TERMS AND CONDITIONS OF PURCHASE
Not withstanding anything to the contrary, if the Buyer and the Seller have entered into a bespoke agreement in respect of the Goods and Services described in the Purchase Order, the bespoke agreement shall apply to the exclusion of these Conditions. Subject to the foregoing, these Conditions shall govern the Contract to the exclusion of any other terms or conditions (including, but without limitation, any terms and conditions of the Seller whether on any quotation given by the Seller or on the Seller's acceptance of this Purchase Order) unless specifically agreed otherwise in writing by both parties. Any conditions or stipulations to the contrary are hereby excluded.
1. Definitions in the context of these Conditions:
(a) "Buyer" means Allwyn Entertainment Ltd.
(b) "Commission" means the Gambling Commission.
(c) "Conditions" means the standard terms and conditions set out in this document including the Schedule and (unless the contract otherwise requires) any special terms and conditions agreed in writing between the Buyer and the Seller.
(d) "Contract" means the contract between the Buyer and the Seller consisting of the Purchase Order, these Conditions, the Specification and any other documents specified in the Purchase Order or contained in a letter from the Buyer to the Seller. A document or condition neither specified in the Purchase Order nor contained in a letter from the Buyer to the Seller shall not be part of the Contract and any condition or stipulation to the contrary is hereby excluded.
(e) "Goods" means the articles or things to be provided by the Seller as specified in the Purchase Order or otherwise agreed by the Buyer in writing (including their packaging materials, containers and accompanying pallets).
(f) "Intellectual Property Rights" means any intellectual property rights of any nature whatsoever existing in any part of the world including, without limitation, patents, trade marks, service marks, registered designs, applications for any of the foregoing, copyright, rights in designs, inventions, confidential information and know how.
(g) "Licence" means the current licence from time to time granted to the Buyer under section 5 of The National Lottery Act.
(h) "National Lottery Act" means the National Lottery etc Act 1993 as amended, modified or re-enacted from time to time and any subordinate legislation, regulations and directions made thereunder or in respect thereof.
(i) "Purchase Order" means the Buyer's purchase order attached to these Conditions or otherwise provided by the Buyer to the Seller.
(j) "Sample" means a sample of the Goods intended to show what the whole is like.
(k) "Seller" means the person, firm or company identified on the face of the Purchase Order as seller of the Goods and/or Services.
(l) "Services" means the work described in the Purchase Order or otherwise agreed by the Buyer in writing to be provided by the Seller.
(m) "Specification" means the specification for the Goods and/or Services agreed in writing between the Buyer and the Seller.
(n) "WEEE" means the Waste Electrical and Electronic Equipment Regulations 2006 (as amended from time to time).
2. Acceptance of the Purchase Order
Acceptance of the Purchase Order (whether by delivery of the Goods and/or Services or otherwise) will be deemed to bind the Seller to these Conditions and no Goods or Services shall be supplied or performed by the Seller, its employees, agents or representatives except in accordance with these Conditions. The Buyer accepts no responsibility for Goods or Services unless authorised by the Buyer's Purchase Order.
(a) The quantity, quality and description of the Goods and Services shall be as set out on the face of the Purchase Order and/or in the Specification. In the absence of a Specification, the Goods shall be supplied to the same specification as any Sample approved by the Buyer and by reference to any written description applied to those Goods.
(b) Any Specification, whether supplied by the Buyer to the Seller or specifically produced by the Seller for the Buyer in connection with the Contract, together with all Intellectual Property Rights in the Specification, shall be the Buyer's exclusive property. The Seller shall not use the Specification except as required for the purpose of fulfilling the Contract and shall not disclose the Specification to any third party except to the extent that it is or becomes public knowledge through no fault of the Seller or such disclosure is required for the purpose of fulfilling the Contract.
(c) On the Buyer's request, all Specifications (and any copies thereof) must be returned to the Buyer on completion of the Contract (or at such other time requested by the Buyer).
(d) The Seller shall comply with all applicable laws, regulations and other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and the performance of the Services.
(e) The Seller shall not unreasonably refuse any request by the Buyer to inspect and test the Goods during manufacture, processing or storage at the Seller's premises or those of any third party prior to despatch, and the Seller shall provide the Buyer with all facilities reasonably required for inspecting and testing.
(f) If, as a result of inspection or testing, the Buyer is not satisfied that the Goods will comply in all respects with the Contract, and the Buyer so informs the Seller within 14 days of inspection or testing, the Seller shall take such steps as are necessary to ensure compliance. If, on a second inspection or testing of the Goods, the Buyer is not satisfied that the Goods comply in all respects with the Contract, the Buyer shall be entitled to terminate the Contract immediately on giving the Seller written notice.
(g) The Seller shall procure that any of its employees or agents involved in providing Services on the premises of the Buyer comply with the Buyer's directions and requests relating to safety, security and personal conduct.
(h) The Goods shall be marked in accordance with the Buyer's instructions (if any) and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition.
(a) The price of the Goods and Services shall be as stated on the face of the Purchase Order.
