educational sector he consortia invitation to tender desktop pc … · 2007-02-28 · to london...

To London Universities Purchasing Consortium, KH/015 IRDA 2005 Purchasing Agreement for the Inter-Regional H.E. Consortia ITT for Desktop PC Equipment - 1/2/2006 to 31/1/2009

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Educational Sector

HE Consortia

Invitation to Tender Inter-Regional Framework

Agreement for Desktop PC Equipment

From 1/2/2006 to 31/1/2009

STANDARD IRDA

TERMS AND CONDITIONS

Reference: IRDA 2005 KH/015

Incorporating Addendum 1 - additional points for clarification as set out below; information collated 21.2.06, Mike Kilner, IRDA Contract Manager. Also included are “Additional Terms” mutually agreed for inclusion with all suppliers as part of the implementation process (ref. 03/05/06)


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ATTESTATION THIS AGREEMENT is made and entered into this 16th day of January 2006 between: PARTIES

A) “The Supplier” whose registered name and office is DELL CORPORATION LIMITED, Milbanke House, Western Road, Bracknell, Berkshire, RG12 1RW. and

B) The LONDON UNIVERSITIES PURCHASING CONSORTIUM (“LUPC”), a company limited by guarantee reg. no. 04784719 of 20 Guilford Street, London WC1N 1DZ on behalf of - the Southern Universities Purchasing Consortium, PROC-SNI representing Procurement for Scotland and Northern Ireland, the Research Council and together, their constituent members (“HE Consortia”). WHEREAS:

i. On the 10th June 2005 the LUPC issued an Invitation to Tender (“ITT”) to potential suppliers including the Supplier in respect of the provision of Personal Computers (PCs); “Desktops”, “Workstations” and as may be established by the HE Consortia within the boundaries of the ITT.

ii. The Supplier manufactures, supplies and markets computer Goods either directly or indirectly to end users in the UK and Ireland and submitted a tender dated 2nd August 2005 (or earlier) in response to the ITT.

iii. The HE Consortia Members wish to purchase (or lease) computer Goods from the Supplier and the LUPC agrees to facilitate this Agreement and where appropriate co-ordinate the Member’s role in performance measurement and cost revisions under the following terms and conditions. It is noted that the leasing requirements referred to in this Recital will also be subject to the separate contractual terms of third party suppliers (including without limitation Dell Financial Services).

NOW IT IS HEREBY AGREED as follows:

1 DEFINITIONS

1.1 In this Agreement the following words have the following meanings:

“Agreement” - shall mean the terms and conditions embodied in this Agreement. “Confidential Information” - mean any Software, Goods, terms and conditions of this Agreement information and material of whatever nature relating to the Disclosing Party’s activities, undertakings, technology, know-how, intellectual property, assets, positions, strategy and products (including without limitation information relating to management, financial, marketing, commercial, technical and other arrangements of the Disclosing Party and the affairs of its clients, current, former or prospective customers and suppliers) and/or the materials which is obtained by the Recipient or any designated person as a result or in consequence of access to or inspection of the Materials by the Recipient or any designated person or which is provided to the Recipient or any designated person either in writing or in pictorial or machine-readable form or orally from or pursuant to discussions with the management, employees or officers of the Disclosing Party, or any agent, contractor or adviser to the Disclosing Party.

“Contract” - shall mean the agreement embodied in this tender document.


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“Disclosing Party” - shall mean the party disclosing any Confidential Information.

“GBP” - shall mean UK Sterling Pounds (£). “Goods” - shall mean goods supplied as new pursuant to a Member’s Order.

“HE Consortia” - shall mean the London Universities Purchasing Consortium, the Southern Universities Purchasing Consortium, PROC-SNI representing Procurement for Scotland and Northern Ireland (formerly JCACP) , the Research Council and together, their constituent members (“HE Consortia”). Other HE Purchasing Consortia may join the Agreement later at their own volition. “Hour” - shall mean a Working Day hour between the time of 0900 and 1700 GMT Monday to Thursday or 1630 GMT Fridays. “IRDA” - shall mean Inter-Regional Desktop Agreement and have equal meaning to the term Agreement.

“Member” - shall mean an institution which is a member of a specified HE Consortia, the Member’s employee or its authorised agents and having their own Terms and Conditions of business, which shall prevail where they vary with the HE Consortia terms & conditions of business subject to sight and agreement by the Supplier.

“Member’s Order” - means an order placed by a Member of the specified HE Consortia. “Package” - shall mean bags, boxes, cases, drums and other containers. “Reseller” - shall mean a reseller used to facilitate and perform a number of added-value services under the Agreement on behalf of the Supplier that may include (not exclusively), the storage and distribution of Goods and the provision of customer and technical support. “Services” - shall mean services supplied pursuant to this Agreement. “Recipient” - shall means the party receiving any Confidential Information “The Supplier” - shall mean the party as described in the attestation. “Unit” – shall for the purpose of the Agreement mean a working base unit assembly with industry standard processor, storage, motherboard and memory components or a device designed to display information processed by the unit. “Working Day” - shall mean Monday to Friday excluding bank holidays appropriate to the country concerned.

1.2 References to any statutes or statutory provisions will unless the context otherwise requires be

construed as including references to any subsequent statutes or the corresponding provisions of any subsequent statute directly or indirectly or indirectly amending consolidating extending replacing or re-enacting the same and will include any orders regulations instruments or other subordinate legislation made under the relevant statute or statutory provision which are in force prior to the date of this Agreement;

1.3 The Supplier’s tender response shall be treated as a bona fide offer towards the forming of a binding agreement and any submitted materials, metrics or statements made and taken into consideration by the HE Consortia as part of the overall evaluation shall for the purpose of the Agreement, be treated as the minimum acceptable performance standard and any failure against these measures shall be fully rectified within 30 days of notification;

1.4 References to person will be construed as to include bodies corporate unincorporated associations and partnerships;


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1.5 Any reference to a Recital, Clause or Schedule is to the relevant Recital, Clause or Schedule to this Agreement and any reference to a sub-clause or paragraph is to the relevant sub-clause or paragraph of the Clause or Schedule in which it appears;

1.6 The Schedules form part of this Agreement and will have the same force and effect as if expressly set out in the body of this Agreement;

1.7 At the discretion of the HE Consortia, any written representation from the Supplier including specifically their response within the Schedules contained herein shall be treated as a bona fide offer and form part of the Terms and Conditions of business serving this Agreement;

1.8 Unless authorised and instructed by the LUPC Central Office, the Supplier shall not commence performance under the Agreement until agreement has been made on the Terms and Conditions of business including all Schedules and duly authorised signatures provided from the Supplier and the LUPC Central Office acting on behalf of the HE Consortia;

1.9 Use of the singular includes the plural and vice versa;

1.10 Use of any gender includes the other genders;

2 PREVAILING TERMS AND CONDITIONS

2.1 These terms and conditions have been agreed by the LUPC on behalf of the named HE Consortia and its Members. These Terms and Conditions set out below are the conditions that will be applied by a Member of the Consortia at the time of placing orders. These terms and conditions will prevail notwithstanding any other terms and conditions, which a Member shall bring to the Supplier’s notice unless agreed otherwise by The Supplier.

2.2 No employee, servant or agent of a HE Consortia is empowered to make any representation on behalf of any one or more Consortia which conflicts in any way with these Terms and Conditions or to vary them in any way whatsoever unless by agreement with the Supplier.

2.3 These terms and conditions shall have precedence over any Supplier’s printed conditions appearing in acknowledgements, acceptance forms, delivery notes, paper and electronic marketing materials and sites etc. issued by the Supplier and such conditions shall have no effect in so far as they are inconsistent with these terms and conditions.

3 DURATION OF AGREEMENT

3.1 The parties agree that this Agreement shall be in place until 31st January 2009 (and subject to review be extended to 31st January 2010) unless and until terminated by one party giving to the other not less that six (06) month prior written notice.

3.2 The Supplier shall continue to be bound by the terms and conditions of the Agreement regardless of their continued participation for all services outstanding and performed from the date the Member’s order is accepted. This includes but is not limited to, delivery, warranty and disposal services.

4 ROLE OF LUPC CENTRAL OFFICE The LUPC Central Office (based at 20 Guilford Street, London WC1N 1DZ) will facilitate this Agreement and where appropriate co-ordinate the Buyer’s role e.g. Contract variations, performance measurement and cost revisions. The terms of this Contract will generally indicate specific responsibilities of the LUPC Central Office, other Consortia central offices (as appropriate) and their individual members. The LUPC will give due notification to the Supplier if the hosting of this co-ordination function changes during the period of the Agreement.

