ࡱ> w~v \bjbjnn Of_gf_gT( ( 84:T&t|&~&~&~&~&~&~&$q('+&"&&F|&|&V%@&@"I% h&&0&%0+F+&+&X0"&&-j&+( X : 1. definitions and interpretations 1.1 In this Agreement, the following words shall have the following meanings: Agreement shall mean any Purchase Order, these Terms and Conditions and any and all Schedules and Appendices attached and referred to herein. Appendices shall mean any and all Appendices attached and referred to in the Agreement. Delivery Address shall be the point/s of delivery as specified on the Purchase Order or as specified in the Schedule/s hereto. Goods shall mean all goods and / or materials supplied by the Supplier in connection with this Agreement. Performance shall mean the act of undertaking any of the duties, obligations or requirements necessary for the proper performance by the Supplier of his obligations under this Agreement. Purchase Order shall mean any purchase order issued by The Council to the Supplier in respect of this Agreement, for the avoidance of doubt this will include any additional or specific instructions provided on or in connection with any such purchase order. Schedules shall mean any and all Schedules attached and referred to in the Agreement. Services shall mean any and all activities performed or services provided by the Supplier in connection with this Agreement. Supplier shall mean the person, firm or company to whom the Purchase Order is issued. Supply shall mean the act of delivery of Goods in accordance with the requirements herein. Term shall mean the date from which this Agreement commences until the date of expiry or termination as defined herein. Terms and Conditions shall mean these terms and conditions and any and all Appendices and / or Schedules as defined herein. The Council shall mean Monmouthshire County Council. 1.2 Unless the context requires otherwise, the singular shall include the plural, plural the singular, and any words importing persons shall include firms, companies and corporations. 1.3 Any reference in this Agreement to any provision of statute shall be construed as a reference to that provision as from time to time amended or re-enacted. 1.4 The headings in this Agreement are for the convenience of the parties only and shall in no way be used to affect the interpretation or construction of this Agreement. 2. GENERAL PROVISIONS 2.1 All Goods supplied and / or Services provided by the Supplier resulting from the requirements of this Agreement shall be in accordance with these Terms and Conditions. Furthermore, these Terms and Conditions shall supersede and render void any and all terms under which Goods or Services may have been previously supplied to The Council. 2.2 Acceptance in writing or by performance shall constitute full acknowledgment and acceptance of the requirements of this Agreement by the Supplier, and any conflicting or subsequent terms and conditions proffered by the Supplier in any form or medium whatsoever shall be deemed void and unenforceable and have no bearing whatsoever on the function or requirements of this Agreement or on the parties hereto unless specifically agreed to the contrary in writing by both parties. 3 scope of agreement the Supplier hereby agrees, upon the Terms and Conditions of this Agreement, to: 3.1 supply Goods and / or Services as defined either in the Schedules hereto or as defined in the Purchase Order/s, free from encumbrances, and that The Council shall enjoy quiet possession; 3.2 effect delivery of the Goods and / or provision of the Services in accordance with the requirements laid down in this Agreement or as defined in the Purchase Order/s issued to the Supplier; 3.3 provide any and all relevant operating and maintenance manuals and schedules, training, health and safety data and any other relevant information or data. Such provision shall be effected no later than the initial date of delivery or performance unless otherwise agreed in writing; 3.4 the Supplier is deemed to have examined the locations of any and all Supply of Goods or Performance of Services and to have understood the nature and extent of the requirements of this Agreement and shall make no claim founded on his failure to do so save in the event of such failure being directly occasioned by errors or omissions in information supplied in writing by The Council to the Supplier; 3.5 perform its obligations under the Agreement in accordance with these Terms and Conditions to comply and co-operate with any reasonable instructions given by The Council; 3.6 be responsible at its own cost for the provision of all necessary staff, materials and equipment for the management and execution of any obligation under this Agreement; and 3.7 perform all obligations with all due skill, care, ability and diligence. 