(b) Unless otherwise stated, the price shall be inclusive of any applicable value added tax (VAT), all charges for packaging, packing, shipping, carriage, insurance and delivery of the goods to the address for delivery, and any other duties or levies.
(c) No increase in the price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) nor any changes to the delivery (or installation) date made without the Buyer's prior consent in writing.
5. Submission of Invoices and Payment
(a) The Seller shall be entitled to invoice the Buyer when specified on the Purchase Order (or, if not stated on the Purchase Order, on or at any time after delivery of the Goods or completion of the Services) and the Seller shall ensure each invoice clearly states the relevant Purchase Order number. Any invoice which does not state the relevant Purchase Order will be rejected by the Buyer and will not be paid.
(b) Unless otherwise stated on the face of the Purchase Order, the Buyer shall pay the price of the Goods and the Services within 30 days after the end of the month of receipt by the Buyer of a proper and undisputed invoice from the Seller or within 14 days after acceptance of the Goods by the Buyer in accordance with Condition 6(i), whichever is the later. If the Buyer fails to make payment in full by the due date, the Seller shall notify the Buyer of non-payment. If the Buyer fails to make payment in full within 10 working days of receiving such notification, the Seller shall be entitled to charge the Buyer interest in respect of the late payment of any sums due under the Purchase Order at the annual rate of 2% above the base rate from time to time of Barclays Bank plc from the due date thereof until payment.
(c) The Buyer shall be entitled to set off against the price any sums owed by the Seller to the Buyer.
6. Delivery and Acceptance of the Goods and Services, and WEEE
(a) The Goods shall be delivered to (and, where required, installed) and the Services shall be performed at the address for delivery notified by the Buyer to the Seller.
(b) The Seller shall deliver (and, where applicable, install) the Goods and/or perform the Services on the date or within the period of time stated on the face of the Purchase Order or otherwise agreed by the Buyer in writing. Where no date or period of time has been agreed at the date of the Purchase Order being issued, the Buyer shall notify the Seller within a reasonable time of the entering into the Contract of the required delivery date/period of time.
(c) The Seller shall ensure for security purposes that the address label on postal/small packages clearly shows the Seller's name and the Purchase Order number.
(d) The time of delivery (and installation) of the Goods and of performance of the Services is of the essence of the Contract. If delivery or performance dates are not met, the Buyer reserves the right to terminate the Contract with immediate effect by giving written notice to the Seller and without the Buyer being liable to the Seller for breach of contract or otherwise.
(e) Where applicable, the Seller shall supply the Buyer in good time with any instructions or other information required to enable the Buyer to accept the Goods or Services or test the Goods for the purposes of accepting the Goods.
(f) The Seller shall promptly communicate to the Buyer all available information regarding any potential hazard or fault known or believed to exist in the transport, handling or use of the Goods.
(g) The Buyer shall not be obliged to return to the Seller any packaging or packaging materials for the Goods, whether or not any Goods are accepted by the Buyer in accordance with Condition 6.
(i). However, if requested by the Buyer, the Seller shall collect any such packaging or packaging materials from the UK location specified by the Buyer at no additional cost.
(h) The Buyer shall be entitled to reject any Goods or Services which are faulty or do not conform to the Specification or are not in accordance with the Sample or any quality standard or description specified in the Purchase Order or otherwise communicated by the Buyer to the Seller in writing (or any other quality standard or description which might be reasonably expected of the Goods or Services).
(i) The Buyer shall not be deemed to have accepted any Goods unless the Buyer has a reasonable time to inspect them following delivery or installation or, if later, within a reasonable time after any latent defect in the Goods has become apparent. The Buyer may return the rejected Goods at the Seller's risk and expense.
(j) If requested by the Buyer, the Seller shall be responsible for the collection, treatment, recovery and environmentally sound disposal of the Goods in accordance with WEEE at no additional cost to the Buyer.
7. Property and Risk
(a) Risk of damage to or loss of the Goods shall remain with the Seller until acceptance by the Buyer in accordance with Condition 6(i).
(b) The property in the Goods shall pass to the Buyer absolutely upon completion of delivery at the address for delivery, unless the Buyer pays in whole or in part for the Goods before delivery, when it shall so pass to the Buyer once such payment has been made.
8. Warranties and Liability
(a) The Seller warrants to the Buyer that the design, construction and quality of any Goods and Services to be manufactured or supplied under the Contract:
(i) will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) as described and fit for any purpose held out by the Seller or made known to the Seller in writing at the time the Purchase Order is placed or for which such Goods are commonly used;
(ii) will be free from defects in design, material and workmanship;
(iii) will correspond with the Specification and (where applicable) the Sample; and
(iv) will comply in all respects with all statutes, statutory rules, orders and regulations which may be in force at the time.
(b) The Seller further warrants that:
(i) it shall comply with all applicable regulations and other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and the performance of the Services;
(ii) it has the full power and authority to enter into and perform the Contract;
(iii) the Services will be performed in a manner consistent with the reputation and integrity of the National Lottery; and
(iv) the Services will be performed by appropriately qualified and trained personnel, with all reasonable skill and care and in accordance with generally recognised commercial practices, and to such a high standard of quality as it is reasonable for the Buyer to expect in all the circumstances.
