1            Interpretation

1.1         In these terms and conditions:

Agreement

means the contract between (i) Progress and (ii) the Supplier constituted by the Supplier’s countersignature or written acceptance of the Order (or, if earlier, Delivery of the Goods and/or provision of the Services) and includes the Order and its schedules, annexures, enclosures and attachments (if any);

Bribery Act

means the Bribery Act 2010 and any subordinate legislation made under that Act from time to time together with any guidance or codes of practice issued by the relevant government department concerning the legislation;

Charges

means the charges for the Goods and/or Services as specified in the Order;

Confidential Information

means all information, whether written or oral (however recorded), provided by the disclosing Party to the receiving Party and which (i) is known by the receiving Party to be confidential; (ii) is marked as or stated to be confidential; or (iii) ought reasonably to be considered by the receiving Party to be confidential;

Date of Delivery

means that date by which the Goods must be Delivered to Progress, as specified in the Order.

Deliver

means hand over the Goods to Progress at the address and on the date specified in the Order, which shall include unloading and any other specific arrangements agreed in accordance with Clause 4. Delivered and Delivery shall be construed accordingly.

Deliverables

all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).

Data Protection Legislation

means the General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, and all applicable laws and regulations relating to the processing of personal data and privacy, including any amending or replacement legislation in force from time to time and including where applicable the guidance and codes of practice issued by the Information Commissioner;

EIRs

means the Environmental Information Regulations 2004;

FOIA

means the Freedom of Information Act 2000;

Goods

means the goods to be supplied by the Supplier to Progress under the Agreement;

Key Personnel

means any persons specified as such in the Order or otherwise notified as such by Progress to the Supplier in writing; 

Mandatory Policies

means Progress’s mandatory policies for contracts as set out in the Order or as may otherwise be notified by Progress to the Supplier from time to time prior to entering into the Agreement and as may be subsequently reasonably amended by notification to the Supplier;

MSA

means the Modern Slavery Act 2015;

Order

means the purchase order, the award letter, or the email (as the case may be) issued by Progress to the Supplier relating to the Goods and specifying the Charges and indicating that these terms and conditions apply;

Party

the Supplier or Progress (as appropriate) and “Parties” shall mean both of them;

PCRs

means the Public Contracts Regulations 2015;

Progress

means Progress Housing Group Limited and any subsidiaries of it (as defined in section 1159 of the Companies Act 2006 which shall apply as if all entities were limited companies)

Purchase Order Number

means Progress’s unique number relating to the order for Deliverables to be supplied by the Supplier to Progress in accordance with the terms of the Agreement;

Regulations

means the standards, codes of practice and any guidance or policies issued by the Regulator which apply to Progress from time to time and (where Progress is a registered provider of social housing) any other regulations and guidance that apply from time to time to registered providers of social housing;

Regulator

means the Regulator of Social Housing or any replacement regulator from time to time;

Request for Information

has the meaning set out in the EIRs and the FOIA (where the meaning set out for the term “request” shall apply);

Services

means the services to be supplied by the Supplier to Progress under the Agreement; 

Specification

means the specification for the Goods to be supplied by the Supplier to Progress (including as to quantity, description and quality) as specified in the Order and any key performance indicators;

Staff

means all directors, officers, partners, employees, agents, consultants and contractors of the Supplier and/or of any sub-contractor of the Supplier engaged in the performance of the Supplier’s obligations under the Agreement;

Staff Vetting Procedures

means vetting procedures that accord with good industry practice or, where applicable, Progress’s procedures for the vetting of personnel as provided to the Supplier from time to time;

Supplier

means the person named as Supplier in the Order;

Term

means the period from the start date of the Agreement set out in the Order to the Expiry Date as such period may be extended in accordance with clause Error! Reference source not found. or terminated in accordance with the terms and conditions of the Agreement;

VAT

means value added tax in accordance with the provisions of the Value Added Tax Act 1994; and

Working Day

means a day (other than a Saturday or Sunday) on which banks are open for business in the City of London.

1.2         In these terms and conditions, unless the context otherwise requires:

1.2.1               references to numbered clauses are references to the relevant clause in these terms and conditions;

1.2.2               any obligation on any Party not to do or omit to do anything shall include an obligation not to allow that thing to be done or omitted to be done;

1.2.3               the headings to the clauses of these terms and conditions are for information only and do not affect the interpretation of the Agreement;

1.2.4               any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and

1.2.5               the word ‘including’ shall be understood as meaning ‘including without limitation’.

2            Basis of Agreement

2.1         The Order constitutes an offer by Progress to purchase the Goods and/or Services subject to and in accordance with the terms and conditions of the Agreement. 

2.2         The Order shall be deemed to be accepted on the earlier of:

2.2.1              the Supplier issuing written acceptance of the Order; or

2.2.2              any act by the Supplier consistent with fulfilling the Order,

at which point and on which date the Contract shall come into existence (Commencement Date).

2.3          These terms and conditions as amended from time to time apply to the Agreement to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.4          All of these terms and conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.

2.5          In the case of their being any inconsistency between the Order and these terms and conditions, the Order shall be deemed to take precedence.  Any concession made or latitude allowed by Progress to the Supplier shall not affect the strict rights of Progress under these terms and conditions.

