1. Formation of contract
1.1 These terms and conditions shall apply to the Purchase Order:
- unless the Purchase Order refers or relates to a specific contract in which case that specified contract shall apply in conjunction with these terms and conditions in the order of priority identified in the specified contract
- subject only to any minor changes to these terms and conditions which are set out in the Purchase Order
1.2 Nothing in these terms and conditions shall prejudice or override any condition or warranty expressly implied by statue.
2. Definitions
'States' means, a States of Jersey entity, or other organisation, identified on page 1 of the Purchase Order.
'Contractor' means the person, firm or company named as such on page 1 of the Purchase Order (or its successors in title). 'DPL' means the Data Protection (Jersey) Law 2018 and any definitions used herein in that regard are the same as set out in the DPL. 'Goods' means all or any of the items set out in the Purchase Order which are to be supplied to the States by the Contractor. 'Information' has the meaning given under Article 1 of the Freedom of Information (Jersey) Law 2011.
'Parties' means the States and the Contractor. 'Purchase Order' means any Purchase Order placed by the States under which the Contractor agrees to supply Goods and/or Services to the States.
'Privacy and Data Protection Requirements' all applicable laws and regulations relating to the processing of personal data and privacy in any relevant jurisdiction, including, if relevant, Data Protection Jersey) Law 2018, the GDPR, the Regulation of Investigatory Powers (Jersey) Law 2005, the Electronic Communications (Jersey) Law 2000, any amendment, consolidation or re-enactment thereof, any legislation of equivalent purpose or effect enacted in Jersey or the United Kingdom, and any orders, guidelines and instructions issued under any of the above by relevant national authorities, a judicial authority in Jersey, England and Wales or a European Union judicial authority.
'Services' means the Services to be performed by the Contractor for the States as described in the Purchase Order and anything created or produced as a result of the Services. 'Specification' means the requirements to which the Goods and/or Services supplied shall conform as detailed in the Purchase Order or otherwise.
'Working Day' means the States usual working days, which exclude weekends, bank holidays, some other days published by the States, or such other days as may be notified to the Contractor by the States.
3. Assignment and sub-contracting
3.1 The Contractor shall not assign, transfer, sublet or subcontract in whole or in part any of the Purchaser Order without the prior written consent of the States.
4. Documents
4.1 All advice notes, invoices and packing notes issued by the Contractor shall be clearly marked by the Contractor with the Contractor's name and address, the Purchase Order number, the item code, date of despatch, a description of the Goods and / or Services, the address of their intended destination and the due delivery date.
5. Quality and performance
5.1. 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 States and be capable of the required performance to the States reasonable satisfaction.
5.2. All Services performed under the Purchase Order must be executed by the Contractor in a timely, efficient and professional manner to the appropriate prevailing standards and to the reasonable satisfaction of the States.
6. Inspection and testing
6.1 Before dispatching the Goods or commencing provision of the Service the Contractor shall, if appropriate and if previously agreed by the Parties, allow the States to inspect and test the Goods and/or Services for compliance with the Specification and/or any other provisions of the Purchase Order. If in the States reasonable opinion, the Goods and/or Services do not comply with the specification, the States shall inform the Contractor (in writing, unless this is impractical) either, of the States intention to reject the Goods, or the remedial steps which must be undertaken by the Contractor to ensure compliance with the Specification.
7. Delivery
7.1 The supplier warrants to the States that the goods will, from the time of delivery, be free from defects or failures for such period as is reasonable for that type of goods. Unless otherwise stated delivery must take place on a working day and during the normal working hours.
7.2 Any delivery date specified shall be of the essence and the delivery will be made to such delivery location as may be specified by the States in the Purchase Order
7.3 The Contractor shall deliver the Goods and / or Services as instructed in the Purchase Order and obtain a receipt for them from an authorised officer of the States. Any requirements as to the manner, quantities or special requirements for delivery, specified in the Purchase Order, shall also be complied with by the States.
7.4 The States will allow the Contractor access to its premises as necessary for the delivery of the Goods and / or Services. The States may refuse admission to the Contractor's personnel or require such personnel to leave its premises at any time and shall not be obliged to give the Contractor the reason(s) for its decision. The States will not apply the provisions of this clause unreasonably.
7.5 Whilst on the States premises, the Contractor shall comply with a sufficient duty of care so as to prevent damage to the States premises, goods, personnel and visitors, and if made aware of any specific policies relating to use, shall comply with them with the same duty of care.
8. Acceptance
8.1 The States shall not be deemed to have accepted any part of the goods or services until after its employees or agents have inspected the goods delivered. The States may reject goods that are not in accordance with the Purchase Order at any time before the expiry of 21 days after delivery. Unless within 28 days of receipt of notice of rejection the supplier collects such goods, the States may dispose of them as the States shall consider fit.
