Hafod standard terms and conditions for goods and services

Hafod Standard Terms and Conditons for Goods and Services.  By accepting an Order the Supplier agrees that they have read, understood and accepts these Conditions.

1.1 In these Conditions the following definitions apply:

1.2 In these Conditions, unless the context otherwise requires:

1.2.1 a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);

1.2.2 any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions;

1.2.3 a reference to a ‘party’ means either the Supplier or Hafod and includes that party’s personal representatives, successors and permitted assigns;

1.2.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

1.2.5 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

1.2.6 a reference to a gender includes each other gender;

1.2.7 words in the singular include the plural and vice versa;

1.2.8 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.2.9 a reference to ‘writing’ or ‘written’ includes e-mail and any method of reproducing words in a legible and non-transitory form

1.2.10 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time; and

1.2.11 a reference to legislation includes all subordinate legislation made from time to time under that legislation.

2.1 These Conditions apply to and form part of the Contract between the Supplier and Hafod. They supersede any previously issued terms and conditions of purchase or supply.

2.2 No terms or conditions endorsed on, delivered with, or contained in the Supplier’s quotation, sales conditions, confirmation of order, specification or other document shall form part of the Contract except to the extent that Hafod otherwise agrees in writing.

2.3 No variation of these Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of Hafod and the Supplier respectively.

2.4 Each Order by Hafod to the Supplier shall be an offer to purchase Deliverables subject to the Contract including these Conditions.

2.5 An Order may be withdrawn or amended by Hafod at any time before acceptance by the Supplier.

2.6 Acceptance of an Order by the Supplier shall occur when it is expressly accepted by the Supplier or by any other conduct of the Supplier which Hafod reasonably considers is consistent with acceptance of the Order.

3.1 The price for the Deliverables shall be as set out in the Order (Price).

3.2 All Prices are fixed and the Price includes all packaging, delivery, unloading, unpacking, shipping, carriage, insurance and all other charges or taxes related to the Goods and/or Services.

4.1 The Supplier shall invoice Hafod for: (a) the Goods on or after the completion of delivery of the Goods or, if later, Hafod’s acceptance of the Goods, (b) Services on or after the completion of performance of the Services or, if later, the completion of the Acceptance Conditions.

4.2 Hafod shall pay each validly submitted and undisputed invoice of the Supplier within 30 days of receipt.

4.3 Without prejudice to any other remedy, Hafod shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Supplier in accordance with clause 30.1.

4.4 Time of payment is not of the essence. Where sums due under the Contract are not paid in full by the due date, to compensate the Supplier for all loss from Hafod’s breach, Hafod shall pay on the sum overdue interest (before and after judgment) on a daily basis until payment in full at the rate of 3 per cent per annum above the Official Bank Rate from time to time of the Bank of England. The Supplier acknowledges that this is a substantial remedy for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998.

4..5 VAT shall be charged by the Supplier and paid by Hafod at the applicable rate at the time the invoice was issued.

5.1 Hafod shall have the right to cancel the Order for the Deliverables or for any part of the Deliverables which have not yet been, in the case of Goods, delivered to, and in the case of Services, performed for, Hafod.

5.2 In relation to any Order cancelled or part-cancelled under clause 5.1, on receipt of validly issued and properly documented evidence, Hafod shall pay for:

5.2.1 in respect of any Goods, that part of the price which relates to the Goods which at the time of cancellation have been delivered to Hafod; and

5.2.2 in respect of any Goods, the costs of materials which the Supplier has purchased to fulfil the Order for the Goods which cannot be used for other orders or be returned to the Supplier’s supplier of those materials for a refund; and

5.2.3 in respect of any Services, that part of the Price that relates to the Services which, at the time of cancellation have been paid for or contractually committed by the Supplier and cannot be cancelled.

5.3 To the maximum extent possible, the Supplier shall mitigate all costs relating to the Order immediately upon receipt of cancellation under this clause 5.

6.1 The Goods shall be delivered by the Supplier, or its nominated carrier, to the Location on the date(s) specified in the Order.

6.2 The Goods shall be deemed delivered on completion of unloading only of the Goods at the Location by the Supplier or its nominated carrier (as the case may be).

6.3 The Services shall be performed by the Supplier at the Location on the date(s) specified in the Order.

6.4 The Services shall be deemed performed on confirmation of completion of the Acceptance Conditions by Hafod in writing.

6.5 The Goods shall not be delivered and the Services shall not be performed in instalments unless otherwise specified in the Order.

6.6 Each delivery of Goods or performance of the Services shall be accompanied by a delivery note stating:

6.6.1 the date of the Order;

6.6.2 the relevant Hafod and Supplier details;

6.6.3 if Goods, the product numbers and type and quantity of Goods in the delivery;

6.6.4 if Services, the category, type and quantity of Services performed;

6.6.5 any special instructions, handling and other requests;

6.6.6 in the case of Services, details of the Supplier Personnel performing the Services;

6.6.7 in the case of Goods, whether any packaging material is to be returned, in which case Hafod shall, after the Goods are unpacked, make them available for collection by the Supplier at the Supplier’s expense for a period not exceeding 5 Business Days; and

6.6.8 any additional information requested by Hafod as set out in the Order.

