CPG01780 - CONTRACT FOR THE PROVISION OF ECONOMICS TRAINING – XXXXX 0 XXX 0
Xxxxxxxxxx Xxxxxxxxx Procurement Group Date 05.02.2014
Not protectively marked
THIS AGREEMENT is made between the Secretary of State for Foreign and Commonwealth Affairs (“the Authority"), Xxxx Xxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX
LSE Enterprise ("the Contractor") having his main or registered office at 0xx Xxxxx, Xxxxx Xxx, Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX.
IT IS AGREED THAT:
1. This Form of Agreement (Section 1) together with the attached Sections 2 to 4 inclusive are the documents which collectively form "the Contract" (as defined in Section 2).
2. The Contract effected by the signing of this Form of Agreement constitutes the entire agreement between the Parties relating to the subject matter of the Contract and supersedes all prior negotiations, representations or understandings whether written or oral.
SIGNED in duplicate on behalf of the Parties:
For the Contractor: For the Authority:
Full Name:.....................................….... Full Name:....................................…....
Title of position held on behalf of Title of position held on behalf of
the Contractor: the Authority:
………………………………………… ………………………………………… Date:.............................................…….. Date:.........................................…........
CONDITIONS OF CONTRACT
CONDITIONS OF CONTRACT
2. Entire agreement
3. Contract period
5. Commencement of Full Operations
Provision of Services
6. Conditions affecting provision of Services
7. Contractor's status
9. Authority’s Property
13. Use of Authority’s Premises
14. Right of access to Authority’s Premises
15. Manner of providing the Services
17. Monitoring of Contract Performance
18. Progress reports
19. Re-tendering and Handover
20. Payment and Value Added Tax
21. Payment/Third Party Rights in relation to sub-contractors
23. Recovery of sums due to Authority
Protection of Information
24. Intellectual Property Rights - assignment and indemnity
28. Right of Audit
29. Data Protection Act and Freedom of Information Act
30. Indemnity and insurance
Compliance with Legal Obligations
31. Corrupt gifts and payments of commission
33. Health and safety
34. Damage to Plant, Tackle and Tools
Control of Contract
35. Transfer and sub-contracting
36. Service of notices and communications
Default and Termination
40. Force Majeure
41. Termination on insolvency or change of control
42. Termination on default
43. Termination for convenience
44. Consequences of termination
Transfer of Undertaking
45. Transfer of undertaking
46. Dispute Resolution
47. Law and jurisdiction
Rights of Third Parties
48. Rights of Third Parties
Compliance with Environmental Requirements
49. Compliance with Environmental Requirements
Conflict of Interest
50. Conflict of Interest
Appendix A: Variation to Contract Form Appendix B: Confidentiality Undertaking Appendix C: Contractor's Staff
Appendix D: Confidential Information
1.1 In these Conditions:-
“Affiliate” means in relation to a body corporate, any other entity which directly or indirectly controls, is controlled by, or is under direct or indirect common control with, that body corporate from time to time.
"Approval" and "Approved" refer to the written consent of the Authority's Representative.
"Authority" means the Secretary of State for Foreign and Commonwealth Affairs and includes the Authority's Representative.
“Authority Data” means (a) the data, text, drawings, diagrams, images or sounds (together with any database made up of any of these) which are embodied in any electronic, magnetic, optical or tangible media, and which are: (i) supplied to the Contractor by or on behalf of the Authority; or (ii) which the Contractor is required to generate, process, store or transmit pursuant to this Agreement; or (b) any Personal Data for which the Authority is the Data Controller.
"Authority's Premises" means land or buildings owned or occupied by the Authority where the Services are performed.
"Authority's Property" means any property, other than land and buildings, issued or made available to the Staff by the Authority in connection with the Contract.
"Authority's Representative" means the individual authorised to act on behalf of the Authority for the purposes of the Contract.
“Basic Skills” means Level 1 Literacy (equivalent to GCSE English at grades D-G) and Entry Level 3 numeracy (one level below Level 1).
"Commencement Date" means the date on which the Form of Agreement is signed by the Authority.
“Commencement of Full Operations” means the point in time when the Contractor becomes responsible for the provision of the Services following the completion of the Setting up Operations. In the event that the Contractor’s responsibility for the provision of the Services is phased, the Commencement of Full Operations means the commencement of each phase following the Setting Up Operations in respect of that phase.
“Commercially Sensitive Information” means the subset of Confidential Information listed in Appendix D comprised of information:
(a) which is provided by the Contractor to the Authority in confidence for the period set out in that schedule; and/or
(b) that constitutes a trade secret.
"Condition" means a condition within the Contract.
“Confidential Information” means Authority’s Data and all information which has either been designated as confidential by either Party in writing (acting reasonably) or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information which relates to the business, affairs, properties, assets, trading
practices, Services, developments, trade secrets, Intellectual Property Rights, know-how, personnel, customers and suppliers of either Party, [all personal data and sensitive personal data within the meaning of the Data Protection Act 1998] and the Commercially Sensitive Information.
"Contract" means the agreement to the Conditions between the Authority and the Contractor consisting of the following Sections which, in the event of ambiguity or contradiction between Sections, shall be given precedence in the order listed:-
a) Section 1: Form of Agreement;
b) Section 2: Conditions of Contract;
c) Section 3: Schedule of Prices and Rates;
e) Section 4: Statement of Service Requirements:
“Contracting Authority” means any contracting authority as defined in Regulation 5(2) of the Public Contracts (Works, Services and Supply) Regulations 2000 other than the Authority;
"Contractor" means the Person named as the Contractor in Section 1: Form of Agreement.
"Contractor's Representative" means the individual authorised to act on behalf of the Contractor for the purposes of the Contract.
"Contract Period" means the period of the duration of the Contract in accordance with Condition 3.
"Contract Price" means the price, exclusive of Value Added Tax, payable by the Authority to the Contractor for the performance of the Services.
“Crown” means Her Majesty’s Government.
“Crown Body” means any department, office or agency of the Crown.
“Data Protection Legislation” means the Data Protection Xxx 0000, the EU Data Protection Directive 95/46/EC, the Regulation of Investigatory Powers Xxx 0000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner.
“Equality Enactments” means the enactments defined in section 33(1) Equality Xxx 0000.
"Equipment" means all equipment, materials, consumables and plant, other than Authority's Property, to be used by the Staff in the provision of the Services.
“Environmental Information Regulations” means the Environmental Information Regulations 2004 ,as the same may be amended or updated from time to time, together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government Department in relation to such regulations.
“FCO” means the Foreign and Commonwealth Office.
“FOI Act” means the Freedom of Information Xxx 0000 and any subordinate legislation made under this Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner in relation to such legislation.
“Force Majeure” has the meaning set out in Condition 40.
“Good Industry Practice” means at any time the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced provider of services similar to the Services seeking in good faith to comply with its contractual obligations and complying with all relevant laws.
“Information” has the meaning given under section 84 of the Freedom of Information Xxx 0000.
"Intellectual Property Rights" means patents, trade marks, design rights (whether registerable or not), applications for any of the above rights, copyright, database rights, know how, trade or business names or other similar rights or obligations whether registerable or not in any country including but not limited to the United Kingdom.
“Key Performance Indicators” means a set of quantifiable measures that the Authority and Contractor will use to measure the performance of the Services provided by the Contractor under the Contract.
“Law” means any applicable law, statute, bye-law, regulation, order, regulatory policy, guidance or industry code, rule of court or directives or requirements of any Regulatory Body, delegated or subordinate legislation or notice of any Regulatory Body.
"Month" means calendar month.
“Original Estimate” means the Contractor’s initial estimate of all variable prices under this Contract e.g. those which are not fixed.
“Participant” means an employee of the Authority, attending a course either in part or in full.
"Parties" means the Authority and the Contractor as identified in Section 1: Form of Agreement.
"Person", where the context allows, includes a corporation or an unincorporated association.
"Personnel" means persons directly employed by the Authority. "Premises" means land or buildings where the Services are performed. "Price" means a price entered in Section 3: Schedule of Prices and Rates.
“Proposal” means the Contractor’s proposal to meet the Services as detailed in their tender dated 21st May 2013 and any subsequent clarifications thereto.
"Rate" means a rate entered in Section 3: Schedule of Prices and Rates.
“Regulatory Bodies” means those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with in this Contract or any other affairs of the Authority and "Regulatory Body" shall be construed accordingly.
"Requests for Information" shall have the meaning set out in the FOI Act or any apparent request for information under the FOI Act, the Environmental Information Regulations or the Code of Practice on Access to Government Information (2nd Edition) as the same may be updated or replaced from time to time.
