Supplier Terms and Conditions

1.       Interpretation

1.1     Definitions. In these Conditions, the following definitions apply:
‘Acceptance’ means that the College Authorised Officer has accepted that the Goods and / or Services as meeting the requirements of the Contract.

‘Acceptance Date’ means the date on which the Authorised Officer has accepted the Goods and / or Services.

‘Agreement Manager’ shall have the meaning as set out in clause 3.

‘Articles’ means all tools, materials, drawings, specifications and other equipment and data provided or loaned to the Supplier by the College.

‘Authorised’ means signed by one of the College’s Authorised Officers.

‘Authorised Officer’ means the College’s employee authorised either generally or specifically by The College to enter into the Contract and act on behalf of the College in relation to the Contract.

“Business Day”: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

“College”:  Leicester College

“Conditions”: the terms and conditions set out in this document.

“Contract”: the contract between the College and the Supplier for the supply of Goods and/or Services in accordance with clause 2.

“Data Breach” means any act or omission that (i) compromises the security, confidentiality or integrity of the Personal Data that Supplier Processes for and on behalf of the College (including, by way of example, the unauthorised loss or disclosure of any such Personal Data by Supplier); (ii) compromises the physical, technical, administrative or organisational safeguards put in place by the Supplier that relate to the protection of the security, confidentiality or integrity of such Personal Data (including any breach of the IT and data security requirements); or (iii) causes the College or Supplier to be in breach of data protection Law (in particular the General Data Protection Regulation).
‘Data Controller’ has the meaning set out in the DPA up to and including 24 May 2018 and has the meaning of “Controller” set out in the GDPR from 25 May 2018.

“DPA” means the Data Protection Act 1998 and the rules and regulations made or having effect under it.
“Data Protection Particulars” means, in relation to any Processing under this Agreement: (a) the subject matter and duration of the Processing; (b) the nature and purpose of the Processing; (c) the type of Personal Data being Processed; and (d) the categories of Data Subjects;
‘Data Subject’ “Data Subject” has the meaning set out in the DPA up to and including 24 May 2018 and from 25 May 2018 has the meaning set out in the GDPR.

“Deliverables”: all documents, products and materials developed by the Supplier 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 specification and reports.

“Delivery”: as set out in clause 5.

‘Delivery Date’ means the date specified in the Contract.

‘Delivery Instructions’ means the instructions set out in the Contract for the provision of the Goods and/or Services, including any other information the College considers appropriate to the provision of the Goods and/ or Services.

“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016.

“Goods”: the goods (or any part of them) set out in the Order.

‘Good Industry Practice’ means the exercise of such degree of skill, diligence, care and foresight which would reasonably and ordinarily be expected from a skilled and experienced supplier engaged in the supply of goods and services similar to the Goods and Services under the same or similar circumstances as those applicable to the Contract.

“Goods Specification”: any specification for the Goods, including any related plans and drawings that are set out by the College to the Supplier.

‘Installation’ means the installation of the Goods in the designated location and into the operating environment specified by The College at the site and ‘Install’ shall be interpreted accordingly.

‘Intellectual Property Rights’ means patents, copyright, registered and unregistered design rights, utility models, trademarks (whether or not registered), database rights, rights in know-how and confidential information and all other intellectual and industrial property rights and similar or analogous rights existing under the laws of any country and all rights to apply for or register such rights.

‘Key Personnel’ means those individuals nominated by the College as being of importance to the completion or delivery of the Services.

‘Law’ means any applicable law, statute, bye-law, regulation, order, regulatory policy, guidance or industry code, rule of court or directives or requirements of any regulatory body, delegated or subordinate legislation or notice of any regulatory body

“Order”: in the College’s purchase order form or overleaf, as the case may be.

‘Order Amendment’ means an issued and Authorised order amendment from the College or series of Order Amendments

‘Package’ means any type of package including bags, cases, carboys, cylinders, drums, pallets, tanks, wagons and other containers.

‘Personal Data’ has the meaning set out in the DPA up to and including 24 May 2018 and from 25 May 2018 has the meaning set out in the GDPR. For the purposes of this Agreement, Personal Data shall include Sensitive Personal Data.

‘Premises’ means the location(s) where the Goods and Services are to be delivered or performed

“Processing” has the meaning set out in the DPA up to and including 24 May 2018 and has the meaning set out in the GDPR from 25 May 2018, and “Process” and “Processed” shall be construed accordingly.

“Processor” has the meaning of “Data Processor” as set out in the DPA up to and including 24 May 2018 and has the meaning set out in the GDPR from 25 May 2018.;
‘Request’ has the meaning set out in the Freedom of Information Act 2000, (FOIA), and the Environmental Information Regulations 2004 (EIR)

“Sensitive Personal Data” means Personal Data that reveals such categories of data as are listed in Article 9(1) of the GDPR.

“Services”: the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.

‘Service Levels’ means those levels of performance set out in the Service Specification.

“Service Specification”: the description or specification for Services that is set out by the College to the Supplier.

“Specification”: any Goods Specification together with any Services Specification

“Supplier”: the person or firm from whom the College purchases the Goods and/or Services.

‘TUPE’ means the Transfer of Undertakings (Protection of Employment) Regulations 2006

1.2     Construction. In these Conditions, unless the context requires otherwise, the following rules apply:
(a)      A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b)      A reference to a party includes its personal representatives, successors or permitted assigns.
(c)      A reference to a statute or statutory provision is a reference to such statute or 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.
(d)      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.
(e)      A reference to writing or written includes faxes and emails.

2.       Basis of contract
2.1     The Order constitutes an offer by the College to purchase the Goods and/or Services in accordance with the Contract.
2.2     The Contract shall comprise any Order Amendments, any Order, these Conditions and the Specification(s). In the event of any conflict between the provisions they shall be read in the following order of precedence:
(a)      Any Order Amendments (each Order Amendments having precedence over any earlier Order Amendments)
(b)      The Order
(c)      The Specification(s)
(d)      The Conditions

2.3     The Order shall be deemed to be accepted on the earlier of:
(a)      the Supplier issuing a written acceptance of the Order; or
(b)      the Supplier doing any act consistent with fulfilling the Order,
at which point the Contract shall come into existence.

2.4     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.

