with this Contract;
- ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Contract, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Contractor by the Council;
- provide all equipment, tools and vehicles and such other items as are required to provide the Services;
- use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Council, will be free from defects in workmanship, installation and design;
- obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;
- observe all health and safety rules and regulations and any other security requirements that apply at any of the Council's premises;
- hold all materials, equipment and tools, drawings, specifications and data supplied by the Council to the Contractor (Council Materials) in safe custody at its own risk, maintain the Council Materials in good condition until returned to the Council, and not dispose or use the Council Materials other than in accordance with the Council's written instructions or authorisation;
- not do or omit to do anything which may cause the Council to lose any licence, authority, consent or permission upon which it relies for the purposes of carrying out its function, and the Contractor acknowledges that the Council may rely or act on the Services;
- the Contractor shall provide for the haulage or carriage of equipment to the premises and its off-loading and removal when no longer required; and
- the Council may at its option purchase any item of equipment from the Contractor at any time, if the Council considers that the item is likely to be required in the provision of the Services following the expiry or termination of the Contract. The purchase price to be paid by the Council shall be the fair market value.
- Council remedies
- If the Contractor fails to deliver the Goods and/or perform the Services by the applicable date, the Council shall, without limiting its other rights or remedies, have one or more of the following rights:
- to terminate the Contract with immediate effect by giving written notice to the Contractor;
- to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Contractor attempts to make;
- to recover from the Contractor any costs incurred by the Council in obtaining substitute goods and/or services from a third party;
- where the Council has paid in advance for Services that have not been provided by the Contractor and/or Goods which have not been delivered by the Contractor, to have such sums refunded by the Contractor; and
- to claim damages for any additional costs, loss or expenses incurred by the Council which are in any way attributable to the Contractor's failure to meet such dates.
- These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Contractor.
- The Council's rights under this Contract are in addition to its rights and remedies implied by statute and common law.
- The Contractor warrants and represents that all staff assigned to the performance of the Contract shall possess such skill and experience as is necessary for the proper performance of the Contract.
- Where the Contract provides that the work shall be done by named staff the Contractor undertakes to take all reasonable steps to ensure that his staff remain for the full period of this Contract. Unavoidable changes in the Contractor’s staff proposed by the Contractor and agreed in writing by the Council shall be subject to not less than one month’s written notice.
- If for any other reasons changes in the Contractor’s staff become necessary in the opinion of the Council such changes shall be subject to 1 week’s written notice by the Council to the Contractor.
- In the event that the Contractor is unable to provide replacement staff acceptable to the Council within sufficient time to enable the Contractor to complete the work on time, then the Council may obtain replacement staff from other sources or terminate the Contract at its discretion.
- Council's obligations
- The Council shall:
- provide the Contractor with reasonable access at reasonable times to the Council's premises for the purpose of providing the Services; and
- provide such information as the Contractor may reasonably request for the provision of the Services and the Council considers reasonably necessary for the purpose of providing the Services.
- RIGHT OF ACCESS
- The Council reserves the right to refuse to admit to any premises occupied by or on behalf of the Crown, any person employed by the Contractor, or by a sub-contractor, whose admission would be, in the opinion of the Council, undesirable.
- The Contractor shall comply with the requirements of the Council in regard to ensuring the identity and bonafides of all workers and other persons requiring to be admitted to any officially occupied premises in connection with the Contract.
- If the Contractor shall fail to comply with Clause 9.2 and if the Council shall decide that such failure is prejudicial to the interests of the Council, then the Council may terminate the Contract if the Contractor does not comply with such provisions of Clause 9.2 within a reasonable time of written notice to do so provided always that such termination shall not prejudice or affect any right of action or remedy which shall have accrued thereafter to the Council.
- The decision of the Council as to whether any person is to be refused admission to any premises occupied by or on behalf of the Council and as to whether the Contractor has failed to comply with Clause 9.2 shall be final and conclusive.
- Charges and payment
- The price for the Goods shall be the price set out in the Contract. No extra charges shall be effective unless agreed in writing and signed by the Council.
- The charges for the Services shall be set out in the Contract, and shall be the full and exclusive remuneration of the Contractor in respect of the performance of the Services. Unless otherwise agreed in writing by the Council, the charges shall include every cost and expense of the Contractor directly or indirectly incurred in connection with the performance of the Services.
- In respect of Goods, the Contractor shall invoice the Council on or at any time after completion of delivery. In respect of Services, the Contractor shall invoice the Council on completion of the Services. Each invoice shall include such supporting information required by the Council to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
- In consideration of the supply of Goods and/or Services by the Contractor, the Council shall pay the invoiced amounts within 30 days of receipt of the invoice, together with all supporting documentation required by the Council to verify the accuracy of the invoice, at Council Offices, Circular Road, Dungannon, BT71 6DT.
