Terms and Conditions for Purchase Orders

1. General

1.1 These terms and conditions shall apply to the Purchase Order:

• unless the Purchase Order refers to a specific contract, or the Provider has been asked to sign a separate contract, in which case the terms and conditions set out in that specified/separate contract shall apply;
• in relation to the subject matter of the Purchase Order the Provider's terms and conditions of contracting are expressly excluded. The Purchaser Order and these terms and conditions shall therefore take priority over any other arrangements, communications (whether verbal or written), or any other documents (including, but not limited to, other purchase orders, or other terms and conditions);

1.2 Any purchase by the Customer is conditional upon acceptance of these terms and conditions by the Provider.  If the Provider does not wish to accept these terms and conditions, then the Provider should not accept the Purchase Order, and should inform the Customer immediately.

2. Definitions

“Contract” means the agreement between the Customer and the Provider comprising the Provider’s quotation or tender and the Customer’s acceptance thereof, including this Purchase Order and any documents referred to therein.

“Customer” means Welwyn Hatfield Borough Council.

‘Goods’ means the goods to be supplied by the Provider to the Customer under the Contract.

'Provider' means the person, firm or company named as such on the purchase order.

“Purchase Order” means the document relating to the order for Goods and/or Services to be supplied by the Provider to the Customer in accordance with the terms of the Contract.

‘Services’ means the services to be supplied by the Provider to the Customer under the description in the Purchase Order and in any additional specification documents supplied with the Purchase Order.

‘Specification’ means the specification for the Goods to be supplied by the Provider to the Customer (including as to quantity, description and quality) as specified in the Purchase Order.

3. Prevention of Fraud, Corruption and Cancellation

3.1  The Provider shall not receive or agree to receive from any person, or offer or agree to give to, or procure on behalf of any person in the employment of the Customer or any member of the Customer, any gift or consideration of any kind as an inducement or reward for doing or not doing anything, or for showing favour or disfavour to any person in connection with the Contract.

3.2 The Customer shall have the right to cancel any order, and to recover from the Provider the amount of any loss resulting from such cancellation or determination if the Provider or any person employed by the Provider or acting on the Provider’s behalf:  a) has offered, paid or given, directly or indirectly, any gift in money or any other form to any member, employee or agent of the Customer as an inducement or reward in connection with their behaviour in relation to an order; or ; b) appears to have committed any offence under the Bribery Act 2010, or to have paid or offered any fee or reward contrary to Section 117(2) of the Local Government Act 1972.

4. Intellectual Property

4.1  All intellectual property rights in all works, services or supplies provided under this Contract which are written or produced on a bespoke or customised basis, shall be owned by the Customer and the Provider shall ensure that it executes all documents necessary to effect such ownership. Where the Provider provides existing intellectual property right protected material to the Customer under the Contract it shall disclose this to the Customer; warrant that it has the right to do so; and shall fully indemnify and hold the Customer harmless against all loss or liability, costs, expenses, damages and losses suffered incurred by the Customer as a result of or in connection with any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Provider, its employees, agents or subcontractors.

4.2  This clause shall survive termination or expiry of the Contract.

5. Confidentiality, Data Protection and Freedom of Information

5.1 The Provider shall comply with the data protection principles under the Data Protection Act 2018 and any equivalent or associated legislation. 

5.2  Any confidential information supplied by the Customer to the Provider or vice versa, shall be kept confidential and shall only be used by the Provider for the performance of its obligations under the Purchase Order. Upon request, and in any event upon expiry or termination of the Purchase Order for whatever reason, the Provider shall either, immediately destroy, or at the Customer's written request, immediately return to the Customer, any confidential information provided to it pursuant to the Purchase Order.

5.3 The Provider acknowledges that the Customer is subject to the requirements of the Freedom of Information Act 2000 (“the Act”). The Provider further acknowledges that the Customer may be obliged under the Act to disclose information without consulting the Provider, or having consulted the Provider and taken the Providers’s views into account. The Customer shall be responsible for determining at its absolute discretion whether information held by it relating to the Purchase Order shall be disclosed in response to a request for information under the Act.

6. Price Variation

The prices in the Purchase Order shall apply (without variation) for both the period and/or stated quantity of the Goods and/or Services, unless specifically otherwise agreed in writing by the parties.