5 PRICE

5.1 The Supplier shall offer the Member pricing inclusive of all standard delivery and packaging charges. 5.2 The pricing structure identified in clause 5.1 above shall be maintained subject to regular review.


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5.3 Either party can arrange quarterly price reviews between the Supplier and the

LUPC Central Office / Commodity Group Chairman supported by the HE Consortia. Market price trends shall be taken into consideration in these price reviews.

5.4 Any pricing structure variation must be provided in writing subject to a minimum of 60 days notice at the discretion of the LUPC and agreed between LUPC Central Office in conjunction with the HE Consortia and the Supplier. The LUPC and the other HE Consortia reserves the right to terminate the Agreement if we are dissatisfied with any price increase, relative to the previous pricing arrangements, and the reason for it.

Clause 5.4 Addendum: It is agreed that price reviews in response to market changes or resulting from changes in circumstances outside the Supplier’s control including without limitation structural changes that affect all manufacturers in the industry (for example the substantial increases in the component costs of memory caused by the Taiwan earthquake of 1999) shall not be subject to the 60 days minimum notice period. In such cases, the Supplier will notify LUPC of price reviews as soon as reasonably possible on becoming aware thereof and will endeavour to substantiate any increase to the reasonable satisfaction of LUPC. The Supplier would also expect to further substantiate any such increase by comparing any price changes against the changes made by other catalogue manufacturers. As an additional comfort, any changes in pricing shall only affect the relationship between the discount and the list price and not necessarily the sale price (e.g. if the list price is increased the discount percentage will also be increased to arrive back at the same sales price). The Supplier agrees to accept the findings from relevant reference material requested from the other contracted parties on the IRDA by the Contract Manager.

5.5 On an ongoing basis and at reviews, the Central Office shall continue to monitor the delivery of the Supplier’s overall service contained within its tender submission including the eventual cost structures made in the final Agreement. The HE Consortia reserves the right to withdraw Consortium and/or institutional promotional support if the European desktop turnover of the Supplier falls below 20m GBP per annum or consistently fails to conform to pre-agreed performance or management information criteria (at interregional, Consortium or member level). Additionally, it is necessary that the Supplier shall offer a service commitment to this Agreement and if it has failed to achieve the level of performance stated in the final Agreement within thirty days (30) of notification of breach from the Central Office, written notice to terminate this Agreement shall be immediately given to the Supplier.

6 MEMBERS ORDERS

6.1 Member’s orders will be in the following form:

6.1.1 Member’s orders in writing will be made on an official order form and should carry a Member’s Order number;

6.1.2 Member’s orders given verbally should quote the Member’s Order number and the Supplier shall communicate that they require this to be confirmed in writing before the Supplier processes the Member’s Order;

6.1.3 Member’s orders may also be sent electronically and should include an official Order number. In the absence of an Order number the Supplier will not process the order.

6.2 The Supplier shall acknowledge receipt of the Members’ Order with written confirmation, by electronic or other means, by no later than the next working day provided an email address is made available either on the Order or set as a default for the account. The Suppliers agrees to liaise with the Member towards recording at least one appropriate email address against every unique account code should there not be one present. For the avoidance of doubt, the Supplier shall not be obligated to accept Orders, which are incorrect, insufficient in detail, or have unachievable requirements. An Order received outside of Working Hours will be deemed to have been placed on the next Working Day. The Member will be confirmed of the


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type and specification of the Goods or Services ordered, the Cost to the Member of said Goods and the delivery date scheduled by the Supplier or mutually agreed in advance by both parties. The Member or the Supplier has the right to cancel, in writing, the order with the other party in part or outright within 8 hours of the confirmation notice being made available. If the Order is subsequently amended by the Member the confirmation notice process will be re-started. Subsequent amendments to this delivery date shall only be made by prior agreement with the Member and no less than 2 working days before anticipated delivery performance.

Clause 6.2 Addendum: In relation to the Member’s right to reject an Order within 8 hours of confirmation, it is noted that the Supplier’s build-to-order business model the lead-time from an Order being placed and going into production can be as little as one hour. This would be confirmed to the Member via a check on ‘Order Status live’ (delayed by 15 minutes) on the Premier Page under "Daily Order Status Reporting" as defined by instructions on the Dell / IRDA Buyers' Guide. The Supplier will endeavour to pull an Order from production as soon as it is cancelled but it is agreed that if it has already gone into production such cancellation may be subject to a re-stocking fee in accordance with the mutually agreed clause 6.8.

“Pursuant to Clause 6.2, if the Goods are supplied in accordance with Member’s Order and their wish is to cancel this requirement, the Supplier shall issue a separate credit note against all issued invoices and collect the Goods within 30 days of notification. Provided the Order has gone into production, the Supplier may separately charge the Member at its discretion and with reasonable prior notification, an administration and re-stocking fee permissible up to a maximum percentage figure as follows.

Order has gone into manufacture but not shipped: 15

Order has been manufactured, shipped and received by the Member: 25

A maximum charge equal to 100GBP shall apply as providing fair compensation to the Supplier without being punitive on the ordering party. 50% of this fee should apply for fixed-build product (e.g. monitors) that can be returned to stock without dismantling and re-building.”

6.3 In the case of Goods delivered by the Supplier not conforming to the Member’s Order whether by reason of being incorrect goods or specification the Member shall have the right to reject those Goods that do not conform with the Member’s original Order. The Member shall endeavour to make such notification within 10 working days from either the required date on the Member’s order or where not expressly made, the delivery date on the Supplier’s return order confirmation. Further allowance shall be made where there is a mutually agreed pre-stated intention to receive the Goods and hold without inspection. The making of payment shall not prejudice The Member’s right of rejection.

6.4 Where goods are rejected as in 6.3 above the Supplier shall be liable for the shipping costs and the cost for replacing the rejected goods with alternative goods from the Suppliers product range which do conform to the Member’s requirements within 5 working days from notification. If the replacement goods are not provided within the agreed time, The Member shall have the right to purchase elsewhere as near as practicable to the same Contract specifications and conditions as circumstances shall permit but without prejudice to any other right which The Member may have against the Supplier. Any reasonable additional costs incurred in re-sourcing will be the liability of the contracted Supplier provided they are given in writing to the Supplier at the time of re-sourcing.

Clause 6.4 Addendum: It is agreed that in a DOA situation, Dell would give the end user the choice of either logging a technical support call to fix the DOA which would be a NBD support (Dell deems this as a quicker solution for the customer) or a replacement machine which can be fast tracked through the ordering system and provided it is a standard component build machine, Dell would aim to replace the machine within 5 working days but cannot absolutely guarantee as the replacement machine needs to go through the manufacturing process. This expectation would be set with the customer upon logging the call so that the customer can make the best choice for their particular circumstance.


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6.4.1 The right to rejection shall not be prejudiced or invalidated by the use of marking, branding or tagging

either by or on behalf of the Member.

6.5 Where delivery on or by a particular date of fewer than 10 working days is crucial and a financial liability would result from late delivery, then the Member shall indicate this to the Supplier at the same time the Member the places the order. Subsequently, the Member and the Supplier shall agree the degree of any such liability before the Supplier accepts the Member’s Order. The Supplier shall not be liable for any financial cost incurred by a Member if the matter regarding delivery date was not brought to the attention of the Supplier when the Member first placed the order.

Clause 6.5 Addendum: It is agreed that any special delivery times required by the Member that fall outside the Supplier's then current lead times must be agreed at the time of ordering between the Member and the Supplier. It is noted that if the Member requests a specific delivery date that cannot be achieved by the Supplier, the Order should be declined.

6.6 The Supplier shall use its reasonable endeavours to acknowledge receipt of all quotations within 4 hours of receipt and provide in full, unless mutually agreed with the Member, by the next working day from the time of initial request. One day can be added to the quotation request period for every 50 units above 50 up to a maximum of 5 days except by mutual arrangement. These shall carry a unique quotation number and shall be valid for a period of 30 days from their issue date. The parties acknowledge that a particular item within a quotation may become unavailable within this period in which case the Member will be informed immediately and an alternative offered for acceptance.

