Terms and Conditions for the Provision of Goods and Services

February 2024

1 INTERPRETATION

1.1 In this Contract unless the context otherwise requires:

(a) "Address for Invoices" has the meaning given on page 1 of this Contract;

(b) "Authorised Officer" means a person designated as such by the Purchaser, in line with the Purchaser’s internal authority limits, from time to time as notified in writing to the Service Provider to act as the representative of the Purchaser for all purposes connected with this Contract (including any authorised representative of such person) and the Authorised Officer at the Commencement Date is the person set out as such on page 1 of this Contract;

(c) “Commencement Date” means the date set out as such on page 1 of this Contract; 

(d) “Contract” means this contract concluded between the Purchaser and the Service Provider including the Specification and all other documents which are incorporated or referred to herein;

(e) "Contract Manager" means a person designated as such by the Service Provider from time to time as notified in writing to the Purchaser to act as the duly authorised representative of the Service Provider for all purposes connected with the Contract (including any authorised representative of such person) and the Contract Manager at the Commencement Date is the person set out as such on page 1 of this Contract; 

(f) “Contract Price” means the price which the Purchaser shall pay to the Service Provider for the provision of Goods and Services in accordance with Clauses 4 and 5 below;

(g) "Contract Period” means the period of this Contract as set out in Clause 2 below;

(h) “Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisation measures” means the meaning given in the Data Protection Legislation;

(i) "Convictions" means other than in relation to any minor road traffic offences, any convictions (including any spent convictions as contemplated by section 1(1) of the Rehabilitation of Offenders Act 1974 by virtue of the exemptions specified in Part II of Schedule 1 of the Rehabilitation of Offenders Act 1974 (Exemptions) Order 1975 or any replacement or amendment to that Order;

(j) “Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time t time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications; and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party;

(k) “Day” means a working day;

(l) "Disclosure Barring Service" means the bureau established pursuant to Part V of the Police Act 1997;

(m) “Domestic Law” means the law of the United Kingdom or a part of the United Kingdom;

(n) "End Date" means the date set out as such on page 1 of this Contract;

(o) “FOIA” means the Freedom of Information Act 2000 and any subordinate legislation made under that Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner in relation to such legislation;

(p) “Goods” means the goods (or any part of them) as detailed in the Specification;

(q) “Goods Specification” means any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Purchaser and the Service Provider;

(r) “Information” has the meaning given under section 84 of the Freedom of Information Act 2000;

(s) "Intellectual Property" means patents, trade marks, service marks, trade names, copyright (including rights in computer software and in websites), rights in databases, rights in designs, know how and all and any other intellectual property;

(t) "Invoice Information" has the meaning given on page 1 of this Contract;

(u) "Month" means a calendar month;

(v) “Prior Services” means the services carried out by a previous Service Provider or the Purchaser which will fall within the definition of Services carried out by the Service Provider under the terms of this Contract; 

(w) "PURCHASER Property" means:

(i) documents, manuals, hardware and software provided for the Service Provider’s use by the Purchaser; and

(ii) data or documents (including copies) produced, maintained or stored on the Purchaser's computer systems or other electronic equipment; and

(iii) other original and copy materials in the Service Provider’s possession, custody or control (including, without limitation, all books, documents, papers, correspondence, specifications, magnetic disks or tapes or other software storage media and keys) belonging to or relating to the business of the Purchaser;

(x)  “Request for Information” shall have the meaning set out in FOIA or any apparent request for information under the FOIA;

(y) Service User” means the individuals accessing the Services;

(z) “Services” means the goods and/or services to be provided by the Service Provider as detailed in the Specification;

(aa) "Sites" means the sites set out as such on page 1 of this Contract;

(bb) “Specification” means the specification attached to this Contract at Schedule 1;

(cc) "Staff" means all those persons employed or engaged by the Service Provider to perform this Contract including, without limitation, the Service Provider's staff, employees, servants, officers, agents and sub-Service Providers used in  connection with the performance of this Contract and those employees transferred to the Service Provider in accordance with the provisions of Clause 28.1.

1.2 The headings in this Contract shall not affect its interpretation.

1.3 Except where the context otherwise requires words denoting the singular include the plural and vice versa and words denoting any one gender include all genders and vice versa.

