STANDARD TERMS AND CONDITIONS FOR SUPPLY OF GOODS OR SERVICES TO THE NEW FOREST DISTRICT COUNCIL 19/06/2018
1.1 The Council wishes to be supplied with the Goods and/or Services.
1.2 The Council has selected you to supply the Goods and/or Services and you undertake to supply the same on the terms set out below.
2.1 "Commencement Date" means the date specified in the Purchase Order;
2.2 "Contract" means the agreement between the Council and you consisting of these terms and conditions and related Purchase Order but excluding your terms and conditions of sale or supply;
2.3 "Contract price" means the price exclusive of any applicable Tax, payable to you by the Council as set out in the Purchase Order;
2.4 "Council" means New Forest District Council;
2.5 "Data Controller" means New Forest District Council.
2.6 "Data Processor" means You.
2.7 "DPA" means the Data Protection Act 2018, until the effective date of its repeal (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK, and (iii) any successor legislation to the Data Protection Act 2018 and the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law
2.8 "Force Majeure Event" means any cause materially affecting the performance of the Services under the Contract arising from any act, events, omissions, happenings or nonhappenings beyond the parties reasonable control including, without limitation, acts of God, war, riot, fire, flood or any disaster affecting either of the parties but will not mean any labour dispute between you and the your employees, agents or sub-contractors;
2.9 "GDPR" means the General Data Protection Regulation (EU) 2016/679.
2.10 "Goods" means the goods to be supplied by you and specified in the Purchase Order;
2.11 "Prohibited Act" means
(a) offering, giving or agreeing to give to any servant of the Council any gift or consideration of any kind as an inducement or reward:
(i) for doing or not doing (or for having done or not having done) any act in relation to the obtaining or performance of this Contract or any other contract with the Council; or
(ii) for showing favour or disfavour to any person in relation to this Contract or any other contract with the Council;
(b) committing any offence:
(i) under the Prevention of Corruption Acts 1889-1916;
(ii) under legislation creating offences in respect of fraudulent acts; or
(iii) at common law in respect of fraudulent acts in relation to this Contract or any other contract with the Council; or
(iv) defrauding or attempting to defraud or conspiring to defraud the Council;
2.12 "Purchase Order" means the purchase order used by the Council to place an Order for the supplies of Goods and/or Services;
2.13 "Services" means the services to be provided by you as identified in the Purchase Order;
The Contract and the rights and obligations of the parties shall take effect on the Contract commencement Date and shall continue until the expiry of the Contract Term or earlier termination of the Contract
4. CONTRACT FOR GOODS
a) All goods shall be of the quality or kind mentioned in the Purchase Order but otherwise the goods shall be in accordance with any specification of the British Standards Institute, or EU equivalent, which relates to the goods and is current at the date of the quotation or tender. The goods shall comply with the requirements of any statute or subordinate legislation in force at the time of the delivery of the goods to the Council.
b) You shall indemnify the Council against all loss, damage, costs and expenses for which the Council is or becomes liable as a result of any infringement or alleged infringement by you of any third party's rights.
a) Goods are to be delivered between the following times: Monday to Thursday 08:00 and 16:30 Friday 08:00 and 15:30 and on the day and at the place specified in the Purchase Order.
b) Delivery shall be free of charge to the Council and at your risk.
c) Delivery of goods to a carrier shall not be deemed to be delivered of the goods to the Council.
d) Time of delivery shall be of essence and failure to deliver within the time promised or specified shall enable the Council to release itself from any obligation to accept and pay for the goods and /or cancel all or part of the Contract, in either case without prejudice to other rights and remedies.
e) The Council will be under no obligation to accept or pay for quantities of Goods delivered in excess or in advance of the quantity, date or rate (as appropriate) stipulated by such instruction.
Any notice, request, demand, consent or approval given under or in connection with this Contract must be given in writing. Any such notice, request, demand, consent or approval shall be sent to the registered office or principal business address of either party and, if sent by post, shall be deemed to have been received on the second working day following the date of posting.
