18 November 2002
General Terms and Conditions of Contract
These terms and conditions are general and should be used with all types of contract. They may only be varied with the written agreement of the Client.
Contents
A. General Provisions
A1 Definitions
A2 Entire Agreement
A3 Notices
A4 Inspection of Premises
A5 Free Issue Materials and Other Equipment
A6 Mistakes in Information
B. Statutory Obligations and Regulations
B1 Data Protection
B2 Prevention of Corruption
B3 Discrimination
B4 Official Secrets Acts 1911, 1989, Section 182 of the Finance Act 1989, and Confidentiality
B5 Publicity, Media and Official Enquiries
B6 Compliance with VAT and other Tax Requirements
B7 Arrears of VAT
B8 The Contracts (Rights of Third Parties) Act 1999
B9 Disclosure
B10 National Minimum Wage
B11 Environmental Requirements
B12 Human Rights Act
B13 Patents, Information and Intellectual Property Rights
B14 Health and Safety
B15 Audit and the NAO
C. Control of the Contract
C1 Assignment and sub-contracting
C2 Waiver
C3 Severability
C4 Remedies Cumulative
C5 Monitoring of Contract Performance
C6 Possible extension of Contract Period
C7 Time of performance
C8 Novation
D. Payment and Price
D1 Contract Price
D2 Payment
D3 Recovery of sums due
D4 Price adjustment on extension of Contract Period
D5 Euro
E. Liabilities
E1 Indemnity and Insurance
E2 Warranties and Representations
E3 Liquidated Damages
F. Default, Disruption and Termination
F1 Termination on change of control and insolvency
F2 Termination on default
F3 Break
F4 Consequences of termination
F5 Disruption
F6 Recovery on termination
F7 Force Majeure
G. Disputes and Law
G1 Governing Law
G2 Dispute/Resolution
G3 Arbitration
A. GENERAL PROVISIONS
A1 Definitions and Interpretations
A1.1 Definitions
In these Conditions :
"Client" means the The Lords Commissioners of HM Treasury or the person or persons for the time being, or from time to time, duly appointed by the The Lords Commissioners;
"Contract" means the contract between the Client and the Contractor consisting of these Conditions, the Specification, Instructions to Tenderers, the Contractors tender response and any other documents (or parts thereof) specified by the Client;
"Contract Manager" means the person for the time being appointed by the Client as being authorised to administer the Contract on behalf of the Client or such person as may be nominated by the Contract Manager to act on his behalf;
“Contract Period” means the period stated in the Contract documents starting on the commencement date.
"Contract Price" means the price exclusive of Value Added Tax, payable to the Contractor by the Client under the Contract for the full and proper performance by the Contractor of his part of the Contract as determined under the Conditions of the Contract but before taking into account the effect of any Variation of Price Condition. In respect of Goods, Contract Price also includes delivery;
“Contracting Authority” as defined in Regulation 3(1) of the Public Services Contracts Regulations 1993, and Regulation 3(1) of the Public Supply Contracts Regulations 1995.
"Contractor" means the person, firm or company with whom the Contract is made;
"Goods" means any such Goods as to be supplied by the Contractor (or by the Contractor’s Sub-Contractor) under the Contract;
“Invitation to Tender” means an invitation for Contractors to bid for the goods or services required by the Department”"Premises" means the location where the goods are to be delivered and /or the services are to be performed, as specified in the Contract;
"Services" means the Services to be provided as specified in the Contract and shall, where the context so admits, include any materials, articles or Goods to be supplied thereunder.
“Specification” means the formal description in objective and measurable terms of the characteristics of the goods or services required.
A1.2 Interpretation
The interpretation and construction of this Contract shall be subject to the following provisions:
Words importing the singular meaning include where the context so admits the plural meaning and vice versa;
Reference to a Condition is a reference to the whole of that Condition unless stated otherwise;
Reference to a Clause is a reference to a paragraph within a Condition unless stated otherwise.
References to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended by any subsequent enactment, modification, order, regulation or instrument.
The headings to Conditions shall not affect their interpretation.
A2 Entire Agreement
The Contract constitutes the entire agreement between the parties relating to the subject matter of the contract. The Contract supersedes all prior negotiations, representations and undertakings, whether written or oral, except that this Condition shall not exclude liability in respect of any fraudulent misinterpretation.
