Standard Terms and Conditions for the Purchase of Goods and Services
These Purchase Order Terms and Conditions (the “Conditions”) are the only terms and conditions on which the Customer will purchase the Goods and/or Services from the Supplier and apply to the exclusion of all other terms and conditions including any terms and conditions which the Supplier purport to apply under any quotation, acknowledgement, acceptance or confirmation of order, delivery note, invoice or similar document (whether or not such document is referred to in this Purchase Order) and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing, except that, where the parties have entered in to a separate agreement for the provision of the Goods and/or Services (the “Agreement”), the terms of that Agreement shall apply to the Goods and/or Services under this Purchase Order and will replace and take precedence over these Conditions.
1. DEFINITIONS AND INTERPRETATION
In these Conditions, the following words and expressions have the following meanings and any words and expressions defined in any Clause will have the same meaning when used in any other Clause:
- “Applicable Law” all laws, regulations and directives that are applicable to the parties in performing their obligations under this Purchase Order, (including but not limited to the Data Protection Legislation) and any British Standards or requirements or guidance of any relevant statutory and regulatory bodies including but not limited to the Information Commissioners Office as each may be updated, re-enacted, consolidated or replaced from time to time;
- “Approved Sub-Contractors” third party sub-contractors who perform part or all of the Services on behalf of the Supplier and who are approved in advance by the Customer in writing;
- “Approved Sub-Processors” means any Approved Sub-Contractors or other third parties who perform part or all of the Processing of University Data on behalf of the Supplier in its performance of the Services and as approved in advance by the Customer in writing;
- “Business Day” a day that is not a Saturday, Sunday or public or bank holiday in England and “Business Hours” shall mean 09:00hrs to 17:00hrs in the United Kingdom (“UK”);
- “Charges” the charges for the Goods and/or Services set out in this Purchase Order;
- “Code” means the Department of Constitutional Affairs’ Code of Practice on the discharge of public authorities’ functions under Part 1 of the Freedom of Information Act 2000 (issued under section 45 of that Act) (November 2004) as may be updated or re-issued from time to time and any other relevant codes of practice published by the Department of Constitutional Affairs or its successor bodies;
- “Confidential Information” any and all information of either party when it is shared with the other party and relates to the trade secrets, operations, processes, plans, intentions, product information, prices, know-how, designs, customers, market opportunities, transactions, affairs and/or business of the parties and/or their customers, suppliers, Group Companies in or on any medium or format, including University Data, University Materials and Supplier Materials;
- “Data Protection Legislation” means the DPA 2018, GDPR (for UK entities only to the extent that it aligns with UK law), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Privacy and Electronic Communications Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 and all Applicable Laws, regulations, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time), relating to the protection of individuals rights with regards to the processing of personal data and privacy including where applicable the guidance and codes of practice issued by the relevant Supervisory Authority and any generally accepted code of good practice;
- “Data Security Incident” means as defined in the Data Protection Legislation;
- “Data Subject” means an individual who is the subject of the Personal Data, as specified in the DPA 2018;
- “Deliverables” means any Documents, reports, data, Intellectual Property Rights, software or other information or materials provided or created by the Supplier, or any third party on behalf of the Supplier, to the Customer as part of the Services;
- “Disputed Sum” any sum invoiced by the Supplier to the Customer that is not consistent with the agreed fees set out in (i) this Purchase Order;
- “Documents” means (whether in hard copy or electronic format) any document, drawing, map, plan, diagram, design, picture or other image, tape, disk, or other device or record embodying information in any form;
- “DPA 2018” means the Data Protection Act 2018;
- “Environmental Information Regulations” means the Environmental Information Regulations 2004 which implement Council Directive 2003/4/EC on public access to environmental information and repealing Council Directive 90/313/EEC;
- “FOIA” means the Freedom of Information Act 2000 and any subordinate legislation made under that Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner in relation to such legislation;
- “Force Majeure Event” means any act of government or state, civil commotion, pandemic, epidemic, restrictions imposed by government in respect of a pandemic or epidemic, fire, flood, industrial action or organised protests by third parties, natural disaster, war, failure of payment systems, or any event beyond the reasonable control of the party claiming to be excused from performance of its obligations or seeking additional time for such performance
- “Goods” the goods, products, stock or other tangible deliverables to be delivered by the Supplier as set out in this Purchase Order as further detailed in the Specification (if any);
- “GDPR” means the General Data Protection Regulation (EU) 2016/679;
- “Good Industry Practice” means standards, practices, methods and procedures conforming to Applicable Law and the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in a similar type of undertaking under the same or similar circumstances;
- “Group Companies” any company which is a subsidiary, holding company or subsidiary of a holding company as the terms “subsidiary” and “holding company” are defined by section 1159 of the Companies Act 2006;
- “Information Disclosure Requirements” means the requirements to disclose information under: (a) the Code; (b) the FOIA; and (c) the Environmental Information Regulations;
- “Intellectual Property Rights” patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Losses” means any and all expenses, damages, losses, liabilities, judgments, fines, penalties (whether civil, criminal or other) and amounts paid or payable in settlement, including, without limitation, reasonable legal costs and expenses, all interest, assessments and other charges paid or payable;
