Mixed Framework Agreement - Association of British Healthcare ...

fishglugΛογισμικό & κατασκευή λογ/κού

13 Δεκ 2013 (πριν από 3 χρόνια και 10 μήνες)

184 εμφανίσεις

Draft

5.1.1



Framework Agreement





2





TABLE OF CONTENTS TO BE UPDATED ONCE FINAL VERSION OF
FRAMEWORK AGREEMENT IS AGREED

3




NHS SUPPLY CHAIN

FRAMEWORK AGREEMENT

THIS

FRAMEWORK

AGREEMENT

is made

on the date specified in Schedule 1.

BETWEEN:
-

(1)

NHS Supply
Chain

which is operated by Exel Europe Limited (registered
number 00528867) whose registered office is at 251 Midsummer
Boulevard, Central Milton Keynes, Milton Keynes MK9 1EQ (“
NHS Supply
Chain
”), acting as agent for the NHS Business Services Authority wh
ose
principal office is at

Bridge House, 152 Pilgrim Street, Newcastle upon
Tyne, NE1 6SN
;
and

(2)

the Party whose details are set out in Schedule
1

(the

Contractor

).


RECITALS

(A)

An advertisement was published by
NHS Supply Chain

in the Official
Journal of the European Union on the
date specified in Sch
edule
1

in
respect of a framework agreement for the provision of Goods and/or
Services as specified in Schedule 1 and
NHS Supply Chain

ha
s

accepted
the Contractor’s Tender Response to the extent that it does not conflict
with the terms set out in this Framework Agreement and therefore
the
Contractor
has been

awarded the non
-
exclusive framework agreement on
the terms set out in this Framewor
k Agreement.

(B)

NHSSC

intends

that

the Framework Agreement will be used to make the
Goods and/or Services available for purchase by it; NHS Trusts; other
NHS entities; any government department, government agency or other
statutory body; or any private sector

entity active in the UK healthcare
sector.

(C)

The Contractor agrees to supply the

Goods

and
/
or
Services

to
NHS
Supply Chain

and/or any Customer

in the manner and on the terms
described herein.

(D)

This Framework Agreement contains the terms and conditions applic
able
to the operati
on of the Framework Agreement and the

Contracts formed
pursuant to it.

OPERATIVE PROVISIONS

1.

Definitions

1.1

In the Framework Agreement the following words and phrases shall have
the following

meanings:


䅤ditional⁔er浳


the 慤ditional pro癩獩ons

rel慴ing to the doods 慮dLor
卥p癩捥猠慳

set out in p捨cdule
O

睨i捨c 獨sll
慰pl礠to


4


this Framework Agreement and
each Contract
as
relevant
;

“Authorised
Representative”

The representatives of, respec
tively,
NHS Supply Chain

and the Contractor, duly authorised for all purposes in
connection with this Agreement and named in
Schedule 1.

“Business Continuity Plan”

the Contractor’s business continuity plan
submitted
with the Tender Response
, if requested
by
NHS Supply
Chain

within the Invitation to Tender
,

which shall

ensure continued supply of the Goods

and
/
or
Services
during the occurrence of a

Force Majeure
Event
in
accordance with
C
lause
33.3

or
other event of
emergency

or
similar circumstances
;


“Catalogue”

the catalogue
in
which
NHS Supply Chain

makes the
Goods

and
/
or
Services purchased by it under any
Contract available for purchase by Customers,
which
shall be made available on the National Health Service
internal commu
nications network in electronic format
;

on
NHS Supply Chain
's external website
;

or
in
any
other
print or
electronic media
as determined by

NHS
Supply Chain

from time to time
;

“Commencement Date”

the commencement date of a Contract as set out in
the Orde
r, or if no date is
set out, the date of the
Order;

“Competition”

a competition carried out by NHS S
upply
C
hain

for a
Contract
for any particular Goods

and
/
or
Services
;

“Conditions Precedent”

the conditions precedent set out in clause
2

of this
Framewor
k Agreement
. Where no Conditions
Precedent are to apply, clause 2 of this Framework
Agreement shall not be applicable
;

“Conditions Precedent

End Date”

the date stated in Schedule 1 to this Framework
Agreement being the date
by

which the Conditions
Prece
dent must have been completed

failing which

the
Framework Agreement will terminate
;

“Conditions Precedent

Start Date”

the date stated in Schedule 1 to this Framework
Agreement being the date by which the Contractor
must have started to action the Conditio
ns Precedent;

“Confidential Information”

any

information, data and material of any nature which
either Party may

receive or obtain in conne
ction with
this Framework Agreement

and/or

any Contract

and

which
:



5


(a)

comprises Personal Data or Sensitive
Personal Dat
a (as both terms are defined in
the Data Protection Act 1998) or (in the case
of any
Customer
) which relates to any
patient or his or her treatment or medical
history;

(b)

the
disclosing

party acting reasonably states
i
n
Writing to the
receiving

party is to be

regarded as confidential, or which the

disclosing

party acting reasonably has
marked

"confidential"; or

(c)

is a trade secret;

and which, for the avoidance of doubt, shall specifically
include the

Framework Agreement Price and the

Contract Price
(and any comp
onent
s

thereof)

and the

Pricing Schedule;

“Consents”

all permissions, consents, approvals, certificates,
permits, licences, statutory agreements and
authorisations required by law and all necessary
consents and agreements required from any third
parties f
rom time to time for or in connection with
the
Framework Agreement
and / or th
e supply of Goods or
performance of the Services by the

Contractor in
accordance with a

Contract;

“Contract”

the individual contracts between
NHS Supply Chain

and/or any Custome
r

and the Contractor
entered into
pursuant to this Framework Agreement

and
comprising:

(a)

the Order
; and

(b)

this Framework Agreement
;

“Contract Price”

the monies payable by
NHS Supply Chain

to the
Contractor for the performance by the Contractor of its
obligati
ons under a Contract
;


“Contractor Personnel”

any person employed or engaged by or on behalf of
the Contractor from time to time and who is engaged
in the performance of the
Contractor’s

obligations
under this

Framework

Agreement including
its
employees,

contractors, subcontractors, agents and
representatives;



6


“Customer”

NHS Supply Chain
;
NHS Trusts; other NHS

entities;
any private sector entity which is active in the United
Kingdom healthcare sector; or any government
department, government agency or ot
her statutory
body
. For the avoidance of doubt, any successor
bodies of any of the entities described in this definition
are included

in this definition. Where “Customers” is
used in this Framework Agreement, it may include

any
or

all of the entities lis
t
ed

in this definition as the case
may be
;

“Direct Route of Supply”

any route of supply under any Contract
under which

the Contractor

receives the Order from any Customer
(other than
NHS
Supply Chain
) and the Contractor

supplies the Goods
direct to the Cu
stomer (other than
NHS
Supply Chain
) and receives payment of the
Contract Price direct from the Customer (other than
NHS
Supply Chain
);

“Dispute Resolution
Procedure”

the procedure set out in Clause

24

(Dispute Resolution
Proc
edure);

“EDI”

Electronic Data Exchange;

“Electronic Trading
System(s)”

such electronic data interchange system and/or world
wide web application and/or other application with
such
data and
message standards and protocols as

define
d in
the NHS

Coding

Stan
dards as may be varied

from time to time;

“Extension Longstop Date”

the date
which is
48 months from the Framework
Commencement Date;

“FOIA”

the Freedom of Information Act 2000 and/or the
Environmental Information Regulations 2004;


Force Majeure Event”

any cause pr
eventing either P
arty from performing any
or all of its obligations

under this Framework
Agreement (or either Party or any Customer from
performing any or all of its obligations under any
Contract)

which arises from or is attributable to acts
,
events, omissions or accidents beyond the reasonable


control of the
P
arty

(or Customer as the case may be)

so prevented including, act of God, war or national
emergency, an act

or threat

of terrorism, riot, civil
commotion, malicious damage, compliance
with any
law or governmental order, rule, regulation or
direction, accident, fire, explosion, flood, storm
,