6.7 Where the Member’s request for quotation or order is for a system that cannot be built by the Supplier or is ascertained as one that cannot function under normal operating conditions, the Supplier will use its reasonable endeavours to inform the Member within one working day.

6.8 Pursuant to Clause 6.2, if the Goods are supplied in accordance with Member’s Order and their wish is to cancel this requirement, the Supplier shall issue a separate credit note against all issued invoices and collect the Goods within 30 days of notification. Provided the Order has gone into production, the Supplier may separately charge the Member at its discretion and with reasonable prior notification, an administration and re-stocking fee permissible up to a maximum percentage figure as follows. Order has gone into manufacture but not shipped: 15 Order has been manufactured, shipped and received by the Member: 25 A maximum charge equal to 100GBP shall apply as providing fair compensation to the Supplier without being punitive on the ordering party. 50% of this fee should apply for fixed-build product (e.g. monitors) that can be returned to stock without dismantling and re-building.

Clause 6.8 Addendum: It is agreed that the maximum period in which returns can be made after delivery is 30 days unless explicitly agreed by the Supplier. It is agreed that the Supplier has the right to refuse a cancellation where the Goods are for example not in a condition for resale, and in particular where the Goods have been:

i. Taken out and the packaging or machine is physically damaged

ii. Deployed to desk and used in a way that would render the machine unfit for resale at its original sale value

iii. Software added in a way that its removal would render the machine unfit for resale at its original sale value

iv. Hardware tagged or marked on the outside in a way that would render the machine unfit for resale at its original sale value

7 INVOICING


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7.1 Invoices must carry the Member’s Order number and be sent to the name and address specified on the order. Invoices must be submitted for each Member’s Order and should detail the Goods and Services provided.

7.2 The Member will not undertake to pay any invoice that is not supported by a Member’s Order number.

7.3 No delivery charge, handling charge or “minimum order surcharge” shall be payable by the Member in

respect of each Member’s Order, regardless of the number of packages actually delivered in fulfilment of a Member’s Order, save where a timed delivery service or more than one delivery is made at the express request of the Member and any additional charges pre-agreed.

7.4 Member’s orders supported by a valid VAT Zero Rating Certificate shall be invoiced net of VAT.

7.5 The collection of monies at departmental level is the responsibility of the Supplier. In the event of

dispute the Supplier may cease further deliveries to that department of the Member only until the dispute is resolved. The Member agrees to assist with the resolution of the dispute.

8 DELIVERY

8.1 Deliveries shall be to individual Member sites of any department, faculty or building on that site including non-ground floor locations. It should be noted that these sites might vary over the duration of this Agreement to include, for example, new Consortium Members or additional Member’s being added.

8.2 The Supplier shall ensure that:

8.2.1 Goods are securely packaged and clearly addressed to the appropriate employee of the Member; 8.2.2 Every delivery is accompanied by a delivery note (attached to the goods but included within an

anonymous outer in order to reduce the risk of theft on the request of the Member) stating the Member’s Order number, the quantity and the exact description of the Goods supplied.

8.2.3 Deliveries shall be made to the address shown in the Member’s Order between 10:00am and 4:30pm

Monday to Friday unless otherwise specified by the Member and agreed in advance with the Supplier.

8.3 A signature acknowledging receipt of the Goods or Services is to be obtained from the designated employee who is authorised to receive the Goods or Services on behalf of the Member. In the event of the designated employee not being available the Supplier may obtain the signature acknowledging receipt of the Goods or Services from another authorised employee of the Member.

8.4 The removal of Packaging shall be made available as a free service depending on a Member’s needs and subject to the mutual agreement of the procedures of each event between the Member and the Supplier.

8.5 The Member shall not accept Cash On Delivery deliveries unless previously agreed with the Supplier.

8.6 The Supplier shall supply within 10 working days from receipt of a valid Members order or as specifically and mutually agreed with the Member. Delivery point(s) will be indicated on the order. If the Member requires collection and delivery to a point other than that which is identified on The Order after the goods have been despatched then the Member will be held responsible for any costs incurred by the Supplier in delivering the goods to the new Delivery Point at the discretion of the Supplier. Any additional costs incurred in this way shall be notified and agreed prior to amended delivery. It is the Members responsibility to ensure that the Delivery Point identified on the Order is a secure delivery site. Where the Supplier delivers the goods to a delivery point other than that specified on The Order the Supplier will be responsible for correcting the delivery within 2 working days. The goods will not be deemed as accepted and title and risk will remain with the Supplier until the goods are supplied to address specified on the Member’s order.

8.7 Pursuant to Clause 6.2, in the event of late delivery and at the specific request and discretion of the Member, the Supplier shall offset the invoice or supply a credit note to the value of 1% of the order value per day or 15 GBP (whichever is greater) for each working day the delivery is delayed. The


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Supplier’s maximum liability shall be limited to 100 GBP per whole unit item per order except on spares and accessories where the limit shall be 50 GBP. The Supplier agrees that no further representation from the Member is required in terms of reasonableness and this is without prejudice to the Member with regards to other terms in the agreement.

8.7.1 To enable the Supplier to implement any necessary changes within their system or standard processes, the parties agree to a trial period of performance targets and liquidated damages subject to the following conditions.

8.7.2 No actual payments shall be made to a Member. 8.7.3 The performance targets and the liquidated damages are subject to revision and agreement by all parties

before and after full implementation. 8.7.4 The operation of the service level shall be reviewed at the IRDA review meeting prior to the end of the

trial meeting with a view to implementation. 8.7.5 The trial period shall be not more than 3 months from commencement of the Agreement.

8.8 Special delivery arrangements including the use of pallets may be negotiated with the Member if

necessary. Where pallets are required then they should be allowed for in your costing.

8.9 Goods not capable of the required operation within 20 working days of delivery receipt shall be treated as a ‘dead on arrival’ (DOA) event for the purpose of the Agreement and all management reporting. The Supplier shall remedy within the terms of its warranty provision offered under the terms of this agreement. The Supplier shall prioritise DOA issues and should they be unable to remedy the failure of their own-brand Goods within a reasonable time the Member shall be entitled to give notice to the Supplier of its intention to reject the Goods.

8.10 In the event of the replacement taking longer than 5 working days to be delivered and at the specific request and discretion of the Member, the Supplier shall offset the invoice or supply a credit note where the order is not fulfilled to the value of 1% of the order value per working day or 15 GBP (whichever is greater) for each working day the delivery is delayed. However if the Supplier contacts the Member within 24 hours of collection and informs the Member of an unforeseen delay in delivery, then the Member may cancel the order or accept the delay and compensation will not be due. The Supplier’s maximum liability shall be limited to 100 GBP per whole unit item per order except on spares and accessories where the limit shall be 50 GBP.

Clause 8.10 Addendum: It is agreed that the terms of 8.10 shall be consistent with both the original terms and additional clarification of Clause 6.4.





9 LOSS OR DAMAGE

9.1 The Member shall endeavour to advise the Supplier within 5 working days of the agreed delivery date

of any partial loss or damage to the receipted Goods.

9.2 The Member shall endeavour to advise the Supplier at the time of order placement if the anticipated process of acceptance and inspection is likely to delay this notification beyond that of 5 working days.

9.3 The Supplier shall make good free of charge to the Member any loss of, or damage to, or defect in the

Goods where the Member within the time scales identified in Clauses 8.9 and 8.10.

10 TITLE AND RISK


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Title and risk in the Goods shall pass to the Member at the time of delivery pursuant to Clause 8.3, but such passing shall not prejudice either the Member's right to reject for non-conformity with specification or any other rights that the Member may have. However, if advance or progress payments are made, title but not risk shall pass to the Member as soon as items are allocated to the Contract. All items so allocated shall be adequately marked and recorded as being the property of the Member, and where such items are stored on the Supplier’s site, held in a separate bonded area suitable for such storage purposes. Loan machines provided to the Member by the Supplier are excluded and the Title remains with the Supplier at all times.

11 CONSIGNMENT STOCK

11.1 This particular term is non-applicable to the Supplier.

12 BILLING AND ADMINISTRATION

12.1 Each participating Member shall open a separate account with the Supplier before Ordering. The Suppliers can submit invoices and monthly statements if requested by individual Members. Each individual Member has the authority to purchase under this Agreement and these terms and conditions shall apply to each order unless agreed as under Clause 2.1.

12.2 The Supplier should either have or be willing to develop an Internet / e-Commerce or EDI system which individual Members can utilise at no additional cost.