- “Personal Data”, means as set out in the DPA 2018;
- “Process”, “Processed”, “Processor”, Controller”, Processing” shall each have the meaning applied to it in the Data Protection Legislation;
“Request for Information” means a request for information (as defined in the FOIA) relating to or connected with this Purchase Order or the Customer more generally or any apparent request for such information under the Information Disclosure Requirements;
- “Services” the services set out in this Purchase Order as further detailed in the Specification (if any);
- “Specification” the written technical specification for the Goods and/or Services agreed between the Parties;
- “Supervisory Authority” means in relation to data protection in the UK, the Information Commissioners Office or any replacement body responsible for oversight of UK data protection and Data Subject rights, or as otherwise specified in the Data Protection Legislation;
- “Supplier Data” means any of the data (including Personal Data) and/or databases supplied by the Supplier to the Customer in connection with this Purchase Order but excluding Customer Data;
- “Supplier Materials” means anything provided to the Customer by the Supplier under this Purchase Order, including but not limited to Goods, equipment, software, Supplier Data, documents and manuals held on and//or in any format but excluding Deliverables;
- “Term” means the period from the date of this Purchase Order until the completion of the provision of the Goods and/or Services
- “University Data” means any of the data (including Personal Data) and/or databases supplied by the Customer to the Supplier in connection with this Purchase Order but excluding Supplier Data;
- “University Materials” means anything provided to the Supplier by the Customer under this Purchase Order, including but not limited to equipment, software, data, documents, manuals, University Policies held on and//or in any format;
- “University Policies” means Our Code of Conduct for Suppliers and all policies referred to within it, as each may be updated from time to time.
2. COMMENCEMENT AND TERM
2.1 Subject to early termination in accordance with these Conditions, or otherwise by operation of Applicable Law, these Conditions shall take effect on the Purchase Order Date and shall continue for the Term, at the end of which they will automatically expire.
2.2 Commencement of delivery of the Goods and/or performance of the Services is conclusive evidence of the Supplier’s acceptance of these Conditions.
3.1 The Supplier will maintain for the Term and 6 years following expiry of this Purchase Order, such Public Liability insurance, Professional Indemnity insurance, Product Liability Insurance where relevant and other necessary cover as may be considered reasonable and prudent to cover the Supplier’s liability under or in connection with this Purchase Order, and on request, the Supplier shall provide the Customer with evidence of the same.
4. SERVICES, GOODS AND DELIVERY
4.1 The Supplier will, in performing the Services:
4.1.1 provide the Services in accordance with this Purchase Order and/or any Specification;
4.1.2 have obtained and continue to hold all necessary licences, consents, permits and agreements required for it to comply with its obligations under this Purchase Order and for the grant of rights to the Customer under this Purchase Order;
4.1.3 deliver the Deliverables at the Delivery Location(s) and within the time scales in accordance with this Purchase Order and/or the Specification. Time shall be of the essence in relation to i) any delivery milestones ii) performance, or iii) completion dates agreed;
4.1.4 ensure that the use by the Customer, as permitted by this Purchase Order, of any information, data, software, Documentation and/or Services which it provides to the Customer shall not infringe any third-party Intellectual Property Rights.
4.1.5 use the degree of skill, care, prudence, supervision, diligence, foresight, quality control and quality management which would be adopted by a leading professional provider of the Services and in accordance with Good Industry Practice;
4.1.6 fully co-operate with the Customer’s agents, representatives and contractors;
4.1.7 work to the highest levels of industry practice with respect to environmental sustainability, in order to minimise harm to the environment, society and economy and on request provide proof of doing so to the Customer; and
4.1.8 comply with all Applicable Law, the University Policies and its lawful and reasonable directions.
4.2 Without prejudice to any of the Customer’s other rights or remedies (whether express or implied), if the Supplier fails to perform the Services or the Services do not conform with Clause 4.1, the Customer may at its sole option:
4.2.1 terminate this Purchase Order immediately by giving written notice to that effect to the Supplier, or
4.2.2 require the Supplier to re-perform the relevant Services free of charge; or
4.2.3 require the Supplier to refund the Charges for the relevant Services;
4.2.4 where necessary, obtain performance of the Services from a third party;
in each case, the Customer will be entitled to recover from the Supplier any and all Losses incurred by the Customer as a result of the non-conformity of, and/or a failure to perform, the Services. For the avoidance of doubt, this Clause will apply to any re-performance of the Services.
4.3 The Supplier undertakes that the Goods will:
4.3.1 comply with all Applicable Law and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;
4.3.2 where this Purchase Order is for a sale of Goods by sample (i.e. where the Customer has approved a sample) the form and quality of the sample must be matched by future deliveries of the Goods;
4.3.3 where this Purchase Order is for a sale of Goods by description, the delivered Goods must correspond with their description and any applicable Specification;
4.3.4 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer, expressly or by implication, and in this respect the Customer relies on the Supplier's skill and judgement;
4.3.5 where Goods are manufactured products, be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and
4.3.6 be so formulated, designed, constructed, finished and packaged as to be safe and without risk to health, and accompanied by any guidelines as may be necessary to ensure safe handling and storage.