3.       Supply of Goods
3.1     The Supplier shall ensure that the Goods shall:
(a)      be free from defects in design, material and workmanship, correspond with their description and any applicable Goods Specification and shall remain so for 12 months after Acceptance; and
(b)      be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by the College expressly or by implication, and in this respect the College relies on the Supplier’s skill and judgement; and
(c)      be new (unless otherwise specified on the Purchase Order) and free from defects in design, material and workmanship; and
d)       comply with all applicable Laws.

3.2     Supplier warrants to the College that that the Goods will be provided:

(a)      in a proper, skilful and workmanlike manner.

(b)      by a sufficient number of appropriately qualified, trained and experienced personnel with a high standard of skill, care and due diligence and in accordance with Good Industry Practice

(c)      in accordance with the Contract.

(d)      to the reasonable satisfaction of the Authorised Officer.

3.3     The Supplier warrants that to the extent that associated Services are performed, they shall be performed by appropriately qualified, trained and experienced personnel with a high standard of skill, care and diligence and in accordance with Good Industry Practice.

3.4     The Supplier will make good at its expense any defect in the Goods that the College discovers under proper usage during the first twelve months of actual use or 18 months from the date of Acceptance by the College whichever period shall expire first. Such defects may arise due to faulty design or instruction as to the use of the Goods or inadequate or faulty materials or poor workmanship or any other breach of the Supplier’s obligations whether in the Contract or at law.

3.5     The Supplier 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 or in the Delivery or the Goods.
3.6     Repairs or replacements will themselves be covered by this Contract but for a period of 12 months from Acceptance by the College.

 

4.       Delivery of the Goods
4.1     The Supplier shall ensure that:
(a)      the Goods will be properly packaged to survive transit and storage without damage, clearly and legibly labelled and addressed. The College will not be liable to pay for any pallets, packages or containers in which the Goods are supplied. All packaging must be clearly marked to show to whom it belongs. Any packaging that the Supplier requires returning will be done so at the Supplier’s cost and risk;
(b)      each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the College’s Order number, 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
(c)      if the Supplier requires the College to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
(d)      delivery is free of charge
(e)      orders from multiple manufacturers shall be collated and delivered to The Colleges in one delivery unless instructed by the College at no additional cost.
4.2     The Supplier shall deliver the Goods:
(a)      on the date specified in the Order, if specified,
(b)      to the point of delivery stated in the Order, or as instructed by the College prior to delivery (“Delivery Location”); and
(c)      during the College’s normal business hours, or as instructed by the College.
(d)      to locations which may include non-ground floor locations without access to a lift at no additional cost and
(e)      to multiple sites if required at the College request at no additional cost.
4.3     Time of Delivery shall be of essence of the Contract.
4.4     Where the Goods are delivered by the Supplier, delivery shall occur when the Goods are removed from the transporting vehicle and delivered in accordance with the Delivery Instructions. Where the Goods are collected by the College, delivery shall occur when they are loaded onto the College’s vehicle.
4.5     The international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply but where they conflict with the Contract, the Contract shall prevail.
4.6     If the Supplier:
(a)      delivers less than 95% of the quantity of Goods ordered, the College may reject the Goods; or
(b)      delivers more than 105% of the quantity of Goods ordered, the College may at its discretion reject the Goods or the excess Goods, and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and the College accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
4.7     The issue by The College of a receipt note for the Goods shall not constitute any acknowledgement of the condition or nature of those Goods. The College shall not be deemed to have accepted any Goods other than in accordance with clause 6.

4.8     If the Supplier at any time becomes aware of any act or omission, or proposed act or omission by the College which prevents or hinders, or may prevent or hinder the Supplier from supplying the Goods and Services in accordance with the Contract, the Supplier shall inform, in writing, the College.

5.       Acceptance

5.1     The College shall have the right to reject the Goods and Services in whole or in part whether or not paid for in full or in part within a reasonable time of delivery or performance if they do not conform to the requirements of the Contract.

6.       Consumables

6.1     The College reserves the right to procure consumables to be used on or with the Goods from the Supplier or such other source as the College deems appropriate. Such procurement of consumables from a source other than Supplier shall not invalidate the College’s rights under the Contract and in no way affect the provisions in respect of warranties given under the Contract or otherwise provided that the consumables utilised meet the minimum standards as published by Supplier or the manufacturer of the Goods, or where no published standards are available, the standards generally accepted as being appropriate to the consumable supplies for use on or with the Goods concerned.

6.2     In the event that the Supplier shall claim that the use of specific consumables is adversely affecting the standards of performance of the Goods and/or increasing the cost to Supplier of meeting its obligations to provide repair or maintain the Goods it shall be for Supplier to prove that the consumables do not meet the requisite minimum standards, and are affecting the Goods and/or increasing the Supplier’s costs. If the Supplier shall prove that the consumables do not meet the requisite minimum standards the College shall cease using the consumables concerned and procure alternative consumables which meet the standards required.

7.       Maintenance

7.1     If required by the College the Supplier shall enter into a separate contract for the maintenance of the Goods on substantially the same terms as those set out in the Contract.

8.       Operating manuals

8.1     The Supplier shall supply to the College all operating manuals and other documentation necessary for the satisfactory operation of the Goods, and in any event all documentation so required. If after the Acceptance Date the operating manuals and documentation need updating or replacing the Supplier shall be responsible for notifying the College of the availability of such updates or replacements and shall supply them at reasonable prices upon receipt of written instructions. The Supplier shall provide the operating manuals and other documentation in the media format in which they are available at the appropriate time.

9.       Attachment to the Goods

9.1     The College shall have the right to attach to, or install into or onto the Goods any other items or goods (including but not limited to software) which the College considers to be appropriate and necessary to enable the Goods to be utilised to the fullest extent as required by the College. If the College attaches or installs such items or goods then this shall not have the effect of degrading the performance of the Goods and shall not relieve Supplier from meeting its obligations under the Contract provided that:-

(a)      the goods attached or installed are not specified in any of the Supplier’s and/or the manufacturer’s published specifications as having the effect of degrading the standards of performance or invalidating the College’s rights under the Contract; and

(b)      the Supplier has not otherwise notified the College in writing that the attachment or Installation of specific goods will degrade the standards of performance or invalidate the College’s rights under the Contract; and

(c)      The goods have been attached or installed in accordance with the published instructions of Supplier.