13 PAYMENT TERMS Normal terms for institutional purchases are payment at the end of the following month on receipt of the invoice, thus averaging to 45 days net credit. Separate institutional and student leasing terms and credit terms for staff and student purchases shall be responded as requested in Schedule A and mutually agreed with the Supplier either subsequently within these Terms and conditions of Business or at time of order.

14 HE CONSORTIA STAFF AND STUDENTS PURCHASES Staff and students of the Member will be able to purchase goods under the pricing structure identified in clause 5. Such transactions will be treated independently with payment being made direct to the Supplier and not via any member institution and subject to separate terms and conditions of sale arising from the Supplier’s response to Schedule A. The Supplier is not required to deliver outside of Member institution locations for final deployment to staff and students and accept payment other than with a UK based bank credit card. The Supplier shall make any necessary web site arrangements in order help support this initiative.

15 DISCOUNTS

15.1 The Member is entitled to all discounts or special terms negotiated by or granted to HE Consortia, DfES or DETR, and other policy bodies having power to negotiate on behalf of Educational establishments. A Member who is a charity as well as an educational establishment will be entitled to all discounts provided by Suppliers to charities or educational establishments. A Member which has access to other pricing structures the pricing and the terms and conditions that will apply will be the lowest of those available to him but will not represent a combination of those discounts.

Clause 15.1 Addendum: The Suppliers pricing is as stated in the proposal. The supplier is not offering combined discounts. All discounts or special terms are exclusive to LUPC and cannot be used in conjunction with other discounts or special terms available through other procurement contracts.

15.2 The Supplier shall recognize the potential aggregate spend within the Agreement and will not at any stage, offer improved terms to other educational bodies operating outside of the Agreement based on overall cost.


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Clause 15.2 Addendum: It is agreed that the Supplier agrees not to offer improved terms based on overall costs to educational bodies with comparable size/spend under equivalent terms outside of this Agreement.

15.3 At the direction of the Central Office, the Supplier shall be given 5 working days notice to remedy a situation whereby the same Goods are freely available by any means at an overall cost outside of the Agreement below that offered within. If the Central Office is not satisfied that appropriate action has been taken at the end of this notice period, the Goods shall be immediately removed from all Agreement offers, price lists and portals until such time that their reinstatement is permitted.

Clause 15.3Addendum: It is agreed that "freely" means an overall cost that is publicly available to all Members and is not specific to a negotiated contract which has qualified for "special" pricing based on the size and scope of the particular deal.

16 RACE RELATIONS ACT

16.1 In accordance with its responsibilities under the Race Relations Act 1976 (as amended by the Race Relations (Amendment) Act 2000, the Race Relations 1976 (Amendment) Regulations 2003 and any other relevant statutory amendments) to eliminate unlawful racial discrimination, promote equal opportunities and promote good relations between people of different racial groups, the Member requires its Suppliers and sub-Contractors to comply with the terms of this section.

16.2 All personnel employed by the Supplier for the purpose of performing this Agreement must be fully trained, suitably qualified and experienced, and shall fulfil their duties in a professional, ethical manner, consistent with the Member’s commitment to equal opportunities and race equality and high standards of behaviour.

16.3 The Supplier will comply with legislation for the prevention of discrimination on the grounds of disability, race, sex, sexual orientation, age, religion and belief and the promotion of race equality. The Supplier is required where appropriate to provide information to the Member on its compliance with legislation and its practices and procedures to prevent unlawful discrimination and to promote race equality and equal opportunities.

16.4 The Supplier shall not discriminate directly or indirectly against any person on grounds of their colour, race, nationality or ethnic or national origins contrary to Part II of the Race Relations Act 1976 (Discrimination in the Field of Employment) and/or contrary to Part III of the Act (Discrimination in Other Fields) either in employment or in service and/or contravene Part IV of the Act (Other Unlawful Acts).

16.5 The Supplier shall comply with the provisions of Section 7 of the Act in all dealings with sub- Contractors.

16.6 The Supplier shall in performing the Agreement comply with the provisions of Section 71 (1) of the Race Relations Act 1976 as amended by the Race Relations Amendment Act 2000 and the Race Regulations Act 1976 (Amendment) Regulations 2003 as if the Supplier were a body within the meaning of Schedule 1A to the Act.

16.7 Where in connection with this Agreement, the Supplier, its agents or sub- Contractors, or the Supplier’s staff are required to carry out work on the Member’s premises or alongside the Member’s employees or students on any other premises, the Supplier shall comply with the Member’s policies and codes of practice relating to racial discrimination and equal opportunities.

16.8 The Supplier shall monitor its own employees by reference to their racial origins and ethnicity, and provide such information on request to the Member.

16.9 The Supplier shall provide such information as the Member requires about its policies and practices concerning the prevention of unlawful discrimination and the promotion of equal opportunities and race equality both in terms of employment and customer service. The Supplier shall have regard to the promotion of race equality and shall consider the promotion of race equality and good race relations as key objectives of the Agreement.


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16.10 The Member and Supplier shall continue to monitor the performance and objectives of the Agreement

throughout its duration and to make any amendments or changes necessary to the Agreement, or its performance or objectives in order further to promote race equality.

16.11 The Supplier shall notify the Member immediately in writing as soon as it becomes aware of any investigation or proceedings brought against it under the Race Relations Act 1976, Race Relations Amendment Act 2000 and Race Relations Act 1976 (Amendment) Regulations 2003 as amended.

16.12 Where any investigation is undertaken by a person or body empowered to conduct such an investigation and/or proceedings are instituted following such an investigation against the Supplier or against the Member either in connection with any Agreement awarded to the Supplier or generally, the Supplier shall, without charge:

16.12.1 provide any information requested in the timescale allotted; 16.12.2 attend and permit its employees to attend any meetings as required; 16.12.3 allow access to and investigation of any documents or data deemed to be relevant to the investigation; 16.12.4 allow itself and any of its employees to appear as witnesses in any proceedings; and 16.12.5 co-operate fully with the person or body conducting the investigation.

16.13 Where any investigation is conducted, or proceedings are brought which arise directly or indirectly out

of any act or omission of the Supplier, its staff, employees, agents or sub-Suppliers and where there is a finding against the Supplier in any such investigation or proceedings, the Supplier shall indemnify the Member with respect to all costs, charges and expenses (including legal and administrative expenses) incurred by the Member during or in connection with any such investigation or proceedings and further indemnify the Member for any compensation, damages, costs or other award the Member may be ordered or required to pay to a third party.

16.14 If a finding of unlawful discrimination or breach of equal opportunities legislation is made against the Supplier or against the Member arising from the conduct of the Supplier, the Member will require the Supplier to take immediate remedial steps to prevent further recurrences.

16.15 If the Supplier enters into any sub-Agreement as authorised in this Agreement in connection with this Agreement, it shall impose obligations on its sub-Contractors terms, which are identical to those imposed on it in this section. The Member expects that the Supplier will not sub-contract to any business, service or group, which has a poor history of discrimination in employment or service delivery. A breach of this clause will be considered as a fundamental breach of the Agreement between the Member and the Supplier.

16.16 Without prejudice to its remedies set out above, the Member may terminate the Agreement if notice has been given to the Supplier of a substantial or persistent breach of this section providing that a reasonable period has been given during which the breach may have been rectified and the Supplier has failed to remedy the breach within the stated period.

17 DISPOSAL

17.1 At the discretion and request of the Member, The Supplier shall provide a collection and recycling and/or disposal service for Goods purchased under this Agreement and those preceding. Collection shall be made from a ground floor location and on a minimum basis of 20 units within 30 working days of notification to permit the Supplier sufficient notice to schedule and make the collection in an economic manner and the Member will use its reasonable endeavours to assist the Supplier with cost minimisation to the benefit of both parties.

17.1.1 There shall be no cost for this service to the Member from the date that of the UK implementation of the WEEE (Waste Electrical and Electronic Equipment) Regulations 2004.

Clause 17.1.1 Addendum: For the purpose of clarification, return logistics are the only chargeable element on the Member and this only applies prior to the implementation of the WEEE Regulations, the other elements are cost neutral as stated by the Supplier. This shall be reviewed further once the DTI have published the final draft of these


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Regulations should the emphasis on ‘Producer pays’ radically alter from the existing interpretation of these regulations.

