Standard terms and conditions of contract for the purchase of services

A1. Definitions

The terms and expressions used in these standard terms and conditions shall have the meanings set out below:

Authorised officer

The person duly appointed by the Council and notified in writing to the Contractor to act as the representative of the Council for the purpose of the Contract in the contract particulars or as amended from time to time and in default of such notification the Council's head of procurement or similar responsible officer.

Assigned employees

In respect of Clause G4 an individual employed by the Consultant wholly or mainly in the performance of the services.

Business day

Any day other than a Saturday or Sunday or a public or bank holiday in England.

Change in law

The coming into effect or repeal (without re-enactment or consolidation) in England of any law, or any amendment or variation to any law, or any judgment of a relevant court of law which changes binding precedent in England in each case after the date of this Contract.

Commencement date

The commencement date stated in the contract particulars.

Confidential information

Any information which has been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information which relates to the services, the business, affairs, properties, assets, trading practices, developments, trade secrets, intellectual property rights, know-how, personnel, customers and suppliers of either party, all personal data and sensitive personal data (within the meaning of the Data Processing Agreement (DPA)).

Contract

The agreement in respect of the provision of the services consisting of the following listed documents which shall be read as one document. In the event of ambiguity, conflict or contradictions between these documents the conflict will be resolved according to the following order of priority:

1. the contract particulars
2. the special terms and conditions
3. the standard terms and conditions
4. specification
5. pricing schedule
6. invitation to tender
7. the tender (howsoever termed) except to the extent that any element of the tender has been included in the contract particulars

In the event that any of the documents referred to in point one to seven are omitted, the documents that are included in the Contract will be resolved according to the priority listed under this definition.

Contractor

The Contractor and where applicable this shall include the contractor's employees, sub-contractors, agents, servants representatives, and permitted assigns and, if the contractor is a consortium or consortium leader, the consortium members.

Contract Manager

The document detailing the specific core terms agreed between the parties with regard to the services which shall include but not be limited to the pricing schedule, delivery instructions, commencement date, authorised officer, Contract Manager, key personnel, contract period, and the specification and relevant contract specific details of the tender included in the document.

Contract period

The period of the contract as stated in the contract particulars (and any extension in accordance with clause B1).

Control

Control as defined by section 416 of the Income and Corporation Taxes Act 1988.

Council

The Council named in the contract particulars and where the context so admits includes any person which takes over or assumes the statutory functions or administrative responsibilities of the Council (whether in part or totally) or which is controlled by or is under common control with the Council (and the expression "control" shall mean the power to direct or cause the direction of the general management and policies of the person in question but only for so long as such control exists).

Data Protection Legislation

Means (i) the Data Protection Act 2018 ('DPA 2018'), (ii) the UK General Data Protection Regulation ('UK GDPR') (iii) the Regulation of Investigatory Powers Act 2000, (iv) the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, (v) the Privacy and Electronic Communications (EC Directive) Regulations 2003 and (vi) all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner.

Declaration

A declaration made pursuant to Clause G5 (IR35 (Intermediaries' Legalisation) and HMRC Employment Status).

Delivery instructions

Instructions provided in the contract particulars and any other information that the Council considers appropriate to the provision of the services.

DPA 2018

The Data Protection Act 2018.

Employee

In respect of Clause G4 (TUPE and Re-tendering), an individual employed by the Contractor wholly or mainly in the performance of the services.

Employment status check

Means the form published by HMRC (as amended from time to time) that is used to establish whether a worker falls inside or outside IR35 or HMRC Deemed Employment Status.

EIR 2004

The Environmental Information Regulations 2004.

FOIA 2000

The Freedom of Information Act 2000.

Force majeure

Any cause materially affecting the performance by a party of its obligations under this Contract arising from any act beyond its reasonable control and affecting either party, including without limitation: acts of God, war, industrial disputes (subject to clause H6.3), protests, fire, flood, storm, tempest, epidemic, explosion, acts of terrorism and national emergencies.

GDPR

The General Data Protection Regulation (Regulation (EU) 2016/679)

Good industry practice

The exercise of such degree of skill, diligence, care and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor engaged in the supply of services similar to the services under the same or similar circumstances as those applicable to the Contract.

HMRC deemed employment status

Shall mean circumstances where HMRC would deem there to be an employment relationship for tax purposes only.

HRA 1998

The Human Rights Act 1998.

Intellectual property rights

Patents, inventions, trade marks, service marks, logos, design rights (whether registrable or otherwise), applications for any of the foregoing, copyright, database rights, domain names, trade or business names, moral rights and other similar rights or obligations whether registrable or not in any country (including but not limited to the United Kingdom) and the right to sue for passing off.

Intermediary

An artificial or natural person (including, but not limited to, a company, an umbrella company, a partnership, a sole trader) as defined in Chapter 8 of Part 2 of The Income Tax (Earnings and Pensions) Act 2003 in relation to income tax; and The Social Security Contributions (Intermediaries) Regulations 2000 in relation to employee national insurance contributions as amended, consolidated and re-enacted from time to time.