“Setting Up Operations” means the period of time, or periods of time where phased, as detailed in Section 4: Statement of Service Requirements, during which the Contractor is required to mobilise itself and it’s Staff in preparation for delivering the Service and for the Commencement of Full Operations.
"Services" means the services set out in Section 4: Statement of Service Requirements. "Site" means the area within the Premises in which the Services are performed.
"Staff" means all persons used by the Contractor to perform the Services including the key Staff as identified in Appendix C and all other Contractor’s Staff and sub-contractors.
“Staff Vetting Procedure” means the Authority's procedures and departmental policies for the vetting of personnel whose role will involve the handling of information of a sensitive or confidential nature or the handling of information which is subject to any relevant security measures, including, but not limited to, the provisions of the Official Secrets Xxx 0000 to 1989.
“Successor Supplier” means the Authority or a replacement contractor who takes over responsibility for all or part of the Services following expiry, termination or partial termination of the Contract.
“Termination Transfer” means the transfer of responsibility for the provision of the Services (or their equivalent or any part thereof) from the Contractor to the Authority and/or a Successor Supplier on or following the termination or expiry of this Contract or any part thereof.
“Termination Transfer Date” means the date of a Termination Transfer.
“Termination Transfer Employees” means the Staff employed immediately before the Termination Transfer Date by the Contractor or any of its sub-contractors and who are providing the Services(s) to be transferred on the Termination Transfer Date (and to be carried out in the same, equivalent or broadly similar way after the Termination Transfer Date) and whose names are included in the list of transferring staff provided by the Contractor, less any person so listed whose employment with the Contractor or any of its sub-contractors ends prior to the Termination Transfer; and less any person so listed whose employment does not transfer pursuant to the TUPE Regulations by virtue of Regulations 4(7) and 4(8) of the TUPE Regulations (employees objecting to employment transferring).
“TUPE Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended).
"Variation" means a properly executed variation to the Contract in compliance with Condition 38.
“Variation to Contract Form” means the form set out in Appendix A.
“Working Day” means any day other than a Saturday, Sunday or public holiday in England and Wales.
“Working Day” means Monday to Friday (excluding Bank Holidays).
1.2 The interpretation and construction of the Contract shall be subject to the following provisions:
a) a reference to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as subsequently amended or re-enacted;
b) the headings to Conditions are for ease of reference only and shall not affect the interpretation or construction of the Conditions;
c) references to Conditions are references to Conditions in the Conditions of the Contract in which they appear, unless otherwise stated;
d) where the context allows, the masculine includes the feminine and the neuter, and the singular includes the plural and vice versa.
2. ENTIRE AGREEMENT
2.1 The Contract constitutes the entire agreement between the Parties relating to the subject matter of the Contract. The Contract supersedes all prior negotiations, representations and undertakings, whether written or oral, except that this Condition shall not exclude liability in respect of any fraudulent misrepresentation.
3. CONTRACT PERIOD
3.1 The Contract shall take effect on the 2nd January 2014 and shall expire on 1st January 2016 unless it is otherwise terminated in accordance with the provisions of these Conditions, or otherwise lawfully terminated.
3.2 The Authority shall be entitled to terminate the Contract without liability to the Contractor after 1 year.
3.3 The Authority may extend the Contract Period by up two 12 month periods, by issuing a covering Variation no later than one month before the Contract would otherwise expire.
4.1 The Contractor shall perform the Services in accordance with the provisions of the Contract.
5. COMMENCEMENT OF FULL OPERATIONS
5.1 The Authority shall authorise the Commencement of Full Operations on the date specified in Section 4: Statement of Service Requirements, if the Contractor either:
a) has complied fully with the requirements set out in the Statement of Service Requirements relating to the Setting up Operations; or
b) has otherwise demonstrated to the satisfaction of the Authority his capacity to deliver the Services to be provided following the Commencement of Full Operations.
5.2 If the Authority has not authorised the Commencement of Full Operations in accordance with Condition 5.1, the Authority shall have the right, after taking into account all representations made by the Contractor, either:
a) to extend the Setting up Operations for such period as may be specified by the Authority, during which period the Contractor shall correct the fault or deficiency
which caused the Authority to withhold authorisation for the Commencement of Full Operations; or
b) to terminate the Contract, or to terminate the provision of any part of the Services, in accordance with Condition 41.
5.3 Where the Authority has not authorised the Commencement of Full Operations on the expiration of any extension of the Setting up Operations under Condition 5.2(a), the Authority shall have the right to repeat the exercise of the options set out in Condition 5.2.
6. CONDITIONS AFFECTING PROVISION OF SERVICES
6.1 The Contractor shall be deemed to have satisfied himself as regards the nature and extent of the Services, the means of communication with and access to the Site, the supply of and conditions affecting labour, subject to all such matters being discoverable by the Contractor.
7. CONTRACTOR'S STATUS
7.1 In performing his obligations under the Contract the Contractor shall be acting as a principal and not as the agent of the Authority. Accordingly:
a) the Contractor shall not say or do anything that might lead any other Person to believe that the Contractor is acting as the agent of the Authority; and
b) the Authority shall not incur any contractual liability to any other Person as a result of anything done by the Contractor in connection with the performance of the Contract.
8.1 The Contractor warrants, represents and undertakes for the duration of the Contract Duration that:
a) it has and will continue to hold all necessary (if any) regulatory approvals from the Regulatory Bodies necessary to perform the Contractor's obligations under this Contract;
b) it has and will continue to have all necessary rights in and to the Intellectual Property Rights in all materials used by the Contractor for the purpose of providing the Services and/or delivered to the Authority;
c) as at the Commencement Date all statements and representations in the Contractor's Response to the ITT are to the best of its knowledge, information and belief, true and accurate and that it will advise the Authority of any fact, matter or circumstance of which it may become aware which would render any such statement or representation to be false or misleading;
d) the [insert list of appropriate documents e.g. Business Process Manual etc.] will contain all necessary information and explanation required for the purpose of executing the exit plan and for suitably qualified employees of the Authority or of the Successor Supplier to be able to use the software and receive the Services and to perform the replacement Services on termination or expiry; and
e) it shall, and its Staff shall, at all times comply with the Law in carrying out their obligations under this Contract.
9. AUTHORITY'S PROPERTY
9.1 All of the Authority's Property shall remain the property of the Authority and shall be used in the performance of the Contract and for no other purpose without prior Approval.
9.2 The Contractor shall be liable for any loss of or damage to any of the Authority's Property unless the Contractor is able to demonstrate that such loss or damage was caused or contributed to by the act, neglect or default of the Authority.
9.3 The Contractor shall not in any circumstances have a lien on any of the Authority's Property and shall take all steps necessary to ensure that the title of the Authority and the exclusion of any lien are brought to the attention of any third party dealing with any of the Authority's Property.
9.4 The Contractor shall be responsible for his own costs resulting from any failure of the Authority’s Property, unless he can demonstrate that the Authority had caused undue delay in its replacement or repair.
9.5 The Contractor shall maintain all items of the Authority’s Property in good and serviceable condition, fair wear and tear excepted, and in accordance with the manufacturer’s recommendations.
10.1 The Contractor shall provide all the Equipment necessary for the provision of the Services.
10.2 The Contractor shall maintain all items of Equipment in good and serviceable condition and ensure that the technology used is kept up-to-date and refreshed from time to time, such as to ensure the highest quality Services are maintained at all times throughout the course of the Contract.
10.3 All Equipment shall be at the risk of the Contractor and the Authority shall have no liability for any loss of or damage to any Equipment unless the Contractor is able to demonstrate that such loss or damage was caused or contributed to by any act, neglect or default of the Authority.
11.1 The Contractor warrants, represents and undertakes for the Contract Period that all Staff are and will:
a) be suitably skilled, experienced and qualified to carry out the Services and related tasks assigned to them and possess all appropriate qualifications, licences, permits, skill, experience necessary for them to discharge their responsibilities safely and conforming with all relevant laws; and
b) be vetted in accordance with Good Industry Practice, the Security Policy, the Staff Vetting Procedure and the Standards;
11.2 The Contractor shall comply with the Staff Vetting Procedures in respect of all Contractor’s Staff employed or engaged in the provision of the Services. The Contractor confirms that all Staff employed or engaged by the Contractor at the Commencement Date were vetted and recruited on a basis that is equivalent to and no less strict than the Staff Vetting Procedures. The Contractor must allow sufficient time for vetting to be completed.
11.3 The Contractor shall:
a. provide training on a continuing basis for all Contractor’s Staff employed or engaged in the provision of the Services in compliance with the Security Policy and Security Plan;
b. give the Contractor’s Staff involved in the provision of the Services:
i. the opportunity to train in Basic Skills;
ii. access to general advice on their working lives and rights at work; and
c. inform its Staff on Trade Unions, what they do and how they can help Staff, in a timely and appropriate manner.