6.7 Time of delivery or performance (as the case may be) is of the essence. If the Supplier fails to deliver any of the Goods or perform any of the Services by the date specified in the Order, Hafod shall (without prejudice to its other rights and remedies) be entitled at Hafod’s sole discretion:

6.7.1 to terminate the Contract in whole or in part;

6.7.2 to purchase the same or similar Deliverables from another supplier;

6.7.3 to refuse to accept the delivery or performance (as the case may be) of any more Deliverables under the Contract;

6.7.4 to recover from the Supplier all costs and losses resulting to Hafod from the failure in performance or delivery (as the case may be), including the amount by which the price payable by Hafod to acquire those Deliverables from another supplier exceeds the price payable under the Contract and any loss of profit; and

6.7.5 all or any of the foregoing.

6.8 If Hafod is unable or opts not to accept delivery of the Goods on the date or within the period set out in the Order, the Supplier shall store and insure the Goods pending delivery for no longer than 5 Business Days, and Hafod shall pay reasonable storage charges.

7.1 On the termination or expiry of the Contract (in part or otherwise) (the “Transfer Date”), the identity of the provider of the Deliverables (or any part of the Deliverables) may change resulting in a transfer of the Deliverables in whole or in part (a “Service Transfer”). The parties recognise that such a Service Transfer may be a Relevant Transfer. However, the Supplier agrees to manage or will procure that the provision of the Deliverables are managed so that, upon a Service Transfer, there are no individuals who would be regarded as assigned to the Deliverables (or any part of the Deliverables)  for the purposes of TUPE.

7.2  Without prejudice to clause 7.1 however, should any person (Unexpected Person) transfer or allege (or it is determined by a court of competent jurisdiction) that his or her employment has been transferred to Hafod or any Future Supplier pursuant to TUPE  (or if it is claimed or determined that their employment would have so transferred had they not resigned or had their employment not been terminated) then

7.2.1 the Supplier shall indemnify and keep indemnified, Hafod and any Future Supplier in respect of any Employment Liabilities suffered by Hafod or any Future Supplier resulting from:

(a) any act or omission by the Supplier (or any subcontractor of the Supplier) on or before the Transfer Date or any other matter, event or circumstances occurring before the Transfer Date in relation to such Unexpected Person; and

(b) any failure to comply with TUPE (including failure to comply with Regulation 13) by the Supplier (or its subcontractors).

7.2.2 Hafod or any Future Supplier shall be entitled (but not obliged) to terminate the employment of such Unexpected Person and provided the employment of such Unexpected Person is terminated or notice to terminate their employment is issued within 4 months of either the Transfer Date or the date on which Hafod or the Future Supplier become aware of such Unexpected Person, whichever is the later, the Supplier  shall indemnify and keep indemnified Hafod and/or any Future Supplier (as the case may be) against:

(a) all Employment Liabilities suffered by Hafod or any Future Supplier arising out of such termination or otherwise arising out of the employment of such Unexpected Person by the Supplier (or any subcontractor of the Supplier); and

(b) any and all employment costs associated with the employment of such Unexpected Person by Hafod or any Future Supplier up to the date of termination of such Unexpected Person’s employment.

8.1 The Supplier shall ensure that all potential staff or persons performing any of the Services who may reasonably be expected in the course of performing any of the Services under the Contract to have access to or come into contact with children or other vulnerable persons and/or have access to or come into contact with persons receiving health care services:

8.1.1 are questioned concerning their Convictions; and

8.1.2 obtain appropriate disclosures from the Disclosure and Barring Service (or other appropriate body) as required by Applicable Law and/or the Mandatory Policies before the Supplier engages the potential staff or persons in the provision of the Services.

8.2 The Supplier shall take all necessary steps to ensure that such potential staff or persons obtain standard and enhanced disclosures from the Disclosure and Barring Service (or other appropriate body) and shall ensure all such disclosures are kept up to date. The obtaining of such disclosures shall be at the Supplier’s cost and expense.

8.3 The Supplier shall ensure that no person is employed or otherwise engaged in the provision of the Services without Hafod’s prior written consent if:

8.3.1 the person has disclosed any Convictions upon being questioned about their Convictions in accordance with Clause 8.1.1;

8.3.2 the person is found to have any Convictions following receipt of standard and/or enhanced disclosures from the Disclosure and Barring Service (or other appropriate body) in accordance with Clause 8.1.2; or

8.3.3 the person fails to obtain standard and/or enhanced disclosures from the Disclosure and Barring Service (or other appropriate body) upon request by the Supplier in accordance with Clause 8.1.2.