7


extreme weather condition

or epidemic but excluding


default or delays of suppliers or sub
-
contractors,
shortage of fuel supplies,
inability to ob
t
a
in essential
supplies or materials,
strikes, lockouts or other
industrial disputes (in each case whether involving the
workforce of the
P
arty so prevented or any other
part
y) and breakdown of plant or machinery;

“Framework Agreement”

this agreement compr
ising the documents listed in
Clause
4.1
;

“Framework Agreement
Price”

the pricing set out in the Pricing Schedule upon which
the Framework Agreement is established;

“Framework
Commencement Date”

the date of the commencement
of this Framework
Agreement as specified in Schedule
1
;

“Good Industry Practice”

using standards, practices, methods and procedures
conforming to NHS
Requirements

and exercising that
degree of skill, care, diligence, prudence

and foresight
which would reasonably and ordinarily be expected
from a skilled, efficient and experienced person
providing
goods and/or
services which are the same as
or similar to those Goods
and/
or Services prov
ided by
the Contractor under a

c
ontract un
der the same or
similar circumstances to those pertaining to
a

Contract;

“Goods”

all goods, materials
and

articles that the Contractor is
required to supply under
a

Contract

as stated in the
Specification;


“Initial Term”

the initial period of this Frame
work Agreement as
specified in Schedule
1

and commencing on the
Framework Commencement Date;

“Insolvent”

where:

(a)

if the Contractor is an individual, that
individual or where the Contractor is a
partnersh
ip, any partner(s) in t
hat firm

unable to pay his debts in accordance with
section 268 of the Insolvency Act 1986, has
a petition presented by him or any other
person for his bankruptcy or shall have a
receiving order, administration order or
interim order made against him, or s
hall
make or propose any composition or scheme


8


of arrangement with or for the benefit of his
creditors;

(b)

if the Contractor is a company, the

Contractor is unable to pay its debts in
accordance with section 123 of the
Insolvency Act 1986, the proposal or pas
sing
by the Contractor of a resolution for its
winding
-
up or the making by a court of
competent jurisdiction of an order for the
winding
-
up of the Contractor or the
dissolution of the Contractor, or if an
administrator is appointed, or a resolution is
pass
ed or proposed or documents are filed
with the court for the appointment of an
administrator or notice of intention to
appoint an administrator is given by the
Contractor or its directors or by a qualifying
floating charge holder (as defined in
paragraph 1
4 of Schedule B1 to the
Insolvency Act 1986), or the appointment of
a receiver, or if the Contractor makes an
arrangement with its creditors generally or
makes an application to a court of competent
jurisdiction for protection from its creditors
generally;


(c)

if the Contractor has any claim, dispute,
investigation or proceeding started or
threatened against it, has any county court
proceedings issued or judgment awarded
against it, receives any written demand for
payment or becomes aware that any
reasonable d
emand for payment may be
served on it, breaches any covenants
granted by the Contractor to a bank, takes
any advice from an insolvency practitioner or
receives any notice, threat or letter before
legal action or a demand from solicitors; and

(d)

any event in a
ny jurisdiction other than
England and Wales which is analogous to
any of the above

occurs in relation to the
Contractor
;

“Intellectual Property”

all

intellectual property rights including

p
atents, know
-
how

including knowledge, information, experience and



9


data (such as descriptions of manufacturing processes,
formul
ae and designs or

drawings
)
,

moral rights,
registered trade marks, registered designs, utility
models, applications for and rights to apply for any of
the foregoing, unregistered design rights,
unregistered
trade marks, rights to prevent passing off for unfair
competition and copyright, database rights,
topography right
s, domain names

and any other rights
in any invention, discovery or process, in each case in
the United Kingdom and all other cou
ntries in the
world and together with all renewals and extensions;

"Invitation to Tender"

the invitation to tender issued by
NHS
Supply Chain

in
respect of this Framework Agreement under the
procurement referred to in Recital A;

“Location”

the location f
or the delivery of the Goods or provision
of the Services as set out in the
Contract
or as
otherwise ag
reed betwe
en
NHS
Supply Chain

and the
Contractor;

“Management Fee”

the management fee payable by the Contractor to
NHS
Supply Chain

as set out in Schedu
le 1;

“Management Fee Report”

the report referred to in clause
7
.
2
7

and details of
which are set out in Schedule
1
;

“Necessary Requirements”

all legislation and statutory requirements,
NHS
Requirements
,
implied terms, Good Industry Practice,
standards, r
egulations and codes of practice relating to
the Goods

and/or Services

and their sale and supply
;


NHS Coding standards


t
he coding standards to be used in all purchasing and
supply processes and documentation within the NHS

and which are
:

GS1 GTIN (
www.gs1uk.org
)

for products;

GS1 GLN (
www.gs1uk.org
)

for locations;

Dun & Bradstreet supplier codes (
www.dnb.co.uk
)

for
suppliers;

NHS eClass (
www.nhseclass.nhs.uk
)

for classification
;

“NHS Requirements”

in relation to the Goods and Services, all mandatory
NHS requirements and any
simila
r of
ficial requests,
requirements and NHS standards and
recommendati
ons having similar status for the time
being in force, but only to the extent the same are
published and publicly available (whether on the
Department of

Health website, any other NHS website,
the Principal’s website or otherwise)
or the existence
and cont
ents of them have been notified to the


10


Contractor by the Department of Health or
NHS
Supply
Chain
;

“Non Direct Route of
Supply”

a
ny route of supply under any Contract
under which

NHS Supply Chain places the Order and

the Contractor
supplies the Goods to
N
HS
Supply Chain

for
NHS
Supply Chain

to then deliver to a Customer or where
NHS
Supply Chain

places the Order on and makes
payment
of the Contract Price
to the Contractor;

“OJEU Notice”

The
advertisement issued

by
NHS
Supply Chain

in
respect of the procur
ement leading to the award of this
Framework Agreement and mentioned in recital A of

this Framework

Agreement
;

"Order"

an order raised by
NHS
Supply Chain

or any Customer

for the supply of Goods

and
/
or
Services pursuant to
this Framework Agreement

which s
hall contain specific
details in each case as to the Goods and/or Services
ordered, Contract Price, Contract duration and any
other relevant terms, which may be raised:

a) on the basis of the Framework Agreement without a
Competition, or

b) on the basis of

a Competition where such is held for
the particular Goods and/or Services
;


“Party”

any party to
this Framework Agreement

individually
and “Parties” refers to
both

parties
together
. A Party
shall include all permitted assigns of the Party in
question.
All persons who are not a Party to
this
Framework Agreement

are third parties;

“Performance Notice”

a performance notice served by
NHS
Supply Chain

to
the Contractor in accordance with Clause
11.1

which
shall set out a stateme
nt of
NHS
Supply Chain
’s
dissatisfaction with the Contractor's performance and
supply of the Goods

and
/
or
Services
;

“Personal Data”

as defined by the Data Protection Act 1998;

"Pricing Schedule"

the pricing schedule in

Schedule
3
which details the

Framew
ork Agreement Price;


“Principal”

the
NHS Business Services Authority whose principal
office is at

Bridge House, 152 Pilgrim Street, Newcastle
upon Tyne, NE1 6SN
;



11


“Product Information”

i
nformation

(including photographic information

and
any pre
-
p
urchas
e
q
uestionnaires
)

concerning the
Goods

and/or
Services supplied by the Contractor to
NHS
Supply Chain

in accordance with Clause
25

(Product Information)
for inclusion in
the

C
atalogue
from time to time;

“Quality
Standards”

such standards in relation to the Goods/and or
Services that
NHS Supply Chain
sets out in the
Specification;

“Request for Information”

as defined
in

section 8 of the FOIA

and received in
respect of

information relating to th
is

Framework
Agreem
ent
or any Contract made hereunder
and which
should be directed to the Principal;

“Required Insurances”

means the insurances which the Contractor must
take
out and

maintain in accordance with Clause
12
.1 on
terms consistent with those generally prevailing

in the
insurance market from time to time which are:

(a)
public and products liability insurance with a
minimum
level of cover

as stated in Schedule
1
;

(b) with respect to any Contract relating to the
provision of Services an
d where deemed relevant by
NHS
Supply Chain
,
professional indemnity insurance
with a minimum limit of indemnity
as stated in
Schedule
1
;
and

(c)
any insurances as may be required by law
;

“Services”

the services
that the Contr
actor is required to provide
under a
Contract as stated in the Specification;

“Specification”

the specification in
Schedule
4
;

“Supplier Code of Conduct”

the
NHS
Supply Chain

code of conduct as amended
from time to time, the current version of which is

available at

http://www.supplychain.nhs.uk

and which
sets out standards for responsible business covering
human rights, labour rights, the environment and anti
-
corruption
;

“Tender Response”

the Contractor’s
tender response to the Invitation to
Tender as accepted by
NHS
Supply Chain
;

“Term”

the Initial Term plus any extended period granted


12


pursuant to Clause
5

(Duration);

“Writing”

shall be interpreted to include any document whi
ch is
recorded in manuscript, typescrip
t, and a
ny electronic
communication as defined in Section 15 of the
Electronic Communications Act 2000 but excluding
mobile t
elephone text messages.


