East Durham College - General Conditions of Contract

‘Our’ ‘Us’ and ‘We’ means East Durham College. ‘You’ and ‘Your’ means the person, firm or company to whom the Purchase Order is addressed and any employees, sub-contractors or agents of said person, firm or company. ‘Goods’ means the materials, articles, works and services described in the Contract. ‘Package’ means any type of package including bags, cases, carboys, cylinders, drums, pallets, tank wagons and other containers. ‘Authorised Officer’ means our employee authorised, either generally or specifically, by us to sign our Purchase Order, confirmation of which may be obtained from the Procurement Manager. ‘Authorised’ means signed by an Authorised Officer. ‘Purchase Order’ means our Authorised purchase order referring to these general conditions of purchase on its face. ‘Order Amendment’ means our Authorised order amendment or series of order amendments, each order amendment having precedence over any earlier order amendment. ‘Contract’ has the meaning given in condition 2 below. ‘Price’ has the meaning given in condition 3 below. ‘Sale of Goods Act 1979’ shall mean the Sale of Goods Act 1979 as amended by the Sale of Goods Act 1994. ‘Supply of Goods and Services Act 1982’ shall mean the Supply of Goods and Services Act 1982 as amended by the Sale and Supply of Goods Act 1994.

You agree to sell and we agree to purchase the Goods in accordance with the Contract. The Contract shall comprise (in order of precedence); any Order Amendments, the Purchase Order, these General Conditions of Purchase and any other document (or part document) referred to on the Purchase Order. The Contract shall not include any of your conditions of sale, notwithstanding reference to them in any document. However, should this Contract be held by a Court of Competent Jurisdiction to include your terms and conditions of sale then in the event of any conflict or apparent conflict these General Conditions of Purchase shall always prevail over your terms and conditions of sale. Delivery of Goods in response to a Purchase Order or Order Amendment shall be taken to imply that you have accepted the terms and conditions of this Contract.

You will sell us the Goods for the firm and fixed Price stated in the Contract. If no Price is stated in the Contract then the Price shall be a fair price, taking into account prevailing market conditions. The Price shall include storage, packing, insurance, delivery, installation and commissioning (as applicable) but shall exclude VAT.

We shall have the right, before delivery, to send you an Order Amendment adding to, deleting or modifying the Goods. If the Order Amendment will cause a change to the Price or delivery date then you must suspend performance of the Contract and notify us without delay, calculating the new Price and delivery date at the same level of cost and profitability as the original Price. You must allow us at least 10 working days to consider any new Price and delivery date. The Order Amendment shall take effect then but only if our Authorised Officer accepts in writing the new Price and delivery date within the time you stipulate. If an Authorised Officer fails to confirm the Order Amendment within the time you stipulate then performance of the Contract shall immediately resume as though the said Order Amendment had not been issued (except that we may still exercise our right of cancellation in accordance with Condition 5).

In addition to our other rights of cancellation under this Contract we may cancel the Purchase Order and any Order Amendment thereto at any time by sending you a notice of termination. You will comply with any instructions that we may issue with regard to the Goods. If you submit a termination claim then we will pay to you the cost of any commitments, liabilities or expenditure which in our reasonable opinion were incurred as a consequence of this Contract at the time of termination. The total of all payments incurred or due to you under this Contract, including any termination payment, shall not exceed the Price. If you fail to submit a termination claim within three months of the date of our notice of termination then we shall have no further liability under the Contract.

a) The Goods shall

i; conform in every respect with the provisions of the Contract

ii; be capable of the standard of performance specified in the Contract

iii; be fit for any purpose made known to you expressly or by implication and in this respect we rely on your skill and judgement

iv; be new unless otherwise specified on the Purchase Order and be of sound materials and skilled and careful workmanship

v; correspond to their description or any samples, patterns, drawings, plans and specifications referred to in the Contract

vi; be of satisfactory quality

vii; comply with any current legislation

b) Unless specifically required under the Contract there shall be no asbestos content in the Goods.

If the Contract involves any works or services which you perform on our premises then the following conditions shall apply:

a) You shall ensure that you and your employees, your sub-contractors and their employees or any other person associated with you will adhere in every respect to the obligations imposed on you by current safety legislation.

b) You shall ensure that you and your employees, your sub-contractors and their employees and any other person associated with you will comply with any regulations that we may notify to you in writing.

c) No additional work shall be carried out unless instructed in writing by an Authorised Officer

a) You shall at your own expense provide any programmes of manufacture and delivery that we may reasonably require. You shall notify us without delay in writing if your progress falls behind or may fall behind any of these programmes.

b) We shall have the right to check progress at your works or the works of sub-contractors at all reasonable times, to inspect and to reject Goods that do not comply with the Contract. Your sub-contractors shall reserve such right for us.

c) Any inspection or approval shall not relieve you from your obligations under this Contract.