A3 Notices
Any notice or other communication which is to be given by either party to the other, shall be given by letter, (sent by hand or post or by registered post or by the recorded delivery service) or transmitted by telex, telemessage, facsimile transmission or other means of telecommunications, confirmed by a written letter. Such notices or communications shall be deemed effectively given on the day when in the ordinary course of the means of transmission it would first be received by the addressee in normal business hours.
A4 Inspection of Premises and Nature of Services
A4.1 Save as the Client may otherwise direct, the Contractor is deemed to have inspected the Client’s Premises before tendering so as to have understood the nature and extent of the Contract to be carried out and be satisfied in relation to all matters connected with the Installation of Goods and / or Supply of Services and the Premises.
A4.2 The Client shall, at the request of the Contractor, grant such access as may be reasonable for this purpose.
A5 Free-Issue Materials and Other Equipment
A5.1 Where the Client for the purpose of the Contract issues equipment or materials free of charge to the Contractor such equipment or materials shall be and remain the property of the Client. The Contractor shall maintain all such equipment or materials in good order and condition and shall use such equipment or materials solely in connection with the Contract.
A5.2 The Contractor shall notify the Client of any surplus equipment or materials remaining after completion of the Contract and shall dispose of them as the Client may direct. Waste of such equipment or materials arising from bad workmanship or negligence of the Contractor or any of the Contractor's employees, servants, agents, suppliers or sub-contractors shall be made good at the Contractor's expense. Without prejudice to any other rights of the Client, the Contractor shall deliver up such equipment or materials whether processed or not to the Client on demand.
A5.3 The Contractor shall ensure the security of all Client property, equipment, plant, materials etc. whilst in the Contractor’s possession, either on its premises or elsewhere during the provision of the Service and / or delivery of the Goods, in accordance with the Client’s approved security systems set out in the Contract
A5.4 The Contractor shall be liable for any loss of or damage to any Client’s property, unless the Contractor is able to demonstrate that such loss or damage was caused or contributed to by the negligence or default of the Client. The Contractor shall forthwith inform the Contract Manager of any defects appearing in or losses or damage occurring to the Client's equipment or materials made available for the purposes of the Contract.
A6 Mistakes in Information
Where appropriate the Contractor shall be responsible for the accuracy of drawings, documentation and information supplied to the Client and shall pay the Client any extra costs occasioned by any discrepancies, errors or omissions therein.
B. STATUTORY OBLIGATIONS AND REGULATIONS
B1 Data Protection Act
B1.1 The Contractor (and any of his sub-contractors involved in the provision of this Contract) shall be registered under the relevant parts of the Data Protection Act 1998 and shall ensure that the applicable provisions of the Data Protection Act and any subsequent amendments thereto or other relevant Act of Parliament are strictly adhered to.
B1.2 The provisions of this Condition shall apply during the continuance of this Contract and indefinitely after its expiry or termination.
B2 Prevention of Corruption
B2.1 The Contractor shall not offer or give, or agree to give, to any employee or representative of the Client any gift or consideration of any kind as an inducement or reward for doing, refraining from doing, or for having done or refrained from doing, any act in relation to the obtaining or execution of this or any other contract with the Crown, or for showing or refraining from showing favour or disfavour to any person in relation to this or any such contract. The attention of the Contractor is drawn to the criminal offences under the Prevention of Corruption Acts 1889 to 1916.
back to top
B2.2 Where the Contractor or Contractor's employees, servants, sub-contractors, suppliers or agents or anyone acting on the Contractor's behalf commit such an offence in relation to this or any other Contract with the Crown, the Client has the right to:
a) terminate the Contract and recover from the Contractor the amount of any loss resulting from the termination;
b) recover from the Contractor the amount or value of any such gift, consideration or commission; and
c) recover from the Contractor any other loss sustained in consequence of any breach of this Condition, whether or not the Contract has been terminated.
B2.3 In exercising its rights or remedies under this Condition, the Client shall:
a) act in a reasonable and proportionate manner having regard to such matters as the gravity of, and the identity of the person performing the prohibited act;
b) give all due consideration, where appropriate, to action other than termination of the Contract.
B3 Discrimination
The Contractor shall not unlawfully discriminate within the meaning and scope of the provisions of the Race Relations Act 1976, the Sex Discrimination Act 1975, or the Disability Discrimination Act 1997, or the Fair Employment and Treatment (Northern Ireland) Order 1998, relating to discrimination in employment. The Contractor shall take all reasonable steps to secure the observance of these provisions by all servants, employees or agents of the Contractor and all suppliers and sub-contractors employed in the execution of the Contract.
