Terms and Conditions of Contract for the supply of goods (and any

SIC – template – draft terms and conditions

VC117132

Template - approved by SMT 29/11/19

Terms and Conditions of Contract

for the supply of goods (and any

related services)

The Scottish Information Commissioner

(Purchaser)

…………… (Supplier)

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These Conditions may only be varied with the written agreement of the

Purchaser. No terms or conditions put forward at any time by the Supplier

shall form any part of the Contract unless specifically agreed in writing by the

Purchaser.

1. CONDITIONS

In these Conditions:

“Contract” means the contract between the Purchaser and Supplier consisting of the

Supplier's tender and the Purchaser's acceptance thereof (or the Supplier's

acceptance of the Purchaser's order for the goods, as the case may be) together

with any documents referred to in them, including the Specification and these

Conditions and any Schedules annexed;

“Data Controller”, “Data Processor”, “Data Subject” and “Data Subject Access

Requests” have the meanings given in the Data Protection Laws;

“Data Protection Laws” means any law, statute, subordinate legislation regulation,

order, mandatory guidance or code of practice, judgment of a relevant court of law,

or directives or requirements of any regulatory body which relates to the protection of

individuals with regard to the processing of Personal Data to which a Party is subject

including the Data Protection Act 2018 and any statutory modification or re-

enactment thereof and the GDPR;

“FOISA” means the Freedom of Information (Scotland) Act 2002 (as amended) and

reference to FOI requests shall be read as reference to requests for information

under FOISA;

“GDPR” means the General Data Protection Regulation (EU) 2016/679 of the

European Parliament and of the Council of 27 April 2016 on the protection of natural

persons with regard to the processing of personal data and on the free movement of

such data, and repealing Directive 95/46/EC;

“Goods” means any such goods as are to be supplied to the Purchaser by the

Supplier (or by any of the Supplier's sub-contractors) pursuant to or in connection

with this Contract;

“Intellectual Property Rights” means all copyright, patent, trademark, design right,

database right and any other right in the nature of intellectual property whether or not

registered, in any materials or works in whatever form (including but not limited to

any materials stored in or made available by means of an information technology

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system and the computer software relating thereto) which are created, produced or

developed in connection with this Contract by or on behalf of the Supplier;

“Premises” means the location where the services are to be performed as specified

in the Contract or Purchase Order;

“Processing” has the meaning given in the Data Protection Laws and cognate

expressions shall be construed accordingly;

“Purchaser” means the Scottish Information Commissioner;

“Purchase Order” means the document setting out the Purchaser's requirements for

the Contract;

“Services” means the services provided as specified in the contract including (but not

restricted to) the provision [and installation] of goods and shall, where the context so

admits, include any materials, articles and goods to be supplied in connection with

any such services;

“Supervisory Authority” has the meaning given in Data Protection Laws; and

“Supplier” means the person, firm or company to whom the Contract is issued;

2. THE GOODS

2.1 The Goods shall be to the reasonable satisfaction of the Purchaser and shall

conform in all respects with any particulars specified in the Contract and in any

variations thereto.

2.2 The Goods shall conform in all respects with the requirements of any statutes,

orders, regulations or bye-laws from time to time in force.

2.3 The Goods shall be fit and sufficient for the purpose for which such goods are

ordinarily used and for any particular purpose made known to the Supplier by the

Purchaser and the Purchaser relies on the skill and judgement of the Supplier in the

supply of the Goods and the execution of the Contract.

3. THE PRICE

3.1 The price of the Goods and any related Services shall be as stated in the

Contract and no increase will be accepted by the Purchaser unless agreed by the

Purchaser in writing before the commencement of performance of the Contract.

3.2.1 Unless otherwise agreed in writing by the Purchaser, the Supplier shall render

a separate invoice in respect of each consignment delivered under the Contract.

Payment shall be due 30 days after receipt of the Goods or the correct invoice

therefor, whichever is the later.

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3.2.2 In this Condition 3, ‘invoice’ includes an electronic invoice meeting all the

requirements set out in regulation 70A of the Public Contracts (Scotland)

Regulations 2015 or regulation 44A of the Concession Contracts (Scotland)

Regulations 2016.

3.3 Value Added Tax, where applicable, shall be shown separately on all invoices

as a strictly net extra charge.

3.4 Notwithstanding Condition 25 (Assignation and sub-contracting) of this Contract

the Supplier may assign to another person (an "assignee") the right to receive

payment of the Price or any part thereof due to the Supplier under this Contract

subject to (i) deduction of sums in respect of which the Purchaser exercises its right

of recovery under Condition 24 (Recovery of sums due) of this Contract and (ii) all

the related rights of the Purchaser under this Contract in relation to the recovery of

sums due but unpaid. The Supplier shall notify or procure that any assignee notifies

the Purchaser of any variations to the arrangements for payment of the Price or for

handling invoices, in each case in good time to enable the Purchaser to redirect

payments or invoices accordingly. In the absence of such notification the Purchaser

shall be under no obligation to vary the arrangements for payment of the Price or for

handling invoices.

4. CHANGE TO CONTRACT REQUIREMENTS

4.1 The Purchaser may order any variation to any quantity or specification of goods

or to any part of the Services that for any other reason shall in the Purchaser’s

opinion be desirable. Any such variation may include (but shall not be restricted to)

additions, omissions, alterations, substitutions to the Goods or Services and changes

in quality, form, character, kind, timing, method or sequence of the delivery of Goods

or provision of Services.