9.2     In the event that the attachments and/or Installation is made by the College and the Supplier can prove that such attachment or Installation is adversely affecting the standard of performance of the Goods then the Supplier shall be entitled to be reimbursed any associated direct costs which the Supplier can demonstrate as being reasonably and necessarily incurred in returning the Goods to the normal standards of performance in accordance with this Contract as a direct result of the attachment or Installation made by the College (other than where such attachment or Installation has been with the approval of the Supplier).

10.      Training 

10.1   Where appropriate, the Price shall include the cost of instructing the College’s personnel in the use or operation of the Goods, such instructions shall be in accordance with the requirements of the Contract.

11.     Hazardous Goods and Safety

11.1   Where the Goods comprise or include substances hazardous to health, the Supplier will supply to the College on or before Delivery with all data necessary to allow the College to form a suitable and sufficient assessment of the attendant risks and of the steps that need to be taken in order to meet the requirements of all relevant applicable Laws.

12.      Supply of Services
12.1   The Supplier shall from the date set out in the Order and for the duration of this Contract provide the Services to the College in accordance with the terms of this Contract.
12.2   The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by the College.
12.3   In providing the Services, the Supplier shall:
(a)      co-operate with the College in all matters relating to the Services, and comply with all instructions of the College;
(b)      perform the Services with the best care, skill and diligence in accordance with Good Industry Practice;
(c)      use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with this Contract; and provide evidence of Disclosure and Barring Checks where required;
(d)      ensure the Services and the Deliverables will confirm with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by the College;
(e)      provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(f)      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 College will be free from defects in workmanship, Installation and design;
(g)      obtain and at all times maintain all necessary licences and consents and comply with all applicable Laws;
(h)      observe all health and safety rules and regulations and any other security requirements that apply at any of the College’s Premises;
(i)       hold all materials, equipment and tools, drawings, specifications and data supplied by the College to the Supplier (“The College’s Materials”) in safe custody at its own risk, maintain The College’s Materials in good condition until returned to the College and not dispose of or use The College’s Materials other than in accordance with the College’s written instructions or authorisation; and
(j)       not do or omit to do anything which may cause the College to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the College may rely or act on the Services.
(k)      provide the Services via the Key Personnel (if any) who shall not be released from providing the Services to the College, except for reason of sickness, maternity leave, paternity leave, termination of employment or because they have been requested to do so by the College, or the element of the Service in respect of which the individual was engaged has been completed to the College’s satisfaction or other extenuating circumstances explained to the College.  Any replacements for the Key Personnel shall be subject to the agreement of the College and such replacements shall be of at least equal status or of equivalent experience and skills to the Key Personnel being replaced and be suitable for the responsibilities of that person in relation to the Services.  The cost of effecting such replacement shall be borne by Supplier; and

(l)       provide such Services to the reasonable satisfaction of the Authorised Officer

13.      Progress and Inspection

13.1   The Supplier shall at its expense provide any programmes for the provision of the Goods and Services delivery that the College may reasonably require.

13.2   The Supplier shall notify the College, in writing, without delay if manufacturing or production progress falls behind or may fall behind any of these programmes.

13.3   The College shall have the right to check progress at the Supplier’s manufacturing facilities or offices (including home working) or the offices (including home working) of the Supplier’s sub-contractors at all reasonable times to inspect and to reject Goods and Services that do not comply with the Contract. The Supplier’s sub-contracts shall reserve such rights for the College.

13.4   Any inspection or approval shall not relieve the Supplier from its obligations under the Contract.

14.     Offsite provision of Goods and Services

14.1   The College recognises that some or all of the Goods and Services may be provided from a site or sites (including home working) of the Supplier and for their sub-contractors.  In all circumstances where the Goods and Services or part of the Goods and Services are provided from such site or sites Supplier shall comply with the following requirements where applicable:

(a)      wherever possible, give the Authorised Officer a minimum of one (1) weeks’ written notification that off-site working will take place, setting out the reasons for such working, personnel resources (including name, position and role) used and the specific outputs to be delivered by each of the personnel.

(b)      facilitate the Authorised Officer to contact each of the personnel including but not restricted to, telephone number and/or e-mail addresses for the purpose of ascertaining that the Goods and Services are being provided.

(c)      ensure that all invoices submitted have signed and authorised daily approval sheets confirming the details as at clause 16.1(a) above

(d)      give the Authorised Officer or his nominee a right to inspect, test, examine any methods, schedules, calculations, analysis, materials, equipment, reports, working documents used or to be used in connection with the performance of the Services.

14.2   The Supplier’s failure to comply with the terms of this clause 16 shall give the College the right not to pay for the Goods and Services provided off-site.

14.3   Neither failure of the College to inspect nor failure to discover or reject any portion of faulty Goods or Services shall be deemed to imply acceptance thereof or in any way relieve Supplier from its responsibilities under the Contract.

15.    Work on the Premises

15.1   If the Contract involves any Goods and Services which Supplier Delivers, Installs or performs on the Premises then the following clauses shall apply:

(a)      The Supplier shall ensure that the Supplier and their employees, sub-contractors and their employees and any other persons associated with the Supplier will adhere in every respect to the obligations imposed upon the Supplier by applicable Laws.

(b)      The Supplier shall ensure that the Supplier and their employees, sub-contractors and their employees and any other person associated with the Supplier will comply with any regulations or policies that the College may notify to the Supplier in writing.

(c)      When required, the Supplier and their employees, sub-contractors and their employees shall comply with any security requirements including a right to search when entering or leaving the Premises.  The College reserves the right to remove from the Premises anyone suspected of being under the influence of alcohol, or any other substance which has the effect of impairing performance.

15.2   The Supplier shall make no delivery of materials, plant or other things nor commence any work on the Premises without obtaining the College’s prior consent.

15.3   Access to the Premises shall not be exclusive to the Supplier but only such as shall enable the performance of the Contract concurrently with the execution of work by others. The Supplier shall co-operate with such others as the College may reasonably require.

15.4   The College shall have the power at any time during the progress of the Contract to order in writing:

(a)      the removal from the Premises of any materials which in the College’s opinion are either hazardous or not in accordance with the Contract, and/or:

(b)      the substitution of proper and suitable materials, and/or;

(c)      the removal and proper re-execution notwithstanding any previous test thereof or interim payment therefore of any work or Goods and Services which, in respect or material or workmanship, is not in the College’s opinion in accordance with the Contract.

