Terms and Conditions (CMRA)
- Definitions and interpretation
- In these Conditions, the following definitions apply:
“Applicable Laws” means:
- a. any statute, regulation, bye-law or subordinate legislation in force from time to time;
- b. the common law and laws of equity as applicable from time to time;
- c. any binding court order, judgment or decree;
- d. any applicable industry code, policy or standard enforceable by law; or
- e. any applicable direction, policy, rule or order that is binding on a party and that is made or given by any regulatory body having jurisdiction over a party or any of that party’s assets, resources or business, in each case, as it applies to the supply of the Consultancy Services or otherwise applies to the performance of each party’s obligations under the Contract;
“Authority” means The Coal Authority, an executive non-departmental public body,sponsored by the Department for Business, Energy & Industrial Strategy and based at, 200LichfieldLane,Berry Hill Mansfield, Nottingham, NG18 4RG, United Kingdom. “Authority Equipment” has themeaningset out inCondition 5.1.6;
“Authority Materials” means all documents, information and materials provided bytheAuthority relating to the Consultancy Services which existed prior to the commencement of theContract,including computer programs, data, reports and specifications;
“Authority Personnel” means any person provided by the Authority (whether or notinitsemployment) in connection with the performance of the Consultancy Services, including itsemployees,agents,consultants or subcontractors;
“Business Day” means a day (other than a Saturday, Sunday or public holiday)whenbanks inLondon are open for business;
“Charges” means the charges payable by the Client for the supply of theConsultancyServicesinaccordance with Condition 7.1;
“Client” means the person or firm who purchases Consultancy Services from theAuthority;
“Client Personnel” means all employees, agents, consultants or subcontractors oftheClient;“Coal Industry Act” means the Coal Industry Act 1994
“Commercially Sensitive Information” means the information (if any) specified assuch inthe Contract Documents which is information of a commercially sensitive nature relating to theClient, itsIntellectual Property Rights or its business or which the Client has indicated to the Authoritythat, ifdisclosed by the Authority, would cause the Client significant commercial disadvantage ormaterialfinancial loss; “Conditions” means these terms and conditions as amended from time to time inaccordancewithCondition 27;
“Confidential Information” means all information disclosed (whether in writing,orallyor by another means and whether directly or indirectly) by the Authority to the Client whetherbefore orafter the date of Contract including, but not limited to, information relating to theConsultancyServices,orany of the Authority’s operations, processes, plans or intentions, product information, knowhow,designrights,trade secrets, market opportunities and business affairs;
“Consultancy Services” means the services, including the Deliverables, suppliedbytheAuthorityto the Client as set out in the Contract Documentation;
“Contract” means the contract between the Authority and the Client for thesupply ofConsultancyServices as set out in the Contract Documents;
“Contract Documents” means, in relation to each Contract for the supply ofConsultancyServicesby the Authority to the Client: a. the Conditions; b. any order acknowledgement or invoice givenbythe Authority to the Client in respect of the Contract; and c. any other document expresslyacceptedby the Authority as forming part of the Contract including inter alia proposal letters andtenderdocuments;
“Deliverables” all documents, products and materials developed by the Authorityoritsemployees, agents, consultants or subcontractors in connection with the Consultancy Services inanyform,including computer programs, data, reports and specifications;
“Environmental Information Regulations” means the Environmental InformationRegulations2004;
“FOIA” means the Freedom of Information Act and any subordinate legislation madeunder thisActfrom time to time, together with any guidance and/or codes of practice issued by the InformationCommissioner inrelation to such legislation; “Force Majeure Event” means an event beyond the reasonable controloftheAuthority, including but not limited to strikes, lock outs or other industrial disputes (whetherinvolvingtheworkforce of the Authority or any other party), failure of a utility service or transportnetwork,act ofGod,war, riot, civil commotion, malicious damage, compliance with any law or governmental order,rule,regulation ordirection, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliersorsubcontractors;
“Information” has the meaning given under section 84 of FOIA;
“Intellectual Property Rights” means all patents, rights to inventions, utilitymodels,copyright and related rights, trademarks, service marks, trade, business and domain names,rights intradedressor get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights indesigns,rights incomputer software, database right, topography rights, moral rights, rights in confidentialinformation(including know-how and trade secrets) and any other intellectual property rights, in each casewhetherregistered or unregistered and including all applications for and renewals or extensions of suchrights, andallsimilar or equivalent rights or forms of protection in any part of the world;
“Pre-Existing Materials” has the meaning of all Documents, information andmaterialsprovided bythe Authority relating to the Consultancy Services which existed prior to the commencement oftheContract.
