Newcastle University Terms and Conditions for the Purchase of Goods
2010
TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS 2010
1. Definition
‘Contract’ means the agreement between Newcastle University and the Supplier
including these Conditions, any Order and any Specification and also including
any other document which Newcastle University and the Supplier have expressly
agreed in writing shall be incorporated into the Contract.
‘Delivery’ means delivery of the Goods at the place specified in the Order.
The ‘FOIA’ shall mean the Freedom of Information Act 2000 and any subordinate
legislation (as defined under the Freedom of Information Act 2000) made under
the Freedom of Information Act 2000 from time to time together with any
guidance and/or codes of practice issued by the Information Commissioner or
relevant Government Department in relation to such Act and, where applicable,
the Environmental Information Regulations 2004.
‘Goods’ means the goods (including instalment, component, part of or raw
materials used in such goods) described in the Order and such packaging as
may be necessary for the immediate containment or handling of the goods but
excluding additional cartons, cases and other similar containers used for
convenience or distribution.
‘Insolvency Event’ means each and any of the following in relation to the
Supplier:(a) any action (corporate or otherwise), legal proceedings or other procedure
or step is taken by any person in any jurisdiction in relation to or with a
view to: (i) the winding up, dissolution, administration or reorganisation
(by way of voluntary arrangement, scheme of arrangement or otherwise)
of the Supplier (except that no right to terminate will arise in respect of
any procedure commenced for the purpose of a solvent amalgamation or
reconstruction); (ii) the appointment of a liquidator, trustee in bankruptcy,
judicial custodian, compulsory manager, receiver, administrative receiver,
administrator, nominee, supervisor or similar officer in respect of the
Supplier or any of its assets; (iii) the enforcement of any security over
any assets of the Supplier; or (iv) the expropriation, attachment,
sequestration, distress or execution over or affecting any material asset of
the Supplier;
(b) the Supplier is unable to pay its debts as they fall due or is insolvent; or
(c) the Supplier enters into a composition or arrangement with its creditors or
any class of them.
‘Intellectual Property Rights’ means any and all patents, trade marks, business
names, copyright, moral rights, database rights, rights in designs, rights in
inventions, and any and all other intellectual property rights, whether or not
registered or capable of registration and whether subsisting anywhere in the
world and including all applications and rights to apply for any of them together
with all or any associated goodwill.
‘Order’ means the order for the Goods issued to the Supplier by Newcastle
University.
Newcastle University Terms and Conditions for the Purchase of Goods
2010
‘Price’ means the price or prices for the Goods set out in the Contract.
‘Specification’ means any description, drawings, data, plant or other information
(if any) of the goods contained or referred to in the Contract or in any Order.
‘Supplier’ means the person, firm or company with whom the Contract is made
and (where the context so permits) his legal successors, permitted assigns and
subcontractors.
‘University’ means The University of Newcastle upon Tyne trading as Newcastle
University.
2. Documents
(i)
These Conditions shall apply to each Contract to the exclusion of any other
terms and conditions on which any quotation has been given to the
University or subject to which the Order is accepted or purported to be
accepted by the Supplier, which are hereby rejected.
(ii)
No variation to the Contract shall be binding unless agreed in writing by the
authorised representative of the University.
(iii)
The Supplier shall:
(a)
clearly mark the outside of each consignment or package with the
Supplier’s name and address together with University’s order
number and full details of the destination in accordance with the
Order;
(b)
include a packing note stating the contents thereof and all the
quality assurance documents required by the Specification;
(c)
on despatch of each consignment send to the University by
facsimile or first class post at the address for delivery of the Goods
an advice note specifying the means of transport, the weight,
number or volume and the point and date of despatch;
(d)
send to the University a detailed price invoice as soon as is
reasonably practicable after the despatch of each consignment;
(e)
state on every such packing note, advice note, invoice or other
document relating to the Order, the order number and code number
(if any);
(f)
provide the University on request evidence of the place of origin of
the Goods and information relating to components, parts or
materials used in manufacturing the Goods;
(g)
provide all information as the University requires to ensure that the
Goods comply with, and that the University fulfils its obligations
under, all applicable legislation and industry codes of practice;
(h)
provide all information regarding hazardous substances and any
dangerous properties the Goods may have; and
Newcastle University Terms and Conditions for the Purchase of Goods
2010
(i)
provide instructions for use and clear and conspicuous warnings
relating to any conditions which are necessary to ensure safety in
use or onward sale in each case with sufficient detail to enable the
University and any end user to understand any possible risks to
health and safety.
