1.1 Agreement means these Standard Terms and any special terms agreed by the parties in writing together with the Order.
1.2 Confidential Information means all tangible or intangible trade secrets, know-how and other technical or commercial information and which the disclosing party has designated as proprietary or confidential or which, by its nature or the circumstances of its disclosure or its being obtained, should to be treated as proprietary or confidential.
1.3 Deliverables means all outputs of the Services (including without limit documents, reports, plans and other materials) in any medium.
1.4 FETL means the Further Education Trust for Leadership, a charitable company limited by guarantee and incorporated under the laws of England and Wales (company number 08514906) and having its registered office address at Eversheds House, 70 Great Bridgewater Street, Manchester M1 5ES.
1.5 Force Majeure means any occurrence which hinders, delays or prevents a party in performing any of its obligations under the Agreement which is beyond the control of, and without the fault or negligence of, such party and which by the exercise of reasonable diligence it is unable to prevent or provide against.
1.6 Services means the services (together with the Deliverables) as specified in and to be provided by Supplier under the Agreement.
1.7 Supplier means the person, firm or company, which is providing the Services under an Agreement.
1.8 Order means FETL’s official purchase order (including as electronically transmitted) and/or any supplementary documents or oral requests agreed between FETL and Supplier and referencing the Quotation.
1.9 Premises means any location, site or premises from which FETL operates.
1.10 Quotation means the costs estimate or other pricing proposal provided by Supplier for performance of the services required by FETL.
1.11 Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
2. Basis of Contract
2.1 These Standard Terms apply to the Agreement to the exclusion of any other terms and conditions (oral or written) contained within any quotation, Order confirmation or any other correspondence or similar documentation provided to FETL or implied by trade custom or course of dealings except where expressly stated in any part of the Agreement.
2.2 The Agreement takes effect on the date FETL sends its Order to Supplier. Acceptance of the Agreement by Supplier is assumed upon receipt by Supplier of the Order or commencement by the Supplier of performance of the Services, whichever is earlier. No condition(s) submitted by or referred to by Supplier when tendering or in any Quotation shall form part of the Agreement unless agreed to in writing by FETL.
3. Level and Mode of Performance
3.1 Supplier shall supply and carry out the Services in conformance with all the requirements of the Agreement and any supplementary material agreed in writing by FETL, with all due care and skill, in accordance with good practice and in compliance with all relevant laws, regulations, standards, codes of practice and requirements of any competent authority. Supplier shall obtain any licences, permits or consents necessary in order to do so.
3.2 The Deliverables shall be free from errors and defects and the Services performed by appropriately qualified and trained personnel to a high standard of quality and otherwise in accordance with best practice prevailing in Supplier’s industry.
3.3 In the event of any breach of this Clause, or of failure to perform any of its obligations under the Agreement, Supplier shall remedy the breach to FETL’s satisfaction, and/or indemnify FETL against all loses, claims, costs, expenses and damages arising out of Supplier’s failure to comply with its obligations under the Agreement and the exercise by FETL of its rights under the contract or at law, to include, but not be confined to, undertaking remedial action itself or arranging for a third party to do so.
3.4 Supplier shall not hinder any operations of FETL while carrying out the Services and shall ensure that FETL’s Premises are, on completion of the Services, left in a secure, clean, safe and tidy condition to FETL’s satisfaction.
3.5 Supplier shall observe strictly FETL’s rules and regulations regarding health and safety, security and the prevention of fire as may apply to the Premises, and any other reasonable requirements of FETL from time to time.
4. Supply of Services
4.1 Unless otherwise agreed in writing, Supplier shall carry out the Services at the location specified and at the time agreed in the Agreement or agreed between the parties.
4.2 If Supplier fails to perform the Services, in whole or in part, by the date and time specified (if no date specified, then within three months of the date of the Order), FETL shall be entitled to either or both:
4.2.1 cancel the Order in respect of any Services unperformed;
4.2.2 recover from Supplier any costs incurred by FETL as a result of Supplier’s failure to meet performance obligations;
4.2.3 recover any monies already paid under the Agreement; and
4.2.4 refuse to accept any subsequent performance of the Services.
4.3 FETL shall not be liable to pay for any Services not in accordance with the Agreement. FETL shall not be deemed to have accepted the Deliverables until it has had a reasonable time from delivery for inspection. Neither failure on the part of FETL or others to inspect, test or check the Deliverables, nor failure to discover defects, nor failure to reject Deliverables, shall relieve Supplier of any liability or obligation under the Agreement.