“Recipient” has the meaning set out in Condition 11.2;
“Request for Information” means a request for information or an apparent requestunderthe FOIA or the Environmental Information Regulations;
“Term” has the meaning set out in Condition 3.1; and “VAT” means value added taxchargeableunder English law for the time being and any similar additional tax.
“VAT” means value added tax chargeable under English law for the time being andanysimilaradditional tax.
- In these Conditions, the following rules apply:
- a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- a reference to a party includes its successors or permitted assigns;
- a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
- any phrase introduced by the terms including, include, in particular or any similar xpression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
- a reference to writing or written includes faxes;
- Condition headings are for ease of reference and do not form part of or affect the interpretation of these Conditions; and
- in the event of any ambiguity or inconsistency between the provisions of any schedules to the Contract and the provisions of the Conditions, the latter shall prevail to the extent of the ambiguity or inconsistency.
- In these Conditions, the following definitions apply:
- All contracts for the supply of Consultancy Services by the Authority, however formed, incorporate these Conditions. These Conditions apply to the Contract to the exclusion of any other terms that the Client may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- The Contract constitutes the entire agreement between the parties to it. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Authority which is not set out in the Contract Documents and except in the case of fraud, the Client shall have no right of action against the Authority arising out of or in connection with any pre-contractual statement, except to the extent that such statement is repeated in the Contract Documents.
- Any samples, drawings, descriptive matter or advertising issued by the Authority, and any descriptions or illustrations contained in the Authority’s marketing materials, are issued or published for the sole purpose of giving an approximate idea of the Consultancy Services described in them. They shall not form part of the Contract or have any contractual force.
- Any quotation given by the Authority shall be without obligation and can be revoked or amended by the Authority at any time.
- Formation and duration of the Contract
- The Contract shall only come into effect and commence on the earlier of: 3.1.1. the execution of the Contract Documents; or
- the date on which the Authority commences the performance of the Consultancy Services, and shall continue in force until the earlier of:
- the date specified in the Contract Documents, or if no end date has been specified, the date on which the Authority notifies the Client that it has completed the performance of the Consultancy Services; or
- the termination of the Contract in accordance with Condition 14, (the “Term”).
- Supply of Consultancy Services
- The Authority shall supply the Consultancy Services to the Client in accordance with the description of the Consultancy Services set out in the Contract Documents. The Authority shall not be responsible for providing any advice or services that fall outside of the scope of that description.
- The Authority shall perform the Consultancy Services with the reasonable care and skill and diligence as may reasonably be expected of appropriately qualified and experienced consultants with appropriate skill and experience of providing services of a similar scope, type, nature and complexity to the Services.
- The Authority shall use reasonable endeavours to meet any performance dates set out in the Contract Documents but any such dates shall be estimates only and time shall not be of the essence for performance of the Consultancy Services.
- The Authority shall have the right to make any changes to the Consultancy Services which:
- are necessary to comply with any Applicable Laws or safety requirement;
- are necessary in order to prevent the Authority being put in conflict with its role as a public authority (as more particularly described in Condition 18);
- do not materially affect the nature or quality of the Consultancy Services, and the Authority shall notify the Client in any such event.
- Unless otherwise stated in the Contract Documents, the Consultancy Services are provided for the benefit of the Client alone and for the purposes communicated by the Client to the Authority. The Consultancy Services cannot be used or relied upon by any other person or for any other purpose. Accordingly, the Client acknowledges and agrees that it shall not disclose any aspect of the Consultancy Services to any other person, nor will it seek to rely on the same for any other purpose.
- The Authority shall have no liability for
- the use of the Pre-Existing Materials, Deliverables or the Services by the Client for any purpose other than that for which they were prepared or provided in relation to the Contract; or
- any delay or failure by the Authority to perform or comply with any obligation under or term of the Contract to the extent that such delay or failure is attributable to any act or omission of or by the Client or any of its employees, agents or contractors (including without limitation any breach by the Client of any obligation under or term of the Contract).
