Part A - Operative provisions
Last updated: 4th July 2018
A1 Definitions
The terms and expressions used in these Standard Terms and Conditions shall have the meanings set out below:
| Term or expression | Meaning |
|---|---|
| Agreement | This Contract. |
| Authorised officer | The person duly appointed by the Council and notified in writing to the Contractor to act as the representative of the Council for the purpose of the Contract in the Contract Particulars or as amended from time-to-time and in default of such notification the Council’s head of procurement or similar responsible officer. |
| Assigned employees | In respect of clause G4, an individual employed by the Contractor wholly or mainly in the performance of the Services. |
| Business day | Any day other than a Saturday or Sunday or a public or bank holiday in England. |
| Change in law | The coming into effect or repeal (without re-enactment or consolidation) in England of any Law, or any amendment or variation to any Law, or any judgement of a relevant court of law which changes binding precedent in England in each case after the date of this Contract. |
| Commencement date | The commencement date stated in the Contract Particulars. |
| Commercially sensitive information | The information listed in the Contract Particulars comprising the information of a commercially sensitive nature relating to the Contractor, its Intellectual Property Rights or its business or which the Contractor has indicated to the Council that, if disclosed by the Council, would cause the Contractor significant commercial disadvantage or material financial loss. |
| Confidential information | Any information which has been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored). This includes information which relates to the Goods, the business, affairs, properties, assets, trading practices, developments, trade secrets, Intellectual Property Rights, know-how, personnel, customers and suppliers of either party, all personal data and sensitive personal data (within the meaning of the DPA) and commercial sensitive information. |
| Contract | The agreement in respect of the provision of the Goods consisting of the following listed documents which shall be read as one document. In the event of ambiguity, conflict or contradictions between these documents the conflict will be resolved according to the following order of priority.
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| Contract manager | The person named in the Contract Particulars as the Contract Manager and any replacement from time-to-time in accordance with clause B3.2. |
| Contractor | The Contractor and where applicable this shall include the Contractor's Employees, sub-Contractors, agents, representatives and permitted assigns; and if the Contractor is a consortium or consortium leader, the consortium members. |
| Contractor personnel | All directors, officers, employees, agents, consultants and contractors of the Contractor and/or of any Sub-Contractor engaged in the performance of its obligations under this Contract. |
| Contract particulars | The document detailing the specific core terms agreed between the parties with regard to the Services which shall include but not be limited to the Pricing Schedule, Delivery Instructions, Commencement Date, Authorised Officer, Contract Manager, Key Personnel, Commercially Sensitive Information, Contract Period and the Specification and relevant contract specific details of the Tender included in the document. |
| Contract period | The period of the contract as stated in the Contract Particulars (and any extension in accordance with clause B1). |
| Control | Control as defined by section 416 of the Income and Corporation Taxes Act 1988. |
| Controller | Has the meaning given in the GDPR. |
| Council | The Council named in the Contract Particulars and where the context so admits includes any person which takes over or assumes the statutory functions or administrative responsibilities of the Council (whether in part or totally) or which is controlled by or is under common control with the Council (and the expression ‘control’ shall mean the power to direct or cause the direction of the general management and policies of the person in question but only for so long as such control exists). |
| Data loss event | Any event that results, or may result, in unauthorised access to Personal Data held by the Processor under this Contract, and/or actual or potential loss and/or destruction of Personal Date in breach of this Contract, including any Personal Data Breach. |
| Data protection impact assessment | An assessment by the Controller of the impact of the envisaged processing on the protection of Personal Data |
| Data protection legislation |
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| Data protection officer | Has the meaning given in the GDPR. |
| Data protection schedule | The schedule (where applicable) attached to, and forming part of this contract titled ‘Schedule of Processing, personal Data and Data Subjects’. |
| Data sharing agreement | A formal agreement that documents what data is being shared and how the data can be used between the parties. |
| Data sharing code of practice | The code of practice issued by the Information Commissioner in respect to the sharing of personal data. |
| Data subject | Has the meaning given in the GDPR. |
| Data subject request | A request made by, or on behalf of, a Data Subject in accordance with rights granted pursuant to the Data Protection Legislation to access their Personal Data. |
| DPA 2018 | The Data Protection Act 2018 as amended from time to time. |
| Delivery instructions | The instructions provided in the Contract Particulars and any other information that the Council considers appropriate to the provision of the Goods. |
| Employee | Any person employed by the Contractor to perform the Contract which will also include the Contractor’s servants, agents, voluntary and unpaid workers and sub-contractors and representatives or, in respect of clause G4 (TUPE and re-tendering) and any other TUPE obligation, an individual employed by the Contractor in the performance of the services. |
| EIR | The Environmental Information Regulations 2004. ‘FOIA’ |
| FOIA | The Freedom of Information Act 2000. |
| Force Majeure | Any cause materially affecting the performance by a party of its obligations under this contract arising from any act beyond its reasonable Control and affecting either party. This includes without limitation: acts of God, war, industrial action (subject to clause H6.3), protests, fire, flood, storm, tempest, epidemic, explosion, acts of terrorism and national emergencies. |