7. Liability

The Provider shall effect such product liability, public liability and/or professional indemnity insurance as is sufficient in respect of all risks that may be incurred by him in the performance of the Contract and shall indemnify the Customer against any claims on whatsoever grounds in the event of damage to any property, or the death of, or injury to, any person arising from and/or in connection with the Provider’s performance of the Contract. Unless otherwise agreed in writing by the Customer, the minimum levels of insurance cover required under this Clause shall be £5million for public liability and £1million for professional indemnity.

8. Quality and Performance

8.1 The Goods and/or Services shall conform with the Specification; be of sound design, materials and workmanship; be fit for the purpose for which they are procured by the Council and be capable of the required performance.

8.2 All Services performed under the Purchase Order must be executed by the Provider in a timely, efficient and professional manner to the appropriate prevailing standards and to the reasonable satisfaction of the Customer.

8.3 The Provider shall replace any Goods that do not conform with their description if the Customer gives notice in writing to the Provider’s registered address of the relevant defects:  a) in the case of a defect that is apparent on normal visual inspection within 5 working days of delivery; and b) in the case of a latent defect, within a reasonable time of the latent defect having become apparent. If the Customer has not given notice of any defects in the Goods within the relevant time period, it shall be deemed to have accepted the Goods.

9. Extension of Time, Rescheduling or Cancellation

9.1 If, for any cause beyond the reasonable control of the Provider, delivery of the Goods, or performance of the Services, is delayed, then unless time is of the essence the time for delivery/performance may be rescheduled by the Customer (acting reasonably). If the delay is for any other reason it shall be at the sole discretion of the Customer whether to accept a re-scheduled delivery, in which case the Provider shall be responsible for any additional costs.

9.2 Notification of any anticipated or actual delay must be immediately communicated via e-mail to the Customer via procurement@welhat.gov.uk by the Provider specifying the reasons for the delay.

9.3 If in the reasonable opinion of the Customer it is inappropriate to reschedule delivery of the goods and/or performance of the Services then the Customer may cancel the Purchase Order without incurring any liability for such cancellation.

9.4 No Goods, Services or works shall be deemed acceptable or accepted unless an authorised representative of the Customer shall have signed a properly presented note of acceptance or receipt.

10. Risk and Title

10.1 Risk and title in the Goods and/or Services shall only pass to the Council upon acceptance of the Goods and/or Services when delivered to the place and address specified in the Purchase Order, unless otherwise agreed in writing by the parties, subject to 8.1, 8.2 and 8.3 (above).

10.2 The Customer also reserves the right to take possession of all Goods to which it has title.

11. Terms of Payment

11.1 The Customer agrees to pay the Provider either, the total price for the Goods and/or Services which is stated in the Purchase Order (or otherwise agreed in writing between the parties) within 30 calendar days of the date of receipt of a valid and undisputed invoice, which (if the Provider determines that VAT is payable) must comply with the requirements of H.M. Revenue and Customs for VAT purposes.

11.2 All prices and rates which are stated in the Purchase Order are exclusive of VAT (unless otherwise stated in the Purchase Order).

11.3 The Provider shall accept payment of monies due by electronic funds transfer through BACS or other electronic payment means, as good discharge of the Customer’s indebtedness under the Purchase Order,

11.4 The Customer shall be entitled to set off against any sums due to the Provider under the Purchase Order any sums which become payable by the Provider to the Customer in relation to the Purchase Order or any other contract between the parties.

12. Compliance

12.1 The Provider and its personnel shall at all times comply with all applicable laws, including statutes, regulations and bye-laws of local or other competent authorities.

12.2 Where supplies are specified in the Purchase Order on a supply and fix basis, the Provider and/or relevant staff must, where necessary, be duly licensed, qualified and/or registered to install them safely and legally.

13.  Contracts (Rights of Third Parties) Act 1999

The contract between the Parties does not confer (and is not intended to confer) any rights on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999, or otherwise.

14. Publicity

The Provider shall not, without the prior written permission of the Customer, advertise or disclose to any third party that it is providing goods and/or services to the Customer.

15. Governing Law

This contract shall be governed by English law and the Parties shall submit to the exclusive jurisdiction of the English courts.