4.2 Save as otherwise provided herein, no variation of the specification of Goods or

of the Services as provided for in Condition 4.1 hereof shall be valid unless given or

confirmed in the form of an order given by the Purchaser. All such orders shall be

given in writing provided that if for any reason the Purchaser shall find it necessary to

give any such order orally in the first instance the Supplier shall comply with such

oral order which must be confirmed in writing by the Purchaser within 2 working days

of the giving of such oral order by the Purchaser, failing which the variation made by

such oral order shall cease to have effect on the expiry of the said 2 working day

period.

4.3 Where any such change in quality or specifications of Goods or variation of the

Services made in accordance with Conditions 4.1 and 4.2 has affected or may affect

the costs incurred by the Supplier delivering the Goods or providing the Services, the

Supplier will notify the Purchaser in writing of the effect which it has had or may have

on the said costs and such notification shall be considered by the Purchaser, who

shall take all of the facts into account (including such information as may be provided

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by the Supplier in respect of the effect which such variation has had or may have on

the costs incurred by the Supplier in providing the Goods or Service) and may

authorise such alteration to the sums to be paid to the Supplier in accordance with

the provisions of the Contract as are, in the Purchaser’s opinion, appropriate and

reasonable in the circumstances.

5. INSPECTION OF PREMISES AND NATURE OF SERVICES

5.1 The Supplier is deemed to have inspected the Premises before tendering so as

to have understood the nature and extent of the Services to be carried out and is

deemed to be satisfied in relation to all matters connected with the Services and

Premises.

5.2 The Purchaser shall, at the request of the Supplier, grant such access as may be

reasonable for this purpose.

5.3 Unless otherwise specified, the Supplier shall provide all plant, tools, material,

labour, haulage and any other things necessary to complete the Contract.

6. SECURITY AND ACCESS TO THE PURCHASER’S PREMISES

6.1 Any access to, or occupation of, the Purchaser’s premises which the Purchaser

may grant the Supplier from time to time is on a non-exclusive licence basis free of

charge. The Supplier must use the Purchaser’s premises solely for the purpose of

performing its obligations under the Contract and must limit access to the

Purchaser’s premises to such individuals as are necessary for that purpose.

6.2 The Supplier must comply with the Purchaser’s policies concerning any required

security checks and such modifications to those policies or replacement policies as

are notified to the Supplier from time to time.

6.3 The Supplier must notify the Purchaser of any matter or other change in

circumstances which might adversely affect future Security Clearance.

6.4 At the Purchaser’s written request, the Supplier must provide a list of the names

and addresses of all persons who may require admission to the Purchaser’s

premises in connection with the Contract, specifying the capacities in which they are

concerned with the Contract and giving such other particulars as the Purchaser may

reasonably request.

6.5 The Supplier must ensure that any individual Supplier Representative entering

the Purchaser’s premises has completed the process for obtaining Security

Clearance. The Supplier acknowledges that the Purchaser has the right to deny

entry to any individual that has not completed the process for obtaining Security

Clearance.

May not be required in all contracts for goods and services

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6.6 In accordance with the Purchaser’s policies concerning visitor access, entry to

the Purchaser’s premises may be granted to individual Supplier Representatives for

the purposes of meetings, notwithstanding that the process for obtaining security

clearance has not commenced or completed.

6.7 The Purchaser may, by notice to the Supplier, refuse to admit onto, or withdraw

permission to remain on, the Purchaser’s premises any Supplier Representative

whose admission or continued presence would, in the opinion of the Purchaser

acting reasonably, be undesirable.

6.8 The Purchaser must provide advice and assistance acting reasonably to the

Supplier to facilitate the Supplier’s compliance with this Condition.

6.9 All decisions of the Purchaser under this Condition are final and conclusive.

6.10 Breach of this Condition by the Supplier is a material breach for the purposes of

Condition 23.2 (Termination).

In this Condition 6 the following terms have the meanings given to them below:

“Security Clearance” means the pre-employment controls for the Commissioner’s

staff.

“Supplier Representatives” means all persons engaged by the Supplier in the

performance of its obligations under the Contract including:

 its employees and workers (including persons employed by a third party but

working for and under the control of the Supplier);

 its agents, suppliers and carriers; and

 any sub-contractors of the Supplier (whether approved under Condition 25

(Assignation and sub-contracting) or otherwise).’

7. SUPPLIER'S STATUS

In carrying out any Services associated with the Contract the Supplier shall be acting

as principal and not as the agent of the Purchaser. Accordingly:

(a) the Supplier shall not (and shall procure that his agents and servants do not) say

or do anything that might lead any other person to believe that the Supplier is acting

as the agent of the Purchaser, and

(b) nothing in this Contract shall impose any liability on the Purchaser in respect of

any liability incurred by the Supplier to any other person but this shall not be taken to

exclude or limit any liability of the Purchaser to the Supplier that may arise by virtue

of either a breach of this Contract or any negligence on the part of the Purchaser, or

the Purchaser’s staff or agents.

8. SUPPLIER'S PERSONNEL

Comment [HG1]: We may need these

provisions in certain cases – probably not

for the majority of contracts but it would

be useful to keep the provisions as a

reminder to staff that security is an

important consideration.

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8.1 The Supplier shall take the steps reasonably required by the Purchaser to

prevent unauthorised persons being admitted to the Premises. If the Purchaser gives

the Supplier notice that any person is not to be admitted to or is to be removed from

the Premises or is not to become involved in or is to be removed from involvement in

the performance of the Contract, the Supplier shall take all reasonable steps to

comply with such notice and if required by the Purchaser the Supplier shall replace

any person removed under this Condition with another suitably qualified person and

procure that any security pass issued to the person removed is surrendered. The

giving of such notice by the Purchaser to the Supplier as aforesaid shall not entitle

the Supplier to delay, suspend, terminate or withhold the performance of any of its

obligation in terms of the Contract and it shall remain bound to timeously implement

its obligations in full, whether or not it complies with the terms of the said notice or

otherwise.

