External Suppliers: Terms & Conditions
1. Defined Terms and Interpretation
1.1 In these terms and conditions the words and expressions below will be interpreted to have the meanings adjacent to them:-
"Commencement Date" means the date agreed by the Parties in writing or detailed in the Specification, on which the Contract is to commence.
"Commercially Sensitive Information" the information listed in schedule [ ] compnsing the information of a commercially sensitive nature relating to the Contractor, its IPR or its business or which the Contractor has indicated to the Authority that, if disclosed by the Authority, would cause the Contractor significant commercial disadvantage or material financial loss.
"Confidential Information" means any and all information or data in whatever form which either Party may receive or obtain in connection with the operation of the Contract or otherwise and which relates in any way to the business, operations and activities of the other Party, its employees, agents and/or any other person with whom it has dealings, and which is either marked confidential or which is otherwise confidential in its nature.
"Contract" means the agreement between The Institute and the Contractor comprising the Order, these terms and conditions and schedules hereto, the Specification, and for the avoidance of doubt all other terms, conditions or warranties other than any terms, conditions or warranties implied by law in favour of The Institute are excluded from the agreement between The Institute and the Contractor unless expressly accepted in writing by The Institute.
"Contractor" means the person who supplies the Goods or services to The Institute in accordance with the Contract.
"Contract Period" means the duration of the Contract, starting on the Commencement Date, as set out in the Order and/or the Specification and ending on the end date as set out in the Order and/or the Specification.
"Contract Price" means the monies payable by The Institute or any Beneficiaries to the Contractor for the performance by the Contractor of its obligations under the Contract and shall include all royalties, licence fees or similar expenses in respect of the making, use or exercise by the Contractor of any Intellectual Property or Intellectual Property Rights for the purpose of performing the Contract.
"Costs" includes costs, charges, outgoings and expenses of every description.
"Environmental Information Regulations" the Environmental Information Regulations 2004 together with any guidance and/or codes of practice issues by the Information Commissioner or relevant Government Department in relation to such regulations.
"FOIA" the Freedom of Information Act 2000 and any subordinate legislation made under this Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government Department in relation to such legislation.
"Force Majeure Event" means one or more of the following to the extent that it is not attributable to the Contractor or the Contractor’s staff: war, civil war (whether declared or undeclared), riot or armed conflict; radioactive, chemical or biological contamination; pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speed; acts of terrorism; explosion; fire; flood; extraordinarily severe weather conditions which are both unforeseen and for which precautions are not customarily taken by prudent business organisations so as to avoid or mitigate the impact thereof; industrial action which affects the supply of the Goods, but which is not confined to the workforce of the Contractor or is site specific; pestilence; the actions of governmental authorities to the extent that such actions are implemented either pursuant to emergency powers or otherwise outside the usual course of governmental business; or Act of God, or other event which is beyond the reasonable control of the Party in question and could not have been avoided or mitigated by the exercise of all reasonable care by that Party and further provided that such event materially affects the ability of the Party seeking to rely upon it to perform its obligations under the Contract.
"Framework Agreement" means any agreement which defines, in broad terms, the scope and terms and conditions under which contracts for the purchase of goods will be entered into should the need arise.
"Goods" means all goods, materials or articles that the Contractor is required to supply under the Contract.
"Information" has the meaning given under section 84 of the Freedom of Information Act 2000.
"Institute" means The Institute of Cancer Research.
"Intellectual Property" means any and all patents, trade marks, service marks, domain names, registered designs, utility models, applications for and the right to make applications for any of such rights, inventions, Know-How (as defined below), Confidential Information, unregistered trade marks and service marks, trade and business names, including rights in any get-up or trade dress, copyrights, (including rights in computer software and in websites) unregistered design rights and other rights in designs and rights in databases, subsisting anywhere in the world; the right for the maker of a database to prevent extraction or reutilisation or both of the whole or a substantial part of the content of that database, as described in Directive 96/9/EC on the legal protection of databases; rights under licences, consents, orders, statutes or otherwise in respect of any rights of the nature specified in this definition "Intellectual Property"; and rights of the same or similar effect or nature as or to those above in each case in any jurisdiction.
"Intellectual Property Right" includes the right to exploit any Intellectual Property or any right which is similar or analogous to any Intellectual Property; any moral right; any licence, right or interest of any kind arising out of or granted or created in respect of any Intellectual Property; any right to bring an action for passing off or any similar or analogous proceeding.
