General conditions of purchase

1. DEFINITIONS

1.1. 'Buyer', 'We', 'Us' and 'Our' means Birkbeck College, University of London, referred to as the College.

1.2. 'Supplier', 'You' and 'Your' means the person, firm or company to whom the purchase order is addressed and any employees, sub-contractors or agents of said person, firm or company.

1.3. 'Goods' means the materials, articles, works and services described in the contract.

1.4. 'Package' means any type of package including bags, cases, carboys, cylinders, drums, pallets, tank wagons and other containers.

1.5. 'Authorised Officer' means our employee authorised, either generally or specifically by us to sign our purchase order, confirmation of which may be obtained from the Director of Finance.

1.6. 'Authorised' means signed by one of our authorised officers.

1.7. 'Purchase Order' means our authorised purchase order having these general conditions of purchase on its reverse or attached to it or referring to these general conditions of purchase at http://www.bbk.ac.uk/about-us/policies/general-conditions-of-purchase.

1.8. 'Order Amendment' means our authorised order amendment or series of order amendments, each order amendment having precedence over any earlier order amendment.

1.9. 'Contract' has the meaning given in Condition 2 below.

1.10. 'Price' has the meaning given in Condition 3 below.

1.11. 'Sale of Goods Act 1979' shall mean the Sale of Goods Act 1979 as amended by the Sale and Supply of Goods Act 1994.

1.12. 'Supply of Goods and Services Act 1982' shall mean the Supply of Goods and Services Act 1982 as amended by the Sale and Supply of Goods Act 1994.

2. THE CONTRACT

2.1. You agree to sell and we agree to purchase the goods or services in accordance with the contract.

2.2. This Contract contains the only terms and conditions upon which we are prepared to deal with you and they shall govern the Contract to the entire exclusion of all other terms and conditions.

2.3. Delivery of goods or services in response to a purchase order or order amendment shall be taken to imply that you have accepted the terms and conditions of this contract.

2.4. No terms and conditions endorsed upon, delivered with or contained in the Supplier's quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Contract and you waive any right which it otherwise might have to rely on such terms and conditions.

3. PRICE

3.1. You will sell us the goods or services for the firm and fixed price stated in the contract. If no price is stated in the Contract then the price shall be a fair price, taking into account prevailing market conditions. The price shall include storage, packing, insurance, delivery, installation and commissioning (as applicable) but shall exclude VAT.

4. VARIATIONS

4.1. We shall have the right, before delivery, to send you an order amendment adding to, deleting or modifying the goods.

4.2. If the order amendment will cause a change to the price or delivery date then you must suspend performance of the Contract and notify us without delay, calculating the new price and delivery date at the same level of cost and profitability as the original price.

4.3. You must allow us at least 10 working days to consider any new price and delivery date.

4.4. The order amendment shall take effect when but only if our authorised officer accepts in writing the new price and delivery date within the time you stipulate. If our authorised officer fails to confirm the order amendment within the time you stipulate then performance of the Contract shall immediately resume as though the said order amendment had not been issued (except that we may still exercise our right of cancellation in accordance with Condition 5).

5. OUR RIGHT OF CANCELLATION

5.1. In addition to our other rights of cancellation under this contract, we may cancel the purchase order and any other amendment there to at any time by sending you a notice of termination.

5.2. You will comply with any instruction that we may issue with regard to the goods or services. If you submit a termination claim then we will pay to you the cost of any commitments, liabilities or expenditure which in our reasonable opinion was a consequence of this Contract at the time of termination.

5.3. The total of all payments made or due to you under this contract, including any termination payment, shall not exceed the price. If you fail to submit a termination claim within three months of the date of our notice of termination then we shall have no further liability under the contract.

6. QUALITY AND DESCRIPTION

6.1. The goods or services shall:

6.1.1. conform in every respect with the provisions of the contract;

6.1.2. be capable of all standards of performance specified in the contract;

6.1.3. be fit for any purpose made known to you expressly or by implication and in this respect we rely on your skill and judgement;

6.1.4. be new unless otherwise specified on the purchase order and be of sound materials and skilled and careful Workmanship and of the best available design;

6.1.5. correspond to their description or any samples, patterns, drawings, plans and specifications referred to in the contract;

6.1.6. be of satisfactory quality; and

6.1.7. comply with any current legislation.

