Terms and conditions - General

Terms and Conditions of purchase of goods and services

1. Definitions and interpretation

1.1 In these terms and conditions ('the Conditions') the following terms have the following meanings:

'the Contract' means the Order and these Conditions together with any other document specified or attached to the Order with the Gallery's agreement;
'the Goods' means any goods to be supplied to the Gallery by the Supplier (or by any of the Supplier's sub-contactors) pursuant to or in connection with the Order;
'the Order' means the order document issued by the Gallery to the Supplier by post, fax or electronic means;
'the Premises' means land or buildings owned or occupied by the Gallery where the Goods/Services must be delivered/performed pursuant to or in connection with the Order;
'the Gallery' means the Board of Trustees of the National Portrait Gallery or National Portrait Gallery Company Limited (whose registration number is 06015724);
'the Services' means the work to be carried out by the Supplier (or by any of the Supplier's sub-contactors) pursuant to or in connection with the Order;
'the Supplier' means the supplier named on the Order.

1.2 The interpretation and construction of the Contract shall be subject to the following:

1.2.1 a reference to any statute, enactment, order, regulation, bye-law or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation, bye-law or other similar instrument as subsequently amended or re-enacted;

1.2.2 the headings within these Conditions are for ease of reference only and shall not affect the interpretation or construction of the Conditions;

1.2.3 where the context allows, the masculine includes the feminine and neuter and the singular includes the plural and vice versa.

2. General

2.1 These Conditions apply in preference to and supersede any terms and conditions referred to, offered or relied on by the Supplier whether in negotiation or at any stage in the dealings between the Gallery and Supplier with reference to the Goods/Services to which the Contract relates. Without prejudice to the generality of the forgoing, the Gallery will not be bound by any standard or printed terms furnished by the Supplier in any of its documents unless the Supplier specifically states in writing, separately from such terms, that it intends such terms to apply and the Gallery acknowledges such notifications in writing.

2.2 Any quotation for Goods and/or Services provided by the Supplier constitutes an offer by the Supplier to provide the Goods and/or Services specified in it on these Conditions. The Contract will be formed by the Supplier signing and returning the Order issued by the Gallery or by the Supplier starting work on the Goods and/or Services at which point the Contract will be established. The Supplier's standard terms and conditions (if any) attached to, enclosed with or referred to in any quotation, specification or other document shall not govern this Contract.

3. Quality of the goods and services

3.1 Without any limitation to applicable legislation the Goods supplied under the Order must comply with the following terms which shall be conditions of the Order. The Goods must:
3.1.1 be of sound design and workmanship;
3.1.2 conform in all respects with the particulars specified in the Order and in any variations thereto;
3.1.3 be of satisfactory quality, fit for the purpose for which such goods are ordinarily used and fit for the particular purpose made known to the Supplier by the Gallery. The Gallery is relying on the skill and expertise of the Supplier in the supply of the Goods and execution of the Order;
3.1.4 comply in all respects with all applicable statutes, enactments, orders, regulations, bye-laws or other similar instrument in force from time to time.

3.2 Without any limitation to applicable legislation the Services supplied under the Order must comply with the following terms which shall be conditions of the Order. The Services must:
3.2.1 be carried out in a proper and workmanlike manner with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry for similar services. The Gallery is relying on the skill and expertise of the Supplier in the supply of the Services and execution of the Order;
3.2.2 be carried out in accordance with all descriptions and specifications provided by the Gallery to the Supplier; and
3.2.3 be carried out in accordance with all applicable statutory/local authority/Premises rules and regulations in force from time-to-time.

3.3 The provisions of this clause 3 shall survive any performance, acceptance or payment pursuant to this Contract and shall extend to any substituted or remedial Goods and/or Services provided by the Supplier.

3.4 The Gallery's rights under this Contract are in addition to the statutory terms implied in favour of the Gallery by the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 and any other relevant statute (as amended, re-enacted or extended from time-to-time).