(c) Without prejudice to any other remedy, if any Goods or Services are not supplied or performed in accordance with the Contract, then the Buyer shall be entitled:
(i) to require the Seller to repair the Goods or to supply replacement Goods or Services in accordance with the Contract within 7 days of such request by the Buyer; or
(ii) at the Buyer's sole option, and whether or not the Buyer has previously required the Seller to repair the Goods or to supply any replacement Goods or Services, to terminate the Contract and require the repayment of all or any part of the price which has been paid for those Goods and/or Services.
(d) The Seller shall indemnify the Buyer, and keep it indemnified, in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with:
(i) breach of any warranty given by the Seller in relation to the Goods or the Services;
(ii) any claim that the Goods or the Services infringe, or their importation, use or resale, infringes the Intellectual Property Rights of any other person anywhere in the world; and
(iii) any act or omission of the Seller or of its employees, agents or sub-contractors in supplying, delivering and installing the Goods or in connection with performance of the Services.
(e) The Seller acknowledges that the Buyer will be relying on the Seller's skill, expertise and experience and upon the accuracy of all representations or statements made and the advice given by the Seller in connection with the provision of the Services. Accordingly, the Seller agrees to indemnify the Buyer against all loss, damage, costs and expenses (including legal expense) incurred or suffered by the Buyer as a result of such reliance.
(f) Nothing in the Contract excludes or limits the liability of either party for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.
(g) Neither party shall be liable to the other for any indirect or consequential loss or damage, whether such losses were foreseen, foreseeable, known or otherwise.
(h) The Seller agrees to take out and maintain during the term of the Contract adequate insurance in respect of its liabilities arising out of or in connection with the Contract with a reputable insurance office. The Seller shall provide the Buyer with a copy of the insurance policy(ies) on request.
8a. Compliance requirements
8a.The Seller shall:
(a) not engage in any activity, practice or conduct which would constitute either:
(i) a UK tax evasion facilitation offence under section 45
(1) of the Criminal Finances Act 2017; or
(ii) a foreign tax evasion facilitation offence under section 46
(1) of the Criminal Finances Act 2017;
(b) promptly report to the Buyer any request or demand from a third party to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017 or any suspected tax evasion offences or facilitation of tax evasion offences, whether under UK law or under the law of any foreign country, in connection with the performance of the Contract;
(c) ensure that all persons associated with the Seller or other persons who are performing services or providing goods in connection with the Contract comply with this Condition 8a; and
(d) on request from the Buyer, certify to the Buyer in writing compliance with this Condition 8a.1 by the Seller and all persons associated with the Seller or other persons who are performing services or providing goods in connection with the Contract. The Seller shall provide such supporting evidence of compliance as the Buyer may reasonably request.
8a.2 Failure to comply with Condition 8a.1 may result in the immediate termination of the Contract.
8a.3 In performing its obligations under the Contract, the Seller shall
(a) comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Modern Slavery Act 2015;
(b) not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4 of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK;
(c) include in contracts with its direct subcontractors and suppliers provisions which are at least as onerous as those set out in this Condition 8a.3.
(d) notify the Buyer as soon as it becomes aware of any actual or suspected slavery or human trafficking in a supply chain which has a connection with the Contract;
(e) maintain a complete set of records to trace the supply chain of all Goods and/or Services provided to the Buyer in connection with the Contract; and permit the Buyer and its third party representatives to inspect the Seller's premises, records, and to meet the Seller's personnel to audit the Seller's compliance with its obligations under this Condition 8a.3.
8a.4 The Seller represents and warrants that at the date of the Contract it has not been convicted of any offence involving slavery and human trafficking, nor has it been the subject of any investigation, inquiry or enforcement proceedings regarding any offence or alleged offence of or in connection with slavery and human trafficking.
8a.5 The Buyer may terminate the Contract with immediate effect by giving written notice to the Seller if the Seller commits a breach of Condition 8a.3 or 8a.4.8a.6 In performing its obligations under the Contract, the Seller shall:
(a) comply with all applicable bribery and corruption laws, statutes, regulations and codes from time to time in force including but not limited to the Bribery Act 2010;
(b) not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct were carried out in the UK;
(c) include in contracts with its direct subcontractors and suppliers provisions which are at least as onerous as those set out in this Condition 8a.6.
(d) notify the Buyer as soon as it becomes aware of:
(i) any breach of the Bribery Act 2010 (or any equivalent laws, statutes, regulations and codes in any jurisdiction) by it or any of its affiliates, personnel, subcontractors and/or suppliers;
(ii) any request or demand for any undue financial or other advantage of any kind received by the Seller or any of its affiliates, personnel, subcontractors and/or suppliers in connection with the performance of the Contract; and/or
(iii) any other form of actual or suspected bribery or corruption which has a connection with the Contract.
