The Contract shall be constituted by and comprise only the Contract Documents; no terms or conditions put forward by the Supplier (including terms relating to hire, lease or loan) shall form part of the Contract unless signed by both parties. In the event of conflict, the Purchase Order, Terms and Purchaser Specification prevails. Any supply made in response to this Order shall be taken as conclusive acceptance of this term and any inconsistent or additional terms accompanying the Supply shall be deleted and ignored.
1. Definitions and Interpretation
1.1. “Business Day” means any day (meaning any calendar day ending at 12 midnight) on which ordinary banks in England are open for business.1.2. “Business Hours” means 9 a.m. to 5 p.m. on any Business Day.
1.3. “Contract” means the contract constituted by the Contract Documents.
1.4. “Contract Documents” means the Terms, Purchase Order and Purchaser Specification.
1.5. “Disabled Party” has the meaning given to it in 1.4 below.
1.6. “Force Majeure Event” means a strike, lockout by employees, war, civil commotion, cessation or serious interruption of land, sea or air communications or power supplies, exceptionally adverse weather, fire or other unavoidable cause beyond a party’s control and without its fault which prevents a party (the “Disabled Party”) from performing the Contract.
1.7. “Intellectual Property Rights” means patents, registered and unregistered designs, copyright, trade marks, know-how and all other intellectual property protection wherever in the world enforceable.
1.8. “Law” means any relevant UK or EC statute, order, regulation, directives, standard, code of practice or bye-law from time to time in force which is relevant to the Supply
1.9. “Purchase Order” means the purchase order issued by the Purchaser for the Supply.
1.10. “Purchaser” means Cambridge City Council.
1.11. “Purchaser Specification” means any specification or description of requirements provided by the Purchaser and any proposal made by the Supplier if accepted by the Purchaser.
1.12. “Supplier” means the recipient of the Purchase Order.
1.13. “Supply” means the goods, services and/or works as described in the Contract Documents (including without limitation on the face of the Purchase Order).
1.14. “Terms” means these contract terms.
1.15. Headings in these Terms shall not affect the interpretation of the Contract.
1.16. References to any statute or statutory provision (including EU law) include a reference to that statute or statutory provision as from time to time amended, extended or re-enacted and shall be deemed to include any bye-laws, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under them from time to time.
1.17. The singular includes the plural and vice versa and any gender includes the other gender.
2. The Supply and Quality Standards
2.1. Where the Supply comprises goods, the Supplier warrants that all items delivered under the Contract will be free from defects in material and workmanship, comply with the Purchaser Specification and be suitable for the purposes intended by Purchaser.2.2. Where the Supply comprises services, the Supplier warrants to the purchaser that in the performance of the Services it has exercised all reasonable skill and care to be expected from a Supplier competent in supplying services of a similar scope and complexity as the services comprised in the Supply.
2.3. Where the Supply comprises works, the Supplier shall carry out such works in a workmanlike manner.
2.4. Without prejudice to Clauses 2.1 to 2.3 (inclusive) above, the Supply shall conform with and fulfil in all respects:
2.4.1. the Contract Documents;
2.4.2. the requirements of any relevant Law;
2.4.3. any recommendation or representation or offer made by the Supplier.
3. The Contract Price and Invoicing
3.1. The Supplier shall send the Purchaser an invoice in respect of the relevant Purchase Order and the Supply (such invoice to be a VAT invoice, where applicable or, in the construction industry, an Authenticated Receipt, that fully complies with the requirements of Her Majesty’s Revenue and Customs and details the supply made) and the Purchaser shall (subject to Clause 15 and Clause 3.2) pay the sum requested in the relevant invoice no later than 30 days from the date of receipt of the invoice by the Purchaser or receipt of the Supply (whichever is the later).3.2. The Purchaser may, at its sole discretion, pay any part of any disputed invoice.