4.4 If the Deliverables or any part thereof fails tests, checks or inspections or do not meet the requirements of the Agreement, Supplier shall forthwith rectify the same. In the event of continuing or persistent failure to pass tests, checks or inspections or if there is any other indication that Supplier will not meet any of the requirements of the Agreement, FETL may terminate the Agreement under Clause 12 (Termination).
5.1 The price shall be as stated in the Order and shall include value added tax which shall be charged at the standard rate (‘VAT’) together with all other charges including delivery, unless otherwise specified in the Order.
5.2 VAT, where applicable, shall be payable by FETL subject to the submission of a valid VAT invoice (quoting the Order number).
5.3 Supplier is deemed to have understood the full nature and extent of the Services and to have visited the Premises, if applicable, and shall make no claim founded on its failure to do so.
5.4 Supplier will provide all equipment, labour and all other items necessary to complete the Services. FETL will not be liable for additional costs incurred by Supplier failing to consider all factors affecting price.
6. Payment Terms
6.1 Unless otherwise stated in the Agreement, payment will be made by the end of the month following the month of receipt and agreement by FETL of invoice(s) submitted following the completion of the Agreement (or after performance of the Services). Supplier shall also submit a monthly statement of invoice without which payment cannot be made.
6.2 In making payment, FETL shall be entitled to deduct from the price:
6.2.1 any expenses incurred by it due to the inadequate performance of Supplier;
6.2.2 any sums owed to FETL whether under the Agreement or any other agreement between the parties; and
6.2.3 any costs already paid for defective or rejected Deliverables and any costs already incurred in replacing or remedying defective Services.
6.3 Supplier shall submit invoices to the addresses specified by FETL in a format specified in the Agreement or as otherwise agreed by FETL.
All Deliverables, equipment, materials and supplies provided by Supplier for incorporation into Services shall become the property of FETL upon appropriation of the Services or payment by FETL, whichever is the earlier. Appropriation shall be deemed to have taken place when such Deliverables, equipment, materials or supplies are specifically identified by Supplier for use in incorporation in the Services.
8.1 FETL may, at its reasonable discretion, make changes to the details specified in the Agreement by written or oral instruction to Supplier. If any such change affects the time of performance or delivery, or the costs involved, the parties shall agree an equitable adjustment to the performance schedule or price.
8.2 FETL may cancel any individual Order at any time prior to the performance of the Services under the terms of the Agreement. FETL shall in such an event pay Supplier the value to the extent which the Services and Deliverables have been provided.
8.3 Supplier shall not make changes in the design or composition or specification of any Services without FETL’s prior written consent.
9. Intellectual Property Rights
9.1 All Intellectual Property Rights connected with the Services and Deliverables coming into existence during the course of the Agreement shall be assigned with full title guarantee and free from all third party rights by Supplier to FETL without cost.
9.2 Supplier shall indemnify and hold FETL harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses whether of a direct, indirect or consequential nature), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, FETL as a result of or in connection with any alleged or actual infringement of any third party’s Intellectual Property Rights or other rights arising out of the use or supply of the Services and Deliverables.
9.3 Supplier shall, promptly at FETL’s request, do (or procure to be done) all further acts and things and the execution of all such other documents as FETL may from time to time require for the purpose of securing for FETL the full benefit of the Agreement, including all right, title and interest in and to the Intellectual Property Rights connected with the Services and Deliverables.
9.4 Supplier may only use FETL’s Intellectual Property Rights in accordance with FETL’s guidelines and only as required for the provision of the Services under the Agreement. Supplier may not combine FETL’s Intellectual Property Rights with other Intellectual Property Rights without the prior written permission of FETL.
10.1 Subject to Clause 10.1, each party shall (and shall ensure its employees, contractors and agents):
10.1.1 preserve and cause its personnel to preserve the confidentiality of the Confidential Information;
10.1.2 not use the Confidential Information for any purpose otherwise than for the purpose of the Agreement or Order unless expressly authorised by the other in writing in advance; and
10.1.3 not disclose any information to any third party without the other’s prior written consent.
10.2 Clause 10.1 shall not apply to any information which the receiving party can demonstrate by documentary evidence:
10.2.1 prior to receipt from the disclosing party was in the possession of the recipient party as evidenced by written records;
10.2.2 is subsequently disclosed to the recipient party without any obligations of confidence by a third party who has not derived it directly or indirectly from the disclosing party;
10.2.3 is or becomes generally available to the public through no act or default of the recipient party or its employees, agents, contractors or sub-contractors; or
10.2.4 is required by law or a court or other competent authority to be disclosed.