4.4 QUALITY ASSURANCE
a) You shall give the Council access at all reasonable times to your premises and allow them to inspect his quality systems and production methods and, if requested, to inspect, examine and test the Goods both during and after their manufacture and the materials being used in the manufacture.
b) Any costs incurred by you in arranging compliance with the quality standards required by the Council shall be borne by you.
4.5 REJECTION AND REPLACEMENT
a) Without prejudice to or limitation of its statutory rights the Council may within the Warranty Period, notwithstanding the use or continued use by the Council of the Goods after the right to reject them has arisen, reject by notice in writing (without liability to the Council) any Goods which, in the opinion of the Council are not of satisfactory quality and/or fit for purpose and/or not in accordance with the Purchase Order.
b) Without prejudice to the Council's other rights and remedies, you shall in any event indemnify the Council against all costs and expenses incurred by the Council as a result of your original supply of the rejected goods.
c) You shall remove rejected Goods within 14 days of the date of the Council's notice of rejection, failing which the Council may (as it sole option) deliver them to you, in either case at your cost and risk.
d) Where such rejected Goods form part of a series of consignments, nothing in this Condition shall prevent the Council from accepting subsequent consignments if the Goods contained within such subsequent consignments are acceptable to the Council.
Without prejudice to the Council's other rights and remedies, if during the Warranty Period, any defect occurs in any of the Goods due to the material, workmanship or design of the Goods not being in accordance with the Purchase Order or the Specification or any applicable statutory or regulatory standards, you shall as soon as practicable and in any event within a reasonable time as stipulated by the Council replace or repair such defective Goods at this own expense. Goods replaced or repaired under this Condition shall be subject to a fresh Warranty commencing on the actual date of delivery of the repaired or replaced Goods and continuing for the Warranty Period.
4.7 TITLE AND RISK
a) Title in the Goods will pass to the Council upon payment to you, save where payment (either in whole or in part) is made for the Goods prior to their delivery to the Council, or where the Council has supplied materials to be incorporated in the Goods, in which cases Condition 4.7b) shall apply
b) Where under Condition 4.7a) this Condition 4.7b) (without prejudice to the Council's rights) title to the Goods shall vest in the Council from the commencement of their manufacture, and title to all materials and other items which you shall acquire or allocate for incorporation in any of the Goods shall vest in the Council from the time they are so acquired or allocated.
c) The Goods shall be at your risk until they are delivered to the Council notwithstanding that payment may have already been made and title passed to the Council, and you shall be responsible for any loss or damage and for arranging and paying for their storage, handling and insurance; the insurance shall be endorsed in the name of and protect the interests of the Council on an all risks basis and shall provide cover for loss or damage in transit.
5. CONTRACT FOR SERVICES
5.1 THE SERVICE STANDARD
You will at all times throughout the duration of this Contract:
a) Provide the Services for the period specified in the Purchase Order in accordance with the Council's requirements as set out in the Purchase Order.
b) comply with the terms of this Contract;
c) exercise and continue to exercise the degree of skill, care and diligence reasonably to be expected of a skilled and competent provider of such services;
d) carry out all reasonable directions of the Council's representative;
e) use its reasonable endeavours to secure and achieve continuous improvement in the delivery of the Services during the Contract Term;
f) notify the Council in writing immediately on learning of any relationship or potential conflict of interest that might influence or be perceived to influence the provision of the Services;
6 PRICE AND PAYMENT
6.1 New Forest District Council has committed to the UK Governments Transparency agenda (2010) by ensuring that ALL its expenditure over £500 along with a contract overview is made publicly available via the Councils website. Suppliers should be aware that the information published on a monthly /quarterly basis includes the Suppliers Name, £ spend value, spend classification, contract start/finish dates, total contract value. Commercially sensitive contract details / price structures will not be published.