11.4 The Contractor shall provide, at all times, the number of Staff required to fulfil his obligations under the Contract and shall promptly notify the Authority of any absence of such staff and provide suitably qualified replacements at the request of the Authority.
11.5 Unless given prior Approval, the Contractor shall make the Staff available for the entire period needed to fulfil their part in the provision of the Services, whilst they are employed or engaged by the Contractor.
11.6 Any and all Staff shall remain under the overall control of the Contractor at all times and shall not be deemed to be employees, agents, contractors of the Authority for any purpose.
The Contractor shall co-ordinate his activities in the provision of the Services with all Personnel and other contractors engaged by the Authority, as required by the Authority.
13. USE OF AUTHORITY'S PREMISES
13.1 Where the Services are performed on the Authority's Premises the Contractor shall have use of the Authority's Premises without charge as a licensee and shall vacate those premises on completion or earlier termination of the Contract.
13.2 The Contractor shall not use the Authority's Premises for any purpose or activity other than the provision of the Services unless given prior Approval.
13.3 Should the Contractor require modifications to the Authority’s Premises, such modifications shall be subject to prior Approval and shall be carried out by the Authority at the Contractor’s expense. The Authority shall undertake Approved modification work without undue delay. Ownership of such modifications shall rest with the Authority.
13.4 The Contractor shall not deliver any Equipment to the Authority’s Premises outside normal working hours without prior Approval.
13.5 The Contractor shall maintain all Equipment and its place of storage within the Authority’s Premises in a safe, serviceable and clean condition.
13.6 On the completion or earlier termination of the Contract, the Contractor shall at the Contractor’s cost and expense, subject to the provisions of Condition 13.4, remove all Equipment and shall clear away from the Authority’s Premises all waste arising from the
performance of the Services and shall leave the Authority’s Premises in a clean and tidy condition.
13.7 Whilst on the Authority's Premises, all Staff shall comply with such rules, regulations and other requirements as may be in force in respect of the conduct of Persons attending and working on the Authority's Premises.
14. RIGHT OF ACCESS TO AUTHORITY'S PREMISES
14.1 Where the Services are to be performed on the Authority's Premises, the Authority shall grant to the Contractor reasonable access to the Site.
14.2 If the Authority gives the Contractor notice that a specifically named member of Staff shall not be admitted to the Authority's Premises, the Contractor shall ensure that that person shall not seek admission and shall not be admitted.
14.3 The Contractor shall submit in writing to the Authority for Approval, before the Commencement of the Contract Period and as necessary from time to time:
a list showing the name and address of every person whom the Contractor wishes to be admitted to the Premises and, where required by the Authority, every other person who is or may be involved in any other way in the performance of the Contract, the capacity in which each person is or may be so involved and any other particulars required by the Authority;
satisfactory evidence as to the identity of each such person; and
any other information about each such person, with any supporting evidence required by the Authority, including full details of birthplace and parentage of any such person who is not a citizen of the United Kingdom by birth, or born within the United Kingdom of parents who were citizens of the United Kingdom by birth.
14.4 Where Staff are required to have a pass for admission to the Authority's Premises, the Authority's Representative shall, subject to satisfactory completion of approval procedures, arrange for passes to be issued.
14.5 Staff who cannot produce a proper pass when required to do so by any appropriate Personnel or agent of the Authority, or who contravene any conditions on the basis of which a pass was issued, may be refused admission to the Authority's Premises or required to leave those Premises if already there.
14.6 The Contractor shall promptly return any pass if at any time the Authority's Representative so requires or if the person for whom it was issued ceases to be involved in the performance of the Contract. The Contractor shall promptly return all passes on completion or earlier termination of the Contract.
15. MANNER OF PROVIDING THE SERVICES
15.1 The Contractor shall perform the Services with all due care, skill and diligence, and in accordance with Good Industry Practice. Timely provision of the Services is of the essence of the Contract.
15.2 The Services shall be performed by the Contractor only on Approved Sites.
15.3 The Contractor, shall upon the instruction of the Authority’s Representative:
a. remove from the Authority’s Premises any materials which are not in accordance with Section 4, and substitute proper and suitable materials; and
b. remove and properly execute any work which is not in accordance with the Contract, irrespective of any previous testing or payment by the Authority. The Contractor shall at its own expense complete the re-executed work correctly in accordance with the Contract within such reasonable time as the Authority may specify.
15.4 The signing by the Authority's Representative of time sheets or other similar documents shall not be construed as implying the Contractor's compliance with the Contract.
16.1 Materials and processes used in connection with the provision of the Services shall be in accordance with the standards set out in the Statement of Service Requirements and Good Industry Practice.
16.2 On the request of the Authority’s Representative, the Contractor shall provide proof to the Authority’s satisfaction that the materials and processes used, or proposed to be used, conform to those standards.
16.3 The introduction of new methods or systems which impinge on the provision of the Services shall be subject to prior Approval.
17. MONITORING OF CONTRACT PERFORMANCE
17.1 Prior to the Commencement Date the Authority shall agree in consultation with the Contractor the arrangements for the purpose of monitoring of performance by the Contractor of its obligations under this Contract, based on the requirements detailed in Statement of Service Requirements.
17.2 These arrangements will include without limitation:
i. random inspections;
ii. regular meetings;
iii. the regular delivery of such written management reports;
iv. monthly report on Key Performance Indicators.
17.3 All such arrangements will be carried out by the Contractor in a timely manner, as reasonably required by the Authority, and in line with Good Industry Practice.
18. PROGRESS REPORTS
Where progress reports are required to be submitted under the Contract, the Contractor shall render those reports at such time and in such form as may be specified or as otherwise agreed between the Parties.
18.1 The submission and receipt of progress reports shall not prejudice the rights of either Party under the Contract.
19. RE-TENDERING AND HANDOVER
19.1 Within 21 days of being so requested by the Authority's Representative the Contractor shall provide:
a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third
party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition 19.2, a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis.
b) a draft exit plan to be agreed with the Authority that shall set out each Party’s obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority of a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant.
19.2 Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under Condition 19.1 shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under the TUPE Regulations, including in particular:-
a) the number of Staff who would be transferred;
b) in respect of each of those members of Staff their identity, age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment;
c) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits;
all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years;
information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor;
all long term absences; and
details of any arrangements or collective agreements with trade unions or organisation of body of employees including elected representatives.
19.3 The Authority shall take all necessary precautions to ensure that the information referred to in Condition 19.2 is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose.
19.4 The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a Successor Supplier arising from any deficiency or inaccuracy in information which the Contractor is required to provide under Condition 19.1 and 19.2.
19.5 The Contractor shall not –
a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or
b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies.
19.6 Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition 19.5, the Authority shall have the right to make representations to the Contractor against the change or proposed change, and –
a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition 19.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and
b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the default of the Contractor, in accordance with Condition 42.
19.7 The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services.
19.8 For the purpose of access to the Site in accordance with Condition 19.7, where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises.
19.9 All persons who attend the Contractor's premises for the purposes of Condition 19.7 shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit.
19.10 The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-operation, during the Setting up Operations period of the new contractor, shall extend to allowing full access to, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements.
19.11 Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority.
19.12 During the period following the earlier of:
a) the provision of notice of termination to the Contractor; or
b) the public announcement of a re-tendering of the Services, the Contractor shall not without the prior written agreement of the Authority’s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services.
19.13 No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of the TUPE Regulations. The draft list shall be finalised by the Parties prior to the Termination Transfer Date.
19.14 At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply. In the event that Authority’s Representative determines that the TUPE Regulations apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date.
19.15 The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or its sub-contractors and the Authority or Successor Supplier to discharge their duties under Regulation 13 of the TUPE Regulations.
19.16 The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with:
a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer Employee’s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment;
b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date;
b) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any sub-contractor to comply with the obligations of Regulation 13 of the TUPE Regulations; and
c) any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such person’s employment or engagement by the Contractor or its sub-contractor occurring before the Termination Transfer Date.
19.17 If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then:
a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the TUPE Regulations to any such contract, terminate that contract; and
b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against:
i) all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; and
ii) all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such person’s employment.
The Contractor procures that its sub-contractors shall indemnify the Authority and any Successor Supplier and their sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 19.
To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their sub- contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its sub- contractors shall not) take any steps or make any undertakings to such non-employee personnel which has the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.
20. PAYMENT AND VALUE ADDED TAX
20.1 In consideration of the provision of the Services in accordance with the terms of the Contract, the Authority shall pay the Contract Price, calculated in accordance with Section 3: Schedule of Prices and Rates.