3            Supply of Goods

3.1         In consideration of Progress’s agreement to pay the Charges, the Supplier shall supply the Goods to Progress Housing subject to and in accordance with the terms and conditions of the Agreement.

3.2         In supplying the Goods, the Supplier shall co-operate with Progress in all matters relating to the supply of Goods and comply with all Progress’s instructions.

3.3         The Supplier shall supply the Goods in accordance with the Specification. The Supplier warrants, represents, undertakes and guarantees that the Goods supplied under the Agreement shall:

3.3.1              be free from defects (manifest or latent), in materials and workmanship and remain so for 12 months after Delivery;

3.3.2              be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and comply with any applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;

3.3.3              conform with the specifications (including the Specification), drawings, descriptions given in quotations, estimates, brochures, sales, marketing and technical literature or material (in whatever format made available by the Supplier) supplied by, or on behalf of, the Supplier;

3.3.4              be free from design defects;

3.3.5              be fit for any purpose held out by the Supplier or made known to the Supplier by Progress expressly or by implication, and in this respect Progress relies on the Supplier’s skill and judgement. The Supplier acknowledges and agrees that the approval by Progress of any designs provided by the Supplier shall not relieve the Supplier of any of its obligations under this sub-clause; and

3.3.6              and the Supplier itself shall, comply with the Mandatory Policies and all applicable laws, including the Data Protection Legislation, the Regulations, the MSA, the PCR, and the Bribery Act.

4            Delivery of Goods

4.1         The Supplier shall Deliver the Goods to Progress on or by the Date of Delivery. Unless otherwise agreed in writing by Progress, Delivery shall be on the date and to the address specified in the Order. Delivery of the Goods shall be completed once the completion of unloading the Goods from the transporting vehicle at the Delivery address has taken place and Progress has signed for the Delivery.

4.2         Any access to Progress’s premises and any labour and equipment that may be provided by Progress in connection with Delivery of the Goods shall be provided without acceptance by Progress of any liability in respect of any actions, claims, costs and expenses incurred by third parties for any loss of damages to the extent that such loss or damage is not attributable to the negligence or other wrongful act of Progress or its servant or agent.  The Supplier shall indemnify Progress in respect of any actions, suits, claims, demands, losses, charges, costs and expenses, which Progress may suffer or incur as a result of or in connection with any damage or injury (whether fatal or otherwise) occurring in the course of Delivery or installation to the extent that any such damage or injury is attributable to any act or omission of the Supplier or any of his sub-Suppliers.

4.3         Delivery of the Goods shall be accompanied by a delivery note which shows the Purchase Order Number and the type and quantity of the Goods and, in the case of part Delivery, the outstanding balance remaining to be Delivered.

4.4         Unless otherwise stipulated by Progress in the Order, Deliveries shall only be accepted by Progress on Working Days and during normal business hours.

4.5         Where (i) the Supplier fails to Deliver the Goods or part of the Goods or (ii) the Goods or part of the Goods do not comply with the provisions of clause 3, then without limiting any of its other rights or remedies implied by statute or common law, Progress shall be entitled:

4.5.1              to terminate the Agreement;

4.5.2              request the Supplier, free of charge, to deliver substitute Goods within the timescales specified by Progress;

4.5.3              to require the Supplier, free of charge, to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);

4.5.4              to reject the Goods (in whole or part) and return them to the Supplier at the Supplier’s own risk and expense and Progress shall be entitled to a full refund on those Goods or part of Goods duly returned;

4.5.5              to buy the same or similar Goods from another supplier and

4.5.6              to recover any expenses incurred in respect of buying the goods from another supplier which shall include but not be limited to administration costs, chargeable staff time and extra delivery costs.

5            Property and Guarantee of Title

5.1       Without prejudice to any other rights or remedies of Progress, title and risk in the Goods shall pass to Progress when Delivery of the Goods is complete (including off-loading and stacking)

5.2          The Supplier warrants that:

5.2.1              it has full clear and unencumbered title to all the Goods; and

5.2.2              at the date of Delivery of any of the Goods it shall have full and unrestricted right, power and authority to sell, transfer and deliver all of the Goods to Progress. On Delivery Progress shall acquire a valid and unencumbered title to the Goods.

6            Supply of Services

6.1         In consideration of Progress’s agreement to pay the Charges, the Supplier shall supply the Services to Progress for the Term subject to and in accordance with the terms and conditions of the Agreement.

6.2         In supplying the Services, the Supplier shall:

6.2.1          co-operate with Progress in all matters relating to the Services and comply with all Progress’s instructions;

6.2.2          perform the Services with all reasonable care, skill and diligence in accordance with good industry practice in the Supplier’s industry, profession or trade;

6.2.3          use Staff who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Agreement;

6.2.4          ensure that the Services and Deliverables shall conform with all descriptions, specifications, and key performance indicators as set out in the Specification and elsewhere in the Order;

6.2.5          use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Progress, will be free from defects in workmanship, installation and design;

6.2.6          comply with the Mandatory Policies and all applicable laws including the Data Protection Legislation, the Regulations, the MSA, the PCR and the Bribery Act; and

6.2.7          provide all equipment, tools and vehicles and other items as are required to provide the Services.

6.3         Progress may by written notice to the Supplier at any time request a variation to the scope of the Services.  In the event that the Supplier agrees to any variation to the scope of the Services, the Charges shall be subject to fair and reasonable adjustment to be agreed in writing between Progress and the Supplier. 