B4 Official Secrets Acts 1911 to 1989, Section 182 of the Finance Acts 1989 and Confidentiality.
B4.1 The Contractor undertakes to abide by, and ensure that his employees, agents, and sub-contractors abide by the provisions of:-
(a) the Official Secrets Acts 1911 to 1989; and
(b) Section 182 of the Finance Act 1989.
B4.2 Each Party shall treat as confidential all information obtained from the other Party under or in connection with the Contract, except information which is in the public domain.
B4.3 Where it is considered necessary in the opinion of the Client, the Contractor shall ensure that staff sign a confidentiality undertaking before commencing work in connection with the contract.
B4.4 In the event that the Contractor, his employees, agents or sub-contractors fail to comply with this Condition, the Client reserves the right to terminate the Contract with immediate effect.
B4.5. The provisions of Clauses B4.1 and B4.2 and B4.4 shall apply during the continuance of the Contract and indefinitely after its expiry or termination.
B5 Publicity, Media and Official Enquiries
B5.1 Neither the Contractor nor its Sub-Contractor(s), agents, servants, suppliers, employees and consultants shall make any public statement relating to the existence or performance of the Contract without the prior written consent of the Client, which shall not be unreasonably withheld.
B5.2 The provisions of this Condition shall apply during the continuance of this Contract and indefinitely after its expiry or termination.
B6 Compliance with Value Added Tax and Other Tax Requirements
B6.1 The Contractor shall at all times comply with the Value Added Tax Act 1994 and all other statutes relating to direct or indirect taxes.
B6.2 Failure to comply may constitute a material breach of this Contract and the Client may exercise the rights and provisions conferred by Condition F3 Termination hereof.
B6.3 The Contractor shall furnish to the Client the name, and if applicable, the value added tax registration number of any agent, supplier or sub-contractor of the Contractor prior to the commencement of any work under this contract by that agent, supplier or sub-contractor. Upon a request by the Client, the Contractor shall not employ or will cease to employ any agent, supplier or sub-contractor.
B7 Arrears of Value Added Tax
B7.1 Where an amount, including any assessed amount, is due from the Contractor as Value Added Tax by or under the Value Added Tax Act 1994 as amended an equivalent amount may be deducted by the Client (after giving notice in accordance with Clause B7.2) from the amount of any sum due to the Contractor under the Contract.
B7.2 At least 14 days before exercising the right of deduction provided by this Condition the Client shall give notice in writing to the Contractor that it is intended to exercise the right of deduction and the notice:-
(a) shall specify the amount to be deducted; and
(b) shall contain a description of the Value Added Tax due from the Contractor in respect of which the deduction is made, for example by reference to an assessed amount or by reference to supplies made during an accounting period.
B8 The Contracts (Rights of Third Parties) Act 1999
No person who is not a party to the contract (including without limitation any employee, officer, agent, representative, or sub-contractor of either the Client or the Contractor) shall have any right to enforce any term of the contract, which expressly or by implication, confers a benefit on him without the prior agreement in writing of both parties, which agreement should refer to this clause B8.
B9 Disclosure
The Client reserves the right to disclose details of contractual processes and prices, in accordance with the Code of Practice on Access to Government Information, or as may be required to be published in the Supplement to the Official Journal of the European Community, in accordance with EC Directives on Public Procurement.
B10 National Minimum Wage
The Contractor shall ensure that, where appropriate, staff employed by him are paid at least the national minimum wage in accordance with the National Minimum Wage Act 1998.
B11 Environmental Requirements
The Contractor shall perform the Contract in accordance with the Department’s environmental policy, which is to conserve energy, water, wood, paper and other resources, reduce waste and phase out the use of ozone depleting substances and minimise the release of greenhouse gases, volatile organic compounds and other substances damaging to health and the environment.
B12 Human Rights Act
The Contractor, its sub-contractors, agents and employees shall at all times comply with the provisions of the Human Rights Act 1998 in the execution of this Contract. Failure to do so may constitute a material breach of the Contract and the Client may exercise its rights under Condition F2.
B13 Patents, Information and Intellectual Property Rights
B13.1 It shall be a condition of the Contract that, except to the extent that the Goods/Services incorporate designs furnished by the Client, the Goods/ Services will not infringe any patent, trade mark, registered design, copyright or other right in the nature of intellectual property of any third party and the Contractor shall indemnify the Client and the Crown against all actions, suits, claims, demands, losses, charges, costs and expenses which the Client or the Crown may suffer or incur as a result of or in connection with any breach of this Condition.