4.4 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Purhcase Order in respect of the Goods.
4.5 The Customer may inspect and test the Goods at any time before Delivery. If following such inspection or testing the Customer considers that the Goods do not comply or are unlikely to comply with the Supplier's undertakings at Clause 4.3, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
4.6 The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
4.7 The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under this Purchase Order.
4.8 The Supplier shall ensure that in Delivery of the Goods it will:
4.8.1 ensure that the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition. The delivery note will state clearly any requirement for the Customer to return any packaging material for the Goods to the Supplier. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
4.8.2 deliver the Goods to the Delivery Location specified during the hours of 9:00 am to 5:00 pm on the Delivery Date. The Supplier will be responsible for off-loading the Goods from any delivery vehicle. Delivery of the Goods (“Delivery”) will occur when they have been off-loaded at the Delivery Location. The Supplier will ensure that:
(i) Goods are marked according to the Customer’s instructions and any Applicable Law and are properly packed and secured so as to reach their destination in an undamaged condition;
(ii) delivery is accompanied by a prominently displayed delivery note showing the purchase order number, date of order, type and quantity of Goods, any special storage instructions and, where delivery by instalments is permitted, the outstanding balance of Goods remaining to be delivered;
(iii) the Customer receives, on or before Delivery, a written list by name and description of any harmful or potentially harmful properties or ingredients in the Goods supplied and thereafter information concerning any changes in such properties or ingredients; and
(iv) on or before Delivery the Customer is supplied with all operating and safety instructions and such other information as may be necessary for the safe and proper use, maintenance and repair of the Goods.
4.8.3 where the Supplier delivers:
126.96.36.199 less than 95% of the quantity of Goods ordered, the Customer may reject the Goods;
188.8.131.52 more than 100% of the quantity of Goods ordered, the Customer may at its sole discretion reject the Goods or the excess Goods; and
and any rejected Goods shall be returnable at the Supplier's risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and the Customer accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.9 If the Supplier has delivered Goods that do not comply with the undertakings set out in Clause 4.3, then, without limiting or affecting other rights or remedies available to it, the Customer shall have one or more of the following rights and remedies, whether or not it has accepted the Goods:
4.9.1 to terminate the Purchase Order with immediate effect by giving written notice to the Supplier;
4.9.2 to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier's own risk and expense;
4.9.3 to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
4.9.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
4.9.5 to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods from a third party; and
4.9.6 to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier's failure to supply Goods in accordance with Clause 4.3.
4.10 The Customer does not accept delivery of the Goods by separate instalments without with the Customer’s prior written consent. If the Customer so consents, the Supplier will invoice only the Charges for each instalment as it is delivered.
4.11 Title and risk in the Goods shall pass to the Customer on completion of Delivery.
5. PRICE AND PAYMENT
5.1 Subject to the Supplier performing its obligations in accordance with these Conditions, the Customer will pay the Charges to the Supplier in accordance with this Clause 54. The only monies to be paid by the Customer in connection with the Goods and/or Services are the Charges set out in this Purchase Order, which are “fixed and firm” and are inclusive of all costs and expenses incurred by the Supplier including all packaging, insurance, carriage and delivery costs and all travel, accommodation and subsistence expenses unless otherwise agreed in writing. The Customer reserves the right to pay all or any of the Charges by payment card and the Supplier will have in place such systems necessary to facilitate payment by that means.
5.2 Unless otherwise agreed, the Charges are inclusive of value added tax (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority), to the extent payable. Where it is agreed that any sums are exclusive of tax then this will be payable in addition, in the manner and at the rate prescribed by law from time to time, subject to receipt by the Customer of a valid value added tax invoice.
5.3 The Supplier will be entitled to invoice the Customer at the address at the head of this Purchase Order or via email as notified by the Customer from time to time at the agreed Invoice Frequency.
5.4 Subject to Clauses 5.5, 5.6, 5.7 and 5.8 and the invoice being correct and proper, each invoice will be payable by the Customer within 30 days of receipt by the Customer. For the avoidance of doubt, to be correct and proper invoices must quote the Customer purchase order number, tender reference number (if appropriate), details of what is supplied to the Customer, and any discounts given.
5.5 No payment made by the Customer will constitute acceptance or approval by the Customer of the Goods and/or Services or otherwise prejudice any rights or remedies which the Customer may have against the Supplier including the right to recover any amount overpaid or wrongfully paid to the Supplier.
5.6 In the event of a Disputed Sum, the Customer will be entitled to withhold payment of the Disputed Sum until the dispute is settled, provided that i) if the Disputed Sum is not the entire sum contained on the relevant invoice, the Customer will pay the undisputed amount in accordance with Clause 5.4; and (ii) if it is agreed or determined that part or all of the Disputed Sum is payable, interest will be chargeable on the relevant part of the Disputed Sum in accordance with Clause 5.7, but from the date on which a settlement of the dispute was reached rather than from the date on which payment of the original invoice which included that sum was originally due.