- All amounts payable by the Council under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Contractor to the Council, the Council shall, on receipt of a valid VAT invoice from the Contractor, pay to the Contractor such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
- The Contractor shall maintain complete and accurate records of the time spent and materials used by the Contractor in providing the Services, and the Contractor shall allow the Council to inspect such records at all reasonable times on request.
- The Council may at any time, without limiting any of its other rights or remedies, set off any liability of the Contractor to the Council against any liability of the Council to the Contractor, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.
- Intellectual property rights
- In respect of the Goods and any goods that are transferred to the Council as part of the Services under this Contract, including without limitation the Deliverables or any part of them, the Contractor warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to the Council, it will have full and unrestricted rights to sell and transfer all such items to the Council.
- The Contractor assigns to the Council, as beneficial owner and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables.
- The Contractor shall obtain waivers of all moral rights in the products, including for the avoidance of doubt the Deliverables, of the Services to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
- The Contractor shall, promptly at the Council's request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Council may from time to time require for the purpose of securing for the Council the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to the Council in accordance with clause 11.2.
- All Council Materials are the exclusive property of the Council.
- The Contractor shall keep the Council indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered incurred by the Council as a result of or in connection with:
- any claim made against the Council for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions including negligent acts or omissions of the Contractor, its employees, agents or subcontractors;
- any claim made against the Council by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions including negligent acts or omissions of the Contractor, its employees, agents or subcontractors; and
- any claim made against the Council by a third party arising out of or in connection with the supply of the Goods or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Contractor, its employees, agents or subcontractors.
- This clause 12 shall survive termination of the Contract.
During the term of the Contract, the Contractor shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance, public liability insurance (to a minimum value of £5 million) and employers' liability insurance (to a minimum value of £10 million) to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Council's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
- Each party:
- shall treat all Confidential Information belonging to the other party as confidential and safeguard it accordingly; and
- shall not disclose any Confidential Information belonging to the other party to any other person without the prior written consent of the other party, except to such persons and to such extent as may be necessary for the performance of the Contract or except where disclosure is otherwise expressly permitted by the provisions of this Contract.
- The Contractor shall take all necessary precautions to ensure that all Confidential Information obtained from the Council under or in connection with the Contract:-
- is given only to such of the staff and professional advisors or consultants engaged to advise it in connection with the Contract as is strictly necessary for the performance of the Contract and only to the extent necessary for the performance of the Contract;
- is treated as confidential and not disclosed (without prior written approval) or used by any staff or such professional advisors or consultants otherwise than for the purposes of the Contract.
- The Contractor shall ensure that staff or its professional advisors or consultants are aware of the Contractor's confidentiality obligations under this Contract.
- The Contractor shall not use any Confidential Information it receives from the Council otherwise than for the purposes of the Contract.
- The provisions of Clauses 14.1 to 14.4 shall not apply to any Confidential Information received by one party from the other:
- which is or becomes public knowledge (otherwise than by breach of this Condition);
- which was in the possession of the receiving party, without restriction as to its disclosure, before receiving it from the disclosing party;
- which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is independently developed without access to the Confidential Information; or
- which must be disclosed pursuant to a statutory, legal or parliamentary obligation placed upon the party making the disclosure, including any requirements for disclosure under the Freedom of Information Act 2000 ("FOIA"), or the Environmental Information Regulations 2004 ("EIR") pursuant to Clause 15 (Freedom of Information).
- Nothing in this Clause 14 shall prevent the Council from:
- disclosing any Confidential Information for the purpose of:-
- the examination and certification of the Council’s accounts; or
- any examination pursuant to the Local Government (Northern Ireland) Order 2005 of the economy, efficiency and effectiveness with which the Council has used its resources; or
- demonstrating to the local government auditor or any government department or statutory body that the Council has or is in the process of complying with any statutory duty or responsibility; or
- participation in the National Fraud Initiative or other exercise intended to detect or prevent fraud, corruption or other illegal acts; or
- disclosing any Confidential Information obtained from the Contractor:
- to any government department or any other contracting authority. All government departments or contracting authorities receiving such Confidential Information shall be entitled to further disclose the Confidential Information to other government departments or other contracting authorities on the basis that the information is confidential and is not to be disclosed to a third party which is not part of any government department or any Contracting Authority; or
- to any person engaged in providing any services to the Council for any purpose relating to or ancillary to the Contract;
provided that in disclosing information under sub-paragraph (b) the Council discloses only the information which is necessary for the purpose concerned and requires that the information is treated in confidence and that a confidentiality undertaking is given where appropriate.