3.3. If the Supplier or the Purchaser defaults in the payment, when due, of any sum payable under the Contract (whether determined or by agreement or pursuant to an order of the Courts or otherwise) the liability of the Supplier or the Purchaser (as the case may be) shall be increased to include interest on such sum from the date when such payment is due until the date of actual payment at a rate per annum of 2% above the base rate from time to time of HSBC Bank plc. Such interest shall accrue from day to day and shall be paid subject to any withholding tax.
3.4. Should the Contract be a “construction contract” under the Housing Grants, Construction and Regeneration Act 1996 the ‘Scheme’ shall apply.
4. Delivery and Time for Performance
4.1. In respect of performance of the Contract by the Supplier, time shall be of the essence and subject to 4.3 no extension to the date and/or time for delivery, performance and/or completion of the Supply shall be permitted without the written consent of the Purchaser (such consent at the sole discretion of the Purchaser).4.2. If the Supplier requires access to the Purchaser’s premises, facilities or storage, the Supplier shall comply with the reasonable requirements of the Purchaser concerning access and access shall be at the Supplier’s risk.
4.3. If the Supplier is unable to make, supply, perform, carry out or complete the Supply due to a Force Majeure Event, or, if the Purchaser is unable to perform its obligations under the Contract due to a Force Majeure Event, then the Disabled Party must immediately notify the other in writing of its anticipation, its occurrence, its expected duration and its end. During an event of Force Majeure the Disabled Party is excused from performing the Contract.
4.4. If the Supplier notifies the Purchaser under Clause 4.3, then the Purchaser may notify the Supplier at any time before the end of the Force Majeure Event and terminate the Contract without liability. Where the Supply is recommenced after a Force Majeure Event then (notwithstanding Clause 21) the Contract shall be varied to extend the time for performance, completion and/or delivery accordingly.
4.5. Where relevant, and at the completion of the Supply, the Supplier shall remove all materials from the site (unless otherwise instructed by the Purchaser) and permanently reinstate any damaged areas or surfaces and leave the site in a clean condition ready for occupation.
5. Property, Risk and Acceptance
5.1. Without prejudice to any of the rights or remedies of the Purchaser (including those under Clause 7), property and risk in any goods shall pass to the Purchaser on delivery or when the Purchaser notifies acceptance in writing where goods are to be subject to testing, whichever shall be the later.6. Loss and Damage in Transit
6.1. At the Purchaser’s election the Supplier shall either repair or replace goods that fail to arrive or arrive damaged free of charge and as quickly as possible.7. Inspection and Rejection
7.1. The Supplier shall assist the Purchaser or his Authorised Officer (free of charge) to make any inspection or tests the Purchaser may reasonably require of the Supply at any time prior to acceptance.7.2. Where the Supply is not governed by the Housing Grants, Construction and Regeneration Act 1996, the Purchaser may suspend the Supply in whole or in part without paying compensation if the Purchaser is reasonably of the opinion that the Supplier is in breach of Clause 10.
7.3. Where the Supply in whole or in part is not in accordance with the Contract before acceptance or until the end of any guarantee period then the Purchaser may reject the Supply in whole or in part and may, without prejudice to any other rights or remedies:
7.3.1. have the Supply repaired, re-done or replaced by the Supplier with a Supply which complies with in all respects with the requirements of the Contract;
7.3.2. require a refund from the Supplier; or
7.3.3. without prejudice to Clause 15 make a reasonable deduction from the Contract Price determined by the Authorised Signatory.
8. Labelling and Packaging
8.1. Where the Supply involves the supply of goods, the contents of the Supply shall be clearly marked. All containers of hazardous goods (and all relevant documents) shall bear prominent and adequate warnings in accordance with the Law.8.2. All packaging materials will be considered non-returnable.
9. Intellectual Property Rights, Confidentiality and Information
9.1. The Supplier warrants to the Purchaser that the Supply shall not infringe the Intellectual Property Rights of any third party.9.2. All Intellectual Property Rights in any specification, information instructions, plans, drawings, patterns, models, designs or other material furnished to or made available to the Supplier by the Purchaser or obtained by the Supplier in connection with the Contract shall remain vested solely in the Purchaser and shall be kept confidential by the Supplier.