1.2

References to a statute or statutory provision include, unless the

context
otherwise requires, a reference to that statute or statutory provision as
from time to time amended, modified, extended, re
-
enacted,
consolidated and all statutory instruments, orders, by
-
laws, directions
and notices made pursuant to it whether ma
de before or after the date
of this Framework Agreement.

1.3

Any phrase in this Framework Agreement introduced by the term
“include”, “including”, “in particular” or any similar expression will be
construed as illustrating and will not li
mit the sense of the w
ords
prec
eding that term.

2.

Conditions Precedent

DN: CONDITIONS PRECEDENT
SHOULD

BE USED IF, FOR EXAMPLE, THE
CONTRACTOR HAS TO
COMPLETE

SOMETHING BEFORE THE FRAMEWORK
AGREEMENT CAN ACTUALLY COMMENCE, SUCH AS AN AUDIT OF
THE

CONTRACTOR’S FACTORY/QUALITY
ASSU
RANCE
SYSTEMS
/ETHICAL
SUPPLY CHAIN STANDARDS

2.1

This Framework Agreement shall not come into force until all of the
following Conditions Precedent have been satisfied in
NHS Supply Chain
’s
reasonable opinion within 3 months from the Conditions Precedent Start

Date

or any other timescale as stated in Schedule 1
:

2.1.1

[insert detail]
; and

2.1.2

[insert detail]
; and

2.1.3

[insert detail].

2.2

If the Contractor fails to satisfy the Conditions Precedent set out in clause
2.1 within 3 months from the Conditions Precedent Start Date

or any other
timescale as stated in Schedule 1
, this Framework Agreement shall
terminate on the Conditions Precedent End Date.

3.

Appointment of the Contractor

3.1

In consideration of
:




13


(a)

NHS
Supply
Chain

agreeing to appoint the Contractor to this
Framework Agreement
;

and

(b)

NHS Supply Chain
agreeing to pay £
1

(
one

pound) to the
Contractor
, receipt of which is hereby acknowledged


the Contractor undertakes to supply Goods

and
/
or
Services in accordance
w
ith the
Framework Agreement
.

3.2

The Contractor
agrees

to
work together

with
NHS
Supply Chain

during
the Term to achieve
innovative and
continuous improvement in the
quality and
value

of the Goods

and
/
or
Services

including the way in
which the Goods and/or Ser
vices are supplied and to achieve the lowest
possible price for the Goods

and
/
or Services, including when responding
to Competitions pursuant to Clause
6.1.3
, for the mutual benefit of each
Party, any Customers and the National

Health Service.

3.3

During the Term, the Contractor shall disclose to
NHS Supply Chain

any
new technology developed by the Contractor that provides the same or
substantially similar function as the Goods. Upon introduction of the new
technology by the Contra
ctor,
NHS Supply Chain

or any other relevant
Customer

shall have the option of exchanging any Goods purchased
under the terms of any Contract for the new technology
. I
n the event
the Contractor fails to provide such option to
NHS Supply CHain
: (a)
NHS
Sup
ply Chain

shall have the right to discontinue the offering

under the
Framework Agreement

of any or all of the Goods that have been
superseded by such new technology providing the same function as the
Goods; or (b)
NHS Supply Chain

may elect at its discreti
on to contract
with one or more additional suppliers of similar new technology. For the
avoidance of doubt, it is acknowledge
d

and agreed that the Contract
Price will not be adversely affected if
NHS Supply Chain

chooses to
purchase new technology through

an agreement with another supplier.

3.4

If at any time during the
Term
, new technology (as defined by
NHS
Supply Chain
) for any Goods becomes available from any source that
pro
vides incremental patient care benefits and/or incremental safety
benefits over tec
hnology currently available under the Framework
Agreement,
NHS Supply Chain

shall provide written notice of such
information to the Contractor and may elect to contract with suppliers of
such new technology, and/or terminate any existing Contracts yet to b
e
fulfilled and/or conduct a new tendering exercise to enable
NHS Supply
Chain

to
have access to such new technology at all times, and the
Contractor acknowledges that such action shall not constitute a breach of
any of the terms of this Framework Agreemen
t by
NHS Supply Chain
.

3.5

From time to time and throughout the duration of this Framework
Agreement,
NHS Supply Chain

(including its agents or any party
instructed by them) reserves the right acting in its absolute discretion to


14


perform checks to ensure that

(i)

all or any of the Goods comply with the
Specification
and the Quality Standards

and (ii) that the Contractor is
complying with the Supplier Code of Conduct
.

3.6

If any of the Goods fail to comply with the Specification (and/or the
Q
uality
S
tandards
)

and/or

if the Contractor is not complying with the
Supplier Code of Conduct

at any point throughout the life of the
Framework Agreement,
NHS Supply Chain

reserves the right to either:

3.6.1

suspend the relevant product code for the Good or Goods (as
the case may be) o
f the Contractor
in the Catalogue

until the
Contractor has demonstrated to the absolute satisfaction of
NHS Supply Chain

and /or any other person instructed by
NHS
Supply Chain

that the relevant Good or Goods has or have
been improved to comply with the S
pecification (and/or the

Quality Standards)
; or

3.6.2

subject to N
HS Supply Chain’s rights under C
lause 1
6

(Termination)
,
suspend the product codes of the Goods of the
Contractor in the Catalogue until the Contractor has
demonstrated to the absolute satisfaction

of NHS Supply Chain
and /or any other person instructed by
NHS Supply Chain that
the Contractor has rectified its non compliance with the
Supplier Code of Conduct; or

3.6.3

terminate the Framework Agreement upon written notice to the
Contractor
; or

3.6.4

terminate th
e Framework Agreement and

any or

all other
framework agreements that NHS Supply Chain
has in place
with the Contractor upon written notice to the Contractor where
the checks pursuant to clause 3.
5

uncover a material breach of
this Framework Agreement on th
e part of the Contractor which
could result in reputational
damage

to NHS Supply Chain
and/or any Customer and/or the increase of the risk of death or
injury to patients of Customers.

3.7

During the Term,
NHS
Supply Chain

(to the extent permitted by the OJEU
N
otice and/or the Invitation to Tender as the case may be)

reserves the
right to:

3.7.1

Subsequently amend the Contractor’s range of Goods;

and/or

3.7.2

Test, at any stage during the Term and at the Contractor’s
cost, compliance of any of the Goods with
the Quality
Sta
ndards
; and/or

3.7.3

Undertake ad hoc range reviews in consultation with the
Contractor which may result in adding products to the range of


15


Goods to be supplied providing those products fall under one of
the CPV codes set out in the OJEU Notice or the removal of

certain product lines that are part of the Goods from the
Framework Agreement.

4.