8.4 In addition to the requirements of Clause 8.1 to Clause 8.3, where the Services are or include regulated activities as defined by the Safeguarding Vulnerable Groups Act 2006 the Supplier:

8.4.1 warrants that it shall comply with all requirements placed on it by the Safeguarding Vulnerable Groups Act 2006;

8.4.2 warrants that at all times it has and will have no reason to believe that any of the Supplier’s Personnel is barred in accordance with the Safeguarding Vulnerable Groups Act 2006; and

8.4.3 shall ensure that no person is employed or otherwise engaged in the provision of the Services if that person is barred from carrying out, or whose previous conduct or records indicate that they would not be suitable to carry out, any regulated activities as defined by the Safeguarding Vulnerable Groups Act 2006 or may present a risk to service users or any other person.

8.5 The Supplier shall ensure that Hafod is kept advised at all times of any of the Supplier Personnel who, subsequent to their commencement of employment as Supplier Personnel receives a Conviction or whose previous Convictions become known to the Supplier or whose conduct or records indicate that they are not suitable to carry out any regulated activities as defined by the Safeguarding Vulnerable Groups Act 2006 or may present a risk to service users or any other person. The Supplier shall only be entitled to continue to engage or employ such Supplier Personnel with Hafod ‘s written consent and with such safeguards being put in place as Hafod may reasonably request. Should Hafod withhold consent the Supplier shall remove such Supplier Personnel from the provision of the Services forthwith.

8.6 The Supplier shall immediately provide to Hafod any information that Hafod reasonably requests to enable Hafod to satisfy itself that the obligations set out in Clause 8.1 to Clause 8.5 have been met.

8.7 Hafod may at any time request that the Supplier remove and replace any of the Supplier Personnel from the provision of the Services, provided always that Hafod will act reasonably in making such a request.

9.1 Hafod shall not have accepted, or be deemed to have accepted, the Deliverables until the Acceptance Conditions are fulfilled and Hafod has notified confirmation of such to the Supplier in writing.

9.2 The Acceptance Conditions are that:

9.2.1 for Goods, the Goods and delivery note have been delivered to or at the Location;

9.2.2 for Services, the Services have been performed at the Location; and

9.2.3 all pre-delivery and post-delivery acceptance tests and inspections have been completed to the satisfaction of Hafod at its sole discretion acting reasonably;

9.2.4 Hafod has notified the Supplier in writing that the Deliverables have been delivered or performed (as the case may be) in full compliance with the Order and the Conditions of the Contract including this clause 9.

9.3 Hafod shall be entitled to reject any Deliverables which are not in full compliance with the terms and conditions of the Contract. Any acceptance of defective, late or incomplete Deliverables or any payment made in respect thereof, shall not constitute a waiver of any of Hafod’s rights and remedies, including its right to reject.

9.4 If the Goods are rejected due to the volume of the Goods exceeding the tolerances (if any) specified in the Order, the Supplier shall promptly and at its own cost arrange for redelivery of the correct volume.

9.5 Any rejected Goods may be returned to the Supplier by Hafod at the Supplier’s cost and risk. The Supplier shall pay to Hafod a reasonable charge for storing and returning any of the Goods over-delivered or rejected.

9.6 Hafod may require pre-delivery and/or post-delivery acceptance tests to be performed or to be carried out, at Hafod’s option, either by Hafod or the Supplier, and the results of the tests shall be made available to Hafod.

9.7 Hafod may inspect and test the Deliverables during performance or during manufacture or processing prior to despatch, and the Supplier shall provide Hafod with access to and use of all facilities reasonably required.

9.8 Any inspection or testing of the Deliverables shall not be deemed to be acceptance of the Deliverables or a waiver of any of Hafod’s other rights and remedies, including its right to reject.

9.9 The rights of Hafod in this clause 9 are without prejudice to Hafod’s other rights and remedies under the Contract including under clause 12.

10.1 Risk in the Goods shall pass to Hafod on the later of:

10.1.1 delivery of the Goods to Hafod as set out in clause 6; or

10.1.2 Hafod’s acceptance of the Goods as set out in clause 9.

10.1.3 The Supplier shall unload the Goods in accordance with Hafod’s directions and at the Supplier’s risk.

10.2 Title to the Goods shall pass to Hafod on the sooner of:

10.2.1 payment by Hafod for the Goods under clause 4; or

10.2.2 delivery of the Goods to Hafod under clause 6.

10.3 The passing of title shall not prejudice any other of Hafod’s rights and remedies, including its right to reject.

10.4 Neither the Supplier, or any other person, shall have a lien on, right of stoppage in transit or other rights in or to any Goods title to which have vested in Hafod or any specifications or materials of Hafod, and the Supplier shall ensure that relevant third parties accept the exclusion of such lien and rights.

10.5 The Supplier warrants and represents that it:

10.5.1 has at the time the Contract is made full, clear and unencumbered title to the Goods, and the full, clear and unencumbered right to sell and deliver them to Hafod; and

10.5.2 shall hold such title and right to enable it to ensure that Hafod shall acquire a valid, unqualified title to the Goods and shall enjoy quiet possession of them.