17.1.2 The Supplier may charge a fee no more than equal to the logistical cost in providing this service prior to that date. This shall be evidenced to the satisfaction Member within 5 days of request should they so require.

17.2 It is a requirement for this Agreement that the Member does not guarantee the provision of Goods for collection:

17.2.1 are in full working order. 17.2.2 shall not have one or more hard disk drives removed due to data confidentiality. 17.2.3 shall be free from all markings, branding, tagging or similar. 17.2.4 be accompanied by a Goods manifest.

17.3 Further to Clause 17.1, the Supplier shall collect and dispose of obsolete (historical) Goods as covered

for sale under this Agreement regardless of the OEM (original equipment manufacturer) and under the terms ‘like-for-like’ as they are defined at that time by the WEEE (Waste Electrical and Electronic Equipment) Regulations 2004. All such collections are made solely on the basis that an equivalent quantity of Goods is reciprocally purchased from the Supplier at the time of notification. Where possible, the delivery packaging is to be used in the collection but notwithstanding, a standard returns procedure shall be followed. For the purpose of clarification, displays shall be considered ‘like-for-like’ regardless of their underlying technology, size, respective visible areas or similar parameters.

17.4 The Supplier shall indemnify the Member fully and shall keep the Member fully indemnified against all liability, loss, damages, injury, costs, claims and expenses (including legal expenses) suffered or incurred by the Member or in connection with the WEEE Regulations 2004 and the ROHS Regulations 2004 and as a direct result of any act or omission of the Supplier. The Supplier shall ensure that any WEEE for which he is responsible shall meet the minimum requirements for treatment at an authorised treatment facility in accordance with the WEEE regulations.

Clause 17.4 Addendum: It is agreed that the Supplier shall provide this indemnity only to the extent that an order for the collection, recycling and/or disposal services of Goods has been received and accepted by the Supplier. Please amend Clause accordingly.

17.5 In the event that the Supplier’s business is transferred in whole or in part to another person or organisation, and the Member does not invoke its right to terminate the Agreement in such circumstances, the Supplier shall retain producer responsibility under the WEEE Regulations 2004, unless the transferee has agreed to meet the producer’s obligations in respect of any Goods under the WEEE Regulations 2004.

17.6 The Supplier shall mark all products supplied under this Contract that fall under the scope of the WEEE Regulations 2004 in accordance with the CENELEC stated standards.

17.7 The Supplier warrants that the materials, components, assemblies or equipment provided as part of the Goods does not contain more than the permitted level of any of the six restricted substances listed in Regulation 8 of the ROHS Regulations.

17.8 Such services shall be compliant with the appropriate disposal regulations including the WEEE Regulations 2004.

17.9 The Supplier shall notify the University if it has been found guilty of any offence under the WEEE Regulations 2004 or the ROHS Regulations 2004.

18 GOODS WARRANTY AND REPAIR

18.1 All warranties given by the Supplier in respect of the Services shall form part of the contract for the supply of the Services to the Member provided that nothing therein shall be effective to exclude any terms warranties and conditions implied by law.


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Clause 18.1 Addendum: The supplier does not guarantee fitness for purpose and satisfactory quality in relation to the goods but does guarantee that the goods will at all times and in all respects comply with its published product specification and normal standard industry practises.

18.2 Unless expressly agreed otherwise, the Supplier shall supply all Goods sold to the Member’s under this Agreement with the benefit of a minimum 13 months on-site warranty entitlement.

18.3 The Supplier shall maintain sufficient parts, modules, whole units and spares to ensure the servicing and repair of Goods purchased under the Agreement within the service levels as given and for a period of up to 3 years from date of purchase and beyond for those Members taking out extended warranty. The Supplier agrees to use its reasonable endeavours to provide spares for out of warranty spare requests where it is able to source those spares from the manufacturer. The costs of such spares will be charged to a Member and will include the reasonable costs associated with the Supplier sourcing and acquiring the spares.

18.4 Additional warranty services held as being in preference and above those stated in the body of this Agreement and offered by the Supplier shall be given in their response to Schedule A and treated as terms within of the Agreement.

18.5 The Supplier shall provide dedicated technical support for the Members under the Agreement in the form of e-mail, telephone and web-based tools to meet or surpass the performance terms detailed in Clause 18.6. Further to the Supplier’s response in Schedule A, the Supplier shall endeavour to provide a streamed service dedicated to the Member’s technical personnel for the purpose of enhanced diagnosis procedures as part of the resolution of issues.

18.6 All telephone calls shall be routed through to the appropriate personnel within 45 seconds, with no single call exceeding 3 minutes, from the Member’s start of the call as derived from a monthly calculated figure based on the median time to reach the appropriate personnel of the Supplier at the Contract support number.

18.7 All valid communications shall be responded to within 4 hours of initial contact confirming to the satisfaction of the Member, the required action on behalf of the Supplier in order to close the call.

18.8 Where the Member’s reported fault cannot be diagnosed and closed by remote means, the Supplier shall respond with a field service call to the location of the Goods within 8 hours from the time first notification from the Member is given, unless a geographic exception identified within Schedule A, and provided reasonable endeavours are made by the Member in providing any requested information back to the Supplier sufficient to enable the call to be open in status.

Clause 18.8 Addendum: It is agreed that subject to review, the Supplier will use its reasonable endeavours to respond with a field service call by the end of the next Working Day, provided the requirement for the call has been determined before 4.00 p.m. on the day of the initial call. Extended cut-off times do apply but on a best endeavours basis only.

18.9 The Supplier shall repair or replace all Goods at their cost which are or become defective during the warranty period from acceptance and where such defects occur under proper usage and are due to faulty design or manufacture, the Supplier’s erroneous instructions as to use or erroneous use of data, or inadequate or faulty materials or workmanship, or any other breach of The Supplier’s warranties, expressed or implied. Repairs and replacements shall themselves be subject to either the foregoing obligations for the remaining period of warranty or not less than six months whole unit warranty if outside of this where made at the modular component level or 90 days where below this.

18.9.1 Should they so decide, the Member reserves the right to retain a failed disk from a critical system rather than return it in exchange for a service spare. Where the Supplier deems this unacceptable and a writable disk is to be returned due to a fault then the Member reserves the right to perform a USDoD disk wipe or equivalent before exchanging the disk for a replacement.


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18.9.2 If a disk is to be returned due to a major fault that has rendered the disk unwritable then the institution reserves the right to degauss the disk (thus rendering it totally inoperative) before it is returned to the Supplier.

18.9.3 Clauses 18.9.1 and 18.9.2 shall be at neither cost disadvantage nor financial penalty to the institution within any warranty arrangement.

18.9.4 At the request of the Supplier, the Member shall endeavour to provide a diagnostic of the failure for record keeping and warranty exchange purposes between the Supplier and the disk drive manufacturer.

18.10 The Supplier shall provide suitable packaging where necessary and facilitate the collection and return, at the Supplier’s cost, of all Goods for which a returns procedure has been agreed and authorised.

18.11 The Supplier shall complete all on-site repairs to the satisfaction of the Member within 2 days or 7 days where a collect and return service has been agreed with the Member. If the Supplier is unable to complete repair within 7 days, they shall inform the Member not less than 48 hours before the end of this period. In the event of failing to do so and the repair or replacement system taking longer to be delivered than 7 days and at the specific request and discretion of the Member, the Supplier shall offset the invoice or supply a credit note where the order is not fulfilled to the value of 1% of the order value per day or 15 GBP (whichever is greater) for each day the repair or replacement is delayed. The Supplier’s maximum liability shall be limited to 100 GBP per whole unit item per order except on spares and accessories where the limit shall be 50 GBP.





18.12 Warranties shall be freely transferable by member institutions to organisations of their choice within

the normal geographic boundary of the Supplier’s warranty. The Supplier shall be notified in writing in the event of a warranty transfer in order that it can update its records accordingly.

Clause 18.12 Addendum: It is agreed that the Supplier requires notification in writing if a warranty is transferred in order that it can update its records. For the sake of clarification a warranty is attached to a specific piece of equipment and cannot be transferred from one piece of equipment to another.

