NHS conditions of contract for the sale of scrap March 2007 1
Page Interpretation 3 Variation of conditions 3 Specification 3 Samples 4 Disclaimer 4 Property and risk 5 Payment 5 Removal 5 Recovery of sums due 6 Inducements to purchase 6 Health and safety 6 Law 6 Agency 7 Freedom of Information Act 7 Acknowledgement of Order form 8 2
Interpretation 1 In these conditions of contract the following definitions shall apply: The authority means the health service body placing the contract. Health service body means a health service body as defined in section 9 of the National Health Service Act 2006 or any NHS foundation trust listed in the register of NHS foundation trusts maintained pursuant to section 39 of that Act, as the case may be. The contract means the agreement concluded between the authority and the contractor, including all documents incorporated or referred to therein. The contractor means the person who by the contract undertakes to buy the goods. Where the contractor is an individual or partnership the expression shall include the personal representatives of that individual or of the partners. The contract price means the price exclusive of value added tax that is payable by the contractor to the authority under the contract. The goods means all goods, materials or articles that the contractor is required to buy under the contract, being scrap goods sold for the intrinsic value of their constituent parts or materials rather than as usable artefacts or manufactured products. 2 Unless the context otherwise requires it, reference to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended or re-enacted by any subsequent enactment, order, regulation or instrument. 3 The headings to these conditions shall not affect their interpretation. 4 Any decision, act or thing that the authority is required or authorised to take or do under the contract may be taken or done by any person authorised, either generally or specifically, by the authority to take or do that decision, act or thing, provided that upon receipt of a written request the authority shall inform the contractor of the name of any person so authorised. Variation of conditions 5 The goods shall be purchased solely in accordance with these conditions. All other contractual terms which in any way add to, vary or contradict these conditions upon which the contractor may seek to rely or otherwise impose on the authority shall be excluded and shall not form part of the contract (whether or not such other contractual terms post-date these conditions) unless the authority has specifically agreed in writing to be bound by any of such other contractual terms. Specification 6 The description of the goods is given by way of identification only and the use of such description shall not constitute a sale by description. The goods are sold subject to all errors or mis-statements as to description, weight, quality, quantity, measurement, number or otherwise. 3
Samples 7 Any sample of the goods that is shown to and inspected by the contractor is so shown and inspected solely to enable the contractor to assess the quality of the bulk and not so as to constitute a sale by sample. Disclaimer 8 The goods are sold as they lie; accordingly, the contractor, having been given the opportunity to inspect the goods and to check their state and condition, should satisfy itself that the goods correspond with any description or sample and are of the required quality and fit for their particular purpose. 9 No liability whatsoever shall be incurred by the authority in respect of any representation made by or on behalf of the authority to the contractor, its employees or agents before the contract was made, where such representation related or referred in any way to: the correspondence of the goods with any description or sample, or the quality of the goods, or the fitness of the goods for any purpose whatsoever. 10 No liability whatsoever shall be incurred by the authority to the contractor in respect of any express term of the contract (whether a condition, warranty or intermediate stipulation) where the said term relates or refers in any way to: the correspondence of the goods with any description or sample, or the quality of the goods, or the fitness of the goods for any purpose whatsoever. 11 All implied conditions or warranties statutory common law or otherwise as to: the correspondence of the goods with any description or sample, or the satisfactory quality of the goods, or the fitness of the goods for any purpose whatsoever (whether made known to the authority or not), are hereby excluded from the contract. 12 No liability whatsoever shall be incurred by the authority in respect of any subsequent use of the goods by the contractor, its employees or agents, or on resale of all or any of the goods by the contractor to any third party. 13 Conditions 6 12 do not apply to the contract where the contractor is dealing as a consumer within the meaning of section 12 of the Unfair Contract Terms Act 1977. 4
Property and risk 14 The property in the goods shall pass to the contractor when the authority has received the contract price. 15 The goods shall be at the risk of the contractor. The authority shall not be under any liability for the safe custody or preservation of the goods nor for any loss thereof or damage thereto howsoever caused from the time of acceptance of the contractor s offer. Payment 16 Payment in full of the contract price plus VAT whether in cash or by cleared cheque or other instrument shall be received by the authority within 10 days of acceptance of the contractor s offer, unless condition 19 applies. 17 Cheques or other instruments shall be made payable to the order of the authority and shall be crossed a/c payee. 18 The issue of a receipt by the authority for a cash payment or for a cleared cheque or other instrument shall be satisfactory evidence of payment of the contract price and shall authorise the contractor to remove the goods. 19 Where the contractor has to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, payment of the contract price (or the balance of the contract price where an advance payment has been made) shall be received by the authority within 14 days of the day upon which the goods were removed from the authority s premises. Payment shall be accompanied by documentary proof of the weight or size of the goods or their various constituent parts and, where appropriate, an assay certificate as to the quality of the goods. 