4. Supplier responsibilities

4.1 The Supplier shall provide the Goods and/or Services in accordance with the specification set out in and/or attached to the Order and shall allocate sufficient resources and provide all tools and materials necessary to carry out the same. The Supplier's staff shall possess the skills, qualifications and competence appropriate to the tasks for which they are employed.

4.2 The Supplier shall be deemed to have satisfied itself as regards the nature and extent of the Goods/Services necessary to satisfactorily perform the Contract.

4.3 The Supplier shall:
4.3.1 co-operate with the Gallery in all matters relating to providing the Goods and/or Services;
4.3.2 notify the Gallery as soon as it becomes aware of any health and safety hazards or issues which arise in relation to providing the Goods and/or Services including but not limited to any changes in statutory/local authority legislation and rules;
4.3.3 obtain and at all times maintain all necessary licences and consents and comply with all relevant legislation in relation to providing the Goods and/or Services;
4.3.4 take all reasonable precautions to prevent any nuisance or inconvenience to the owners, tenants or occupiers of adjoining properties and to the public generally when present at the Gallery's Premises; and

4.5 The Supplier acknowledges and agrees that the Gallery is entering into this Contract on the basis of the specification set out in and/or attached to the Order which is accurate and complete in all material respects, and is not misleading (subject to all material respects and matters being discoverable by the Supplier).

5. The price

The price stated on the Order is FIRM. No price increase will be accepted by the Gallery unless agreed by it in writing prior to execution of the Order. The price shall be inclusive of the cost of carriage, expenses and disbursements, unless otherwise indicated on the Order.

6. Payment

6.1 Unless otherwise agreed in writing by the Gallery, the Supplier shall render a separate invoice (with VAT quoted separately (where applicable)) in respect of each consignment delivered under this Order. The invoice must quote the Order number. Subject to satisfactory performance by the Supplier of its obligations under the Order, payment shall be made 30 days after receipt of the Goods/Services or receipt of the correct invoice whichever is the later.

6.2 If any sum under the Contract is not paid when due then, without prejudice to the parties' other rights under the Contract, that sum shall bear interest from the due date until payment is made in full, both before and after any judgement, at 2% per annum over the National Westminster Bank's base rate. The Supplier is not
entitled to suspend deliveries of the Goods and/or Services as a result of any sums being outstanding.

7. Delivery/completion of the order

7.1 The Goods/Services shall be delivered to the place and at the time named on the Order or to such other place or at such other time notified by the Gallery. Any access to Premises and any labour and equipment that may be provided by the Gallery in connection with delivery shall be provided without acceptance by the Gallery of any liability whatsoever and howsoever arising and the Supplier shall indemnify the Gallery and the Crown in respect of any actions, suits, claims, demands, losses, charges, costs and expenses which the Gallery or the Crown may suffer or incur as a result of, or in connection with, any damage to property (real or otherwise) or in respect of any injury (whether fatal or otherwise) to any person occurring in the course of delivery or installation to the extent that any such damage or injury is attributable to any act or omission of the Supplier or any of its sub-contactors.

7.2 Where any access to the Premises is necessary in connection with delivery or installation the Supplier and any of its sub-contractors shall at all times comply with the reasonable requirements of the Gallery's Director or their authorised representative.

7.3 The Supplier shall at its own risk off-load and, if relevant, stack the Goods and, if relevant re-load, as directed by the Gallery.

7.4 The Goods shall be deemed to be delivered upon receipt of the Goods by the Gallery at the place named on the Order or to such other place notified by the Gallery.

7.5 The Services shall be considered complete when the Gallery is satisfied the Services have been completed in accordance with the Order.

7.6 The time of delivery shall be within a reasonable time or within the time (if any) specified on the Order in which case time is of the essence. Failure to deliver within the time promised or specified shall enable the Gallery (at its option), without prejudice to any other rights or remedies it may have, to

7.6.1 release itself from any obligation to accept and pay for the Goods/Services; and/or
7.6.2 to cancel all or part of the Order therefore; and
7.6.3 to recover from the Supplier any expenditure reasonably incurred by the Gallery in obtaining the Goods/Services in substitution from another supplier; and
7.6.4 to claim damages for any additional costs, losses or expenses incurred by the Gallery which are in any way attributable to the Supplier's failure to deliver the Goods/Services on the due date.

