In these Terms and Conditions, the following expressions will have the following meanings unless inconsistent with the context:
- “UCAS” – The Universities and Colleges Admissions Service registered in England with number 2839815 and registered office at Rosehill, New Barn Lane, Cheltenham, Gloucestershire, GL52 3LZ; and any subsidiary company as defined under section 1159 of the Companies Act 2006.
- “Agreement” - any agreement formed in accordance with Condition 2 between Supplier and UCAS for the sale and purchase of Goods and/or supply of Services
- “Antislavery Policy” means Supplier's antislavery policy as amended by notification to UCAS from time to time.
- “Deliverables” - Goods and/or Services according to context.
- “Delivery” – means acceptance of Deliverables as qualified under Condition 6.3.
- “Goods” - any goods which Supplier is to supply to UCAS (including any of them or any part of them) under this Agreement.
- “Intellectual Property Rights” means all copyright, trademarks, trade names, URLs, registered and unregistered design rights, moral rights, patents and database rights in any materials or work, original or previously developed.
- “Purchase Order” - any purchase order of UCAS for Deliverables incorporating these Terms and Conditions and any applicable written specification supplied or advised by UCAS to Supplier with or before the purchase order
- “Standards” - any applicable British, European Union or international standard, specification or code of practice issued by any applicable standards institution current at the date of the Purchase Order
- “Supplier” - the person(s), firm or company from whom UCAS orders the Goods and/or Services.
- “Services” - any services which Supplier is to carry out for UCAS (including any part of them) under this Agreement.
- “Terms and Conditions” - the standard terms and conditions of purchase set out in this document together with any special terms as set forth in the Purchase Order.
2.1 This Agreement will commence on the date specified in the Purchase Order and will continue for the term specified in the Purchase Order or until terminated in accordance with these Terms and Conditions.
2.2 Subject to any variation under Condition 21, this Agreement will be upon these Terms and Conditions, to the exclusion of all other terms and conditions and all previous oral or written representations, including any terms or conditions which Supplier purports to apply under any acknowledgement or confirmation of order, quotation, specification, delivery note, invoice or similar document, whether or not such document is referred to in this Agreement. Nothing in this Condition 2.2 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
2.3 Each quotation for Deliverables from Supplier will be deemed to be an offer by Supplier to sell and/or supply the Deliverables upon these Terms and Conditions. All quotations provided by Supplier, including the price provision, will remain open for 90 days from its date. This Agreement is only formed when UCAS issues the relevant Purchase Order following acceptance of a proposal, tender or quotation and no contract or contractual obligation will exist prior to UCAS in its sole discretion issuing such Purchase Order.
2.4 Supplier may not cancel this Agreement. UCAS is entitled to cancel this Agreement in whole or in part by giving written notice to Supplier at any time prior to accepted receipt of the Deliverables, and in either case UCAS’s sole liability will be to pay to Supplier fair and reasonable compensation for work-in-progress at the time of cancellation, but such compensation will not include loss of profits, other economic loss (whether direct or indirect and whether actual or anticipated) or any indirect or consequential loss.
The quantity, quality and description of the Deliverables, and any applicable service levels and/or service credits, will be as specified in the Purchase Order. Precise conformity of the Deliverables with the Purchase Order, the Standards and this Agreement is of the essence and UCAS will be entitled to reject the Deliverables or terminate this Agreement under Condition 11.1 if the Deliverables are not in conformance. Any breach of this condition is deemed a material breach which is not capable of remedy under Condition 11.1.
4. PRICE AND PAYMENT
4.1 The price payable for the Deliverables will be that stated in the Purchase Order and, unless otherwise stated in that Purchase Order, will be (i) inclusive of delivery, all costs and expenses of Supplier, and all sales or other taxes and duties other than VAT; and (ii) exclusive of VAT which will be added to the sum in question at the rate and in the manner prescribed by law. Subject to Condition 20 the price will be fixed for the duration of this Agreement.