IR35 (off-payroll working rules)

Applies where a worker:

• personally provides services to a client through an intermediary
• is deemed to be an employee of the client under a hypothetical contract with the end client, ignoring the intermediary
• is an office holder of the client

IR35 Intermediaries Legislation

Shall mean the application of Chapter 8 of Part 2 of The Income Tax (Earnings and Pensions) Act 2003 and The Social Security Contributions (Intermediaries) Regulations 2000 as amended, consolidated and re-enacted from time to time.

Invitation to tender

The Council's document inviting tenders for the Contract.

Key personnel

Those persons named in the contract particulars as being key personnel and any replacement from time to time under clause B6.1.5.

Law

Any applicable Act of Parliament, sub-ordinate legislation within the meaning of section 21(1) of the Interpretation Act 1978, exercise of the Royal Prerogative, bye-law, regulatory policy, guidance or industry code, judgement of a relevant court of law or requirements of any regulatory body of which the Contractor is bound to comply.

Liabilities

All costs, actions, demands, expenses, losses, damages, claims, proceedings, awards, fines, orders and other liabilities (including reasonable legal and other professional fees and expenses) whenever arising or brought.

Office holder

A person who has been appointed to a position but doesn't have a contract or receive regular payment. The role sits independently from the person who holds it. This includes but is not limited to:

• statutory appointments
• appointments under the internal constitution of an organisation
• appointments under a trust deed

Order

An order for services to be provided where the Contract is identified in the contract particulars to be delivered by call off.

PA 2023

The Procurement Act 2023

PR 2024

The Procurement Regulations 2024 (SI 2024/692)

Price

The price of the services as set out in the contract particulars (and, where applicable, the pricing schedule). Unless otherwise stated, any reference to price shall be regarded as being exclusive of properly chargeable VAT which shall be separately accounted for.

Pricing schedule

The document setting out the price as detailed in the contract particulars specifying the frequency of payment and any additional elements of the price.

Relevant payroll system

The payroll system and any change in payroll system that the Council is using at any time throughout the contract period.

Replacement Contractor

Any company, organisation or person who replaces the Contractor following termination or expiry of all or part of this Contract.

Self-employed worker

An individual whether incorporated or otherwise who does not fall within IR35 or HRMC deemed employment status.

Services

The services described in the specification to be supplied by the Contractor in accordance with the Contract together with all equipment required and any associated goods provided by the Contractor in relation to those services.

Special terms and conditions

The additional terms and conditions attached which were set out in the Invitation to tender.

Specification

The document, which is referenced in the contract particulars, setting out the Council's detailed requirements in relation to provision of the services.

Standard terms and conditions

The terms and conditions set out in this document.

Sub-contract

A contract between two or more contractors or suppliers, at any stage of remoteness from the Council in a subcontracting chain, made wholly or substantially for the purpose of performing (or contributing to the performance of) the whole or any part of this Contract.

Tender

The Contractor's document (howsoever described) detailing the Contractor's proposal for delivery of the services in response to the Council's Invitation to Tender and references to 'Proposal', 'Brief' and such like shall be construed to mean the 'Tender'.

The ITEPA 2003

The Income Tax (Earnings and Pensions) Act 2003.

The regulations

The Social Security Contributions (Intermediaries) Regulations 2000.

TUPE

The Transfer of Undertakings (Protection of Employment) Regulations 2006.

UK GDPR

Means to the retained EU law version of the EU Data Protection Directive 95/46/EC (GDPR) applicable in the law of England, Wales and Northern Ireland by virtue of Section 3 of the European Union (Withdrawal) Act 2018.

A1.1 Any reference to a person shall include any natural person, partnership, joint venture, body corporate, incorporated association, government, governmental agency, persons having a joint or common interest, or any other legal or commercial entity or undertakings.

A1.2 A reference to any statute, order, regulation or similar instrument shall be construed as a reference to the statute, order, regulation or instrument as amended by any subsequent statute, order, regulation or instrument or as contained in any subsequent re-enactment.

A2. Headings

A2.1 The index and headings to the clauses and appendices to, and schedules of, this Contract are for convenience only and will not affect its construction or interpretation.

A3. Notices

A3.1 Any notice required by this Contract to be given by either party to the other shall be in writing and shall be served personally, by sending it by registered post or recorded delivery to the appropriate address, or email address notified to each other as set out in the contract particulars.

A3.2 Any notice served personally will be deemed to have been served on the day of delivery; any notice sent by post will be deemed to have been served 48 hours after it was posted; any notice sent by email before 5pm will be deemed to have been served on the day of despatch and otherwise on the following day save where the deemed date of service falls on a day other than a business day in which case the date of service will be the following business day.

A4. Entire agreement

A4.1 The Contract constitutes the entire agreement between the parties relating to the subject matter of the Contract. The Contract supersedes all prior negotiations, representations and undertakings, whether written or oral, except that this clause A4 shall not exclude liability in respect of any fraudulent misrepresentation.