8a.7 The Seller represents and warrants that at the date of the Contract it has not been convicted of any offence involving bribery or corruption; nor has it been the subject of any investigation, inquiry or enforcement proceedings regarding any offence or alleged offence of or in connection with bribery or corruption.
8a.8 The Buyer may terminate the Contract with immediate effect by giving written notice to the Seller if the Seller commits a breach of Condition 8a.6 or 8a.7.
8a.9 The Seller shall, at all times, comply with the Buyer's Supplier Code of Conduct, its Social Value Policy and any other policies notified by the Buyer (each, as may be amended from time to time).
9. Force Majeure
(a) Neither party shall be liable to the other nor be deemed to be in breach of the Contract by reason of any delay in performing or exercising, or any failure to perform or exercise, any of their obligations or rights under the Contract, if the delay or failure was beyond their reasonable control ("Force Majeure"), subject to the affected party complying with its obligations under Condition 9(c).
(b) Without prejudice to the generality of the foregoing, the following shall be regarded as events of Force Majeure (to the extent that they are beyond the reasonable control of the party relying on the event of Force Majeure):
(i) Act of God, explosion, flood, tempest, fire or accident;
(ii) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(iii) acts, restrictions, regulations, bylaws, prohibitions, or measures of any kind on the part of any governmental, parliamentary or local authority;
(iv) import or export embargoes; or
(v) strikes, lock-outs or other industrial actions or trade disputes which could not be reasonably resolved by the affected party.
(c) The party affected by a Force Majeure event shall advise the other party as soon as practicable of the same and when such Force Majeure event no longer prevails. For the avoidance of doubt, if a party is affected by a Force Majeure event, that party shall nevertheless use its reasonable endeavours to perform its obligations as soon as practicable and shall continue to perform any unaffected obligations. Where a Force Majeure event disrupts the delivery of any Goods and/or the performance of any Services, the Buyer will not be obliged to pay for such Goods or Services until they have been properly delivered or performed.
(d) In the event of Force Majeure causing the Seller to delay delivery of Goods or performance of Services for more than 30 days the Buyer reserves the right to terminate the Contract on giving the Seller 14 days' written notice without the Buyer being liable to the Seller for breach of contract or otherwise.
(a) The Seller will keep confidential and not disclose (except as required for the performance of its obligations under the Contract) all information of a confidential nature disclosed to it by the Buyer pursuant to or in connection with the Contract (including without limitation all trade secrets, financial, operating, economic, technical, engineering, programming and other lottery know-how) and any copies or records thereof, whether presented orally or in writing, in any medium, directly or indirectly and whether marked as confidential at the time of disclosure or which ought reasonably to be considered confidential given the nature of the information or, the circumstances surrounding disclosure.
(a) In the event the Licence is terminated or is revoked without a new licence being granted or awarded to the Buyer, the Buyer shall be entitled, at its discretion, to terminate the Contract immediately and without liability. Such termination in itself shall not constitute a breach of the Contract by either party to the Contract.
(b) Without prejudice to any other provisions for termination contained in these Conditions or any other remedy, the Buyer shall be entitled to terminate the Contract for convenience in respect of all or part only of the Goods and/or the Services by giving notice to the Seller at any time prior to delivery, in which event the sole liability of the Buyer shall be to pay to the Seller either:
(i) a fair and reasonable price for all agreed work completed or in progress at the time of termination and subsequently received by the Buyer; or
(ii) any reasonable costs already incurred by the Seller in arranging delivery of the Goods or Services in respect of which the Buyer has exercised its right of termination (and where such costs cannot be avoided by the Seller).For the avoidance of doubt (and notwithstanding the Buyer's liability as set out above) the Buyer shall be entitled to a prompt refund of any monies paid to the Seller in respect of the Goods and Services for which the Contract has been terminated.
(c) The Buyer shall be entitled, without prejudice to any other of its rights, to terminate the Contract:
(i) in accordance with Condition 3 (f), 6 (d) or 9 (d);
(ii) where the Seller is providing Services, on giving the Seller two weeks' written notice in writing.
(d) The Buyer shall be entitled, without prejudice to any other of its rights, to terminate the Contract immediately without the Buyer being liable to the Seller for breach of contract or otherwise by giving notice to the Seller at any time if:
(i) in relation to a Seller who is an individual:
(aa) the Seller fails to pay a debt or debts which is or are in the aggregate equal to or in excess of the bankruptcy level from time to time a statutory demand in respect thereof having been neither complied with nor set aside;
(bb) a bankruptcy petition is presented which is not discharged within 14 days;
(cc) an interim receiver is appointed in respect of the Seller's property or any of it;
(dd) a bankruptcy order is made;
(ee) Seller makes an arrangement or compounds with his creditors generally; or
(ff) Seller applies for an interim order under section 253 of the Insolvency Act 1986 in connection with a voluntary arrangement under the Insolvency Act 1986.
