Part H - General provisions
H1 Contract variation
- H1.1 Subject to clause H1.2, no variation or modification to the Contract is valid unless it is in writing and signed by the Council and the Contractor.
- H1.2 The Council shall be entitled to issue to the Contractor in writing or, in case of urgency orally (provided the Council confirms oral instructions in writing as soon as it is practicable), variation orders requiring the addition, suspension, reduction or cessation of delivery of any Goods and/or the provision of emergency Goods in accordance with revised Delivery Instructions. The Contractor shall charge for the impact of the variation order in accordance with the rates and Prices used to calculate the Price in the Tender.
H2 Third party rights
- H2.1 This Contract is enforceable by the original parties to it, by their successors in title and permitted assignees. Any rights of any person to enforce the terms of this Contract pursuant to The Contracts (Rights of Third Parties) Act 1999 are excluded.
H3 No waiver
- H3.1 Failure by either party at any time to enforce any one or more of the provisions of this Contract or to require performance by the other party of any of the provisions shall not constitute or be construed as a waiver of the provision or of the right at any time subsequently to enforce all terms and conditions of this Contract nor affect the validity of the Contract or any part of it or the right of the parties to enforce any provision in accordance with its terms.
- H3.2 No waiver of any of the provisions of this Contract shall be effective unless it is expressed to be a waiver in writing and communicated in accordance with clause A3 (Notices).
H4 Severance
- H4.1 If any provision of the Contract shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity shall not impair or affect any other provision all of which shall remain in full force and effect.
H5 Assignment, sub-contracting and responsibility
- H5.1 Subject to any express provision of this Contract, the Contractor shall not without the prior written consent of the Council, assign all or any benefit, right or interest under this Contract or sub-contract the provision of the Goods.
- H5.2 The Council shall be entitled to:
- H5.2.1 assign, novate or dispose of its rights and obligations under this Contract either in whole or part to any contracting authority (as defined in The Public Contracts Regulations 2015); or
- H5.2.2 transfer, assign or novate its rights and obligations where required by Law.
- H5.3 The Contractor shall remain responsible and liable for the acts and omissions of any other members of a consortium arrangement, sub-contractors, servants, agents and employees as though they were its own.
- H5.4 Where the Contractor enters into a sub-contract they must ensure that a provision is included which:
- H5.4.1 requires payment to be made of all sums due by the Contractor to the sub-contractor within a specified period not exceeding 30 days from the receipt of a valid invoice as defined by the sub-contract requirements and provides that, where the Council has made payment to the Contractor in respect of the Services and the sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Contractor is not exercising a right of retention or set-off in respect of a breach of contract by the sub-contractor or in respect of a sum otherwise due by the sub-contractor to the Contractor, payment must be made to the sub-contractor without deduction;
- H5.4.2 notifies the sub-contractor that the sub-contract forms part of a larger contract for the benefit of the Council and that should the sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the sub-contractor to the Council; and
- H5.4.3 in the same terms as that set out in this clause H5.4 (including for the avoidance of doubt this clause H5.4.3) subject only to modification to refer to the correct designation of the equivalent party as the Contractor and sub-contractor as the case may be.
- H5.4.4 allows the Contractor to terminate that sub-contract if
- a. the relevant sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or labour law; and
- b. a requirement that the sub-contractor includes a provision having the same effect as (a) above in any sub-contract which it awards.
- H5.4.5 Where the Council considers whether there are grounds for the exclusion of a sub-contractor under Regulation 57 of the Public Contracts Regulations 2015, then:
- a. if the Council finds there are compulsory grounds for exclusion, the Contractor shall replace or shall not appoint the sub-contractor;
- b. if the Council finds there are non-compulsory grounds for exclusion, the Council may require the Contractor to replace or not to appoint the sub-contractor and the Contractor shall comply with such a requirement.
H6 Force Majeure
- H6.1 Neither party shall be liable for failure to perform its obligations under the Contract if such failure results from Force Majeure.