- Client’s obligations
- The Client shall:
- ensure that any information provided by it for the preparation of, or inclusion in, the Contract Documents is complete and accurate;
- co-operate with the Authority in all matters relating to the Consultancy Services;
- provide the Authority with such information and materials as the Authority may reasonably require in order to supply the Consultancy Services, and ensure that such information is accurate in all material respects;
- provide the Authority Personnel with access to the Client’s premises, office accommodation and other facilities as reasonably required by the Authority;
- obtain and maintain all necessary licences, permissions and consents (including visas and/or customs clearance for the Authority Personnel) which may be required before the date on which the Consultancy Services are to start; and
- keep and maintain all materials, equipment, documents and other property of the Authority (“Authority Equipment”) at the Client’s premises in safe custody at its own risk, maintain Authority Equipment in good Condition until returned to the Authority, and not dispose of or use Authority Equipment other than in accordance with the Authority’s written instructions or authorisation.
- Without prejudice to Condition 4.5 either the Authority or the Client may request a change to the scope or execution of the Services. Neither the Authority or the Client shall have any obligation to perform or receive any varied or additional services unless and until the Authority or the Client have agreed the necessary variations to the Charges, the Consultancy Services, and any other relevant terms of the Contract to take account of the change and the Contract has been varied in accordance with Condition 27.
Variation or Additional Services
- The Client shall:
- Client Default
- If the Authority’s performance of any of its obligations under the Contract is prevented
or delayed by any act or omission by the Client or failure by the Client to perform any relevant
under the Contract (“Client Default”):
- the Authority shall, without limiting its other rights or remedies, have the right to suspend performance of the Consultancy Services in accordance with Condition 14.3 below; and
- the Authority shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Authority’s failure or delay to perform any of its obligations as set out in this Condition 6.1.
- If the Authority’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation under the Contract (“Client Default”):
- Charges and payment
- The Client shall pay the charges for the Consultancy Services as set out in the Contract Documents. If the Authority provides some or all of the Consultancy Services on a time and materials basis, Condition 7.2 shall apply in respect of such charges. If the Authority provides some or all of the Consultancy Services on the basis of a fixed or alternative charge, Condition 7.3 shall apply in respect of such charges.
- Where the Consultancy Services are to be charged on a time and materials basis:
- the Charges shall be calculated in accordance with the Authority’s daily fee rates, as notified to the Client in connection with the Consultancy Services, and as amended from time to time in accordance with Condition 7.5 below;
- the Authority’s daily fee rates for each individual are calculated on the basis of an average 7.4 hour day (derived from a thirty seven hour week);
- the Authority shall be entitled to charge an overtime rate based on a percentage of the daily fee rate as specified in the Contract Documents, to be calculated on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Consultancy Services outside the hours referred to in Condition 7.2.2; and
- unless stated otherwise, the Authority shall invoice the Client monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the relevant month.
- Where the Consultancy Services are not charged on a time and materials basis, unless otherwise stated in the Contract Documents, the Authority shall, at its option, either invoice the Client (together with VAT where appropriate) when the Consultancy Services are materially complete or in reasonable instalments during the performance of Consultancy Services (provided that such instalments are not invoiced more regularly than one per month).
- The Authority shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Authority engages in connection with the Consultancy Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Authority for the performance of the Consultancy Services.
- The Authority reserves the right to increase its daily fee rates and/or other variable charges from time to time on giving reasonable notice to the Client.
- The Client shall pay in full the set fee on acceptation of the required consultancy services
submitted by the Authority:
- Prior to the commencement of the required consultancy services
- in full and in cleared funds to a bank account nominated in writing by the Authority, and time for payment shall be of the essence of the Contract.
- All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Authority to the Client, the Client shall, on receipt of a valid VAT invoice from the Authority, pay to the Authority such additional amounts in respect of VAT as are chargeable on the supply of the Consultancy Services at the same time as payment is due for the supply of the Consultancy Services.
- Without limiting any other right or remedy of the Authority, if the Client fails to make any payment
due to the Authority under the Contract by the due date for payment:
- the Authority shall have the right to charge interest on the overdue amount at the rate of 8% per annum above the published base rate of the Bank of England, accruing on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly; and/or
- if the Client has still not paid within 5 Working Days of the date of a further notification from the Authority requesting payment, then the Authority may suspend all Consultancy Services in accordance with Condition 14.3 until payment has been made in full.