6.2. Unless specifically required under the contract, there shall be no asbestos content in the goods.

7. WORK ON OUR PREMISES

7.1. If the Contract involves any works or services which you perform on our premises then the following conditions shall apply:

7.1.1. You shall ensure that you and your employees, your sub-contractors and their employees and any other person associated with you will adhere in every respect to the obligations imposed on you by current safety legislation.

7.1.2. You shall ensure that you and your employees, your sub-contractor and their employees and any other person associated with you will comply with any regulations that we may notify to you in writing.

8. PROGRESS AND INSPECTION

8.1. You shall at your expense provide any programmes of manufacture and delivery that we may reasonably require.

8.2. You shall notify us without delay in writing if your progress falls behind or may fall behind any of these programmes.

8.3. We shall have the right to check progress at your works on the works of sub-contractors at all reasonable times, to inspect and to reject goods that do not comply with the contract. Your sub-contracts shall reserve such right for us.

8.4. Any inspection or approval shall not relieve you from your obligations under this contract.

8.5. If as a result of testing and inspection cause us to be of the opinion that the goods or services do not conform or are unlikely to conform with the Order or to any specification, we shall immediately inform you and you shall take immediate action as required to ensure conformity and we shall have the right to require and witness further testing and inspection.

9. PACKAGE

9.1. Packaging must consist of readily recyclable material, and/or materials taken from renewable resources, or be a multi-use system, i.e. reusable. All packaging materials shall be easily separable by hand into recyclable parts consisting of one material (e.g. cardboard, paper, plastic, textile).

9.2. Unless otherwise stated in the contract, all packages shall be non-returnable. If the Contract states that package is returnable, you must give us full disposal instructions before the time of delivery. The package must be clearly marked to show to whom it belongs. You must pay the cost of all carriage and handling for the return of package.

9.3. We shall not be liable for any package lost or damaged in transit.

10. SAFETY

10.1. You shall observe all legal requirements of the United Kingdom, European Union and relevant international agreements in relation to health, safety and environment, and in particular to the marking of hazardous goods, the provision of data sheets for hazardous materials and all provisions relating to food.

11. DELIVERY

11.1. The goods shall be properly packed, secured and despatched at your expense to arrive in good condition at the time or times and the place or places specified in the Contract.

11.2. If you or your carrier deliver any goods at the wrong time or to the wrong place then we may deduct from the price any resulting costs of storage or transport or re-delivery.

11.3. Time for delivery shall be of the essence.

11.4. Delivery can only be within normal business hours unless agreed in writing.

12. LATE DELIVERY

12.1. If the goods or services or any part of them are not delivered by the time or time specified in the Contract then we may by written notice cancel any undelivered balance of the goods or services. We may also return for full credit and at your expense any goods or services that in our opinion cannot be used owing to this cancellation.

12.2. In the case of services, we may have the work performed by alternative means and any additional costs reasonably so incurred shall be at your expense. This shall not affect any other rights that we have.

13. PROPERTY AND RISK

13.1. You shall bear all risks of loss or damage to the goods until they have been delivered (including offloading and stacking) and shall insure accordingly.

13.2. Ownership of the goods shall pass to us

13.2.1. when the goods have been delivered but without prejudice to our right of rejection under this contract, and

13.2.2. if we make any advance or stage payment, at the time such payment is made, in which case you must as soon as possible mark the goods as our property.

14. ACCEPTANCE

14.1. We shall have the right to reject the goods or services in whole or in part whether or not paid for in full or in part within a reasonable time of delivery if they do not conform to the requirements of this contract.

14.2. It is agreed that we may exercise the right of rejection not withstanding any provision contained in section 11 or section 15A or section 30 (subsection 2A and 2B) or section 35 of the Sale of Goods Act 1979.