6.2 In consideration of the performance of your obligation under the contract, the Council shall pay the price in accordance with the Contract;
6.3 The Council shall pay you the undisputed sums due in cleared funds within thirty (30) days of receipt and agreement of invoices, submitted monthly in arrears, for work completed to the reasonable satisfaction of the Council;
6.4 The Council may reduce payment in respect of any goods which you have either failed to provide or have provided inadequate goods;
6.5 No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuations in rates of exchange or otherwise) without the prior written consent of the Council.
6.6 Payment by the Council shall be without prejudice to any claims or rights which the Council may have against you and shall not constitute any admission by the Council as to your performance of your obligation hereunder.
7. INTELLECTUAL PROPERTY
7.1 Any specification supplied by the Council to you or specifically produced by you for the Council, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Purchase Order, shall be the exclusive property of the Council.
7.2 All designs, drawing, specifications and information supplied by Council in connection with the Contract are confidential, and their use must be strictly confined to your own works for the purposes of the Contract. All such designs, drawings, specifications and information and all copies thereof must be returned to the Council on completion of the Contract.
7.3 You shall indemnify the Council against all actions, claims and demands, costs charges and expenses awarded against or incurred by the Council as a result of or in connection with any claim that the Goods or their use or resale infringes the patent, registered design, trade mark, copyright or other intellectual property rights of any other person except to the extent that the claim arises from compliance with the Purchase Order.
8. STATUTORY RIGHTS
8.1 A party who is not a party to this Contract is not entitled to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 except where this Contract expressly provides otherwise.
8.2 Without prejudice to or limitation of the Council's other rights, if you do not fulfil your responsibilities and obligations under the Purchase Order you shall indemnify the Council against all costs for which the Council becomes liable and for which it would not otherwise be liable.
9. DATA PROTECTION
9.1 This clause 9 applies if You are processing personal data. You shall, comply with any notification requirements under the DPA and both Parties shall duly observe all their obligations under the DPA which arise in connection with the Agreement.
9.2 When handling Council data, You shall ensure that the security of the data is maintained in line with the security requirements of the Council.
9.3 The Parties agree to comply with the provisions of GDPR. You agree to provide the Council with all information necessary to demonstrate compliance with GDPR.
9.4 You agree to only act on the Council's written instructions as Data Controller when processing personal data under GDPR. The personal information to be provided to You is:
Name, address, telephone number and email address.
9.5 You will process the personal data only for the purposes of complying with the Purchase Order.
9.6 You agree to impose confidentiality obligations on all personnel involved in processing personal data (as defined by GDPR) on behalf of the Council. Access to the personal data is limited only to those employees who require access for the purposes carrying out the activities set out herein and complying with Your obligations under this Contract. All such staff with access to the personal data will receive suitable training on information security and data protection.
9.7 You will not keep the personal data on any laptop or other portable drive or device unless the use of such equipment is necessary for the performance of this Contract, and only when that device is encrypted. Where this is necessary, You will keep a clear record of all devices where the personal data are stored. You will keep all personal data securely. You shall ensure that you have in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data
9.8 You shall not transfer the personal data outside of the United Kingdom for any reason.
9.9 You will not sub-contract any of the processing without explicit written agreement from the Council. Where such written agreement is provided, You will ensure that any sub-contractor it uses to process the personal data is contracted via a written agreement which is consistent with the terms of this agreement
9.10 You agree to assist the Council in relation to implementing the rights of the data subject and the requests they may make within 20 days of receiving a request from the Council.
9.11 You will not disclose the personal data to a third party in any circumstances other than at the specific written request of the Data Controller, unless the disclosure is required by law. Where the disclosure is required by law the Data Processor will inform the Data Controller immediately.
9.12 Any breach of security involving the loss, theft, damage, inappropriate access to or corruption of personal data or equipment on which it is stored, supplied by the Council to You must be reported to the Council immediately it is identified, and no later than one working day after the incident is identified. You will provide any necessary assistance required to manage or investigate the causes of such incident, liaise with the Information Commissioner as required or correct any breaches. The same level of assistance will be provided should any complaint be received from a data subject about you under this agreement.