5.7 Subject to Clause 5.6, if any sum payable under the Purchase Order is not paid on or before the due date for payment the Supplier will be entitled to charge the Customer interest on that sum at 2% per annum above the base lending rate from time to time of Barclays Bank plc from the due date until the date of payment and will accrue on a daily basis
5.8 The Customer will be entitled to set-off any liability which the Supplier has to the Customer, against any liability which the Customer may have to the Supplier, whether such liability is present or future, liquidated or unliquidated, under the Purchase Order or any other contract between the parties or other cause of action.
6. CUSTOMER PROPERTY
6.1 All University Materials and University Data will at all times:
6.1.1 be and remain the exclusive property of the Customer;
6.1.2 be held by the Supplier in safe custody at the Supplier’s own risk;
6.1.3 be maintained and kept in good condition by the Supplier until returned to the Customer;
6.1.4 not be disposed of other than in accordance with the Customer’s written instructions;
6.1.5 not be used otherwise than as authorised by the Customer in writing; and
6.1.6 be returned to the Customer on termination or expiry of this Purchase Order or otherwise at any time on demand.
7. ANTI-CORRUPTION AND ANTI-SLAVERY
7.1 The Parties will, and will procure that their respective officers, employees, agents and any other persons who perform all or any of the Parties’ obligations on their behalf in connection with the Purchase Order will:
7.1.1 not commit any act or omission which causes or could cause the other Party (or that person) to breach, or commit an offence under, any laws relating to anti-slavery, anti-bribery and/or anti-corruption;
7.1.2 have, maintain and comply with their own anti-corruption and modern slavery policies as updated from time to time;
7.1.3 keep accurate and up to date records showing all payments made and received and all other advantages given and received in connection with the Purchase Order, the steps taken to comply with this Clause 7.1, and permit the other Party to inspect those records as reasonably required;
7.1.4 promptly notify the other Party of:
184.108.40.206 any request or demand for any financial or other advantage received by the first Party; and
220.127.116.11 any financial or other advantage the first Party gives or intends to give;
whether directly or indirectly in connection with the Purchase Order; and
7.1.5 promptly notify the other Party of any breach of this Clause 7.1.
7.2 The Supplier will indemnify the Customer against all Losses the Customer does or will incur or suffer as a result of defending or settling any such actual or threatened claim or proceeding, in each case arising out of or in connection with any breach of any of the Supplier obligations under Clause 7.1.
8.1 The Customer may terminate this Purchase Order immediately by giving written notice to the Supplier where the Supplier:
8.1.1 commits a material breach of these Conditions which is incapable of remedy (including but not limited to a breach of Clause 7.1),
8.1.2 commits a material breach which is capable of remedy but is not remedied within 14 days of a notice from the Customer requiring the Supplier to remedy; or
8.1.3 undergoes a change of control.
8.2 Either Party may terminate this Purchase Order immediately by giving written notice to the other party, where the other Party:
8.2.1 has a receiver, administrator or provisional liquidator appointed, or are subject to a notice of intention to appoint an administrator;
8.2.2 passes a resolution for winding-up (save for the purpose of a solvent restructuring previously approved in writing by the other Party) or have a winding up order made by a court;
8.2.3 enters into any composition or arrangement with creditors (other than relating to a solvent restructuring previously approved in writing by the other Party);
8.2.4 ceases to carry on business;
8.2.5 has any steps or actions taken in connection with any of these procedures; or
8.2.6 is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction;
and where the Supplier is the subject of any of the situations in this Clause 8.2 it will notify the Customer immediately upon the occurrence of any such event or circumstance.
8.3 The Customer may terminate without cause by serving 3 months prior written notice to the Supplier at any time
8.4 On termination or expiry of this Purchase Order for any reason, the Supplier will co-operate with the Customer and provide all reasonable assistance requested by the Customer, to ensure the full and secure handover of all University Materials and University Data, and to the extent that the Services will continue to be performed by the Customer or a replacement supplier, the Services are not unduly disrupted. Where necessary, the Supplier will support and contribute to the development of a suitable exit plan in order to facilitate this outcome.
8.5 On expiry or termination of this Purchase Order for any reason:
8.5.1 the Supplier will, return to the Customer or destroy, all of the Customer’s Confidential Information, University Data and University Materials (including all copies and extracts) and all other Customer property (whether tangible or intangible) in the Supplier’s possession or control, and cease to use the same; and
8.5.2 except in relation to the Deliverables, the Customer will return to the Supplier or destroy; all of the Supplier’s Confidential Information and Supplier Materials (including all copies and extracts) and all other Supplier property (whether tangible or intangible) in the Customer’s possession or control, and cease to use the same.
8.5.3 Notwithstanding Sub-clauses 8.5.1 and 8.5.2, each party may retain one copy of the other party’s Confidential Information where:
18.104.22.168 it has an obligation to retain a copy in order to comply with Applicable Law or for regulatory, insurance, accounting or taxation purposes; or 22.214.171.124 such Confidential Information is contained within its electronic back-up systems, to the extent that it is not reasonably practical to delete the same.