"In writing" shall be interpreted to include any document which is recorded in manuscript, typescript, any electronic communication as defined in Section 15 of the Electronic Communications Act 2000 but excluding mobile telephone text messages.
"Location" means the location for the delivery of the Goods as set out in the Contract or as otherwise agreed in writing between The Institute and the Contractor.
"Loss" includes losses, liabilities, claims, costs, charges and outgoings of every description (including legal expenses), compensation payable under contracts with suppliers and/or customers, loss of normal operating profits, loss of opportunity, loss of goodwill, loss of revenue from related contracts and pure economic loss.
"Order" means any order placed on the Contractor by The Institute for the supply of the Goods.
"Party" means any party to the Contract individually and “Parties” refers to all of the parties to the Contract collectively. All persons who are not a Party to the Contract are third parties.
"Personal Data" has the meaning set out in Clause 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, of which The Institute is the Data Controller and which is processed by the Contractor in performance of its obligations under this Contract.
"Product Information" means information concerning the Goods supplied or to be supplied by the Contractor to The Institute.
"Receipt of Order" means, if personally delivered, at the time of delivery; if sent by facsimile, at the time of transmission; if posted, at the expiration of 48 hours or (in the case of airmail seven days) after the envelope containing the same was delivered into the custody of the postal authorities.
"Request for Information" a request for information or an apparent request under the Code of Practice on Access to Government Information, FOIA or the Environmental Information Regulations.
"Specification" means the description of the Goods as referred to, set out in or attached to the Order (or, if no such description is set out in or attached to the Order, as set out in or attached to any documentation inviting the Contractor to tender/ quote for the appointment to provide the Goods, including any documentation issued, or made available, to the Contractor).
"Working Day" any day other than a Saturday, Sunday or public holiday in England and Wales.
"Year" means during the Contract Period, any 12 month period commencing on the Commencement Date or an anniversary thereof.
In these terms and conditions, all references to any statute or statutory provision shall be deemed to include references to any statute or statutory provision which amends, extends, consolidates or replaces the same and shall include any orders, regulations codes of practice, instruments or other subordinate legislation made thereunder and any conditions attaching thereto. Moreover, where relevant, references to English statutes and statutory provisions shall be construed as references also to equivalent statutes, statutory provisions and rules of law in other jurisdictions.
- The Contractor shall deliver the Goods to the Location specified and in accordance with any delivery instructions in the Contract or as agreed by the Parties in writing. Any carrier engaged in the carriage and/or delivery of the Goods shall be deemed to be an agent of the Contractor and not The Institute.
- Delivery shall be completed when the Goods have been unloaded at the Location and such delivery has been accepted by a duly authorised employee of The Institute, subject to clause 7 and clause 2.3.
- Unless agreed in advance with The Institute, Goods delivered more than 5 days before the date specified in the Order (or such other date which The Institute has acknowledged in writing), The Institute shall be entitled at its sole discretion to refuse to take delivery or to charge for insurance and storage of the Goods until the contractual date for delivery.
- In the event that The Institute has specified a date in the Order but has not been ready to receive the Goods on that date, the Contractor may charge additional costs of return, storage and redelivery to The Institute, notwithstanding Clause 4.2.
- Unless otherwise stated in the Order, the Contractor is responsible for obtaining all export and import licences for the Goods and shall be responsible for any delays due to such licences not being available when required.
- The time of delivery shall be agreed on the face of the Order (or otherwise agreed in writing by the Parties) and if no time for delivery is expressly agreed then delivery shall be made “next day”
- Where the time of delivery has been agreed by the Parties on the face of the Order or otherwise agreed in writing (and for the avoidance of doubt not where delivery is to be made “next day” because no time for delivery has expressly been agreed) then time for delivery shall be of the essence and without prejudice to any other right or remedy of The Institute
- The Parties may alter an agreed time of delivery by mutual agreement
- Failure by the Contractor to deliver the Goods or any part of them within the time agreed in accordance with Clause 3.1 shall entitle The Institute to terminate the Order and purchase other goods of the same or similar description and recover from the Contractor the amount by which the cost of purchasing other goods exceeds the amount that would have been payable to the Contractor, provided that The Institute uses all reasonable endeavours to mitigate its losses in this respect. 3 consecutive failures to deliver within the time agreed in accordance with Clause 3.1 shall entitle The Institute to terminate the Contract, and recover reasonable costs
4. Contract Price and Payment
- In consideration of the Contractor's due and proper performance of its obligations under the Contract, the Contractor may charge The Institute the Contract Price in accordance with this Clause 4.