1.4 Unless otherwise stated a reference to a Clause or a Schedule is a reference to a Clause of or a Schedule to this Contract.

1.5 References to any statute or statutory provision shall be deemed to include a reference to any amendment or re‑enactment thereof or substitution from time to time and any rules orders regulations and delegated legislation made thereunder and shall include a reference also to any past statutory provisions (as from time to time amended or re-enacted) which such statute or statutory provision directly or indirectly has replaced.

1.6 References to a person includes any individual, partnership, firm, trust, body corporate, government, governmental body, authority, agency, unincorporated body of persons or association and a reference to a person includes a reference to that person’s successor and permitted assigns.

2 CONTRACT PERIOD

2.1 This Contract shall commence on the Commencement Date and (subject to any earlier termination in accordance with its terms or operation of law) shall expire on the End Date.

2.2      Either party may, at their absolute discretion, terminate the Contract by giving not less than six Months’ notice in writing at any point after the service commencement date.

2.3      The Purchaser may at its absolute discretion extend the Contract Period into a secondary term of a further twelve months on giving the Service Provider not less than three months’ notice prior to the date when the Contract would otherwise expire under Clause 2.1.

3 GOODS

3.1 The Service Provider shall ensure that the Goods shall:

(a) correspond with their description and any applicable Goods Specification;

(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Service Provider or made known to the Service Provider by the Purchaser, expressly or by implication, and in this respect the Purchaser relies on the Service Provider’s skill and judgement;

(c) where they are manufactured products, be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and 

(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.

3.2 The Service Provider shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under this Agreement in respect of the Goods.

3.3 The Purchaser may inspect and test the Goods at any time before delivery. The Service Provider shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Service Provider’s obligations under the Contract.

3.4 If following such inspection or testing the Purchaser considers that the Goods do not comply or are unlikely to comply with the Service Provider’s undertakings at clause 3.1, the Purchaser shall inform the Service Provider and the Service Provider shall immediately take such remedial action as is necessary to ensure compliance.

3.5 The Purchaser may conduct further inspections and tests after the Service Provider has carried out its remedial actions.

4 DELIVERY OF GOODS

4.1 The Service Provider shall ensure that:

(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;

(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the corresponding order (the “Order”), the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

(c) it states clearly on the delivery note any requirement for the Purchaser to return any packaging material for the Goods to the Service Provider. Any such packaging material shall only be returned to the Service Provider at the cost of the Service Provider

4.2 The Service Provider shall deliver the Goods: 

(a) on the date specified in the Order or, if no such date is specified, then within 14 days of the date of the Order;

(b) to the designated Purchaser’s Site as set out in the Order or as instructed by the Purchaser before delivery (“Delivery Location”); and

(c) during the Purchaser’s normal hours of business on a Business Day, or as instructed by the Purchaser

4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.

4.4 If the Service Provider:

(a) delivers less than 95% of the quantity of Goods ordered, the Purchaser may reject the Goods; or

(b) delivers more than 105% of the quantity of Goods ordered, the Purchaser may at its sole discretion reject the Goods or the excess Goods,

and any rejected Goods shall be returnable at the Service Provider’s risk and expense. If the Service Provider delivers more or less than the quantity of Goods ordered, and the Purchaser accepts the delivery, the Service Provider shall make a pro rata adjustment to the invoice for the Goods. 

4.5 The Service Provider shall not deliver the Goods in instalments without the Purchaser’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. 

4.6 Title and risk in the Goods shall pass to the Purchaser on completion of delivery.

4.7 The Purchaser shall obtain suitable insurance for the Goods for all periods during which the Purchaser bears the risk in the Goods.

5 SERVICES

5.1 Where Services are to be carried out on the Purchaser’s premises the Contractor is deemed to have inspected the premises before tendering so as to have understood the precise nature and extent of the Services to be carried out and satisfied himself in relation to all matters connected with the Services and premises.  The Purchaser will grant access as may be reasonable for this purpose subject to those restrictions and limitations reasonably imposed by the Purchaser from time to time including but not limited to proof of identity, Disclosure and Barring Service checks and disease infection and transmission limitation/risk management measures. 