3. Quality
The Goods shall conform as to quantity, quality and description with the Contract
and to any Specification provided by the University. They shall be of satisfactory
quality, sound materials, workmanship and fit for their intended purpose. If samples
or patterns are provided, the Goods shall correspond in all respects to the samples
or patterns. If a standard of performance is specified, the Goods shall be capable of
the required performance.
4. Specification
Any Specification supplied by the University to the Supplier or specifically produced
by the Supplier for the University in connection with a Contract, together with the
Intellectual Property Rights subsisting in or relating to a Specification, shall be the
exclusive property of the University and delivered to the University with the Goods.
5. Packaging And Marking
(i)
The Goods shall be carefully packed and protected in accordance with good
and safe practice in a manner suitable to the type and nature of the Goods,
and the means of transport being used and in accordance with any special
requirements stated in the Contract.
(ii)
Without prejudice to Clause 8, the Supplier shall cause all Goods (including
all external packaging) supplied by him to the University to be suitably and
sufficiently marked, endorsed and labelled with information and advice
necessary to instruct and warn such persons into whosoever hands the
Goods shall come about any hazards to health and/or safety arising from
despatching, receiving, handling, using or possessing the Goods and also
about the necessary precautions to be taken in respect thereof. Provided
however that it shall not be reasonably practicable to mark, endorse or label
the Goods accordingly, the Supplier shall fully instruct and advise such
persons by any accompanying notice at the time of despatch and take all
necessary steps to ensure such notice is given to all persons into whose
hands Goods shall come.
(iii) All Goods shall be marked in accordance with any applicable regulations or
requirements.
6. Inspection And Testing
(i)
Before despatching the Goods, the Supplier shall carefully inspect and test
them for compliance with the Contract. The Supplier shall, if requested by
the University, give the University reasonable notice of such inspections and
tests and the University shall be entitled to be represented thereat. The
Supplier shall at his own expense also supply to the University certificates of
the results of inspections and tests in such form as the University may
require.
Newcastle University Terms and Conditions for the Purchase of Goods
2010
(ii)
It is expressly agreed that the University will be entitled at any reasonable
time to inspect and test the Goods during manufacture, processing or
storage, and the Supplier shall at his own expense provide or procure the
provision of all such facilities as may reasonably be required by the
University thereof.
(iii) If as a result of any inspection or test under paragraph (i) or (ii) of this
Clause the University’s representative is of the opinion that the Goods do
not comply with the Contract or are unlikely on completion of manufacture or
processing so to comply, the University shall notify the Supplier and the
Supplier shall take such steps as are necessary to ensure such compliance,
or may terminate the Contract without liability in accordance with Clause 11.
(iv) Nothing in paragraphs (i), (ii) or (iii) above nor any failure of the University to
exercise its rights thereunder shall release the Supplier from any of his
obligations or liabilities under the Contract or affect the University’s rights
and powers under the same.
(v)
All equipment paid for or provided by the University shall be and remain the
University’s property and must be returned to the University in good
condition upon request and shall not be copied or used for any purpose
other than completion of the Order. The Supplier shall correctly maintain and
store such equipment and shall be liable for any loss or damage to it whilst
in the possession or under the control of the Supplier. The Supplier shall
keep such equipment at such location agreed with the University and shall
keep such equipment clearly identified at all times as the property of the
University.
7. Delivery
(i)
Where a time for delivery is specified in the Order, time of delivery is of the
essence of the Contract. If no time of delivery is specified, delivery shall be
within a reasonable time of the Order being made by the University.
(ii) The Goods shall be delivered as provided for in the Contract. The University
reserves the right to amend any delivery instruction. If Goods are incorrectly
delivered, the Supplier will be held responsible for any additional expense
incurred in delivering them to their correct destination.
(iii) Where the Order provides for delivery within a specified time, that time shall
run from the date of despatch to the Supplier of the Order.
(iv) The University shall not be obliged to take delivery of any Goods tendered
before the time(s) or date(s) shown in the Order and may return any Goods
so tendered to the Supplier at the Supplier’s risk and expense.
(v)
Delivery or performance by instalments shall not be accepted by the
University unless previously agreed in writing. If Goods are to be delivered
in instalments the Contract will be treated as a single contract and not
severable.
8. Passing Of Property
(i)
The property in each part of the Goods shall pass to the University on
delivery at the point specified in the Contract provided that where the
Newcastle University Terms and Conditions for the Purchase of Goods
2010
University rejects any part of the Goods, property, and risk, in that part shall
revert to the Supplier.
(ii) Risk of damage to or loss of the Goods shall pass to the University upon
delivery to the University in accordance with the Contract.