- The Contract Price shall be net i.e. after the deduction of all agreed discounts. In the absence of written agreement by the Parties to the contrary, the Contract Price shall include the cost of packaging, packing materials, addressing, labelling, loading and delivery to the Location, and all appropriate tax (excluding VAT) and duty. The amount of any duty additional to the Contract Price and any early settlement discounts shall be shown separately in the Contract
- Invoices shall not be rendered by the Contractor until completion of delivery of all of the Goods which are the subject of the Order unless otherwise agreed in writing. Where the Parties agree payments by instalments, the Contractor may render an invoice for each agreed installment
- Subject to Clauses 5, The Institute shall pay any invoice submitted by the Contractor in accordance with Clause 4.1 within 30 days of receipt by The Institute of such invoice. The Institute shall pay such invoice(s) by BACS (Bank Automated Clearing System) or any alternate means as agreed between The Institute and the Contractor
- The Institute shall be entitled to deduct from any monies due or to become due to the Contractor any credits owing to The Institute from the Contractor
- Except where otherwise stated in the Order, the Contract Price is exclusive of VAT which shall be payable, if applicable, by The Institute in addition to such Contract Price at the rate prevailing as at the tax invoice date.
- The Institute shall not be responsible for the payment of any charges for Goods supplied in excess of the Goods required by the Order or any variation of it unless authorised in writing by a further Order
- Subject to clause 5, in the event of The Institute breaching Clause 4.1, the Contractor shall be entitled to charge interest on the outstanding amount owed by The Institute in accordance with the Late Payment of Commercial Debts (Interest) Act 1998
- Subject to Clause 4.10, the Contract Price shall not be subject to any increase whatsoever by the Contractor during the Contract Period
- In the event that the Contract is varied in such a way as to affect the Contract Price and if agreement between the Parties cannot be reached on the adjustment to the Contract Price within 3 months both Parties shall jointly act to resolve the dispute in accordance with Clause 18
5. Disputed Invoice
- 5.1 In the event of a disputed invoice, The Institute shall raise any invoice dispute within fifteen (15) business days of receipt of an invoice and may withhold from payment any invoice which it disputes until such time as the dispute is resolved. Both Parties shall act in good faith to resolve any invoice discrepancies in a timely manner but no greater than thirty (30) business days of receipt of invoice.
- 5.2 Where it is agreed that an invoice has been rendered incorrectly, the Contractor shall then issue a credit note, with no charge to The Institute, for the full amount of the incorrect invoice and a corrected invoice will be submitted for payment. Alternatively, when an invoice is in dispute, the Contractor may, at its own discretion re-submit a new invoice for the un-disputed items with a due date as per the original invoice. A credit note will be issued for the full amount of the original invoice. Once the dispute has been resolved, a separate invoice will be issued for the amount that has been agreed by both parties.
- 5.3 Where it is agreed that an invoice has been rendered correctly, and payment is not received within the period stated in Clause 4.4, the Contractor shall be entitled to charge interest on any sums overdue for payment in accordance with clause 4.8
- Unless otherwise agreed in writing by The Institute
- A delivery note shall accompany each delivery of the Goods
- An invoice shall be rendered on the Contractor’s own invoice form
- All delivery notes and invoices shall be clearly marked with The Institute’s order number, the name and address of The Institute and the description and quantity of the Goods, and shall show separately any additional charge for packaging, handling, shipping, transport, containers and/or any other item not included in the Contract Price or, where no charge is made, whether the containers are required to be returned
- With the prior written agreement of the Parties, the arrangements set out in Clause 6.1 may be suspended in favour of alternative arrangements (including electronic trading and new logistics processes)
- The Goods shall be securely packed in trade packages of a type normally used by the Contractor for commercial deliveries of the same or similar goods either in retail or in bulk quantities within the United Kingdom.
8. Identification of Goods
- 8.1 All Goods that customarily bear any mark, tab, brand, label or other device indicating place of origin, inspection by any government or other body or standard of quality must be delivered with all the said marks, tabs, brands, labels, serial numbers or other devices intact
9. Property and Risk
- Risk in the Goods shall pass to The Institute when the Goods have been delivered in accordance with Clause 2.2
- Notwithstanding delivery, property in the Goods shall not have passed from the Contractor until the full Contract Price of such Goods has been paid
- All tools, equipment and materials of the Contractor required in the performance of the Contractor's obligations under the Contract shall be and remain at the sole risk of the Contractor whether or not they are situated at the Location.