9.13 Upon satisfactory completion or on termination of this agreement, You will ensure that the personal data is securely removed from their systems and any printed copies securely destroyed immediately. In complying with this clause, electronic copies of the personal data shall be securely destroyed by either physical destruction of the storage media or secure deletion using appropriate electronic shredding software
10. FREEDOM OF INFORMATION
10.1 You recognise the Council's current and future obligations under the Freedom of Information Act 2000 and any codes of practice issued by the Government and the appropriate enforcement Agencies. You will comply with this legislation in so far as it places obligations upon the Council in the performance of its obligations under any contractual arrangement entered into. You will provide such assistance and support which may be requested from time to time by the Council for the purposes of enabling or assisting the Council to comply with the legislation.
10.2 In the event of a request made on the Council for access to information under the FOIA or any notice, recommendation or complaint made to the Council in relation to the FOIA, you will provide to the Council in relation to an access request, any details in respect of the information as the Council may request and a copy of the relevant information where the Council requests such copy; and in relation to any notice, recommendation or complaint, any background details, supporting documentation and copy information which the Council may request in order to deal with such notice, recommendation or complaint within 5 Business Days of the date of the request from the Council.
10.3 You acknowledge that the Council is obliged under the FOIA to disclose information, including information relating to its appointment under this Contract, to third parties, subject to certain exemptions. You further accept and acknowledge that the decision to disclose information and the application of any such exemptions under the FOIA will be at the Council's sole discretion PROVIDED THAT the Council shall act reasonably and proportionately in exercising its obligations under the FOIA as to whether any exemptions under section 43 of the FOIA may apply to protect the your legitimate commercial and trade secrets.
11.1 Subject to Clause 9 (Data Protection) and Clause 10 (Freedom of Information) you shall not, without the prior written consent of the Council, during or after the termination or expiry of this Contract disclose, directly or indirectly, to any person any information relating to the contract or the Council any information of whatever nature which is not in the public domain. Your obligations under this Condition shall survive the expiry or termination of the Contract for whatever reason.
12.1 The goods may be rejected by the Council if they are not supplied and delivered by you when and as ordered by the Council, or, if the goods are not of the sort or quality contracted for, or if the goods are deficient in the quality or number charged for or stated in the delivery or advice note accompanying or preceding the goods. In such matter the decision of the Council shall be conclusive as against you. In every such case the Council may, without prejudice to any other remedy for breach of contract, employ any other person to supply the Council with the goods on such terms and conditions as the Council thinks fit for the remainder of the term of the Contract or any part thereof. In such cases it is hereby agreed that you shall pay the Council or the Council may deduct from any sum due or that may become due to you under the Contract or otherwise, all additional costs, charges or expenses incurred by the Council arising from your default.
13. TERMINATION OF CONTRACT
13.1 The Council may terminate the Contract with immediate effect by notice in writing to you on or at any time after the occurrence of any of the following events:
a) the passing of a resolution for your winding up or the making by a court of competent jurisdiction of an order for the winding up of you or your dissolution;
b) the making of an administration order in relation to you or the appointment of a receiver or administrative receiver over, or the taking of possession or sale by an encumbrancer of a material part of your assets;
c) the making of an arrangement or composition with your creditors generally or making an application to a court of competent jurisdiction for protection from your creditors generally;
d) you commit any Prohibited Act;
e) a breach of your obligations to take out and maintain required insurances;
f) a material and substantial breach of any of your obligations under this Contract.
13.2 In the event of the Council having the right to terminate under clauses 13.1 a), b) or c), the Council may, at its sole discretion, give the receiver, liquidator or other person (as appropriate) the option of carrying out the Contract subject to a guarantee acceptable to the Council being provided for the due and faithful performance of the Contract.
14 ASSIGNMENT AND SUB-CONTRACTING
14.1 You shall not assign, transfer sublet or sub contract the whole or any part of this contract without the prior written consent of the Council.