8.6 Following expiry or termination of this Purchase Order, any Clauses which expressly or impliedly continue to have effect after expiry or termination will continue in force, and all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination.
9 FREEDOM OF INFORMATION
9.1 The Supplier acknowledges that the Customer is subject to the Information Disclosure Requirements and shall assist and co-operate with the Customer to enable the Customer to comply with those requirements.
9.2 The Supplier shall not respond directly to a Request for Information under the Information Disclosure Requirements unless authorised in writing to do so by the Customer.
9.3 Where the Customer receives a Request for Information in relation to information that the Supplier or any of its Approved Sub-Contractors is holding on behalf of the Customer and which the Customer does not hold itself, the Customer shall as soon as reasonably practicable after receipt and in any event within five calendar days of receipt, forward the Request for Information to the Supplier and the Suppler shall:
9.4.1 provide the Customer with a copy of all such information in the form that the Customer requires as soon as practicable and in any event within 10 calendar days (or such other period as the Customer acting reasonably may specify) of the Customer’s request; and
9.4.2 provide all necessary assistance as reasonably requested by the Customer to enable the Customer 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, as applicable.
9.5 Supplier acknowledges that any lists or schedules provided by it outlining Confidential Information not to be disclosed are of indicative value only and the Customer may nevertheless be obliged to disclose the Supplier’s Confidential Information in accordance with the Information Disclosure Requirements:
9.5.1 in certain circumstances without consulting the Supplier; or
9.5.2 following consultation with the Supplier and having taken its views into account, provided always that where Clause 9.5.1 above applies, the Customer shall, in accordance with the recommendations of the Code, take reasonable steps to draw this to the attention of Supplier after any such disclosure.
9.6 The provisions of this Clause 9 shall survive the termination of this Purchase Order, however arising.
10.1 Each party will, subject to Clause 10.2, only use the other party’s Confidential Information for the purpose of performing its obligations and exercising its rights under these Conditions; keep the other party’s Confidential Information secret, safe and secure; and not disclose the other party’s Confidential Information to any other person.
10.2 Each party may disclose the other party’s Confidential Information to:
10.2.1 the extent required by Applicable Law or any court of competent jurisdiction or the rules of any governmental or regulatory body; and
10.2.2 those of its officers, directors, employees and professional advisers and in relation to the Customer its Group Companies, in each case who need access to that Confidential Information so that it can perform its obligations and exercise its rights under the Purchase Order. A party disclosing the other party’s Confidential Information under this Clause 10.2.2 will procure that each person to whom it discloses that Confidential Information will not do or omit to do anything which if done or omitted to be done by that party would be a breach of this Clause 10.
10.2.3 In the case of the Customer to its sub-contractors or sub-processors and in the case of the Supplier to Approved Sub-Contractors and/or Approved Sub-Processors.
10.3 These provisions of confidentiality will continue to apply to all Confidential Information retained by a party under Sub-clause 8.5.3.
10.4 Each party acknowledges and agrees that damages alone may not be an adequate remedy for breach of this Clause 10, and the disclosing party will be entitled, without having to prove special damages, to seek equitable relief (including injunction and specific performance) for any breach or threatened breach of this Clause 10 by the receiving party.
11. INTELLECTUAL PROPERTY
11.1 All Intellectual Property Rights in the Supplier Materials will remain vested in the Supplier (or its relevant licensors) and to the extent that any rights in such materials vest in the Customer by operation of law, Customer hereby assigns such rights to the Supplier.
11.2 All Intellectual Property Rights in the University Materials and University Data will remain vested in the Customer (or its relevant licensors) and to the extent that any rights in such materials vest in the Supplier by operation of law, Supplier hereby assigns such rights to the Customer.
11.3 Each Party:
11.3.1 acknowledges and agrees that it shall not acquire or claim any title to any of the other party’s Intellectual Property Rights (or those of the other Party’s licensors) by virtue of the rights granted to it under this Purchase Order or through its use of such Intellectual Property Rights;
11.3.2 agrees that it will not, at any time, do, or omit to do, anything which is likely to prejudice the other party’s ownership (or the other Party’s licensors ownership) of such Intellectual Property; and
11.3.3 agrees not to remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notice, on or in the materials of the other party and agrees to incorporate any such proprietary markings in any copies it takes of such materials.
11.4 The Supplier will assign to the Customer all right, title and interest in the Intellectual Property Rights (including know how) of the Deliverables, and will procure all necessary licences of Intellectual Property Rights which are necessary for the Customer to make use of any Deliverables from the Services without the risk of infringing any other party or person’s Intellectual Property Rights. The Supplier will execute all documents and do all acts reasonably required to vest such rights in the Customer absolutely.