5.2 The Service Provider agrees to provide the Services to the Purchaser from the Commencement Date and throughout the Contract Period.

5.3 In addition to any other specific obligations imposed by this Contract, the Service Provider shall exercise all reasonable care and skill in providing the Services and shall at all times provide the Services in accordance with this Contract and to the reasonable satisfaction of the Purchaser or its authorised representative.

5.4 The Service Provider in providing the Services and in connection with this Contract generally, shall comply with all legislation, case law, directions or determinations with which the Purchaser and/or the Service Provider must comply, in each case in force and applicable to the Services and/or this Contract.

5.5 The Service Provider in providing the Services and in connection with this Contract generally, shall comply with all codes of conduct, policies, rules, standards and procedures of the Purchaser notified to the Service Provider  in writing (as may be amended from time to time by the Purchaser and notified to the Service Provider  in writing).

5.6 During the course of the Contract the Purchaser or its authorised representative shall have the power to inspect and examine any work being performed under the Contract at any reasonable time.

5.7 The Contractor shall give all such facilities as the Purchaser or its authorised representative may reasonably require for such inspection and examination.

5.8 Services carried out on the Purchaser’s premises, on completion the Contractor shall remove his plant, equipment, unused materials and waste and leave the premises in the condition as found.

5.9 The Service provider acknowledges and agrees that any and all of the Purchaser’s Property remains the property of the Purchaser and the Service Provider shall use the Purchaser’s Property only for the purposes of performing its obligations under this Contract.  The Service Provider shall at any time during the Contract Period if so required by the Purchaser and in the event of the termination of this Contract for whatever reason (whether lawfully or otherwise) immediately surrender to the Purchaser all the Purchaser’s Property which is in the possession or under the control of the Service Provider.

6 CONTRACT PRICE

6.1 The Purchaser shall pay to the Service Provider the sums set out in Schedule 3 in consideration of the Service Provider's due and proper performance of its obligations under the Contract.

6.2 The only sums payable by the Purchaser to the Service Provider for the provision of the Services shall be the Contract Price. All other costs, charges, fees and expenses of whatever kind arising out of or in connection with this Contract shall be the responsibility of the Service Provider.

6.3 For the avoidance of doubt, the Contract Price includes payment in full for all Staff, equipment, materials, facilities and resources required by the Service Provider to provide the Services in accordance with this Contract.  Any Staff, equipment, materials, facilities or resources needed or used by the Service Provider to provide the Services in accordance with this Contract shall be provided by the Service Provider.

6.4 The Contract Price shall remain firm for the period of the contract. A price review request may be submitted at any time by the Service Provider for consideration by the Purchaser; approval or rejection of such a request with be at the absolute discretion of the Purchaser. A formal price review between the Purchaser and Service Provider will be triggered should the contract be extended into a secondary term.

6.5 Wherever under this Contract any sum of money is recoverable from or payable by the Service Provider, such sum may be deducted from any sum or sums then due or which at any time thereafter may become due to the Service Provider under this Contract or under any other contract with the Purchaser.

7 PAYMENT

7.1 Within 15 days of the end of each Month, the Service Provider shall invoice the Purchaser for the Contract Price payable for any Services provided by the Service Provider in that Month.  Such invoices shall be sent to the Address for Invoices and must contain the Invoice Information agreed.  Failure to do either will entitle the Purchaser to delay payment of the Contract Price until the Invoice Information is provided.

7.2 The Contract Price is exclusive of Value Added Tax ("VAT") a sum equal to which shall be payable, if applicable, by the Purchaser in addition to such Contract Price.  The Service Provider shall, if so requested by the Purchaser, furnish such information as may reasonably be required by the Purchaser as to the amount of VAT payable by the Purchaser under this Clause 7.2.  Any overpayment of VAT by the Purchaser to the Service Provider shall be refunded to the Purchaser by the Service Provider within 10 Days of receipt of said overpayment of VAT. 

7.3 The Purchaser shall pay invoices submitted by the Service Provider in accordance with Clause 7.1 for Services provided in accordance with this Contract within 30 days of receipt by the Purchaser of such invoice. The Purchaser shall pay such invoices by BACS (Bank Automated Clearing System) if it so chooses.