10. Rejection Of Goods
- The Goods shall be inspected on behalf of The Institute within a reasonable time after delivery under Clause 2 of the Contract and may be rejected if found to be defective or inferior in quality to or differing in form or material from the requirements of the Contract, or if they do not comply with any term, whether expressed or implied, of the Contract.
- The whole of any delivery may be rejected if a reasonable sample of the Goods taken indiscriminately from that delivery is found not to conform in every material respect to the requirements of the Contract.
- Goods so rejected after delivery shall be removed by the Contractor at its own expense within fourteen days from the date of notification of rejection. If the Contractor fails to remove them within such period The Institute may return the rejected Goods at the Contractor’s risk and expense and charge the Contractor for the cost of storage from the date of rejection.
- The Goods shall be of first class quality, new where applicable and shall be supplied strictly in accordance with the Specification and/or any sample previously provided to The Institute and, unless otherwise agreed in writing, shall conform to all relevant standards, specifications and conditions and all work performed by the Contractor shall be in accordance with best practice.
- The Contractor agrees to assign to The Institute upon request the benefit of any warranty, guarantee or similar right which it has against any third party manufacturer or supplier of the Goods or any part thereof
12. Performance Measurement
- The Institute shall ascertain whether the Contractor's provision of the Goods in question meets any performance criteria as specified in the Specification or, if the criteria are not so specified, meets the standards of a professional supplier of the Goods. On or before the fifteenth working day of each calendar month during the Contract Period and within 14 days after termination of the Contract, The Institute may:
in respect of the supply of the Goods during the preceding calendar month, provide to the Contractor a Performance Notice which shall set out a statement of The Institutes dissatisfaction with the Contractor's performance and supply of the Goods
- Each Performance Notice issued by The Institute shall include a proposed rebate, whether monetary or stock equivalent, of the Contract Price commensurate to the under-performance of the Contractor as recorded in the Performance Notice
- If the Contractor has not raised any objection to the Performance Notice within 7 days of receipt (or such other period as agreed between the Parties) then that Performance Notice shall be deemed to have been accepted by the Contractor and the rebate on the Contract Price referred to therein shall become immediately effective
- If required by The Institute, the Parties shall co-operate in sharing information and developing performance measurement criteria with the object of improving the Parties’ efficiency. Any such agreements shall be fully recorded in writing by The Institute as the case may be
- The Contractor shall not assign the whole or any part of the Contract. With the exception of the carriage of Goods to the Location, the Contractor shall not sub-contract the production or supply of any Goods without the previous consent in writing of The Institute, such consent not to be unreasonably withheld or delayed
14. Limitation of liability
- Neither Party shall be liable to the other Party for any loss or damage, costs or expenses incurred or suffered by the other Party as a result of any breach of the terms of the Contract, unless the same were in the reasonable contemplation of the Parties at the time when they entered into the Contract
- Except in the case of death or personal injury caused by negligence, and fraudulent misrepresentation or in other circumstances where liability may not be so limited under any applicable law, the liability of either Party under or in connection with the Contract, whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the sum of £5 million for any one incident in any one Year
- The Contract Price of the Goods under the Contract has been negotiated and agreed on the basis that the Parties may limit their liability to each other as set out in the Contract and the Parties each confirm that they will themselves bear or insure against any loss for which the other Party has limited its liability under the Contract
- The Contractor shall insure against its liability with a minimum limit of indemnity of £5 million per annum or such other sum as may be agreed between The Institute and the Contractor in writing
16. Variation of the contract
- Any variation to the terms of the Contract must be agreed and recorded in writing and executed by an authorised signatory of the Contractor and The Institute. Such record of the variation in question must address all consequential amendments required to be made to the Contract as a result of such variation, including adjustment to the Contract Price
- Variations will take effect as from the date specified in the signed record and shall not have retrospective effect unless expressly provided for in such record.
Each record of variation must be dated and sequentially numbered
17. Variation of the specification
- The Institute may at any time propose to the Contractor any reasonable variation or addition to the Specification and the Contractor shall not unreasonably withhold or delay its consent to such variation.