8.2 If and when instructed by the Purchaser, the Supplier shall give to the Purchaser

a list of names and addresses of all persons who are or may be at any time

concerned with the Services or any part of them specifying the capacities in which

they are so concerned, and giving such other particulars and evidence of identity and

other supporting evidence as the Purchaser may reasonably require.

8.3 The decision of the Purchaser shall be final and conclusive as to whether any

person is to be admitted to or is to be removed from the Premises or is not to

become involved in or is to be removed from involvement in the performance of the

Contract and as to whether the Supplier has furnished the information or taken the

steps required of the Supplier by this Condition.

8.4 The Supplier shall bear the cost of any notice, instruction or decision of the

Purchaser under this Condition.

9. DELIVERY

9.1 The Supplier shall make no delivery of materials, plant or other things, nor

commence any work on the Premises without obtaining the Purchaser's prior

consent. The Supplier shall make delivery at a time agreed between the Supplier

and Purchaser.

9.2 The Goods shall be delivered to the place named in the Contract. Any access to

premises and any labour and equipment that may be provided by the Purchaser in

connection with delivery shall be provided without acceptance by the Purchaser of

any liability whatsoever and the Supplier shall indemnify the Purchaser in respect of

any actions, suits, claims, demands, losses, charges, costs and expenses which the

Purchaser may suffer or incur as a result of or in connection with any damage or

injury (whether fatal or otherwise) occurring in the course of delivery or installation to

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the extent that any such damage or injury is attributable to any act or omission of the

Supplier or any of the Supplier’s sub-contractors.

9.3 The time of delivery shall be of the essence and failure to deliver within the time

promised or specified shall enable the Purchaser (at the Purchaser’s option) to

release themselves from any obligation to accept and pay for the Goods and/or to

cancel all or part of the Contract therefor, in either case without prejudice to the

Purchaser’s other rights and remedies.

10. ACCESS

10.1 Where any access to the premises is necessary in connection with delivery [or

installation] the Supplier and the Supplier’s sub-contractors shall at all times comply

with the reasonable requirements of the Finance and Administration Manager.

10.2 Access to the Premises shall not be exclusive to the Supplier but only such as

shall enable the Supplier to carry out the Services concurrently with the execution of

work by others. The Supplier shall co-operate with such others as the Purchaser

may reasonably require.

10.3 The Purchaser shall have the power at any time during the progress of the

Services to order in writing:

(a) the removal from the Premises of any materials which in the opinion of the

Purchaser are either hazardous, noxious or not in accordance with the Contract;

(b) the substitution of proper and suitable materials;

interim payment therefor of any work which, in respect of material or workmanship, is

not in the opinion of the Purchaser in accordance with the Contract.

The Supplier shall comply forthwith with the terms of any such order.

10.4 On completion of the Services the Supplier shall remove the Supplier’s plant,

equipment and unused materials and shall clear away from the Premises all rubbish

arising out of the Services and leave the Premises in a neat and tidy condition.

11. PROPERTY AND RISK

Property and risk in the Goods shall without prejudice to any of the rights or

remedies of the Purchaser (including the Purchaser's rights and remedies under

Condition 13 (Inspection, etc.) hereof) pass to the Purchaser at the time of delivery.

12. DAMAGE IN TRANSIT

On dispatch of any consignment of the Goods the Supplier shall send to the

Purchaser at the address for delivery of the Goods an advice note specifying the

means of transport, the place and date of dispatch, the number of packages and

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their weight and volume. The Supplier shall free of charge and as quickly as possible

either repair or replace (as the Purchaser shall elect) such of the Goods as may

either be damaged in transit or having been placed in transit fail to be delivered to

the Purchaser provided that:

(a) in the case of damage to such Goods in transit the Purchaser shall within thirty

days of delivery give notice to the Supplier that the Goods have been damaged;

(b) in the case of non-delivery the Purchaser shall (provided that the Purchaser has

been advised of the dispatch of the Goods) within 10 days of the notified date of

delivery give notice to the Supplier that the Goods have not been delivered.

13. INSPECTION, REJECTION AND GUARANTEE

13.1 The Supplier shall permit the Purchaser or the Purchaser’s authorised

representatives to make any inspections or tests of the Goods the Purchaser may

reasonably require and the Supplier shall afford all reasonable facilities and

assistance free of charge at the Supplier’s premises. No failure to make complaint at

the time of such inspection or tests and no approval given during or after such tests

or inspections shall constitute a waiver by the Purchaser of any rights or remedies in

respect of the Goods.

13.2 The Purchaser may by written notice to the Supplier reject any of the Goods

which fail to meet the requirements specified in the contract. Such notice shall be

given within a reasonable time after delivery to the Purchaser of Goods concerned. If

the Purchaser shall reject any of the Goods pursuant to this Condition the Purchaser

shall be entitled (without prejudice to his other rights and remedies) either:

(a) to have the Goods concerned as quickly as possible either repaired by the

Supplier or (as the Purchaser shall elect) replaced by the Supplier with Goods which

comply in all respects with the requirements specified herein; or

(b) to obtain a refund from the Supplier in respect of the Goods concerned.

13.3 The guarantee period applicable to the Goods shall be 12 months from the

putting into service or 18 months from delivery of the Goods, whichever shall be the

shorter (subject to any alternative guarantee arrangements agreed in writing

between the Purchaser and the Supplier). If the Purchaser shall within such

guarantee period or within 30 days thereafter give notice in writing to the Supplier of

any defect in any of the Goods as may have arisen during such guarantee period

under proper and normal use the Supplier shall (without prejudice to any other rights

and remedies which the Purchaser may have) as quickly as possible remedy such

defects (whether by repair or replacement as the Purchaser shall elect) without cost

to the Purchaser.