(ii) in relation to a Seller which is a company:
(aa) an order is made by a court of competent jurisdiction, or a resolution is passed, for the winding-up of Seller (otherwise than a members' voluntary winding-up in the course of a reorganisation or restructuring) and such petition is not discharged within 14 days;
(bb) a petition is presented to a court of competent jurisdiction for an order for the administration of Seller;
(cc) a manager, receiver, administrative receiver, liquidator, administrator, trustee or other similar officer is appointed over the whole or a substantial part of the undertaking, property or assets of Seller;
(dd) any encumbrancer takes possession of the whole or substantial part of the undertaking, property or assets of Seller;
(ee) Seller convenes a meeting of its creditors or makes or proposes any arrangement or composition with, or any assignment for the benefit of, its creditors;
(ff) Seller is dissolved, ceases to exist or threatens to exist; or
(gg) Seller takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
(iii) the Seller (whether an individual or a company) is in breach of any of its obligations under the Contract which the Buyer deems to be material, or fails to remedy any other breach of an obligation after receipt of a notice from the Buyer requesting such remedy or repeating any such breach of an obligation within a period of 30 days from the date of such notice.
(e) Termination of the Contract, howsoever arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
(f) For the avoidance of doubt, the Buyer shall not be liable for any loss to the Seller including consequential loss incurred by the Seller in respect of a termination under this Condition 11.
12. Assignment and Subcontracting
(a) The Seller may not assign, novate or otherwise transfer or dispose of any of its rights or obligations under the Contract without the prior written consent of the Buyer.
(b) The Buyer may assign, novate, transfer or sub-contract any of its rights or obligations under the Contract to any third party. The Seller must execute any document reasonably required by the Buyer to give effect to any such assignment, novation, transfer or sub-contracting.
(c) The Seller may not subcontract the performance of any of its obligations under the Contract without the Buyer's prior written consent. The Seller will be responsible for any acts and omissions of its sub-contractors as if they were the Seller's own acts or omissions. The Seller shall procure that any agreement with a sub-contractor or supplier in connection with the supply of Goods or Services contains the same undertakings by the sub-contractor or supplier as those given by the Seller in Conditions 14 and 18 of the Contract.
13. Intellectual Property Rights
(a) All Intellectual Property Rights in any artwork designed by the Seller at the Buyer's request for the supply of promotional material (including in any artwork created to develop the final artwork and any promotional materials), in any inventions, in other confidential information or artwork and promotional material conceived, originated, developed or made by the Seller for the Buyer during the Contract, or in any other work or materials arising under the Contract in which Intellectual Property Rights subsist (together referred to as the "Works"), shall belong to the Buyer and the Buyer shall be the sole beneficial owner of the entire right, title and interest in such Works. The Seller hereby assigns all such Intellectual Property Rights (and any other right, title and interest in and to the Works) to the Buyer.
(b) The Seller shall (at its expense) take such action and execute all documents, as may be necessary to give effect to Condition 13(a). The Seller further agrees to assist the Buyer in connection with any application for patent rights and to do all such acts and things as may be necessary or desirable in connection with any such assignment or assistance.
(c) Any plans, drawings, process information or the like (including any Specification) supplied by the Buyer to the Seller in connection with the Contract, and any information or reproductive films derived therefrom or otherwise communicated, shall be confidential and shall remain the property of the Buyer and shall not be published or disclosed to any third party or made use of by the Seller except for the purpose of implementing the Contract. Any plans, drawings, process information or the like supplied by the Buyer (together with any copies thereof) must be returned to the Buyer on completion of the Contract and the Seller agrees to keep confidential all such plans, drawings, process information or the like supplied by the Buyer during the course of and following termination (howsoever effected) of the Contract.
(d) The Seller shall indemnify the Buyer against all damages, losses and expenses arising as a result of any action or claim of infringement of Intellectual Property Rights of a third party in respect of the Goods, the Services and/or any Works.
(e) The Seller shall not be entitled to use any of the Buyer's or the Commission's Intellectual Property Rights (including without limitation the National Lottery name and crossed fingers logo and the Buyer's name and logo) without prior written approval from the Buyer.
14. National Lottery Licence Compliance Conditions
The Seller shall comply with the requirements of the Schedule.
15. Advertising and Marketing Services
Where Goods or Services consist of or relate to advertising and marketing services, the Seller shall:
(a) secure that all factual statements in any advertisement for the National Lottery or any constituent lottery or game or in any other material designed to encourage the purchase of tickets therein are true and capable of independent verification;
(b) secure that no unsolicited telephone calls are made or unsolicited facsimile transmissions are sent with a view to encouraging the purchase of tickets in a constituent lottery or game; and
(c) secure that no advertisement for the National Lottery or any constituent lottery or game includes the name of, or any images which are identifiable with, any person to whom money has been distributed under the provisions of Sections 25(1) and 25(1)(A) of the National Lottery Act, without the consent of that person.
16. Data Protection
It is not intended that the Seller will be required to access, process or use any personal data relating to the Buyer or its employees or customers (or any other person) under the Contract. If any such access, processing or use is required, the parties will agree appropriate arrangements to ensure compliance with relevant data protection legislation. The Seller shall ensure that its personnel do not attempt to access, process or use any personal data relating to the Buyer or its employees or customers (or any other person) without the prior written approval of the Buyer.