B13.2 All intellectual property rights (including ownership and copyright) in any specifications, instructions, plans, drawings, patents, patterns, models, designs or other material:
(a) furnished to or made available to the Contractor by the Client shall remain the property of the Client.
(b) prepared by or for the Contractor for use, or intended use, in relation to the performance of this Contract shall belong to the Crown, and the Contractor shall not and shall procure that the Contractor's employees, servants, agents, suppliers and sub-contractors shall not (except when necessary for the implementation of the Contract) without prior written consent of the Client, use or disclose any such intellectual property and intellectual property rights, or any other information (whether or not relevant to this Contract) which the Contractor may obtain in performing the contract except information which is in the public domain.
B13.3 At the termination of the Contract the Contractor shall immediately return to the Crown all materials, work or records held, including any back up media.
B13.4 The provisions of this Condition shall apply during the continuance of this Contract and indefinitely after its expiry or termination.
B14 Health and Safety
B14.1 The contractor shall promptly notify the Client of any health and safety hazards which may arise in connection with the performance of the contract.
B14.2 The Client shall promptly notify the Contractor of any health and safety hazards which may exist or arise at the Client’s premises and which may affect the Contractor in the performance of the Contract.
B14.3 While on the Client’s premises, the Contractor shall comply with any health and safety measures implemented by the Client in respect of personnel and other persons working on those premises.
B14.4 The Contractor shall notify the Client immediately in the event of any incident occurring in the performance of the Contract on the Client’s premises where that incident causes any personal injury or damage to property which could give rise to personal injury.
B14.5 The Contractor shall take all necessary measures to comply with the requirements of the Health and Safety at Work etc Act 1974 and any other Acts, orders, regulations and Codes of Practice relating to health and safety, which may apply to staff in the performance of the Contract.
B14.6 The Contractor shall ensure that his health and Safety policy statement (as required by the health and Safety at Work Act 1974) is made available to the Client on request.
B15 Audit and the National Audit Office
B15.1 The Contractor shall keep and maintain until two years after the Contract has been completed, or as long a period as may be agreed between the parties, full and accurate records of the contract, all expenditure reimbursed by the Client, and all payments made by the Client. The Contractor shall on request afford the Client or the Client's representatives such access to those records as may be required by the Client in connection with the Contract.
C. CONTROL OF THE CONTRACT
C1 Assignment and Sub-Contracting
C1.1 The Contractor shall not assign or sub-contract any portion of the Contract without the prior written consent of the Client. Sub-contracting any part of the Contract shall not relieve the Contractor of any obligation or duty attributable to the Contractor under the Contract or these Conditions.
C1.2 Where the Client has consented to the placing of sub-contracts, copies of each sub-contract shall be sent by the Contractor to the Client immediately it is issued.
C1.3 The Client is entitled to assign any or all of its rights under the Contract to any contracting authority as defined in Regulation 3(1) of the Public Services Contracts Regulations 1993, provided that such assignment shall not materially increase the burden of the Contractor’s obligations under the contract.
C1.4 The Contractor shall be responsible for the acts and omissions of his sub-contractors as though they were his own.
C1.5 The Contractor shall not use the services of self-employed individuals without prior approval.
C2 Waiver
C2.1 The failure of either Party to exercise any right or remedy shall not constitute a waiver of that right or remedy.
C2.2 No waiver shall be effective unless it is communicated to the other Party in writing.
C2.3 A waiver of any right or remedy arising from a breach of contract shall not constitute a waiver of any right or remedy arising from any other breach of the Contract.
C3 Severability
If any provision of the Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of the Contract shall continue in full force and effect as if the Contract had been executed with the invalid, illegal or unenforceable provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Contract, the parties shall immediately commence negotiations in good faith to remedy the invalidity.
C4 Remedies Cumulative
Except as otherwise expressly provided by the Contract, all remedies available to either party for breach of this Contract are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
C5 Monitoring of Contract Performances
C5.1 Before the commencement date the Client will agree in consultation with the Contractor the arrangements required for the purpose of monitoring the performance by the Contractor of its obligations under the Contract.
C5.2 As part of the Tender the Contractor will submit proposals for the monitoring of Contract performance for consideration by the Client.