14.3. We shall give you a reasonable opportunity to replace the goods or services with new goods or services that conform to this contract, after which time we shall be entitled to cancel the purchase order and purchase the nearest equivalent goods elsewhere.

14.4. In the event of cancellation under this Condition you shall promptly repay any moneys paid under the Contract without any retention or offset whatsoever.

14.5. Cancellation of the purchase order under this Condition shall not affect any other rights we may have.

14.6. You must collect all rejected goods within a reasonable time of rejection or we shall return them to you at your risk and expense.

15. PAYMENT

15.1. Unless stated otherwise in the Contract we shall pay you within 30 days of receipt by our Finance Department of a correctly rendered invoice.

15.2. Your invoice must be addressed to Birkbeck College, University of London, Malet Street, London WC1E 7HX and must quote the full purchase order number.

15.3. We shall not be held responsible for delays in payment caused by your failure to comply with our invoicing instructions.

16. YOUR WARRANTY

16.1. It is expressly agreed between us that:

16.1.1. You shall promptly make good at your expense any defect in the goods or services that we discover under proper usage during the first of 12 months or actual use or 18 months from the date of acceptance by us or the date being the end of any warranty whichever period shall expire first. Such defects may arise from your faulty design, your erroneous instructions to use or inadequate or faulty materials or poor workmanship or any other breach of your obligations whether in this Contract or at law.

16.1.2. Repairs or replacements will themselves be covered by the above warranty but for a period of 12 months from acceptance by us.

16.1.3. You will ensure that compatible spares are available to facilitate repairs (where applicable) for a period of at least 10 years from the date of delivery of the goods.

17. INDEMNITY AND INSURANCE

17.1. You shall indemnify us against all loss, actions, costs, claims, demands, expenses and liabilities whatsoever (if any) which we may incur either at common law or by statute in respect of personal injury to or death of any person or in respect of any loss or destruction of or damage to property (other than as a result of any default or neglect of ourselves or of any person for whom we are responsible) which shall have occurred in connection with any work executed by you under this Contract shall be alleged to be attributable to some defect in the goods supplied by you.

17.2. This purchase order is given on the condition that (without prejudice to the generality of Condition 17.1 you will indemnify us against all loss, costs, claims, demands, expenses and liabilities whatsoever (if any) which we may incur either at common law or by statue (other than as a result of any default or neglect of ourselves or of any person for whom we are responsible) in respect of personal injury to or death of any of your or our employees, agents, subcontractors or other representatives while on our premises whether or not such persons are (at the time such personal injury or deaths are caused) acting in the course of their employment.

17.3. You will indemnify us against any and all loss, costs, expenses and liabilities caused to us whether directly or as a result of the action, claim or demand of any third party by reason of any breach by you of these conditions or of any terms or obligations on your part implied by the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982 or any other statute or statutory provision relevant to the Supplier to goods or work covered thereby. This indemnity shall not be prejudiced or waived by any exercise of our rights.

17.4. You shall hold satisfactory insurance cover with a reputable insurer to fulfil your insurance obligations for the duration of this Contract including public liability insurance cover of at least £5M (five million pounds Sterling). You shall effect insurance against all those risks arising from your indemnity in Condition 17.3. Satisfactory evidence of such insurance and payment of current premiums shall be shown to us upon request.

18. RECOVERY OF SUMS DUE

18.1. Whenever under the Contract any sums of money shall be recoverable from or payable by you, they may be deducted from any sums then due, or which at any later time may become due to you under this Contract or under any other Contract you may have with us.

19. MATTERS BEYOND CONTROL

19.1. If either party is delayed or prevented from performing its obligations under this Contract by circumstances beyond the reasonable control of either party (including without limitation any form of government intervention, strikes and lock-outs relevant to the purchase order or breakdown of plant), such performance shall be suspended, and if it cannot be completed within a reasonable time after the due date as specified in the purchase order, then the Contract may be cancelled by either party.