4 quality 4.1 The Supplier warrants to The Council that the design and /or manufacture and / or installation of all Goods supplied hereunder shall conform to the specifications or descriptions set out in this Agreement, shall be fit for the intended purpose, shall be of sound materials and workmanship, shall be of satisfactory quality and durability, free from any defects, latent or otherwise, and the same as any sample supplied to and approved by The Council. 4.2 In addition to the requirements of clause 4.1 herein, where the requirements of this Agreement comprise solely or primarily of Services, the Supplier warrants that the Services shall be performed in accordance with the standards specified herein. In the absence of any such specified standards or where the standards specified are not applicable to any or all elements of the Services, the Services, or those elements of the Services not covered by the standards specified herein, shall be performed to a standard deemed as complying with the best standards normally applied within the Suppliers own industry or profession. 4.3 The Supplier further warrants that the design and / or manufacture and / or installation of all Goods and / or Performance of all Services provided hereunder shall conform in all respects with all relevant statute, orders and regulations in force at the date of Supply or Performance, and that the use of the Goods or Services by The Council shall not infringe any patent, trade mark, intellectual property or any other similar rights. 4.4 The Supplier shall indemnify The Council against any and all costs, losses, liabilities or expenses The Council may incur as a result of any breach of the Suppliers warranties contained in Clause 4 herein. 5 delivery 5.1 The dates and / or frequencies and / or conditions of Supply or Performance shall be as specified in this Agreement or in the Purchase Order/s issued from time to time to the Supplier, or in the Schedule/s herein. 5.2 The Supplier shall ensure the Goods are packed and supplied in such a manner as to reach the Delivery Address in good condition, and that the packaging and supply complies with all relevant statute and regulations. 6 property and risk 6.1 Risk in the Goods shall pass to The Council upon the Goods being delivered to the Delivery Address in correct quantity and good condition. The Council shall not assume any risk on delivery if the Goods are received in a damaged condition or if there are any discrepancies or variances of any kind between the quantity or extent of Goods delivered and the quantity or extent of the Goods described on the delivery documentation until such time as the cause of the damage or extent of the discrepancy is ascertained and the cost and liability of replacement and / or rectification is agreed. 6.2 Property in the Goods shall pass to The Council upon payment for the Goods in full. 6.3 Neither the assumption of risk or property as defined in this clause nor the making of any payment whatsoever shall prejudice The Councils rights of rejection or any other right or remedy, whether under this Agreement or at law. 7 Acceptance 7.1 Notwithstanding the requirements of clause 6 herein, The Council reserves the right to reject any Goods supplied or Services performed which in its opinion fail to comply fully with the requirements set out in this Agreement. 7.2 In the event of rejection as herein defined, The Council shall have the right to exercise the option to demand the removal of Goods or the suspension or termination of Services, and to purchase the Goods and / or Services elsewhere. Before exercising the right to purchase elsewhere, The Council shall give the Supplier reasonable opportunity to replace the rejected Goods or to reperform the rejected Services with Goods and / or Services that comply fully with the requirements herein. 7.3 Save where performance and remedy criteria are agreed between the parties hereto and incorporated elsewhere in this Agreement, and notwithstanding Suppliers opportunities under 7.2 herein, should the Supplier fail to provide replacement Goods or reperformed Services that meet the requirements herein within a period of fourteen (14) days from date of initial rejection by The Council, then The Council shall have the right to terminate this Agreement and / or any Purchase Orders forthwith and without liability in accordance with clause 13.1.3 herein. 