| GDPR | The General Data Protection Regulation (Regulation (EU) 2016/679) |
| Good industry practice | The exercise of such degree of skill, diligence, care and foresight which would reasonably and ordinarily be expected from a skilled and experienced Contractor engaged in the supply of Goods similar to the Goods under the same or similar circumstances as those applicable to the Contract. |
| Goods | The goods described in the Specification to be supplied by the Contractor in accordance with the contract and any associated services provided by the Contractor in relation to those Goods. |
| HRA | The Human Rights Act 1998. |
| Information | Has the meaning given under section 84 of the Freedom of Information Act 2000. |
| Intellectual property rights | Patents, inventions, trade marks, service marks, logos, design rights (whether registrable or otherwise), applications for any of the foregoing, copyright, database rights, domain names, trade or business names, moral rights and other similar rights or obligations whether registrable or not in any country (including but not limited to the United Kingdom) and the right to sue for passing off. |
| Invitation to Tender | The Council’s Invitation to Tender for the Contract. |
| Joint controllers | Where two or more Controllers jointly determine the purposes and means of processing. |
| Key personnel | Those persons named in the Contract Particulars as being key personnel. |
| Law | Any law, subordinate legislation within the meaning of Section 21 (1) of the Interpretation Act 1978, bye-law, enforceable right within the meaning of Section 2 of the European Communities Act 1972, regulation, order, regulatory policy, mandatory guidance or code of practice judgement of a relevant court of law, or directives or requirements with which the Contractor is bound to comply; |
| LED | Law Enforcement Directive (Directive (EU) 2016/680) |
| Liabilities | All costs, actions, demands, expenses, losses, damages, claims, proceedings, awards, fines, Orders and other liabilities (including reasonable legal and other professional fees and expenses) whenever arising or brought. |
| Order | An order for Goods to be provided where the Contract is identified in the Contract Particulars to be delivered by call off. |
| Party | A Party to this Contract/Agreement. |
| Personal data | Has the meaning given in the GDPR. |
| Personal data breach | Has the meaning given in the GDPR. |
| Price | he price of the Goods as set out in the Contract Particulars. Unless otherwise stated, any reference to price shall be regarded as being exclusive of properly chargeable VAT which shall be separately accounted for. |
| Pricing schedule | The schedule from the Tender detailing the pricing as detailed in the Contract Particulars |
| Processor | All directors, officers, employees, agents, consultants and contractors of the Processor and/or of any sub-contractor of the Processor. |
| Processor personnel | All directors, officers, employees, agents, consultants and contractors of the Processor and/or of any sub-contractor of the Processor. |
| Protective measures | Appropriate technical and organisational measures which may include: pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of such measures adopted by, it including those outlined in the Security Schedule. |
| Replacement contractor | Any company, organisation or person who replaces the Contractor following termination or expiry of all or part of this contract. |
| Request for information | A request for information or an apparent request under the Code of Practice on Access to Government Information, FOIA or the EIR. |
| Services | The services described in the Specification to be supplied by the Contractor in accordance with the Contract, together with all equipment required and any associated goods provided by the Contractor in relation to those services. |
| Special terms and conditions | The additional terms and conditions attached which were set out in the Invitation to Tender. |
| Specification | The specification included in the Contract Particulars setting out the Council’s detailed requirements in relation to the Goods |
| Standard terms and conditions | The terms and conditions set out in this document. |
| Sub-processor | Any third Party appointed to process Personal Data on behalf of the Processor related to this Contract |
| Tender | The Contractor’s tender for the Goods in response to the Council’s Invitation to Tender. |
| TUPE | The Transfer of Undertakings (Protection of Employment) regulations 2006. |
- A1.1 Any reference to a person shall include any natural person, partnership, joint venture, body corporate, incorporated association, government, governmental agency, persons having a joint or common interest, or any other legal or commercial entity or undertakings.
- A1.2 A reference to any statute, order, regulation or similar instrument shall be construed as a reference to the statute, order, regulation or instrument as amended by any subsequent statute, order, regulation or instrument or as contained in any subsequent re-enactment.
A2 Headings
- A2.1 The index and headings to the clauses and appendices to and schedules of this Contract are for convenience only and will not affect its construction or interpretation.
A3 Notices
- A3.1 Any notice required by this Contract to be given by either party to the other shall be in writing and shall be served personally, by fax or by sending it by registered post or recorded delivery to the appropriate address, fax number or email address notified to each other as set out in the Contract Particulars.
- A3.2 Any notice served will be deemed to have been served as follows.
- A3.2.1 Any notice served personally will be deemed to have been served on the day of delivery.
- A3.2.2 Any notice sent by post will be deemed to have been served 48 hours after it was posted.
- A3.2.3 Any notice sent by fax will be deemed to have been served 24 hours after it was despatched.
- A3.2.4 Any notice sent by email before 5pm will be deemed to have been served on the day of despatch and otherwise on the following day save where the deemed date of service falls on a day other than a Business Day in which case the date of service will be the next Business Day.
A4 Entire Agreement
- A4.1 The Contract constitutes the entire agreement between the parties relating to the subject matter of the Contract. The Contract supersedes all prior negotiations, representations and undertakings, whether written or oral, except that this clause A4 shall not exclude liability in respect of any fraudulent misrepresentation.