19.2. We shall pay to you such sum as may be fair and reasonable in all the circumstances of the case in respect of work performed by you or goods supplied by you under the purchase order prior to cancellation but only in respect of work or goods or services from which we have received the full benefit as originally contemplated in the contract. This provision can have effect only if it is called into operation by the party wishing to rely on it giving written notice to the other to that effect.

20. ARTICLES LOAN AND USE OF INFORMATION

20.1. All tools, materials, drawings, specifications and other equipment and data ('the Articles') loaned by us to you in connection with the Contract shall remain always our property and be surrendered to us upon demand in good and serviceable condition (fair wear and tear allowed) and are to be used by you solely for the purpose of completing the contract. You agree that no copy of any of the articles will be made without the consent in writing of our authorised officer. Until you return all the articles to us they shall be at your risk and insured by you at your own expense. All scrap arising from the supply of such articles must be disposed of at our discretion and all proceeds of sales of such scrap must promptly be paid to us in full.

20.2. Any information derived from our property or otherwise communicated to you in connection with the contract shall be kept secret and confidential and shall not without the consent in writing of our authorised officer be published or disclosed to any third party, or made use of by you except for the purpose of implementing the contract.

21. OWNERSHIP OF RESULTS

21.1. If the Contract involves design and/or development work:

21.1.1. All rights in the results of work arising out of or deriving from this contract, including inventions, designs, copyright and knowledge, shall be our property Birkbeck College, University of London and we shall have the sole right to determine whether any letters patent, registered design, trademark and other protection shall be sought.

21.1.2. You shall promptly communicate to us all such results and shall if requested and at our expense do all acts and things necessary to enable us or our nominee to obtain letters patent, registered designs and other protection for such results in all territories and to assign the same to us or our nominee.

21.1.3. You shall ensure that all technical information (including computer programs and programming information) arising out of or deriving from this Contract is held in strict confidence except for any such information which becomes public knowledge other than by breach of this contract.

22. INFRINGEMENT OF PATENTS

22.1. With the exception of goods made to our design or instructions, you warrant that neither the goods nor our use of them will infringe any patent registered design trade mark copyright or other protected right and undertake to indemnify us against all actions, claims, demands, costs, charges and expenses arising from or incurred by reason of any infringement or alleged infringement of any such right.

23. NON–OBSERVANCE OF CONDITIONS

23.1. If you breach or fail to observe provision of this Contract we may give you written notice of such breach or non-observance and you shall have 28 days from receipt of the notice in which to rectify the breach or non-observance.

23.2. Should you fail to rectify the breach or non-observance, then we shall have the right to give you written notice terminating the Contract with immediate effect.

24. YOUR INSOLVENCY

24.1. If you become insolvent or bankrupt, make an arrangement with your creditors or have an administrative receiver or administrator appointed or commence to be wound up (other than for the purposes of amalgamation or reconstruction) or your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil its obligations under the Contract has been placed in jeopardy, we may without replacing or reducing any other of our rights terminate the Contract with immediate effect by written notice to you or any person in whom the Contract may have become vested.

25. ASSIGNMENT AND SUB-LETTING

25.1. The Contract shall not be assigned by you nor sub-let as a whole. You shall not sub-let any part of the Contract without our written consent, but we shall not refuse such consent unreasonably. The restriction contained in this Condition shall not apply to sub-contracts for materials for minor details or for any part of which the markers are named in the contract. You shall be responsible for all work done and goods or services supplied by all sub-contractors.

26. CORRUPT GIFTS

26.1. In connection with this or any other contract between you and us you shall not give, provide, or offer to our staff and agents any loan, fee, reward, gift or any emolument or advantage whatsoever.

26.2. In the event of any breach of this, Birkbeck College, University of London terms and conditions of purchase shall apply, without prejudice to any other rights we may possess, be at liberty forthwith to terminate this and any other contract and to recover from you any loss or damage resulting from such termination.