7.7 The Supplier shall not be entitled to make any additional charge to the Gallery in the event of the Supplier's failure to deliver the Goods at the place and time specified in the Order.

8. Inspection, rejection and guarantee

8.1 The Supplier shall permit the Gallery or his authorised representatives to make any inspections or tests during normal office hours that the Gallery may reasonably require and the Supplier shall afford all reasonable facilities and assistance free of charge at its premises. No failure to make a complaint at the time of such inspections or tests and no approval given during or after such inspections or tests shall constitute a waiver by the Gallery of any rights or remedies it may have in respect of the Goods/Services.

8.2 The Gallery may by written notice to the Supplier reject any of the Goods/Services which fail to meet the requirements specified in the Order. Such notice shall be given within a reasonable time after delivery/completion of the Goods/Services. If the Gallery shall reject any of the Goods/Services pursuant to this clause 8 the Gallery shall be entitled (without prejudice to its other rights and remedies):
a) to have the Goods (as quickly as possible) either repaired by the Supplier or (as the Gallery may elect) replaced by the Supplier with Goods which comply in all respects with the requirements specified in the Order;
b) to have the Services re-performed (as quickly as possible) by the Supplier so they comply in all respects with the requirements specified in the Order;
or
c) to obtain a refund from the Supplier in respect of the Goods/Services concerned.

8.3 The guarantee period applicable to the Goods shall be 12 months from putting into service or 18 months from delivery, whichever shall be shorter (subject to any alternative guarantee arrangements agreed in writing between the Gallery and Supplier). If the Gallery shall within such guarantee period or within 30 days
thereafter give notice in writing to the Supplier of any defect in any of the Goods as may have arisen during such guarantee period under proper and normal use the Supplier shall (without prejudice to any other rights and remedies which the Gallery may have) as quickly as possible remedy such defects (whether by repair or
replacement as the Gallery shall elect) without cost to the Gallery.

8.4 The guarantee period applicable to the Services covering workmanship shall be 12 months from the date of final payment for the Services.

8.5 Any Goods rejected or returned by the Gallery as described in clause 16.1 hereof shall be returned to the Supplier at the Supplier's risk and expense.

9. Property and risk

The Goods shall remain at the risk of the Supplier until delivery is complete (including off-loading, stacking and if relevant re-loading). If the Gallery specifies a time for delivery and the Supplier delivers the Goods outside that specified time then the Goods shall remain at the risk of the Supplier until the Gallery confirms receipt of the Goods. The property in the Goods shall without prejudice to any of the rights or remedies of the Gallery (including the Gallery's rights and remedies under clause 16 hereof) pass to the Gallery on delivery (unless payment for the Goods is made prior to delivery, when it shall pass to the Gallery once payment has been made and the Goods have been appropriated to the Contract).

10. Damage in transit

The Supplier shall free of charge and as quickly as possible either repair or replace (as the Gallery shall elect) any of the Goods damaged in transit or which having been placed in transit fail to be delivered to the Gallery within a reasonable time or within the time (if any) specified on the Order provided that:
a) in the case of damage to such Goods in transit the Gallery shall within 30 days of delivery give notice to the Supplier that the Goods have been damaged;
b) in the case of non-delivery the Gallery shall (provided that the Gallery has been advised of the dispatch of the Goods) within ten days of the notified date of delivery give notice to the Supplier that the Goods have not been delivered.

11. Labelling and Packaging

11.1 The Goods shall be packed and marked in a proper manner appropriate for their mode of transport and in accordance with the Gallery's instructions (if any) and any statutory requirements and any requirements of the carriers. In particular the Goods shall be marked with the Order number, the net, gross and tare weights, the name of the contents shall be clearly marked on each container and all containers of hazardous goods (and all documents relating thereto) shall bear prominent and adequate warnings. The Supplier shall indemnify the Gallery and the Crown against all actions, suits, claims, demands, losses, charges, costs and expenses which the Gallery or the Crown may suffer or incur as a result of or in connection with any breach of this Condition 11.