- The Client shall not be entitled to withhold payment of any amount payable for the supply of Consultancy Services or otherwise under the Contract Documents to the Authority because of any disputed claim of the Client in respect of negligent performance of the Consultancy Services or any other alleged breach of the Contract Documents, nor shall the Client be entitled to set off against any amount payable to the Authority under the Contract Documents any monies which are not then presently payable by the Authority or for which the Authority disputes liability.
- The Authority may at any time, whether prior to the performance of the Contract or after partial performance, require from the Client, partially or wholly, a payment in advance or require a guarantee acceptable to the Authority that the Client shall satisfactorily fulfil its obligations towards the Authority. The Authority shall be under no obligation to justify its requirement for such payment in advance or guarantee.
- Authority Personnel
- The Authority shall be free to select and appoint such Authority Personnel as it considers appropriate to perform the Consultancy Services from time to time and to remove and/or replace such Authority Personnel at any time.
- During the Term, and for a period of one year after termination or expiry of the Contract, the Client shall not, without the prior written consent of the Authority, solicit or entice away from the Authority or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Authority in the performance or supervision of the Consultancy Services. Nothing in this Condition 8.2 shall restrict the Client from conducting recruitment through general advertising.
- Health and safety
- The Client shall comply with the requirements of the Health and Safety at Work Act 1974 (or its equivalent) and any other Applicable Laws relating to health and safety (including any related policies of the Authority that are communicated to the Client), which may apply to Authority Personnel or other persons working on the Client’s premises in the performance of the Consultancy Services.
- The Client shall promptly notify the Authority of any health and safety hazards, which may arise in connection with the performance of the Consultancy Services and shall notify the Authority immediately in the event of any incident occurring on the Client’s premises which could result in injury to Authority Personnel or damage to Authority Equipment.
- Notwithstanding the generality of Conditions 6.1 and 14.3, the Authority reserves the right to suspend the performance of the Consultancy Services if, in its reasonable opinion, it considers that the Client is, or is likely to be, in breach of Conditions 9.1 or 9.2 or there is any risk of harm to Authority Personnel or to Authority Equipment resulting from its continuing performance of the Consultancy Services, and the Authority shall not be liable under the Contract if, as a result of such suspension, the performance of its obligations is delayed or otherwise impaired.
- The Client shall indemnify and hold harmless the Authority and any Authority Personnel against all losses or damage, costs, charges or losses sustained or incurred by the Authority (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising from a breach of Conditions 9.1 or 9.2.
- Intellectual Property Rights
- All Intellectual Property Rights in the Deliverables and the Authority Materials (or otherwise arising out of or in connection with the Consultancy Services) shall be owned by the Authority. Subject to Condition 10.2 below and to any alternative agreement in the Contract Documents, the Authority hereby grants to the Client a non- transferable, non- exclusive, royalty-free, worldwide licence to use such rights to the extent necessary to enable the Client to make reasonable use of the Deliverables and the Consultancy Services. Such licence to use the Authority Materials and any Deliverables that have not been fully paid for shall terminate immediately on termination or expiry of the Contract or upon the earlier return of any Deliverables or the Authority Materials to the Authority.
- The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on the Authority obtaining a written licence (or sub-licence) from the relevant licensor on such terms as will entitle the Authority to license such rights to the Client.
- All Authority Equipment is, and shall remain, the exclusive property of the Authority.
- During the Term and after termination or expiry of the Contract for any reason, the Client:
- shall not use Confidential Information for a purpose other than the performance of its obligations under the Contract;
- shall not disclose Confidential Information to any person except with the prior written consent of the Authority; and
- shall make every effort to prevent the use or disclosure of Confidential Information.
- During the Term, the Client may disclose Confidential Information to any of its directors, other officers, employees, sub-Clients or external advisors (“Recipient”) to the extent that disclosure is reasonably necessary for the purposes of the Contract.
- Conditions 11.1 and 11.2 do not apply to Confidential Information which:
- is or becomes publicly known (other than as a result of a breach of Contract by the Client or a Recipient);
- can be shown by the Client to the Authority’s reasonable satisfaction to have been known by the Client before disclosure by the Authority to the Client;
- is or becomes available to the Client otherwise than pursuant to the Contract and free of any restrictions as to its use or disclosure; or
- which must be disclosed pursuant to any Applicable Laws or parliamentary obligation placed upon the party making the disclosure, including any requirements for disclosure under the FOIA, Coal Industry Act or the Environmental Information Regulations pursuant to Condition 16 (Freedom of Information).