27. ANTI-CORRUPTION AND ANTI-BRIBERY

27.1. The Supplier shall, and shall procure that its officers, employees, agents and sub-contractors (if any) shall:

27.1.1. comply with all applicable Anti-Bribery Laws;

27.1.2. without prejudice to Condition 27, not do or omit to do any act or thing which causes or may cause the College to be guilty of an offence under section 7 Bribery Act (or would do so if the College was unable to prove that it had in place adequate procedures designed to prevent persons associated with it from undertaking such conduct);

27.1.3. promptly report to the College any request or demand for any undue financial or other advantage of any kind received in connection with the performance of the Contract by it or its officers, employees, agents or sub-contractors; and

27.1.4. comply with the College's policies as in force from time to time.

27.2. The Supplier shall immediately give written notice to the College:

27.2.1. upon a breach, or suspected breach, of its obligations occurring or upon becoming aware of a breach of its obligation under this Condition; and

27.2.2. of any financial or other advantage, inducement or reward it has given or intends to give (whether directly or through any third party) to any person (including any employee of the College) in connection with the awarding or continuation in force of the Contract.

27.3. The Supplier shall:

27.3.1. keep, for a minimum of 7 (seven) years and at its normal place of business, detailed, accurate and up to date records and books of account showing all payments made by the Supplier in connection with the Contract and the steps taken by the Supplier to comply with Anti-Bribery Laws and the College's policies; and

27.3.2. permit the College, and any person nominated by it for this purpose (and the Higher Education Funding Council for England) to have such access on demand to the Supplier's premises, personnel, systems, books and records as the College may reasonably require to verify the Supplier's compliance with this Condition 27.

27.4. The College may terminate a Contract immediately by giving written notice to that effect to the Supplier if the Supplier is in breach of any of its obligations under Condition 27 or if the College has reasonable cause to believe that such a breach has occurred or may occur.

27.5. The College shall be entitled, by giving written notice to that effect to the Supplier, to require the Supplier to remove from the performance of its obligations under the Contract any of the Supplier's officers, employees, agents or sub-contractors in respect of whom the Supplier is in breach of any of its obligations under this Condition 27.

27.6. The Supplier shall include in any sub-contract which the College permits it to enter into in connection with the Contract:

27.6.1. a clause equivalent to this Condition 27; and

27.6.2. a right under the Third Party Act for the College to exercise equivalent rights over the sub-contractor to those which it exercises over the Supplier.

28. FREEDOM OF INFORMATION ACT 2000

28.1. The Supplier acknowledges that the Buyer is a Public Authority for the purposes of the Freedom of Information Act 2000 (the "FOIA") and that the Buyer is under a general obligation to make all information held by it, available to the general public on request, unless an exemption under the FOIA applies.

28.2. The Supplier confirms that in providing any information to the Buyer in connection with this Agreement, it accepts that the Buyer may need to disclose such information under the FOIA.

28.3. If the Supplier has a reasonable belief that any of the information that it has or is to be provided in connection with this Agreement is 'Confidential', then the Supplier must provide a specific written Notice to the Buyer, informing the Buyer of exactly which information the Supplier believes is confidential AND providing the Buyer with the Supplier's reasonable rationale for its belief that such information is confidential. Unless and until the Supplier has provided the Buyer with a satisfactory notice and explanation (to be decided at the sole discretion of the Buyer), then the Buyer shall be at liberty to disclose the information as it deems necessary, to comply with the FOIA.

28.4. The Supplier further confirms that notwithstanding Condition 29 Confidentiality below any information provided by the Supplier to the Buyer in connection with this Agreement, may be released to any third party under the following circumstances:

28.4.1. A Public Access Request is validly received under the FOIA and the Buyer is unable to refuse disclosure by applying any of the exemptions under the FOIA;

28.4.2. A Subject Access Request is validly received under the Data Protection Act 1998 (the "DPA") and the Buyer is unable to refuse disclosure by applying any of the exemption under the DPA;

28.4.3. The Buyer is compelled to release the information under any other Legislation, Regulation or other similar directive or order etc;

28.4.4. The Buyer is compelled to release the information under an order from a Court or other similar body of competent jurisdiction;

28.4.5. The information has entered the public domain other than by the Buyer's breach.

28.4.6. In the case of a necessary disclosure, the Buyer will attempt to discuss such disclosure with the Supplier.

28.4.7. However the Buyer will be under no obligation to so consult with the Supplier and retains the absolute right to disclose the necessary information in accordance with legislation or regulation above or otherwise.