C5.3 Such arrangements may include (without limitation):
(a) random inspections;
(b) regular meetings at working level and director level;
(c) security (and availability for inspection) of all relevant documentation;
(d) the delivery at least [once a month] of such written management reports as may reasonably be required;
C6 Possible Extension of Contract Period
Subject to satisfactory performance by the Contractor during the Contract Period, the Client may wish to extend the Contract for a further period of up to [ ] year(s). The successful Contractor will be approached before the end of the Contract Period if the Client wishes so to do. The agreed terms and conditions will apply throughout any such extended period.
C7 Time of Performance
C7.1 The Contractor shall begin performing the Services or delivering the Goods on the date stated in the Contract and shall complete the work by the date stated in the Contract or continue to perform the work for the period stated in the Contract (whichever is applicable). Time is of the essence of the Contract. The Client may by written notice require the Contractor to execute the Services, or deliver the Goods in such order as the Client may decide. In the absence of such notice the Contractor shall submit such detailed programmes of work and progress reports as the Client may from time to time require.
C8 Novation
C8.1 Subject to Clause C8.3, the Client shall be entitled to:
(a) assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to any Contracting Authority provided that any such assignment, novation or other disposal shall not increase the burden of the Contractor's obligations pursuant to this Contract; or
(b) novate this Contract to any other body (including but not limited to any private sector body) which substantially performs any of the functions that previously had been performed by any Contracting Authority.
C8.2 Any change in the legal status of the Client such that it ceases to be a Contracting Authority shall not, subject to Clause C8.3, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Client.
C8.3 If the Contract is novated to a body which is not a Contracting Authority pursuant to Clause C8.1(b) or if a successor body which is not a Contracting Authority becomes the Client pursuant to Clause C8.2 (in the remainder of this Condition both such bodies are referred to as the "transferee"):
(a) the rights of termination of the Client in Condition F1 and F2 shall be available to the Contractor in the event of the bankruptcy, insolvency or Default of the transferee;
(b) the transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the previous consent in writing of the Contractor;
(c) the following Conditions and Clauses shall be varied from the date of the novation or the date of the change of status (as appropriate) as set out below as if the Contract had been amended by the parties.
(i) in Condition B2, the word "Crown" shall be replaced with the word "Client"
(ii) in Clause B13.1 delete the words "and the Crown" and "or the Crown";
(iii) in Clauses B13.2(b) and B13.3 replace the word "Crown" with the word "Client";
(iv) in Clause D3.1 the words "or with any department, agency or authority of the Crown" shall be deleted;
(v) Condition B7 ceases to be applicable in the event that the contract is novated;
(vi) Conditions B15 and SS7 cease to be applicable in the event that the contract is novated to a private sector body.
C8.4 The Client shall be entitled to disclose to any transferee any confidential information of the Contractor which relates to the performance of the Services by the Contractor. In such circumstances the Client shall authorise the transferee to use such confidential information only for purposes relating to the performance of the Services and for no other purposes and shall take all reasonable steps to ensure that the transferee accepts an obligation of confidence.
D PAYMENT AND PRICE
D1 Contract Price
D1.1 The Contract Prices and Rates shall remain firm for the initial Contract period, but not including any extension of that period.
D1.2 In the event that the contract price is increased or decreased as a result of any new legislation or regulation being made after the commencement of the contract, the amount of any such increase or decrease shall be treated as a variation to the contract, and will be assessed on an individual basis. Such variations will not be allowed where new legislation or regulations are enacted after the commencement of the contract, but were made public prior to the commencement of the contract. Any such variations to price which can be foreseen by the Contractor prior to commencement of the contract, will be deemed to have been included in the contract price.
D2 Payment
D2.1 Payment will be made within 30 days of receipt and agreement of invoices, submitted monthly in arrears, for work completed to the satisfaction of the Client. The date of posting a cheque shall be the date of payment, and the date of payment by electronic transmission shall be the date the transmission is effected.
D2.2 Where the Contractor enters into a sub-contract with a supplier or contractor for the purpose of performing the Contract, he shall cause a term to be included in such a sub-contract which requires payment to be made by the supplier to the sub-contractor within a specified period not exceeding 30 days from the receipt of a valid invoice, as defined by the sub-contract requirements.
D2.3 Value Added Tax, where applicable, shall be shown separately on all invoices as a strictly net extra charge.
D3 Recovery of Sums Due
D3.1 Wherever under the Contract any sum of money is recoverable from or payable by the Contractor, that sum may be deducted from any sum then due, or which at any later time may become due, to the Contractor under the Contract or under any other agreement or contract with the Client or with any department, agency or authority of the Crown.