Order of Precedence and Incorporation of Terms


4.1

T
his Framework Agreement
is made up of the f
ollowing documentation
:

4.1.1

The
Framework Agreement
Particulars
;

4.1.2

The Specification
;

4.1.3

Th
e terms of this Agreement
;

4.1.4

T
he Additional Terms;

4.1.5

T
he Pricing Schedule;

4.1.6

The Supplier Code of Conduct;

4.1.7

any other
s
chedules

contain
ed in the Tender Response.

4.2

In the event of a
ny conflict between the documents comprising this
Framework Agreement, they shall take the order of precedence as listed
in Clause
4.1

above.

4.3

For the avoidance of doubt, the order of precedence of the documents
comprising the C
ontract shall be as set out in clause 6.4 of the
Framework Agreement.

5.

Duration

5.1

This Framework Agreement shall commence on the Framework
Commencement Date and shall continue in force
for the Initial Term

unless

extended in accordance with
C
lause
5.2
.

5.2

This Framework Agreement can be extended at
NHS
Supply Chain
’s sole
discretion

by
NHS
Supply Chain

giving no less
than
three
months


notice
in Writing to the Contractor.

Such extension shall continue
for

such
period as
NHS
Supply Chain

shall state in such notice provided that such
period does not extend beyond the Extension Longstop Date.

Such
extension shall apply to all of the Goods and/or Services or to such as
NHS
Su
pply Chain

may specify in the notice given under this Clause
5.2
.

5.3

For the avoidance of doubt, t
he extension process in Clause
5.2

can be
used by
NHS
Supply Chain

as many times as
NHS

Supply Chain
, in its
sole discretion deems necessary, provided that the total
extend
ed

term of
this Framework Agreement
does not extend beyond the Extension
Longstop Date
.



16


6.

Ordering Under the Framework Agreement and Contract
Formation


6.1

Other contractors in addition to the Contractor may have been awarded
the right to supply
similar g
oods and
/
or
s
ervices to the Goods and/or
Services to

NHS
Supply Chain

or the C
ustomer as relevant

under the
same procurement process which was the subject of the Invitation to
Tender
. Accordingly, the Contractor acknowledges that under this
Framework Agreement:

6.1.1

Unless NHS Supply Chain has given a Customer express
permission in Writi
ng to carry out a Competition, then
NHS
Supply Chain (only)
can

carry o
ut further Co
mpetitions

including by means of electronic auction (with or without the
involvement of a Customer as the case may be)
between the
Contractor and other contractors prior to

entering into a
Contract with

NHS Supply Chain and

any Customer for any
particular Goods and/or Services;

6.1.2

it will only accept Orders placed pursuant to this Framework
Agreement from
NHS
Supply Chain

or the Customer (and
references to
NHS
Supply Chain
/the
Customer shall be
interpreted accordingly)
, and the Contractor undertakes that it
will only accept and fulfil Contracts pursuant to this Framework
Agreement from and with
NHS
Supply Chain

or the Customer
;

6.1.3

Neither
NHS
Supply Chain

nor any Customer

is under
any

obligation to
provide

any particular level or volume of
Orders or
enter into any Contracts

with the Contractor under or pursuant
to this Framework Agreement
;

6.1.4

to the extent that any estimated quantities of Goods proposed
to be purchased by
NHS
Supply Ch
ain

are contained within the

OJEU Notice or

Invitation to Tender, such estimates are
indicative only and

neither

NHS
Supply Chain

nor any Customer

shall be bound to order such quantities or have an
y liability
whatsoever to the Contractor in respect of or a
rising out of the
volume of Orders placed by
NHS
Supply Chain

or any Customer

or Contracts received by the Contractor during the Term.

6.2

A Contract is formed

either:

6.2.1

once an Order is
placed

by

NHS
Supply Chain

or the Customer
as relevant
; or

6.2.2

once
NHS
Supply
Chain

or the Customer as relevant

accepts
the Contractor’s response to a Competition
for a Contract
p
ursuant to Clause
6.1.3
.



17


6.3

Each
Contract

will be fulfilled
by the Contractor
in accordance with the
terms of th
is

Framework Agre
ement
.

6.4

In the event of any conflict between the documents comprising
a
Contract,

they shall take the following order of pre
cedence
:

6.4.1

the Order
;


6.4.2

this Framework Agreement

and the

Contractor will not seek to impose or rely on any other
contractual terms
or te
rms of trading
which in any way vary or contradict
the terms of
th
is

Framework Agreement

or any Contract.

6.5

In the event of any conflict or ambiguity between the terms of a Contract
and the terms of this Framework Agreement, the terms of the Contract
shall

take precedence.

6.6

For
the avoidance of doubt, all other terms, conditions or warranties
(
other than any terms, conditions or warranties implied by law
in favour
of
NHS
Supply Chain

or the Customer
)

shall be deemed to be

excluded
from the terms of any Contr
act unless expressly accepted i
n Writing by
NHS
Supply Chain
.

7.

Pricing

and Payment

Contract Price

and Framework Agreement Price

7.1

In consideration of the Contractor

s due and proper performance of

its
obligations
under any Contract, the Contractor may charge
NHS
Supply
Chain

or the Customer as relevant

the Contract Price

for such Contract

in
accordance with this Clause
7
.

7.2

The Contract Price shall
be determined in accordance with
:

7.2.1

the Pricing Schedu
le

and any assumptions within it
;

and/or

7.2.2

the provisions of the tender documents for the Competition if
the relevant Contract has been awarded as a result of that
Competition
;

and
(
subject to Clause
7.4

and the p
rovisions of the Pricing Schedule
)
,
the Contract Price shall not be subject to any increase whatsoever

by the
Contractor during the
t
erm

of the relevant Contract
.

7.3

The Contract Price shall
be

net (i.e. after the deduction of all agreed
discounts) and
inclus
ive of all taxes, duties, expenses and disbursements
save for VAT (if applicable) and where appropriate shall include


the cost
of packaging, packing materials, addressing, labelling, loading, delivery to
the Location,
the costs of all equipmen
t and materi
als supplied by the


18


Contractor, all travelling expenses involved and

all royalties, licence fees
or similar expenses in respect of the making, use or exercise by the
Contractor of any Intellectual Property for the purpose of performing a
Contract
. The amo
unt of any duty and any early settlement discounts
shall be shown separately in each Order.

7.4

In the event that
:

7.4.1

any Contract is varied under Clauses
20

(Variation of a
Contract) or
21

(Variation of a Specification) in such a way as
to affect the Contract Price and

7.4.2

agreement between the Parties

(or any Customer to the
relevant Contract)

cannot be rea
ched on the adjustment to the
Contract Price within 3 months

then

both Pa
r
ties

(or the Party and any Customer involved)

shall jointly
act to resolve the dispute in accordance with Clause
24.2
.

7.5

The Contract Price (or any component thereof) and any variation thereto
is Confidential Inf
ormation, and the Contractor undertakes that it shall
not disclose details of the same to any Customer

where the relevant
Contract is based on a Non Direct Route of Supply
or

to

any other third
party

where the
relevant Contract is based on a Direct Route o
f Supply

without the prior consent of
NHS
Supply Chain

and the Customer where
relevant

in Writing
.

7.6

The Parties acknowledge and agree that the Framework Agreement Price
is the basis on which the Framework Agreement is established and
subject to

the provisio
ns set out in the Pricing Schedule

the Framework
Agreement Price shall not be subject to any increase whatsoever by the
Contractor during the

Initial

T
erm
.


7.7

Where NHS Supply Chain exercises its right to extend the Framework
Agreement pursuant to clause 5.
2

of this Framework Agreement
, the
Parties shall meet prior to the end of the Initial Term and before the
extension is in effect to review and, where appropriate, agree changes to
the Framework Agreement Price. Agreed changes shall take effect from
the fi
rst day of the extension and shall continue to be effective for the
remainder of the Term. If the Parties cannot agree to the changes to the
Framework Agreement Price prior to the extension coming into effect,
the
Authorised Representatives shall arrange
for a senior representative of
each of them to meet solely in order to resolve the issue. Such
meeting(s) shall be minuted and shall be chaired by NHS Supply Chain
(but the chairman shall not have a casting vote). Such meeting(
s) shall
be conducted in su
ch
manner and at such venue (including a meeting
conducted over the telephone) as to promote a consensual resolution of
th
is

issue. If the changes to the Framework Agreement Price are not


19


agreed by the date of the extension coming into effect, the Framewo
rk
Agreement Price that applied in the Initial Term
shall apply pending
agreement or determination of the new Framework Agreement Price.
Once the new Framework Agreement Price has been agreed by the
Parties, the new Framework Agreement Price shall come in
to effect as
soon as is reasonably practicable.