15.5   On completion of the Contract the Supplier shall remove their plant, equipment and unused materials and shall clear away from the Premises all rubbish arising out of the Contract and leave the Premises in a neat and tidy condition within the timescales instructed to the Supplier by the College.

15.6   The Supplier shall ensure that their employees, sub-contractors and their employees and any other persons associated with Supplier shall be dressed appropriately. The College reserves the right to remove from the Premises anyone who is, in the College’s absolute discretion, not complying with this requirement.

15.7   Any land or Premises made available from time to time to the Supplier by the College in connection with the Contract, shall be made available to Supplier on a non-exclusive basis free of charge and shall be used by the Supplier solely for the purpose of performing its obligation under the Contract. The Supplier shall have the use of such land or Premises as licensee and shall vacate the same on completion, termination or abandonment of the Contract.

15.8   The Supplier shall limit access to the land or Premises to such personnel as is necessary to enable it to perform its obligations under the Contract.

15.9   The Supplier agrees that there is no intention on the College’s part to create a tenancy of any nature whatsoever in favour of the Supplier or its personnel and that no such tenancy has or shall come into being and, not withstanding any rights granted pursuant to the Contract, the College retains the right at any time to use any Premises owned or occupied by the College in any manner it sees fit.

16.     Variation & Substitution

16.1   The College shall have the right, before delivery, to send the Supplier an Order Amendment adding to, deleting or modifying the requirements.  If the Order Amendment will cause a change to the price, or Delivery Date then the Supplier must suspend performance of the Contract and notify the College without delay, calculating the new price, Delivery Date immediately at the same level of cost and profitability as the original price. The Supplier must allow the College at least ten (10) working days to consider any new price or Delivery Date.  The Order Amendment shall take effect when, but only if, the Authorised Officer accepts it in writing. Subject to other provisions of the Contract, if the Authorised Officer fails to confirm the Order Amendment within the time stipulated then performance of the Agreement shall immediately resume as though the Order Amendment had not been issued.

17.      Compliance with applicable Laws
17.1   The Supplier shall (at no additional cost to the College) at all times, prepare, manufacture, deliver, install, carry out and provide the Goods and Services in compliance with all Laws. The Supplier shall maintain such records as are necessary pursuant to such Laws and shall promptly on request make them available for inspection by any relevant authority that is entitled to inspect them and by the College (or its authorised representative).
17.2   The Supplier shall neither be relieved of its obligations to supply the Goods and Services in accordance with the terms of the Contract nor be entitled to an increase in the price as the result of any modifications to the Laws.
17.3   Without prejudice to clause 19.2, the Supplier shall monitor and shall keep the College informed in writing of any changes in the Laws which may impact the Goods and Services and shall provide the College with timely details of measures it proposes to take and changes it proposes to make to comply with any such changes.
17.4   The Supplier shall consult with the College (and wherever possible agree with the College) on the manner, form and timing of changes it proposes to make to meet any changes in Laws where they would impact the Goods or Services. The Supplier shall not implement any change, without the College’s prior written agreement, which would have an adverse effect on the Supplier’s ability to provide the Goods and Services in accordance with the Specification.
17.5   Without prejudice to the rest of this clause 19, the Supplier shall use all reasonable endeavours to minimise any disruption caused by any changes in applicable Laws introduced pursuant to this clause 19.

18.      Remedies
18.1   If the Supplier fails to deliver the Goods on the Delivery Date and/or perform the Services by the applicable date(s), or if the Goods do not comply with the undertakings set out in clause 4, or the Services do not conform with clause 14, then, without limiting any of its other rights or remedies, the College shall have the right to any one or more of the following remedies:
(a)      to terminate the Contract with immediate effect;
(b)      to reject the Goods or Services (in whole or in part) and (in the case of Goods) return them to the Supplier at the Supplier’s own risk and expense;
(c)      to require the Supplier to re-perform, repair or replace the rejected Goods or Services, or to provide a full refund of the price of the rejected Goods or Services (if paid);
(d)      to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
(e)      to recover from the Supplier any costs incurred by the College in obtaining substitute goods and/or services from a third party; and
(f)      to claim damages for any other costs, loss or expenses incurred by the College which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.

18.2   The Contract shall apply to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
18.3   The Supplier shall keep the College indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and legal and other professional fees and expenses awarded against or incurred or paid by the College as a result of or in connection with:
(a)      any claim made against the College 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;
(b)      any claim made against the College by a third party arising out of, or in connection with, the supply of the Goods or 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 Supplier, its employees, agents or subcontractors; and
(c)      any claim made against the College by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods or Services, to the extent that the defect in the Goods or Services is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
(d)      the provision of the Goods and Services, including advice and recommendations made and accepted by the College and

(e)      any Installation and/or any Goods and Services and/or advice given or anything done or omitted to be done under, or in connection with the Contract by the Supplier; and

(f)      any damage to the College’s property or Premises (including any materials, tools or patterns sent to Supplier for any purpose).

This clause 18.3 shall survive termination of the Contract.

18.4   The College’s rights and remedies under the Contract are in addition to its rights and remedies implied by statute and common law.
18.5   The Supplier must take out and maintain insurance adequate to cover the risks set out in the Contract and for a period of 6 years thereafter and in any event shall take out and maintain:

(a)      Product Liability Insurance coverage of not less than five million pounds sterling (£5,000,000) for any one, or series of claims that may arise; and

(b)      Professional Indemnity Insurance coverage of not less than five million pounds sterling (£5,000,000) for any one, or series of claims that may arise; and

(c)      Public Liability Insurance coverage of not less than five million pounds sterling (£5,000,000) for any one, or series of claims that may arise.

(d)      Employer Liability Insurance coverage of not less than ten million pounds sterling (£10,000,000) for any one, or a series of claims that may arise.

18.6   The Supplier will take out and maintain such insurances as set out in this clause 21 with a reputable insurance company and shall at the College’s request provide evidence of the insurance policy or policies and of payment of the premiums. Supplier’s failure to maintain such insurances shall be treated as a material breach of the Contract and shall give The College the right to terminate the Contract in accordance with clause 30.