4.2 Unless stated otherwise in the Purchase Order UCAS shall pay Supplier within thirty (30) days of receipt of a valid invoice or receipt of the Deliverables, whichever is the later.
4.3 Supplier’s invoice must (i) be addressed to the recipient indicated on the Purchase Order; and (ii) quote the full Purchase Order number.
4.4 UCAS shall not be liable for delays in payment caused by Supplier’s failure to comply with the requirements of this Condition 4.
4.5 Supplier may invoice UCAS in accordance with the payment dates referred to in the Purchase Order or as otherwise agreed, or if no dates have been specified referred to or agreed, for the Deliverables on or at any time after delivery, or performance, quoting the Purchase Order number on each invoice, and UCAS will pay each such invoice within 30 days of receipt.
4.6 If any undisputed sum payable under this Agreement is not paid when due then the Supplier shall be entitled to claim interest from the due date until payment is made in full both before and after any judgment, at 2 per cent per annum over HSBC Bank plc base rate from time to time. The parties agree that this Condition 4.6 is a substantial remedy for late payment of any sum payable under any Contract in accordance with section 8(2) Late Payment of Commercial Debts (Interest) Act 1998.
4.7 UCAS will be entitled but not obliged at any time or times to set off any liability of Supplier to UCAS against any liability of UCAS to Supplier (in either case howsoever arising and whether any such liability is present or future, liquidated or unliquidated). UCAS’s rights under this Condition will be without prejudice to any other rights or remedies available to UCAS under this Agreement or otherwise.
Supplier may not make partial delivery of the Services or Deliverables unless specifically agreed in writing by UCAS. If UCAS does agree, this Agreement will be construed as a separate contract in respect of each such instalment or stage.
6. DELIVERY OF GOODS
6.1 Delivery will be made at, the address stated in the Purchase Order during UCAS’s normal office hours on the date or within the period specified in the Purchase Order, or if no such period is specified then within 14 days of the Purchase Order.
6.2 Risk in and ownership of any Goods will pass to UCAS on receipted physical delivery, which for the avoidance of doubt will not amount to Delivery without Conditions 6.1 and 6.3 first being satisfied.
6.3 UCAS shall be entitled within 90 days of receipted delivery of Goods, to reject Goods for 14 days after any latent defect in the Goods has become apparent. Supplier will not be deemed to have made Delivery until UCAS has exercised its rights under this Condition 6.3.
7. REMEDIES AND INDEMNITY
7.1 Without prejudice to UCAS’s other rights or remedies, the following are material breaches of the terms of this Agreement which are not capable of remedy:
7.1.1 failure to make delivery by the due date in accordance with Condition 6.1; and/or
7.1.2 the supply of Goods or Services not in accordance with this Agreement, including without limitation the supply of any Goods of unsatisfactory quality or the performance of Services without 7.1.3 the reasonable skill and care of an experienced provider of the Services
7.2 In a case falling within Condition 7.1.1, UCAS may at its option terminate this Agreement, either entirely or to the extent of the relevant breach, and/or purchase other goods or services of the same or similar description (i) to make good the breach or (ii) in the event of this Agreement being wholly determined, to obtain the goods or services remaining to be delivered. UCAS may at its option recover from Supplier any amount by which the cost of purchasing such other goods or services exceeds the amount originally payable to Supplier for the specified Goods or Services.
7.3 Without prejudice to Conditions 7.1 and 7.2 or to any other right or remedy which UCAS may have, if any Deliverables are not supplied in accordance with, or Supplier fails to comply with, any of the terms of this Agreement, UCAS will be entitled (but not obliged) to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Deliverables have been accepted by UCAS as Delivered:
7.3.1 to reject any Goods (in whole or in part) and return them to Supplier at the risk and cost of Supplier on the basis of a full refund for the Goods so returned being paid forthwith by Supplier;
7.3.2 at UCAS’s option to give Supplier the opportunity at Supplier’s expense either to remedy any defect in the Deliverables or to supply replacement goods or services and carry out any other necessary work to ensure that the terms of this Agreement are performed in full;
7.3.3 to refuse to accept any further delivery of Goods or any further performance of Services without any liability to UCAS;
7.3.4 to carry out at Supplier’s expense any works necessary to make the Deliverables comply with this Agreement, and/or to perform, or to contract with a third party to perform replacement or corrective services; and
7.3.5 to claim such damages (whether resulting from direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profit)) as may have been sustained in consequence of Supplier’s breach of this Agreement.