18.13 The Supplier shall ensure that the Warranty shall endure to the Members’ benefits in the event of the Supplier’s insolvency. The Supplier shall provide evidence confirming that this is so. For the purposes of this Agreement, insolvency shall mean one of the following:

18.13.1 A judgment or order made against a Supplier that is not complied with within seven days or a receiver or administrator is appointed of any part of the undertaking, assets, rights or revenues of a Supplier or a distress, execution or other process is levied or enforced upon any of the assets, rights, undertaking or revenues of a Supplier and is not discharged within 7 days;

18.13.2 The Supplier stops or suspends payment of its debts or is unable to or admits inability to pay its debts (within the meaning of section 123 of the Insolvency Act 1986 or otherwise but ignoring the references in that section to determination by the court) or becomes insolvent or proposes or commences negotiations with one or more of its creditors with a view to the general rescheduling of its debts or proposes or enters into any composition or other arrangement for the benefit of its creditors generally or any class of its creditors;

18.13.3 A petition is presented or an order made for the winding up or administration of a Supplier; or

18.13.4 Any event occurs or proceeding is taken with respect to a Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in sub-paragraphs 18.13.1, 2 or 3 above.


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18.13.5 Outstanding monies due for payment to the Supplier will be withheld by the HE Consortia and these

shall be calculated as reasonable and equal to the forfeiture of any service obligation on the Supplier not performed directly arising from an insolvency event.

19 TERMINATION

19.1 This Agreement shall commence on the commencement date identified above and shall continue in accordance with clause 3 until the same is brought to an end by mean of a termination notice served at the principle office. Prior to any termination notice being served, it is agreed by both parties that there will be appropriate discussion.

19.2 If either the Supplier or the Member commits a material breach of any of the terms and conditions hereof and if capable of remedy, shall have failed to so remedy the breach within 14 days of notice, either party may but without prejudice to any other rights or remedies terminate this Agreement immediately upon written notice.

19.3 The LUPC Central Office may but without prejudice to any other rights or remedies terminate this Agreement immediately upon written notice, if the Supplier becomes insolvent or bankrupt or (being a company) makes an arrangement with creditors or has an administrative receiver or administrator appointed or commences to be wound up (other than for purposes of amalgamation or reconstruction).

20 INTELLECTUAL PROPERTY RIGHTS

20.1 The Supplier shall defend, at its expense, any action brought against the Member to the extent that it is based on a claim that the Goods in normal possession and use, infringe any UK patent, copyright, trade secret or other intellectual property right (“Intellectual Property Rights”) and shall pay any settlements or final judgements to the extent based thereon, provided that the Member;

20.1.1 promptly notifies the Supplier in writing of the existence or threat of any such claim, suit or proceeding; and

20.1.2 gives the Supplier sole control of any such action or settlement negotiations; and

20.1.3 provides all reasonable assistance in connection therewith.

20.2 If any of the Goods are finally adjudged to so infringe, or in the opinion of The Supplier such a claim

is likely to succeed, the Supplier shall at its option:

20.2.1 procure for the Member the right to continue using the Goods; or

20.2.2 replace or modify the Goods so there is no infringement.

20.3 Unless agreed in writing, the Supplier shall have no liability regarding, and the Member shall hold the Supplier harmless from and against, any claim arising out of:

20.3.1 compliance with the Members designs, specifications or instructions; or

20.3.2 use of the Goods in combination with, data or third party Goods, if they directly caused the infringement; or

20.3.3 any failure arising from modification of the Goods by the Member.

20.4 The foregoing states the sole and exclusive liability of the Supplier and the exclusive remedy for the Member for Intellectual Property Rights infringement or claims of infringement and the provisions thereof are in lieu of any other express, implied or statutory warranties or conditions against infringement.

20.4.1 The Members shall hold the Supplier harmless from and against any expense or loss resulting from infringement of patents, copyrights, trademarks or other intellectual property rights arising from


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compliance with the Members designs, specifications or instructions or resulting from the Members combination of the Goods with devices or elements not provided by the Supplier.

20.5 The sale of the Goods by the Supplier does not convey any license, by implication, under patent claims covering combinations of the Goods with other devices or elements.

20.6 The Supplier shall make available and maintain within 6 months from award notification, a database of preloaded software and license details against any Goods previously supplied for up to 3 years. This shall be made accessible to the Consortium Member at their request and without additional cost.

20.7 The Supplier’s indemnity in respect of this Clause shall apply solely to its self-branded products.

21 ADVERTISING The name of the Member or the HE Consortia shall not be used in advertising for any purpose without the prior written consent of the appropriate Consortium Central Office and Member as appropriate. Before using the name of a Member, the Supplier must obtain written consent from the Secretary of the Member concerned.

22 HEALTH AND SAFETY

22.1 The Supplier shall comply with all applicable electrical safety regulations in relation to the Goods. All mains operated Goods shall be supplied with a fitted mains cable and appropriately fused with a 5amp fuse.

22.2 The Supplier shall be deemed to have notice of the Member’s safety policy provided the Member has

brought it to the attention of the Supplier. The Supplier reserves the right not to be bound by any unreasonable Policy or any unusual or unreasonable requirements contained in a Policy.

22.3 The Member will not accept liability for any cost incurred by the Supplier in complying with the Member’s safety policy subject to clause 22.2. Any such costs shall be deemed to be included in the Supplier’s estimate or tender.

22.4 The Supplier is advised that the work of a number of the academic departments in the Members’ institutions involves activities, which are potentially hazardous unless appropriate precautions are taken. The areas where these activities take place, all of which are clearly indicated, should not therefore be entered by anyone unless accompanied by an authorised employee of the Member’s staff who will arrange the provision of safety equipment where necessary.

22.5 Goods agreed by both parties to be hazardous will be marked by the Supplier with International Danger Symbol(s) and display the name of the material in English. Transport and other documents will include declaration of the hazard and the name of the material in English. Goods will be accompanied by emergency information in English in the form of written instructions, labels or marking. The Supplier shall observe the requirements of the UK and international agreements relating to the packing, labelling and carriage of hazardous goods.

22.6 All Goods sold by the Supplier under the Agreement shall fully conform to the Restriction Of use of

certain Hazardous Substances (ROHS) directive upon its inception (July 2006 if not amended).

23 BUILDING WORK Additional services involving structural alterations or maintenance to the fabric of any Member’s building are outside the scope of this agreement and will be subject to separate terms and conditions which need to be agreed by both parties in advance.

24 CORRUPT GIFTS

24.1 The Supplier shall not offer or give or agree to give any person in the service of the Member any gift or consideration of any kind as inducement or reward for doing or forbearing to do or for having done or forborne to do any act in relation to the obtaining or execution of this or any other order with the


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Member or for showing or forbearing to show favour or disfavour to any person in relation to this or any other order with the Member.

24.2 Any breach of this Clause 24 by the Supplier or anyone employed by him or acting on his behalf (with the knowledge of the Supplier) or the commission of any offence by the Supplier or by anyone employed by him or acting on his behalf under the Prevention of Corruption Acts 1889 to 1916, in relation to this or any other order made by the member shall entitle the Member to declare the order invalid.

24.3 Any dispute, difference or question arising in respect of the interpretation of this condition or the right of the Member to invalidate the order shall be decided jointly by the Member and the Supplier.

25 RECIPROCAL CONFIDENTIALITY

25.1 Each party (“Recipient”) acknowledges the confidential and proprietary nature of the Confidential Information and agrees that it shall not reveal, disclose or transfer any Confidential Information disclosed by the other ("Disclosing Party") for any purpose to any other person, firm, corporation or other entity, other than Recipient's employees with a need to know such Confidential Information to perform employment responsibilities consistent with Recipient's rights under this Agreement.

25.2 Recipient shall safeguard and protect the Confidential Information from theft, piracy or unauthorised access in a manner at least consistent with the protections Recipient uses to protect its own most confidential information.

25.3 Recipient shall inform its employees of their obligations under this Agreement, and shall take such steps as may be reasonable in the circumstances, or as may be reasonably requested by Disclosing Party, to prevent any unauthorised disclosure, copying or use of the Confidential Information except as provided by this Agreement.

25.4 The Disclosing Party acknowledges and agrees that in the event of the Recipient's breach of this Agreement, Disclosing Party will suffer irreparable injuries not compensated by money damages and therefore shall not have an adequate remedy at law. Accordingly, Disclosing Party shall be entitled to a preliminary and final injunction to prevent any further breach of these confidentiality obligations or further unauthorised use of Confidential Information.

25.5 The term "Confidential Information" shall not include (1) information known to the Recipient prior to

disclosure by Disclosing Party, (2) information which is or becomes publicly available and (3) information now or later disclosed to Recipient by a third party having the right to do so.