7            Premises and equipment

7.1         If necessary, Progress shall provide the Supplier with reasonable access at reasonable times to its premises for the purpose of supplying the Services. All equipment, tools and vehicles brought onto Progress’s premises by the Supplier or the Staff shall be at the Supplier’s risk.

7.2         If the Supplier supplies all or any of the Services at or from Progress’s premises, on completion of the Services or termination or expiry of the Agreement (whichever is the earlier) the Supplier shall vacate Progress’s premises, remove the Supplier’s plant, equipment and unused materials and all rubbish arising out of the provision of the Services and leave Progress’s premises in a clean, safe and tidy condition.  The Supplier shall be solely responsible for making good any damage to Progress’s premises or any objects contained on Progress’s premises which is caused by the Supplier or any Staff, other than fair wear and tear.

7.3         If the Supplier supplies all or any of the Services at or from its premises or the premises of a third party, Progress may, during normal business hours and on reasonable notice, inspect and examine the manner in which the relevant Services are supplied at or from the relevant premises.

7.4         Progress shall be responsible for maintaining the security of its premises in accordance with its standard security requirements.  While on Progress’s premises the Supplier shall, and shall procure that all Staff shall, comply with all Progress’s security requirements.

7.5         Where all or any of the Services are supplied from the Supplier’s premises, the Supplier shall, at its own cost, comply with all security requirements specified by Progress in writing.

7.6         Without prejudice to clause 6.2.7, any equipment provided by Progress for the purposes of the Agreement shall remain the property of Progress and shall be used by the Supplier and the Staff only for the purpose of carrying out the Agreement.  Such equipment shall be returned promptly to Progress on expiry or termination of the Agreement. 

7.7         The Supplier shall reimburse Progress for any loss or damage to the equipment (other than deterioration resulting from normal and proper use) caused by the Supplier or any Staff.  Equipment supplied by Progress shall be deemed to be in a good condition when received by the Supplier or relevant Staff unless Progress is notified otherwise in writing within 5 Working Days of receipt. 

8            Charges, Payment and Recovery of Sums Due

8.1         The Charges for the Goods and/or Services shall be as set out in the Order and shall be the full and exclusive remuneration of the Supplier in respect of the supply of the Goods and/or Services.  Unless otherwise agreed in writing by Progress, the Charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.

8.2         All amounts stated are exclusive of VAT which shall be charged at the prevailing rate.  Progress shall, following the receipt of a valid VAT invoice, pay to the Supplier a sum equal to the VAT chargeable in respect of the Goods and/or Services.

8.3         The Supplier shall invoice Progress as specified in the Agreement.  Each invoice shall include such supporting information required by Progress to verify the accuracy of the invoice, including the relevant Purchase Order Number and a breakdown of the Goods and/or Services supplied in the invoice period. 

8.4         In consideration of the supply of the Goods and/or Services by the Supplier, Progress shall pay the Supplier the invoiced amounts no later than 30 days after verifying that the invoice is valid and undisputed and includes a valid Purchase Order Number.  Progress may, without prejudice to any other rights and remedies under the Agreement, withhold or reduce payments in the event of unsatisfactory performance.

8.5         If Progress fails to consider and verify an invoice in a timely fashion the invoice shall be regarded as valid and undisputed for the purpose of paragraph 8.4 after a reasonable time has passed.

8.6         If there is a dispute between the Parties as to the amount invoiced, Progress shall pay the undisputed amount. The Supplier shall not suspend the supply of the Goods and/or Services unless the Supplier is entitled to terminate the Agreement for a failure to pay undisputed sums in accordance with clause 20.4.  Any disputed amounts shall be resolved through the dispute resolution procedure detailed in clause 23.

8.7         If a payment of an undisputed amount is not made by Progress by the due date, then Progress shall pay the Supplier interest at the interest rate of 2% above Bank of England base rate.

8.8         Interest shall not be payable in respect of any amount in dispute as notified to the Supplier unless such amount is subsequently agreed or held to be payable by Progress.

8.9         Where the Supplier enters into a sub-contract, the Supplier shall include in that sub-contract:

8.9.1              provisions having the same effects as clauses 8.3 to 8.7 of this Agreement; and

8.9.2              a provision requiring the counterparty to that sub-contract to include in any sub-contract which it awards provisions having the same effect as 8.3 to 8.8 of this Agreement.

8.9.3              In this clause 8.8, “sub-contract” means a contract between two or more suppliers, at any stage of remoteness from Progress in a subcontracting chain, made wholly or substantially for the purpose of performing (or contributing to the performance of) the whole or any part of this Agreement.

8.10      If any sum of money is recoverable from or payable by the Supplier under the Agreement (including any sum which the Supplier is liable to pay to Progress in respect of any breach of the Agreement), that sum may be deducted unilaterally by Progress from any sum then due, or which may come due, to the Supplier under the Agreement or under any other agreement or contract with Progress.  The Supplier shall not be entitled to assert any credit, set-off or counterclaim against Progress in order to justify withholding payment of any such amount in whole or in part.