20.2 The Contractor shall submit an original and a copy invoice to the Authority as indicated in Section 3: Schedule of Prices and Rates, in respect of the Services provided by the Contractor. Each invoice shall contain all appropriate references, a detailed breakdown of the Services and the appropriate Prices or Rates and shall be supported by any other documentation required by the Authority's Representative to substantiate the invoice. All such invoices shall be denominated in Sterling.
20.3 Unless otherwise stated in the Section 3: Schedule of Prices and Rates, payment will be made within 30 days of receipt and agreement of invoices, submitted for Services undertaken under the Statement of Service Requirements completed to the satisfaction of the Authority. For the avoidance of doubt, all costs and expenses for Services performed by the Contractor and not agreed to by the Authority will be borne by the Contractor and not included in any invoice. The sums due under this Contract will be calculated on either a fixed price basis or a variable basis and the provisions of Condition 20 will apply.
20.4 The Authority shall pay Value Added Tax on the Contract Price at the rate and in the manner prescribed by law provided that the Contractor shall provide the Authority with a Value Added Tax invoice to enable, where possible, the Authority to reclaim or obtain a refund of the Value Added Tax from HM Customs and Excise and such invoice shall be provided by the Contractor in the format and within the timescales as will enable the Authority to comply with the law or obtain such refund.
20.5 The Authority may reduce payment in respect of any Services which the Contractor has either failed to provide or has provided inadequately, without prejudice to any other rights or remedies of the Authority.
20.6 If the Authority, acting in good faith, has a dispute in respect of any invoice, the Authority shall be entitled to withhold payment of the disputed amount, provided that it has notified the Contractor of the disputed amount and the nature of the dispute prior to the due date for payment of the invoice, and has paid any undisputed portion of the invoice to the Contractor. The parties will negotiate in good faith to resolve the dispute, and, failing resolution within five working days after receipt by the Contractor of the Authority’s notification, the dispute will be referred to dispute resolution in accordance with Condition 45. In the event of such dispute, the Contractor shall continue to perform all its obligations under this Contract notwithstanding any withholding or reduction in payment by the Authority.
21. PAYMENT/THIRD PARTY RIGHTS IN RELATION TO SUB-CONTRACTORS
21.1 Where the Contractor enters into a sub-contract for the provision of any part of the Services, the Contractor shall ensure that a term is included in the sub-contract which requires the Contractor to pay all sums due to the sub-contractor within a specified period, not exceeding 30 days from the date of receipt of a valid invoice as defined by the terms of that sub-contract.
21.2 The sub-contract shall also include a provision enabling the Authority to have the ability to directly enforce the benefit of the sub-contract under the Contracts (Rights of Third Parties) Xxx 0000, obligations in respect of security and secrecy, intellectual property and audit rights for the benefit of the Authority corresponding to those placed on the Contractor, but with such variations as the Authority reasonably considers necessary. The Contractor shall not include in any sub-contract any provision the effect of which would be to limit the ability of the Sub-contractor to contract directly with the Authority or a replacement provider of Services.
22.1 Where the Parties have agreed in the Schedule of Prices and Rates that the Services will be provided on a fixed price basis, then the fixed price shall be paid according to the schedule of payments as detailed in the Schedule of Prices and Rates which may relate to the achievement of specific predefined milestones, dates or acceptance and shall be inclusive of all Contractor costs.
22.2 Where the parties have agreed in the Schedule of Prices and Rates that the Services will be provided on a time & materials basis, then:
a) the Services shall be provided in accordance with the rate card set out in the Schedule of Prices and Rates;
b) the Parties shall agree an Original Estimate which shall include but not be limited to a resource profile, a fixed date to start and to complete and a set of deliverables, further details of which shall be agreed by the Parties in the Schedule of Prices and Rates;
c) the Contractor shall attach to each invoice records of the time spent and materials used in providing the Services, together with all supporting documentation including but not limited to all relevant timesheets, receipts (if applicable), a list of Services to which the invoice relates and a reference to the Contract and Schedule of Prices and Rates details, as well as any other information as reasonably requested by the Authority from time to time; and
d) the Contractor must notify the Authority as soon as it becomes apparent that the cost to complete the Services is likely to be in excess of the Original Estimate, and shall only proceed with and be paid for Services in excess of the Original Estimate with the prior written consent of the Authority.
23. RECOVERY OF SUMS DUE TO THE AUTHORITY
23.1 Wherever any sum of money is payable to the Authority by the Contractor as a sum specifically ascertained under or in respect of the Contract (including any sum which the Contractor is liable to pay to the Authority in respect of any breach of this Contract), the Authority may unilaterally deduct that sum from any sum then due or which at any later time becomes due to the Contractor under this Contract or under any other contract with the Authority or with any other department, office or agency of the Crown.
23.2 The Authority shall give at least 21 days' notice to the Contractor of its intention to make a deduction under Condition 0.1, giving particulars of the sum to be recovered and the contract under which the payment arises from which the deduction is to be made.
23.3 Any overpayment by the Authority to the Contractor, whether of the Contract Price or of Value Added Tax, shall be a sum of money recoverable from the Contractor.
23.4 The rights of the Parties in respect of set-off are fully set out in this Condition and no other right relating to set-off shall be implied as a term of the Contract.
24. INTELLECTUAL PROPERTY RIGHTS - ASSIGNMENT AND INDEMNITY
24.1 Intellectual Property Rights in the Services and any Deliverables under this Contract shall be vested in and owned absolutely by the Contractor (save that the Authority will retain ownership of any Authority Proprietary Materials which become imbedded in such Deliverables).
24.2 The Contractor will grant the Authority a royalty free, perpetual, non-exclusive licence to use, modify and maintain any Intellectual Property Rights created howsoever by the Contractor under this Contract, such licence to survive termination or expiry of this Contract.
24.3 The Contractor warrants, represents and undertakes that its provision of the Services and Deliverables under this Contract will not infringe any Intellectual Property Rights of which a third party is the proprietor and that the Contractor is free to grant the licence
set out in Clause 24.2. The Contractor agrees to indemnify and hold harmless the Authority against any and all liability, loss, damage, costs and expenses (including legal costs) which the Authority may incur or suffer as a result of any claim of alleged or actual infringement of a third party’s Intellectual Property Rights by reason of either its or the Contractor’s possession or use in any manner of any Deliverables or the Services.
25.1 The Contractor shall take all measures necessary to comply with the provisions of any enactment relating to security which may be applicable to the Contractor in the performance of the Services.
25.2 The Contractor shall take all reasonable measures, by the display of notices or other appropriate means, to ensure that Staff have notice that all provisions referred to in Condition 25.1 will apply to them and will continue to apply to them, if so applicable, after the expiry or earlier termination of the Contract.
25.3 Whilst on the Authority's Premises, Staff shall comply with all security measures implemented by the Authority in respect of Personnel and other Persons attending those Premises. The Authority shall provide copies of its written security procedures to the Contractor on request.
25.4 The Authority shall have the right to carry out any search of Staff or of vehicles used by the Contractor at the Authority’s Premises.
25.5 The Contractor shall co-operate with any investigation relating to security which is carried out by the Authority or by any person who is responsible to the Authority for security matters and when required by the Authority's Representative –
a) shall make any Staff identified by the Authority's Representative available to be interviewed by the Authority's Representative, or by a person who is responsible to the Authority for security matters, for the purposes of the investigation. Staff shall have the right to be accompanied by the Contractor's Representative and to be advised or represented by any other person whose attendance at the interview is acceptable to both the Authority's Representative and the Contractor's Representative; and
b) shall provide all documents, records or other material of any kind which may reasonably be required by the Authority or by a person who is responsible to the Authority for security matters, for the purposes of the investigation, so long as the provision of that material does not prevent the Contractor from performing the Services. The Authority shall have the right to retain any such material for use in connection with the investigation and, so far as possible, shall provide the Contractor with a copy of any material retained.
26.1 Without prejudice to Condition 27 (Publicity), except to the extent set out in this Condition or where disclosure is expressly permitted elsewhere in this Contract, each Party shall:
a) treat the other Parties Confidential Information as confidential and safeguard it accordingly; and
b) not disclose the other Parties Confidential Information to any other person without the owner's prior written consent.
26.2 Condition 26.1 (Confidentiality) shall not apply to the extent that:
a) such disclosure is a requirement of Law placed upon the Party making the disclosure, including any requirements for disclosure under the FOIA, Code of Practice on Access to Government Information or the Environmental Information Regulations pursuant to Condition 29 (Data Protection Act and Freedom of Information Act);
b) such information was in the possession of the Party making the disclosure without obligation of confidentiality prior to its disclosure by the information owner;
c) such information was obtained from a third party without obligation of confidentiality;
d) such information was already in the public domain at the time of disclosure otherwise than by a breach of this Contract; or
e) it is independently developed without access to the other Parties Confidential Information.