25.6 Recipient shall notify Disclosing Party immediately upon discovery of any prohibited use or disclosure

of the Confidential Information, or any other breach of these confidentiality obligations by Recipient, and shall fully co-operate with Disclosing Party to help Disclosing Party regain possession of the Confidential Information and prevent the further prohibited use or disclosure of the Confidential Information.

26 SUPPLIER AND SPECIFICATION CHANGE

26.1 The Supplier shall advise the LUPC Central Office, the other Consortia Central Offices and their Members of any significant:

26.1.1 supply difficulties in respect of components or materials; 26.1.2 changes in the supplier of components, firmware and software upgrades. 26.1.3 specification changes.

26.2 The Supplier shall advise the LUPC Central Office, the other Consortia

Central Offices and their Members as soon as they become aware of them and not less than 30 days in the case of anticipated range introduction and 60 days notification for anticipated end of life. Such information will be subject to parties signing confidentiality agreements at the discretion of the disclosing party.


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26.3 The Supplier shall be expected to arrange regular exhibitions or road shows to keep members up to date

with, for example technical developments.

27 QUALITY AND QUALITY CONTROL

27.1 The Goods, including all parts and replacements, shall be supplied as new unless mutually agreed otherwise and be of acceptable quality and free from defects in material or workmanship. The Goods shall conform to the specification, descriptions and samples contained or referred to in the Agreement.

Clause 27.1 Addendum: It is agreed that parts and replacements may be new or equivalent to new, but in all cases shall be subject to the Supplier’s rigorous quality processes and procedures prior to supply. The Goods proposed by the Supplier under this Agreement are to be supplied in conformance with the applicable published product specification only.

27.2 In the absence of a specification or sample all goods supplied shall be within the normal limits of commercial quality to the appropriate European quality standard.

27.3 European Quality Standard ISO 9001:2000 or equivalent is preferred. In its absence, suppliers offering the best rating of other relevant British Standards or equivalent will be given preference.

27.4 Quality control levels shall remain consistent with the samples previously supplied; the Supplier shall arrange visits for the Members of the Consortia of the Supplier Manufacturing and storage facilities in order to review this.

28 RESEARCH AND DEVELOPMENT The Supplier shall be in a position to liaise where appropriate with HE Consortia Members to provide up to date technical advice and trend information to enable members to optimise the cost of their IT organisation and network. If Research and Development facilities become inadequate we reserve the right to withdraw management support to those approved suppliers.

29 SUPPLY AND SERVICE LEVEL REVIEWS

29.1 The Supplier performance under this Agreement will be subject to reviews usually arranged between four and six-month intervals involving HE Consortia and Members either collectively or independently but at all times co-ordinated by the HE Consortia.

29.2 The LUPC Central Office will provide central co-ordination. The LUPC and the other HE Consortia will require management information in the correct format as given in Schedule B a minimum of 5 working days in advance of the meeting.

29.3 Provided the LUPC office has given a minimum of 20 working days notice of the meeting date, failure by the Supplier to provide the requirements within 29.2 will result in an incremental discount of 10%* being applied against the current agreement discount for the period up to and including the next review period. * i.e. a current discount of 15% will be increased to 16.5% for the next 4-6 month period.

29.3.1 Clause 29.3 shall be waived in the event of breach for the first reporting period to enable the Supplier to implement any necessary changes within their system or standard processes provided the Contract Manager is notified no less than 10 days in advance.

29.4 The Supplier may be asked by the LUPC office to comply with the hosting of either a formal review or an interim review to ensure that the commercial and service terms offered by the Supplier under the Agreement are being fully complied with. The personnel representing the LUPC and HE Consortia shall be given access to any materials required as part of the review at the time of the visit subject to agreement on confidentiality and disclosure prior to the meeting.


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29.5 At the request of the Member, the Supplier shall make available and provide any reasonable Management Information particular to them including as a minimum for the purposes of this Agreement, the Supplier’s Sales and Service history with the requesting Member.

Clause 29.5 Addendum: It is agreed that Management Information should be defined in line with the information supplied in Schedule B.

30 ADDITIONAL TERMS

30.1 Value of the Agreement

The HE Consortia existing spend amounts to up to circa £38m per annum (excluding VAT) expressed as an aggregate of those likely to participate in this Agreement. Although these requirements may well be exceeded, it must also be realised that participation in the contract is not mandatory and there may be a shortfall. The HE Consortia accept no responsibility if there is a shortfall from the figure quoted or if the annual amount falls below the Tender threshold.

30.2 Administration of the Agreement

30.2.1 This Agreement will be managed by the respective HE Consortia and co-ordinated by the LUPC Central Office.

30.2.2 The Suppliers shall nominate an English speaking contact (Account Executive) for dealing with problems that may arise. The nominated person must have sufficient authority (and indicate escalation levels if necessary) to be able to resolve matters quickly and efficiently on behalf of the Supplier and be responsible for Agreement performance.

30.2.3 A dedicated ‘order point’ team with some technical skills shall administer the Orders. A free technical information and support facility (by telephone/email/web) shall be provided during the life of the product. Access to this order point team shall be available on a minimum basis of 0900 hrs to 1700 hrs Monday to Friday and for telephone calls, at a land call tariff rate no greater than the Member would normally pay for a National rate call. Clause 30.2.3 Addendum: It is agreed that free telephone support is available for the lifetime of the machine but if the machine is out of warranty, then a part and or engineer dispatch will be chargeable.

30.3 Goods Being Purchased The Goods being purchased are as may be requested from time to time throughout this Agreement for the specified HE Consortia including the Research Councils and affiliated FE members. This does not however exclude other HE Consortiums and FE associations from participating at a later date at their absolute discretion. Each Member’s requirements will differ depending on their individual needs.

30.4 Models These terms pertain to all brands and shall include all current and future models of each brand. No exclusions to this are permitted unless agreed in advance in writing with the LUPC Central Office.

30.5 Origin of Goods and Services

30.5.1 The Agreement is granted solely for goods manufactured by the Supplier and its authorised sub-contractors. The Supplier shall provide a minimum of one months notice to the Central Office of any proposed change in the location of all significant (greater than 10% of Goods sold under this Agreement) production plants used to supply goods under this agreement. If the Supplier proposes to move to a plant not previously inspected the Supplier shall at their cost, be asked to either provide an independent mutually agreed inspection report based on guidelines issued by Contract Manager or permit an on-site evaluation by up to four members of the HE Consortia management team. The report is to be evaluated within 5 working days of its availability and at the discretion of the Central Office;


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the Supplier may be suspended from the Agreement until such time that a conclusion can be made that no loss of quality or service will be imparted as a result of this change.

30.5.2 Further to Clause 30.5.1, the same considerations shall be applied to any area of the Supplier’s Technical Support as offered and evaluated under the Agreement.

30.6 Sales and Marketing Information Hosted by Electronic Means

30.6.1 The Supplier shall remove all reference to any Terms and Conditions other than those as mutually agreed for the purpose of this Agreement. The Supplier shall endeavour to create tailored content web pages exclusive to the Member on request and the front page shall show the duration of the Agreement and where applicable Members’ account numbers the Members’ crest or similar insignia. All information within the Members’ site shall be treated as confidential and the function of all ‘cookies’ must be disclosed and this information may not be passed or sold on to another party without the owner’s permission.

30.6.2 All Supplier web pages shall be reviewed and maintained regularly to reflect accurate range, price and availability information and date footer should be included where relevant. The Member, unless specifically requested by local agreement, shall make only those Goods under the Agreement, available for purchase. Goods sold under the Agreement should optionally have made available any necessary recovery disk images as well as downloadable drivers. All warranty and service information shall be clearly informed to the user.

30.6.3 The Supplier shall commit to providing accurate Goods and Services pricing for the Agreement by electronic means, displaying the lowest total cost of purchase for those Goods to the Member. Other than in exceptional circumstances, at no times shall a lower single unit price be achieved through other means, including quotations raised by e-mail, fax and telephone, based on equivalent dates and circumstances. The Supplier shall provide a statement that special pricing may be available for volume purchases of 25 units or more and special projects.

30.6.4 Where a configure or build-to-order system is deployed by electronic means, the Supplier shall not cross-subsidise or artificially inflate the final price of the Goods by loading excessive margin on any or all component upgrades. In line with the Supplier’s response in Schedule C, mutual discussion over appropriate margin levels will take place so that consensus can be reached between the Supplier and the Contract Manager prior to commencement of the Agreement.