- Save as may be required by any Applicable Laws, the Client shall not issue any press release, advertise, announce or in any way publicise the existence of the Contract or the performance of Consultancy Services without the prior written consent of the Authority.
- For the avoidance of doubt, the provisions of this Condition 11 shall continue in full force and effect indefinitely following termination or expiry of the Contract for any reason.
- During the Term and after termination or expiry of the Contract for any reason, the Client:
- Unless the parties have expressly agreed in the Contract Documents to modify this Condition then, notwithstanding the provisions of Condition 4.1 above, any condition, warranty, statement or undertaking as to the quality of the Consultancy Services however or whenever expressed or which may be implied by statute, custom of the trade or otherwise is hereby excluded from the Contract, except to the extent that such exclusion is prevented by law.
- Without prejudice to the foregoing, no statement or undertaking contained in any national Standard, National edition of a European Standard, ISO Standard or other standard of technical specification as to the suitability or standard of the Consultancy Services supplied shall give rise to any legal liability of the Authority, except to the extent that such exclusion is prevented by law.
- Limitation of liability
- Subject to Condition 13.3 below:
- the Authority shall under no circumstances whatever be liable to the Client,
whether in contract, tort (including negligence), breach of statutory duty, or otherwise,
arising under or in connection with the Contract for:
- any loss of profit;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of or damage to goodwill;
- loss of use or corruption of software, data or information; or
- any indirect or consequential loss.
- the Authority’s total aggregate liability to the Client in respect of all other losses
arising under or in connection with the Contract, whether in contract, tort (including
negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the
- a sum equal to 2 (two) times the total Charges due to the Authority under the Contract; or
- in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period, a sum equal to 2 (two) times the total Charges paid by the Client in that period; or
- £500,000 (five hundred thousand pounds).
- the Authority shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
- The Authority’s liability for loss or damage arising from or in connection with the Consultancy Services shall be limited to such proportion of the loss and damage as is just and equitable having regard to the extent of the Client’s own responsibility for the loss and damage and/or that of any other party (regardless of any inability on the Client’s part to enforce a claim against such other party due to limitation, a lack of means, reliance by that other party on an exclusion or limitation of liability or otherwise).
- Nothing in these Conditions shall limit or exclude the Authority’s liability for:
- death or personal injury caused by its negligence, or
- the negligence of its employees, agents or subcontractors; or fraud or fraudulent misrepresentation.
- Any claims made by the Client against the Authority arising from or in connection with the Consultancy Services must be notified in writing to the Authority within 6 (six) months of such breach reasonably coming to the attention of the Client and any claims that are not raised within this timescale shall be deemed to be waived and absolutely barred.
- Conditions 13.1 to 13.4 shall survive termination of the Contract.
- Subject to Condition 13.3 below:
- Without limiting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of the Contract that is either irremediable or, if remediable, is not remedied within 20 Business Days after being notified in writing to do so.
- Without limiting its other rights or remedies, the Authority shall have the right to terminate the Contract by giving the Client 20 Business Days’ written notice at any time.
- Without prejudice to its other rights and remedies, the Authority shall be entitled to terminate
wholly or in part, any or every contract between itself and the Client, or to suspend the
of the Consultancy Services under any such contract, in the event of any of the
- if any debt is due and payable by the Client to the Authority but is unpaid;
- if the Client has failed to provide any letter of credit, bill of exchange or any other security required by the Contract Documents (including pursuant to Condition 7.10 above), provided that in such event, the Authority’s right of termination or suspension shall apply only in regard to the particular contract to which such failure relates;
- if any guarantee or other security for trading in respect of the Client’s obligations under the Contract is cancelled, suspended or amended in any respect;
- if, in the reasonable opinion of the Authority, the performance of the Consultancy Services would involve a level of risk to the health or safety of any person that would constitute a breach, or potential breach, of any Applicable Laws by the Client and/or the Authority or would be excessive or unreasonable;
- if the Client becomes insolvent or enters into any composition or arrangement (including a voluntary arrangement) with its creditors or, being a body corporate, has passed a resolution for voluntary winding up except where solely for the purpose of reconstruction or if a petition has been presented for an order for its winding up or for a receiver (including an administrative receiver) or administrator to be appointed or if any such order or appointment is made or if, being an individual or partnership, the Client suspends payment of his or their debts in whole or in part or if an application has been made for an interim order or a petition has been presented for a bankruptcy order or if any such order is made or if the Client, whether or not a body corporate, shall carry out or be subject to any analogous act or proceedings under any law; or
- the imposition of any new, additional or increased tax, public charge, tariff or duty which may, after the date of the quotation or Contract, be levied on or imposed on the performance of the Consultancy Services, or upon any other action taken under or in connection with the performance of the Contract.