D4 Price adjustment on extension of the Contract Period
D4.1 The Service charges are based on the agreed charges detailed in the Contract which shall apply to the Contract Period. In the event of an extension being considered beyond the [ ] year Contract Period the Client would wish to review the charges with the Contractor in the six months prior to the expiry of the Contract.
D4.2 During this six month period, the Contractor may, following agreement with the Client and by giving the Client 3 months notice in writing to take effect at the end of the Contract Period or any anniversary date thereafter increase or reduce charges for the Services provided by the Contractor subject to Clause D4.3 below.
D4.3 Any claim for increases or reduction in charges will only be considered if supported by an appropriate Index already agreed between the Client and Contractor, for the period in question, such Index to be determined by negotiation or mediation in default of agreement between the parties.
D5 Euro
D5.1 Any legislative requirement to account for the goods or services in Euro, instead of and/or in addition to Sterling, shall be implemented by the Contractor at nil charge to the Client.
D5.2 The Client shall provide all reasonable assistance to facilitate such changes
E LIABILITIES
E1 Indemnity and Insurance
E1.1 The Contractor shall indemnify the Client fully against all claims, proceedings, actions, damages, legal costs expenses and any other liabilities in respect of any death or personal injury, or loss of or damage to property, which is caused directly or indirectly by any act or omission of the Contractor. This condition shall not apply to the extent that the Contractor is able to demonstrate that such death or personal injury, or loss or damage, was not caused or contributed to by his negligence or default, or the negligence or default of his staff or sub-contractors, or by any circumstances within his or their control.
E1.2 The Contractor shall effect and maintain with a reputable insurance company a policy or policies of insurance providing an adequate level of cover in respect of all risks which may be incurred by the Contractor, arising out of the Contractor’s performance of the Contract, in respect of death or personal injury, or loss of or damage to property. Such policies shall include cover in respect of any financial loss arising from any advice given or omitted to be given by the Contractor.
E1.3 The Contractor shall hold employer’s liability insurance in respect of staff in accordance with any legal requirement for the time being in force.
E1.4 The Contractor shall produce to the Client’s representative, on request, copies of all insurance policies referred to in this condition or other evidence confirming the existence and extent of the cover given by those policies, together with receipts or other evidence of payment of the latest premiums due under those policies.
E1.5 The terms of any insurance or the amount of cover shall not relieve the Contractor of any liabilities under the contract. It shall be the responsibility of the Contractor to determine the amount of insurance cover that will be adequate to enable the Contractor to satisfy any liability referred to in clause E1.2.
E2 Warranties and Representations
E2.1 The Contractor warrants and represents that:
(a) at the Acceptance Date, the Goods or Services shall meet the Acceptance Criteria;
(b) at the Acceptance Date the Goods shall operate in accordance with the relevant technical specifications;
(c) the Goods or Services shall be fully compatible with the Client’s equipment;
(d) the Contractor has the full capacity and authority to grant any necessary software licence;
(e) the Service shall be supplied and rendered by appropriately experienced, qualified and trained personnel with all due skill, care and diligence;
(f) the Contractor shall discharge his obligations hereunder with all due skill, care and diligence including but not limited to good industry practice and (without limiting the generality of this Condition) in accordance with its own established internal procedures.
E3 Liquidated Damages
Without prejudice to any other remedies available to the Client whether under Contract or otherwise:
E3.1 If delivery of the Goods shall not have been achieved by the date(s) agreed, specified in the Contract or, where an extension of time has been agreed, the revised date for delivery, the Contractor shall pay to the Client as liquidated damages for each day of delay, after the date of delivery or the revised date for delivery, as applicable, a sum of [ ]% of the total Contract price stated in the Contract, up to a maximum amount of [ ]% of the total Contract price. Such payment shall be in full and final settlement of the Contractor's liability for any loss or damage incurred by the Client up to the end of the period in which liquidated damages are payable under this Clause in respect of such delay.
E3.2 If delivery of the Goods shall not have been achieved by the end of the period in which liquidated damages are payable under Clause E3.1 the Client shall be entitled to claim any remedy available to it for loss or damage incurred by it after the end of that period.
E3.3 Failure to deliver: No payment or concession to the Contractor by the Client or other act or omission of the Client shall in any way affect the rights of the Client to recover the said liquidated damages or be deemed to be a waiver of the right of the Client to recover any such damages unless such waiver has been expressly made in writing by the Client.