No such variation or addition shall affect the continuation of the Contract
18. Dispute Resolution Procedure
- During any dispute, including a dispute as to the validity of the Contract, it is mutually agreed that the Contractor shall continue its performance of the provisions of the Contract (unless The Institute requests in writing that the Contractor does not do so)
19. Environmental considerations
- The Contractor shall comply in all material respects with applicable environmental laws, legislation and regulations in force from time to time in relation to the products/services relating to the Contract. The Contractor shall comply with all environmental agreements, codes of practice and legislation as if they were incorporated into English law and where applicable to those being cited in the tender/ Quote documentation
- The Contractor shall:-
- Comply with all reasonable stipulations of The Institute aimed at minimising the packaging in which the products the subject of the Contract, or any products supplied by the Contractor to The Institute as part of performance of the services, are supplied
- Promptly provide all such information regarding the environmental impact of any products supplied or used under the Contract as may reasonably be required by The Institute to permit informed choices by end users
- The Institute may terminate the Contract, in whole or in part, by serving written notice on the Contractor in any of the following circumstances:-
- A material failure (in whole or in part) by the Contractor to perform any obligation of the Contractor under the Contract provided that (if capable of remedy) such failure has not been remedied to The Institutes reasonable satisfaction within a period of 30 days following written notice
- The Contractor fails (in whole or in part) to perform any obligation of the Contractor owed to The Institute on more than 3 occasions
- The Contractor becomes Insolvent or otherwise ceases to be capable of supplying the Goods
- There is a change of ownership or control of the Contractor which, in the reasonable opinion of The Institute will have a material impact on the supply of the Goods or the image of The Institute
- The Contractor purports to assign the Contract in breach of Clause 13
- The Contractor may terminate the Contract in the following circumstance, by giving 1 month’s written notice
- If The Institute has committed a material breach of the Contract
- The Contractor has brought the breach of Contract to the attention of The Institute
- The Institute has not corrected the said breach of Contract within a reasonable period of time
- The Contractor agrees that upon termination for any reason (under Clause 20.1 or otherwise) or expiry of the Contract it shall not be entitled to make a claim against The Institute in relation to costs incurred by the Contractor in providing the Goods and/or materials used in the provision of the Goods or in engaging third parties in connection with the Goods. For the avoidance of doubt, the Contractor will not be restricted from making any claim in respect of the Contract Price to the extent the Contract Price is outstanding and due and payable
21. Intellectual Property
- The Contractor agrees to indemnify and keep indemnified The Institute against any costs, claims, proceedings, expenses and demands arising from the use, application, supply or delivery of any process, article, matter or thing supplied under the Contract that would constitute or is alleged to constitute any infringement of any person's Intellectual Property Rights
- In respect of any Confidential Information it may receive or obtain from the other party (“the Discloser”), each party (“the Recipient”) undertakes that it shall not at any time without the written consent of the other party:
a. disclose or permit the disclosure of the Confidential Information to any third party; or
b. use or access any Confidential Information for any purpose than to perform its obligations under the Contract.
- The provisions of this Clause shall not apply to any Confidential Information which:
a. is or becomes generally available to the public other than by breach of the Contract or other act or omission of the Recipient;
b. was available to the receiving party on a non-confidential basis, or otherwise known to the Recipient prior to disclosure by the Discloser; or
c. was, is or becomes available to the Recipient on a non-confidential basis from a third party who, to the Recipient's knowledge, is not bound by a confidentiality agreement with the Discloser or otherwise prohibited from disclosing the information to the Recipient.
- The Recipient may disclose the Confidential Information to those of its employees, officers, representatives or advisers (together its 'Representatives') who need to know the Confidential Information for the purpose of exercising or performing the Recipient's rights and obligations under the Contract provided that it informs such Representatives of the confidential nature of the Confidential Information prior to disclosure and remains at all times responsible for such Representatives' compliance with the confidentiality obligations set out in this Clause.
- On termination of this Contract and at the Discloser's written request, the Recipient shall delete or destroy (or at the option of the Discloser, return to the Discloser) all information, documents and material (and any copies) containing or incorporating the Confidential Information, whether held electronically or otherwise.
- Nothing in this Clause shall prevent the Recipient from disclosing or retaining Confidential Information to the extent required by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction.
- The provisions of this Clause shall continue following termination of the Contract for any reason whatsoever and without limit in time.