- The Authority shall be entitled to exercise its rights of termination or suspension under Condition 14.3 at any time during which the event giving rise to such rights is continuing and has not been remedied and, in the event of a suspension of the Consultancy Services, the Authority shall be entitled, as a condition of resuming the performance of any contract between it and the Client, to require prepayment of, or such security as it may require for the payment of, the charges for any further Consultancy Services.
- If the Authority is entitled to exercise its rights of termination or suspension under Condition 14.3, the Authority shall further be entitled, by notice to the Client, to treat all sums which are then due to the Authority under any contract between the Authority and the Client but which are not otherwise payable, as being immediately due and payable.
- Consequences of termination
- On termination of the Contract for any reason:
- the Client shall immediately pay to the Authority all of the Authority’s outstanding unpaid invoices and interest and, in respect of Consultancy Services supplied and/or expenses incurred for which no invoice has been submitted, the Authority shall submit an invoice, which shall be payable by the Client immediately on receipt;
- the Client shall promptly (and in any event within 10 Business Days) return all Authority Materials, Authority Equipment and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Authority may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
- the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
- Conditions which expressly or by implication have effect after termination shall continue in full force and effect.
- On termination of the Contract for any reason:
- Information Disclosure
- The Client acknowledges that the Authority is subject to the requirements of the FOIA and the Environmental Information Regulations and The Coal Industry Act 1994 and shall assist and cooperate with the Authority to enable the Authority to comply with these Information disclosure requirements.
- The parties acknowledge and agree that any reports and advice provided by the Authority to the Client in accordance with these Conditions are intended to be of a confidential nature and should not be disclosed in response to a Request for Information. In addition, it is the parties’ intention that any Commercially Sensitive Information will not be disclosed in response to a Request for Information. Both parties acknowledge that such intentions are subject to the Authority’s obligations under the FOIA and the Environmental Information Regulations.
- If the Client or any Client Personnel receives a Request for Information relating to the Authority
or this Contract, it shall (or shall procure that its Client Personnel shall):
- transfer the Request for Information to the Authority as soon as practicable after receipt and in any event within two Business Days of receiving the request;
- provide the Authority with a copy of all Information in its possession or power in the form that the Authority requires within five Business Days (or such other period as the Authority may specify) of the Authority requesting that Information; and
- provide all necessary assistance as reasonably requested by the Authority to enable the Authority to respond to a Request for Information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the Environmental Information Regulations.
- The Authority shall be responsible for determining at its discretion whether any information which
it holds and is covered by the Request for Information:
- is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Information Regulations;
- is to be disclosed in response to the Request for Information, and in no event shall the Client respond directly to a Request for Information unless expressly authorised to do so by the Authority.
- The Client acknowledges that the Authority may, acting in accordance with the Department of
Constitutional Affairs’ Codes of Practice on the Discharge of Functions of Public Authorities under
Part I of the Freedom of Information Act 2000, be obliged under the FOIA, the Environmental
Information Regulations, or Section 57 of the Coal Industry Act 1994 to disclose Information:-
- 16.5.1. without consulting with the Client, or
- following consultation with the Client and having taken its views into account.
- Prevention of bribery and corruption
- The Client shall not, and shall procure that all Client Personnel shall not:
- commit any of the prohibited acts listed in this Condition in relation to the prevention of bribery;
- directly or indirectly offer, promise or give any person working for or engaged by
the Authority a financial or other advantage to:
- induce that person to perform improperly a relevant function or activity; or
- reward that person for improper performance of a relevant function or activity;
- directly or indirectly request, agree to receive or accept any financial or other advantage as an inducement or a reward for improper performance of a relevant function or activity in connection with the Contract;
- commit any offence:
- under the Bribery Act 2010;
- under any other Applicable Law concerning fraudulent acts related to the Contract; or
- defrauding, attempting to defraud or conspiring to defraud the Authority.