9. Work On Our Premises
(i)
If the Contract involves any works or services which the Supplier is to
perform on the University’s premises then the following conditions shall
apply:
a)
The Supplier shall ensure that it and its employees, subcontractors
their employees and any other person associated with the Supplier
will adhere in every respect to the obligations imposed on the
Supplier by current safety legislation.
(b)
The Supplier shall comply with the University's own employment policy
and codes of practice relating to racial discrimination and equal
opportunities, see Clause 17.
(c)
The Supplier shall ensure that it and its employees, subcontractors,
their employees and any other person associated with the Supplier
will comply with any regulations that the University may notify to it in
writing.
(d)
The University may acting reasonably, refuse to admit, or order the
removal of the Supplier, its employees or sub-contractor whose
behaviour or conduct renders that person not fit to be on the
University’s premises, and such removal or refusal shall not relieve the
Supplier of its duties under the Contract.
(ii) If goods are installed incorrectly, then the Goods shall be deemed not to be
in accordance with the Contract.
10.
Price And Payment
(i)
The Price and terms of payment are as stated in the Order. Unless expressly
stated in the Order, all prices are fixed prices and include all taxes, customs,
duties and other public dues, except VAT and shall be in sterling. Subject to
the Goods being in accordance with the Contract, payment becomes due 30
days following receipt of an undisputed invoice after all documents referred to
in Clause 2 have been received by the University.
(ii) If any payment is overdue, interest at the rate of five per cent [(5%)] above
the base rate from time to time of Barclays Bank Plc shall accrue on the
unpaid amount from the date that that payment becomes due until the date of
payment.
(iii) The provisions of Clause 10 (ii) provide a substantial contractual remedy for
late payment of a debt under the Contract, and are fair and reasonable,
because:-
Newcastle University Terms and Conditions for the Purchase of Goods
2010
(a)
the interest rate is greater than the interest rate available to the
Supplier in respect of cash on deposit which is immediately
available; and
(b)
the other provisions of the Contract reflect, and take into account,
the overall relationship between the parties, and so it would be
inappropriate for a higher interest rate to apply.
(iv) The provisions of Clause 10 (ii) are in lieu of statutory interest, which shall not
accrue accordingly.
(v) The University shall be entitled to any discount for prompt payment, bulk
purchase, volume or purchase customarily granted by the Supplier.
11. Rejection And Termination
(i)
The University shall be entitled to reject the whole or any part of the Goods,
which are not in accordance with the Contract, even if the defect is minor,
and may by further notice terminate the Contract forthwith without
compensation.
(ii)
The University shall, when giving notice of rejection, specify the reasons
therefor and shall thereafter return the rejected Goods to the Supplier at the
Supplier’s sole risk and expense. In such case the University may require
the Supplier, within a reasonable time, to replace such rejected goods with
goods which are in all respects in accordance with the Contract, but shall
also have the right to obtain other goods in lieu thereof from other suppliers
(and the additional cost of acquiring the goods shall be recovered from the
Supplier) or not to replace them at all.
(iii) The University shall not be deemed to have accepted the Goods until the
University has had reasonable time to inspect and test them following
delivery or, if later, within a reasonable time after any patent defect becomes
apparent.
(iv) The University shall not be deemed to have accepted the Goods by virtue of
having requested the Supplier to repair or replace the Goods under these
Conditions.
12. Force Majeure
(i)
Neither party shall be liable for failure to perform its obligations under the
Contract if such failure results from circumstances which could not have been
contemplated and which are beyond the party’s reasonable control. Failure
of sub-contractors and strikes are not force majeure.
(ii) If any event detailed in clause 12 (i) prevents, hinders or delays performance
of all or any part of the obligations of a party for more than 30 days, then by
notice to the Supplier the University may terminate the Contract without
liability as of the date specified by the University in the notice.
13. Warranty
Newcastle University Terms and Conditions for the Purchase of Goods
2010
(i)
The Supplier represents, warrants and undertakes to the University that it is
fully experienced, qualified, equipped to perform its obligations under the
Contract, and that the Goods:a)
will comply with all statutory requirements, regulations, bye-laws and
EU directives and regulations relating to the manufacture and sale of
the Goods, product safety, packaging, labelling, use, installation and
maintenance and hazardous substances (including the appropriate
British Standard or equivalent specification unless otherwise agreed);
and
b)
will comply with the general requirements of safety in terms of risk
presented to the health and safety of persons.