13.4 Any Goods rejected or returned by the Purchaser as described in paragraphs

13.2 or 13.3 shall be returned to the Supplier at the Supplier's risk and expense.

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14. LABELLING AND PACKAGlNG

14.1 The Goods shall be packed and marked in a proper manner and in accordance

with the Purchaser's instructions and any statutory requirements and any

requirements of the carriers. In particular the Goods shall be marked with the

number of the Purchase Order (if any), the net, gross and tare weights, the name of

the contents shall be clearly marked on each container and all containers of

hazardous goods

(and all documents relating thereto) shall bear prominent and

adequate warnings. The Supplier shall indemnify the Purchaser against all actions,

suits, claims, demands, losses, charges, costs and expenses which the Purchaser

may suffer or incur as a result of or in connection with any breach of this Condition.

14.2 All packaging materials will be considered non-returnable and will be destroyed

unless the Supplier's advice note states that such materials will be charged for

unless returned. The Purchaser accepts no liability in respect of the non-arrival at the

Supplier's Premises of empty packages returned by the Purchaser unless the

Supplier shall within ten days of receiving notice from the Purchaser that the

packages have been dispatched notify the Purchaser of such non-arrival.

14.3 The Supplier represents and warrants that the maximum use has been made of

recycled materials in the manufacture of crates, pallets, boxes, cartons, cushioning

and other forms of packing, where these fulfil other packing specifications.

15. AUDIT

The Supplier shall keep and maintain until 6 years after the Contract has been

completed records to the satisfaction of the Purchaser of all expenditures which are

reimbursable by the Purchaser and of the hours worked and costs incurred in

connection with any employees of the Supplier paid for by the Purchaser on a time

charge basis. The Supplier shall on request afford the Purchaser or his

representatives such access to those records as may be required by the Purchaser

in connection with the Contract.

16. CORRUPT GIFTS OR PAYMENTS

The Supplier shall not offer or give, or agree to give, to any employee or

representative of the Purchaser 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 Purchaser or for showing or refraining from showing favour or

disfavour to any person in relation to this or any such Contract. The attention of the

Supplier is drawn to the criminal offences created by the Bribery Act 2010.

Consider the applicable requirements

Comment [HG2]: This helps us comply

with our sustainability requirements

Comment [HG3]: This complies with

our current retention schedule which we

are currently reviewing

Comment [HG4]: Corresponds with our

anti fraud policy

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17. INTELLECTUAL PROPERTY RIGHTS

17.1 All Intellectual Property Rights in any material, including (but not limited to)

reports, guidance, specification, instructions, toolkits, plans, data, drawings,

databases, patents, patterns, models, designs which are created or developed by

the Supplier on behalf of the Purchaser for use, or intended use, in relation to the

performance by the Supplier of its obligations under the Contract are hereby

assigned to and shall vest in the Purchaser absolutely.

17.2 Except as may expressly be provided for in the Contract, neither party acquires

any interest in or license to use the other party’s Intellectual Property Rights owned

or developed prior to or independently of the Contract.

17.3 The Supplier must not infringe any Intellectual Property Rights of any third party

in providing the Services or otherwise performing its obligations under the Contract.

The Supplier shall indemnify the Purchaser against all actions, claims, demands,

losses, charges, costs and expenses which the Purchaser may suffer or incur as a

result of or in connection with any breach of this Condition 17.3.

17.4 The provisions of this Condition 17 shall apply during the continuance of this

Contract and after its termination howsoever arising.

18. HEALTH AND SAFETY

18.1 The Supplier represents and warrants to the Purchaser that the Supplier is

satisfied that all necessary tests and examinations have been made or will be made

prior to delivery of the Goods to ensure that the Goods are designed and constructed

so as to be safe and without risk to the health or safety of persons using the same,

and that the Supplier has made available to the Purchaser adequate information

about the use for which the Goods have been designed and have been tested and

about any conditions necessary to ensure that when put to use the goods will be

safe and without risk to health.

18.2 The Supplier shall perform the Services in such a manner as to be safe and

without risk to the health or safety of persons in the vicinity of the place where the

Services are being performed (whether such persons are in the vicinity of the said

place at the time when the Services are being performed or otherwise) and in such a

manner as to comply with any relevant health and safety or other legislation

(including Statutory Instrument, Orders, or Regulations made under the said

legislation) and any requirements imposed by a local or other regulatory authority in

connection with the performance of services of the type supplied to the Purchaser,

whether specifically or generally.

18.3 With prejudice to the generality of paragraph 18.1 hereof, the Supplier shall

indemnify the Purchaser against all actions, suits, claims, demands, losses, charges,

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costs and expenses which the Purchaser may suffer or incur as a result of or in

connection with any breach of paragraphs 18.1 or 18.2 hereof.

19. INDEMNITY AND INSURANCE

19.1 Without prejudice to any rights or remedies of the Purchaser (including the

Purchaser's rights and remedies under Condition 13 (Inspection, etc.)) hereof) the

Supplier shall indemnify the Purchaser against all actions, suits, claims, demands,

losses, charges, costs and expenses which the Purchaser may suffer or incur as a

result of or in connection with any damage to property or in respect of any injury

(whether fatal or otherwise) to any person which may result directly or indirectly from

any defect in the Goods or the negligent or wrongful act or omission of the Supplier.

19.2 The Purchaser shall indemnify the Supplier in respect of all claims,

proceedings, actions, damages, fines, costs, expenses or other liabilities which may

arise out of, or in consequence of, a breach of the Data Protection Laws where the

breach is the direct result of the Supplier acting in accordance with the Purchaser’s

specific written instructions. This indemnity provision shall not apply if the Supplier:

(a) acts on the Purchaser’s specific written instructions but fails to notify the

Purchaser in accordance with Condition 31.11(c) of this Contract;

(b) fails to comply with any other obligation under the Contract.