11.1 The Supplier shall keep and maintain for six years after the date of termination or expiry (whichever is the earlier) of the Contract (or as long a period as may be agreed between the parties), full and accurate records and accounts of the operation and the charges paid by Hafod under the Contract.

11.2 The Supplier shall keep the records and accounts referred to in clause 11.1 above in accordance with good accountancy practice.

11.3 The Supplier shall afford Hafod and / or the Auditor such access to such records and accounts as may be required from time to time.

11.4 The Supplier shall provide such records and accounts (together with copies of the Supplier’s published accounts) for the duration of the Contract and for a period of six (6) years after expiry of the Contract to the Auditor and Hafod (as required).

11.5 The Supplier shall on demand provide the Auditor with all reasonable co-operation and assistance in relation to each audit including:

11.5.1 all information requested by the Auditor within the scope of the audit; and

11.5.2 access to the Supplier’s Personnel.

11.6 The parties agree that they shall bear their own respective costs and expenses incurred in respect of compliance with their obligations under this clause 11.

11.7 Without prejudice to this clause 11, the Supplier shall permit or procure permission for Hafod’s authorised representatives to access, on 28 days’ notice, any premises, facilities, staff, policies, records and other documentation reasonably required by Hafod to audit and review the Supplier’s compliance with its obligations under the Contract (Contract Audit). The Supplier must make available a senior manager to assist and coordinate the Contract Audit.

12.1 The Supplier warrants and represents that it shall:

12.1.1 have all consents, licences and authorisations necessary to deliver and perform the Deliverables;

12.1.2 provide high quality Documentation for the Deliverables;

12.1.3 ensure compliance and fulfilment of its obligations in accordance with the Order and the Contract;

12.1.4 observe, and ensure that the Supplier Personnel observe all health and safety rules and regulations and any other security requirements that apply at any of Hafod’s premises including the Location;

12.1.5 comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the delivery and performance of the Deliverables, and with the Mandatory Policies;

12.1.6 ensure that the Supplier Personnel use reasonable skill and care in the delivery and performance of the Deliverables;

12.1.7 keep Hafod fully informed of all activities concerning the Deliverables and provide Hafod with activity reports on request;

12.1.8 conduct such tests, including pre-delivery and post-delivery acceptance tests and inspections, in relation to the Deliverables prior to delivery or performance as Hafod may require at its sole discretion acting reasonably;

12.2 The Supplier warrants and represents that, the Deliverables shall for a period of 12 months from acceptance (the Warranty Period):

12.2.1 conform to any sample, and to the quality and description of the Specification;

12.2.2 be free from defects in design, material and workmanship;

12.2.3 comply with all Applicable Laws, standards and best industry practice;

12.2.4 if Goods, be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

12.2.5 if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13;

12.2.6 be fit for purpose and any purpose held out by the Supplier and set out in the Order and as otherwise required to meet Hafod’s needs; and

12.2.7  any media on which the results of the Services are supplied shall be free from defects in material and workmanship and of satisfactory quality within the meaning of the Sale of Goods Act 1979.

12.3 The Supplier agrees that the approval by Hafod of any design or Specification provided by the Supplier shall not relieve the Supplier of any of its obligations under this clause 12.

12.4 The Supplier warrants that it understands Hafod’s business and needs.

12.5 Hafod may reject any Deliverables that do not comply with clause 12.2 and the Supplier shall, at Hafod’s option, promptly remedy, repair, replace, correct, re-perform or refund the price of any such Deliverables provided that Hafod serves a written notice on the Supplier within the Warranty Period that some or all of the Deliverables do not comply with clause 12.2.

12.6 The provisions of these Conditions shall apply to any Deliverables that are remedied, repaired, replaced, corrected or re-performed with effect from the date of the acceptance of the remedied, repaired, replaced, corrected or re-performed Deliverables.

12.7 Hafod’s rights under these Conditions are in addition to, and do not exclude or modify, the rights and conditions contained in the Supply of Goods and Services Act 1982, s 12 to 16 and the Sale of Goods Act 1979, s 13 to 15.

12.8 Hafod shall be entitled to exercise its rights under clause 12 regardless of whether the Deliverables have been accepted under the Acceptance Conditions and notwithstanding that the Deliverables were not rejected following their initial inspection under clause 9.3.

13.1 For the purposes of this clause 13 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.

13.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and ensure that:

13.2.1 all of that party’s personnel;

13.2.2 all others associated with that party; and

13.2.3 all of that party’s subcontractors;

13.2.4 involved in performing the Contract so comply.

13.3 Without limitation to clause 13.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.

13.4 The Supplier shall immediately notify Hafod as soon as it becomes aware of a breach or possible breach by Hafod of any of the requirements in this clause 13.

13.5 Any breach of this clause 13 by the Supplier shall be deemed a material breach of the Contract that is not remediable and shall entitle Hafod to immediately terminate the Contract by notice under clause 22.1.1.