9             Staff and Key Personnel

9.1         If Progress reasonably believes that any of the Staff are unsuitable to undertake work in respect of the Agreement, it may, by giving written notice to the Supplier:

9.1.1               refuse admission to the relevant person(s) to Progress’s premises;

9.1.2               direct the Supplier to end the involvement in the provision of the Goods and/or Services of the relevant person(s); and/or

9.1.3               require that the Supplier replace any person removed under this clause with another suitably qualified person and procure that any security pass issued by Progress to the person removed is surrendered,

and the Supplier shall comply with any such notice.

9.2         The Supplier shall:

9.2.1               ensure that all Staff are vetted in accordance with the Staff Vetting Procedures and (where relevant) any applicable Mandatory Policies and if requested, comply with the Progress’s Staff Vetting Procedures and Mandatory Policies as supplied from time to time;

9.2.2               if requested, provide Progress with a list of the names and addresses (and any other relevant information) of all persons who may require admission to Progress’s premises in connection with the Agreement; and

9.2.3               procure that all Staff comply with any rules, regulations and requirements reasonably specified by Progress (including the Data Protection Legislation, the Regulations, the MSA, the Bribery Act and the PCRs).

9.3         Any Key Personnel shall not be released from supplying the Goods and/or Services without the agreement of Progress, except by reason of long-term sickness, maternity leave, paternity leave, termination of employment or other extenuating circumstances.

9.4         Any replacements to the Key Personnel shall be subject to the prior written agreement of Progress (not to be unreasonably withheld). Such replacements shall be of at least equal status or of equivalent experience and skills to the Key Personnel being replaced and be suitable for the responsibilities of that person in relation to the Goods and/or Services.

9.5         Make payment for all travel and subsistence arrangements of their Staff whilst undertaking the Services in connection with this Agreement.

10          Assignment and sub-contracting

10.1      The Supplier shall not without the written consent of Progress assign, sub-contract, novate or in any way dispose of the benefit and/ or the burden of the Agreement or any part of the Agreement.  Progress may, in the granting of such consent, provide for additional terms and conditions relating to such assignment, sub-contract, novation or disposal.  The Supplier shall be responsible for the acts and omissions of its sub-contractors as though those acts and omissions were its own. 

10.2      Where Progress has consented to the placing of sub-contracts, the Supplier shall, at the request of Progress, send copies of each sub-contract, to Progress as soon as is reasonably practicable. 

10.3      Progress may assign, novate, or otherwise dispose of its rights and obligations under the Agreement to any member of its group (as defined in the Companies Act 2006) without the consent of the Supplier or, provided that such assignment, novation or disposal shall not increase the burden of the Supplier’s obligations under the Agreement, to any other entity.

11          Intellectual Property Rights

11.1      All intellectual property rights in any materials provided by Progress to the Supplier for the purposes of this Agreement shall remain the property of Progress but Progress hereby grants the Supplier a royalty-free, non-exclusive and non-transferable licence to use such materials as required until termination or expiry of the Agreement for the sole purpose of enabling the Supplier to perform its obligations under the Agreement.

11.2      All intellectual property rights in any materials created or developed by the Supplier pursuant to the Agreement or arising as a result of the provision of the Services shall vest in the Supplier.  If, and to the extent, that any intellectual property rights in such materials vest in Progress by operation of law, Progress hereby assigns to the Supplier by way of a present assignment of future rights that shall take place immediately on the coming into existence of any such intellectual property rights all its intellectual property rights in such materials (with full title guarantee and free from all third party rights).

11.3      The Supplier hereby grants Progress:

11.3.1            a perpetual, royalty-free, irrevocable, non-exclusive licence (with a right to sub-license) to use all intellectual property rights in the materials created or developed pursuant to the Agreement and any intellectual property rights arising as a result of the provision of the Services; and

11.3.2            a perpetual, royalty-free, irrevocable and non-exclusive licence (with a right to sub-license) to use:

(a)           any intellectual property rights vested in or licensed to the Supplier on the date of the Agreement; and

(b)          any intellectual property rights created during the Term but which are neither created or developed pursuant to the Agreement nor arise as a result of the provision of the Services,

including any modifications to or derivative versions of any such intellectual property rights, which Progress reasonably requires in order to exercise its rights and take the benefit of the Agreement including the Services provided.

11.4      The Supplier shall indemnify, and keep indemnified, Progress in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and reasonable legal and other professional fees awarded against or incurred or paid by Progress as a result of or in connection with any claim made against Progress for actual or alleged infringement of a third party’s intellectual property arising out of, or in connection with, the supply or use of the Services, to the extent that the claim is attributable to the acts or omission of the Supplier or any Staff.

12          Governance and Records

12.1      The Supplier shall:

12.1.1       attend progress meetings with Progress at the frequency and times specified by Progress and shall ensure that its representatives are suitably qualified to attend such meetings; and

12.1.2       submit progress reports to Progress at the times and in the format specified by Progress.

12.2      The Supplier shall keep and maintain until 6 years after the end of the Agreement, or as long a period as may be agreed between the Parties, full and accurate records of the Agreement including the Services supplied under it and all payments made by Progress.  The Supplier shall on request afford Progress or Progress’s representatives such access to those records as may be reasonably requested by Progress in connection with the Agreement.

13           Confidentiality, Transparency and Publicity

13.1      Subject to clause 13.2, each Party shall:

13.1.1       treat all Confidential Information it receives as confidential, safeguard it accordingly and not disclose it to any other person without the prior written permission of the disclosing Party; and

13.1.2       not use or exploit the disclosing Party’s Confidential Information in any way except for the purposes anticipated under the Agreement.