19.3 Except in the case of loss, damage or personal injury (including death) suffered

by an employee of the Supplier (in respect of which the indemnity in Condition 19.1

shall apply whether or not the loss, damage or personal injury was caused by the

negligent or wilful act or omission of the Purchaser) the indemnity contained in

Condition 19.1 shall not apply to the extent that the loss, damage or injury is caused

by the negligent or wilful act or omission of the Purchaser.

19.4 The Supplier shall have in force and shall require any sub-Contractor to have in

force:

(a) employer's liability insurance in accordance with any legal requirements for the

time being in force, and

(b) public liability insurance for such sum and range of cover as the Supplier deems

to be appropriate but covering at least all matters which are the subject of

indemnities or compensation obligations under these Conditions in the sum of not

less than £1 million for any one incident and unlimited in total, unless otherwise

agreed by the Purchaser in writing.

19.5 The policy or policies of insurance referred to in paragraph 19.2 shall be shown

to the Purchaser whenever the Purchaser requests, together with satisfactory

evidence of payment of premiums.

20. DISCRIMINATION

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The Supplier must not unlawfully discriminate against any person within the meaning

of the Equality Act 2010 in its activities relating to the Contract or any other contract

with the Purchaser.

21. BLACKLISTING

The Supplier must not commit any breach of the Employment Relations Act 1999

(Blacklists) Regulations 2010 or section 137 of the Trade Union and Labour

Relations (Consolidation) Act 1992, or commit any breach of the Data Protection

Laws by unlawfully processing personal data in connection with any blacklisting

activities. Breach of this Condition is a material default which shall entitle the

Purchaser to terminate the Contract

22. CONFIDENTIALITY

22.1 The provisions of this Condition 22 shall apply during the continuance of this

Contract and after its termination howsoever arising and the Supplier undertakes to

abide and procure that the Supplier’s employees comply with this clause and

provisions 22.2 and 22.3.

22.2 The Supplier shall keep confidential and not disclose and shall procure that the

Supplier’s employees keep confidential and do not disclose any information of a

confidential nature obtained by the Supplier by reason of the Contract except

information which is in the public domain otherwise than by reason of a breach of

this provision.

22.3 The Supplier may disclose any information as required by law or judicial order

to be disclosed.

22.4 The Purchaser may disclose any information as required by law or judicial order

to be disclosed. Further, the Purchaser may disclose all information obtained by the

Purchaser by virtue of the Contract to the Scottish Parliament or the United Kingdom

Parliament any other department, office or agency of Her Majesty’s Government in

Scotland or the United Kingdom, and their servants or agents. When disclosing such

information to either the Scottish Parliament or the United Kingdom Parliament it is

recognised and agreed by both parties that the Purchaser shall, if the Purchaser

sees fit, disclose such information but is unable to impose any restrictions upon the

information that the Purchaser provides to Members of the Scottish Parliament,

(MSPs) or Members of the United Kingdom Parliament (MPs). Such disclosure shall

not be treated as a breach of this Contract.

22.5 The provisions of this Condition 22 shall apply during the continuance of the

Contract and after its termination howsoever arising.

22.6 The Parties acknowledge that, except for any Information which is exempt from

disclosure in accordance with the provisions of the FOISA, the content of the

Contract is not confidential information and the Supplier hereby gives its consent for

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the Purchaser to publish the Contract in its entirety to the general public (but with

any Information that is exempt from disclosure in accordance with the FOISA

redacted) including any changes to the Contract agreed from time to time.

22.7 The Parties also acknowledge the following:

 the Purchaser is responsible for promoting and enforcing FOISA and the

Environmental Information (Scotland) Regulations 2004 (the Regulations).

Both laws give people (members of the public, companies, etc.) the right to

access information held by Scottish public authorities. They also require

public authorities to publish information proactively.

 [The Supplier is also a Scottish public authority and must comply with FOISA,

the Regulations and the Codes of Practice

 The right to access information is subject to a number of exemptions. For

example, the Purchaser does not have to release information where its

disclosure:

o would substantially prejudice someone else’s commercial interests; or

o would be an actionable breach of confidence.

 Even where an exemption does apply, the information may still have to be

disclosed if it is in the public interest to do so.

 Personal information will only be released in limited circumstances.

 The FOISA and the Regulations will affects this agreement in two main ways:

o the Purchaser cannot accept confidentiality terms and conditions in a

contract which might normally be imposed in contracts with other

organisations; and

o details about the goods and services provided to the Purchaser

(including details of this agreement) may be published or released in

response to an information request.

 The Supplier can agree to accept information in confidence only where the

information is genuinely sensitive and exempt from release under the above

legislation.

 Even if the Supplier agrees to accept some information in confidence, the

information may be disclosed at some point in the future. If a FOI request is

made to the Purchaser, a decision whether to release the information will be

made at the time the request is made. If there is information that should be

treated as confidential, it is important that, at the same time that such

Only to be included where appropriate

Comment [HG5]: Only to be included

where appropriate - may need to make

further amends to this provision where this

is the case

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information is provided, that there is also provided a detailed explanation

covering the following:

o the information that is considered to be confidential; and

o the reasons why the information is sensitive; and

o the time period that the confidential information will remain sensitive;

and

o the exemptions in the above Act or the exceptions in the above

Regulations that apply and why.

 The Purchaser may receive a request for any information about this

Agreement or the related procurement exercise, for example,

correspondence, notes of meetings or contract documentation.

 In most cases, the Purchaser will aim to respond to any requests by

disclosing the information. In limited circumstances (referred to above), the

Purchaser can refuse to provide the information requested.