9. Extension of time, rescheduling or cancellation
9.1 If, for any cause beyond the reasonable control of the Contractor, 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 States (acting reasonably). Delay for any other reason shall be at the sole discretion of the States, in which case the Contractor shall be responsible for any additional costs.
9.2 Notification of any anticipated or actual delay must be immediately communicated to the States by the Contractor specifying the reasons for the delay.
9.3 If in the reasonable opinion of the States it is inappropriate to reschedule delivery of the Goods and / or performance of the Services then the States may cancel the Purchase Order without incurring any liability for such cancellation.
10. Risk and title
10.1 Risk in the Goods shall only pass to the States upon acceptance of the Goods when delivered to the place and address specified in the Purchase Order, unless otherwise agreed in writing by the Parties.
10.2 Title in the Goods shall only pass to the States upon full payment.
10.3 The States also reserves the right to take possession of all Goods to which it has acquired title.
11. Damage or loss in transit
11.1 Any Goods lost or damaged in transit shall be restored or replaced by the Contractor at the Contractor's expense and to the States satisfaction.
11.2 Delivery shall not be deemed to have taken place until restoration has taken place to the satisfaction of the States or replacement Goods have been accepted by the States.
11.3 Goods shall be deemed not to have been delivered by the Contractor if a receipt from an authorised officer of the States cannot be produced by the Contractor.
12. Terms of payment
12.1 The States agrees to pay the Contractor 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 Working Days of the date of receipt of a valid and undisputed invoice.
12.2 All prices and rates which are stated in the Purchase Order are exclusive of tax (unless otherwise stated in the Purchase Order).
12.3 If requested to do so by the States, the Contractor shall accept payment of monies due by electronic funds transfer through BACS Ltd or other electronic payment means, as good discharge of the States indebtedness under the Purchase Order.
12.4 Contractor shall be responsible for ensuring that all information on invoices is complete and accurate, and that specific reference is made to financial charge codes, purchase order numbers or job numbers submitted by the States.
13. Euro
13.1 Any requirement to account for Goods or Services in euro (or to prepare for such accounting), instead of and or / in addition to sterling, shall be implemented by the Contractor at nil charge to the Authority.
14. Set Off
14.1 The States shall be entitled to set off against any sums due to the Contractor under the Purchase Order any sums which become payable by the Contractor to the States in relation to the Purchase Order or any other contract between the Parties.
15. Compliance
15.1 The Contractor and its personnel shall at all times comply with all applicable laws, including statutes, regulations and bye-laws of the States.
16. Data protection
16.1. The Parties warrant that they will comply with their respective obligations under the Privacy and Data Protection Requirements and these terms and warrant to undertake the obligations relevant to them as Controller or Processor as defined under the DPL.
16.2 The Parties shall comply with any registration requirements under the DPL and will only process personal data as necessary to fulfil these terms.
16.3 The Controller warrants and represents that all instructions provided to the Processor in relation to the processing of personal data are lawful; are in accordance with these terms and shall as a minimum include (a) the nature and purpose of the processing of the personal data; (b) the types of personal data to be processed; and (c) the categories of data subjects to whom the personal data relates.
16.4 The Controller acknowledges it is solely responsible for determining the lawful processing condition upon which it shall rely in providing instructions to the Processor to process personal data.
16.5 The Parties acknowledge and accept that processing of third country or other international organisation's resident personal data shall be lawful and in accordance with the provisions of the DPL.
16.6 The Processor shall (a) only carry out processing of personal data in accordance with the Controller's documented instructions; (b) notify the Controller without undue delay of any requests received from a Data Subject exercising their rights under Privacy and Data Protection Requirements and, taking into account the nature of the processing, assist the Controller by taking appropriate technical and organisational measures, insofar as this is possible, with fulfilling its obligations in respect of Data Subject rights under the Privacy and Data Protection Requirements, including responding to any subject access requests or requests from Data Subjects for access to, rectification, erasure or portability of personal data, or for restriction of processing or objections to processing of personal data; (c) take all security measures required in accordance with the Privacy and Data Protection Requirements (including where relevant, Article 21 and 22 DPL), and at the request of the Controller provide a written description of, and rationale for, the technical and organisational measures implemented, or to be implemented, to protect the personal data against unauthorised or unlawful processing and accidental loss; and detect and report personal data breaches without undue delay; (e) without undue delay, inform the Controller of becoming aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, the personal data transmitted, stored or otherwise processed.