11.2 All packaging materials will be considered non-returnable and may be destroyed unless otherwise agreed in writing.

12. Intellectual property rights and indemnity

12.1 It shall be a condition of the Order that, except to the extent that the Goods are made up in accordance with the designs furnished by the Gallery, none of the Goods will infringe any patent, trade mark, service mark, design right (whether registrable or not), copyright, database right or other right in the nature of industrial property of any third party in any country including but not limited to the UK and the Supplier shall indemnify the
Gallery and the Crown against all actions, suits, claims, demands, losses, charges, costs and expenses which the Gallery or the Crown may suffer or incur as a result of or in connection with any breach or alleged breach of this clause 12.

12.2 The Supplier with full title guarantee hereby irrevocably and unconditionally assigns to the Gallery the copyright and any related rights in the product of the Services throughout the world, whether vested, future or contingent, for the full term of such copyright (including any extensions, revivals or renewals), together with any accrued rights or causes of action. The Supplier shall do all such things and execute all such documents as may be necessary to confirm, perfect or enforce the title of the Gallery to the said copyright and related rights, upon the Gallery's request.

12.3 All rights (including ownership and copyright) in any specifications, instructions, plans, drawings, patterns, models, designs, photographs, images or other material furnished to or made available to the Supplier by the Gallery pursuant to the Order shall remain vested solely in the Gallery.

13. Health and safety

13.1 The Supplier represents and warrants to the Gallery that:

13.1.1 the Supplier has satisfied itself that all necessary tests and examinations have been made or will be made prior to delivery of the Goods/Services to ensure that the Goods/Services are designed and constructed so as to be safe and without risks to health and safety of persons using the same, and that it has made available to the Gallery adequate information about the use for which the Goods/Services have been designed and have been tested and about any conditions necessary to ensure that when put to use the Goods/Services will be safe and without risk to health;
13.1.2 the Supplier has ensured that all Services will be carried out in accordance with all applicable legislation that is in force at the time of performance and has ensured that all necessary consents have been obtained prior to carrying out the Services.

14. Indemnities and insurance

14.1 Without prejudice to any rights or remedies of the Gallery (including the Gallery's rights and remedies under clause 16 hereof) the Supplier shall indemnify the Gallery and the Crown against all actions, suits, claims, demands, losses, charges, costs and expenses which the Gallery or the Crown may suffer or incur as a result of or in connection with any damage to property (real or otherwise) or in respect of any injury (whether fatal or otherwise) to any person which may result directly or indirectly from any defect in the Goods/Services or the negligent or wrongful act or omission of the Supplier or any of its sub-contractors.

14.2 The Supplier shall indemnify the Gallery and the Crown against all actions, suits, claims, demands, losses, charges, costs and expenses which the Gallery or the Crown may suffer or incur as a result of or in connection with any breach of the Contract by the Supplier or any of its subcontractors.

14.3 The Supplier shall effect and maintain with a reputable insurance company a policy or policies of insurance covering public liability, product liability, professional indemnity, employee liability and any other liabilities of the Supplier which may arise in connection with the Order. The Supplier shall produce evidence of such policy or policies together with receipts or other evidence of payment of the latest premium due thereunder, to the Gallery on request.

15. Termination

15.1 Without prejudice to any rights or remedies of the Gallery under the Order or at law the Gallery may terminate the Contract by written notice having immediate effect if:

15.1.1 an order is made or a resolution is passed for the winding up of the Supplier, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the Supplier; or an order is made for the appointment of an administrator to manage the affairs, business and property of the Supplier, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Supplier, or notice of intention to appoint an administrator is given by the Supplier or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or a receiver is appointed over any of the Supplier's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Supplier, or if any other person takes possession of or sells the Supplier's assets; or the Supplier makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or the Supplier ceases, or threatens to cease, to trade; or

15.1.2 where the Supplier is an individual or a firm, the Supplier or any partner in the firm becomes bankrupt or has a receiving order or administration order made against him; or makes any compromise or arrangement with or for the benefit of his creditors; or appears unable to pay a debt within the meaning of Section 268 of the Insolvency Act 1986.