19.     Liability

19.1   This clause sets out the College’s entire financial liability (including any liability for the acts or omissions of its employees, agents, consultants and sub-contractors) to the Supplier in respect of any breach by the College of:

(a)      The Public Contracts Regulations 2015 or

(b)      The Contract

and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

19.2   Nothing in the Contract limits or excludes the College’s liability:

(a)      for death or personal injury resulting from the College’s negligence; or

(b)      for any damage or liability incurred by the Supplier as a result of fraud or fraudulent misrepresentation by the College

19.3   The College shall not be liable for:

(a)      loss of profits; or

(b)      loss of business; or

(c)      loss of contract; or

(d)      loss due to corruption of data; or

(e)      any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

19.4   The College’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract or in respect of any correspondence between the parties (including any competitive process) shall be limited to and shall not exceed £10,000.

20.     Title and risk
20.1   Title and risk in the Goods shall pass to the College on completion of Delivery or Installation, if required.

21.     Price and payment
21.1   The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date the Contract came into existence.
21.2   The price of the Goods shall be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by the College.
21.3   The price of the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services.  Unless otherwise agreed in writing by the College, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
21.4   The Supplier may invoice the College after Acceptance. Each invoice shall include such supporting information required by the College to verify the accuracy of the invoice, including but not limited to the relevant Order number.
21.5   Where the Supplier submits an invoice to the College in accordance with paragraph 21.4, the College will consider and verify that invoice in a timely fashion.

21.6   The College shall pay the Supplier any sums due under such an invoice no later than a period of 30 days from the date on which the College has determined that the invoice is valid and undisputed.

21.7   Where the College fails to comply with clause 21.5 and there is an undue delay in considering and verifying the invoice, the invoice shall be regarded as valid and undisputed for the purposes of paragraph 21.6 after a reasonable time has passed.

21.8   Where the Supplier enters into a Sub-Contract, the Supplier shall include in that Sub-Contract:

a)       Provisions having the same effect as clauses 21.5, 21.6 and 21.7 of this Agreement; and

b)       A provision requiring the counterparty to that Sub-Contract to include in any Sub-Contract which it awards provisions having the same effect as clauses 21.5, 21.6, 21.7 and 21.8 of this Agreement.

c)       In clause 21.8, “Sub-Contract” means a contract between two or more suppliers, at any stage of remoteness from the College in a subcontracting chain, made wholly or substantially for the purpose of performing (or contributing to the performance of) the whole or any part of this Contract.

21.9   All amounts payable by the College under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”).  Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the College, the College shall on receipt of a valid VAT invoice from the Supplier, pay to the Supplier 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.
21.10  The College may, without limiting any other rights or remedies it may have, set off any amount owed to it by the Supplier against any amounts payable by it to the Supplier under the Contract.

22.     Confidential information
22.1   A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are disclosed to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products or its services which the receiving party may obtain. Subject to any express provisions of the Contract, the receiving party shall only disclose such confidential information to those of its employees, agents or subcontractors who need to know the same for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors shall keep such information confidential.

23.     Publicity
23.1   Unless expressly permitted in writing by the College, the Supplier shall not publish or permit to be published either alone or in conjunction with any other person any information, articles, photographs or other illustrations relating to or connected with the Contract or the work of the College.

24.     Intellectual Property
24.1   All Intellectual Property Rights in any specifications, instructions, plans, data, drawings, databases, patents, patterns, models, designs or other material:
(a)      provided to the Supplier by the College shall remain the College’s property absolutely;

(b)      prepared by or for the Supplier specifically for the College in relation to the performance of the Contract shall belong to the College.

(c)      pre-existing at the commencement of the Contract and owned or licensed by the Supplier shall be licensed to the College insofar as it is necessary for the College to exercise its other rights under the Contract. Such a license shall be perpetual, worldwide, irrevocable, royalty-free and capable of sub-license on those terms.

25.      Anti-Bribery
25.1   The Supplier shall:
(a)      comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
(b)      not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c)      have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and clause 25.1(b), and will enforce them where appropriate; and
(d)      promptly report to the College any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this agreement;
25.2   Breach of this clause 25 shall entitle the College to terminate the Contract with immediate effect.

26.      Data Protection

26.1   The parties acknowledge that the College is the Data Controller and the Supplier is the Processor.

26.2   The Supplier shall Process Personal Data only to the extent, and in such a manner, as is necessary for the purposes specified in the Specification and in accordance with the College’s written instructions from time to time and shall not Process Personal Data for any other purpose. If the Supplier is required by Law to Process Personal Data otherwise than in accordance with this Clause, immediately inform the College of the legal requirement before Processing Personal Data (unless prohibited from doing so by Law).

26.3   The Supplier shall provide all reasonable assistance to the College in the preparation of any data protection impact assessment, as defined in the GDPR, prior to commencing any Processing. Such assistance may, at the discretion of the College, include:

(a)      a systematic description of the envisaged Processing operations and the purpose of the Processing;

(b)      an assessment of the necessity and proportionality of the Processing operations in relation to the Specification;

(c)      an assessment of the risks to the rights and freedoms of Data Subjects; and

(d)      the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of Personal Data.

26.4   The Supplier will not Process Personal Data, or disclose Personal Data to any party who carries on business, outside the EEA except with the College’s prior written consent and where such consent is given, take such actions and enter into such agreements as the College may require to ensure that such transfer or disclosure complies with Law.

26.5   The Supplier will keep a record of any Processing of Personal Data it carries out under the Contract.

26.6   The Supplier shall not disclose Personal Data to any person except under this Agreement or with your written consent.

26.7   The Supplier shall ensure that access to Personal Data is limited to:

(a)      those employees who need access to Personal Data to meet the Supplier’s obligations under this Contract; and

(b)      in the case of any access by any employee, such part or parts of Personal Data as is strictly necessary for performance of that employee’s duties.

26.8   The Supplier shall ensure that employees that require access to Personal Data:

(a)      are informed of the confidential nature of Personal Data;

(b)      have undertaken training in Law relating to handling Personal Data; and

(c)      are aware both of the Supplier’s duties and their personal duties and obligations under Law and this Contract.

26.9   The Supplier shall ensure that all persons authorised to Process Personal Data are under an appropriate contractual or other legal obligation of confidentiality in respect of Personal Data.