29. CONFIDENTIALITY

29.1. We each undertake to the other to keep all Confidential Information confidential, except if consent has been given or to the extent that:

29.1.1. disclosure or use is necessary by the relevant party for the proper and effective performance of its obligations under the Contract (including disclosure by either party to its insurers and professional advisers); or

29.1.2. disclosure is required by law to any government, governmental department, agency, regulatory or fiscal body or authority.

29.2. You shall use all reasonable endeavours to ensure that your employees, agents and sub-consultants comply with this Condition as if parties to the Contract.

30. MODERN SLAVERY ACT

30.1. Modern slavery, human trafficking, forced and bonded labour and labour rights violations in the supply chain.

30.2. The Supplier must work with the Customer to identify and mitigate the risk of potential modern slavery, human trafficking, forced and bonded labour and labour rights violations in its supply chain.

30.3. The Supplier must produce a Modern Slavery in the Supply Chain Due Diligence Report identifying the main risks of modern slavery, human trafficking, forced and bonded labour and labour rights violations in its supply chain, highlighting the main areas, countries and suppliers at risk and the steps to be taken to mitigate such risks at short, medium and long term 60 days upon entry into force of this contract.

30.4. The Supplier will update the Modern Slavery in the Supply Chain Due Diligence Report annually for the duration of the contract. More regular updates will be provided when risks of modern slavery, human trafficking, forced and bonded labour and labour rights violations in its supply chain are assessed as imminent either by the Supplier or the Customer.

30.5. The Supplier agrees that Customer will assess the modern slavery due diligence report and the annual progress to prevent and mitigate risks of modern slavery, human trafficking, forced and bonded labour and labour rights violations in its supply chain.

30.6. The Supplier agrees to work with the Customer in the implementation of the Modern Slavery in the Supply Chain Due Diligence Report by jointly drafting a Modern Slavery in the Supply Chain Action Plan.

30.7. The Supplier agrees to appoint a nominated person to liaise with the Customer in the drafting and implementation of the Modern Slavery in the Supply Chain Due Diligence Report and the Modern Slavery in the Supply Chain Action Plan.

31. DIVERSITY AND EQUALITY

31.1. The Supplier shall not unlawfully discriminate within the meaning and scope of any law, enactment, order or regulation relating to discrimination whether in race, gender, religion, disability, sexual orientation or age or otherwise in employment.

31.2. The Supplier shall take all reasonable steps to secure the observance by all servants, employees or agents of the Supplier and all suppliers and sub-contractors employed in the execution of the contract.

31.3. The Supplier will provide such information as required by the Buyer in relation to its compliance with anti-discrimination legislation and will co-operate with any investigations under the relevant legislation.

31.4. Where any investigation is conducted, or proceedings are bought which arise directly or indirectly out of any act or omission of the Supplier, its agents or sub-contractors including in circumstances beyond the terms of this Contract and where there is a finding against the Supplier in any such investigation or proceedings, the Supplier shall indemnify the Buyer.

32. WAIVER

32.1. A failure any time to enforce any provision of the Contract shall in no way affect the right at a later date to require complete performance of the contract, nor shall the waiver of the breach of any provision be taken or held to be waiver of any subsequent breach of the provision or be a waiver of the provision itself.

33. NOTICE

33.1. All notices and communication required to be sent by you or us in this Contract shall be made in writing and sent by first class mail and if sent to you sent to your registered or head office and if sent to us sent to Director of Finance, Birkbeck College, University of London, Malet Street, London WC1E 7HX, shall be deemed to have reached the party to whom it is addressed on the next business day following the date of posting.

34. AMENDMENT

34.1. No addition, alteration or substitution of these conditions will bind us or form part of the Contract unless and until accepted in writing by our authorised officer.