- H6.2 If the Council or the delivery location is affected by circumstance of Force Majeure, the Council shall be entitled to, totally or partially, suspend the date or dates for delivery of the Goods until the circumstances of the Force Majeure have ceased. The suspension shall not give rise to any claim by the Contractor against the Council nor entitle the Contractor to terminate the Contract.
- H6.3 Industrial action by, or illness or shortage of the Contractor’s Employees, agents or sub-contractors, failure or delay by any of the Contractor’s suppliers to supply Goods, components, services or materials and breach of the Contractor’s warranties under clause B6 shall not be regarded as an event of Force Majeure.
- H6.4 If the event of Force Majeure continues for more than two months either party may give written notice to the other to terminate the Contract immediately or on a set termination date.
- H6.5 If the Contract is terminated in accordance with clause H6.4 neither party will have any liability to the other except that any rights and Liabilities which accrued prior to termination will continue to exist.
- H6.6 Subject to the provisions of this Force Majeure clause, the Council may terminate this contract with immediate effect by notice in writing to the Contractor at any time if the Contractor or any subsidiary company of the Contractor is convicted of any offence under the Employment Relations Act 1999 (Blacklists) Regulations 2010
H7 Inducements
- H7.1 The Contractor shall not offer or give, or agree to give, to any Employee, agent, servant or representative of the Council any gift or consideration of any kind as an inducement or reward for doing, any act in relation to the obtaining or execution of the Contract or any other Contract with the Council, or for showing or refraining from showing favour or disfavour to any person in relation to the Contract or any such Contract. The attention of the Contractor is drawn to the criminal offences under the Prevention of Corruption Acts 1889 to 1916.
- H7.2 The Contractor warrants that it has not paid commission nor agreed to pay any commission to any Employee or representative of the Council by the Contractor or on the Contractor’s behalf.
- H7.3 Where the Contractor engages in conduct prohibited by clauses H7.1 and H7.2 in relation to this or any other Contract with the Council, the Council has the right to:
- H7.3.1 terminate the Contract and recover from the Contractor the amount of any loss suffered by the Council resulting from the termination, including the cost reasonably incurred by the Council of making other arrangements for the provision of the Goods and any additional expenditure incurred by the Council throughout the remainder of the Contract Period; or
- H7.3.2 recover in full from the Contractor any other loss sustained by the Council in consequence of any breach of this clause whether or not the Contract has been terminated.
H8 Costs and expenses
- H8.1 Each of the parties will pay their own costs and expenses incurred in connection with the negotiation, preparation, execution, completion and implementation of this Contract.
H9 No agency or partnership
- H9.1 Nothing contained in this Contract, and no action taken by the parties pursuant to this Contract, will be deemed to constitute a relationship between the parties of partnership, joint venture, principal and agent or employer and Employee. Neither party has, nor may it represent that it has, any authority to act or make any commitments on the other party’s behalf.
H10 Non solicitation and offers of employment
- H10.1 The Contractor agrees that it will not, without the prior written consent of the Council, whether directly or indirectly, and whether alone or in conjunction with, or on behalf of, any other person and whether as a principal, shareholder, director, Employee, agent, consultant, partner or otherwise during the Contract Period or for a period of 12 months following termination of this contract:
- H10.1.1 solicit or entice, or endeavour to solicit or entice, away from the Council any person directly related to provision of the Goods employed in a senior capacity in a managerial, supervisory, technical, sales or administrative capacity by, or who is or was a consultant to, the Council at the date of the termination of this Contract or at any time during the period of one month immediately preceding the date of termination; or
- H10.1.2 attempt, or knowingly assist or procure any other person to do the above.
H11 Inspection of contractor's premises
- H11.1 The Contractor shall permit the Council to make any inspections or tests which may reasonably be required in respect of the Contractor’s premises in relation to the Contract.
H12 Law and jurisdiction
- H12.1 This Contract shall be governed by the Laws of England and shall be subject to the exclusive jurisdiction of the English courts.