 The Purchaser will advise the Supplier that a FOI request has been made

only if it is considered appropriate to do so.

 If the Purchaser does contact the Supplier about a FOI request, the Supplier

must respond as soon as possible, as a response, in full, to the request for

information must be given within 20 working days. If the Supplier does not

respond to the Partner, it is likely that the information will be released. If the

Supplier does not wish some or all of the information to be released, the

Supplier must provide the Purchaser with detailed reasons why the

information should not be released.

 Any views the Supplier give will be taken fully into account, but it is the

Purchaser who is responsible for deciding whether to release the information

in response to a FOI request.

23. TERMINATION

23.1 The Supplier shall notify the Purchaser in writing immediately upon the

occurrence of any of the following events:

(a) where the Supplier is an individual and if a petition is presented for the Supplier's

bankruptcy or the sequestration of the Supplier’s estate or a criminal bankruptcy

order is made against the Supplier, or the supplier is apparently insolvent, or makes

any composition or arrangement with or for the benefit of creditors, or makes any

conveyance or assignation for the benefit of creditors, or if an administrator or

trustee is appointed to manage the Supplier’s affairs; or

(b) where the Supplier is not an individual but is a firm, or a number of persons

acting together in any capacity, if any event in (a) or (c) of this Condition occurs in

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respect of the firm or any partner in the firm or any of those persons or a petition is

presented for the Supplier to be wound up as an unregistered company; or

up of dissolution (otherwise than for the purposes of and followed by an

amalgamation or reconstruction) or the court makes an administration order or a

winding-up order, or the company makes a composition or arrangement with its

creditors, or an administrator, administrative receiver, receiver or manager is

appointed by a creditor or by the court or possession is taken of any of its property

under the terms of a floating charge.

23.2 On the occurrence of any of the events described in paragraph 23.1 or, if the

Supplier shall have committed a material breach of this Contract and (if such breach

is capable of remedy) shall have failed to remedy such breach within 30 days of

being required by the Purchaser in writing to do so or, where the Supplier is an

individual, if the Supplier shall die or be adjudged incapable of managing his or her

affairs within the meaning of the Adults with Incapacity (Scotland) Act 2000 or the

Mental Health (Care and Treatment) (Scotland) Act 2003, the Purchaser shall be

entitled to terminate this Contract by notice to the Supplier with immediate effect.

Thereupon, without prejudice to any other of the Purchaser’s rights, the Purchaser

may complete the Services or have them completed by a third party, using for that

purpose (making a fair and proper allowance therefor in any payment subsequently

made to the Supplier) all materials, plant and equipment on the Premises belonging

to the Supplier, and the Purchaser shall not be liable to make any further payment to

the Supplier until the Services have been completed in accordance with the

requirements of the Contract, and shall be entitled to deduct from any amount due to

the Supplier the costs thereof incurred by the Purchaser (including the Purchaser's

own costs). If the total cost to the Purchaser exceeds the amount (if any) due to the

Supplier, the difference shall be recoverable by the Purchaser from the Supplier.

23.3 The Purchaser may terminate the Contract in the event that:

(a) the Contract has been subject to substantial modification which would have

required a new procurement procedure in accordance with regulation 72(9)

(modification of contracts during their term) of The Public Contracts (Scotland)

Regulations 2015;

(b) the Supplier has, at the time of contract award, been in one of the situations

referred to in regulation 58(1) (exclusion grounds) of The Public Contracts (Scotland)

Regulations 2015, including as a result of the application of regulation 58(2) of those

regulations, and should therefore have been excluded from the procurement

procedure; or

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infringement of the obligations under the Treaties and the Directive 2014/24/EU that

has been declared by the Court of Justice of the European Union in a procedure

under Article 258 of the Treaty on the Functioning of the European Union.

In this Condition, ‘the Treaties’ has the meaning given in the European Communities

Act 1972.

23.4 The Purchaser may also terminate the Contract in the event of a failure by the

Supplier to comply in the performance of the Services with legal obligations in the

fields of environmental, social and employment law.

23.5 In addition to the Purchaser’s rights of termination under paragraph 23.2, 23.3

and 23.4, the Purchaser shall be entitled to terminate this Contract by giving to the

Supplier not less than 30 days' notice to that effect.

23.6 Termination under paragraphs 23.2, 23.3, 23.4 or 23.5 shall not prejudice or

affect any right of action or remedy which shall have accrued or shall thereupon

accrue to the Purchaser and shall not affect the continued operation of Conditions 17

(Intellectual Property Rights) , 22 (Confidentiality), and 31 (Data Protection).

24. RECOVERY OF SUMS DUE

Wherever under the Contract any sum of money is recoverable from or payable by

the Supplier, that sum may be deducted from any sum then due, or which at any

later time may become due, to the Supplier under the Contract or under any other

agreement or contract with the Purchaser.

25. ASSIGNATION AND SUB-CONTRACTING

25.1 The Supplier shall not without the written consent of the Purchaser assign the

benefit or burden of the Contract or any part thereof.

25.2 No sub-contracting by the Supplier shall in any way relieve the Supplier of any

of his responsibilities under the Contract.