16.7 The Processor accepts and acknowledges that the Controller shall direct in its sole discretion, any and all steps and measures taken to remedy a breach by the Processor under the Privacy and Data Protection Requirements, including but not limited to any communications with the Authority. The Processor agrees not to act in any way upon such disclosure without the prior written consent of the Controller; (f) make available to the Controller all information necessary to demonstrate compliance with the obligations laid down in these terms and allow for and contribute to audits, including inspections, conducted by the Controller or another auditor mandated by the Controller; and (g) in addition to the confidentiality obligations contained within the Agreement, ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
16.8 On expiry or termination of the Agreement, the Processor shall immediately cease to use personal data and shall arrange for its safe return or destruction as shall be required by the Controller (unless otherwise prescribed by law).
16.9 Upon the Controller's reasonable request, the Processor agrees to provide the Controller with any documentation or records which will enable it to verify and monitor the Processor's compliance with its data protection and security obligations under the terms of this Agreement, within 14 days of receipt of such request;
16.10 Where, in the reasonable opinion of the Controller, such documentation is not sufficient in order to meet the obligations of Article 21 DPL, the Controller will be entitled, upon reasonable prior written notice to the Processor and upon reasonable grounds, to conduct an on-site audit of the Processor's premises used (save for domestic premises), solely to confirm compliance with its data protection and security obligations.
16.11 Any audit carried out by the Controller will be conducted in a manner that does not disrupt, delay or interfere with the Processor's performance of its business. The Controller shall ensure that the individuals carrying out the audit are under the same confidentiality obligations as set out in the Agreement.
16.12 The Processor will only engage a sub-processor with the prior written consent of the Controller.
16.11 Where the Processor uses a third party and where they are acting as a sub-processor in relation to the personal data the Processor shall: (a) enter into a legally binding written agreement that places the equivalent data protection obligations as those set out in these terms, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Privacy and Data Protection Requirements; (b) shall remain liable for any act or omission of a sub- processor that does not comply with the data protection obligations as set out in these terms; and (c) where required by law, the Processor shall inform the Controller of any intended changes concerning the addition or replacement of a sub-processor with access to personal data and give the Controller the opportunity to object to such changes.
17. Entire agreement
17.1 These terms and conditions and the Purchase Order shall (unless expressly agreed otherwise in writing by the Parties) comprise out the entire terms and conditions of the Agreement in relation to the subject matter of the purchase Order (subject to clause 1.1) and the Contractor'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).
18. Rights of third parties
18.1 No person who is not a Party to the Agreement shall have any right to enforce any term of the Agreement which expressly or by implication, confers a benefit on them without prior agreement in writing of both Parties, which agreement should specifically refer to this clause. This clause does not affect any right or remedy of any person which exists or is available otherwise.
19. No agency
19.1 This Agreement does not either create a partnership between the States and the Contractor, or make one of the Parties the agent of the other for any purpose.
20. Publicity
20.1 The Contractor shall not, without the prior written permission of the States, advertise or disclose to any third party that it is providing Goods and/or Services to the States.
21. Corruption
21.1 The Contractor shall not do anything, or omit to do anything, which may be considered to be an inducement to any employee of the States. Any such inducement shall be deemed to be a breach, which shall be considered incapable of remedy.
22. Intellectual property
22.1 Intellectual property and other rights in the Goods and/or Services shall vest in the party from whom the Goods and/or Services originate unless the Goods and/or Services are produced for the States as bespoke. If the latter applies such rights shall vest in the States upon their creation and the Agreement or shall do all such things and execute all such documents as the States may require in order to perfect such vesting. The Contractor shall ensure that it includes corresponding provisions in its contracts with its own sub-contractors and Contractors.
21.2 In the event of any breach of any such intellectual property rights the Contractor shall indemnify the States, unless the States is responsible for the breach in question.
23. Liability
23.1 The Contractor: (i) warrants that it has exercised and will continue to exercise in the performance of the Services or provision of goods with all the reasonable skill care and diligence as may be expected of a properly qualified and competent member of the Contractor's profession. (ii) accepts The States will be relying upon the Contractor's skill care and diligence and its expertise and experience in the provision of the Services/Goods and also upon the accuracy of all representations or statements made and the advice given by the Contractor in connection with the provision of the Services and the accuracy of all contractual documentation and the Contractor hereby agrees to indemnify The States against all loss, damage, costs, legal costs and professional and other expenses of any nature whatsoever incurred or suffered by the States or by a third party as a result of such reliance.
23.2 The Contractor accepts:(i) liability for death and personal injury howsoever resulting from the Contractor's negligence; and (ii) liability for damage to property resulting from the Contractor's negligence where such negligence has arisen or arises in connection with the provision of the Services or in connection with any other activities undertaken by the Contractor pursuant to or for any purpose related to the Agreement.
23.3 The Contractor hereby agrees to indemnify the States against all and any liability, loss, damage, costs and expense of whatsoever nature incurred or suffered by the States or by any third party whether arising from any disputes, contractual, tortious or other claims or proceedings which seek to recover loss and damage incurred by reason of any such death, personal injury or damage to property in relation to the provision of the Services.