Unless otherwise stated in the Contract, all Packaging shall be non-returnable. If the Contract states that Packaging is returnable, you must give us full disposal instructions before the time of delivery. The Packaging must be clearly marked to show to whom it belongs. You must pay the cost of all carriage and handling for the return of Packaging. We shall not be liable for any Packaging lost or damaged in transit.

You shall observe all legal requirements of the United Kingdom, European Union and relevant international agreements in relation to health, safety and environment, and in particular to the marking of hazardous Goods, the provision of data sheets for hazardous materials and all provisions relating to food.

a) The Goods shall be properly packed, secured and despatched at your expense to arrive in good condition at the time or times and the place or places specified in the Contract.

b) If you or your carrier deliver any Goods at the wrong time or to the wrong place then we may deduct from the Price any resulting costs of storage or transport.

If the Goods or any part of them are not delivered by the time or times specified in the Contract then we may by written notice cancel any undelivered balance of the Goods. We may also return for full credit and at your expense any Goods that in our opinion cannot be used owing to this cancellation. In the case of services, we may have the work performed by alternative means and any additional costs reasonably so incurred shall be at your expense. This shall not affect any other rights that we have.

a) You shall bear all risks of loss or damage to the Goods until they have been delivered and shall insure accordingly.

b) Ownership of the Goods shall pass to us

i. when the Goods have been delivered but without prejudice to our right of rejection under this Contract and

ii. if we make any advance or stage payment, at the time such payment is made, in which case you must as soon as possible mark the Goods as our property.

We shall have the right to reject the Goods in whole or in part whether or not paid for in full or in part within a reasonable time of delivery if they do not conform with the requirements of this Contract. It is agreed that we may exercise the right of rejection notwithstanding any provision contained in section 11 or section 15A or section 30 (subsections 2A and 2B) or section 35 of the Sale of Goods Act 1979. We shall give you a reasonable opportunity to replace the Goods with new Goods that conform with this Contract, after which time we shall be entitled to cancel the Purchase Order and purchase the nearest equivalent Goods elsewhere, in the event of the cancellation under this condition you shall promptly repay any moneys paid under this Contract without any retention or offset whatsoever. Cancellation of the Purchase Order under this condition shall not affect any other rights we may have. You must collect all rejected Goods within a reasonable time of rejection or we shall return them to you at your risk and expense.

Unless stated otherwise in the Contract we shall pay you within 30 days of receipt of a correctly rendered invoice, with any relevant attachment of analysis required. Your invoice must be addressed to the Finance Department and state the full Purchase Order number. We shall not be held responsible for delays in payment caused by your failure to comply with our invoicing instructions.

It is expressly agreed between us that:

a) You shall promptly make good at your expense any defect in the Goods that we discover under proper usage during the first 12 months of actual use or 18 months from the date of acceptance by us whichever period shall expire first. Such defects may arise from your faulty design, your erroneous instructions as to use or inadequate or faulty materials or poor workmanship or any other breach of your obligations whether in this Contract or at law.

b) Repairs or replacements will themselves be covered by the above warranty but for a period of 12 months from acceptance by us.

c) You will ensure that compatible spares are available to facilitate repairs (where applicable) for a period of at least 10 years from the date of delivery of the Goods.

a) You shall indemnify us against all loss, actions, costs, claims, demands, expenses and liabilities whatsoever (if any) which we may incur either at common law or by statute in respect of personal injury to or death of any person or in respect of any loss or destruction of or damage to property (other than as a result of any default or neglect of ourselves or of any person for whom we are responsible) which shall have occurred in connection with any work executed by you under this Contract or shall be alleged to be attributable to some defect in the Goods.

b) This Purchase Order is given on the condition that (without prejudice to the generality of Condition 17(a)) you will indemnify us against all loss, cost, claims, demands, expenses and liabilities whatsoever (if any) which we may incur either at common law or by statute (other than as a result of any default or neglect of ourselves or of any person for whom we are responsible) in respect of personal injury to or death of any of your or our employees, agents, sub-contractors or other representatives while on our premises whether or not such persons are (at the time such personal injury or deaths are caused) acting in the course of their employment.

c) You will indemnify us against any and all loss, cost, expenses and liabilities caused to us whether directly or as a result of the action, claim or demand of any third party by reason of any breach by you of these Conditions or of any terms or obligations on your part implied by the Sale of Goods Act 3 1979, the Supply of Goods and Services Act 1982 or any statute or statutory provision relevant to the Contract or to Goods or Works covered thereby. This indemnity shall not be prejudiced or waived by any exercise of our rights under Condition 14.

d) You shall hold satisfactory insurance cover with a reputable insurer to fulfil your insurance obligations for the duration of this Contract including public liability cover of at least £2M (two million pounds Sterling). You shall effect insurance against all those risks arising from your indemnity in Condition 17 (c). Satisfactory evidence of such insurance and payment of current premium shall be shown to us upon request.

Whenever under the Contract any sums of money shall be recoverable from or payable by you, they may be deducted from any sums then due, or which at any later time may become due to you under this Contract or under any other Contract you may have with us.