7.4 Supplier shall promptly make good at its own expense any latent defect in any Goods which under normal use in accordance with the manufacturer’s or Supplier’s instructions:
7.4.1 is discovered within the first twelve (12) months of actual usage or within eighteen (18) months of the date of Delivery to UCAS, whichever period expires earlier; and
is caused by:
220.127.116.11 design fault;
18.104.22.168 fault in materials;
22.214.171.124 fault in manufacture;
126.96.36.199 fault in instructions as to use; or
188.8.131.52 any other breach of Supplier’s contractual or statutory obligations.
7.5 Any repair(s) or replacement(s) will include a warranty equivalent to that in Condition 7.4, for a period of twelve (12) months from Delivery.
7.6 Supplier will ensure a constant and immediate supply of compatible spares to facilitate repairs to Goods for minimum period of ten (10) years following Delivery.
7.7 Supplier will on demand indemnify, keep indemnified and hold harmless UCAS from and against all costs (including the cost of enforcement), expenses, liabilities, injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgements which UCAS incurs or suffers as a consequence of a direct or indirect breach or negligent performance or failure in performance by Supplier, its employees, agents or subcontractors of the terms of this Agreement.
7.8 Supplier will indemnify, keep indemnified and hold harmless UCAS from and against costs, expenses, liabilities, injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs and judgements which UCAS incurs as a result of or in connection with any claim brought against UCAS for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the receipt, use or supply of the Deliverables, to the extent that the claim is attributable to the acts or omissions of Supplier, its employees, agents or subcontractors.
8.1 Supplier shall throughout the term of this Agreement maintain adequate insurance for the purposes and at the minimum levels referred to in the applicable Purchase Order, or, if none are referred to in the Purchase Order:
8.1.1 public liability cover with a minimum limit of indemnity of £5,000,000 (five million pounds); and
8.1.2 professional indemnity cover with a minimum limit of indemnity of £2,000,000 (two million pounds).
9.1 Subject to Condition 9.3 each party’s aggregate liability under this Agreement (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) in respect of any loss of or damage to tangible property (which for the avoidance of doubt includes data) (whether belonging to the other party or a third party) howsoever caused will be limited to £5,000,000 (five million pounds).
9.2 Subject to Condition 9.3, and other than any liability of Supplier arising under any of Conditions 7.1, 7.2, 7.7, 7.8, 11.1 and 12, which shall not be limited, each party’s aggregate liability under this Agreement (whether in contract, tort (including negligence) breach of statutory duty, restitution or otherwise) in respect of any loss or damage other than that referred to in Condition 9.1 howsoever caused will be limited to whichever is the higher of (i) the amount set out in the Purchase Order, if any, and (ii) an amount equal to 125% of the price payable by UCAS for the Deliverables under the relevant Agreement.
9.3 Neither party excludes its liability (if any) to the other party:
9.3.1 for any liability which by law cannot be excluded;
9.3.2 for personal injury or death resulting from its negligence; or
9.3.3 for fraud or fraudulent misrepresentation.
10.1 Supplier shall, and shall procure that its authorised sub-contractors shall, maintain a complete and correct set of records pertaining to all activities relating to the performance of this Agreement and Supplier’s obligations under this Agreement and all transactions entered into by Supplier for the purposes of this Agreement (“Records”), and retain all Records during the term of this Agreement and for a period of not less than 6 years (or such longer period as may be required by law) following termination or expiry of this Agreement.