- Nothing in this Clause 14 shall prevent either party from using any techniques, ideas or know-how gained during the performance of the Contract in the course of its normal business, to the extent that this does not result in a disclosure of Confidential Information or an infringement of Intellectual Property Rights.
- In the event that the Contractor fails to comply with this Clause 14, the Council reserves the right to terminate the Contract by notice in writing with immediate effect.
- The provisions under this Condition are without prejudice to the application of the Official Secrets Acts 1911 to 1989 to any Confidential Information.
- FREEDOM OF INFORMATION
- The Contractor acknowledges that the Council is subject to the requirements of the FOIA and the EIR and shall assist and cooperate with the Council (at the Contractor’s expense) to enable the Council to comply with these information disclosure requirements.
- The Contractor shall, and shall procure that its sub-contractors shall,:
- transfer the Request for Information (which has the meaning given to it in the FOIA) to the Council as soon as practicable after receipt and in any event within two Business Days of receiving a Request for Information;
- provide the Council with a copy of all Information in its possession or power in the form that the Council requires within five Business Days (or such other period as the Council may specify) of the Council requesting that information; and
- provide all necessary assistance as reasonably requested by the Council to enable the Council to respond to a Request for Information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the EIR.
- The Council shall be responsible for determining at its absolute discretion whether the commercially sensitive information and/or any other Information:
- is exempt from disclosure in accordance with the provisions of the FOIA or the EIR;
- is to be disclosed in response to a Request for Information, and in no event shall the Contractor respond directly to a Request for Information unless expressly authorised to do so by the Council.
- The Contractor acknowledges that the Council may, acting in accordance with the Department for Constitutional Affairs’ Code of Practice on the Discharge of Functions of Public Authorities under Part I of the Freedom of Information Act 2000, be obliged under the FOIA, or EIR to disclose information:-
- without consulting with the Contractor, or
- following consultation with the Contractor and having taken its views into account.
- The Contractor shall ensure that all information produced in the course of the Contract or relating to the Contract is retained for disclosure and shall permit the Council to inspect such records as requested from time to time.
- The Contractor acknowledges that any lists or schedules provided by it outlining Confidential Information are of indicative value only and that the Council may nevertheless be obliged to disclose Confidential Information in accordance with Clause 15.4.
- Without limiting its other rights or remedies, the Council may terminate the Contract:
- in respect of the supply of Services, by giving the Contractor one month’s written notice; and
- in respect of the supply of Goods, in whole or in part at any time before delivery with immediate effect by giving written notice to the Contractor, whereupon the Contractor shall discontinue all work on the Contract. The Council shall pay the Contractor fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
- Without limiting its other rights or remedies, the Contractor may terminate the Contract by giving the Council three months’ written notice.
- In any of the circumstances in these Conditions in which a party may terminate the Contract, where both Goods and Services are supplied, that party may terminate the Contract in respect of the Goods, or in respect of the Services, and the Contract shall continue in respect of the remaining supply.
- Without limiting its other rights or remedies, the Council may terminate the Contract with immediate effect by giving written notice to the Contractor if:
- the Contractor commits a material breach of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen days of receipt of notice in writing to do so;
- the Contractor repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
- the Contractor suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of article 103 of the Insolvency (Northern Ireland) Order 1989 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of article 242 of the Insolvency (Northern Ireland) Order 1989 or (being a partnership) has any partner to whom any of the foregoing apply;
- the Contractor commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Contractor (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Contractor with one or more other companies or the solvent reconstruction of the Contractor;
- the Contractor (being an individual) is the subject of a bankruptcy petition or order;
- a creditor or encumbrancer of the Contractor attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
- an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Contractor (being a company);
- the holder of a floating charge over the assets of the Contractor (being a company) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the Contractor or a receiver is appointed over the assets of the Contractor;
- any event occurs, or proceeding is taken, with respect to the Contractor in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.4.3 to clause 16.4.10 (inclusive);
- the Contractor suspends or ceases, or threatens to suspend, or cease, to carry on all or a substantial part of its business;
- the other party's financial position deteriorates to such an extent that in the Contractor's opinion the Council's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
- the Contractor (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
- Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination.
- Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
- Consequences of termination
On termination of the Contract for any reason, the Contractor shall immediately deliver to the Council all Deliverables whether or not then complete, and return all Council Materials. If the Contractor fails to do so, then the Council may enter the Contractor's premises and take possession of them. Until they have been returned or delivered, the Contractor shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
- RIGHT OF AUDIT
- The Contractor shall keep secure and maintain until two years after the final payment of all sums due under the Contract, or such longer period as may be agreed between the parties, full and accurate records of the Services, all expenditure reimbursed by the Council and all payments made by the Council.