11. Data Protection
11.1 Each party agrees that, in the performance of its respective obligations under this Contract, it shall comply with the provisions of the Data Protection Act 1998 (the ‘Act’) to the extent it applies to each of them. Where used in this Clause, the expressions ‘process‘, ‘Personal Data’, ‘Data Processor’ and ‘Data Subject’” shall bear their respective meanings given in the Act.
11.2 Supplier is acting as a Data Processor in providing the Services and where processing Personal Data within the European Economic Area, the following provisions shall apply:
11.2.1 Supplier undertakes that it shall process the Personal Data strictly in accordance with these terms and conditions and FETL’s instructions from time to time or unless otherwise required by law or any other regulatory body;
11.2.2 Supplier shall ensure that only such of its employees who may be required by Supplier;
11.2.3 to assist it in meeting its obligations under these terms and conditions shall have access to the personal data. Supplier shall ensure that all employees used by it to provide the Services have undergone training in data protection and in the care and handling of Personal Data;
11.2.4 Supplier shall ensure appropriate operational and technical measures are in place to safeguard against any unauthorised access, loss, destruction, theft, use or disclosure of the Personal Data belonging to FETL;
11.2.5 Supplier agrees to notify FETL in the event that it receives a request or notice from a Data Subject exercising his rights under the Act and to assist the relevant party promptly with all subject access requests which may be received from Data Subjects;
11.2.6 Supplier will not disclose Personal Data to, or appoint a sub-processor which is, a third party other than with the prior written agreement of FETL;
11.2.7 Supplier shall promptly carry out any request from FETL requiring Supplier to amend, transfer or delete the Personal Data or any part of the Personal Data;
11.2.8 on expiry or termination of the Agreement, Supplier shall immediately cease to use the Personal Data and shall arrange for its safe return or destruction a shall be agreed with FETL at the relevant time;
11.2.9 Supplier shall notify FETL immediately upon receiving any notice or communication from any Data Subject, Regulatory Authority (including the Office of the Information Commissioner) which relates directly or indirectly to the processing of the Personal Data under the Agreement;
11.2.10 if any Personal Data in the possession or control of Supplier become lost, corrupted or rendered unusable for any reason, Supplier shall promptly restore such Personal Data using its back up and/or disaster recovery procedures at no cost to FETL; and
11.2.11 Supplier shall not and will ensure that its subcontractors shall not, under any circumstances transfer the Personal Data outside the European Economic Area unless authorised in writing to do so by FETL.
11.3 Supplier hereby full indemnifies and hold harmless FETL in respect of any and all costs, liabilities, expenses and losses (including legal and other professional advisers’ fees) arising out of or in connection with any breach of Supplier’s obligations under this clause.
12.1 Any notice given under this Clause shall take effect forthwith upon receipt, unless otherwise stated in the Agreement or unless it indicates that it is to be effective at a later date, in which case it will take effect upon that date.
12.2 FETL will be entitled to terminate the Agreement (in whole or in part) at any time prior to the completion of the Services, by giving no less than three months written notice to Supplier, without incurring any liability other than to reasonably compensate for Services performed prior to the time of notice.
12.3 FETL will be entitled to terminate the Agreement (in whole or in part) without liability to Supplier at any time by giving written notice if Supplier is in breach of any of its obligations under the Agreement and for breaches which are redeemable, shall not have remedied the breach within 30 days of receiving written notice of the breach from FETL.
12.4 Either party will be entitled to terminate the Agreement forthwith in the event the other becoming bankrupt or insolvent or making a composition or arrangement with its creditors or a winding-up order being made or a Liquidator, Receiver, Administrator or Manager of its business or undertaking being appointed, or presenting a petition or having a petition presented applying for an administration order to be made pursuant to Section 9 of the Insolvency Act 1986, or possession being taken by or on behalf of the holders of any debenture secured by a floating charge, or equivalent act or thing should be done or suffered under any particular law, or being an individual, dies.
12.5 Upon notice of termination given under this Clause 12 becoming effective, Supplier shall immediately:-
12.5.1 cease performance of the Services; and
12.5.2 deliver to FETL all information and material belonging to or provided by FETL.
12.6 On termination of the Agreement for any reason the accrued rights and duties of the parties at termination shall not be affected. The Clauses which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
13.1 Nothing in the Agreement shall exclude either party’s liability for death or personal injury caused by negligence or for fraudulent misrepresentation.