10.2 UCAS may audit Supplier’s performance of any Contract at any time, including after performance of Supplier’s obligations, but shall not do so more than once in each calendar year unless:
10.2.1 required to conduct any additional audit for legal or regulatory reasons or
10.2.2 UCAS reasonably considers that one or more additional audits are necessary in any given year. Supplier shall co-operate with UCAS and its appointed auditors.
10.3 If any audit reveals a discrepancy of 5% or more in UCAS’s favour, between Supplier’s records and Delivered Goods and/or Services, Supplier shall:
10.3.1 refund UCAS the full price of the Deliverables not received; and
10.3.2 pay UCAS the cost of the audit in which the discrepancy was first identified and at UCAS’s sole option the cost of an additional audit six (6) months following any audit report revealing a discrepancy.
11.1 Either party may by written notice terminate this Agreement immediately if the other party is in material breach of this Agreement or enters into insolvency, bankruptcy, any arrangement with its creditors or any other arrangement or situation which has a like effect.
11.2 UCAS may at any time by notice in writing terminate this Agreement as from the date of service of such notice if there is a change of control, as defined by Section 1124 of the Corporation Taxes Act 2010, of Supplier. Supplier shall notify UCAS within two (2) months of any change of control taking place.
11.3 UCAS may at its option terminate this Agreement and recover from Supplier the amount of any loss resulting from such termination if Supplier shall have offered or given or agreed to give any person any gift or consideration of any kind as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any action in relation to the obtaining or execution of this Agreement or any other contract of UCAS, or for showing or withholding favour or disfavour to any person in relation to this Agreement or any other contract with UCAS, or if the like act shall have been done by any person employed by or acting on Supplier’s behalf (whether with or without the knowledge of Supplier) or if in relation to any contract with UCAS Supplier or any person employed by or acting on Supplier’s behalf shall have committed an offence under the Bribery Act 2010.
11.4 Supplier warrants that neither it nor any of its officers or employees has or will have any interest in any matter where there is or is reasonably likely to be a conflict of interest with UCAS arising in connection with entering into or performing this Agreement or where any such conflict will or is reasonably likely to arise for any employee of UCAS, save to the extent fully disclosed to and approved by UCAS. Supplier shall check for any conflict of interest at regular intervals throughout the term of this Agreement and in any event not less than once in every six months and shall notify UCAS in writing immediately upon becoming aware of any actual or potential conflict of interest and shall work with UCAS to do whatever is necessary (including the separation of staff working on, and data relating to, this Agreement from the matter in question) to manage such conflict to UCAS’s satisfaction, provided that, where UCAS is not so satisfied, it may terminate this Agreement forthwith on written notice to Supplier.
11.5 The termination of this Agreement, howsoever arising, is without prejudice to the rights, duties and liability of either Supplier or UCAS accrued prior to termination.
12.1 As between UCAS and Supplier materials, equipment, tools, and other materials supplied by UCAS to Supplier will at all times be and remain the exclusive property of UCAS.
12.2 UCAS authorises Supplier to use UCAS intellectual property solely for the purpose of exercising its rights and performing its obligations under this Agreement. Supplier will have no other rights whatsoever in respect of UCAS’s intellectual property rights.
12.3 In respect of any materials that are transferred to UCAS under this Agreement, including without limitation the Deliverables or any part of them, Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to the UCAS, it will have full and unrestricted authority to transfer and assign all rights in such items to UCAS.
12.4 Supplier assigns to UCAS, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables.
12.5 Supplier shall obtain waivers of moral rights to which any individual engaged in the Services or Delivery is now or may at any future time be entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
Supplier shall, promptly at UCAS' request, do or procure to be done all such further acts and the execution of all such other documents as UCAS may from time to time require for the purpose of securing for UCAS the full benefit of this Agreement, including all right, title and interest in and to the Intellectual Property Rights assigned to UCAS in accordance with Condition 12.4.
13. CONFIDENTIAL INFORMATION
13.1 Confidential information includes, without limitation, information which is marked or expressed as being confidential, the contents of this Agreement and any information which could reasonably be deemed to be confidential, from its nature content or the circumstances in which it is disclosed (“Confidential Information”).