26.3 The Contractor may only disclose the Authority's Confidential Information to its Staff who are directly involved in the provision of the Services and who need to know the information, and shall ensure that such Staff are aware of and shall comply with these obligations as to confidentiality.
26.4 The Contractor shall not, and shall procure that its Staff do not, use any of the Authority's Confidential Information received otherwise than for the purposes of this Contract.
26.5 At the written request of the Authority, the Contractor shall procure that those members of its Staff identified in the Authority's notice sign a confidentiality undertaking prior to commencing any work in accordance with this Contract.
26.6 Nothing in this Contract shall prevent the Authority from disclosing the Contractor's Confidential Information:
a) to any Crown Body or any other Contracting Authority. All Crown Bodies or Contracting Authorities receiving such Confidential Information shall be entitled to further disclose the Confidential Information to other Crown Bodies or other Contracting Authorities on the basis that the information is confidential and is not to be disclosed to a third party which is not part of any Crown Body or any Contracting Authority;
b) to any consultant, contractor or other person engaged by the Authority or any person conducting an Office of Government Commerce gateway review;
c) for the purpose of the examination and certification of the Authority's accounts; or
d) for any examination pursuant to Section 6(1) of the National Audit Xxx 0000 of the economy, efficiency and effectiveness with which the Authority has used its resources.
26.7 The Authority shall use all reasonable endeavours to ensure that any government department, Contracting Authority, employee, third party or Sub-contractor to whom the Contractor's Confidential Information is disclosed pursuant to Condition 26.6 (Confidentiality) is made aware of the Authority's obligations of confidentiality.
26.8 Nothing in this Condition 26.6 (Confidentiality) shall prevent either Party from using any techniques, ideas or know-how gained during the performance of this Contract in the course of its normal business to the extent that this use does not result in a disclosure of the other Parties Confidential Information or an infringement of Intellectual Property Rights.
26.9 The provisions under this Condition 26 (Confidentiality) are without prejudice to the application of the Official Secrets Acts 1911 to 1989 to any Confidential Information.
26.10 The Contractor must not contravene the Official Secrets Xxx 0000 to 1989. The Contractor must familiarise itself with these Acts and take all reasonable steps to ensure that its sub-contractors and its and their employees and agents are familiar with them and that these Persons comply with them.
26.11 In the event that the Contractor fails to comply with this Condition, the Authority reserves the right to terminate the Contract by notice in writing with immediate effect.
27.1 The Contractor shall not make any public statement relating to the existence or performance of the Contract without prior Approval, which shall not be unreasonably withheld.
28. RIGHT OF AUDIT
28.1 The Contractor shall keep secure and maintain until six years after the final payment of all sums due under the Contract, or such other period as may be agreed between the Parties, full and accurate records of the Services, all expenditure reimbursed by the Authority and all payments made by the Authority.
28.2 The Contractor shall grant to the Authority, or its authorised agents, such access to those records as they may reasonably require in order to check the Contractor's compliance with the Contract.
28.3 For the purposes of the examination and certification of the Authority's accounts, or any examination under section 6(1) of the National Audit Xxx 0000 or annual re-enactment thereof as to the economy, efficiency and effectiveness with which the Authority has used its resources, the Comptroller and Auditor General may examine such documents as he may reasonably require which are owned, held or otherwise within the control of the Contractor and may require the Contractor to provide such oral or written explanations as he may reasonably require for those purposes. The Contractor shall give all reasonable assistance to the Comptroller and Auditor General for those purposes.
28.4 Condition 28.3 applies only in respect of documents relating to the Contract and only for the purpose of the auditing of the Authority. It does not constitute an agreement under section 6(3)(d) of the National Audit Act 1983 such as to make the Contractor the subject of auditing under that Act.
28.5 Except where an audit is imposed on the Authority by a Regulatory Body (in which case the Authority may carry out the audit required without prejudice to its other rights) the Authority may conduct an audit:
a) to review the integrity, confidentiality and security of the Authority Data;
b) to review the Contractor's compliance with the Data Protection Xxx 0000, the Freedom of Information Xxx 0000 in accordance with Condition 29 (Data Protection
Act and Freedom of Information Act) and any other legislation applicable to the Services.
28.6 Subject to the Authority's obligations of confidentiality, the Contractor shall on demand provide the Authority (and/or its agents or representatives) with all reasonable co- operation and assistance in relation to each audit, including:
a) all information requested by the Authority within the permitted scope of the audit;
b) reasonable access to any sites controlled by the Contractor and to any equipment used (whether exclusively or non-exclusively) in the performance of the Services;
c) access to the Contractor’s system; and
d) access to the Contractor’s Staff.
29 DATA PROTECTION ACT AND FREEDOM OF INFORMATION ACT Authority Data
29.1 The Contractor shall not delete or remove any proprietary notices contained within or relating to the Authority Data.
29.2 The Contractor shall not store, copy, disclose, or use the Authority Data except as necessary for the performance by the Contractor of its obligations under this Contract or as otherwise expressly authorised in writing by the Authority.
29.3 To the extent that Authority Data is held and/or processed by the Contractor, the Contractor shall supply that Authority Data to the Authority as requested by the Authority in the format specified in Section 4 - Statement of Service Requirements.
29.4 The Contractor shall take responsibility for preserving the integrity of Authority Data and preventing the corruption or loss of Authority Data.
29.5 The Contractor shall perform secure back-ups of all Authority Data and shall ensure that up-to-date back-ups are stored off-site in accordance with the Business Continuity and Disaster Recovery Plan. The Contractor shall ensure that such back-ups are available to the Authority at all times upon request and are delivered to the Authority at no less than three monthly intervals.
29.6 The Contractor shall ensure that any system on which the Contractor holds any Authority Data, including back-up data, is a secure system that complies with the Security Policy.
29.7 If the Authority Data is corrupted, lost or sufficiently degraded as a result of the Contractor's default so as to be unusable, the Authority may:
a) require the Contractor (at the Contractor's expense) to restore or procure the restoration of Authority Data and the Contractor shall do so as soon as practicable; and/or
b) itself restore or procure the restoration of Authority Data, and shall be repaid by the Contractor any reasonable expenses incurred in doing so. If at any time the Contractor suspects or has reason to believe that Authority Data has or may become corrupted, lost or sufficiently degraded in any way for any reason, then the Contractor shall notify the Authority immediately and inform the Authority of the remedial action the Contractor proposes to take.
29.8 With respect to the parties' rights and obligations under this Contract, the parties agree that the Authority is the Data Controller and that the Contractor is the Data Processor. “Data Controller”, “Data Processor”, “ Data Subject” and “Personal Data” shall have the meaning as set out in the Data Protection Xxx 0000. “Process” shall also have the meaning given to it under the Data Protection Legislation but, for the purposes of this Contract, it shall include both manual and automatic processing.
29.9 The Contractor shall:
a) Process the Personal Data only in accordance with instructions from the Authority (which may be specific instructions or instructions of a general nature as set out in this Contract or as otherwise notified by the Authority to the Contractor during the Contract Period);
b) Process the Personal Data only to the extent, and in such manner, as is necessary for the provision of the Services or as is required by Law or any Regulatory Body;
c) implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful Processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected;
d) take reasonable steps to ensure the reliability of any Staff who have access to the Personal Data;
e) obtain prior written consent from the Authority in order to transfer the Personal Data to any sub-contractors or Affiliates for the provision of the Services;
f) ensure that all Contractor’s Staff required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations set out in this Condition 09;
g) ensure that none of Contractor’s Staff publish, disclose or divulge any of the Personal Data to any third party unless directed in writing to do so by the Authority;
h) notify the Authority (within [five] Working Days) if it receives:
i. a request from a Data Subject to have access to that person's Personal Data; or
ii. a complaint or request relating to the Authority's obligations under the Data Protection Legislation;
i) provide the Authority with full cooperation and assistance in relation to any complaint or request made, including by:
i providing the Authority with full details of the complaint or request;
ii. complying with a data access request within the relevant timescales set out in the Data Protection Legislation and in accordance with the Authority's instructions;
iii providing the Authority with any Personal Data it holds in relation to a Data Subject (within the timescales required by the Authority); and
iv providing the Authority with any information requested by the Authority;
j) permit the Authority or the Authority’s Representative (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit, in accordance with Condition 28 (Right of Audit), the Contractor's data Processing activities (and/or those of its agents, subsidiaries and Sub-contractors) and comply with all reasonable requests or directions by the Authority to enable the Authority to verify and/or procure that the Contractor is in full compliance with its obligations under this Contract;
k) provide a written description of the technical and organisational methods employed by the Contractor for processing Personal Data (within the timescales required by the Authority); and
l) not Process Personal Data outside the European Economic Area without the prior written consent of the Authority and, where the Authority consents to a transfer, to comply with:
i. the obligations of a Data Controller under the Eighth Data Protection Principle set out in Schedule 1 of the Data Protection Act 1998 by providing an adequate level of protection to any Personal Data that is transferred; and
ii. any reasonable instructions notified to it by the Authority.