25.3 Where the Supplier enters into a sub-contract must ensure that a provision is

included which:

25.3.1 requires payment to be made of all sums due by the Supplier to the sub-

contractor within a specified period not exceeding 30 days from the receipt of a valid

invoice as defined by the sub-contract requirements and provides that, where the

Purchaser has made payment to the Supplier in respect of Services and the

subcontractor’s invoice relates to such Services then, to that extent, the invoice must

be treated as valid and, provided the Supplier is not exercising a right of retention or

set-off in respect of a breach of contract by the sub-contractor or in respect of a sum

otherwise due by the sub-contractor to the Supplier, payment must be made to the

sub-contractor without deduction;

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25.3.2 notifies the sub-contractor that the sub-contract forms part of a larger contract

for the benefit of the Purchaser and that should the subcontractor have any difficulty

in securing the timely payment of an invoice, that matter may be referred by the sub-

contractor to the Purchaser; and

5.3.3 in the same terms as that set out in this Condition 25.3 (including for the

avoidance of doubt this Condition 25.3.3) subject only to modification to refer to the

correct designation of the equivalent party as the Supplier and sub-contractor as the

case may be.

25.4 The Supplier shall also include in every sub-contract:

24.4.1 a right for the Supplier to terminate that sub-contract if the relevant sub-

contractor fails to comply in the performance of its contract with legal obligations in

the fields of environmental, social or employment law or if any of the termination

events (involving substantial modification of the Contract, contract award despite the

existence of exclusion grounds or a serious infringement of EU legal obligations)

specified in Condition 23.3 occur; and

25.4.2 a requirement that the sub-contractor includes a provision having the same

effect as 25.4.1 in any sub-contract which it awards.

In this Condition 25.4, ‘sub-contract’ means a contract between two or more

suppliers, at any stage of remoteness from the Purchaser in a sub-contracting chain,

made wholly or substantially for the purpose of performing (or contributing to the

performance of) the whole or any part of this Contract.

26. NOTICES

Any notice given under or pursuant to the Contract may be sent by hand or by post

or by registered post or by the recorded delivery service or transmitted by telex,

telemessage, facsimile transmission or other means of telecommunication resulting

in the receipt of a written communication in permanent form and if so sent or

transmitted to the address of the party shown on the Purchase Order, or to such

other address as the party may by notice to the other have substituted therefor, shall

be deemed effectively given on the day when in the ordinary course of the means of

transmission it would first be received by the addressee in normal business hours.

27. COMPLIANCE WITH THE LAW ETC.

In performing the Contract, the Supplier must comply in all respects with:

27.1 all applicable law;

27.2 any applicable requirements of regulatory bodies; and

27.3 Good Industry Practice.

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In this Condition, ‘Good Industry Practice’ means standards, practices, methods and

procedures conforming to legal and regulatory requirements and the degree of skill

and care, diligence, prudence and foresight which would reasonably and ordinarily

be expected from a skilled and experienced person or body engaged in a similar

type of undertaking as the Supplier under the same or similar circumstances.

28. DISPUTE RESOLUTION

28.1 The parties must attempt in good faith to resolve any dispute between them

arising out of or in connection with the Contract.

28.2 Any dispute or difference arising out of or in connection with the Contract,

including any question regarding it existence, validity or termination which cannot be

resolved in good faith, shall be determined by the appointment of a single arbitrator

to be agreed between the parties, and failing agreement within 14 days after either

party has given to the other a written request to concur in the appointment of an

arbitrator, by an arbitrator to be appointed by the Scottish Arbitration Centre on the

written application of either party. The seat of the arbitration shall be in Scotland.

The language used in the arbitral proceedings shall be English.

28.3 Any arbitration under 28.2 is subject to the Arbitration (Scotland) Act 2010.

29. HEADINGS

The headings to Conditions shall not affect their interpretation.

30. GOVERNING LAW

These Conditions shall be governed by and construed in accordance with Scots law

and the Supplier hereby irrevocably submits to the jurisdiction of the Scottish courts.

The submission to such jurisdiction shall not (and shall not be construed so as to)

limit the right of the Purchaser to take proceedings against the Supplier in any other

court of competent jurisdiction, nor shall the taking of proceedings in any one or

more jurisdictions preclude the taking of proceedings in any other jurisdiction,

whether concurrently or not.

31. DATA PROTECTION

31.1 The Supplier acknowledges that Personal Data described in the scope of the

Schedule (Data Protection) may be Processed in connection with the Services under

this Contract. For the purposes of any such Processing, Parties agree that the

Supplier acts as the Data Processor and the Purchaser acts as the Data Controller.

31.2 Both Parties agree to negotiate in good faith any such amendments to this

Contract that may be required to ensure that both Parties meet all their obligations

under Data Protection Laws. The provisions of this Condition 31 are without

prejudice to any obligations and duties imposed directly on the Supplier under the

Comment [HG6]: Amend if necessary

to include additional requirements

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Data Protection Laws and the Supplier hereby agrees to comply with those

obligations and duties.

31.3 The Supplier will, in conjunction with the Purchaser and in its own right and in

respect of the Services, make all necessary preparations to ensure it is compliant

with the Data Protection Laws.

31.4 The Supplier will provide the Purchaser with the contact details of its data

protection officer or other designated individual with responsibility for data protection

and privacy to act as the point of contact for the purpose of observing its obligations

under the Data Protection Laws.

31.5 The Supplier must comply with the terms of the data processing provisions set

out in the Schedule and must:

31.5.1 process Personal Data only as necessary in accordance with obligations

under the Contract and any written instructions given by the Purchaser (which may

be specific or of a general nature), including with regard to transfers of Personal

Data outside the European Economic Area unless required to do so by European

Union or Member state law or Regulatory Body to which the Supplier is subject; in

which case the Supplier must inform the Purchaser of that legal requirement before

processing unless prohibited by that law the Personal Data only to the extent, and in

such manner as is necessary for the performance of the Supplier’s obligations under

this Contract or as is required by the Law;

31.5.3 subject to Condition 31.5.1 only process or otherwise transfer any Personal

Data in or to any country outside the European Economic Area with the Purchaser’s

prior written consent;

31.5.4 take all reasonable steps to ensure the reliability and integrity of any Supplier

Personnel who have access to the Personal Data and ensure that the Supplier

Personnel:

(a) are aware of and comply with the Supplier’s duties under this Condition; (b) are

subject to appropriate confidentiality undertakings with the Supplier or the relevant

Sub-contractor; (c) are informed of the confidential nature of the Personal Data and

do not publish, disclose or divulge any of the Personal Data to any third party unless

directed in writing to do so by the Purchaser or as otherwise permitted by this

Contract; and (d) have undergone adequate training in the use, care, protection and

handling of Personal Data.