7.4 In the event of termination under the provisions of clause 7.3 herein, the parties shall reconcile and effect remuneration for all Goods supplied and / or Services performed up to the date of termination where such Goods or Services are acceptable and compliant with the requirements of this Agreement, and reconcile and return any monies paid in advance by The Council for Goods or Services where such delivery or performance was not effected. 8 PRICE AND PAYMENT 8.1 The price payable shall be set out elsewhere in this Agreement or in the Purchase Order/s issued to the Supplier, and shall be inclusive of all charges. No variation to the prices set out in this Agreement shall be permitted save where a mechanism for price variation is agreed between the parties and incorporated elsewhere in this Agreement. 8.2 Where VAT or any other tax or duty is applicable, the Supplier shall provide a valid tax invoice, with such duty or taxes itemised. Payment of monies due shall be made in accordance with the provisions herein provided that invoices are correctly addressed, completed and presented in accordance with the requirements herein. All invoices which are incorrectly completed or submitted shall be returned to the Supplier unpaid to be corrected and re-submitted. 9 LIABILITIES AND INDEMNITY 9.1 The Supplier shall be liable for and shall indemnify and hold harmless The Council, its employees, agents and sub-contractors against any and all liabilities resulting from personal injury or death or loss or damage to any property which may arise from any act or omission, negligent or otherwise or wilful misconduct of the Supplier, Suppliers employees, agents or sub-contractors out of or in consequence of any operations under this Agreement, and the Supplier shall indemnify The Council against all actions, demands, damages, costs, charges and expenses arising in connection therewith provided however that nothing in this condition shall render the Supplier liable for any injury or damage resulting from any negligent act or omission of The Council or its agents or sub-contractors. 9.2 In addition to maintaining adequate levels of insurance as required by law, the Supplier shall be responsible for effecting and maintaining insurance adequate to cover the risks and potential liabilities specified herein. Satisfactory evidence of such insurance and payment of current premiums shall be made available to The Council upon request. 9.3 Neither party excludes or limits liability to the other for death or personal injury caused by its negligence. 9.4 Subject to clause 9.3 The Councils total liability arising under or in connection with, this Agreement, whether in tort (including negligence or breach of statutory duty), contract, misrepresentation, restriction or otherwise, shall be limited as follows: for non-payment of Invoices for Goods or Services purchase, to the amount unpaid. for any other type of liability to the amount paid for the Services in the preceding 12 months. 10 FORCE MAJEURE 10.1 For the purpose of this Agreement Force Majeure shall mean any event(s) or circumstance(s) beyond the reasonable control of either party which impedes the due performance of the obligations of such party and which by the exercise of all reasonable diligence such party is unable to prevent provided that the mere shortage of labour materials equipment or supplies shall not constitute Force Majeure. 10.2 If either party is prevented or impeded from or in performing its obligations under this Agreement by reason of Force Majeure it shall promptly give notice to the other party stating the circumstances constituting Force Majeure and the extent thereof. The obligations of the parties shall thereupon be suspended for so long as the circumstances of Force Majeure may continue and neither party shall be liable to the other for breach or failure to perform its obligations under this Agreement if it is unable to do so under the circumstances of Force Majeure. A party affected by Force Majeure shall use every reasonable effort to minimise the effects of Force Majeure and shall promptly resume performance of its obligations as soon as is reasonably possible after removal of the circumstances of Force Majeure. 10.3 If Force Majeure causes the prevention of any of the requirements of this Agreement being performed by The Council or the Supplier for a period of twenty-one (21) days, The Council shall be entitled by written notice to the Supplier to terminate this Agreement forthwith. 