11.5 Without prejudice to Clause 11.3, if any person claims that the possession and/or use of Supplier Materials and any output and Deliverables of the Services by the Customer, its customers, officers, employees, students, agents or sub-contractors, infringes the Intellectual Property Rights of that person or any other person (an “IP Claim”), the Supplier will indemnify the Customer, its customers, officers, employees, students, agents and sub-contractors against all Losses that the indemnified parties incur or will incur or suffer as a result of defending or settling any such actual or threatened claim or proceeding, in each case arising out of or in connection with that IP Claim. The indemnity in this Clause 11.5 will not apply to the extent that an infringement is caused by any Specification for the Services created solely by the Customer.
11.6 The indemnity in Clause 11.5 is subject to the indemnified party:
11.6.1 promptly notifying the indemnifying party on becoming aware of any matter or claim to which the indemnity might relate;
11.6.2 not making any admission, settlement or payment in respect of such matter or claim, other than a payment made pursuant to a court order, without the prior written consent of the indemnifying party (such consent not to be unreasonably withheld or delayed); and
11.6.3 allowing the indemnifying party, where appropriate, to appoint legal advisers of its choice and to conduct and/or settle negotiations and/or proceedings relating to such matter or claim and the indemnified party’s reasonable requests in the conduct of any such negotiations and/or proceedings.
12.1 Subject to Clause 12.4, any notice or other communication given under or in connection with the Purchase Order will be in writing, in the English language and:
12.1.1 sent to the relevant party’s address by pre-paid first-class post or mail delivery service providing guaranteed next working day delivery; or
12.1.2 delivered to or left at the relevant party’s address (but not, in either case, by one of the methods set out in Clause 12.1.1); or
12.1.3 in the case of notices to the Customer, by email to email@example.com, but for the avoidance of doubt, a copy of any notice to the Customer however served, must also be sent by email to firstname.lastname@example.org
12.2 Any notice or communication given in accordance with Clause 12.1 will be deemed to have been served if:
12.2.1 given as set out in Clause 12.1.1, at 9.00 a.m. on the 2nd Business Day after the date of posting; and
12.2.2 given as set out in Clause 12.1.2, at the time the notice or communication is delivered to or left at that party’s address;
12.2.3 given as set out in Clause 12.1.3, at the time of successful delivery to that party’s correct email address;
provided that if a notice or communication is deemed to be served before 9.00am on a Business Day it will be deemed to be served at 9.00am on that Business Day and if it is deemed to be served on a day which is not a Business Day or after 5.00pm on a Business Day it will be deemed to be served at 9.00am on the immediately following Business Day.
12.3 To prove service of a notice or communication it will be sufficient to prove that the provisions of Clause 12.1 were complied with.
12.4 This Clause 12 will not apply to the service of any proceedings or other documents in a legal action to which the Civil Procedure Rules apply.
13.1 Neither Party excludes or limits its liability under this Purchase Order for the following:
13.1.1 A breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
13.1.2 Death or personal injury caused by its negligence, or the negligence of its personnel, agents or Sub-Contractors;
13.1.3 Fraud or fraudulent misrepresentation; and
13.1.4 any other liability which cannot be limited or excluded by Applicable Law.
13.2 Subject to Clause 13.3, the Supplier will indemnify the Customer against all Losses claims or proceedings arising out of or in connection with any breach by the Supplier or its Approved Sub-contractors or Approved Sub-Processors, of any of the Supplier obligations under this Purchase Order (including any failure or delay in performing, or negligent performance or non-performance of, any of those obligations) and the manufacture, supply or use of the Goods or any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods, as delivered.
13.3 Neither party to this Purchase Order shall have any liability to the other party for any indirect, special or consequential loss arising under or in connection with this Purchase Order;
13.4 Subject to Clauses 13.1 and 13.3, the Customer's total liability to the Supplier, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Purchase Order shall be limited to the total charges paid or payable by the Customer in the 12 month period leading up to the breach under this Purchase Order.
14.1 The Supplier will and will procure that any Approved Sub-Contractors and Approved Sub-Processors will:
14.1.1 provide such information as may be requested by the Customer to confirm the Supplier’s compliance with these Conditions and execute and/or deliver such other documents as the Customer may require as evidence of that compliance; and
14.1.2 on reasonable notice during normal Business Hours, allow the Customer or the Customer’s authorised third party auditors, access to such its premises, facilities and records (and take copies of such records) for the purposes of allowing the Customer to verify compliance with this Purchase Order.
15.1 The Transfer of Undertakings (Protection of Employment) Regulations 1988 (“TUPE”) or similar local legislation in other jurisdictions may apply in the event of the termination, in whole or part, of this Purchase Order. The Supplier will provide the Customer with such information as the Customer may request to assess its responsibilities in connection with the termination of this Purchase Order and co-operate with the Customer generally in relation to such responsibilities. The Supplier will indemnify the Customer in full and on demand for any Losses it suffers as a result of TUPE (or legislation of similar effect) applying in the event of a termination of this Purchase Order.