Clause 30.6.4 Addendum: It is agreed within the original clause that "mutual discussion over appropriate margin levels will take place..” should be replaced by with “…mutual discussion over appropriate pricing levels including the Supplier’s tendered response on margin will take place..”.

30.6.5 The Supplier shall where applicable, endeavour to provide accurate stock and/or lead-time information on their web pages and as a minimum; all Goods not available for purchase and delivery within 10 working days from order shall be indicated as such on material made available to the Members. Mutually appropriate phrasing will be agreed between the Supplier and the Contract Manager prior to commencement of the Agreement. The Terms and Conditions of the Agreement shall be hosted on all portals dedicated to the Consortia regardless of the addressing member.

30.6.6 The Supplier shall provide and host an account management chart that shall be kept up to date and under the responsibility of a named individual. This shall contain the full contact and departmental details of the Suppliers nominated staff likely to be contacted during the operation of the agreement including any authorised agents. A Buyers’ Guide will be utilised in order for the Agreement to be marketed by the Consortia within the H.E. Sector. The Supplier shall ensure that from the commencement date, all such details (escalation points, ranges and insurance) are reviewed and maintained as correct and current.


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30.6.7 The Supplier shall work closely with the Consortia in order to further the implementation of e-trading for this Agreement. Such e-trading would be subject to separate terms and conditions to be agreed by all parties.

30.7 Export Control

30.7.1 The Supplier expects Members to comply with all laws and regulations of the European Union or the United States of America, in force from time to time, affecting the export, or re-export of the Goods from the United Kingdom of Great Britain and Northern Ireland, or the Republic of Ireland.

30.7.2 The Supplier expects Members to make every endeavour to not export, or re-export the Goods, whether directly or indirectly:

30.7.2.1 to any destination that is restricted under the laws and regulations of the European Union and/or the United States of America; or

30.7.2.2 to any end-user who has been prohibited from receiving such goods by the laws and regulations of the

European Union or the United States of America; or

30.7.2.3 to any party who the Member knows or has any reason to know will illicitly use the items directly or indirectly in any nuclear activity, the design or development of missiles, or missile technology, bacteriological or chemical weapons, prohibited under the laws and regulations of the European Union or the United States of America.

31 GENERAL

31.1 Force Majeure Neither party shall incur any liability for failure to perform any obligation under this Agreement if such failure is the direct result of anything beyond the parties control, including (without prejudice to the generality of the foregoing) any act of god; refusal, failure to grant suspension or withdraw of any license or consent or other act or remission of any Government; fire, explosion, flood, war, insurrection and other unforeseeable and insurmountable occurrences.

31.2 Waiver of Rights

Any failure by either party to enforce any of these conditions shall not constitute a waiver or affect its right to require the future performance hereof, nor shall its waiver of any breach of these conditions constitute a waiver of any subsequent breach or nullify the effectiveness of any such conditions.

31.3 Jurisdiction

On behalf of the HE Consortia (excluding Proc-SNI), these Terms and Conditions shall in all respects be construed in conformity with and be governed by English Law and, unless otherwise agreed, be subject to the jurisdiction of the English Courts. In the terms of this clause and determined by the location of the member, Scottish Law and Scottish Courts or Northern Irish Law and Irish Courts shall apply to the Procurement in Scotland and Northern Ireland (Proc-SNI).

31.4 Arbitration All disputes between the parties in relation to this Agreement shall be referred to the arbitration of one person to be appointed by both the Member and the Supplier and in default shall be referred to and finally resolved by the Rules of the London Court of International Arbitration. The Tribunal shall consist of a sole arbitrator and the place of arbitration shall be London.

31.5 Variations

31.5.1 The Member and the Supplier shall not amend any of the terms and conditions of this Agreement unless agreed in writing by both parties.


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31.5.2 Where an amendment has been agreed between a Member and the Supplier, which would occasion an amendment to the Agreement price, the Supplier shall, with all possible speed, advise the Member in writing to that effect. The Member will confirm in writing all agreed amendments to the Supplier and advise the LUPC Central Office (acting on behalf of the HE Consortia).

31.5.3 It is recognised that the Agreement will allow for the development of these Terms and Conditions. All such mutually agreed amendments shall be defined within a separate Schedule to this Agreement

31.5.4 If, in the opinion of the Supplier any such direction is likely to prevent the Supplier from fulfilling any

of his obligations under the Agreement he shall so notify the Member. The Member shall decide with all possible speed whether or not the same shall be carried out and shall confirm their instructions in writing and subject to obtaining the agreement of the Supplier modify the said obligations to such an extent as may be justified. Until the Member so confirms his instructions they shall be deemed not to have been given to the Supplier.

31.5.5 In accordance with the terms of Clause 31.5.3 above, the parties agree that this agreement has been

amended in accordance with the Terms set out in addendum 1 toStandard IRDA T’s & C’s dated 07/03/06, Ref IRDA 2005 KH/015

31.6 Assignment This Agreement is personal to the contracting parties and may not be assigned, novated or transferred to any other person or corporation nor may the parties duties be delegated without the prior written consent in writing from both parties.

31.7 Notice All notice must be in writing and sent to the recipient’s registered office. Any such notice may be delivered by personal service, or by Royal Mail first class pre-paid post and will deemed to have been served, if by hand at the time of delivery or if by posting, after 48 hours after posting.

31.8 Invalidity If any of the provisions of this Agreement is or becomes invalid illegal or unenforceable the validity or enforceability of the remaining provisions shall not in any way be affected or impaired. In any such circumstances the parties shall negotiate in good faith in order to agree the terms of a mutual satisfactory provisions achieving as nearly as possible the same commercial effect to be substituted for the provision which is found to be invalid illegal or unenforceable.

31.9 Headings The headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

31.10 Liability The Supplier’s liability under this Agreement shall be limited as follows. In respect of the following matters, the Supplier shall have unlimited liability:

31.10.1.0 for death or personal injury caused by its negligence or the negligence of its employees or agents;

31.10.1.1 for fraudulent misrepresentation; and

31.10.1.2 for any other matter in respect of which law prescribes that liability may not be excluded or limited.

31.10.2 In respect of employers’ liability, the Supplier has insurance in the amount of £10,000,000 and, accordingly, the Supplier’s liability for the same shall be limited to £10,000,000 for any one occurrence or series of occurrences arising out of any event.


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31.10.3 In respect of public liability, the Supplier has insurance in the amount of £20,000,000 and, accordingly, the Supplier’s liability for the same shall be limited to £20,000,000 for any one occurrence or series of occurrences arising out of any event.

31.10.4 In respect of damage to material property of third parties arising out products sold in the course of the Supplier’s business, the Supplier has insurance in the amount of £5,000,000 and, accordingly, the Supplier’s liability for the same shall be limited to £5,000,000 for any one occurrence or series of occurrences arising out of any event.

31.10.5 The Supplier shall not be liable for any indirect or consequential losses outside of those stated in the Agreement (including, without limitation, loss of profit, business, revenue, capital, anticipated savings and/or goodwill) unless notified and agreed at the time of Order. For the avoidance of doubt, the Supplier is not obliged to accept any Member’s Order which contains the losses identified in accordance with this Clause [31.10.5] and this will only be deemed accepted by the Supplier when it has acknowledged such acceptance to the Member in writing.

Clause 31.10.5 Addendum: The liability of the supplier under this Clause 31.10.5 is capped at the value of the purchase order to enable a responsive service.

31.10.6 The Member shall indemnify the Supplier against any loss of or damage to any property or injury to or

death of any person caused by any negligent act or omission or wilful misconduct of the Member, it’s employees, agents or sub-contractors or by any breach of it’s contractual obligations. AS WITNESS this Agreement has been signed on behalf of each party by its duly authorised representatives the day and year first above written. SIGNED for and on behalf of: The Supplier Authorised Signatory: ………………………………………………… Title: ………………………………………………… Date: ………………………………………………… SIGNED for and on behalf of: London Universities Purchasing Consortium, the Southern Universities Purchasing Consortium, Procurement for Scotland and Northern Ireland, the Research Council and together, their constituent members.

Authorised Signatory: ………………………………………………… Title: ………………………………………………… Date: …………………………………………………

educational sector he consortia invitation to tender desktop pc … · 2007-02-28 · to london...

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