13.2 Supplier shall treat Confidential Information with no less security and confidentiality than that which it would apply to its own confidential information.
13.3 Supplier may share Confidential Information with its employees, agents and sub-contractors who need the information to effect proper performance of this Agreement and/or to its professional advisers who are contractually subject to a duty of confidentiality.
13.4 Each party shall be responsible for ensuring that any person to whom Confidential Information is disclosed complies with the terms of this Condition 13.
14. ACCESS TO UCAS PROPERTY
14.1 When any representative of Supplier (whether an employee, sub-contractor, agent or otherwise) attends UCAS premises in connection with the provision of the Services such representative will obey at all times the lawful instructions of any authorised representatives of UCAS, and the requirements of
14.1.1 UCAS’ applicable rules and policies to the extent that the same have been made known in advance to Supplier; and
14.1.2 all other applicable rules and regulations including without limitation applicable health and safety legislation.
14.2 Any access to any of UCAS premises made available to Supplier in connection with the proper performance of this Agreement shall be used by Supplier solely for the purpose of performing the Services during the term of this Agreement. Supplier shall have the use of and access to such premises as licensee and shall not have or purport to claim any sole or exclusive right to possession or to possession of any particular part of such premises.
15. DATA PROTECTION/FREEDOM OF INFORMATION
15.1 Supplier shall adhere to, co-operate with UCAS in respect of, and where relevant provide the Deliverables in accordance with, all of UCAS’s policies which are applicable to the provision of the Deliverables and are made known to Supplier, including without limitation policies in respect of data protection, freedom of information.
15.2 UCAS is a data controller as defined in the Data Protection Act 2018 (or any subsequent amendment or re-enactment thereof) (“the Act”) in respect of the personal data (as defined in the Act) of third parties.
15.3 If in the course of performing Services Supplier acts as data processor (as defined in the Act) in respect of such data, Supplier will perform its obligations in accordance with (and so as to enable UCAS to comply with UCAS’s obligations under) the Act.
15.4 UCAS is subject to the requirements of the Freedom of Information Act 2000 (and any subsequent amendment or re-enactment thereof) and guidance and codes of practice issued under it (“FOIA”). Supplier shall assist and cooperate as reasonably required by UCAS to enable UCAS to comply with its disclosure obligations under the FOIA and its own internal policies and procedures.
15.5 Such assistance and cooperation includes (without limitation) forwarding requests for information, and providing information reasonably requested by UCAS, to UCAS within such timescales as UCAS reasonably requires, to enable it to comply with its statutory obligations.
15.6 UCAS shall have absolute discretion in determining whether information is exempt from disclosure or not under FOIA.
16. EQUALITY AND ANTI-SLAVERY
16.1 Supplier warrants that it shall not (and shall ensure that its subcontractors, agents and employees shall not) discriminate whether directly or indirectly against any person or group of persons on any grounds, including but not limited to race, colour, ethnic or national origin, disability, sex or sexual orientation, religion or belief, age, pregnancy, maternity, marital status or civil partnership. Without prejudice to the generality of the foregoing, Supplier shall not (and shall ensure that its subcontractors, agents and employees shall not) discriminate against any person or group of persons within the meaning of the Equality Act 2010, and the Human Rights Act 1998 and/or any other relevant or equivalent legislation from time to time in force.
16.2 In performing its obligations under the agreement, the Supplier shall :
16.2.1 comply with all applicable antislavery and human trafficking laws, statutes, regulations and codes from time to time in force including without limitation the Modern Slavery Act 2015;
16.2.2 have and maintain throughout the term of this agreement its own Anti-slavery Policy and procedures to ensure its compliance;
16.2.3 not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK; and
16.2.4 ensure that each of its subcontractors and suppliers shall comply with its Anti slavery Policy and with all applicable antislavery and human trafficking laws, statutes, regulations and codes from time to time in force including without limitation the Modern Slavery Act 2015.