13.2      Notwithstanding clause 13.1, a Party may disclose Confidential Information which it receives from the other Party:

13.2.1       where disclosure is required by applicable law or by a court of competent jurisdiction;

13.2.2       to its auditors or for the purposes of regulatory requirements;

13.2.3       on a confidential basis, to its professional advisers;

13.2.4       to the Serious Fraud Office where the Party has reasonable grounds to believe that the other Party is involved in activity that may constitute a criminal offence under the Bribery Act;

13.2.5       where the receiving Party is the Supplier, to the Staff on a need to know basis to enable performance of the Supplier’s obligations under the Agreement provided that the Supplier shall procure that any Staff to whom it discloses Confidential Information pursuant to this clause 13.2.5 shall observe the Supplier’s confidentiality obligations under the Agreement; and

13.2.6       where the receiving Party is Progress:

(a)           on a confidential basis to the employees, agents, consultants and contractors of Progress;

(b)          on a confidential basis to any other member of its group (as defined in the Companies Act 2006), or any company to which Progress transfers or proposes to transfer all or any part of its business;

(c)           to the extent that Progress (acting reasonably) deems disclosure necessary or appropriate in the course of carrying out its public functions; or

(d)          in accordance with clause 14. 

and for the purposes of the foregoing, references to disclosure on a confidential basis shall mean disclosure subject to a confidentiality agreement or arrangement containing terms no less stringent than those placed on Progress under this clause 13.

13.3      The Parties acknowledge that, except for any information which is exempt from disclosure in accordance with the provisions of the EIRs, the content of the Agreement is not Confidential Information and the Supplier hereby gives its consent for Progress to publish this Agreement in its entirety to the general public (but with any information that is exempt from disclosure in accordance with the EIRs redacted) including any changes to the Agreement agreed from time to time.  Progress may consult with the Supplier to inform its decision regarding any redactions but shall have the final decision in its absolute discretion whether any of the content of the Agreement is exempt from disclosure in accordance with the provisions of the EIRs.

13.4      The Supplier shall not, and shall take reasonable steps to ensure that the Staff shall not, make any press announcement or publicise the Agreement or any part of the Agreement in any way, except with the prior written consent of Progress. 

14           Environmental Information Regulations

14.1      To the extent that Progress is (or may in the future become) subject to the requirements of the EIRs, the Supplier shall:

14.1.1       provide all necessary assistance and cooperation as reasonably requested by Progress to enable Progress to comply with its obligations under the EIRs;

14.1.2       transfer to Progress all Requests for Information relating to the Agreement that it receives as soon as practicable and in any event within 2 Working Days of receipt;

14.1.3       provide Progress with a copy of all information belonging to Progress requested in the Request for information which is in its possession or control in the form that Progress requires within 5 Working Days (or such other period as Progress may reasonably specify) of Progress's request for such information; and

14.1.4       not respond directly to a Request for Information unless authorised in writing to do so by Progress.

14.2      The Supplier acknowledges that Progress may be required under the EIRs to disclose Information concerning the Supplier or the Services (including commercially sensitive information) without consulting or obtaining consent from the Supplier. In these circumstances Progress shall, in accordance with any relevant guidance issued under the EIRs, take reasonable steps, where appropriate, to give the Supplier advance notice, or failing that, to draw the disclosure to the Supplier’s attention after any such disclosure.

14.3      Notwithstanding any other provision in the Agreement, Progress shall be responsible for determining in its absolute discretion whether any information relating to the Supplier or the Services is exempt from disclosure in accordance with the EIRs.

15          Freedom of Information Act

15.1      To the extent that Progress is (or may in the future become) subject to the requirements of the FOIA, the Supplier shall:

15.1.1       provide all necessary assistance and cooperation as reasonably requested by Progress to enable Progress to comply with its obligations under the FOIA;

15.1.2       transfer to Progress all Requests for Information relating to the Agreement that it receives as soon as practicable and in any event within 2 Working Days of receipt;

15.1.3       provide Progress with a copy of all information belonging to Progress requested in the Request for information which is in its possession or control in the form that Progress requires within 5 Working Days (or such other period as Progress may reasonably specify) of Progress's request for such information; and

15.1.4       not respond directly to a Request for Information unless authorised in writing to do so by Progress.

15.2      The Supplier acknowledges that Progress may be required under the FOIA to disclose Information concerning the Supplier or the Services (including commercially sensitive information) without consulting or obtaining consent from the Supplier. In these circumstances Progress shall, in accordance with any relevant guidance issued under the FOIA, take reasonable steps, where appropriate, to give the Supplier advance notice, or failing that, to draw the disclosure to the Supplier’s attention after any such disclosure.

15.3      Notwithstanding any other provision in the Agreement, Progress shall be responsible for determining in its absolute discretion whether any information relating to the Supplier or the Services is exempt from disclosure in accordance with the FOIA.

16           Protection of Personal Data and Security of Data

16.1      Terms defined in the Data Protection Legislation shall have the same meanings in this clause 15.

16.2      The Parties shall comply with their respective obligations under the Data Protection Legislation when processing any personal data in connection with the Agreement (Shared Data) including (without limitation) the provision of suitable privacy notices to affected data subjects.