- The Contractor shall grant to the Council or its authorised agents, such access to those records as they may reasonably require in compliance with the Contract.
- DATA PROTECTION ACT 1998
- The Contractor shall not disclose or allow access to any personal data provided by the Council or acquired by the Contractor during the course of tendering for or executing the Contract, other than to a person employed or engaged by the Contractor or any sub-contractor, agent or other person concerned with the same.
- Any disclosure of or access to personal data allowed under Clause 19.1 shall be made in confidence and shall extend only so far as that which is specifically necessary for the purpose of the Contract.
- The Contractor shall store or process such personal data only at sites specifically agreed in writing, in advance, with the Council.
- If the Contractor fails to comply with any provision of this Condition then the Council may summarily determine the Contract by notice in writing to the Contractor provided always that such determination shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to the Council.
- If the Contractor or any employee, servant agent or sub-contractor of the Contractor, having obtained without the consent of the Council personal data within the meaning of the Data Protection Act, directly or indirectly discloses or publishes the data to any other person or allows improper access to the data, or in any event directly or indirectly causes the loss, damage, or destruction of such data, he shall indemnify the Council against all claims, proceedings, costs and expenses in respect of any damage or distress suffered whereby by any person.
- The decision of the Council upon matters arising under this Clause 19 shall be final and conclusive.
- STATUTORY AND OTHER REGULATIONS
- The Contractor shall be deemed to have acquainted himself with any and all Acts of Parliament, Statutory Regulations, or other such laws, recommendations, guidance or practices as may affect the provision of the service(s) specified under the Contract.
- The Contractor shall be deemed to have acquainted himself with British/European Standards, Codes of Practice as may be relevant to this Contract.
- The Contractor shall adequately train, instruct and supervise staff to ensure that so far as is reasonably practical the standards and codes of practice are observed.
- EQUALITY OF OPPORTUNITY
- The Contractor shall comply with all applicable fair employment, equality of treatment and anti-discrimination legislation, including, in particular:
Equal Pay Act (Northern Ireland) 1970;
Sex Discrimination (Northern Ireland) Order 1976;
Health and Safety at Work (Northern Ireland) Order 1978;
Disability Discrimination Act 1995 and the Disability Discrimination (Northern Ireland) Order 2006;
Employment Rights (NI) Order 1996;
Race Relations (Northern Ireland) Order 1997;
Fair Employment and Treatment (NI) Order 1998;
Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000;
Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002;
Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003;
The Employment Relations (Northern Ireland) Order 2004;
Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006;
Employment Equality (Age) Regulations (Northern Ireland) 2006;
The Work and Families (Northern Ireland) Order 2006,
and shall use his best endeavours to ensure that in his employment policies and practices and in the delivery of the Services and Goods required of the Contractor under the Contract he has due regard to the need to promote equality of treatment and opportunity between: -
- Persons of different religious beliefs or political opinions;
- Men and women or married and unmarried persons;
- Persons with and without dependants (including women who are pregnant or on maternity leave and men on paternity leave);
- Persons of different racial groups (within the meaning of the Race Relations (Northern Ireland) Order 1997);
- Persons with and without a disability (within the meaning of the Disability Discrimination Act 1995);
- Persons of different ages; and
- Persons of differing sexual orientation.
- The Contractor shall take all reasonable steps to ensure the observance of the provisions of Clause 21.1 by all servants, agents, employees, consultants and sub-contractors of the Contractor.
- HEALTH AND SAFETY
- The Contractor’s attention is drawn to the provision of the Health and Safety at Work (Amendment) (Northern Ireland) Order 1998 and in particular to Article 4 “General Duties of Employers to their Employees”.
- TRANSFER OF UNDERTAKING AND PROTECTION OF EMPLOYMENT (TUPE)
- Tenderers are advised to seek their own legal advice with regard to the application of TUPE and state clearly when returning their tender documentation whether or not they have done so.
- Force majeure
- Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from an event, circumstances or cause beyond its reasonable control (Force Majeure Event).
- The Contractor shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
- If a Force Majeure Event prevents, hinders or delays the Contractor's performance of its obligations for a continuous period of more than 5 Business Days, the Council may terminate the Contract immediately by giving written notice to the Contractor.
- Assignment and other dealings.
- The Council may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
- The Contractor may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Council.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax.
- A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 25.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax, one Business Day after transmission.
- The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
- Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
- Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
- Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Council.
- Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of Northern Ireland.
- Jurisdiction. Each party irrevocably agrees that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).