11 SUB-CONTRACTING 11.1 The Supplier shall not, without the prior written consent of The Council, assign, sub-contract or transfer any part of its right or obligations under this Agreement. 12 warranty 12.1 The Supplier shall, as soon as reasonably practicable and at The Councils sole discretion, repair, replace or give credit for the full value of any of the Goods which are or become defective during the period of 12 months from the date of Supply where such defects occur under proper usage and are due to faulty design, erroneous use data provided by the Supplier or inadequate or faulty materials or workmanship or any other breach of Suppliers warranties, express or implied. Repairs and replacement parts shall themselves be subject to the foregoing obligations for a period of 12 months from the date of repair or replacement. 12.2 The Supplier shall not be liable for any repairs or replacement if and to the extent that such defect or damage is caused by the proven negligence of The Council, its employees, agents or sub-contractors. 13 TERMINATION 13.1 The Council shall have the right to terminate this Agreement 13.1.1 forthwith by notice to the Supplier in the event the Supplier is adjudicated or found bankrupt or insolvent or any order is made or resolution passed for the winding up, liquidation or dissolution of the Supplier, or the Supplier enters into any composition or arrangement for the benefit of its creditors or a receiver administrator administrative received Manager or similar officer is appointed in respect of the whole or any part of the Suppliers assets. 13.1.2 forthwith by notice to the Supplier if the Supplier fails to perform or observe any of the terms of this Agreement in any material respect and in the case of breach capable of remedy fails to remedy same within 14 days or in the event of a breach capable of remedy on more than one occasion notwithstanding that the Supplier has taken steps to remedy such breach on previous occasions. 13.1.3 forthwith by notice to the Supplier if the Supplier fails to remedy any failure to supply acceptable Goods and / or Services in accordance with the requirements of this Agreement. at any time by giving not less than 30 days notice in writing to the Supplier. forthwith by notice to the Supplier if the Supplier is convicted or adjudged by a competent body to have infringed any statutory regulations forthwith by notice to the Supplier if the Supplier is found at any time during the term of this Agreement to have made any knowingly false or misleading representations in any declarations or information supplied at any time to The Council either prior to or subsequent to the commencement of this Agreement. 13.2 Subject to clause 13.3 no remuneration or compensation shall become due to the Supplier in respect of any period after termination of this Agreement with the exception of monies previously and correctly accrued under this Agreement. 13.3 In the event of termination in accordance with 13.1.4 herein, The Councils liability shall be limited to a fair and reasonable price for any materials purchased by the Supplier intended for performance of this Agreement where such materials cannot be utilised under any other Suppliers agreements or business opportunities whether existing or prospective provided that any purchase shall only be payable by The Council if it would have been payable in accordance with this Agreement if it had not been terminated. 13.4 In the event of termination the Supplier shall return all information or materials provided by The Council in relation to this Agreement. 13.5 Termination shall be without prejudice to any accrued rights or remedies or any continuing obligations (whether express or implied) of either party. 14 intellectual property 14.1 The Supplier agrees that any and all property, information and / or intellectual property furnished by The Council under or in connection with this Agreement shall belong to The Council and the Supplier shall take all reasonable steps to ensure protection of all such rights where such are not already in the public domain. 14.2 Any and all property, information and for intellectual property created by or for the Supplier for use or intended use, created by or for the Supplier in relation to the performance of the Agreement shall belong to The Council and the Supplier shall assign all rights in the same to the fullest extent permitted by law and shall complete any such documentation and do all such things as The Council may require to evidence such assignment. 