14.1 The Supplier undertakes, warrants and represents that:

14.1.1 neither the Supplier nor any of its officers, employees, agents or subcontractors has:

(a) committed an offence under the Modern Slavery Act 2015 (a MSA Offence); or

(b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or

(c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;

14.1.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;

14.1.3 its responses to Hafod’s modern slavery and human trafficking due diligence questionnaire are complete and accurate; and

14.1.4 it has implemented due diligence procedures to ensure compliance with the Modern Slavery Act 2015 and the Modern Slavery Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to Hafod on request at any time throughout the Contract;

14.1.5 it shall notify Hafod immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or sub-contractors have breached or potentially breached any of the Supplier’s obligations under clause 14.1. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Supplier’s obligations.

14.2 Any breach of clause 14.1 by the Supplier shall be deemed a material breach of the Contract and shall entitle Hafod to terminate the Contract pursuant to clause 22.1.1 with immediate effect.

15.1 The Supplier shall indemnify, and keep indemnified, Hafod from and against any losses, damages, liability, costs (including legal fees) and expenses which Hafod may suffer or incur directly or indirectly from as a result of any:

15.1.1 alleged or actual infringement by the Supplier of a third party’s Intellectual Property Rights or other rights in connection with the supply or performance or manufacture of the Deliverables under the Contract (IPR Claim);

15.1.2 claim made against Hafod in respect of any losses, damages, liability, costs and expenses sustained by the employees or agents or any customer of Hafod or any third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Deliverables or from a direct or indirect breach or negligent performance or failure or delay in performance of the Contract by the Supplier;

15.1.3 defects in materials, quality, workmanship or performance of the Deliverables.

15.2 If any IPR Claim is made or is reasonably likely to be made against Hafod, the Supplier shall promptly and at its own expense either:

15.2.1 procure for Hafod the right to continue using and possessing the relevant Intellectual Property Rights; or

15.2.2 modify or replace the infringing part of the Intellectual Property Rights and without adversely affecting the functionality of the Intellectual Property Rights as set out in the Contract so as to avoid the infringement or alleged infringement,

15.2.3 provided that if, having used reasonable endeavours, neither of the above can be accomplished on reasonable terms, the Supplier shall (without prejudice to the indemnity above) refund the price paid by Hafod in respect of the affected Intellectual Property Rights.

15.3 During the term of the Contract and for a period of 6 (six) years thereafter, the Supplier shall maintain in force the following insurance policies with reputable insurance companies:

15.3.1 public liability insurance with a limit of at least £5 million a claim;

15.3.2 employer’s liability insurance with a limit of at least £5 million for claims arising from a single event or series of related events in a single calendar year,

15.3.3 where the Supplier delivers Goods, product liability insurance with a limit of at least £5 million for claims arising from a single event or series of related events in a single calendar year; and

15.3.4 where the Supplier performs Services, professional indemnity insurance with a limit of at least £1 million for claims arising from a single event or series of related events in a single calendar year;

(the Required Insurances).

15.4 On taking out and on renewing each policy, the Supplier shall promptly send Hafod a copy of the receipt for the premium and copies of the insurance policy certificates and details of the cover provided.

15.5 The Supplier shall ensure that any subcontractors also maintain adequate insurance having regard to their obligations under the Contract.

15.6 The Supplier shall notify Hafod if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change.

15.7 If, for whatever reason, the Supplier fails to give effect to and maintain the Required Insurances, Hafod may make alternative arrangements to protect its interests and may recover the costs of such arrangements from the Supplier.

15.8 The Supplier’s liabilities under the Contract shall not be deemed to be released or limited by the Supplier taking out the insurance policies referred to in clause 15.3.

16.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 16.

16.2 Subject to clause 16.6, Hafod’s total liability shall not exceed the sum of £25,000.00.

16.3 Subject to clause 16.6, Hafod shall not be liable for consequential, indirect or special losses.

16.4 Subject to clause 16.6, Hafod shall not be liable for any of the following (whether direct or indirect):

16.4.1 loss of profit;

16.4.2 loss of or corruption to data;

16.4.3 loss of use;

16.4.4 loss of production;

16.4.5 loss of contract;

16.4.6 loss of opportunity;

16.4.7 loss of savings, discount or rebate (whether actual or anticipated);

16.4.8 harm to reputation or loss of goodwill.

16.5 Notwithstanding clauses 16.3 and 16.4, and without limiting the Hafod’s entitlement to recover other types of loss, the parties agree that Hafod may recover the following from the Supplier as direct loss:

16.5.1 the cost of selecting, procuring, installing and testing replacement goods or services;

16.5.2 wasted expenditure or unnecessary charges incurred by Hafod (including regulatory fines);

16.5.3 liability to third parties (including customers); and

16.5.4 the cost of rectifying lost or damaged data.

16.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:

16.6.1 death or personal injury caused by negligence;

16.6.2 fraud or fraudulent misrepresentation;

16.6.3 any other losses which cannot be excluded or limited by Applicable Law;

16.6.4 in respect of any indemnities given by the Supplier under the Contract.