17. Contracts (Rights of Third Parties) Act 1999
Except as set out in the Schedule, a person who is not a party to the Contract may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
18. Access to records etc.
The Seller shall:
(a) permit the Buyer to inspect all data, information, software, hardware, procedures, event logs, transaction logs, audit trails, books, records, contracts and correspondence and any other items which are under the Seller's control and which the Buyer considers it necessary to inspect to determine whether the Seller has complied with the requirements of the Contract (the "Purpose");
(b) allow the Buyer to have access to any of the Seller's premises (on reasonable notice) as is necessary to enable the Buyer to inspect those items; and
(c) permit the Buyer or any person (whether or not a member of the Buyer's staff) authorised by it to conduct interviews with the Seller or any of the Seller's employees for the Purpose.
(a) Any notice required or permitted to be given by either party to the other under the Contract shall be in writing and may be delivered by hand, by registered or first class post or any other means specified by either party to the other.
(b) Each party's address for service of notices shall be the address set out on the Purchase Order or such other address as is specified in writing by one to the other.
(c) A notice shall be deemed to have been served in the case of hand delivery, when delivered (or if delivery is not during business hours, at 9.00am on the first business day following delivery) or in the case of first class or registered post, 48 hours after posting. To prove the giving of a notice it shall be sufficient to show it was despatched.
No waiver by the Buyer of any breach of the Contract or these Conditions by the Seller shall be considered a waiver of any subsequent breach of the same or any other provision.
(a) The Seller shall adhere to any directions of the Buyer that are necessary to enable the Buyer to comply with any obligations it may have to the Commission or any other regulatory body.
(b) Where the Goods are to be delivered or the Services provided in instalments, the Purchase Order and the Seller's acceptance of it will be treated as a single contract and will not be severable.
(c) Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
(d) The headings in these Conditions are for convenience only and shall not affect their interpretation.
(e) The Seller shall make no public announcement, statement or disclosure relating to the Contract without the Buyer's prior written consent.
(f) Save as otherwise expressly provided in the Contract, no variation of the Contract shall be valid unless in writing and signed by or on behalf of each of the parties.
(a) If any provision of the Contract is held by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
(b) If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
23. Governing Law and Jurisdiction
(a) The Contract and any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including any dispute or claim relating to non-contractual obligations) will be governed by and construed in accordance with English law.
(b) The Seller hereby irrevocably submits to the exclusive jurisdiction of the English Courts for the determination of disputes arising under the Contract (including any dispute or claim relating to non-contractual obligations).
(c) The Seller acknowledges that the Buyer submits to the non-exclusive jurisdiction of the English Courts and, accordingly, the Buyer shall have the exclusive right, at its option, to apply to the courts of any jurisdiction to settle any dispute arising under the Contract (including any dispute or claim relating to non-contractual obligations).
REQUIRED STANDARD TERMS
The Seller acknowledgesthat, under the terms of the Licence, the Buyer is required to ensure that allLottery Subcontracts (including the Contract and any sub-contract that the Sellerenters into under the Contract) comply with this Schedule. If there is aconflict between (i) any of the terms of this Schedule and (ii) any of theother terms in the Contract, the terms of this Schedule will prevail.
In this Schedule:
"Best Practice" means the standard to be expected of an experienced and professional person doing a particular thing and seeking to secure that the Seller's obligations under the Contract (including the provision of any Services) will be performed:
(a) with all due propriety;
(b) in a way that does not prevent or hinder the Buyer from protecting the interests of Participants (as defined in the Licence); and
(c) in a way which does notprevent or hinder the Buyer from maximising the amount being paid out of the net proceeds of the Lottery to Good Causes (as defined in the Licence).
"Licence Start Date" means the date on which the Licence starts.
"Lottery Confidential Information" means all information relating to the National Lottery operation, any Ancillary Activity, the Buyer, the Next Competition, the Next Licensee or the Commission which is not in the public domain.
"Lottery Data" means any data processed by or on behalf of the Buyer, the Seller or any Seller sub-contractor (including any relevant affiliate of the Seller), in either case in connection with the operation of the National Lottery (including the operation or promotion of any Game) or any Ancillary Activity, including the personal data of any Participant.
"Lottery Information" means any information in any form whatsoever which relates to:
(a) the National Lottery, the operation of the National Lottery or of any Game, or any Ancillary Activity; and/or
(b) any other information the Commission may require concerning the Buyer or its business or affairs.
"Lottery IP" means all IP (and rights therein) which is used, or necessary, for the operation or promotion of the National Lottery, any Game, or any Ancillary Activity, in each case, for the avoidance of doubt, irrespective of the identity of any person who owns or holds rights to such IP;
"Next Competition" means the exercise by the Commission of its functions under the National Lottery Act to secure the continued provision of the National Lottery by identifying a person to be the Next Licensee.
"Next Licensee" means the person awarded the fifth National Lottery licence under section 5 of the National Lottery Act (being the licence which next starts after the end of the current Licence).