15. INDEMNITY AND INSURANCE
15.1 You shall indemnify and keep indemnified the Council against injury (including death) to any persons or loss of or damage to any property which may arise out of the act default or your negligence, any sub-contractor or their respective employees or agents, and against all claims demands proceedings damages costs charges and expenses whatsoever in respect thereof or in relation thereto arising from the provision of the goods and/or Services.
15.2 You shall effect, with a reputable company, public and employer's liability and other insurances necessary to cover the risks contemplated by the Contract and shall at the request of the Council produce the relevant policy or policies together with receipts or other evidence of payment of the latest premium due thereunder. Public liability and Employers liability cover of at least £10 million shall be obtained, unless agreed otherwise with the Council. Where the Supply is a supply of consultancy services you shall maintain professional indemnity insurance during the Contract period and for 6 years afterwards to cover its liability to the Council under the Contract.
16. FORCE MAJEURE
16.1 Notwithstanding anything contained in these terms and conditions neither the Council nor you shall be liable for any loss damage or expense suffered or incurred by one party if by reason of a Force Majeure event or any restriction or prohibition imposed by the Government or any duly authorised authority which could not reasonably have been prevented or avoided by the Council or you as the case may be, either
A) The Council is prevented from or delayed in accepting delivery of any goods or any part of a delivery or in paying for the same or any part of a delivery at the due time or
B) You are prevented from or delayed in the supply of any goods ordered by the Council.
17. NO WAIVER
17.1 No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of the contract shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this contract.
18. CORRUPT GIFTS AND FRAUD
18.1 As soon as either party becomes aware of or suspects the commission of any Prohibited Act in respect of the provision of the Services it will notify the other party.
18.2 In circumstances where a person employed by you is reasonably suspected of having committed a Prohibited Act you will provide to the Council such information as is reasonable to satisfy the Council that appropriate action has been taken to safeguard the Service Users or the Council.
19. ACCRUED RIGHTS AND REMEDIES
19.1 The termination of the Contract will not prejudice or affect any claim, right, action or remedy that will have accrued or will thereafter accrue to either party.
20. RIGHTS AND DUTIES RESERVED
20.1 All rights, duties and powers which the Council has as a local Council or which the Council's officers have as local Council officers are expressly reserved.
21. SURVIVAL OF TERMS
21.1 The terms of the Contract will (except in respect of any obligations fully performed prior to or at the completion of the Services) continue in force and effect after the completion of the Services by you.
22.1 In performing your obligations under the Contract you shall:
A) comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Modern Slavery Act 2015; and
B) not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK; and
C) ensure that each of your subcontractors and suppliers shall comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Modern Slavery Act 2015.
22.2 You represent and warrant that neither you nor any of your officers, employees or other persons associated with you:
A) have been convicted of any offence involving slavery and human trafficking; and
B) having made reasonable enquiries, so far as you are aware, have been or are the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence of or in connection with slavery and human trafficking.
22.3 You shall implement due diligence procedures for your subcontractors, and suppliers and other participants in your supply chains, to ensure that there is no slavery or human trafficking in your supply chains.
22.4 You shall notify the Council as soon as you become aware of:
a) any breach, or potential breach, of the applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force; or
b) any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Contract.
22.5 The Council may terminate the Contract with immediate effect by giving written notice to you if you or any of your supply chain commits a breach of the applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force.
23.1 This Contract shall be governed by and construed in accordance with English law and the Parties submit to the exclusive jurisdiction of the courts of England and Wales.
24. ENTIRE AGREEMENT
24.1 This Contract is the entire agreement between the parties and supersedes all representations, communications and prior agreements between the parties in that regard. Each party acknowledges that it has entered into this Contract in reliance only on the representations, warranties, promises and terms contained or expressly referred to in this Contract and, save as expressly set out in these terms and conditions, neither party shall have any liability in respect of any other representation, warranty or promise unless it was made fraudulently.