16.3      Where the Supplier processes Shared Data as a data processor:

16.3.1       it shall do so only to the minimum extent necessary to comply with its legal obligations and for the purposes of performing the Services and its other obligations under the Agreement (Agreed Purpose);

16.3.2       it shall not process the Shared Data for any purpose other than the Agreed Purpose without the prior written instructions or agreement of Progress;

16.3.3       save where otherwise required by virtue of a legal obligation to retain the Shared Data for a longer period, it shall cease processing the Shared Data once the Agreed Purpose has been achieved;

16.3.4       it shall forward any complaints, requests or similar communications from data subjects regarding the Shared Data to Progress within 2 Working Days of receipt; and

16.3.5       it shall not transfer the Shared Data to any third party without the prior written permission of Progress. Any permission granted under this clause 15.3.5 shall be subject to the Supplier entering into a written agreement with the third party with data protection requirements that are not less onerous than this clause 15.

16.4       In respect of the Shared Data, the parties shall co-operate with each other in meeting their respective obligations under the Data Protection Legislation including (without limitation) compliance with data subject requests.

16.5       The Supplier shall adhere to the data protection policy and procedures of Progress as notified to it from time to time or with its own data protection policy and procedures provided that these have been approved by Progress.

16.6       The Supplier shall maintain appropriate technical and organisational data security measures including (without limitation) ensuring that all Staff carry out data protection training.

16.7      The Supplier shall indemnify, and keep indemnified, Progress in full against all cost, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and reasonable legal and other professional fees awarded against or incurred or paid by Progress as a result of or in connection with any breach of this clause 15.

17          Prevention of Facilitation of tax evasion 

17.1      The Supplier shall:

17.1.1        comply with all applicable laws, statutes, regulations and codes relating to prevention of facilitation of tax evasion in the UK or abroad including but not limited to the Criminal Finances Act 2017;

17.1.2       not engage, and shall procure that any person associated with it shall not engage in any activity, practice or conduct which would constitute an offence under section 44 and section 45 of the Criminal Finances Act 2017;

17.1.3       comply with Progress’s relevant policies to prevent facilitation of tax evasion published from time to time;

17.1.4       ensure that it has in place adequate procedures to prevent facilitation of tax evasion and use all reasonable endeavours to ensure that any person associated with it including but not limited to:

(a)           all of the Supplier’s personnel;

(b)          all others associated with the Supplier; and

(c)           all of the Supplier’s subcontractors,

                    involved in performing this Contract so comply.

17.1.5       prevent the use of off shore intermediaries.

17.2      The Supplier shall:

17.2.1       If requested, provide the Purchaser with any reasonable assistance, at the Purchaser's reasonable cost, to enable the Purchaser to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with the Criminal Finances Act 2017;

17.2.2       Within 5 Business Days of the Commencement Date, and annually thereafter, certify to the Purchaser in writing (such certification to be signed by an officer of the Supplier) compliance with this Condition 16.2.2 by the Supplier and all persons associated with it or other persons who are supplying goods or services in connection with this Contract.  The Supplier shall provide such supporting evidence of compliance as Progress may reasonably request;

17.2.3       Immediately notify Progress as soon as it becomes aware of a breach or possible breach of any of the requirements of this condition.

17.3      If the Supplier notifies Progress that it suspects or knows that there may be a breach of Condition 16.1, the Supplier must respond promptly to the Progress’s enquiries, co-operate with any investigation, and allow Progress to audit books, records and any other relevant documentation.  This obligation shall continue for 10 years following the expiry or termination of the Contract.

17.4      Progress may terminate the Contract by written notice with immediate effect if the Supplier or any person associated with it (in all cases whether or not acting with the Supplier's knowledge) breaches Condition 16.1.  In determining whether to exercise the right of termination under this Condition 16.4, Progress shall give all due consideration, where appropriate, to action other than termination of the Contract unless the breach is committed by the Supplier or a senior officer of the Supplier or by an employee, Sub-Contractor or supplier not acting independently of the Supplier.  The expression "not acting independently of" (when used in relation to the Supplier or a Sub-Contractor) means and shall be construed as acting:

17.4.1       With the Supplier; or

17.4.2       With the actual knowledge of any one or more of the directors of the Supplier or Sub-Contractor (as the case may be); or

17.4.3       In circumstances where any one or more of the directors of the Supplier ought reasonably to have had knowledge.

17.5      Any notice of termination under Condition 16.4 must specify:

17.5.1       The nature of the activity, practice or conduct which would constitute an offence under section 44 and section 45 of the Criminal Finances Act 2017;

17.5.2       The identity of the party thought to have engaged in such activity, practice or conduct which would constitute an offence; and

17.5.3       The date on which the Contract will terminate.

17.6      Despite Condition 22 (Dispute Resolution), any dispute relating to:

17.6.1       The interpretation of Condition 16; or

17.6.2       Whether an offence has been committed;

shall be determined by Progress and its decision shall be final and conclusive.

17.7      Any termination under Condition 16.4 will be without prejudice to any right or remedy which has already accrued or subsequently accrues to Progress.

18           Liability

18.1      The Supplier shall not be responsible for any injury, loss, damage, cost or expense suffered by Progress if and to the extent that it is caused by the negligence or wilful misconduct of Progress or by breach by Progress of its obligations under the Agreement.