7.4 In the event of the Purchaser failing to comply with Clause 7.3, the Service Provider shall be entitled to charge interest on the outstanding amount owed by the Purchaser at a rate of 2% above the base rate of the Bank of England from time to time from the due date for payment to the date of actual payment.

8 HEALTH AND SAFETY

8.1 The Service Provider shall immediately and within 24 hours notify the Purchaser of any health and safety hazards with may arise in connection with the performance of the Contract.

8.2 The Purchaser shall promptly notify the Service Provider of any health and safety hazards which may arise at the Purchaser’s premises and which may affect the Service Provider in the performance of the Contract 

8.3 Where the Services are to be performed on the Purchaser’s ‘live’ premises the Service Provider and the Purchaser’s authorised representative shall undertake a joint risk assessment and take action to minimise the risk, and such actions will be recorded in the Premises and Fire Safety Folder.

8.4 All equipment, including information technology equipment, used by the Service Provider during the performance of the contract shall be risk assessed, free from defect, and shall be fit for purpose.

8.5 Subject to Clause 8.7, while on the Purchaser’s premises, the Service Provider shall comply with any health and safety measures implemented by the Purchaser in respect of staff, service users and/or others working on those premises.

8.6 The Service Provider shall notify the Purchaser immediately in the event of any incident or ‘near miss’ occurring in the performance of the Contract on the Purchaser’s premises where that incident or ‘near miss’ causes, or may cause, any personal injury or damage to property which could give rise to personal injury.

8.7 The Service Provider shall take all necessary measures to comply with the requirements of Health and Safety at Work etc. Act 1974/2015 and other Acts, orders, regulations and Codes of Practice relating to health and safety which may apply to staff in the performance of the Contract.

8.8 The Service Provider shall ensure that their Health and Safety policy statement and health and safety management arrangements (as required by the Health and Safety at Work etc. Act 1974/2015) are kept up to date and made available to the Purchaser on request. 

9 CONFIDENTIALITY

9.1 Subject to Clause 9.2 each party shall at all times keep confidential and not disclose to any third party and shall not use for any purpose (except to carry out their respective obligations under this Contract) any information which each party may acquire in relation to the business and affairs of the other party which is: (i) by its very nature confidential; or (ii) which the party to whom it relates has labelled confidential or otherwise notifies to the other party is to be treated as confidential.

9.2 The provisions of Clause 9.1 above do not apply to information which:

(a) is disclosed to the staff, officers, representatives or advisers of a party who need to know such information for the purposes of carrying out their obligations under this Contract; or

(b) is in or enters the public domain other than by breach of this Contract; or not use Confidential Information for any purpose other than the performance of its obligations under this Contract; or

(c) is obtained from a third party who is lawfully authorised to disclose such information; or

(d) which is in the possession of a party prior to its receipt from the other party, as evidenced by written evidence, and is not subject to a duty of confidentiality; or

(e) is required to be disclosed by judicial, administrative, governmental or regulatory process in connection with any action, suit, proceedings or claim or otherwise by applicable law.

9.3 Each party undertakes to take all those steps as may from time to time be necessary to ensure compliance with the provisions of this Clause 9 by its staff, service providers and agents.

9.4 If either party receives a request for information relating to this Contract under the Freedom of Information Act 2000 ("the 2000 Act") it shall consult with the other party before responding to such request and, in particular, shall have due regard to any claim by the other party that the exemptions relating to commercial confidence and/or confidentiality under the 2000 Act apply to the information sought.  For the avoidance of doubt, the Purchaser is not classed as a public body in relation to the 2000 Act but it may be contractually required to provide such information due to the public bodies the Purchaser supplies services to.

10 DATA PROTECTION / INFORMATION SECURITY

10.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10.1 is in addition to, and does not relive, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

10.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Purchaser is the Controller and the Service Provider is the Processor. 

10.3 Without prejudice to the generality of clause 10.1, the Purchaser will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Service Provider for the duration and purposes of this agreement.