20 The time of payment shall be of the essence. Removal 21 The authority shall permit the contractor to remove the goods only after the authority has received all sums due under the contract and the contractor presents the receipt for inspection, unless condition 19 applies. 22 Subject to condition 21 the contractor shall remove the goods at its own expense from the authority s premises within 14 days of the acceptance of its offer. Thereafter the authority may place the goods in storage at the contractor s sole risk and expense. 23 The contractor shall be responsible for the provision and cost of all transport and labour for loading. Where the authority assists the contractor with the removal of the goods such assistance shall be rendered without any responsibility on the part of the authority, its employees or agents and the goods shall be at the sole risk of the contractor. 24 The contractor shall leave the authority s premises in a clean, tidy and safe condition. 5
25 Without prejudice to any other right or remedy of the authority if the contractor does not remove the goods or any part of them within the period specified in condition 22 the authority may determine the contract, resell the goods and recover from the contractor damages for any loss occasioned by the contractor s breach of contract together with an administrative charge of five per cent of the contract price. 26 Time shall be of the essence in respect of the obligations in this condition. Recovery of sums due 27 Whenever under the contract any sum of money shall be recoverable from or payable by the contractor the same may be deducted from any sum then due or which at any time thereafter may become due to the contractor under the contract or under any other contract with the authority. Inducements to purchase 28 The authority shall be entitled to terminate the contract and to recover from the contractor the amount of any loss resulting from such termination in the following circumstances: if the contractor shall have offered or given or agreed to give to any person any gift or consideration of any kind as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any action in relation to the obtaining or execution of the contract or any other contract with the authority or any health service body, or for showing or forbearing to show favour or disfavour to any person in relation to the contract or any other contract with the authority or any health service body if the like acts shall have been done by any person employed by it or acting on its behalf (whether with or without the knowledge of the contractor) if in relation to the contract or any other contract with the authority or any health service body the contractor or any person employed by it or acting on its behalf shall have committed any offence under the Prevention of Corruption Acts 1889 to 1916, or shall have given any fee or reward to any officer of the authority which shall have been exacted or accepted by such officer under colour of his office or employment and is otherwise than such officer s proper remuneration. Health and safety 29 If the goods are being supplied for use at work the contractor undertakes to take such steps as are necessary to ensure, so far as is reasonably practicable, that the goods shall be safe and without risk to health when properly used. Law 30 The parties shall accept the non-exclusive jurisdiction of the English courts and agree that the contract is to be governed and construed according to English law. 6
Agency 31 Subject to condition 32, where NHS Purchasing and Supply Agency has negotiated the contract with the contractor such negotiation has been undertaken by NHS Purchasing and Supply Agency in its capacity as agent for the authority, so that it incurs no personal liability on the contract or on any other contract resulting from such negotiation. 32 Where exceptionally NHS Purchasing and Supply Agency makes it clear in its official order that it is placing the order on its own account as principal, condition 31 shall not apply and NHS Purchasing and Supply Agency shall be the authority with all the rights and liabilities of the authority under the contract. 33 Where the authority has notified the contractor that a particular health service body shall not participate in the supply of goods pursuant to the contract, the contractor shall not purchase goods from those health service bodies. Freedom of Information Act 34 The contractor acknowledges that the authority is or may be subject to the Freedom of Information Act 2000 (FOIA) and may be required to disclose information about the contract to ensure the compliance of the authority with the FOIA. The contractor notes and acknowledges the FOIA and both the respective Codes of Practice on the Discharge of Public Authorities' Functions and on the Management of Records (which are issued under section 45 and 46 of the FOIA respectively) as may be amended, updated or replaced from time to time. The contractor will act in accordance with the FOIA and these Codes of Practice (and any other applicable codes of practice or guidance notified to the contractor from time to time) to the extent that they apply to the contractor's performance under the contract. The contractor agrees that the decision on whether any exemption applies to a request for disclosure of recorded information is a decision solely for the authority. Where the authority is managing a request as referred to in this clause, the contractor shall co-operate with the authority if it so requests and shall respond within five (5) working days of any request by it for assistance in determining how to respond to a request for disclosure. 7
NHS Acknowledgement of order To We acknowledge receipt of your order number dated for which is accepted in accordance with NHS Conditions of contract for the sale of scrap. Delivery ex works will be made at Payment is due within 30 days of the delivery date otherwise interest shall be charged for late payment. Signed for and on behalf of AUTHORITY 8