"Nominated Person" means the Next Licensee or any other person nominated by the Commission.
"Seller Staff" means any and all of the following:
(a) employees (temporary and permanent) of the Seller or any of its affiliates;
(b) agency workers engaged in providing services to the Seller or any of its affiliates;
(c) any employees seconded to the Seller or any of its affiliates from any other entity; and/or
(d) any other worker (as defined in s230 of the Employment Rights Act 1996) engaged in providing services to the Seller or any of its affiliates.
Any capitalised terms which are not defined in this Schedule (or elsewhere in the Contract) will have the meaning given to them in the Licence.
The Seller must not take any action under or in relation to the Contract which would give rise to any risk or harm to (a)any Matter to be Protected or (b) the uninterrupted operation of the National Lottery both during and at the end of the term of the Contract.
The Buyer may immediately terminate the Contract (in whole or in part) if it is directed to do so in writing by the Commission by providing the Seller with written notice of termination. The Buyer will not be liable to pay any form of break fee or termination charge to the Seller in connection with any such termination (and will not have any other liability to the Seller in relation to any such termination).
The Buyer may at any time assign, novate or otherwise transfer all or part of its rights or obligations (as applicable) under the Contract to any Nominated Person. The Seller must execute any document reasonably required by the Buyer to give effect to any such assignment, novation or transfer. For the avoidance of doubt, no break fee, termination charge or other amount will be payable to the Seller by the Buyer in connection with any such assignment, novation or transfer.
The Seller must promptly provide to the Commission, or a person nominated by the Commission, on request any such information as may be specified in that request, in the form and in such timeframe as the Commission directs.
The Seller must promptly notify the Buyer of:
(a) any matter relating to the Seller or the operation of the Contract which might have any adverse effect upon the compliance by the Buyer with its obligations under the Licence; and
(b) any irregularity, fraud or material misconduct by the Seller or any of its employees where such irregularity, fraud or material misconduct might relate or be connected with, whether directly or indirectly, the National Lottery operation or an Ancillary Activity.
For the avoidance of doubt, the Buyer will be entitled to disclose such information to the Commission.
On request by the Buyer from time to time, the Seller must provide the Buyer with any Lottery Information (including Lottery Information which is proprietary to the Seller) within the Seller's possession or control ("Seller Lottery Information").
The Seller acknowledges and agrees that:
(a) pursuant to the terms of the Licence, the Buyer may be required to disclose Seller Lottery Information to the Commission from time to time;
(b) accordingly, the Seller hereby provides its consent to the Buyer disclosing any such Seller Lottery Information to the Commission; and
(c) in the event of the Buyer disclosing Seller Lottery Information to the Commission pursuant to this paragraph, the Commission may disclose the Seller Lottery Information to such third parties as the Commission may determine in connection with the Next Competition.
The Seller must comply with all applicable laws and regulations when discharging its obligations under the Contract.
The Seller must do everything it can, in accordance with Best Practice, to ensure that each member of Seller Staff is honest, acts with integrity and is competent to undertake their role.
In relation to any scenario in which the Buyer will cease to run the National Lottery, the Seller must do everything it can to ensure that any costs and liabilities incurred by the Next Licensee as a result of, or in connection with, the transfer of any Seller Staff (to the extent that they work predominantly in connection with the Lottery operation or any Ancillary Activity) in accordance with Condition 27 of the Licence are the appropriate, proper and ordinary course costs of employing or engaging those members of Seller Staff.
(a) must take, and must ensure that any person engaged by it takes, all steps necessary to ensure that the Buyer is able to comply with Condition 12 of the Licence; and
(b) must ensure that it is legally entitled to transfer Lottery Data (and any databases containing that data) to the Commission, or to any person the Commission nominates, if the Seller is directed by the Commission or the Buyer to do so. The Seller must obtain any consents necessary to do this.
The Seller must permit the Commission, or any person nominated by the Commission, on request, to access any premises used by the Seller for the purposes of the Contract and/or to interview any of the employees of the Seller who perform any role in connection with the Contract and to inspect and take copies of any information required by the Commission.
The Seller must perform its obligations under the Contract to a standard which is, and using personnel and assets which are, in each case, Fit for Purpose (as defined in the Licence).
The Seller must ensure that any Lottery IP which is used for, or provided pursuant to, the Contract is protected, maintained and enforced in accordance with Best Practice.
The Seller must ensure that appropriate security and, where applicable, support is maintained for all Lottery Assets and Lottery Data.
Where the Contract is intended to continue in force until the expiry of the Licence, the Buyer and/or the Commission may extend the duration of the Contract for an additional period of at least 2 years after the Licence End Date (as such date may be extended in accordance with the Licence) by giving written notice to the Seller.
Where the Contract is not intended to continue in force until the expiry of the Licence, but the Licence is revoked by the Commission during the term of the Contract, the Buyer and/or the Commission may extend the duration of the Contract for an additional period of at least 2 years after the date of revocation by giving written notice to the Seller.