10.4 Without prejudice to the generality of clause 10.1, the Service Provider shall, in relation to any Personal Data processed in connection with the performance by the Service Provider of its obligations under this agreement:

(a) Process that Personal Data only on the documented written instructions of the Purchaser unless the Service Provider is required by Domestic Law to otherwise process that Personal Data. Where the Service Provider is relying on Domestic Law as the basis for processing Personal Data, the Service Provider shall promptly notify the Purchaser of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Service Provider from so notifying the Purchaser;

(b) Ensure that it has in place appropriate technical and organisation measures, reviewed and approved by the Purchaser, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may included, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it); 

(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

(d) not transfer any Personal Data outside of the UK unless the prior written consent of the Purchaser has been obtained and the following conditions are fulfilled:

(i) the Purchaser or the Service Provider has provided appropriate safeguards in relation to the transfer;

(ii) the data subject has enforceable rights and effective legal remedies;

(iii) the Service Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

(iv) the Service Provider complies with reasonable instructions notified to it in advance by the Purchaser with respect to the processing of the Personal Data;

(e) assist the Purchaser in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f) notify the Purchaser without undue delay on becoming aware of a Personal Data Breach;

(g) at the written direction of the Purchaser, delete or return Personal Data and copies thereof to the Purchaser on termination of the agreement unless required by Domestic Law to store the Personal Data; and

(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 10.4 and allow for audits by the Purchaser or the Purchaser's designated auditor and immediately inform the Purchaser if, in the opinion of the Service Provider, an instruction infringes the Data Protection Legislation.

10.5 The Purchaser does not consent to the Service Provider appointing any third party processor of Personal Data under this agreement. 

10.6 The Service Provider where necessary to access systems and data maintained by the Purchaser within its networks or facilities shall comply with access control, acceptable usage and information security policies as may be issued by the Purchaser. 

10.7 The Service Provider shall take the necessary steps to ensure that all the staff, officers, representatives or advisers used in provision of the obligations of this contract receive sufficient training and awareness of their duties relevant to the Data Protection Legislation.

10.8 The Service Provider shall report any breaches, weaknesses or near misses in relation to this Clause 10 relevant to the obligations set out in this contract to The Purchaser within a reasonable time and shall inform The Purchaser of the steps to be taken to remedy remediation findings so as to reasonably prevent such reoccurrence.

10.9 The Service Provider will provide a named contact to The Purchaser for the purpose of communicating all related Data Protection and Information Security matters.

10.10 Where applicable, The Service Provider will comply with the specified data and security aspects as defined within Schedule 2 “Specific Data and Information Security Aspects”

11 INDEMNITY

11.1 The Service Provider shall indemnify and keep indemnified the Purchaser against any liabilities, losses, costs, expenses, charges, suits, claims or proceedings whatsoever arising out of or in connection with this Contract on the part of the Service Provider or its Staff provided that nothing in this Clause 11.1 shall apply to the extent that such liability, loss, costs, expenses, claims or proceedings were due to any negligence or breach of this Contract on the part of the Purchaser or its employees.

11.2 On termination or expiry of this agreement, clause 11.1 shall continue in full force and effect. 

12 INSURANCE

12.1 The Service Provider shall procure public liability insurance, employers liability insurance, and professional indemnity insurance against its liability under Clause 11.1 with a minimum limit of indemnity of £5 million per annum or such other sum as may be agreed between the Purchaser and the Service Provider in writing.

13 BREACHES

13.1 Without prejudice to any other rights of the Purchaser, if the Purchaser is of the opinion that the Service Provider has committed a breach of this Contract, the Purchaser may:

(a) Require the Service Provider to remedy the breach within such time as the Purchaser may reasonably specify including, without limitation, by providing or providing again (as the case may be) without further charge the Services; and/or

(b) itself provide or procure the provision of the Services or any part of the Services until the Purchaser shall be reasonably satisfied that the Service Provider is again able to provide the Services or such part of the Services in accordance with this Contract or until the expiry or termination of this Contract, whichever occurs sooner.

13.2 If the cost to the Purchaser of providing or procuring the Services or any part of the Services under Clause 13.1(b) exceeds the Contract Price for providing the Services, the excess shall be paid by the Service Provider to the Purchaser in addition to any other sums payable by the Service Provider to the Purchaser in respect of the Service Provider's breach of this Contract.