7.8

During the Term,
NHS
Supply Chain

may request the Contractor to
decrease the Framework Agreement Price
. In such circumstances, the
Parties shall have 90 days to consult and agree to any decreases to the
Fram
ework Agreement Price. Once
the Parties agree to any

decrease to
the Framework

Agreement Price, such decrease

shall be implemented
within 30 days from the date the Parties agree to the decrease.

If
agreement between the Parties cannot be reached on the ad
justment to
the Framework Agreement Pri
ce within
90 days

both Parties

shall

arrange
for a senior representative of each of them to meet solely in order to
resolve the dispute. Such meeting(s) shall be minuted and shall be
chaired by NHS Supply Chain (but
the chairman shall not have a casting
vote). Such meeting(s) shall be conducted in such a manner and at such
venue (including a meeting conducted over the telephone) as to promote
a consensual resolution of the
pricing
.

7.9

During the Term, u
nder no circums
tances may the Contractor unilaterally
change the Contract Price or the Framework Agreement Price.

7.10

In determining the Contract Price, the Contractor agrees that it shall
lower its prices (in relation to the relevant Framework Agreement Price
)

or increase a
ny discount applicable to the purchase of the Goods/Services
as necessary to ensure that the Contract Price is not less favourable to
any other price offered by the Contractor in the NHS market.

Spe
cial deals, commitment discount schemes

and bulk buy arran
gements

7.11

During the Term, the Contractor may approach
NHS
Supply Chain

at any
time with

in scope

proposals of special deals, commitment discount

s
chemes

and/or bulk buy arrangements
that could be implemented by the
Parties
that could result in
any

Customers

achieving savings.

NHS
Supply
Chain

may accept or reject such special deals, commitment discount
schemes and/or bulk buy arrangements at its sole discretion. Where the
Parties agree that a special deal, commitment discount scheme and/or
b
ulk buy arrange
ment will be implemented, the Parties shall agree in
writing the payment terms and the way that such schemes will be
marketed.


Invoicing and
Payment

7.12

Invoices shall not be rendered by the Contractor until completion of
delivery of all of the Goods which a
re the subject of the Contract, or


20


within 15 days of the end of each calendar month for any Services
provided by the Contractor in that calendar month unless otherwise
agreed by
NHS
Supply Chain

or the Customer

in Writing.

Where
NHS
Supply Chain

or the Cus
tomer

has agreed that the Contactor may deliver
the Goods by separate instalments or perform any

S
e
rvices in stages,
each separate instalment or stage
must

be a separate Contract invoiced
and paid for accordingly.

It is acknowledged and agreed that w
here
the
Contract
or

delivers the Goods by separate instalments or performs any
Services in stages and the Contractor fails to invoice each instalment or
stage separately, then this may result in a delay in payment on the part
of
NHS
Supply Chain

or the Customer
.


7.13

Unless otherwise agreed in Writing by
NHS
Supply Chain

or the Customer
,
the Contractor must provide an invoice which shall be rendered on the
Contractor’s own invoice form, sent electronically

via EDI

with one

invoice

per
Contract

and
NHS
Supply Chain

O
rder number
, and contain
ing

the
following information:

7.13.1

the period to which
the invoice

relate
s

and where relevant the
Goods
and/o
r Services f
or which payment is claimed;

7.13.2

the
relevant Contract Price;

7.13.3

NHS
Supply Chain
’s

or the Customer’s

Order number;

7.13.4

the un
it of purchase
, unit price, MPC code and NPC code

that
w
ere

stated by
NHS
Supply Chain

or the Customer

on the
Order;

7.13.5

in relation to Goods:

7.13.5.1

the name and address of the Location and/or the
Customer (as appropriate);

7.13.5.2

the description and quantity of the Goods

as set
out in the
NHS
Supply Chain

Order
;

7.13.5.3

details of any

other item not included in the
Contract Price
;


7.13.5.4

whether
any

containers

supplied

are required to be
returned; and

7.13.5.5

the product GTIN (GS1 Code) where available; and


7.13.6

in relation to Services, the name a
nd address of the relevant
Customer and the description
of the Services.

7.14

The Contractor may only invoice
NHS
Supply Chain

or the Customer

in
paper format if that method has been previously agreed in writing by
NHS


21


Supply Chain

or the Customer

based on the
Contractor providing evidence
in writing that it cannot invoice electronically via EDI and to do so would
result in detrimental operational consequences to the Contractor.

Where
NHS
Supply Chain

or the Customer
agrees that the Contractor may
invoice
NHS
S
upply Chain

in paper format, then such invoices must
contain all of the required in
formation set out in clause
7
.
13
.

7.15

For the avoidance of doubt, all invoices must be in the name of the
Contractor and where the Contractor subcontracts its invoicing to a thi
rd
party, such invoices must be in the name of the Contractor and monies
received from
NHS
Supply Chain

or the Customer

in relation to this
Framework Agreement must be paid by that third party to the Contractor.


7.16

Failure to provide the in
formation required

by Clause
7.13

will entitle
NHS
Supply Chain

or the Customer

to delay payment of the
relevant invoice

until such information is provided.

7.17

With the prior agreement of the Parties

in Writing
, the arrangements set

out in
Clause
7.13

may be suspended in favour of alternative
arrangements (
including electronic trading or other new processes).

7.18

NHS
Supply Chain

shall pay the Contract Price to the Contractor, by BACS
(Bank Au
tomated Clearing System)
or other means chosen by

NHS
Supply Chain

and notified to the Contractor
,
within

45 days of the receipt
of
a

valid
, undisputed

invoice rendered in accordance with Clause
7.13
,

unless otherwise specified

in Writing
.

Where the Contract Price is to be
paid by a Customer (other than
NHS
Supply Chain
), the Customer shall
pay the Contract Price to the Contractor, by BACS or other means chosen
by the Customer and notified to the Contractor, within 30 days of t
he
receipt of a valid, undisputed invoice rendered in accordance with Clause
7
.
13
, unless otherwise specified in Writing.

7.19

NHS
Supply Chain

or the Customer as relevant

shall be entitled to deduct
from any monies due or to become due to the Contractor any mo
nies
owing to
NHS
Supply Chain

or the Customer as relevant

from the
Contractor

and/or withhold payment of any sums pending delivery of the
Goods and/or completion of proper performance of the Services in
accordance
with the relevant Contract.

7.20

Except where
otherwise stated, the Contract Price is exclusive of VAT
which

shall be payable, if applicable, by
NHS
Supply Chain

or the
Customer

in addition to such Contract Price at the rate prevailing as at
the tax invoice date. The invoice provided to
NHS
Supply Ch
ain

or the
Customer

by the Contractor in accordance with Clause
7.
1
3

shall show
the VAT calculations separately.

Where the Contractor is required to pay
a rebate to NHS Supply Chain, such rebate shall include a credit note in
order to comply with VAT legi
slation.



22


7.21

NHS
Supply Chain
/the Customer

shall not be responsible for the payment
of any charges for Goods

and/or Services

supplied in excess of the Goods

and/or Services

required by any
Contract or Specification

or any var
iation
of it unless authorised i
n W
riting by a further
Contract or variation to the
Specification.

7.22

No payment of or on account of the Contract Price shall constitute any
admission by
NHS
Supply Chain
/the Customer

as to proper performance
by the Contractor of its obligations under this Fram
ework Agreement
and/or any Contract.