F DEFAULT, DISRUPTION AND TERMINATION
F1 Termination on change of control and insolvency
F1.1 The Contractor shall notify the Client in writing immediately upon the occurrence of any of the following events:
(a) The Contractor undergoes a change of control, within the meaning of section 416 of the Income and Corporation Taxes Act 1988, which impacts adversely and materially on the performance of the Contract; or
(b) where the Contractor is an individual or a firm and a petition is presented for the Contractor's bankruptcy or a criminal bankruptcy order is made against the Contractor or any partner in the firm, or the Contractor or any partner in the firm makes any composition or arrangement with or for the benefit of creditors, or makes any conveyance or assignment for the benefit of creditors, or if an administrator is appointed to manage the Contractor's or firm’s affairs; or
back to top
(c) where the Contractor is a company, if the company passes a resolution for winding up or dissolution (otherwise than for the purposes of and followed by an amalgamation or reconstruction) or the Court makes an administration order or a winding-up order, or the company makes a composition or arrangement with its creditors, or an administrative receiver, receiver, manager or supervisor is appointed by a creditor or by the court, or possession is taken of any of its property under the terms of a fixed or floating charge.
(d) where the Contractor is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or any similar event occurs under the law of any other jurisdiction within the United Kingdom.
F1.2 The Client may only exercise its right under clause F1.1 (a) within 6 months after a change of control occurs and shall not be permitted to do so where it has agreed in advance to the particular change of control that occurs. The Contractor shall notify the Client immediately when any change of control occurs.
F2 Termination on Default
F2.1 The Client may terminate the contract, or terminate the provision of any part of the Contract by written notice to the Contractor with immediate effect if the Contractor is in default of any obligation under the Contract and:
a) the Contractor has not remedied the default to the satisfaction of the Client within 30 days, or such other period as may be specified by the Client, after issue of a written notice specifying the default and requesting it to be remedied; or
b) the default is not capable of remedy; or
c) the default is a fundamental breach of the contract
F2.2 If the Contractor shall die or be adjudged incapable of managing his or her affairs within the meaning of Part VII of the Mental Health Act 1983, the Client shall be entitled to terminate this Contract by notice to the Contractor or the Contractor's representative with immediate effect.
F2.3 In the event that through any default of the Contractor, data transmitted or processed in connection with the Services is either lost or sufficiently degraded to be unusable, the Contractor shall be liable for the cost of reconstitution of that data and shall provide a full credit in respect of any charge levied for its transmission.
F3 Break
The Client shall have the right to terminate the Contract, or to terminate the provision of any part of the Contract at any time by giving three months written notice to the Contractor. The Client may extend the period of notice at any time before it expires subject to agreement on the level of performance to be provided by the Contractor during the period of extension.
F4 Consequences of Termination
F4.1 Where the Client terminates the Contract under Condition F2, or terminates the provision of ant part of the Contract under that Condition, and then makes other arrangements for the provision of the Contract, the Client shall be entitled to recover from the Contractor the cost of making those other arrangements and any additional expenditure incurred by the Client throughout the remainder of the Contract period. Where the Contract is terminated under Condition F2, no further payments shall be payable by the Client until the Client has established the final cost of making those other arrangements.
F4.2 Where the Client terminates the Contract under Condition F3, the Client shall indemnify the Contractor against any commitments, liabilities or expenditure which would otherwise represent an unavoidable loss by the Contractor by reason of the determination of the Contract. The Contractor shall submit a fully itemised and costed list of such loss, with supporting evidence, of losses incurred by the Contractor as a result of termination under F3.
F5 Disruption
F5.1 The Contractor must take reasonable care to ensure that in the execution of the Contract it does not disrupt the operations of the Client, their employees or any other Contractor employed by the Client.
F5.2 The Contractor shall immediately inform the Client of any actual or potential industrial action, whether such action be by their own employees or others, which affects or might affect their ability at any time to deliver the Goods or execute the services in accordance with the requirements of the Contract.
F5.3 In the event of industrial action by the Contractor's staff, suppliers or sub-contractors, the Contractor shall seek the Client's written approval to their proposals to deliver the Goods or maintain the service.
F5.4 If the Contractor’s proposals referred to in Clause F5.3 are considered insufficient or unacceptable by the Client, then the Contract may be terminated.