(ii) Supplier shall soon as reasonably practicable repair or replace all Goods
which are or become defective during the period of 12 months from putting
into service or 18 months from delivery, whichever shall be the shorter,
where such defects occur under proper usage and are due to faulty design,
Supplier’s erroneous instructions as to use or erroneous use data, or
inadequate or faulty materials or workmanship, or any other breach of
Supplier’s warranties, expressed or implied. Repairs and replacements shall
themselves be subject to the foregoing obligations for a period of 12 months
from the date of delivery, reinstallation or passing of tests (if any) whichever
is appropriate after repair or replacement. Supplier shall further be liable to
damages (if any) in respect of each Purchase Order up to the limit of the
price of the Goods covered by that Purchase Order.
14. Liability For Accidents And Damage
(i) The Supplier shall indemnify and keep indemnified the University in full on or
after tax basis against all actions, suits, claims, demands, costs, losses,
(whether direct or indirect and including loss of profits) charges and expenses
(including legal expenses) suffered or incurred by the University to the extent
that such shall have arisen out of or have been caused by:a)
any breach of Contract by the Supplier;
b)
any negligence of the Supplier;
c)
any claim made allegation, action, dispute or proceedings that the
Goods infringe the Intellectual Property Rights of any third party;
d)
claim made against the University in respect of any breach or alleged
breach by the University of any statutory provision, regulation or
bylaws arising from the acts or omissions of the Supplier or its
employees, agents or sub-contractors; or
e)
any defective design (other than a design made, furnished or
specified by the University and for which the Supplier had disclaimed
responsibility in writing within a reasonable time after receipt of the
University’s instructions),
defective materials or
defective
workmanship.
Newcastle University Terms and Conditions for the Purchase of Goods
2010
(ii) The Supplier (but without limiting his obligations and responsibilities under this
Clause 14) shall maintain insurance cover with a reputable insurer against its
liabilities under the Contract.
(iii) In addition to the obligations in Clause 14(ii), the Supplier shall take out and
maintain:a)
public/product liability insurance written on an occurrence basis of at
least £1,000,000 for each and every claim; and
b)
employers liability insurance not less than £10,000,000 for each and
every incident.
(iv)
The Supplier shall whenever required produce evidence satisfactory to the
University that the policies required by this Clause 14 are in force.
(v)
If the Supplier is in breach of Clauses 14 (ii) to 14 (iv) the University may
itself insure against any risk with respect to which the default shall have
occurred, and may deduct a sum or sums equivalent to the amount paid or
payable in respect of premiums from any monies due or to become due to
the Supplier under the Contract or recover them from the Supplier as a
debt.
15. Intellectual Property
(i) The Supplier represents, warrants and undertakes that the supply of the
Goods to the University and the use by he University of the Goods (if the
Supplier has been made aware of the intended use) shall not in any way
infringe any Intellectual Property Right except where the design for the Goods
was made, furnished or specified by the University.
(ii) The Supplier represents, warrants and undertakes that all royalties and fees
on patented articles, processes and registered designs and any other
Intellectual Property Right embodied in or forming part of the Goods have
been paid and shall indemnify the University against all claims which may
result from any breach of this Clause 15 (ii).
16. Freedom of Information Act (2000)
(i) The University is committed to meeting its responsibilities under the FOIA and
the Supplier acknowledges that the University is subject to the requirements
of the FOIA and shall assist and cooperate with the University (at no expense
to the University) to enable the University to comply with these disclosure
requirements.
(ii)
Accordingly, all information submitted to the University may need to be
disclosed and/or published. If you consider that any of the information held in
connection with this Contract would give rise to an actionable breach of
confidence and/or would prejudice your commercial interests, and/or
constitute trade secrets (“Commercially Sensitive Information”) please
identify it and explain (in broad terms) what harm might result from the
disclosure and/or publication.
(iii) The Supplier shall procure that its employees, and agents shall:
Newcastle University Terms and Conditions for the Purchase of Goods
2010
a) transfer any request for information within the meaning of the FOIA
(“Request”) received by the Supplier to the University as soon as
practicable after receipt and in any event within 2 working days of receiving
a Request;
b) provide the University with a copy of all information within the meaning of
S84 of FOIA in its possession or power in the form that the University
requires as soon as is practicable and in any event within 5 working days
(or such other period as the University acting reasonably may specify) of
the University requesting that information; and
c) provide all necessary assistance as reasonably requested by the
University to enable the University to respond to a Request within the time
for compliance set out in section 10 of the FOIA.
(iv) The University shall be responsible for determining at its absolute discretion
whether the Commercially Sensitive Information and/or any other information:
a)
is exempt from disclosure in accordance with the provisions of the
FOIA; or
b)
is to be disclosed in response to a Request and in no circumstances
shall the Supplier respond directly to a Request unless expressly
authorised by the University.