- The Client warrants, represents and undertakes that it is not aware of any financial or other advantage being given to any person working for or engaged by the Authority, or that an agreement has been reached to that effect, in connection with the execution of the Contract, excluding any arrangement of which full details have been disclosed in writing to the Authority before execution of the Contract.
- The Client must immediately notify the Authority if it suspects or knows that there may be a breach of Conditions 17.1 or 17.2.
- The Client shall if requested, provide the Authority with any reasonable assistance, at the Authority’s reasonable cost, to enable the Authority to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with the Bribery Act 2010.
- If the Client notifies the Authority that it suspects or knows that there may be a breach of conditions 17.1 or 17.2, the Client must respond promptly to the Authority’s enquiries, co- operate with any investigation, and allow the Authority to audit books, records and any other relevant documentation.
- If the Client, the Client Personnel or anyone else acting on the Client’s behalf engages in conduct
prohibited by Conditions 17.1 or 17.2, the Authority may;
- terminate the Contract and recover from the Client the amount of any loss suffered by the Authority resulting from the termination; and/or
- recover in full from the Client any other loss sustained by the Authority in consequence of any breach of those Conditions.
- Any termination under Condition 17.6 will be without prejudice to any right or remedy which has already accrued or subsequently accrues to the Authority.
- In exercising its rights or remedies under Condition 17.6 the Authority shall:
- act in a reasonable and proportionate manner having regard to such matters as the gravity of, and the identity of, the person performing the conduct prohibited by Conditions 17.1 or 17.2;
- give all due consideration, where appropriate, to action other than termination of the Contract.
- The Client shall not, and shall procure that all Client Personnel shall not:
- Acknowledgement of the Authority’s status
- The Client acknowledges that the Authority is a non-departmental public body and as such, the Authority must not, at any time, do anything (or fail to do anything) which is reasonably likely to put the Authority in conflict with its functions as a public authority.
- Taking into account Condition 18.1, the Client acknowledges and agrees that, notwithstanding any
other provision in these Conditions, the Authority shall, at any time, be entitled to:
- make changes to the Consultancy Services and/or
- suspend the performance of the Consultancy Services and/or any other of its obligation under
in all cases without liability to the Client, where the Authority deems that such action is reasonably necessary in order to prevent the Authority being put in conflict with its functions as a public authority, provided always that the Authority shall:
- provide the Client with notice of any such action as is reasonably practicable in the circumstances;
- use reasonable endeavours to mitigate the impact of any such action on the Client; and
- reimburse to the Client its reasonable and demonstrable additional costs incurred as a result of any such action taken by the Authority.
- Force majeure
- The Authority shall not be liable to the Client as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.
- If the Force Majeure Event prevents the Authority from providing any of the Consultancy Services for more than 20 Business Days, the Authority shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Client.
- Assignment and subcontracting
- The Authority may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
- The Client shall not, without the prior written consent of the Authority, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
- All communications and documents exchanged between the parties in connection with performance of the Contract or the provision of the Consultancy Services shall be in the English language.
- Unless other stated in the Contract Documents, any notice or other communication required to be given by the Client under or in connection with the Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first- class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business.
- Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
- Conditions 21.2 and 21.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of the Contract, “writing” shall not include e-mails and for the avoidance of doubt, notice given under this Contract shall not be validly served if sent by e-mail.
- A waiver of any right under the Contract by the Authority shall only be effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by the Authority in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy by the Authority shall preclude or restrict the further exercise of that or any other right or remedy.
- If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part- provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
- If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
- The Contract may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.
- No partnership or agency
- Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
- Third parties
- Unless expressly stated otherwise, a person who is not a party to the Contract shall not have any rights under or in connection with it. The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract.
- Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and Conditions, shall only be binding when agreed in writing and signed by the Authority.
- Governing law and jurisdiction
- The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law.
- Subject to Condition 28.3 below, the courts of England shall have exclusive jurisdiction to settle any dispute arising out of or in connection with the Contract, or its subject matter or formation (including non-contractual disputes or claims).
- Notwithstanding Condition 28.2, the Authority shall be entitled to issue any proceedings, suit or legal action arising out of or in connection with the Contract, or its subject matter or formation (including non-contractual disputes or claims) in any court which has jurisdiction.