18.2      Subject always to clauses 18.3 and 18.4:

18.2.1       the aggregate liability of Progress in respect of all (defaults, claims, losses or damages howsoever caused, whether arising from breach of the Agreement, the supply or failure to supply of the Services, misrepresentation (whether tortuous or statutory), tort (including negligence), breach of statutory duty or otherwise) (“Losses”) shall in no event exceed a sum equal to 125% of the Charges paid or payable to the Supplier; and

18.2.2       except in the case of claims arising under clauses 5.2, 11.4, 15.7, 20.5 and 23.4, in no event shall the Supplier be liable to Progress for any:

(a)           loss of profits;

(b)          loss of business;

(c)           loss of revenue;

(d)          loss of or damage to goodwill;

(e)          loss of savings (whether anticipated or otherwise); and/or

(f)            any indirect, special or consequential loss or damage.

18.2.3       the aggregate liability of the Supplier in respect of all Losses shall in no event exceed a sum equal to 125% of the Charges paid or payable to the Supplier; and

18.2.4       except in the case of claims arising under clauses 5.2, 11.4, 15.7, 20.5 and 23.4, in no event shall the Supplier be liable to Progress for any:

(a)           loss of profits;

(b)          loss of business;

(c)           loss of revenue;

(d)          loss of or damage to goodwill;

(e)          loss of savings (whether anticipated or otherwise); and/or

(f)            any indirect, special or consequential loss or damage.

18.3      Nothing in the Agreement shall be construed to limit or exclude either Party's liability for:

18.3.1       death or personal injury caused by its negligence or that of its Staff;

18.3.2       fraud or fraudulent misrepresentation by it or that of its Staff; or

18.3.3       any other matter which, by law, may not be excluded or limited.

18.4      The Supplier’s liability under the indemnity in clauses 5.2, 11.4, 15.7, 20.5 and 23.4 shall be unlimited.

19           Force Majeure

Neither Party shall have any liability under or be deemed to be in breach of the Agreement for any delays or failures in performance of the Agreement which result from circumstances beyond the reasonable control of the Party affected. Each Party shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than two months, either Party may terminate the Agreement by written notice to the other Party.

20           Termination

20.1      Progress may terminate the Agreement at any time by notice in writing to the Supplier to take effect on any date falling at least 1 month (or, if the Agreement is less than 3 months in duration, at least 10 Working Days) later than the date of service of the relevant notice.

20.2      Without prejudice to any other right or remedy it might have, Progress may terminate the Agreement by written notice to the Supplier with immediate effect if the Supplier:

20.2.1            (without prejudice to clause 20.2.6), is in material breach of any obligation under the Agreement which is not capable of remedy;

20.2.2            repeatedly breaches any of the terms and conditions of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms and conditions of the Agreement;

20.2.3            is in material breach of any obligation which is capable of remedy, and that breach is not remedied within 30 days of the Supplier receiving notice specifying the breach and requiring it to be remedied;

20.2.4            is in material breach of any of the terms and conditions of the Order;

20.2.5            undergoes a change of control within the meaning of section 416 of the Income and Corporation Taxes Act 1988;

20.2.6            breaches any of the provisions of clauses 9.2, 13, 14, 15 and 21;

20.2.7            becomes insolvent, or if an order is made or a resolution is passed for the winding up of the Supplier (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator or administrative receiver is appointed in respect of the whole or any part of the Supplier’s assets or business, or if the Supplier makes any composition with its creditors or takes or suffers any similar or analogous action (to any of the actions detailed in this clause 20.2.7) in consequence of debt in any jurisdiction; or

20.2.8            fails to comply with legal obligations in the fields of environmental, social or labour law.

20.3      The Supplier shall notify Progress as soon as practicable of any change of control as referred to in clause 20.2.5 or any potential such change of control.

20.4      The Supplier may terminate the Agreement by written notice to Progress if Progress has not paid any undisputed amounts within 90 days of them falling due. 

20.5      Progress may terminate the Agreement by written notice to the Supplier with immediate effect where it is in its reasonable opinion required to do so by the PCRs.

20.6      Termination or expiry of the Agreement shall be without prejudice to the rights of either Party accrued prior to termination or expiry and shall not affect the continuing rights of the Parties under this clause and clauses Error! Reference source not found., 6.2, 7.1, 7.2, 7.6, 7.7, 9, 11, 12.2, 13, 14, 15, 18, 20.7, 21.4, 22.3, 23 and 24.7 or any other provision of the Agreement that either expressly or by implication has effect after termination.

20.7      Upon termination or expiry of the Agreement, the Supplier shall:

20.7.1            give all reasonable assistance to Progress and any incoming supplier of the Services; and

20.7.2            return all requested documents, information and data to Progress as soon as reasonably practicable.

21           Compliance

21.1      The Supplier shall promptly notify Progress of any health and safety hazards which may arise in connection with the performance of its obligations under the Agreement.  Progress shall promptly notify the Supplier of any health and safety hazards which may exist or arise at Progress’s premises and which may affect the Supplier in the performance of its obligations under the Agreement.