16.6.5 any losses caused by wilful misconduct.

17.1 All Specifications provided by Hafod and all Intellectual Property Rights in the Deliverables made or performed in accordance with such Specifications shall vest in and remain at all times the property of Hafod and such Specifications may only be used by the Supplier as necessary to perform the Contract. The Supplier assigns (or shall procure the assignment) to Hafod absolutely, with full title guarantee, all right, title and interest in any such Intellectual Property Rights, and the Supplier shall do all such things and sign all documents necessary in Hafod’s opinion to so vest all such Intellectual Property Rights in Hafod, and to enable Hafod to defend and enforce such Intellectual Property Rights.

18.1 The Supplier shall keep confidential all Confidential Information of Hafod and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:

18.1.1 subject to clause 18.4, any information which was in the public domain at the date of the Contract;

18.1.2 subject to clause 18.4, any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;

18.1.3 subject to clause 18.4, any information which is independently developed by the Supplier without using information supplied by Hafod; or

18.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.

18.2 This clause shall remain in force for a period of 5 years from the date of the Contract and, if longer, 3 years after termination of the Contract.

18.3 Subject to clause 18.4, the Supplier shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.

18.4 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with the provisions of clause 19.

19.1 Unless otherwise expressly stated in the Contract:

19.1.1 the Supplier’s obligations and Hafod’s rights and remedies under this clause 19 are cumulative with, and additional to, any other provisions of the Contract; and

19.1.2 this clause 19 shall prevail over any other provision of the Contract in the event of any conflict.

19.2 The parties agree that Hafod is a Controller and that the Supplier is a Processor for the purposes of processing Protected Data pursuant to the Contract. Part A of the Schedule sets out the subject matter and duration of the processing, the type of Personal Data and categories of Data Subjects.

19.3 The Supplier shall, and shall ensure its Sub-Processors and each of the Supplier Personnel shall, at all times comply with all Data Protection Laws in connection with the processing of Protected Data and the provision of the Deliverables and shall not by any act or omission cause Hafod (or any other person) to be in breach of any of the Data Protection Laws. Nothing in the Contract relieves the Supplier of any responsibilities or liabilities under Data Protection Laws.

19.4 The Supplier shall indemnify and keep indemnified Hafod against:

19.4.1 all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, sanctions, expenses, compensation paid to Data Subjects (including compensation to protect goodwill and ex gratia payments), demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, the Information Commissioner) arising out of or in connection with any breach by the Supplier of its obligations under this clause 19; and

19.4.2 all amounts paid or payable by Hafod to a third party which would not have been paid or payable if the Supplier’s breach of this clause 19 had not occurred.

19.5 The Supplier shall only process (and shall ensure Supplier Personnel only process) the Protected Data in accordance with clause 19, the Contract and Hafod’s written instructions from time to time (including when making any transfer to which clause 19.10 relates) except where otherwise required by Applicable Law (and in such a case shall inform Hafod of that legal requirement before processing, unless Applicable Law prevents it doing so on important grounds of public interest). The Supplier shall immediately inform Hafod if any instruction relating to the Protected Data infringes or may infringe any Data Protection Laws. The Supplier shall retain records of all instructions relating to the Protected Data received from Hafod.

19.6 The Supplier shall at all times implement and maintain appropriate technical and organisational measures to protect Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

19.7 The Supplier shall:

19.7.1 not permit any processing of Protected Data by any agent, subcontractor or other third party (except its own employees that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the prior specific written authorisation of that Sub-Processor by Hafod and only then subject to such conditions as Hafod may require;

19.7.2 ensure that access to Protected Data is limited to the authorised persons who need access to it to supply the Deliverables;

19.7.3 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a binding written contract containing the same obligations as under this clause 19 in respect of Protected Data that (without prejudice to, or limitation of, the above):

(a) includes providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing of the Protected Data will meet the requirements of all Data Protection Laws; and

(b) is enforceable by the Supplier,

(c) and ensure each such Sub-Processor complies with all such obligations.

19.7.4 remain fully liable to Hafod under the Contract for all the acts and omissions of each Sub-Processor and each of the Supplier Personnel as if they were its own; and

19.7.5 ensure that all persons authorised by the Supplier or any Sub-Processor to process Protected Data are reliable and:

(a) adequately trained on compliance with this clause 19 as applicable to the processing;

(b) informed of the confidential nature of the Protected Data and that they must not disclose Protected Data;

(c) subject to a binding and enforceable written contractual obligation to keep the Protected Data confidential; and

(d) provide relevant details and a copy of each agreement with a Sub-Processor to Hafod on request.