14 FORCE MAJEURE

14.1 The Service Provider shall not be liable for failure to comply with these Conditions owing to any act or event beyond its control including but not limited to natural disasters, Acts of God, riots, civil commotion, strikes, shortage of supplies, lock-outs, industrial action, war, disease or fire. The Purchaser may terminate the Contract in the event that any such act or event prevents the Service Provider from performing such Contract for more than 20 consecutive days.

BUSINESS CONTINUITY

15.1 The Service Provider shall takes sufficient steps to have in place its own Business Continuity Management System (BCMS) to ensure continued provision of the services as defined within this contract.

15.2     Results of testing by the Service Provider of its BCMS where relevant to contracted services shall be issued to the Purchaser within a reasonable timeframe.

15.3     Any significant BCMS risk relevant to contracted services discovered by the Service Provider shall be reported to The Purchaser and will include the steps to be taken to reasonably mitigate such an identified risk.

16 RIGHT TO AUDIT

16.1 On the Purchaser giving at least 14 Days’ notice to the Service Provider, the Purchaser (or its professional advisers) may during Business Hours:

(a) enter and inspect the Service Provider’s premises, personnel, facilities, system and records; and 

(b) inspect, audit and take copies of relevant records, and other documents as necessary to verify the Service Provider’s compliance with the terms and conditions of this agreement. 

17 NOTICES

17.1 Any notice or other communication given under this      Agreement shall be in the English language and shall be sent:

(a) in writing, by first class mail to the address set out on page 2 of this document; or

(b) by email to the address specified on page 1 of this document

as revised by notice to the other party from time to time.

17.2 Any notice shall be deemed to have been received:

(a) if sent by first class mail, on the third business day from and including the date of posting; or

(b) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 17.2(b), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

18 TERMINATION

18.1 The Purchaser may at any time terminate this Contract, in whole or in part, immediately upon written notice to the Service Provider if the Service Provider:

(a) commits a material breach of this Contract which is not capable of remedy; and/or

(b) having committed a material breach of this Contract, shall neglect or otherwise fail to remedy such breach within 30 days of being required in writing to do so, or repeats such breach within 30 days of being required in writing to remedy the original breach; and/or

(c) ceases to carry on its business or substantially the whole of its business; 

18.2 Upon expiry or termination of this Contract, the Service Provider shall:

(a) Immediately deliver to the Purchaser all Property of the Purchaser which is in the possession or under the control of the Service Provider; and

(b) irretrievably delete any information relating to the business of the Purchaser stored on any magnetic or optical disk or memory and all matters derived from such sources which is in the Service Provider’s possession or under the Service Provider’s control outside the premises of the Purchaser.

18.3 Neither expiration nor termination of this Contract shall prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to either party.

19 DISPUTE RESOLUTION

19.1 The parties will attempt to settle any disputes arising out of this Agreement between the Authorised Office and the Contract Manager in good faith and in a timely manner.  If the Authorised Officer and the Contract Manager are unable to resolve the dispute in a timely manner, the dispute will be escalated to Director level within both parties to resolve. If parties fail to resolve the dispute within 21 days of the dispute being escalated then either Party may refer the dispute to mediation in accordance with the procedures of the Centre for Effective Dispute Resolution (CEDR). Both Parties agree to co-operate fully with such mediation, provided such assistance as is necessary to enable the mediator to discharge his duties and to bear equally between them the fees and expenses of the mediator. Nothing in this clause 19 shall prevent either Party from seeking injunctive relief or any other discretionary remedies of the court at any time.

20 INTELLECTUAL PROPERTY

20.1 Nothing in this Agreement shall be deemed to assign or otherwise transfer any Intellectual Property owned by, or licensed to, either party prior to the commencement of this agreement to the other party at any time (the “Background IP”). 

20.2 Any Intellectual Property made, created, devised, developed or discovered by the Purchaser in conjunction with the Service Provider (whether capable of being patented or registered or not) either alone or with any other person in connection with or in any way affecting or relating to the business of the Purchaser or capable of being used or adapted for use therein or in connection therewith shall forthwith be disclosed to the Purchaser (“Foreground IP”) and shall belong to and be the absolute property of the Purchaser with full title guarantee together with all related rights and powers arising or accrued.

20.3 The Purchaser grants to the Service Provider a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify the Foreground IP for the term of this Agreement for the purpose of providing the Services to the Purchaser.