26.10  The Supplier shall not disclose Personal Data to any Data Subject or to a third party other than at the request of the College or as provided for in this Contract.

26.11  The Supplier shall, taking into account the nature of the Processing, implement appropriate technical and organisational measures against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data that have been reviewed and approved by the College as appropriate having taken account of the:

(a)      nature of the Personal Data to be protected;

(b)      harm that might result from a Data Breach;

(c)      state of technological development; and

(d)      cost of implementing any measures.

Appropriate technical and organisational measures include pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, taking reasonable steps to ensure the reliability of its employees with access to Personal Data and regularly assessing and evaluating the effectiveness of such measures adopted.

26.12  The Supplier shall, upon becoming aware, immediately and in any event within 24 hours notify the College of any Data Breach and shall work together with the College to provide the College with full co-operation and assistance, including to investigate the Data Breach (including by (i) assisting with any investigation launched by the College; (ii) facilitating interviews with the Supplier’s employees and others involved in the matter; and (iii) making available all relevant records reasonably required by the College to investigate the Data Breach or otherwise comply with Law or the requests of any competent regulatory authority in relation to the Data Breach or its investigation).

26.13  The Supplier shall not engage another Processor to Process Personal Data except with the College’s prior specific written authorisation and, where such authorisation is given, enter into a contract with the Processor that imposes the same contractual obligations set out in this Clause on that Processor, and remain liable for any Processor that it engages In accordance with the terms of this Clause.

26.14  The Supplier shall assist and fully co-operate with the College to enable it to comply with its obligations as a Data Controller under and in accordance with Law including in relation to the security of Processing, data subject right requests, reporting personal Data Breaches to the supervisory authority and conducting data privacy impact assessments. The Supplier shall notify the College within 24 hours if it receives a request from a Data Subject to exercise its rights under Law or any communication from a Data Subject, the Information Commissioner or any other regulatory authority in connection with Personal Data Processed under this Contract.

26.15  The Supplier shall promptly comply with any request from the College requiring the Supplier to amend, transfer or delete Personal Data. At the College’s request, the Supplier shall provide to the College a copy of all Personal Data held by it in the format and on the media reasonably specified by the College.

26.16  The Supplier shall at any time on the request of the College, return all Confidential Information and/or data (including any Personal Data that the Supplier Processes for and on behalf of the College) to that The College and/or permanently delete the same from its systems, including any back-up copies.

26.17  The Supplier shall at the College’s option, delete or return to the College all Personal Data on termination of the Agreement and delete any existing copies of Personal Data except to the extent that the College is required to retain Personal Data by Law.

26.18  The Supplier shall make available to the College all information necessary to demonstrate our compliance with the obligations under this Clause and allow for and contribute to audits, including inspections, conducted by the College or another auditor mandated by the College.

26.19  The Supplier shall immediately inform the College if, in its opinion, an instruction from the College infringes Law.

26.20  The Supplier shall, in connection with this Agreement, comply in all respects with Law relating to data protection and have established procedures to ensure continued compliance with Law. The Supplier shall comply with its obligations as a Processor under and in accordance with Law.

26.21  The Supplier shall only collect any Personal Data in a form which is fully compliant with Law which will contain a data protection notice informing the data subject of the identity of the Data Controller, the identity of any data protection representative it may have appointed, the purposes or purpose for which their Personal Data will be Processed and any other information which is necessary having regard to the specific circumstances in which the data is, or is to be, Processed to enable Processing in respect of the Data Subject to be fair and compliant under Law.

26.22  The College may, at any time on not less than 30 working days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.

26.23  The parties agree to take account of any guidance issued by the Information Commissioner’s Office. The College may on not less than 30 working days’ notice to the Supplier amend this Contract to ensure that it complies with any guidance issued by the Information Commissioner’s Office.

26.24  The Supplier shall Process Personal Data in performing the Services as notified by the College only for as long as required and for no longer than the term of this Contract.

26.25  The Supplier warrants that it shall:

(a)      Process the Personal Data in compliance with Law; and

(b)      take appropriate technical and organisational measures against Data Breach.

26.26  The Supplier agrees to indemnify and keep indemnified and defend at its own expense the College against all costs, claims, damages or expenses incurred by the College or for which the College may become liable due to any failure by the Supplier or its employees or agents to comply with any of its obligations under this Clause.

27.      Modification of contracts during their term

27.1   The Contract may be modified without a new procurement procedure in accordance with this clause in any of the following cases:—

(a)      where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses or options, provided that such clauses—

(i)       state the scope and nature of possible modifications or options as well as the conditions under which they may be used, and

(ii)      do not provide for modifications or options that would alter the overall nature of the contract or the framework agreement;

(b)      for additional works, services or supplies by the original Supplier that have become necessary and were not included in the initial procurement, where a change of Supplier—

(i)       cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial procurement, or

(ii)      would cause significant inconvenience or substantial duplication of costs for the College, provided that any increase in price does not exceed 50% of the value of the original contract;

(c)      where all of the following conditions are fulfilled:—

(i)       the need for modification has been brought about by circumstances which a diligent the College could not have foreseen;

(ii)      the modification does not alter the overall nature of the contract;

(iii)     any increase in price does not exceed 50% of the value of the original contract or framework agreement.

(d)      where a new Supplier replaces the one to which the College had initially awarded the contract as a consequence of—

(i)       an unequivocal review clause or option in conformity with sub-paragraph (a), or

(ii)      universal or partial succession into the position of the initial Supplier, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established, provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Part;

(e)      where the modifications, irrespective of their value, are not substantial within the meaning of paragraph 30.2; or

(f)      where paragraph 30.1 applies.

27.2   This paragraph applies where the value of the modification is below both of the following values:—

(a)      the relevant threshold, and

(b)      10% of the initial contract value for service and supply contracts and 15% of the initial contract value for works contracts, provided that the modification does not alter the overall nature of the contract or framework agreement.

27.3   Where several successive modifications are made, the value shall be the net cumulative value of the successive modifications.