19.8 The Supplier shall (at its own cost and expense):

19.8.1 promptly provide such information and assistance (including by taking all appropriate technical and organisational measures) as Hafod may require in relation to the fulfilment of Hafod’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the UK GDPR (and any similar obligations under applicable Data Protection Laws); and

19.8.2 provide such information, co-operation and other assistance to Hafod as Hafod requires (taking into account the nature of processing and the information available to the Supplier) to ensure compliance with Hafod’s obligations under Data Protection Laws, including with respect to:

(a) security of processing (including with any review of security measures);

(b) data protection impact assessments (as such term is defined in Data Protection Laws);

(c) prior consultation with the Information Commissioner regarding high risk processing; and

(d) any remedial action and/or notifications to be taken in response to any Personal Data Breach and/or any complaint or request relating to either party’s obligations under Data Protection Laws relevant to the Contract, including (subject in each case to Hafod’s prior written authorisation) regarding any notification of the Personal Data Breach to the Information Commissioner and/or communication to any affected Data Subjects.

19.9 The Supplier shall (at no cost to Hafod) record and refer all requests and communications received from Data Subjects or the Information Commissioner to Hafod which relate (or which may relate) to any Protected Data promptly (and in any event within 3 days of receipt) and shall not respond to any without Hafod’s express written approval and strictly in accordance with Hafod’s instructions unless and to the extent required by applicable law.

19.10 The Supplier shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without the prior written authorisation of Hafod (which may be refused or granted subject to such conditions as Hafod deems necessary).

19.11 The Supplier shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of Hafod. Such records shall include all information necessary to demonstrate its and Hafod’s compliance with this clause 19 and the Data Protection Laws, the information referred to in Articles 30(1) and 30(2) of the UK GDPR and such other information as Hafod may reasonably require from time to time. The Supplier shall make copies of such records available to Hafod promptly (and in any event within 3 Business Days on request from time to time.

19.12 The Supplier shall (and shall ensure all Sub-Processors shall) promptly make available to Hafod (at the Supplier’s cost) such information as is required to demonstrate the Supplier’s and Hafod’s compliance with their respective obligations under this clause 19 and the Data Protection Laws, and allow for, permit and contribute to audits, including inspections, by Hafod (or another auditor mandated by Hafod) for this purpose at Hafod’s request from time to time. The Supplier shall provide (or procure) access to all relevant premises, systems, personnel and records during normal business hours for the purposes of each such audit or inspection upon reasonable prior notice (not being more than 2 Business Days) and provide and procure all further reasonable co-operation, access and assistance in relation to any such audit or inspection.

19.13 The Supplier shall promptly (and in any event within 24 hours):

19.13.1 notify Hafod if it (or any of its Sub-Processors or the Supplier Personnel) suspects or becomes aware of any suspected, actual or threatened occurrence of any Personal Data Breach in respect of any Protected Data; and

19.13.2 provide all information as Hafod requires to report the circumstances referred to in clause 19.13.1 to the Information Commissioner and to notify affected Data Subjects under Data Protection Laws.

19.14 The Supplier shall (and shall ensure that each of the Sub-Processors and Supplier Personnel shall) without delay (and in any event within 3 days), at Hafod’s written request, either securely delete or securely return all the Protected Data to Hafod in such form as Hafod reasonably requests after the earlier of:

19.14.1 the end of the provision of the relevant Deliverables related to processing of such Protected Data; or

19.14.2 once processing by the Supplier of any Protected Data is no longer required for the purpose of the Supplier’s performance of its relevant obligations under the Contract,

19.14.3 and securely delete existing copies (except to the extent that storage of any such data is required by applicable law and, if so, the Supplier shall inform Hafod of any such requirement).

19.15 This clause 19 shall survive termination or expiry of the Contract for any reason.

19.16 The Supplier shall perform all its obligations under this clause 19 at no cost to Hafod.

19.17 Nothing in this Contract affects the rights of Data Subjects under Data Protection Laws (including those in Articles 79 and 82 of the UK GDPR or in any similar Data Protection Laws) against Hafod, the Supplier or any Sub-Processor.

20.1 The Supplier shall (and shall procure that the Supplier Personnel shall):

20.1.1 perform its obligations under the Contract in accordance with:

(a) all applicable equality law (whether in relation to race, sex, gender reassignment, age, disability, sexual orientation, religion or belief, pregnancy, maternity or otherwise);

(b) Hafod’s equality and diversity policy as provided to the Supplier from time to time;

(c) any other requirements and instructions which Hafod reasonably imposes in connection with any equality obligations imposed on Hafod at any time under applicable equality law;

20.1.2 take all necessary steps, and inform Hafod of the steps taken, to prevent unlawful discrimination designated as such by any court or tribunal, or the Equality and Human Rights Commission or (any successor organisation); and

20.1.3 at all times comply with the provisions of the Human Rights Act 1998 in the performance of the Contract. The Supplier shall also undertake, or refrain from undertaking, such acts as Hafod requests so as to enable Hafod to comply with its obligations under the Human Rights Act 1998.

21.1 A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:

21.1.1 promptly notifies the other of the Force Majeure event and its expected duration; and

21.1.2 uses best endeavours to minimise the effects of that event.

21.2 If, due to Force Majeure, a party:

21.2.1 is or shall be unable to perform a material obligation; or

21.2.2 is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days or total of more than 30 days in any consecutive period of 60 days;

21.2.3 the other party may, within 30 days, terminate the Contract on immediate notice.