21.2      The Supplier shall:

21.2.1       comply with all Progress’s health and safety measures while on Progress’s premises;

21.2.2       notify Progress immediately in the event of any incident occurring in the performance of its obligations under the Agreement on Progress’s premises where that incident causes any personal injury or damage to property which could give rise to personal injury;

21.2.3       comply with the PCRs; and

21.2.4       comply with the MSA.

21.3      The Supplier shall:

21.3.1       perform its obligations under the Agreement in accordance with all applicable equality Law and all Mandatory Polices, including Progress’s equality and diversity policy as provided to the Supplier from time to time;

21.3.2       take all reasonable steps to secure the observance of clause 21.3.1 by all Staff.

21.4      The Supplier shall supply the Services in accordance with Progress’s environmental policy as provided to the Supplier from time to time.

21.5      The Supplier shall comply with, and shall ensure that its Staff shall comply with, the provisions of:

21.5.1       the Mandatory Policies; and

21.5.2       the Regulations.

The Supplier shall indemnify, and keep indemnified, Progress in full against all cost, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and reasonable legal and other professional fees awarded against or incurred or paid by Progress as a result of or in connection with any breach of this clause 20.5.

22           Prevention of Fraud and Corruption

22.1      The Supplier shall not offer, give, or agree to give anything, to any person an inducement or reward for doing, refraining from doing, or for having done or refrained from doing, any act in relation to the obtaining or execution of the Agreement or for showing or refraining from showing favour or disfavour to any person in relation to the Agreement.

22.2      The Supplier shall take all reasonable steps, in accordance with good industry practice, to prevent fraud by the Staff and the Supplier (including its shareholders, members and directors) in connection with the Agreement and shall notify Progress immediately if it has reason to suspect that any fraud has occurred or is occurring or is likely to occur.

22.3      If the Supplier or the Staff engages in conduct prohibited by clause 22.1 or commits fraud in relation to the Agreement or any other contract with Progress’s group (including Progress) Progress may:

22.3.1            terminate the Agreement and recover from the Supplier the amount of any loss suffered by Progress resulting from the termination, including the cost reasonably incurred by Progress of making other arrangements for the supply of the Services and any additional expenditure incurred by Progress throughout the remainder of the Agreement; or

22.3.2            recover in full from the Supplier any other loss sustained by Progress in consequence of any breach of this clause.

23           Dispute Resolution

23.1      The Parties shall attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with the Agreement and such efforts shall involve the escalation of the dispute to an appropriately senior representative of each Party.

23.2      If the dispute cannot be resolved by the Parties within one month of being escalated as referred to in clause 23.1, the dispute may by agreement between the Parties be referred to a neutral adviser or mediator (the “Mediator”) chosen by agreement between the Parties.  All negotiations connected with the dispute shall be conducted in confidence and without prejudice to the rights of the Parties in any further proceedings. 

23.3      If the Parties fail to appoint a Mediator within one month, or fail to enter into a written agreement resolving the dispute within one month of the Mediator being appointed, either Party may exercise any remedy it has under applicable law.

23.4      The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to any dispute under clause 25, which clause shall apply at all times.

24           General

24.1      Each of the Parties represents and warrants to the other that it has full capacity and authority, and all necessary consents, licences and permissions to enter into and perform its obligations under the Agreement, and that the Agreement is executed by its duly authorised representative. 

24.2      A person who is not a party to the Agreement shall have no right to enforce any of its provisions which, expressly or by implication, confer a benefit on him, without the prior written agreement of the Parties.

24.3      The Agreement cannot be varied except in writing signed by a duly authorised representative of both the Parties.

24.4      The Agreement contains the whole agreement between the Parties and supersedes and replaces any prior written or oral agreements, representations or understandings between them. The Parties confirm that they have not entered into the Agreement on the basis of any representation that is not expressly incorporated into the Agreement. Nothing in this clause shall exclude liability for fraud or fraudulent misrepresentation.

24.5      Any waiver or relaxation either partly, or wholly of any of the terms and conditions of the Agreement shall be valid only if it is communicated to the other Party in writing and expressly stated to be a waiver.  A waiver of any right or remedy arising from a breach of contract shall not constitute a waiver of any right or remedy arising from any other breach of the Agreement.

24.6      The Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in the Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.

24.7      Except as otherwise expressly provided by the Agreement, all remedies available to either Party for breach of the Agreement (whether under the Agreement, statute or common law) are cumulative and may be exercised concurrently or separately, and the exercise of one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.

24.8      If any provision of the Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from the Agreement and rendered ineffective as far as possible without modifying the remaining provisions of the Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of the Agreement.

25          Notices

25.1      Any notice to be given under the Agreement shall be in writing and may be served by personal delivery, first class recorded or, subject to clause 25.3, e-mail to the address of the relevant Party set out in the Order, or such other address as that Party may from time to time notify to the other Party in accordance with this clause:

25.2      Notices served as above shall be deemed served on the Working Day of delivery provided delivery is before 5.00pm on a Working Day.  Otherwise delivery shall be deemed to occur on the next Working Day. An email shall be deemed delivered when sent unless an error message is received.

25.3      Notices under clauses 19 (Force Majeure) and 20 (Termination) may be served by email only if the original notice is then sent to the recipient by personal delivery or recorded delivery in the manner set out in clause 25.1.

26          Governing Law and Jurisdiction

The validity, construction and performance of the Agreement, and all contractual and non-contractual matters arising out of it, shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.