27.4   Modification of this contract during its term shall be considered substantial where one or more of the following conditions is met:—

(a)      the modification renders the contract materially different in character from the one initially concluded;

(b)      the modification introduces conditions which, had they been part of the initial procurement procedure, would have—

(i)       allowed for the admission of other candidates than those initially selected,

(ii)      allowed for the acceptance of a tender other than that originally accepted, or

(iii)     attracted additional participants in the procurement procedure;

(c)      the modification changes the economic balance of the contract or the framework agreement in favour of the Supplier in a manner which was not provided for in the initial contract or framework agreement;

(d)      the modification extends the scope of the contract or framework agreement considerably;

(e)      a new Supplier replaces the one to which the contracting authority had initially awarded the contract in cases other than those provided for in paragraph (30.1)(d).

27.5   A new procurement procedure shall be required for modifications of the provisions of a public contract or a framework agreement during its term other than those provided for in this contract.

28.     Termination
28.1   Without limiting its other rights or remedies either party may terminate the Contract:
(a)      in respect of the supply of Services, by giving the other party 90 days written notice; and
(b)      in respect of the supply of Goods, at any time before Delivery with immediate effect by giving the Supplier written notice, in which case the College shall pay the Supplier fair and reasonable compensation for work-in-progress at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
28.2   The College may terminate the Contract with immediate effect by giving written notice to the Supplier if:
(a)      the Supplier commits a material or persistent breach of the Contract and (if such breach is remediable) fails to remedy that breach within (7) seven days of receipt of notice in writing of the breach;
(b)      the Supplier 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) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, 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 section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(c)      the Supplier 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;
(d)      (being a company) 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 Supplier, other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
(e)      (being an individual) the Supplier is the subject of a bankruptcy petition or order;
(f)      a creditor or encumbrancer of the Supplier 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;
(g)      (being a company) 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 Supplier;
(h)      (being a company) a floating charge holder over the Supplier’s assets has become entitled to appoint or has appointed an administrative receiver;
(i)       a person becomes entitled to appoint a receiver over the Supplier’s assets or a receiver is appointed over the Supplier’s assets;
(j)       any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 31.2(b) to clause 31.2(i) inclusive;
(k)      the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on, all or substantially the whole of its business;
(l)       the Supplier’s financial position deteriorates to such an extent that in the College’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m)     (being an individual) the Supplier dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
(n)      the contract has been subject to a substantial modification which would have required a new procurement procedure under The Public Contracts Regulations 2015.

(o)      the Supplier has, at the time of contract award, been in one of the situations referred to in regulation 57(1) of The Public Contracts Regulations 2015, including as a result of the application of regulation 57(2) of The Public Contracts Regulations 2015, and should therefore have been excluded from the procurement procedure; or

(p)      the contract should not have been awarded to the Supplier in view of a serious infringement of the obligations under the Treaties and the Public Contracts Directive that has been declared by the Court of Justice of the European Union in a procedure under Article 258 of TFEU.

29.     Consequences of Termination
29.1      On termination of the Contract for any    reason:
(a)      where the Services are terminated, the Supplier shall immediately deliver to the College all Deliverables, whether or not then complete, and return the Articles.  If the Supplier fails to do so, then the College may without limiting its other rights or remedies enter the Supplier’s premises and take possession of them.  Until they have been returned or delivered, the Supplier shall solely be responsible for their safe keeping and will not use them for any purpose not connected to this Contract;
(b)      the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
(c)      clauses which expressly or by implication have effect after termination shall continue in full force and effect.

30.     Force majeure
30.1   Neither party shall be liable to the other for any delay or failure in performing its obligations under the Contract to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable, provided that the Supplier shall use all reasonable endeavours to cure any such events or circumstances and resume performance under the Contract. If any events or circumstances prevent the Supplier from carrying out its obligations under the Contract for a continuous period of more than 30 Business Days, the College may terminate this Contract immediately by giving written notice to the Supplier.

31.      Freedom of Information and Environmental Regulations

31.1   The Supplier acknowledges that the College is subject to the requirements of the Freedom Of Information Act 2000, (FOIA), and the Environmental Information Regulations 2004 (EIR) and the Supplier agrees to assist and cooperate with the College (at the Supplier’s expense) as mandated by the College in relation to these Laws.

31.2   Any Requests received by the Supplier shall be forwarded to the College immediately.

31.3   The provisions of clause 34 shall extend to sub-contractors and the Supplier shall ensure compliance with this requirement.

31.4   The Supplier acknowledges that the College may, acting in accordance with the FOIA, or the EIR be obliged to disclose information:-

(a)     without consulting with the Supplier; or

(b)      following consultation with the Supplier and having taken the Supplier’s views into account.

32.     Articles on Loan

32.1   All Articles loaned by the College to the Supplier in connection with the Contract shall remain always the College’s property and shall be surrendered to the College upon demand in good and serviceable condition (fair wear and tear allowed) and are to be used by the Supplier solely for the purpose of completing the Contract. The Supplier agrees that no copy of any of the Articles will be made without the consent in writing of the Authorised Officer. Until the Supplier return all the Articles to the College they shall be at the Supplier’s risk and shall be insured by the Supplier at the Supplier’s expense against the risk of loss, damage or theft. Any loss of or damage to such Articles shall be made good by Supplier at their expense. All scrap arising from the supply of such Articles must be disposed of at the College’s discretion and all proceeds of sales of such scrap must be promptly paid to the College.

33.      Supplier Employees

33.1   When directed by the College, the Supplier shall provide a list of the names and addresses of all persons (if any) who it is expected may require admission in connection with the Contract to the Premises, specifying the capacities in which they are concerned with the Contract and giving such other particulars as the College may reasonably require.

33.2   The Supplier’s employees and those (if any) of the Supplier’s sub-contractors or agents engaged within the boundaries of any of the College Premises, shall comply with such rules, regulations and requirements (including those relating to security arrangements) as may be in force from time to time for the conduct of personnel when at that establishment, and when outside that establishment.

33.3   The College’s decision as to whether any person is to be refused access to any Premises occupied by or on behalf of the College shall be final and conclusive.

33.4   The Supplier shall replace any of its employees who, the College shall have reasonably decided, have failed to carry out their duties with reasonable skill and care. Following the removal of any of the Supplier’s employees for any reason, the Supplier shall ensure such person is replaced promptly with another person with the necessary training and skills to meet the requirements of the Contract.

33.5   The Supplier shall bear the cost of or costs arising from any notice, instructions or decision of the College under this clause 35.