The Seller must not, without the prior written consent of the Buyer (which may be subject to the Buyer obtaining the consent of the Commission), use any Lottery Confidential Information for any purpose other than the performance of its obligations under the Contract.
The Seller must not disclose any Lottery Confidential Information to any third party unless such disclosure is:
(a) made to the Senior Executives (as defined in the Licence) and employees of the Seller, to the extent necessary for the performance of the Contract (each, an "Authorised Person") on the basis that each Authorised Person must owe a duty of confidentiality to the Buyer in respect of such Lottery Confidential Information which is no less onerous than the confidentiality obligations set out in this Schedule;
(b) expressly required by or under applicable law, a court of competent jurisdiction or any judicial, governmental, supervisory or regulatory authority; or
(c) approved by the Buyer in writing (which may be subject to the Buyer obtaining the approval of the Commission).
The Seller must promptly notify the Buyer if it becomes aware that any Lottery Confidential Information has been disclosed in breach of the requirements of this Schedule.
If the Seller becomes aware that it, or one of its Authorised Persons, may be required to disclose any Lottery Confidential Information in accordance with sub-paragraph (b) above, to the extent permitted by law, the Seller must:
(i) promptly notify the Buyer with full details of the required disclosure (which the Buyer will be entitled to further disclose to the Commission). The Seller must do everything it can to make this notification before the Lottery Confidential Information is disclosed;
(ii) ensure that any disclosure of Lottery Confidential Information is limited to the minimum amount of Lottery Confidential Information required to satisfy the disclosure obligation;
(iii) consult with the Buyer and (if requested by the Buyer) theCommission as to the timing, content and manner of making the disclosure, andtake into account the views and opinions of the Buyer and the Commission; and
(iv) do anything the Buyer or the Commission directs in order to mitigate the effects of, or avoid the requirement for, disclosure.
Subject to the paragraph immediately below, on expiry or termination of the Contract for any reason or the revocation of the Licence, the Seller must (as directed by the Buyer, based on the Commission's directions) destroy or return to the Buyer (or, if requested by the Buyer, the Commission or its nominee) all Lottery Confidential Information held by it, and must procure that its Authorised Persons do the same. The Seller must provide written confirmation of compliance with this paragraph if required by the Buyer.
The Seller and its Authorised Persons may retain Lottery Confidential Information if and to the extent that they are legally required to do so, provided that such information continues to be held pursuant to the duty of confidentiality set out in this Schedule.
The Seller must comply with any performance standards specified by the Buyer which ensure that no Matter to be Protected is being damaged and that the Buyer is able to assess the steps being taken by the Seller to ensure that is the case.
If requested by the Buyer, the Seller must take any steps, sign any documents or do any things necessary to give effect to the terms described in Condition 21.5(a) to Condition 21.5(q) (inclusive) of the Licence.
The Seller must comply with Best Practice in negotiating, agreeing and entering into any sub-contract relating to the Contract.
The Seller must ensure that all such sub-contracts contain terms which ensure that such subcontracts reflect Best Practice and do not damage any of the Matters to be Protected.
Unless otherwise agreed with the Buyer, the Seller must ensure that the terms of this Schedule (the "Required Standard Terms") are incorporated into all such sub-contracts, so that the relevant subcontractor is required to comply with the obligations of the Seller under this Schedule.
The Seller must:
(a) ensure that the Required Standard Terms in any sub-contracts are enforced in the manner best calculated to further the outcomes set out in Condition 1.2 of the Licence and so as to ensure that there is no damage to any of the Matters to be Protected;
(b) do everything it can to make any changes to its implementation of the Required Standard Terms, or include any additional Required Standard Terms, in all sub-contracts, as the Commission may direct from time to time, provided that any changes will not have retroactive effect;
(c) promptly terminate any sub-contract, or novate or assign a sub-contract to a Nominated Person, if directed to do so by the Commission;
(d) not novate or assign any of its rights or obligations of the Seller under any sub-contract (or permit the relevant sub-contractor to do the same)without the prior consent of the Buyer;
(e) ensure that the Buyer and the Commission is entitled to enforce all rights and interests conferred on the Seller under any sub-contracts in accordance with the Contracts (Rights of Third Parties) Act 1999;
(f) not terminate any sub-contract during the 12 month period prior to the Licence End Date without the prior consent of the Buyer.
The Seller acknowledges and agrees that the Services and its other obligations under the Contract are performed for the benefit of the Buyer and the Commission. Notwithstanding any provision to the contrary in the Contract, it is intended that the Commission may enforce all rights and interests conferred on the Buyer under the Contract in accordance with the Contracts (Rights of Third Parties) Act 1999. Except as provided otherwise under the Licence, the consent of the Commission is not necessary for any variation (including any release or compromise in whole or in part of any liability) or termination of the Contract or any one or more clauses of it.
The Buyer may amend this Schedule from time to time where directed to do so by the Commission, provided that any such changes will not have retrospective effect. The Buyer will prompt notify the Seller of any such changes to this Schedule (and this Schedule will be deemed to have been amended to reflect such changes upon receipt of such notice by the Seller).