(v) You acknowledge that the University may, acting in accordance with the Code
of Practice in the Discharge of Functions of Public Authorities under Part I of
the Freedom of Information Act 2000 (the “FOIA Code”) be obliged under the
FOIA to disclose information:a)
without consulting the Supplier; or
b)
following consultation with the Supplier and having taken its views into
account.
provided always that where Clause 16(v)(a) applies, the University shall in
accordance with the recommendations of the FOIA Code, draw this to the
attention of the Supplier prior to any disclosure.
(vi) The Supplier shall ensure that all information produced in the course of or
relating to the Contract is retained for disclosure.
17. Equal Opportunities and The Equality Act 2010
The University is committed to a comprehensive policy of equal opportunites and
to meeting its responsibilities under Equality Act 2010 (“the EA”) and the Code of
Practice on Racial Equality in Employment 2005, and any other codes of practice
issued by a relevant Government Department in relation to the EA.
The Supplier shall in performing the Contract comply with the provisions of
Section 149 of the EA as if the Supplier were a body within the meaning of
Schedule 19 to the EA.
The Supplier shall comply with the provisions of Section 41 of the EA in all
dealings with sub-contractors, subject to Clause 18.
Newcastle University Terms and Conditions for the Purchase of Goods
2010
All personnel employed by the Supplier for the purpose of performing the Contract
shall be suitably trained, qualified and experienced, and shall fulfil their duties in a
professional, ethical manner, consistent with the University 's commitment to
equal opportunities and the EA.
The Supplier shall accept its legal obligation to comply with legislation for the
prevention of discrimination, victimisation or harassment because of age,
disability, gender reassignment, marriage and civil partnership, pregnancy and
maternity, race, sex, sexual orientation and religion or belief, and the promotion of
equality.
The Supplier shall, when required, answer queries raised by the University on
matters referred to in this Clause and breach of statutory obligations will entitle
the University to terminate the Contract.
Copies of The University’s policies are available on request.
18. Assignment
The Supplier shall not without prior consent in writing of the University assign,
pledge, transfer or sub-contract the Contract or any part of it or any of his rights or
obligations under it to any other person. Any such consent of the University shall
not relieve the Supplier of any of his obligations arising out of the Contract.
19. Rights of Third Parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999, this
Contract is not intended to, and does not, give any person who is not a party to it
any right to enforce any of its provisions.
20. Termination
(i) The University may terminate the Contract immediately at any time without any
liability, and reserving all rights to the University accrued before termination, if:a)
if the Supplier is in breach of Contract which in the case of a breach
capable of remedy is not remedied by the consultant within 30 days of
being notified by the University in writing; or
b)
if the Supplier suffers and Insolvency Event.
(ii) Termination of the Contract does not affect:a)
the rights or liabilities of the parties under this Clause 20(ii) or which
have accrued on or before termination; and
b)
the continuance in force of Clauses 13, 14, 15 and 26 which survive
termination of the Contract.
21. Set Off
Without prejudice to any other right or remedy the University shall be entitled to
withold from any monies due or which may become due to the Supplier from the
University whether under the Contract or otherwise any sums which on the basis
Newcastle University Terms and Conditions for the Purchase of Goods
2010
of its bona fide estimate the University considers due to it from the Supplier under
the Contract.
22. Corrupt Gifts
The Supplier shall not, and shall procure that their employees, officer, agents,
subcontractors, or anyone else acting on their behalf shall not, offer or give, or
agree to give either directly or indirectly, to any employee or representative of the
University, any gift or consideration of any kind as an inducement or reward for
doing or refraining from doing or for having done or refrained from doing, any act
in relation to the obtaining or execution of this or any other contract with the
University, or for showing or refraining from showing favour or disfavour to any
person in relation to the Contract or any such other contract. The attention of the
Supplier’s is drawn to the criminal offences created by the Prevention of
Corruption Acts 1889 to 1916 and the Bribery Act 2010.
23. Headings
The headings in this Agreement are for ease of reference only and shall not affect
the construction thereof.
24. Waiver
A failure at any time by the University to enforce any provision of the Contract
shall in no way affect the right at a later date to require complete performance of
the Contract, nor shall the waiver of the breach of any provision be taken or held
to be a waiver of any subsequent breach of the provision or be a waiver of the
provision itself.
25. Notice
All notices and communications required to be sent by you or Us in this Contract
shall be made in writing in English and be served by leaving it at, or by sending it
by first class post or facsimile to, the address of the party specified in the
Contract.
26. Governing Law And Language
The language of the Contract shall be English. The Contract is governed by
English Law and the Supplier and The University hereby submit to the exclusive
jurisdiction of the English Courts.