29.10 The Contractor shall comply at all times with the Data Protection Legislation and shall not perform its obligations under this Contract in such a way as to cause the Authority to breach any of its applicable obligations under the Data Protection Legislation.
29.11 The Contractor shall process such personal data only at sites specifically agreed in writing, in advance, with the Authority.
29.12 If the Contractor fails to comply with any provision of this Condition 29 then the Authority may summarily terminate the Contract by notice in writing to the Contractor provided always that such termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to the Authority.
29.13 The decision of the Authority upon matters arising under this Condition shall be final.
29.14 The Contractor shall indemnify and keep indemnified the Authority fully against any financial penalties arising from or in connection with any breach by the Contractor or its Staff of any of the provisions of this Condition 29 (Data Protection), or any misuse, loss or unauthorised use or disclosure by the Contractor or its Staff of any Personal Data or sensitive personal data (as defined by the Data Protection Act 1998) relating to any person, where such misuse arises in connection with the Contractor’s provision of the Services or the performance of its obligations under this Contract.
Freedom of Information
29.15 The Contractor acknowledges that the Authority is subject to the requirements of the Code of Practice on Access to Government Information, FOI Act and the Environmental Information Regulations and shall assist and cooperate with the Authority to enable the Authority to comply with its Information disclosure obligations.
29.16 The Contractor shall and shall procure that its sub-contractors shall:
a) transfer to the Authority all Requests for Information that it receives as soon as practicable and in any event within two Working Days of receiving a Request for Information;
b) provide the Authority with a copy of all Information in its possession, or power in the form that the Authority requires within five Working Days (or such other period as the Authority may specify) of the Authority's request; and
c) provide all necessary assistance as reasonably requested by the Authority to enable the Authority to respond to the Request for Information within the time for compliance set out in section 10 of the FOI Act or regulation 5 of the Environmental Information Regulations.
29.17 The Authority shall be responsible for determining in its absolute discretion and notwithstanding any other provision in this Contract or any other contract whether the Commercially Sensitive Information and/or any other Information is exempt from disclosure in accordance with the provisions of the Code of Practice on Access to Government Information, FOIA or the Environmental Information Regulations.
29.18 In no event shall the Contractor respond directly to a Request for Information unless expressly authorised to do so by the Authority.
29.20 The Contractor acknowledges that (notwithstanding the provisions of Condition 30) the Authority may, acting in accordance with the Department of Constitutional Affairs’ Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the Freedom of Information Xxx 0000 (“the Code”), be obliged under the FOI Act, or the Environmental Information Regulations to disclose information concerning the Contractor or the Services:
a) in certain circumstances without consulting the Contractor; or
b) following consultation with the Contractor and having taken their views into account, provided always that where Condition 29.19 a) applies the Authority shall, in accordance with any recommendations of the Code, take reasonable steps, where appropriate, to give the Contractor advanced notice, or failing that, to draw the disclosure to the Contractor’s attention after any such disclosure.
29.21 The Contractor shall ensure that all Information is retained for disclosure and shall permit the Authority to inspect such records as requested from time to time.
29.22 The Contractor acknowledges that the Commercially Sensitive Information listed in Appendix D is of indicative value only and that the Authority may be obliged to disclose it in accordance with Condition 29.
30 INDEMNITY AND INSURANCE
30.1 The Contractor shall indemnify the Authority fully against all claims, proceedings, actions, damages, legal costs, expenses and any other liabilities in respect of any death or personal injury, or loss of or damage to property, which is caused directly or indirectly by any act or omission of the Contractor or their sub-contractors.
30.2 The Contractor shall effect and maintain with a reputable insurance company a policy or policies of insurance covering all the risks which may be incurred by the Contractor, arising out of the Contractor's performance of the Contract, in respect of death or personal injury, or loss of or damage to property. Such policies shall include cover in respect of any financial loss arising from any advice given or omitted to be given by the Contractor.
30.3 The Contractor shall hold employer's liability insurance in respect of Staff and appropriate public liability insurance in accordance with any legal requirement for the time being in force, together, if appropriate, with professional indemnity insurance commensurate with the nature and value of the Contract.
30.4 The Contractor shall produce to the Authority's Representative, on request, copies of all insurance policies referred to in this Condition or other evidence confirming the existence and extent of the cover given by those policies, together with receipts or other evidence of payment of the latest premiums due under those policies. The terms of any insurance or the amount of cover shall not relieve the Contractor of any liabilities under the Contract. It shall be the responsibility of the Contractor to determine the amount of insurance cover that will be adequate to enable the Contractor to satisfy any liabilities referred to in Condition 30.2.
31 CORRUPT GIFTS AND PAYMENTS OF COMMISSION
31.1 The Contractor shall not do (and warrants that in entering the Contract it has not done) any of the following:
a) offer, give or agree to give to any person in the employment of the Crown any gift or consideration as an inducement or reward for doing or refraining from doing any act in relation to the obtaining or performance of this Contract or any other contract with the Crown, or for showing or refraining from showing favour or disfavour to any Person in connection with the Contract; nor
b) enter into this Contract if any commission has been paid or agreed to be paid to any person in the employment of the Crown by the Contractor or on behalf of the Contractor or to his knowledge in connection with this Contract or any other contract with the Crown, unless particulars of such commission and the terms of any agreement for the payment of it have been disclosed to the Authority in writing before the Contract is made.
31.2 If the Contractor or any of his employees, servants, agents or sub-contractors, or any person acting on his or their behalf, does any of the acts mentioned in Condition 31.1 or commits any offence under the Prevention of Corruption Acts 1889 to 1916, with or without the knowledge of the Contractor, in relation to this Contract or any other contract with the Crown, the Authority shall be entitled:
a) to terminate the Contract with immediate effect by written notice to the Contractor and recover from the Contractor the amount of any loss resulting from the termination;
b) to recover from the Contractor the amount or value of any such gift, consideration or commission; and
c) to recover from the Contractor any other loss sustained as a result of any breach of this Condition, whether or not the Contract has been terminated.
31.3 In exercising its rights or remedies under this Condition the Authority shall:-
a) act proportionately in the light of the gravity and circumstances of the particular breach; and
b) give all due consideration, where appropriate, to the use of remedies other than
32.1 The Contractor shall not unlawfully discriminate either directly or indirectly on such grounds as race, colour, ethnic or national origin, disability, sex or sexual orientation, religion or belief, or age and without prejudice to the generality of the foregoing the Contractor shall not unlawfully discriminate within the meaning and scope of the provisions of relevant legislation including the Race Relations Xxx 0000 as amended in 2003, the Sex Discrimination Xxx 0000 as amended in 1986, the Sex Discrimination (Gender Re-assignment) Regulations 1999, the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Age) Regulations 2006, the Disability Discrimination Xxx 0000 as amended in 2005, Equal Pay Xxx 0000, Human Rights Xxx 0000, the Equality Xxx 0000, the Fair Employment and Treatment (Northern Ireland) Order 1998 or other relevant or equivalent legislation, or any statutory modification or re-enactment thereof.
32.2 The Contractor shall adhere to the current relevant codes of practice or recommendations published by the Equality and Human Rights Commission, and the codes of the three legacy commissions, the Commission for Racial Equality, Disability Rights Commission and the Equal Opportunities Commission and any Codes of Practice introduced by the Equality and Human Rights Commission to replace or supplement the above Codes of Practice. The Contractor shall take all reasonable steps to secure the observance of these provisions and codes of conduct by all contractors, employees or agents of the Contractor and all suppliers and Sub- contractors employed in the execution of this Contract.
32.3 The Contractor will in providing the Services comply with the provisions of:
a) section 71(1) of the Race Relations Xxx 0000 as if the Contractor were a body within the meaning of Schedule 1A to that act;
b) section 76A of the Sex Discrimination Xxx 0000 whether or not the body is a public authority for the purposes of that section and this Agreement;
c) section 49A of the Disability Discrimination Act 1995 whether or not the body is a public authority for the purposes of that section and this Agreement; and
d) any equivalent legislation introduced in relation to the promotion of equality on the grounds of sexual orientation, religion or belief and age.