15.2 Without prejudice to either party's rights or remedies under the Order or at law either party may summarily terminate the Contract or terminate the provision of any part of the Contract by written notice to the other party having immediate effect if either party is in default of any obligation under the Contract and:

a) the breaching party has not remedied the default to the reasonable satisfaction of the other party within 5 working days (or such other period as may be specified) after service of written notice specifying the default and requesting it to be remedied; or
b) the default is not capable of remedy; or
c) the default is a fundamental breach of the Contract.

15.3 Upon termination of the Contract, however it arises, the Supplier must immediately and safely return to the Gallery all property belonging to the Gallery and items listed in sub-clause 12.2 which the Supplier may have in its possession or control.

15.4 Termination of this Contract, however it arises, shall not affect or prejudice the accrued rights and liabilities of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.

15.5 The following clauses shall remain in full force and effect not withstanding termination or expiration of the Contract:

Clause 12 - Intellectual Property Rights and Indemnity;
Clause 14 - Indemnities and Insurance;
Clause 19 - Confidentiality/Data Protection/Freedom of Information.

16. Remedies

16.1 Without prejudice to any other rights or remedies which the Gallery may have if the Services are not carried out or any Goods are not supplied in accordance with, or the Supplier fails to comply with, any of the terms of this Contract the Gallery shall be entitled to exercise any one or more of the following remedies at its discretion, whether or not any part of the Goods and/or Services have been accepted by the Gallery:

16.1.1 To rescind the Contract;
16.1.2 to reject the Goods and/or the Services (in whole or in part) and to return any Goods to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Goods so returned or for the Services so rejected shall be paid forthwith by the Supplier;
16.1.3 at the Gallery's option to give the Supplier the opportunity at the Supplier's expense either to remedy any defect in the Goods and/or Services or to supply replacement Services and/or Goods and carry out any other necessary work to ensure that the terms of this Contract are fulfilled;
16.1.4 to refuse to accept any further supply of the Services or delivery of the Goods but without any liability to the Gallery;
16.1.5 to carry out at the Supplier's expense any work necessary to make the Goods and/or the Services comply with the Contract; and
16.1.6 to claim such damages as may have been sustained in consequence of the Supplier's
breach or breaches of this Contract.

16.2 Wherever under the Contract any sum of money is recoverable from or payable by the Supplier, that sum may be deducted from any sum then due, or which at any later time may become due, to the Supplier under the Contract or under any other agreement or contract with the Gallery or with any department, agency or authority of the Crown.

17. Assignment and sub-contracting

17.1 The Supplier shall not without the prior written consent of the Gallery assign the benefit or burden of this Contract or any part thereof.

17.2 The Supplier shall not without the prior written consent of the Gallery sub-contract this Contract or any part thereof.

17.3 No sub-contracting by the Supplier shall in any way relieve the Supplier of any of its responsibilities under this Contract.

18. Notices

Any notices given under or pursuant to the Contract may be sent by hand or by post or by registered post or by the recorded delivery service or transmitted facsimile transmission or other means of telecommunication resulting in the receipt of a written communication in permanent form and if so sent or transmitted to the address of the party shown on the Order, or to such other address as the party may by notice to the other have substituted therefore, shall be deemed effectively given on the day when in the ordinary course of the means of transmission it would first be received by the addressee in normal business hours.