16. DISPUTE RESOLUTION
16.1 If a dispute arises out of or in connection with this Purchase Order or the performance, validity or enforceability of it (A “Dispute”), then, the parties shall follow the procedure set out in this clause 16:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On receipt of a Dispute Notice, the receiving party’s Key Contact and the sending party’s Key Contact (as Key Contacts are identified in the Summary page) shall attempt in good faith to resolve the Dispute;
(b) if the parties Key Contacts are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be escalated to the Escalation Contact of both the sending party and the receiving party (as Escalation Contacts are identified in the Summary page), who shall attempt in good faith to resolve the Dispute; and
(c) if the Escalation Contacts are for any reason unable to resolve the Dispute within 10 days of it being referred to them, the parties agree to enter into mediation in good faith to settle the dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 20 days after the date of the ADR notice.
16.2 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under this Clause 16 which clause shall apply at all times.
17.1 The Supplier acknowledges that they are a non-exclusive supplier of the Services to the Customer and the Customer is free to contract with any other supplier for the supply of the Services or similar Services at its sole discretion.
17.2 Neither Party will make or allow to be made any announcement or publicity relating to the existence or the subject matter of this Purchase Order without the prior written agreement and approval of the other Party.
17.3 This Purchase Order constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and neither party has entered into this Purchase Order in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other party or any other person and whether made by the first party or any other person) which is not expressly set out in this Purchase Order;
17.4 A delay in exercising or failure to exercise a right or remedy under or in connection with this Purchase Order will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
17.5 If any clause or sub-clause of this Purchase Order is found to be or becomes illegal, unlawful or unenforceable, by any court or body or authority of competent jurisdiction, such term will be deemed modified to the minimum extent necessary to make it valid, legal or enforceable. If such modification is not possible, the relevant clause or sub-clause shall be deemed deleted. Any modification to or deletion of a clause or sub-clause under this Clause 17.5 shall not affect the validity and enforceability of the rest of this Purchase Order.
17.6 Save as otherwise expressly provided for, no variation to this Purchase Order will be effective unless it is in writing and signed by a duly authorised representative on behalf of each of the parties.
17.7 Nothing in this Purchase Order and no action taken by the parties in connection with it or them, will create a partnership or joint venture between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so. Each party agrees that it is an independent contractor and is entering into this Purchase Order as principal and not as agent for or for the benefit of any other person.
17.8 Subject to Clause 17.9, the parties do not intend that any term of the Purchase Order will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.
17.9 Customer Group Companies and, where applicable, customers, officers, employees, students, agents and sub-contractors of the Customer Group Companies will be entitled to enforce the Conditions of this Purchase Order against the Supplier, subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999.
17.10 Notwithstanding Clause 17.9, the parties may vary or rescind this Purchase Order without the consent of the Customer Group Companies and customers, officers, employees, students, agents and sub-contractors of the Customer Group Companies. The Customer will in any event be able to enforce the Conditions of this Purchase Order against the Supplier, whether it is directly receiving the Services from the Supplier or otherwise.
17.11 The Customer’s rights and remedies set out in this Purchase Order are in addition to, and not exclusive of any rights and remedies provided by law.
17.12 The Supplier will not assign, transfer, charge, hold on trust for any person or deal in any other manner with any of the Supplier’s rights under this Purchase Order or to sub-contract any of the Supplier’s obligations under this Purchase Order without the prior written consent of the Customer.
17.13 Neither Party will be liable under or in connection with this Purchase Order to the extent that as a result of a Force Majeure Event it is prevented or delayed from performing its obligations under this Purchase Order save that the Customer may terminate this Purchase Order without further liability if the Supplier is prevented from supplying the Goods or performing the Services, in whole or in part, by a Force Majeure Event for a period of 30 days or more.
18. DATA PROTECTION
18.1. The parties acknowledge that for the purposes of this Purchase Order, the Customer is a Controller in relation to any University Data used or processed by the Supplier for the delivery of Goods or performance of Services and the Supplier is the Processor of the University Data.