23. Data Protection
- The Institute and the Contractor acknowledge that for the purposes of the Data Protection Act 1998, The Institute is the Data Controller and the Contractor is the data processor of any Personal Data.
- The Contractor shall process any Personal Data only to the extent, and in such a manner as is necessary for it to perform its obligations under this Contract, in accordance with The Institute’s instructions from time to time and in accordance with the Data Protection Act 1998 (and any other applicable law), and shall not process the Personal Data for any other purpose.
- The Contractor shall employ appropriate operational and technological processes and procedures to keep the Personal Data safe from unauthorised use or access, loss, destruction, theft or disclosure.
- Without prejudice to the generality of clause above, where their use is necessary to perform its obligations under this Contract the Contractor shall ensure that all portable and mobile devices but not limited to laptops, flash drives, optical and magnetic media used to store and transmit Personal Data are encrypted using encryption software which meets the current standard of The Institute as specified in its “Policy for Cryptographic algorithms approved for use with data owned or managed by The Institute of Cancer Research”.
- On the written request of The Institute, the Contractor shall promptly return to The Institute any Personal Data in whatsoever medium and all copies, extracts or other reproductions in the possession or control of the Contractor or securely delete or destroy all such Personal Data from all systems and that such destruction and deletion will be confirmed in writing to The Institute.
- The Contractor shall not authorise any third party to process the Personal Data unless:
a. the third party is a sub-contractor appointed with the written consent of The Institute; and
b. the sub-contractor is engaged on written terms providing equivalent rights to The Institute against the sub-contractor and equivalent protections in relation to the Personal Data as those set out in this Contract.
- The Contractor shall restrict the disclosure of the Personal Data to those of its employees who may be required by it to assist it in meeting its obligations under this Contract. Such employees used by the Contractor to perform its obligations under this Contract as they relate to personal data shall have undergone reasonable levels of training in the law of data protection and in the care and handling of personal data.
- The Contractor shall not disclose the personal data to any third party except sub-contractors appointed in accordance with clause [ ].6 in any circumstances other than at the specific request of The Institute or where required by law.
- The Institute reserves the right upon giving reasonable notice and within normal business hours to inspect the Contractor’s systems in order to satisfy itself that the Contractor is complying with its responsibilities in relation to the Personal Data.
- The Contractor agrees to assist The Institute promptly with all subject information requests which may be received from the data subjects of the Personal Data within a period of [five] Wording Days, and to inform The Institute immediately on receipt of any complaint or subject access request made in relation to the Personal Data.
- The Contractor shall notify The Institute in writing immediately that there is an actual or suspected breach of any or all the Contractor's responsibilities under this Contract or more generally in relation to Personal Data.
- The Contractor warrants to The Institute that it has all necessary corporate standing and authorisation to enter into and be bound by the terms of the Contract. At all times in connection with the Contract, the Contractor shall be an independent contractor and nothing in the Contract shall create a relationship of agency or partnership or a joint venture as between the Contractor and The Institute and accordingly the Contractor shall not be authorised to bind The Institute.
25. Inducements to Purchase
- 25.1 The Contractor shall not offer to The Institute or any of its employees or agents a variation of the Contract, or as agreement collateral to it, any advantage other than a cash discount against the Contract Price or training of the employees of The Institute.
- Save as required by law and/or the requirements of any relevant stock exchange and Clause 22, no publicity shall be made by any of the Parties relating to any matter in connection with the Contract without the prior written consent of the other Party.
- Any provision of the Contract which is held to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.
- The Contractor acknowledges and agrees that it has not relied on any representation, warranty or undertaking (whether written or oral) in relation to the subject matter of the Contract and therefore irrevocably and unconditionally waives any rights it may have to claim damages against The Institute for any misrepresentation (whether made carelessly or not) or for breach of any warranty unless the representation relied upon is set out in the Contract or unless such representation was made fraudulently.
- Each Party shall bear its own expenses in relation to the preparation, execution and implementation of the Contract including all costs legal fees and other expenses so incurred.
- The Contractor warrants represents and undertakes to The Institute that there are no pending or threatened actions or proceedings before any court or administrative agency which would materially adversely affect the financial condition, business or operations of the Contractor and that there are no material contracts existing to which the Contractor is a party which prevent it from entering into the Contract; and that the Contractor has satisfied itself as to the nature and extent of the risks assumed by it under the Contract and gathered all information necessary to perform its obligations under the Contract and all other obligations assumed by it.