33.6   The Supplier shall take all reasonable steps to ensure that any employees, servants or agents of the Supplier and any sub-contractors, their employees, servants or agents, employed in the execution of the Contract are entitled to obtain employment in the United Kingdom and are not claiming any benefit payable to persons registered as unemployed.

33.7   Where the appointed Agreement Manager leaves the employment of the company, lead institution must be informed immediately of interim arrangements made.

34.      Re-tendering and Handover

34.1   Within twenty one (21) days of being so requested by the College, the Supplier shall provide and thereafter keep updated, in a fully indexed and catalogued format, all the information necessary to enable the College to issue invitations to tender for the future provision of the Goods and Services.

34.2   Where, in the opinion of the College, TUPE is likely to apply to the Contract on its termination or expiration, the information to be provided by the Supplier under clause 37.1 shall include, as applicable, accurate information relating to the employees who would be transferred under the same terms of employment under TUPE, including in particular (but not limited to): –

(a)      the number of employees who would be transferred, but with no obligation on the Supplier to specify their names; and

(b)      in respect of each of those employees, their dates of birth, sex, salary, length of service, hours of work and rates, and any other factors affecting redundancy entitlement, any specific terms applicable to those employees individually and any outstanding claims arising from their employment; and

(c)      the general terms and conditions applicable to those employees, including probationary periods, retirement age, periods of notice, current pay agreements and structures, special pay allowances, working hours, entitlement to annual leave, sick leave, maternity and special leave, injury benefit, redundancy rights, terms of mobility, any loan or leasing agreements, and any other relevant collective agreements, facility time arrangements and additional employment benefits.

34.3   The Supplier shall indemnify the College against any claim made against the College at any time by any person in respect of the liability incurred by the College arising from any deficiency or inaccuracy in information, which the Supplier is required to provide under clause 36.1.

34.4   The Supplier shall co-operate fully with the College during the handover arising from the completion or earlier termination of the agreement.  This co-operation, during the setting up operations period of the replacement Supplier (if any), shall extend to allowing full access to, and providing copies of all documents, reports, summaries and other information necessary in order to achieve an effective transition.

35.     TUPE

35.1   The Supplier shall indemnify and keep indemnified the College against any loss incurred by the College connected with or arising from any claim or proceedings by any trade union, elected employee representative or staff association made against the College in respect of any or all of the Supplier’s staff or employees or any other employee of the Supplier or its sub-contractors and which arises from or is connected with any failure by the Supplier to comply with its legal obligations in relation thereto whether under Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 or TUPE.

35.2   The Supplier shall indemnify and keep indemnified the College against any loss incurred by the College connected with or arising from the contract of employment or any policy applicable to, or any collective agreement in respect of any of the Supplier’s staff or any other person at any time employed by (or engaged as a consultant by) the Supplier or its sub-contractors made against the College at any time for breach of such contract, policy or redundancy, pay, sex, race or disability discrimination, equal pay, unlawful deductions, loss of earnings, industrial or personal injury or otherwise relating to their employment by the Supplier and which results from any act, fault or omission of the Supplier or such other person was employed by the Supplier, save to the extent that the liability arises from any wrongful act by the College or its employees.

35.3   The Supplier shall indemnify and keep indemnified the College against any loss incurred from any change or proposed change to the terms and conditions of employment of any or all of the Supplier’s staff or any other employee of the Supplier or its sub-contractors where such change is or is proposed to be effected following the transfer of any such person pursuant to the agreement and in respect of any loss incurred by the College arising from the employment or proposed employment of any such person otherwise than on terms the same as those enjoyed by any such person immediately prior to such transfer.

35.4   Except with the proper written consent of the College, the Supplier shall not vary any terms and conditions of employment of any employee or any policy collective agreement applicable to any employee then assigned by the Supplier or its sub-contractors to the discharge of the Contract (provided always that this provision shall not affect the right of the Supplier to give effect to any pre-existing contractual obligation to any such employee) nor remove or replace any particular employee so assigned (unless requested by such employee or upon the resignation of such employee in which case the Supplier shall replace such person with another person of similar skills, qualifications and experience) after the College has served notice of the termination of the Contract or after the Supplier shall have otherwise become aware of the proposed termination or re-tendering of this agreement, any Contract or the provision by it of the Goods and Services.

36.     General
36.1   Assignment and subcontracting.
(a)      The College may at any time assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.
(b)      The Supplier may not assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract without the College’s prior written consent.
36.2   Notices.
(a)      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, recorded delivery, commercial courier or fax.
(b)      A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 38.2(a); if sent by pre-paid first class post or recorded delivery, 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.
(c)      The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
36.3   Severance.
(a)      If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b)      If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
36.4   Waiver. A waiver of any right or remedy under the Contract 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
36.5   Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
36.6   Variation. Except as set out in the Contract, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the College.

36.7   Conflict.  Any employee of the Supplier shall not be directly or indirectly engaged, concerned or have any financial interest in any capacity with a The College or any of their employees, unless prior written approval is obtained from the College concerned.

36.8   Governing law and jurisdiction. This Contract and proceedings relating to 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 brought in the courts whereby the College and/or Supplier is domiciled. Each party agrees that the specified courts shall have exclusive jurisdiction over such disputes or claims save that any counterclaim may be brought in any proceedings already commenced.
36.9   The parties shall attempt to resolve any dispute arising out of or relating to this contract through negotiations between senior executives of the parties, who have authority to settle the same. If the matter is not resolved by negotiation within 30 days of receipt of a written ‘invitation to negotiate’, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (ADR) procedure, or in default of agreement, through an ADR procedure as recommended to the parties by the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators.

If the matter has not been resolved by an ADR procedure within 60 days of the initiation of that procedure, or if any party will not participate in an ADR procedure, the dispute may be referred to arbitration by any party. Should the parties be unable to agree on an arbitrator or arbitrators, or be unable to agree on the Rules for Arbitration, any party may, upon giving written notice to other parties, apply to the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators for the appointment of an Arbitrator or Arbitrators and for any decision on rules that may be necessary.  Nothing in this clause shall be construed as prohibiting a party or its affiliate from applying to a court for interim injunctive relief.
If the Supplier is not based within the United Kingdom then all disputes arising out of or in connection with the present Contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.