22.1 Without affecting any other right or remedy available to it, Hafod may terminate the Contract at any time by giving notice in writing to the Supplier if:

22.1.1 the Supplier commits a material breach of the Contract and such breach is not remediable;

22.1.2 the Supplier commits a material breach of the Contract which is not remedied within 14 Business Days of receiving written notice of such breach;

22.1.3 any consent, licence or authorisation held by the Supplier is revoked or modified such that the Supplier is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled;

22.1.4 there is a change of Control of the Supplier;

22.1.5 the Supplier stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

22.1.6 the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

22.1.7 the Supplier’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy; or

22.1.8 the Contract has been substantially amended to the extent that the Public Contracts Regulations 2015 require a new procurement procedure.

22.2 Without affecting any other right or remedy available to it, Hafod may terminate the Contract at any time by giving 1 months’ written notice to the Supplier.

22.3 If the Supplier becomes aware that any event has occurred, or circumstances exist, which may entitle Hafod to terminate the Contract under this clause 22, it shall immediately notify Hafod in writing.

22.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

22.5 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of Hafod at any time up to the date of termination.

23.1 All notices which are required to be given under these Conditions must be in writing and sent to:

23.1.1 in the case of Hafod: Procurement Team, St Hilary Court, Copthorne Way, Culverhouse Cross, Cardiff CF5 6ES, procurement@hafod.org.uk and

23.1.2 in the case of the Supplier: name, address and email as set out in the Order.

23.2 Any such notice may be delivered personally, by e-mail, by first class pre-paid letter or recorded delivery, or by commercial courier and shall be deemed to have been received:

23.2.1 if delivered personally, at the time of delivery;

23.2.2 if sent by e-mail, at the time sent, provided that no error report is generated and confirmation by registered post or recorded delivery is sent the same day;

23.2.3 if sent by first class pre-paid letter or recorded delivery, at 9.00 am on the second Working Day after the date of mailing; or

23.2.4 if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

23.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action which shall be governed by rules of court.

24.1 The rights and remedies provided in the Contract for Hafod only are cumulative and not exclusive of any rights and remedies provided by law.

25.1 Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Supplier’s obligations only.

26.1 The Supplier shall at the request of Hafod, and at the Supplier’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.

27.1 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

27.2 Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.

27.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.

28.1 No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.

29.1 The Supplier may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without Hafod’s prior written consent, which it may withhold or delay at its absolute discretion.

30.1 Hafod shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Supplier under the Contract or under any other contract which Hafod has with the Supplier.

30.2 The Supplier shall pay all sums that it owes to Hafod under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

31.1 The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

32.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.

32.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

33.1 No failure, delay or omission by Hafod in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

33.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by Hafod shall prevent any future exercise of it or the exercise of any other right, power or remedy by Hafod.

33.3 A waiver of any term, provision, condition or breach of the Contract by Hafod shall only be effective if given in writing and signed by Hafod, and then only in the instance and for the purpose for which it is given.

34.1 The Supplier shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.

35.1 If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail to the extent of the conflict.

36.1 The Supplier shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).

37.1 Except as expressly provided for in clause 37.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.

37.2 Any Affiliate of Hafod shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.

38.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 38.

38.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.

38.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedure:

38.3.1 Within 5 Business Days of service of the notice, the contract managers of each of the parties shall meet to discuss the dispute and attempt to resolve it.

38.3.2 If the dispute has not been resolved within 5 Business Days of the first meeting of the contract managers, then the matter shall be referred to the chief executives, (or persons of equivalent seniority) of each of the parties. The chief executives, (or persons of equivalent seniority) shall meet within 5 Business Days to discuss the dispute and attempt to resolve it.

38.4 Until the parties have completed the steps referred to in clause 38.3, and have failed to resolve the dispute, neither party shall commence formal legal proceedings except that either party may at any time seek urgent interim relief from the courts.

39.1 The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales as applied in Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).

Processing of the Protected Data by the Supplier under the Contract shall be for the subject-matter, duration, nature and purposes and involve the types of Personal Data and categories of Data Subjects set out in this Part A.

1. Subject-matter of the processing: To enable the Supplier to fulfil its obligations as set out in the Contract
2. Duration of the processing: For the term of the Contract
3. Nature and purpose of the processing: To undertake the Provision of Services and/or Goods as indicated in the Order.
4. Type of Personal Data: Contract Holders, Residents, Leaseholder, Employees, 3rd Parties
5. Categories of Data Subjects: Name, address, telephone number, email address
6. Specific processing instructions: No data to be shared with 3rd parties without permission, where data is to be transferred outside of the United Kingdom it is the Suppliers responsibility to gain authorisation from Hafod prior to transfer.  Retention of Data not to exceed 6 years after the Contract expiry and any Warranty period.  If the Supplier is sub-contracting any elements of the Order, it is the Suppliers responsibility to ensure that the above clauses applies.