9.3. Where the Supplier has access to information about people, it shall ensure that in making the Supply, the provisions of the Data Protection Act 1998 are observed (and also any Purchaser’s data protection requirements notified to the Supplier).
9.4. This Clause 9 shall apply both during the Contract and after its termination.
9.5. The Supplier will note and facilitate the Purchaser’s compliance with the Freedom of Information Act 2000 (the “FOIA”).
9.6. In the event that the Purchaser is required to provide information to a person as a result of a request made to it under the FOIA, the Purchaser shall adhere to the requirements of the FOIA in disclosing information relating to the Contract and the Supplier.
9.7. The Supplier shall assist the Purchaser at no additional charge in meeting any requests for information in relation to the Contract that are made to the Purchaser in connection with the FOIA. The Purchaser may, from time to time, serve on the Supplier an information notice requiring the Supplier within such time and in such form as is specified in the information notice, to furnish the Purchaser with such information as the Purchaser may reasonably require relating to such requests for information.
10. Health and Safety
10.1. Without prejudice to the generality of Clause 2 the Supplier in making the Supply shall have full regard to the safety of persons who may be affected in any way and shall comply with the requirements of all relevant Law including the Health and Safety at Work etc. Act 1974. The Supplier shall also ensure that such requirements are observed by sub-contractors (if any).10.2. The Supplier shall conduct all necessary tests and examinations prior to delivery and/or completion of the Supply to ensure that the Supply is designed, constructed and delivered so as to be safe and without risk to the health or safety of persons using the Supply. The Supplier shall give the Purchaser adequate information about the use for which the Supply has been designed and has been tested and about any conditions necessary to ensure that, when put to use, the Supply will be safe and without risk to health and safety.
10.3. Where the supply comprises works, throughout the progress of any such works, the site shall be in the Supplier’s control and the Supplier shall keep the site in an orderly state and shall provide and maintain at its own cost all lights, guards, fencing and warning signs for the protection of the works and the safety and convenience of the public and others.
10.4. Where the Supply comprises works, and unless expressly indicated otherwise in the Contract Documents, the Supplier shall be responsible for the storage, treatment (if any) and disposal of all and any waste created by or arising out of the Supply and shall on request provide the Purchaser, on request, with all information relating to the same. Without prejudice to any other provision in the Contract, the Supplier shall comply with and obtain all permits, consents and licenses required under Law relating to waste management.
11. Indemnity and Insurance
11.1. Without prejudice to any rights of the Purchaser (including those under Clause 7), the Supplier shall indemnify the Purchaser against all matters of any kind arising in contract, tort, statute or otherwise directly or indirectly out of the wrongful act, default, breach of contract or negligence of the Supplier, its sub-contractors, employees or agents in the course of or in connection with the Contract. Without prejudice to the generality of the foregoing, this indemnity shall extend (and not be limited to) death or injury to persons, damage to property, prevention of corruption, infringement of Intellectual Property Rights, health and safety, discrimination, data protection and ombudsman investigations.11.2. The Supplier shall effect and maintain during the Contract public and employer’s liability and other insurances with a reputable company necessary to cover the risks contemplated by the Contract and shall at the request of the Purchaser produce the relevant policy or policies together with receipts or other evidence of payment of the latest premium due under such policies. Public liability cover of at least £5 million shall be obtained, unless agreed otherwise with the Purchaser in writing. Where the Supply is a supply of consultancy services, the Supplier shall maintain professional indemnity insurance (unless otherwise agreed in writing by the Purchaser) during the Contract period and for 6 years afterwards of not less than £1 million.
12. Discrimination, Ombudsman Investigations and Human Rights
12.1. The Supplier shall not unlawfully discriminate within the meaning and scope of the provisions of Sex Discrimination Acts 1975 and 1986, the Race Relations Act 1976, the Race Relations (Amendment) Act 2000 and the Disability Discrimination Act 1995, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 in the provision of services to the public or in employment or contravene the Human Rights Act 1999. The Supplier shall to the extent relevant to the Supply comply with the Purchaser’s equal opportunities policies. The Supplier shall take all reasonable steps to secure the observance of these provisions by all servants, employees or agents of the Supplier and all sub-contractors employed in the execution of the Contract.12.2. If either the Purchaser’s internal or external auditors or if the Commissioner for Local Administration (the Ombudsman) shall wish to investigate the Contract, then the Supplier shall provide such information, access and co-operation as those persons may reasonably require.