13.2 Subject to clause 13.1, neither party shall be liable for consequential loss which shall include, but not be limited to, loss of use of property, business interruption, loss of profit or anticipated profit, loss of revenue and loss of production.
13.3 Subject to clauses 13.1 and 13.2, and except in respect of any indemnities (in respect of which Supplier’s liability shall not be limited), Supplier’s maximum aggregate liability to FETL for all claims arising out of or in connection with this Agreement, whether in contract, tort or otherwise, shall be limited to 150 per cent of amounts paid or payable by FETL to Supplier under the Agreement.
13.4 Subject to clauses 13.1 and 13.2, and without prejudice to FETL’s obligation to pay the price set out in the Order, FETL’s maximum aggregate liability to Supplier for all claims arising out of or in connection with this Agreement, whether in contract, tort or otherwise, shall be limited to the amounts paid or payable by FETL to Supplier under the Agreement.
Supplier shall procure and maintain for the duration of the Agreement the adequate insurance policies including, as appropriate, employers liability, public liability, profession indemnity and third party liability insurance. Supplier shall, on request, provide evidence of such insurance and the payment of premiums to FETL.
15.1 Supplier shall not:
15.1.1 commit any offences under the Bribery Act 2010;
15.1.2 offer or give, or agree to give, to any employee, agent or representative of FETL any gift or consideration of any kind which could act as an inducement or reward for doing, refraining from doing, or for having done or refrained from doing, any act or for showing or refraining from showing favour or disfavour to any person; or
15.1.3 provide or agree to provide any commission or incentive to any employee, agent or representative of FETL, unless the particulars of any such commission or incentive scheme have been set out and agreed in writing by a statutory Director of FETL.
15.2 If Supplier, or any person acting on Supplier’s behalf, breaches this clause, FETL shall be entitled to terminate the Agreement with immediate effect in accordance with Clause 12 (Termination).
16.1 No variation or addition to the Agreement shall be binding unless agreed in writing by an authorised representative of both FETL and Supplier.
16.2 Except in relation to procurement of minor materials and components, Supplier shall not subcontract or assign transfer or delegate any of its rights or obligations under the Agreement or any part of it without first obtaining the written consent of FETL. If any such consent is given it shall not relieve Supplier from any obligation under the Agreement and Supplier shall be responsible for all acts and defaults of any subcontractor, assignee, transferee or delegate as if they were the acts or defaults of Supplier.
16.3 In the event of Force Majeure, the party whose performance of the Agreement is affected shall notify the other party as soon as is reasonably practicable giving the full relevant particulars of the occurrence and shall use reasonable efforts to remedy the situation immediately. If the performance by Supplier of its obligations under the Agreement is prevented, hindered or delayed by any Force Majeure circumstances for a period of 1 month or more FETL may at this absolute discretion terminate the Agreement (in whole or in part).
16.4 If any term or provision of the Agreement shall be held illegal, invalid or unenforceable it will, to that extent apply with the minimum modification necessary to make it legal, valid and enforceable and the validity or enforceability of the remainder of this Agreement shall not be affected unless the illegal, invalid or unenforceable term or provision or part of the Agreement is of such a fundamental nature that the parties would not have concluded this Agreement had they known that such a term or provision or part of the Agreement would be illegal, invalid or unenforceable
16.5 All communications relating to this Agreement shall be in writing and delivered by hand or sent by registered post, facsimile or e-mail to the party concerned at the relevant address shown in the Order (or such other address as may be notified from time to time) in accordance with this Clause by the relevant party to the other party. Any such communication shall take effect, if delivered, upon delivery, if sent by first class registered post, 10.00am, on the second working day after posting, if sent by facsimile, when a completed and legible copy of the communication, whether a hard copy sent by post or delivered by hand, has been received at the appropriate address or if sent by e-mail, then on successful submission of such email.
16.6 The Agreement and any non-contractual obligations arising out of or in connection with it shall be governed and construed in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.
16.7 All provisions of the Agreement and the exercise of rights thereunder are without prejudice to FETL’s rights and remedies pursuant to common law, statute or otherwise.
16.8 Failure or delay by FETL in enforcing or partially enforcing any provision of the Agreement shall not be construed as a waiver of any of its rights under the Agreement.
16.9 Any waiver by FETL of any breach of, or any default under, any provision of the Agreement by Supplier shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Agreement.
16.10 The headings are included for convenience only and shall not affect the interpretation of the Agreement.
16.11 Nothing in this Agreement shall confer any rights upon any person who is not a party to this Agreement unless expressly provided.