If either party is delayed or prevented from performing its obligations under this Contract by circumstances beyond the reasonable control of either party (including without limitation any form of government intervention strikes and lock-outs relevant to the Purchase Order or breakdown of plant), such performance shall be suspended, and if it cannot be completed within a reasonable time after the due date as specified in the Purchase Order, then the Contract may be cancelled by either party. We shall pay to you such sum as may be fair and reasonable in all the circumstances of the case in respect of work performed by you under the Purchase Order prior to cancellation but only in respect of work for which we have received full benefit as originally contemplated in the Contract. This provision can have effect only if it is called into operation by the party wishing to rely on it giving written notice to the other to that effect.

a) All tools, materials, drawings, specifications and other equipment and data (‘The Articles’) loaned by us to you in connection with the Contract shall remain always our property and be surrendered to us on demand in good and serviceable condition (fair wear and tear allowed) and are to be used by you solely for the purpose of completing the Contract. You agree that no copy of any of the Articles will be made without the consent in writing of our Authorised Officer. Until you return all the articles to us they shall be at your risk and insured by you at your own expense against the risk of loss, theft or damage. Any loss of or damage to such articles shall be made good by you at your expense. All scrap arising from the supply of such articles must be disposed of at our discretion and all proceeds of sale of such scrap must promptly be paid to us in full.

b) Any information derived from our property or otherwise communicated to you in connection with the contract shall be kept secret and confidential and shall not without the consent in writing of our Authorised Officer be published or disclosed to any third party, or made use of by you except for the purpose of implementing the Contract.

If the Contract involves design and/or development work:

a) All rights in the results of work arising out of or deriving from this Contract, including inventions, designs, copyright and knowledge shall be our property and we shall have the sole right to determine whether any letters patent, registered design, trademark and other protection shall be sought.

b) You shall promptly communicate to us all such results and shall if requested and at our expense do all acts and things necessary to enable us or our nominee to obtain letters patent, registered designs and other protection for such results in all territories and to assign the same to us or our nominee.

c) You shall ensure that all technical information (including computer programmes and programming information) arising out of or deriving from this Contract is held in strict confidence except for any such information which becomes public knowledge other than by breach of this Contract.

With the exception of Goods made to our design or instructions, you warrant that neither the Goods nor our use of them will infringe any patent registered design, trade mark, copyright or other protected right and undertake to indemnify us against all actions, claims, demands, costs, charges and expenses arising from or incurred by reason of any infringement or alleged infringement of any such right.

If you breach or fail to observe any provision of this Contract we may give you written notice of such breach or non-observance and you shall have 28 days from receipt of the notice in which to rectify the breach or non-observance. Should you fail to rectify the breach or non-observance then we shall have the right to give you written notice terminating the Contract with immediate effect.

If you become insolvent or bankrupt or (being a company) make an arrangement with your creditors or have an administrator appointed or commence to be wound up (other than for the purposes of amalgamation or reconstruction) we may without replacing or reducing any other of our rights terminate the Contract with immediate effect by written notice to you or any person in whom the contract may have become vested.

The Contract shall not be assigned by you nor sub-let as a whole. You shall not sub-let any part of the Contract without our written consent, but we shall not refuse such consent unreasonably. The restriction contained in this Condition shall not apply to sub-contracts for materials for minor details or for any part of which the makers are named in the Contract. You shall be responsible for all work done and goods supplied by all sub-contractors.

In connection with this or any other Contract between you and us you shall not give, provide or offer to our staff and agents any loan, fee, reward, gift or any emolument or advantage whatsoever. In the event of any breach of this Condition, we shall without prejudice to any other rights we may possess, be at liberty forthwith to terminate this and any other Contract and to recover from you any loss or damage resulting from such termination.

a) The Contractor shall at all times endeavour to act in the best interests of the College under a duty of trust and confidence.

b) The Contractor and the College shall not, without prior written permission, use any confidential information for any purpose other than is necessary for the performance of its obligations under the Contract, nor make use of any information contained in any material prepates or provided by the College or the Contractor pursuant to the Contract, all of which information shall be deemed to be confidential.

c) The Contractor shall not refer to the College or the Contract nor use the College logo or other identifier in any advertisement or other public announcement without the College’s prior written consent. This does not preclude the Contractor from issuing publicity approved in advance by the College.

A failure at any time to enforce any provision of the Contract shall in no way effect the right at a later date to require complete performance of the Contract, nor shall the waiver of the breach of any provision be taken or held to be a waiver of any subsequent breach of the provision or be a waiver of the provision itself.

All notices and communications required to be sent by you or us in this Contract shall be made in writing and sent by first class mail and if sent to you sent to your registered or head office, and if sent to us sent to our Authorised Officer and shall be deemed to have reached the party to whom it is addressed on the next business day following the date of posting.

No addition, alteration or substitution of these Conditions will bind us or form part of the Contract unless and until accepted in writing by our Authorised Officer.

This Contract shall be subject to English law and the jurisdiction of the English courts.