7.23

In the event of
NHS
Supply Chain

or the Customer

breaching Clause
7.18

in respect of undisputed invoices, the Contractor shall be entitled to
charge interest on the outstandi
ng amount owed by
NHS
Supply Chain

or
the Customer

from the date that such amount becomes overdue
at the
rate
of 4% above the base rate from time to time of the Bank of England
.

7.24

Where
NHS
Supply Chain

or the Customer

raises a query with respect to
any inv
oice and a credit note is required to be issued by the Contractor,
such credit note must be received by
NHS
Supply Chain

or the Customer

within
30
days of the query being raised

and must be for the value of the
reported discrepancy only
, during which time
the Parties

(or the
Customer and the Contractor)

shall liaise with each other in relation to
the query. If no agreement is reached in relation to the query during the
30 days or if the Contractor does not respond to requests from
NHS
Supply Chain

or the C
ustomer

during the 30 days, then
a debit note will
be raised by
NHS
Supply Chain

or the Customer

and the Contractor will
have no right to challenge such debit note
.

NHS Supply Chain will not
accept credit notes which are raised to cancel invoices.

Managem
ent Fee

7.25

The Management Fee will be calculated and contained in the Management
Fee Report as set out in the
Framework Agreement
Particulars.

7.26

An Order will be considered completed for the purposes of the
Management Fee when all of the Goods which are the sub
ject of the
Order have been delivered and/or where any Services have been
provided by the Contractor in the relevant calendar month
.

7.27

NHS
Supply Chain

shall invoice the Contractor for the total Management
Fee
shown in the Management Fee Report.

7.28

Any disagree
ment with regard to the content of the Management Fee
Report shall be resolved between the Parties as soon as possible in
accordance with clause
2
4

(Dispute Resolution Procedure) and in the
meantime any invoices which have been issued shall be paid pending

reconciliation when the disagreement is resolved.



23


7.29

Invoices will be payable by the Contractor to
NHS
Supply Chain

within

45

days in United Kingdom pounds Sterling by bank transfer to such United

Kingdom bank account as
NHS
Supply Chain

may notify to the Co
ntracto
r
in Writing from time to time.

7.30

In the event of the Contractor

breaching
clause
7
.
2
9
,

NHS
Supply Chain

shall be entitled to charge interest on the outstanding amount owed by
the Contractor from the date that such amount becomes overdue at the
rate

o
f 4% above the base rate from time to time of the Bank of England
.

7.31

In addition to its rights under
claus
e

7
.
30

NHS
Supply Chain

may set off
against all sums payable by it at any time under this Framework
Agreement all sums which it is either agreed or dete
rmined are payable
by the Contractor to it whether under or pursuant to this

Framework

Agreement or any other agreement

(including any Contract)

between
NHS
Supply Chain

and th
e Contractor from time to time.

7.32

If the agreement or determination of any dispute

shows that
NHS
Supply
Chain

has:

7.32.1

set
-
off any amount which the Contractor was entitled to be paid
NHS
Supply Chain

shall pay such amount to the Contractor
together with interest on that amount at the rate set out in
Clause
7
.
30

from the date it should
have

been paid but for such set
off
until the date of actual repayment;

7.32.2

paid too great a sum to the Contractor the Contractor shall repay
such amount to
NHS
Supply Chain

with interest at the rate
referred to in
Clause
7
.
30

from the date of payment to the
Contr
actor to the date of actual repayment to
NHS
Supply Chain
.

7.33

All Management Fees payable pursuant to this
Framework
Agreement are
expressed exclusive of value added tax, which, where applicable, will be
payable in addition to the sum in question at the rate
and in the ma
nner
set out in Clause
7
.1
.

7.34

Where the Contractor enters into a sub
-
contract with a supplier or
contractor for the purpose of performing its obligations under the
Framework Agreement or any Contract, it shall ensure that a provision is
included

in such a sub
-
contract which requires payment to be made of all
sums due by the Contractor to the sub
-
contractor within a specified
period not exceeding 30 days from the receipt of a valid invoice.

8.

Annual Sales Statement


8.1

If requested by
NHS Supply Chain
, the Contractor shall provide
NHS
Supply Chain

within 30 days following each anniversary of the
Framework Commencement Date during the Term and within 30

days of
date of expiry or termination of the Framework Agreement a statement


24


giving accurate and complete details of the quantity and value of the
Goods sold by the Contractor to
NHS Supply Chain

under the terms of all
Contracts entered into pursuant to t
his Framework Agreement during the
year ending on the date of such anniversary or, in the event of expiry or
termination, during the period from the date of the last such statement
submitted by the Contractor to
NHS Supply Chain

to the date of expiry or
te
rmination. The statement shall include accurate details of the Goods
which were sold pursuant to each individual Contract. The format and
level of detail of the statement shall be agreed between
NHS Supply
Chain

and the Contractor in Writing.

8.2

The Contrac
tor shall keep at its normal place of business detailed,
accurate and up to date records of the quantity and value of the Goods
sold by the Contractor to
NHS Supply Chain

under the terms of all
Contracts entered into pursuant to this Framework Agreement.
Subject
to any other auditing process being agreed between
NHS Supply Chain

and the Contractor in Writing,
NHS Supply Chain

shall be entitled by prior
appointment to enter the Contractor’s normal place of business during
normal office hours and to inspect
such records in order to verify whether
any statement supplied by the Contractor to
NHS Supply Chain

pursuant
to
Clause 8.1

is accurate and complete.

9.

Marketing

9.1

NHS Supply Chain may market the Framework Agreement during the
Term.


The Contractor may

feature

in

standard NHS Supply Chain
marketing

relating to the Framework Agreement and it may be able to
purchase advertising space

in specified NHS Supply Chain media in
relation to the Goods
.

9.2

NHS Supply Chain may approach the Contractor during the Term to

offer

the Contractor the opportunity

to

take part in specific promotions in
relation to the Framework Agreement and/or any schemes set up in
accordance with clause 7.1
1
.

9.3

Save as required by law and/or the requirements of any relevant
stock
exchange, no
announce
ment, circular, advertisement or other
p
ublicity

shall be made by any of the
P
arties relating to any matter in connection
with any Contract or this Framework Agreement without the prior
consent
in Writing
of the other Party

or the other party to the Contra
ct
as the case may be (such consent not to be unreasonably withheld or
delayed) save that either Party/party may publicise the availability of
new Goods and/or Services without the prior consent in Writing of the
other
.

Nothing in this Framework Agreement

shall be deemed to grant
the Contractor any rights

in,

or licence to use
,

the

NHS logo nor any
Intellectual Property rights in such logo

without the
prior consent
in
Writing
of
NHS Supply Chain.



25


10.

Warranty and Liability

Liability

10.1

Neither Party nor any other Customer
exclude
s

its liability (if any) to

any
of

the others
:

10.1.1

for breach of the Contractor’s obligations arising under sectio
n
12
Sale of Goods Act 1979 or section 2

Supply of Goods and
Service
s
Act 1982;

10.1.2

for personal injury or death resulting from the negligence

of the
Party
;

10.1.3

under section 2(3) Consumer Protection Act 1987;

10.1.4

for any matter for which it would be illegal
to
exclude or to
attempt to exclude its liability; or

10.1.5

for fraud or fraudulent

misrepresentation.

10.2

Nothing in this Framework Agreement or in any Contract shall exclude or
limit any losses that NHS Supply Chain or any Customer is entitled to
recover further to clause 2
5
.7 (Product Information)
,

clause
30
.1
(Intellectual Property)

and
paragraph 13.3 of the Additional Terms
.

10.3

To the fullest extent permitted by law, neither Party

nor any Customer

shall be liable to the other (whether in contract, including negligence or
otherwise) for any loss of profit, pure economic loss, loss of goodwil
l (in
each case whether direct, indirect or consequential loss) or any special,
indirect or consequential loss or damage except to the extent arising
from the misrepresentation, gross negligence or wilful breach of any
Contract or this Framework Agreement
by the
p
arty
in question.