- The rights and remedies provided in the Contract are cumulative and not exclusive of any rights or remedies provided by the general law, or by any other contract or document. In this provision "general law" includes the law of a country other than England, and "right" includes any power, privilege, remedy, or proprietary or security interest.
- Any notice to be given under the Contract shall be delivered personally, sent by facsimile or sent by first class recorded delivery post (airmail if overseas) or electronic mail. The address for service of each Party shall be its registered office or such other address as either Party may previously have notified to the other Party in writing. A notice shall be deemed to have been served:
- If personally delivered, at the time of delivery
- If sent by facsimile at the time of transmission
- If posted, at the expiration of 48 hours or (in the case of airmail seven days) after the envelope containing the same was delivered into the custody of the postal authorities
- If sent by electronic mail, a telephone call is made to the recipient warning the recipient that an electronic mail message has been sent to him (as evidenced by a contemporaneous note of the Party sending the notice) and a hard copy of such notice is also sent by first class recorded delivery post (airmail if overseas) on the same day as that on which the electronic mail is sent
- In proving such service it shall be sufficient to prove that personal delivery was made, or that the envelope containing such notice was properly addressed and delivered into the custody of the postal Institute as prepaid first class, recorded delivery or airmail letter (as appropriate) or that the facsimile was transmitted on a tested line or that the correct transmission report was received from the facsimile machine sending the notice as the case may be
28. Force Majeure
- No Party shall be entitled to bring a claim for a breach of obligations under the Contract by the other Party or incur any liability to the other Party for any Loss or damages incurred by that party to the extent that a Force Majeure Event occurs and it is prevented from carrying out obligations by that event of force majeure
- In the occurrence of a Force Majeure Event, the Affected Party shall notify the other Party as soon as practicable. The notification shall include details of the Force Majeure Event, including evidence of its effect on the obligations of the Affected Party and any action proposed to mitigate its effect
- As soon as practicable, following such notification, the Parties shall consult with each other in good faith and use all reasonable endeavours to agree appropriate terms to mitigate the effects of the Force Majeure Event and facilitate the continued performance of the Contract
- The Contractor acknowledges that the Authority is subject to the requirements of the Code of Practice on Government Information, FOIA and the Environmental Information Regulations and shall assist and cooperate with the Authority to enable the Authority to comply with its Information disclosure obligations.
- The Contractor shall and shall procure that its Sub-contractors shall:
a. transfer to the Authority all Requests for Information that it receives as soon as practicable and in any event within (two) Working Days of receiving a Request for Information;
b. provide the Authority with a copy of all Information in its possession, or power in the form that the Authority requires within (five) Working Days (or such other period as the Authority may specify) of the Authority's request; and
c. provide all necessary assistance as reasonably requested by the Authority to enable the Authority to respond to the Request for Information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the Environmental Information Regulations.
- The Authority shall be responsible for determining in its absolute discretion and notwithstanding any other provision in this Agreement or any other agreement whether the Commercially Sensitive Information and/or any other Information is exempt from disclosure in accordance with the provisions of the Code of Practice on Government Information, FOIA or the Environmental Information Regulations.
- In no event shall the Contractor respond directly to a Request for Information unless expressly authorised to do so by the Authority.
- The Contractor acknowledges that the Authority may, acting in accordance with the Department of Constitutional Affairs' Code of Practice on the Discharge of the Functions of Public Authorities under Part I of the Freedom of Information Act 2000 ("the Code"), be obliged under the FOIA, or the Environmental Information Regulations to disclose information concerning the Contractor or the Services:
a. in certain circumstances without consulting the Contractor; or
b. following consultation with the Contractor and having taken their views into account;
provided always that where a above applies the Authority shall, in accordance with any recommendations of the Code, take reasonable steps, where appropriate, to give them Contractor advanced notice, or failing that, to draw the disclosure to the Contractor's attention after any such disclosure.
- The Contractor shall ensure that all Information is retained for disclosure (in accordance with schedule (Records Provisions)) and shall permit the Authority to inspect such records as requested from time to time.
- The Contractor acknowledges that the Commercially Sensitive Information listed in relevant schedule is of indicative value only and that the Authority may be obliged to disclose it in accordance with the act
- The Contractor submits to the jurisdiction of the English courts and agrees that the Contract is to be governed and construed according to English law.