14.3 The Supplier hereby agrees to indemnify The Council against any and all costs, claims or actions arising out of any infringement of patent, registered design, trademark, copyright or any other form of intellectual property rights arising out of the Supply, purchase or use of any Goods or Performance of any Services under this Agreement save where the Goods are in accordance with specific design, requirements and instructions of The Council. 15 ADVERTISING and CONFIDENTIALITY 15.1 Neither the Supplier or Suppliers agents or sub-contractors shall make any reference to this Agreement, The Council or The Councils affiliates in any medium whatsoever without the express prior permission of The Council. 15.2 Neither the Supplier or Suppliers agents or sub-contractors shall make use of any images, photographs of The Council property, nor use any information given by or gleaned from The Council save where such is either in the public domain other than by breach of any relevant confidentiality provisions or is essential for the due performance of this Agreement 15.3 The supplier acknowledges that The Council is subject to the requirements of the Freedom of Information Act 2000 and shall assist and co-operate with The Council (at the Suppliers expense) to enable The Council to comply with these requirements. 16 waivers 16.1 No failure or neglect on behalf of The Council or its representatives to enforce any of the terms and conditions of this Agreement shall be considered as a waiver unless expressly stated to be a waiver in writing by The Council. A waiver by The Council on one occasion shall not automatically be construed as permitting a waiver at any time in the future. 17 severance 17.1 Any provision of this Agreement which is declared void or unenforceable by any competent and approved authority or court shall to the extent of such invalidity or un-enforceability be deemed severable and shall not effect the other provisions of this Agreement, which shall continue un-affected. 18 RIGHTS OF THIRD PARTIES 18.1 Save as expressly provided by this Agreement, this Agreement shall not create any rights under the Contracts (Rights of Third parties) Act 1999 and shall not be enforceable by any party other than the Supplier and The Council. 19 VARIATIONS 19.1 No variation of the Agreement or of any document referred to in it shall be effective unless the costs of the variation shall be agreed and details of the variation are in writing and signed by the parties. 20 governing law 20.1 This Agreement shall be construed and governed in all respects by the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English and Welsh courts. 21 DISCRIMINATION AND EQUALITY 21.1 The Supplier shall ensure that it complies (and shall take all reasonable steps to ensure that all Supplier Personnel comply) with all relevant requirements of all current Equalities legislation, including but not limited to the Equality Act 2010 and all other similar Legislation (equality legislation) in force from time to time together with any guidance or Codes of Practice issued by the Equality and Human Rights Commission (EHRC)and shall in addition discharge its obligation under this agreement and provide the services in a manner consistent with the Councils equalities policies.      #$(rs   ^ _ M N E P   h i A B ./KLʾٶٮ٠h(Thi5CJ\aJh;CJaJhCJaJhiCJaJmH sH h(ThiCJaJmH sH h(ThiCJaJh(Thi5;CJ\aJh(Thi;CJaJ?#$rs  ^ _ M N   h i A B  $^a$gdi$a$gdi./KL./DEWX9gdi $^a$gdi$0^`0a$gdi$a$gdi./DEFWXXw9:~12RS !X!Y!Z![!\!]!_!h!i!"C"D"# #!###5#6#$%%%%%&&h(Thi5CJ\aJhiCJaJh(Thi;CJaJh(Thi5;CJ\aJh(ThiCJaJI9:~12RS X!Y!Z![!\!]!h!i!C"$0^`0a$gdi$a$gdiC"D" #!#5#6#%%%%&&&&''))++----//0$0^`0a$gdigdi$a$gdi&&&&&&'''()))*+++,------.///00000123444"45}5~555556667J7K77777789U9W9:;<<<======>^>_>̾̾̾̾h(Thi5CJ\aJh(ThiCJaJh(Thi5;CJ\aJh(Thi;CJaJh(Thi;>*CJaJK000144}5~55566J7K77777U9W9<$+0]+^`0a$gdi $h^ha$gdi$ & F5$7$8$9DH$a$gdi$0^`0a$gdi$a$gdi<<====^>_>k>l>@@AAAABBCCoEqE$+0]+^`0a$gdi$+0]+^`0a$gdi $+]+a$gdi_>b>k>l>?@@@AAAAAAABBBCCCDEoEqExEF,F-F|F}FG G GHBHCHI1I2IJK*CJaJh(Thi5;CJ\aJh(ThiCJaJAqE,F-F|F}F G GBHCH1I2IZCZEZKZMZNZOZPZh{hd%5CJaJhd%5CJaJhAhd%CJaJhd%CJaJh(Thi5CJaJ h(ThiCJOJQJ^JaJh(Thi5CJ\aJh(Thi5;CJ\aJhiCJaJh(ThiCJaJ6qWrWWWvXwXXXZY[YlYmY&Z'ZNZPZ\\\\ pgdi0d^`0gdd% gdd%gdd%$+0]+^`0a$gdi ;^`;gdi $+]+a$gdiPZVZWZ[\\\\\\\\\\\\\\\\\\\\\\\ǿh6ghdjhdUmHnHuhw7jhw7UhhhvUhi5CJaJh(ThiCJaJh(Thd%CJaJhd%CJaJhAhd%CJaJ\\\\\\\\\\\\\\gdd z+p ,p -p .p 1h/R 4; 5; 6; 7; :pd. 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