13. Prevention of Corruption
13.1. The Purchaser may terminate the Contract and recover all of its loss if the Supplier, its employees or anyone acting on the Supplier’s behalf do any of the following things:13.1.1. offer, give or agree to give to anyone any inducement or reward in respect of this or any other Purchaser contract;
13.1.2. commit an offence under the Prevention of Corruption Act 1889 to 1916 or under Section 117(2) of the Local Government Act 1972; and/or
13.1.3. commit any fraud in connection with this or any other Purchaser contract whether alone or in conjunction with Members or employees of the Purchaser.
14. Termination
14.1. The Purchaser may by notice in writing terminate the Contract in whole or in part (and enter upon and expel the Supplier from the Purchaser’s premises or site to which the Supplier has been given access) if any of the following events occur. No period of notice shall be required but the notice shall state the date on which it takes effect:14.1.1. the Supplier has failed to make the Supply within the time specified in the Contract;
14.1.2. the Supplier has materially breached the Contract;
14.1.3. the Purchaser has given the Supplier at least one month’s notice to remedy a breach of Contract which can be remedied and the Supplier has failed to do so;
14.1.4. the Supplier has (without reasonable cause) failed to proceed diligently with or wholly (without lawful reason) suspends performance of any services or works or delivery of goods;
14.1.5. the Supplier has had a receiver appointed over all or a substantial part of his or its assets or (if an individual) is declared bankrupt or (if a company) goes into liquidation or has an administrator appointed to manage its affairs.
15. Set Off
15.1. Without prejudice to any other rights or remedies of the Purchaser under the Contract, at law or in equity, where the Supplier has incurred liability to the Purchaser whether under the Contract or any other contract (and whether such liability is liquidated or unliquidated) the Purchaser may set off the amount of such liability against any fees or sums which would otherwise be due to such Supplier under the Contract.16. Assignment and Sub-contracting
16.1. The Supplier shall not without the written consent of the Purchaser assign or sub-contract the benefit or burden of the whole or any part of the Contract. Sub-contracting by the Supplier shall not relieve the Supplier of any of its responsibilities under the Contract.17. Purchases Outside the Contract
17.1. The Purchaser shall have the right to employ a person other than the Supplier to make supplies of the same type as is contemplated by the Contract if it shall in its absolute discretion think fit to do so.18. Third Party Rights
18.1. The Contract does not (and nor shall it) confer any benefit (or purported to confer any benefit) to any third party whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.19. Notices
19.1. Any notice may be sent by hand or by ordinary registered post or recorded delivery post or transmitted by facsimile transmission or other means of telecommunications resulting in the receipt of written communication in permanent form and if so sent or transmitted to the address of the party shown on the Contract, or to such other address as the party has notified the other, shall be deemed effectively given and received on the day when in the ordinary course of the means of transmission it would first be received by the addressee in the normal course of business.20. Disputes
20.1. Save where the Contract or any part of it is a “Construction Contract” under the Housing Grants, Construction and Regeneration Act 1996 and where one of the Parties has referred a dispute or difference to adjudication (such adjudication to be carried out in accordance with the Scheme under such Act) the parties shall attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with the Contract within 7 Business Days of either party notifying the other of the dispute. Such efforts to resolve the dispute shall involve escalation of the dispute to the finance director (or equivalent) of each party.20.2. Nothing in this Clause shall prevent the Parties from seeking from any court of competent jurisdiction an interim order restraining the other party from doing any act or compelling the other party to do any act.
20.3. If the parties, under Clause 20.1, cannot resolve the dispute, then the dispute shall be referred to the courts.