32.4 The Contractor will monitor the representation among Staff of disabled persons and persons of different gender and different racial groups (which shall mean groups of persons classified as ethnic groups in the most recent official census by the Office of National Statistics or successor body), having regard to the Authority’s procedures for monitoring representation among its own employees.
32.5 Where it appears to the Contractor that the conditions for taking lawful positive action under any of the Equality Enactments apply the Contractor will take such positive action as may be appropriate and reasonably practicable.
32.6 The Contractor will upon request by the Authority produce a report to the Authority demonstrating its compliance with the above Conditions.
32.7 In addition to the report referred to in Condition 32.6 above, the Contractor will provide such additional information as the Authority may reasonably require for the purpose of assessing the Contractor’s compliance with the above Conditions.
32.8 Where the Contractor commits a breach of the above Conditions, which amounts to a failure to meet the service levels required, the provisions of Condition 42 will apply.
32.9 The Contractor will notify the Authority’s Representative immediately in writing as soon as it becomes aware of any investigation of or proceedings brought against the Contractor under the Equality Enactments.
32.10 Where any investigation is undertaken by a person or body empowered to conduct such investigation and/or proceedings are instituted in connection with any matter relating to the Contractor’s performance of this Agreement being in contravention of the Equality Enactments, the Contractor will, free of charge:
a) provide any information requested in the timescale allotted;
b) attend any meetings as required and permit Staff to attend;
c) promptly allow access to and investigation of any documents or data deemed to be relevant;
d) allow itself and any Staff to appear as witnesses in any ensuing proceedings; and
e) cooperate fully and promptly in every way required by the person or body conducting such investigation during the course of that investigation.
32.11 Where any investigation is concluded or proceedings are brought under the Equality Enactments which arise directly or indirectly out of any act or omission of the Contractor, its agents or sub contractors, or Staff, and where there is a finding against the Contractor in such investigation or proceedings, the Contractor will indemnify the Authority with respect to all costs, charges and expenses (including legal and administrative expenses) arising out of or in connection with any such investigation or proceedings and such other financial redress to cover any payment the Authority may have been ordered or required to pay to a third party.
32.12 In the event that the Contractor enters into any Subcontract in connection with this Agreement, it will impose obligations on its Subcontractors in terms substantially similar to those similar to the Conditions in this Condition 32.
33 HEALTH AND SAFETY
33.1 The Contractor shall notify the Authority of any health and safety hazards which may arise in connection with the performance of the Services.
33.2 The Authority shall notify the Contractor of any health and safety hazards which may exist or arise at the Authority's Premises and which may affect the Contractor in the performance of the Services.
33.3 The Contractor shall inform all Staff engaged in the provision of Services at the Authority's Premises of all known health and safety hazards and shall instruct those Staff in connection with any necessary safety measures.
33.4 Whilst on the Authority's Premises, the Contractor shall comply with any health and safety measures implemented by the Authority in respect of Personnel and other Persons working on those Premises.
33.5 The Contractor shall notify the Authority's Representative immediately in the event of any incident occurring in the performance of the Services on the Authority's Premises where that incident causes any personal injury or any damage to property which could give rise to personal injury.
33.6 The Contractor shall take all measures necessary to comply with the requirements of the Health and Safety at Work Xxx 0000 and The Construction (Design and Management) Regulations 1994 and any other Acts, orders, regulations and Codes of Practice relating to health and safety, which may apply to Staff in the performance of the Services.
34 DAMAGE TO PLANT, TACKLE AND TOOLS
34.1 The Contractor shall be required to remove all plant, tackle and tools which it brings to the Premises on termination or expiry of this Contract, or at any time at the request of the Authority.
34.2 The Contractor shall ensure that all such plant, tackle and tools shall meet minimum safety standards required by law.
35 TRANSFER AND SUB-CONTRACTING
35.1 The Contractor shall not assign, sub-contract or in any other way dispose of the Contract or any part of it (whether by trust device or otherwise) without prior Approval.
35.2 Notwithstanding Condition 35.1, the Contractor may assign to a third party (“the Assignee”) the right to receive payment of the Contract Price or any part thereof due to the Contractor under the Contract. Any assignment under this Condition 35.2 shall be subject to:
a) deduction of any sums in respect of which the Authority exercises its right of recovery under Condition 23 (Recovery of Sums Due); and
b) all related rights of the Authority under the Contract in relation to the recovery of sums due but unpaid.
35.3 On giving notice to the Contractor of not less than 30 days, the Authority shall be entitled to assign any or all of its rights under the Contract to any Contracting Authority, provided that such assignment shall not materially increase the burden of the Contractor's obligations under the Contract.
35.4 The Contractor shall procure that its sub-contractors comply at all times with obligations no less onerous than those of the Contractor under this Contract and shall demonstrate such compliance to the Authority on the Authority’s reasonable request.
35.5 The Contractor shall be responsible for the acts and omissions of his sub-contractors as though they were his own.
35.6 The Contractor shall not use the services of self-employed individuals without prior Approval.
36 SERVICE OF NOTICES AND COMMUNICATIONS
36.1 Except as otherwise expressly provided within this Contract, no communication from one Party to the other shall have any validity under this Contract unless made in writing by or on behalf of the Party concerned.
36.2 Any notice or other communication which is to be given by either Party to the other shall be given by letter, or by facsimile transmission or electronic mail. If the other Party does not acknowledge receipt of any such letter, facsimile transmission or item of electronic mail, and, in the case of a letter, the relevant letter is not returned as undelivered, the notice or communication shall be deemed to have been given 3 Working Days after the day on which the letter was posted.
36.3 For the purposes of Condition 36.2, the address of each Party shall be:
a) The Authority's Representative: XXX
Xxxx Xxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
c) The Contractor's Representative LSE Enterprise
8th Xxxxx Xxxxx Xxx
Xxxxxxxx Xxxxxx Xxxxxx, XX0X 0XX.
36.4 Either Party may change its address for service by notice given in accordance with this Condition.
37.1 If any provision of this Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Contract shall continue in full force and effect as if the Contract had been executed with the invalid, illegal or unenforceable provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Contract, the Parties shall immediately commence negotiations in good faith to remedy the invalidity.
38.1 The failure of either Party to insist upon strict performance of any provision of the Contract, or the failure of either Party to exercise any right or remedy to which it is entitled under the Contract, shall not constitute a waiver and shall not diminish the obligations established by the Contract. A waiver of any breach shall not constitute a waiver of any other or subsequent breach.
38.2 No waiver of any provision of the Contract shall be effective unless it is expressly stated to be a waiver and communicated to the other Party in writing in accordance with Condition 36.
39.1 The Contract shall not be varied unless such variation is made in writing by means of a Variation to Contract Form as set out at Appendix A.
39.2 In the event of an emergency, the Authority shall have the right to vary the Contract by oral instructions given by the Authority's Representative, which shall be confirmed by the issue of a Variation to Contract Form within 7 days.
39.3 The Authority shall have the right to vary the Services at any time, subject to the Variation being related in nature to the Services being provided, and no such Variation shall vitiate the Contract. The procedure under Condition 39.5, for the Contractor to submit more than one quotation to the Authority, shall then be applied.
39.4 The Contractor may request a Variation provided that:
a.) the Contractor shall notify the Authority's Representative in writing of any additional or changed requirement which it considers should give rise to a Variation within seven days of such occurrence first becoming known to the Contractor;
b.) any proposed Variation shall be fully supported by more than one quotation as detailed in Condition 39.5.
39.5 The Contractor, within 14 days of being so requested by the Authority's Representative or where requesting a Variation pursuant to Condition 39.4, shall submit more than one quotation (from a variety of suitable potential suppliers) to the Authority, such quotations to contain at least the following information:
a) a description of the work together with the reason for the proposed Variation;
b) the price, if any, showing where applicable the Prices and Rates used; and c.) details of the impact, if any, on other aspects of the Contract.
39.6 The price for any Variation shall, unless otherwise agreed between the Parties, be based on the Prices and Rates.
39.7 The Authority shall either Approve or reject any Variation proposed by the Contractor.
39.8 In the event that the Contractor disputes any decision by the Authority to reject a proposed Variation or contends that a proposed Variation is outstanding or continues to be required, the Contractor shall update the information contained in his quotation for the proposed Variation every Month and shall send the updated information to the Authority.