23.4 The Contractor undertakes to maintain, at its own cost, public liability insurance for the amount of £2,000,000 (two million pounds) in respect of any one occurrence or series of occurrences arising out of one event.
23.5 The provisions of this condition shall survive the termination of the Agreement for any reason.
24. Termination
24.1 In the event of:(i) the making of an administration order in relation to the Agreement or the appointment of an administrative receiver; or(ii) the Contractor making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally.
24.2 The States may, without prejudice to any other power of termination or to any rights or remedies it may have, terminate the Agreement forthwith by notice without prejudice to the States other rights and remedies, the States may forthwith terminate the Agreement t by notice in writing to the supplier if:(i) the Contractor commits any breach of the Agreement and fails to remedy such breach within 14 days of being given written notice to do so by the States or(ii) the Contractor fails to perform its obligations under the Agreement with due diligence.
24.3. The Contractor shall indemnify the States against all costs, expenses and damages for which the States becomes liable arising from termination pursuant to this clause.
24.4. Termination of the Agreement shall not prejudice or affect any right or remedy which has accrued or shall accrue thereafter to the States, and any provision which is expressed to survive the Agreement shall remain in full force and effect.
24.5 The States may, in addition to any other power it may have, at any time by notice to the Contractor forthwith terminate the Agreement at no additional cost to the States. In such circumstances, the Contractor shall only be entitled to payment of a fair and reasonable sum for the Services performed up to the date of termination.
25. Health and safety
25.1 The Contractor undertakes that he and his employees, agents and subcontractors will at all times comply with all health and safety requirements relating to the carrying out of the work under the Agreement. Such requirements include in addition to statutory laws and regulations any codes of practice and British Standards or their equivalent relating to Health or Safety which may be applicable to the type of work carried out.
26. Discrimination
26.1 The Contractor shall not unlawfully discriminate within the meaning and scope of any law, enactment, order, or regulation relating to discrimination (whether in race, gender, religion, disability, sexual orientation or otherwise) in employment.
26.2 The Contractor shall take all reasonable steps to secure the observance of this clause by all servants, employees or agents of the Contractor and all suppliers and sub- contractors employed in the execution of the Agreement.
27. Payment to sub-contractors
27.1 Where the Contractor enters into a sub-contract with a supplier or contractor for the purposes of performing its obligations under this Agreement, it shall ensure that a provision is included in such a sub-contract which requires payment to be made of all sums due by the Contractor to the sub-contractor within a specified period not exceeding 30 days from the receipt of a valid invoice.
28. Freedom of Information (Jersey) Law 2011
28.1 The Contractor acknowledges that the States is subject to the requirements of the FOI Law and shall assist and cooperate with the States (at the Contractor's expense) to enable the States to comply with Information disclosure requirements.
28.2 The Contractor shall and shall procure that its sub-contractors shall (i) transfer the request for Information to the States as soon as practicable after receipt and in any event within 2 Working Days of receiving a request for Information; (ii) provide the States with a copy of all Information in its possession or power in the form that the States requires within 5 Working Days (or such other period as the States may specify) of the States requesting that Information; and (iii) provide all necessary assistance as reasonably requested by the States to enable the States to respond to a request for Information within the time for compliance set out in Article 13 of the FOI Law or any subordinate legislation made under the Law.
28.3 The States shall be responsible for determining at its absolute discretion whether commercially sensitive Information and/or any other Information: (i) is exempt from disclosure in accordance with the provisions of the FOI Law; (ii) is to be disclosed in response to a request for Information, and in no event shall the Contractor respond directly to a request for Information unless expressly authorised to do so by the States.
28.4 The Contractor acknowledges that the States may, acting in accordance with the FOI Law be obliged under the FOI Law to disclose Information without consulting with the Contractor or following consultation with the Contractor and having taken its views into account.
28.5 The Contractor shall ensure that all Information produced in the course of the Contract or relating to the Contract is retained for disclosure for the term of this Contract or as otherwise agreed and shall permit the States to inspect such records (including but not limited to audit records of disposed information) as requested from time to time.
29. Statutory and other regulations
29.1 The Supplier shall comply in all respects with the law and all applicable rules and regulations in all matters arising in the performance of or in connection with this Agreement.
29.2 Without prejudice to or limitation of any other rights the States may have, if the Contractor does not fulfil its obligations and responsibilities under the Agreement, the Contractor shall indemnify the States against all costs for which the States becomes liable and for which it would not otherwise be liable.
30. Criminal Records Bureau
30.1 When reasonably required by the States, the Provider agrees to comply with the States standard requirements in respect of Criminal Records Bureau ("CRB") clearance.
31. Governing Law
31.1 This Agreement shall be governed by Jersey law and the Parties shall submit to the exclusive jurisdiction of the Jersey courts.
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