Warranty
-

Goods

10.4

The Contractor warrants to
NHS
Supply Chain

or the Customer

that the
Goods

will
:


10.4.1

be of satisfactory quality (within the meaning of
the
Sale of
Goods Act 1979 and where applicable the Food Safety Act
1990), be fi
t for any purpose which would be reasonably
expected having regard to the nature of the Goods
and the use
intended by the Customer or held out by the Contractor or
made known to the Contractor at the time
the Order is placed
or the Contractor’s response to

a Competition is accepted by
NHS
Supply Chain

or the Customer
, whichever is relevant
;

10.4.2

be free from any defects whether in design, material and
workmanship or otherwise;



26


10.4.3

correspond
strictly and
in every respect with

the Specification,

any
other
relevant sp
ecifications, drawings, samples or
descriptions provided by
NHS
Supply Chain

or the Customer
and any sample
provided as part of the Tender Response and
accepted by
NHS
Supply Chain

or
the Customer;

10.4.4

comply with
the Necessary Requirements

and the Quality
Sta
ndards
;

10.4.5

function in accordance with the applicable specifications of the
manufacturer of the Goods including in respect of any
instruction for use or care applying to the Goods;

10.4.6

be supplied with all due care and in accordance with
NHS
Supply Chain
’s
or the

Customer’s
instructions;

10.4.7

be of the lifespan or duration as detailed in
the relevant

Contra
ct;

10.4.8

be so formulated, designed, constructed, finished and packaged
as to be safe and without risk to health.

10.5

T
he Contractor warrants to
NHS
Supply Chain

that

any do
cuments,
certificates, declarations and/or statements submitted in the Tender
Response

which are supplied
in order to demonstrate that
the Goods
comply with
the Necessary Requirements

were accurate and up to date
.

During the Term, the Contractor warrants
that any documents,
certificates, declarations and/or statements submitted in the Tender
Response will be maintained, updated and/or renewed as appropriate to
ensure that at all times the Goods comply with the Necessary
Requirements.

Where

any such documen
ts, certificates, declarations
and/or statements submitted in the Tender Response change or expire
during the Term, the Contractor shall notify
NHS
Supply Chain

of such
change or expiration immediately

on its becoming aware of such change
or expiration

to
enable
NHS
Supply Chain

to take appropriate action in
relation to the Goods or any part of the Goods
(
which may include but
not be limited to ceasing the availability of the Goods or any part of the
Goods to Customers

and notifying Customers of the situati
on
.
)

Failure to
comply with this Clause
10
.
5
shall constitute a material breach of this
Framework Agreement incapable o
f

remedy.

10.6

Without prejudice to any other rights or remedies of
NHS
Supply Chain

or
the Customer
, in the event of any breach of any of th
e warranties in
Clause
10.4

(
or
if the Goods are
otherwise damaged or defective due to
defects in material, or workmanship or design other than a design made,
furnished or specified by
NHS
Supply Chain

or the Cu
stomer
)
, for

a
period of
12 months from the date of delivery
or collection (as
appropriate)
of

the Goods, the Contractor shall either

r
efund, repair, or


27


replace, such Goods

at the option of
NHS
Supply Chain

or the Customer
.

The Contractor will refund to
N
HS
Supply Chain

or the Customer
the cost
of carriage on the return of any such defective or damaged Goods, and
will deliver any repaired or replacement Goods to
NHS
Supply Chain

or
the Customer

at th
e Contractor’s own expense. The Contractor will also
ref
und to
NHS
Supply Chain

or the Customer

any ancillary costs
incurred
by
NHS
Supply Chain

or the Customer

in relation to

this
C
lause.


Warranty
-

Services

10.7

The Contractor warrants to
NHS
Supply Chain

or the Customer

that the
Services will:

10.7.1

be performed promp
tly (and in any event within any timescale
as may be set out in the Specification);

10.7.2

be performed accurately and without interruption;

10.7.3

be performed by appropriately qualified, experienced and
trained personnel in a professional and courteous manner, with
a
high standard of skill, care and diligence, in accordance with
any Contract or this Framework Agreement and to such a high
standard of quality as is reasonable for
NHS
Supply Chain

or
the Customer

to expect in all of the circumstances;

10.7.4

be performed strict
ly in accordance with the Specification;

10.7.5

comply with
the Necessary Requirements

and the Services
,
Good Industry Practice and in compliance with all
required
Consents (including the giving of notices and the obtaining of
any such Consents) and so as not to
prejudice the renewal of
any such Consents
.

10.8

Without prejudice to any other rights or remedies of
NHS
Supply Chain

or
the Customer
, in the event of any breach of any of the warranties in
Clause
10.7

or if

any par
t of any Service is found to
otherwise
be
defective or different in any way from the Specification or has not been
provided
in accordance with the Contract

(
other than as a result of a
default or negligence on the part of
NHS
Supply Chain

or the Customer
),

at the option of
NHS
Supply Chain

or the Customer
:

10.8.1

the Contractor shall
at its own expense re
-
perform the Services
in question (without additional remuneration therefore) within
such time as
NHS
Supply Chain

or the Customer

may
reasonably specify
; or

10.8.2

the
Contractor shall provide a refund in respect of such
Services and
NHS
Supply Chain

or the Customer

shall be
entitled to procure performance of
such

Services from a third


28


party or to execute the tasks in question itself

at the
Contractor’s expense
. If the
cost to
NHS
Supply Chain

or the
Customer

of executing or procuring such Services exceeds the
amount that would have been payable to the Contractor for
such Services, the excess shall be paid by the Contractor to
NHS
Supply Chain

or the Customer

on demand i
n addition to
any other sums payable by the Contractor to
NHS
Supply Chain

or the Customer

in respect of the breach of Contract.

Further warranties

10.9

T
he Contractor warrants to
NHS
Supply Chain

or the Customer

that
:


10.9.1

Contractor Personnel

shall at all times
w
hilst on
the premises of
NHS
Supply Chain

or any
Customer
in connection with any
Contract:

10.9.1.1

act in a responsible manner

with full regard to the
health and
safety of all persons at such premises
;

10.9.1.2

will be

properly trained and instructed

with regard
to the tas
ks to be
performed

by them
, standards of
dress and all other relevant rules and procedures
(e.g. health and safety at work, fire risks, fire
precautions

etc
)
;

10.9.1.3

make themselves aware of, and
comply with
,

any
site
-
specific requirements and policies, rules,
pr
ocedures and quality standards;

and the Contractor hereby confirms that it
will be

vicariously
liable for all actions
or omissions
of
Contractor Personnel
;

10.9.2

it
shall at all times comply with the Supplier Code of Conduct
;

and

10.9.3

it shall maintain
,

keep fully u
p to date

and regularly audit

its
Business Continuity Plan to a standard in line with
NHS
Supply
Chain
’s reasonable requirements and Good Industry Practice

and it shall provide NHS Supply Chain with the updated version
of its Business Continuity Plan withi
n a reasonable timescale of
its Business Continuity Plan being updated.

Liability for breach

10.10

Subject to Clauses
10.1

to

10
.3 (inclusive)

and to the fullest extent
permitted by law, in respect of any other liabil
ity of the Contractor arising
under any Contract or this Framework Agreement, the Contractor’s
aggregate liability (whether in contract, tort (including negligence),


29


breach of statutory duty, restitution or otherwise) for any injury, death,
damage or direc
t loss

(
such
direct loss

for the avoidance of doubt shall
include any loss of profit or income suffered by NHSSC/the Customer as
a result of any breach of Contract by the Contractor
)
howsoever caused
will be limited to either
£
5
million

for any one inciden
t or to the value of
the Goods or Services under the relevant Contract, whichever is the
higher.

11.

Performance Measurement

11.1

NHS
Supply Chain

may monitor whether the Contractor

s provision of th
e
Goods

and/or
Services in question meets any

performance criteria
and/or
service levels
as specified in the Specification or otherwise in accordance
with this Framework Agreement.

On or before the 15
th

working day of
each calendar month during the Term an
d within 14 days after the expiry
or termination of any Contract,
NHS
Supply Chain

may in respect of the
supply of the Goods

and/or
Services during the preceding calendar
month, provide to the Contractor a Performance Notice.