31.5.5 implement appropriate technical and organisational measures including those

in accordance with Article 32 of the GDPR to protect Personal Data against

unauthorised or unlawful Processing and against accidental loss, destruction,

damage, alteration or disclosure, such measures being appropriate to the harm

which might result from any unauthorised or unlawful Processing, accidental loss,

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destruction or damage to the Personal Data and having regard to the nature of the

Personal Data which is to be protected.

31.6 The Supplier shall not engage a sub-contractor to carry out Processing in

connection with the Services without prior specific or general written authorisation

from the Purchaser. In the case of general written authorisation, the Supplier must

inform the Purchaser of any intended changes concerning the addition or

replacement of any other sub-contractor and give the Purchaser an opportunity to

object to such changes.

31.7 If the Supplier engages a sub-contractor for carrying out Processing activities

on behalf of the Purchaser, the Supplier must ensure that the same data protection

obligations as set out in this Contract are imposed on the sub-contractor by way of a

written and legally binding contract, in particular providing sufficient guarantees to

implement appropriate technical and organisational measures. The Supplier shall

remain fully liable to the Purchaser for the performance of the sub-contractor’s

performance of the obligations.

31.8 The Supplier must provide to the Purchaser reasonable assistance including by

such technical and organisational measures as may be appropriate in complying with

Articles 12 to 23 of the GDPR. The Supplier must notify the Purchaser if it:

(a) receives a Data Subject Access Request (or purported Data Subject Access

Request);

(b) receives a request to rectify, block or erase any Personal Data;

obligations under the Data Protection Laws;

(d) receives any communication from the Supervisory Authority or any other

regulatory authority in connection with Personal Data processed under this Contract;

(e) receives a request from any third Party for disclosure of Personal Data where

compliance with such request is required or purported to be required by law or

regulatory order;

and such notification must take place as soon as is possible but in any event within 3

business days of receipt of the request or any other period as agreed in writing with

the Purchaser from time to time.

31.9 Taking into account the nature of the Processing and the information available,

the Supplier must assist the Purchaser in complying with the Purchaser’s obligations

concerning the security of personal data, reporting requirements for data breaches,

data protection impact assessments and prior consultations in accordance with

Articles 32 to 36 of the GDPR. These obligations include:

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(a) ensuring an appropriate level of protection through technical and organisational

measures that take into account the circumstances and purposes of the processing

as well as the projected probability and severity of a possible infringement of the law

as a result of security vulnerabilities and that enable an immediate detection of

relevant infringement events.

(b) notifying a Personal Data breach to the Purchaser without undue delay and in

any event no later than 24 hours after becoming aware of a Personal Data breach;

Subject;

(d) supporting the Purchaser with preparation of a data protection impact

assessment;

(e) supporting the Purchaser with regard to prior consultation of the Supervisory

Authority.

31.10 At the end of the provision of Services relating to processing the Supplier the

Supplier must, on written instruction of the Purchaser, delete or return to the

Purchaser all Personal Data and delete existing copies unless EU or Member State

law requires storage of the Personal Data.

31.11 The Supplier must:

(a) provide such information as is necessary to enable the Purchaser to satisfy itself

of the Supplier’s compliance with this Condition 31;

(b) allow the Purchaser, its employees, auditors, authorised agents or advisers

reasonable access to any relevant premises, during normal business hours, to

inspect the procedures, measures and records referred to in this Condition 31 and

contribute as is reasonable to those audits and inspections;

any obligation under the Data Protection Laws.

31.12 The Supplier must maintain written records including in electronic form, of all

Processing activities carried out in performance of the Services or otherwise on

behalf of the Purchaser containing the information set out in Article 30(2) of the

GDPR.

31.13 If requested, the Supplier must make such records referred to Condition 31.12

available to the Supervisory Authority on request and co-operate with the

Supervisory Authority in the performance of its tasks.

31.14 Parties acknowledge that the inspecting party will use reasonable endeavours

to carry out any audit or inspection under Condition 31.11(b) with minimum

disruption to the Supplier’s day to day business.

Comment [HG7]: We can seek

information as part of the Pre-Contract

Questionnaire

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Signed by ……………………………………………………………………………

For and on behalf of the Purchaser

Print name…………………………………………………………………………….

Place……………………………………………………………………………………..

Date……………………………………………………………………………………..

Signed by ……………………………………………………………………………

For and on behalf of the Supplier

Print name…………………………………………………………………………….

Place……………………………………………………………………………………..

Date……………………………………………………………………………………..

SCHEDULE (Data Protection)

This is the schedule referred to in the foregoing Contract between…

Data Processing provision as required by Article 28(3) GDPR.

This Schedule includes certain details of the Processing of Personal Data in

connection with the Services: Subject matter and duration of the Processing of

Personal Data

The subject matter and duration of the Processing of Personal Data are [insert

description here].

The nature and purpose of the Processing of Personal Data

[Include description here]

The type of Personal Data to be Processed

[Include list of data types here]

The categories of Data Subject to whom Personal Data relates

[Include categories of data subjects here]

The obligations and rights of the Purchaser

The obligations and rights of the Purchaser as the Data Controller are set out

in……...

Comment [HG8]: Amend as required

Comment [HG9]: This will be

completed as regards the particular

contract