F5.5 If the Contractor is temporarily unable to fulfil the requirements of the Contract owing to disruption of normal business by direction of the Client, an appropriate allowance by way of extension of time will be approved by the Client. In addition, the Client will reimburse any additional expense incurred by the Contractor in fulfilling the provisions of the Contract as a result of such disruption.
F6 Recovery upon Termination
F6.1 Termination or expiry of the Contract shall be without prejudice to any rights and remedies of the Contractor and the Client accrued before such termination or expiration and nothing in the Contract shall prejudice the right of either party to recover any amount outstanding at such termination or expiry.
F6.2 At the end of the Contract Period (and howsoever arising) the Contractor shall forthwith deliver to the Client upon request all the Client’s equipment, materials, documents, information, access keys and other materials relating to the Contract in its possession or under its control or in the possession or under the control of any permitted suppliers or sub-contractors and in default of compliance with this provision the Client may recover possession thereof and the Contractor grants licence to the Client or its appointed agents to enter for the purposes of such recovering any premises of the Contractor or its permitted suppliers or sub-contractors where any such items may be held.
F6.3 The Contractor shall co - operate with the Client and any new Contractor appointed by the Client to continue or take over the provision of the Services in order to ensure an effective handover of all work then in progress.
F6.4 The provisions of this Condition shall survive the continuance of this Contract and indefinitely after its termination.
F7 Force Majeure
F7.1 Neither party shall be liable to the other party for any delay in or failure to perform its obligations under the Contract (other than a payment of money) if such delay or failure results from circumstances beyond the party's reasonable control known as Force Majeure.
F7.2 For the purpose of this condition, “Force Majeure” means any event or occurrence which is outside the reasonable control of the Party concerned, and which is not attributable to any act or failure to take preventive action by the Party concerned. It does not include any industrial action occurring within the Contractor’s organisation or within any sub-contractor’s organisation.
F7.3 Condition F7 does not affect the Client’s rights under sub clause F6.4.
G DISPUTES AND LAW
G1 Governing Law
This Contract shall be governed by and interpreted in accordance with English Law and shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
G2 Dispute Resolution
G2.1 The parties shall attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with the Contract.
G2.2 If the dispute cannot be resolved by the parties pursuant to Clause G2.1, the dispute may, by agreement between the parties, be referred to mediation.
G2.3 The performance of the Services shall not be suspended, cease or be delayed by the reference of a dispute to mediation and the Contractor (or employee, agent, supplier or sub-contractor) shall comply fully with the requirements of the Contract at all times.
G2.4 The procedure for mediation and consequential provisions relating to mediation are as follows:
(a) a neutral adviser or mediator (“the Mediator”) shall be chosen by agreement between the parties or, if they are unable to agree upon a Mediator within 14 days after a request by one party to the other, or if the Mediator agreed upon is unable or unwilling to act, either party shall within 14 days from the date of the proposal to appoint a Mediator or within 14 days of notice to either party that they are unable or unwilling to act, apply to the Centre for Dispute Resolution (“CEDR”) to appoint a Mediator.
(b) The parties shall within 14 days of the appointment of the Mediator meet with them in order to agree a programme for the exchange of all relevant information and the structure to be adopted for negotiations to be held. If considered appropriate, the parties may at any stage seek assistance from CEDR to provide guidance on a suitable procedure.
(c) Unless otherwise agreed, all negotiations connected with the dispute and any settlement agreement relating to it shall be conducted in confidence and without prejudice to the rights of the parties in any future proceedings.
(d) If the parties reach agreement on the resolution of the dispute, the agreement shall be reduced to writing and shall be binding on the parties once it is signed by their duly authorised representatives.
(e) Failing agreement, either of the parties may invite the Mediator to provide a non-binding but informative opinion in writing. Such an opinion shall be provided on a without prejudice basis and shall not be used in evidence in any proceedings relating to the Contract without the prior written consent of both parties.
(f) If the parties fail to reach agreement in the structured negotiations within 60 days of the Mediator being appointed, or such longer period as may be agreed by the parties, then any dispute or difference between them may be referred to the courts.
G3 Arbitration
All disputes, differences or questions between the parties to the contract with respect to any matter or thing arising out of or relating to the Contract, other than a matter or thing as to which the decision of the Client is final and conclusive, which cannot be resolved in accordance with Condition G2, shall be referred to the arbitration of two persons, one appointed by the Client and one by the Contractor, in accordance with the provisions of the Arbitration Act 1996 or any statutory modification or enactment thereof.