11.2

E
ach Performance Notice issue
d by
NHS
Supply Chain

shall include a
proposed rebate of the Contract Price commensurate to the under
-
performance of the Contractor as recorded in the Performance Notice
.

11.3

I
f the Contractor disputes any matter referred to in any Performance
Notice and/or th
e proposed rebate of the Contract Price, the Contractor
may raise this objection with
NHS
Supply Chain

and if this matter is not
resolved within
7

days the matter shall be referred to the Dispute
Resolution Procedure
.

11.4

I
f the Contractor has not raised any o
bjection to the Performance Notice
within 7 days of receipt (or such other period as agreed between the
Parties) then that Performance Notice shall be deemed to have been
accepted by the Contractor and the rebate on the Contract Price referred
to therein s
hall become
immediately
due
.

11.5

The Contractor shall institute and maintain a properly documented
system of quality
assurance

to ensure that the Goods and/or Services are
supplied
in accordance with the performance criteria

and/or service levels

specified in
the Specification
to
enable
the Contract
or to fulfil its
obligations under each Contract and this Framework Agreement
.

11.6

In addition to any other rights of
NHS
Supply Chain

under the Contract,
NHS
Supply Chain

shall be entitled to inspect the Contractor’s qu
ality
assurance

system referred to in Clause
11.5

above.


11.7

During the
Term
,

NHS
Supply Chain

may inspect and examine the

facilities of the Contractor and their approved sub
-
contractors

with
reasonable
notice at any time. The Con
tractor shall provide to
NHS


30


Supply Chain

all such facilities as
NHS
Supply Chain

may require for such
inspection and examination.

11.8

The Contractor shall allow
NHS
Supply Chain

and any person, firm or
organisation authorised by
NHS
Supply Chain

to have acces
s to and to
audit all

relevant

records maintained by the Contractor in relation to the
supply of the
Goods and/or
Services. The Contractor shall assist
NHS
Supply Chain

or any party authorised by
NHS
Supply Chain

(as the case
may be) in the conduct of the

audit.

11.9

If the performance of any Contract by the Contractor is delayed by
reason of any act or default on t
he part of
NHS
Supply Chain

the
Contractor shall be allowed a reasonable extension of time for completion
of the
provision of the Goods and/or
Servi
ces so affected.

11.10

NHS
Supply Chain

s rights under
this
Clause

11
are without prejudice to
any other rights or remedies
NHS
Supply Chain

may be entitled to.

11.11

If required by
NHS
Supply Chain
, the Parties shall co
-
operate in sharing
information and developing p
erformance measurement criteria with the
object of improving the Parties’ efficiency. Any such agre
ements shall be
fully recorded i
n Writing by
NHS
Supply Chain
.

12.

Insurance

12.1

The Contractor shall maintain with e
ffect from the
Framework
Commencement Date and thereafter at all times throughout
the Term
,

the term of
any Contract and for a period of 6 years following the expiry
of the Term or the term of any Contract
,
the

Required Insurances.


12.2

The Contractor shall co
mply with all requirements of the
providers

of the
Required Insurances and shall not take any action or fail to take any
reasonable action or permit anything to occur which might entitle such
insurers to either refuse to pay any claim under any of the Requ
ired
Insurances or to avoid or seek to avoid any of the Required Insurances.

12.3

The Contractor shall provide, to
NHS
Supply Chain

and/or the Customer

annually
:

12.3.1

details (in a form reasonably required by
NHS
Supply Chain

and/or the Customer
) of the cover provid
ed under the Required
Insurances; and

12.3.2

evidence that
:

(a)

the premiums payable under the Required
Insurances have been paid; and

(b)

that such insurances are in full force and effect.



31


12.4

Evidence of renewal in relation to any of the Required Insurances shall be
forwar
ded to
NHS
Supply Chain

and/or the Customer
as soon as possible
but in any event
on or before the renewal date.

12.5

If the Contractor is in breach of

C
lause
12.1
,
NHS
Supply Chain

may pay
any premiums required to keep such insuranc
e in force or itself procure
such insurance and may, in either case, recover such amounts from the
Contractor on demand

in Writing
.


13.

Equality

13.1

The Contractor shall not:


13.1.1

discriminate within the meaning of the

E
quality Act 2010;

or

13.1.2

contravene any other enactment relating to discrimination in
employment and shall take all reasonable steps to secure the
observance of this clause by all Contractor Personnel employed
in the performance of this
Framework Agreement
.

13.2

Th
e Contractor shall notify
NHS
Supply Chain

immediately of any
investigation of or proceedings against the Contractor brought under th
e

legislation s
et out

in Clause

13
.1

and shall cooperate fully and promptly
with any requests of the person or body conduct
ing such investigation or
proceedings, including allowing access to any documents or data
required, attending any meetings and providing any information
requested.

13.3

The Contractor shall indemnify
NHS
Supply Chain

and the relevant
Customer

against all costs,

claims, charges, demands, liabilities,
damages, losses and expenses incurred or suffered by
NHS
Supply Chain

and/or the relevant Customer

arising out of or in connection with any
investigation conducted or any proceedings brought under the

legislation

se
t out in Clause

13
.1

due directly or indirectly to any act or omission by
the Contractor

or Contractor Personnel
.

13.4

The Contractor shall impose on any
Contractor Personnel

obligations
substantially similar to those imposed on the Contractor by this Clause
13
.

14.

Assignment

and sub
-
contracting

14.1

The Contractor shall not assign, novate, sub
-
contract or otherwise
dispose of the whole or any part of any Co
ntract or this Framework
Agreement without the prior consent
i
n Writing of
NHS
Supply Chain

(and
the relevant Customer in the case of a Contract where the Customer is
not
NHS
Supply Chain
).



32


14.2

With the exception of the carriage of Goods to the Location, the
C
ontractor shall not sub
-
contract the production or supply of any Goods

and
/
or
Services without the previous consent
i
n Writing of
NHS
Supply
Chain
, such consent not to be unreasonably withheld or delayed.

14.3

The Contractor acknowledges and agrees that
,

by way

of illustration only
and without restricting or fettering
NHS
Supply Chain

s right to withhold
its consent on reasonable grounds
,

it shall be reasonable for
NHS
Supply
Chain

to withhold its consent where the sub
-
contracting of the production
or supply of
Goods

and
/
or
Services would be contrary to law or contrary
to public or government policy or contrary to public morality and decency
or which is not in the national inte
rest.

14.4

If with
NHS
Supply Chain

s consent
pursuant to Clause
14.2

the
Contractor sub
-
contracts the production or supply of any Goods

and
/
or
S
ervices, every act or omission of the sub
-
contractor shall for the
purposes of the Contract be deemed to be the act or omission of the
Contractor and the Contractor shall be
liable to
NHS
Supply Chain

thereafter as if such act or omission had been committed or omitted by
the Contractor itself.

15.

Pre
-
Contractual Statements

15.1

No

statements made by or on behalf of
NHS
Su
pply Chain

at any tim
e
before the

Invitation to Tender and any

C
ompetition shall add to or vary
this
Framework
Agreement

or any Contract

or be of any force or effect
unless any suc
h pre
-
contractual statements are expressly set out in this
Framework Agreeme
nt

or any Contract
. The Contractor waives any right
it may have to make any claim whatsoever in connection with any non
-
fraudulent pre
-
contractual st
atements made by or on behalf of
NHS
Supply Chain
. This waiver shall be unconditional and irrevocable, but

it is
expressly agreed that it shall not exclude any liability of
NHS
Supply
Chain

for pre
-
contractual statements made fraudulently.

16.

Termination

16.1

NHS
Supply Chain

may terminate
this Framework Agreement or an
y
Contract (in
each case in
whole or in part)
with immediate effect
by
serving notice
in Writing
on th
e Contractor in any of the following
circumstances:
-

16.1.1

a material failure by the Contractor to perform any material
obligation of the Contractor under the
relevant Contract or this
Framework Agreement (and

for the avoidance of doubt failure
to