35. LAW

35.1. This Contract shall be subject to English Law and the jurisdiction of the English courts.

36. DATA PROTECTION

36.1. Compliance with the Data Protection Legislation. Each Party shall comply with its respective obligations under the provisions of the Data Protection Legislation. In particular, each party shall comply with its respective provisions set out in the GDPR. Without prejudice to the meaning afforded to each party under the GDPR, the intention of the parties is that in respect of the Buyer Data and any personal data processed on behalf of the Buyer by the Supplier, the Buyer shall be the data controller and the Supplier shall be a data processor. As used in this Clause the terms "process", "processing", "personal data" and "data subjects" shall have the meanings ascribed to them in the Data Protection Legislation.

36.2. Data Processor Obligations. The Supplier shall (and shall ensure that its Contract Workers and agents shall):

36.2.1. implement and maintain appropriate technical and organisational measures and safeguards for protection of personal data, to ensure the rights of data subjects are protected and to ensure that processing will meet the requirements of the General Data Protection Regulation;

36.2.2. ensure that all employees and subcontractors authorised to process personal data are subject to binding confidentiality obligations in respect of that personal data;

36.2.3. assist the Buyer, using appropriate technical and organisational measures, to respond to requests from data subjects including requests for information, requests for deletion and amendments of information and requests for the transfer of data;

36.2.4. assist the Buyer in ensuring compliance with its security, data breach notification, impact assessment and consultation obligations under Data Protection Legislation, taking into account the nature of processing and information available to the data processor;

36.2.5. at the Buyer's election, delete or return all personal data and existing copies to the Buyer (unless Data Protection Legislation requires the data processor to store that personal data);

36.2.6. make available to the Buyer all information necessary, and allow for and contribute to audits and inspections conducted by the Buyer or the Buyer's mandated auditor, to demonstrate the data processor's compliance with its obligations under this agreement;

36.2.7. immediately inform the Buyer if, in the data processor's opinion, any instruction given by the Buyer to the data processor infringes Data Protection Legislation;

36.2.8. maintain a written record of all processing activities under its responsibility and of all categories of processing activities carried out on behalf of the Buyer, that satisfies the requirements of the Data Protection Legislation;

36.2.9. cooperate on request with any relevant European Union or member state supervisory authority;

36.2.10. notify the Buyer without undue delay after becoming aware of a breach of personal data and notify the Buyer immediately if it is asked to do something infringing the GDPR or other data protection law of the EU or a member state;

36.2.11. take any further action and execute any further documents and amendments to this Contract as may, in the Buyer's reasonable opinion, be required to comply with Data Protection Legislation;

36.2.12. only process personal data in accordance with the Buyer's documented instructions consistent with and in the scope of this Contract (unless required to do so by applicable law, in which case the data processor shall inform the Buyer of that legal requirement unless prohibited by law on important grounds of public interest);

36.2.13. only engage another processor to carry out specific processing activities with prior specific or general written authorisation of the Buyer, and only where that other processor is subject to a written contract imposing on that other processor the same data protection obligations as are imposed on the data processor in this Contract;

36.2.14. not process or transfer personal data outside the European Economic Area except with the express prior written consent of the Buyer; and

36.2.15. nothing within this Contract relieves the processor of its own direct responsibilities and liabilities under the GDPR.

36.3. The Supplier agrees that any required technical and organisational measures:

36.3.1. above shall ensure a level of security appropriate to the risk, taking into account : a) the state of the art, the costs of implementation;

36.3.2. the nature, scope, context and purposes of processing and risks of varying likelihood; and

36.3.3. severity for the rights and freedoms of individuals.

36.4. The Supplier agrees that the technical and organisational measures to be implemented by them above shall include, as appropriate:

36.4.1. pseudonymisation and encryption of personal data;

36.4.2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

36.4.3. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and

36.4.4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

36.5. The Supplier will indemnify and keep indemnified the Buyer on demand from and against any costs, claims, liabilities and expenses (including legal expenses on an indemnity basis) suffered or incurred by the Buyer as a result of (i) any failure by the Supplier to comply with its obligations under the Data Protection Legislation, or (ii) any breach by the Supplier of this Clause.