18.2. Without prejudice to Clause 4.1.8, in performing their obligations under this Purchase Order, each Party will at all times comply with the Data Protection Legislation and will ensure that they have in place appropriate technical and organisational measures to guard against the unauthorised or unlawful processing of the Personal Data and against the accidental loss or destruction of, or damage to, Personal Data held by it (including adequate back-up procedures and disaster recovery systems) and such measures shall (taking into account the state of technological development and the cost of implementing such measures) be appropriate to the nature of the Personal Data processed and provide a level of security appropriate to the risk;
18.3. Notwithstanding Clauses 18.1 and 18.2 above, the Parties will enter in to a separate data sharing agreement for the purposes of setting out the subject matter and duration of the Processing by the Processor, the nature and purpose of the Processing, the type of Personal Data, categories of Data Subjects and the details of any disclosures, sub-processors and transfers outside the UK but in the absence of such data sharing agreement, the Processor will, as a minimum, comply with the following:
a) Process Personal Data only on documented instructions (including this Purchase Order) from the Controller;
b) not use Personal Data for any purpose which may be inconsistent with those notified to the Data Subjects on or before the time of collection by the Controller;
c) without prejudice to Clause 18.3(b), ensure that Personal Data will only be used for the purpose of providing and to the extent required to provide the Goods and/or Services or as otherwise directed by the Controller;
d) without prejudice to Clause 18.3(c), not without the express prior written consent of the Controller:
i convert any Personal Data into anonymised, pseudonymised, depersonalised, aggregated or statistical data;
ii use any Personal Data for “big data” analysis or decisioning purposes; or
iii match or compare any Personal Data with or against any other Personal Data (whether the Processor’s or any third party’s);
iv engage any third party to carry out its processing obligations under this Purchase Order;
v process or otherwise transfer the Personal Data outside of the UK;
e) not disclose Personal Data to a third party in any circumstances other than at the specific request of the Controller;
f) ensure that any individual authorised to Process Personal Data accesses such Personal Data strictly on a need to know basis as necessary to perform their role in the provision of the Services and in accordance with the Controller’s written documented instructions, and:
i is subject to confidentiality obligations equivalent to those set out in Clause 10 or is under an appropriate statutory obligation of confidentiality;
ii will comply with this Clause 18;
iii will not cause the Controller to breach any obligation under the Data Protection Legislation; and
iv is appropriately reliable, qualified and trained in relation to their Processing of Personal Data;
g) implement (and assist the Controller to implement) robust technical and organisational measures to ensure a level of security appropriate to the risk presented by Processing the Personal Data, in particular from a Data Security Incident;
h) immediately notify the Controller initially by telephone (within 24 hours) and then in writing, of any notice or communication concerning the Personal Data and compliance with Data Protection Legislation received from any person (including any Data Subject) or any Supervisory Authority;
i) in accordance with Clause 18.3(r) below, notify the Controller without undue delay (and in any event no later than 24 hours) after becoming aware of a reasonably suspected, “near miss” or actual Data Security Incident, including the nature of the Data Security Incident, the categories and approximate number of Data Subjects and Personal Data records concerned and any measure proposed to be taken to address the Data Security Incident and to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all the relevant information at the same time, the information may be provided in phases without undue further delay, but Supplier (and Sub-Processors) may not delay notification under this Clause 18.3(i) on the basis that an investigation is incomplete or ongoing. Supplier will not, and will procure that Sub-Processors will not, make or permit any announcement in respect of the Data Security Incident to any person without the Controller’s prior written consent;
j) assist the Controller in:
i. ensuring privacy by design and default in respect of the purpose and performance of this Purchase Order;
ii. responding to requests for exercising Data Subjects’ rights under the Data Protection Legislation, including by appropriate technical and organisational measures, insofar as this is possible;
iii. documenting any Data Security Incidents and reporting any Data Security Incidents to any Supervisory Authority and/or Data Subjects;
iv. taking measures to address Data Security Incidents, including, where appropriate, measures to mitigate their possible adverse effects; and
v. conducting DPIAs - data protection impact assessments - of any Processing operations and consulting with Supervisory Authorities, Data Subjects and their representatives; accordingly, and
vi. at the option of the Controller, securely delete or return to the Controller and securely delete any remaining copies and promptly certify (via a director) when this exercise has been completed;
k) ensure that Personal Data is kept separate from Personal Data belonging to Supplier or to other customers of Supplier (or to other customers of any Sub-Processors or any other third parties Processing the Personal Data);
l) ensure regular testing and evaluation of the effectiveness of the technical and organisational measures is undertaken; and
m) allow for and contribute to audits, including inspections, conducted by the Supervisory Authority, Controller or another auditor mandated by the Controller;
n) prepare and securely maintain a record of all categories of Processing activities carried out on behalf of the Controller in relation to the Personal Data, including as a minimum: (i) its name and contact details and details of its Data Protection Officer (if any); (ii) the categories of Processing it carries out on behalf of the Controller; (iii) any transfers of Personal Data outside the United Kingdom (if consent is given); (iv) a general description of the technical and organisational security measures referred to in Clause 18.2 above; and (v) the same information in relation to any Sub-Processor, together with its name and contact details (together the “Data Record”). Supplier will promptly upon request securely supply a copy of the Data Record to the Controller.
o) ensure that the Processing of Personal Data is carried out using systems and processes designed to ensure data protection by design and default in accordance with the Controller’s obligations under Data Protection Legislation.
p) not cause the Controller to breach any obligation under the Data Protection Legislation.
q) notify the Controller initially by telephone and then in writing within 24 hours if, in relation to the Processing, it identifies any areas of actual or potential non-compliance with the Data Protection Legislation or this Clause 18.
r) indemnify the Controller against all Losses or other liabilities, in each case arising out of or in connection with any breach by Supplier of any of its obligations under this Clause 18 (including any failure or delay in performing, or negligent performance or non-performance of, any of those obligations).
19. GOVERNING LAW AND JURISDICTION
19.1 The parties agree that this Purchase Order and any non-contractual obligations arising out of it or in connection with it, shall be governed by the laws of England.
19.2 The courts of England shall have exclusive jurisdiction to determine any dispute arising out of or in connection with the Purchase Order (including in relation to any non-contractual obligations).
Email: email@example.com if you have any queries about these terms.