17. FORCE MAJEURE
Neither party will be liable to the other for any failure or delay or for the consequences of any failure or delay in performance of this Agreement if it is due to any event beyond the reasonable control of a party to this Agreement including, without limitation, acts of God, war, fire, flood, storm, tempest, epidemic, explosion, terrorism, national emergencies, or industrial disputes other than those affecting the workforce of a party to this Agreement (“Force Majeure”), and the party so delayed will be entitled to a reasonable extension of time for performing such obligations. If UCAS requires the relevant Deliverables urgently and if, in its reasonable opinion, Force Majeure affecting Supplier would cause unacceptable delay, UCAS may give written notice to Supplier to terminate this Agreement. In addition, if the Force Majeure in question continues for more than 30 days UCAS may give written notice to the Supplier to terminate this Agreement and once such notice has been validly given and received this Agreement will terminate immediately without further liability accruing to UCAS.
If any condition or part of this Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from that Contract and will be ineffective, without, as far as is possible, modifying any other provision or part of this Agreement and this will not affect any other provisions of this Agreement which will remain in full force and effect.
19. NO WAIVER
19.1 Each right or remedy of UCAS under this Agreement is without prejudice to any other right or remedy of UCAS under this or any other agreement.
19.2 No failure or delay by UCAS to exercise any right, power or remedy will operate as a waiver of it, nor will any partial exercise preclude any further exercise of the same, or of any other right, power or remedy.
20.1 UCAS may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under this Agreement.
20.2 This Agreement is personal to Supplier who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under this Agreement without UCAS’s prior written consent which may be withheld or given under such conditions as UCAS thinks fit, and provided that:
20.2.1 Supplier shall remain primarily responsible for all services performed by any sub-contractor; and
20.2.2 such services shall be performed under the same conditions as if executed by Supplier.
21.1 UCAS may at any time by written agreement with Supplier make changes in writing relating to the Purchase Order. If such changes result in an increase or reduction in cost of, or time required for, the performance of this Agreement, such changes will be subject to the agreement of an equitable adjustment to the price, delivery schedule or both.
21.2 UCAS may vary these Terms and Conditions at any time and will make the most recent version available at Terms and Conditions.
22.1 If there is any ambiguity or inconsistency in or between the documents comprising this Agreement, the priority of the documents is in accordance with the following sequence:
22.1.1 the Purchase Order;
22.1.2 these UCAS Group Terms and Conditions for the Supply of Goods and Services;
22.1.3 any other document forming part of the contract as incorporated under the Purchase Order.
23. THIRD PARTIES
The parties to this Agreement do not intend that any of its terms will be enforceable by virtue of this Agreement (Rights of Third Parties) Act 1999 by any person not a party to it.
24. RELATIONSHIP BETWEEN THE PARTIES
24.1 Nothing contained in these Terms and Conditions, and no action taken by the parties pursuant to these Terms and Conditions, will be deemed to constitute a relationship between the parties of partnership, joint venture, principal and agent or employer and employee. Neither party has, nor may it represent that it has, any authority to act or make any commitments on the other party’s behalf.
24.2 The parties do not envisage that the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) will apply to this Agreement. However, Supplier will:-
24.2.1 provide to UCAS any information which UCAS may require from time to time; and
24.2.2 keep UCAS indemnified in full against any costs, claims, awards, orders, obligations and liabilities whatsoever (including legal and other professional fees and expenses) whenever arising which UCAS may incur in connection with the employment and/or termination of employment of any persons arising out of the application of TUPE in connection with this Agreement.
Any notice in connection with this Agreement will be in writing addressed to the other party at its registered office, or principal place of business and will be delivered by hand, or first class post or recorded delivery. Service will be deemed to have taken place, if delivered by hand, once left at the proper address for service, or if by first-class post or special delivery, on the second day after posting.
Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination for any cause or expiry of this Agreement including the provisions of Conditions 2.2, 7.7, 7.8, 8, 9, 12, 13, 17, 18, 24 and 25 shall continue without limit in time and remain in full force and effect.