19. Confidentiality/Data Protection/Freedom of information

19.1 The Supplier shall keep confidential any information data or process connected with the Order and business of the Gallery and undertakes not to disclose or use the same (except in accordance with the provisions of this Order, or to the extent necessary for the satisfactory performance of this Order, or as may be required by law). The Supplier must not advertise or make any statement relating to the existence or performance of this Order without the prior written consent of the Gallery (such consent not to be unreasonably withheld).
19.2 The Gallery is committed to protecting the Supplier's privacy. All personal data provided to the Gallery pursuant to performance of this Order will be held securely by the Gallery and (unless the Supplier otherwise agrees) only be used to administer this Order. It will not be passed to any third parties unless the Supplier agrees. The Supplier shall conform fully with the Data Protection Act 1998 to the extent that it applies to the Supplier's performance of this Order.

19.3 The Supplier acknowledges that the Gallery is subject to the requirements of the Code of Practice on Access to Government Information and the Freedom of Information Act 2000 and must cooperate with the Gallery to enable the Gallery to comply with these information disclosure requirements.

20. Variations

No variation of the Contract shall be valid unless made in writing and signed by or on behalf of both parties.

21. Entirety

The Order and any attachments referred to therein shall constitute the entire agreement between the parties and no other terms and conditions shall apply unless agreed in writing between the parties in accordance with clause 20.

22. Severance

If any provision of the Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall be severed from the Contract and shall not affect the other provisions of the Contract which shall remain in full force and effect.

23. Failure or delay

Failure or delay by the Gallery in enforcing or partially enforcing its rights under the Contract shall not be construed as a waiver of such rights.

24. Force majeure

Neither party shall be liable to the other party by reason of any failure or delay in performing its obligations under the Contract which is due to Force Majeure, where there is no practicable means available to the party concerned to avoid such failure or delay. For the purposes of this clause, "Force Majeure" means any event or occurrence which is outside the control of the party concerned and which is not attributable to any act or failure to take preventive action by the party concerned, (but shall not include any industrial action occurring within that party's organisation or within any sub-contractor's organisation).

25. Contracts (Rights of third parties) Act 1999

For the purposes of the Contracts (Rights of Third Parties) Act 1999 the parties do not confer or purport to confer on any third party any benefit or any right to enforce any term of the Contract under the Contracts (Rights of Third Parties) Act 1999 (save where may be expressly stated otherwise in the Contract).

26. Status of the parties

Nothing in this Order shall be construed as creating a partnership, a contract of employment or a relationship of principal and agent between the Gallery and the Supplier.

27. Sustainability and the environment

27.1 The Supplier shall comply in all material respects with applicable environmental laws and regulations in force from time to time in relation to the Goods/Services supplied under the Contract. Where the provision of any such legislation are implemented by the use of voluntary agreements, the Supplier shall comply with such agreements as if they were incorporated into English law subject to those voluntary agreements being cited in the Contract. Without prejudice to the generality of the foregoing, the Supplier shall:

27.1.1 Comply with all reasonable stipulations of the Gallery aimed at minimising the packaging in which the Goods are supplied and label all Goods and the packaging of those Goods, to highlight environmental and safety information as required under applicable UK and EU legislation;

27.1.2 Unless otherwise agreed with the Gallery, insofar as any Goods/Services supplied under the Contract comprise or include electrical or electronic equipment, manage the said equipment and associated consumables at end of life to facilitate recovery, treatment and recycling and provide any information which the Gallery may reasonably require regarding the costs of such activity;

27.1.3 Unless otherwise agreed with the Gallery, insofar as any Goods/Services supplied under the Contract comprise or include materials and consumables of any nature whatsoever, manage the said material and associated consumables at end of life to facilitate recovery, treatment and recycling and provide any information which the Gallery may reasonably require regarding the costs of such activity;

27.1.4 Promptly provide all such information regarding the environmental impact of any Goods/Services supplied or used under the Contract as may reasonably be required by the Gallery from time to time;

27.1.5 Be committed to efficiently using and where possible reducing its use of natural resources whilst operating and, especially during its delivery of the Goods/performance of the Services under the Contract

28. Governing law and jurisdiction

This Contract shall be governed by and construed in accordance with English law and the Supplier hereby submits to the jurisdiction of the English courts. The submission to such jurisdiction shall not (and shall not be construed so as to) limit the right of the Gallery to take proceedings against the Supplier in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.


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