40 FORCE MAJEURE
40.1 For the purposes of this Contract the expression "Force Majeure" shall mean any cause affecting the performance by a party of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control including (but without limiting the generality thereof) governmental regulations, fire, flood, or any disaster affecting a third party for which a substitute third party is not reasonably available. Any act, event, omission, happening or non-happening will only be considered Force Majeure if it is not attributable to the wilful act, neglect or failure to take reasonable precautions of the affected party, its contractors, agents or employees.
40.2 For the avoidance of doubt, both parties agree that any acts, events, omissions, happenings or non-happenings resulting from the adoption of the euro by the United Kingdom government shall not be considered to constitute Force Majeure under this Contract.
40.3 Neither party shall in any circumstances be liable to the other for any loss of any kind whatsoever including but not limited to any damages or abatement of Charges whether directly or indirectly caused to or incurred by the other party by reason of any failure or delay in the performance of its obligations hereunder which is due to Force Majeure. Notwithstanding the foregoing, each party shall use all reasonable endeavours to continue to perform, or resume performance of, such obligations hereunder for the duration of such Force Majeure event.
40.4 If either of the parties shall become aware of circumstances of Force Majeure which give rise to or which are likely to give rise to any such failure or delay on its part it shall forthwith notify the other by the most expeditious method then available and shall inform the other of the period which it is estimated that such failure or delay shall continue.
40.5 It is expressly agreed that any failure by the Contractor to perform or any delay by the Contractor in performing its obligations under this Contract which results from any failure or delay in the performance of its obligations by any person, firm or company with which the Contractor shall have entered into any contract, supply arrangement or sub-contract or otherwise shall be regarded as a failure or delay due to Force Majeure only in the event that such person firm or company shall itself be prevented from or delayed in complying with its obligations under such contract, supply arrangement or sub-contract or otherwise as a result of circumstances of Force Majeure.
40.6 For the avoidance of doubt it is hereby expressly declared that the only events which shall afford relief from liability for failure or delay shall be any event qualifying for Force Majeure hereunder.
41 TERMINATION ON INSOLVENCY OR CHANGE OF CONTROL
41.1 The Authority may terminate the Contract by written notice having immediate effect if:
a) the Contractor undergoes a change of control, within the meaning of section 416 of the Income and Corporation Taxes Xxx 0000, impacting adversely and materially on the performance of the Contract; or
b) where the Contractor is an individual or a firm, the Contractor or any partner in the firm becomes bankrupt or has a receiving order or administration order made against him; or makes any compromise or arrangement with or for the benefit of his creditors; or appears unable to pay a debt within the meaning of section 268 of the Insolvency Xxx 0000; or any similar event occurs under the law of any other jurisdiction in respect of the Contractor; or
c) where the Contractor is a company, the Contractor passes a resolution or the Court makes an order that the Contractor be wound up otherwise than for the purpose of solvent reconstruction or amalgamation; or a receiver, manager or administrator is appointed (whether out of court or otherwise) (or an application or petition is made in respect of the appointment of any of the foregoing) on behalf of a creditor in respect of the Contractor's business or any part of it; or the Contractor is unable to pay its debts within the meaning of section 123 of the Insolvency Xxx 0000 (on the basis that the words “proved to the satisfaction of the court” are deemed omitted from Sections 123(1)(e) and 123(2) of the 0000 Xxx); or any similar event occurs under the law of any other jurisdiction in respect of the Contractor.
41.2 The Authority may only exercise its right under Condition 41.1(a) within 6 Months after a change of control occurs and shall not be permitted to do so where it has agreed in advance to the particular change of control that occurs. The Contractor shall notify the Authority immediately when any change of control occurs.
42 TERMINATION ON DEFAULT
42.1 The Authority may terminate the Contract, or terminate the provision of any part of the Services, by written notice to the Contractor with immediate effect if the Contractor is in default of any obligation under the Contract and:
a) the Contractor has not remedied the default to the satisfaction of the Authority within 30 days after service of written notice specifying the default and requiring it to be remedied; or
b) the default is not capable of remedy; or
a) the default is a fundamental breach of the Contract.
43 TERMINATION FOR CONVENIENCE
43.1 The Authority shall have the right to terminate the Contract, or to terminate the provision of any part of the Services, at any time by giving 3 Months' written notice to the Contractor. The Authority may extend the period of notice at any time before it expires, subject to agreement on the level of Services to be provided by the Contractor during the period of extension. Termination under this provision shall not affect the rights of the Parties that have accrued up to the date of termination.
43.2 The rights to terminate set out in Conditions 41, 42 and 43 are the only circumstances in which this Contract may be terminated and the Contractor acknowledges that it shall have no right to terminate or treat itself as discharged at law. Furthermore, in circumstances where the Authority is entitled to terminate this Contract, it may also terminate this Contract in part.
44 CONSEQUENCES OF TERMINATION
44.1 If the Authority terminates the Contract under Condition 42, or terminates the provision of any part of the Services under that Condition, and then makes other arrangements for the provision of the Services, the Authority shall be entitled to recover from the Contractor the cost of making those other arrangements and any additional expenditure incurred by the Authority throughout the remainder of the Contract Period. Where the Contract is terminated under Condition 41, no further payments shall be payable by the Authority until the Authority has established the final cost of making those other arrangements.
44.2 If the Authority terminates the Contract, or terminates the provision of any part of the Services, under Condition 43, the Authority shall reimburse the Contractor in respect of any loss, not including loss of profit, actually and reasonably incurred by the Contractor as a result of the termination, provided that the Contractor takes immediate and reasonable steps, consistent with the obligation to provide the Services during the period of notice, to terminate all contracts with sub-contractors on the best available terms, to cancel all capital and recurring cost commitments, and to reduce Equipment and labour costs as appropriate.
44.3 For the purposes of Condition 44.2, the Contractor shall submit to the Authority's Representative, within 20 Working Days after service of the notice, a fully itemised and costed list, with supporting evidence, of all losses incurred by the Contractor as a result of the termination of the Contract, or the termination of any part of the Services, to be updated only in respect of ongoing costs each week until the Contract is terminated.
44.4 The Authority shall not be liable under Condition 44.2 to pay any sum which, when added to any sums paid or due to the Contractor under the Contract, exceeds the total sum that would have been payable to the Contractor if the provision of the Services had been completed in accordance with the Contract.
45 TRANSFER OF UNDERTAKING
45.1 The Parties recognise that the TUPE Regulations apply in respect of the award of the Contract and that for the purposes of those Regulations the undertaking concerned, or each relevant part of the undertaking, shall transfer to the Contractor on the Commencement of the Contract Period in respect of that undertaking or relevant part of the undertaking.
45.2 The Contractor shall indemnify the Authority against any claim made against the Authority at any time by any person currently or previously employed by the Authority or by the Contractor for breach of contract, loss of office, unfair dismissal, redundancy, loss
of earnings or otherwise (and all damages, penalties, awards, legal costs, expenses and any other liabilities incurred by the Authority) resulting from any act or omission of the Contractor after the commencement of the Contract Period, except where such claim arises as a result of any breach of obligations (whether contractual, statutory, at common law or otherwise) by the Authority arising or accruing before the Commencement of the Contract Period.
45.3 The Contractor shall indemnify the Authority from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with any claim by any person or any appropriate representative of that person relating to any failure by the Contractor to comply with the obligations of Regulation 13 of the TUPE Regulations.
45.4 The Contractor shall comply with all Codes of Practice, Statements of Practice or other relevant guidance on workforce matters relating to public sector service contracts and shall indemnify the Authority from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with any claim by any person or any appropriate representative of that person relating to any failure by the Contractor to comply with any such relevant Code of Practice, Statement of Practice or other guidance.
46 DISPUTE RESOLUTION
46.1 The Parties shall attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with the Contract by use of the following escalation procedure:
46.2 If the dispute cannot be resolved by the Parties pursuant to Condition 45.1, the dispute may, by agreement between the Parties, be referred to mediation pursuant to Condition 45.4.
46.3 The performance of the Services shall not cease or be delayed by the reference of a dispute to mediation pursuant to Condition 46.2.
46.4 The procedure for mediation and consequential provisions relating to mediation are as follows:
a) If the dispute or difference is not resolved pursuant to the escalation procedure set out above, either Party may (within fourteen (14) days of the last meeting pursuant to the escalation procedure), before resorting to litigation, propose to the other in writing that the dispute be settled by mediation in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure (the “Model Procedure”).
b) To initiate a mediation, a Party must give notice in writing (an “ADR Notice”) to the other Party requesting a mediation in accordance with the Model Procedure. A copy of the ADR Notice should be sent to CEDR.
c) If there is any point on the conduct of the mediation (including as to the nomination of the mediator) upon which the Parties cannot agree within fourteen
(14) days from the date of the ADR Notice, CEDR will, at the request of any Party, decide that point for the Parties, having consulted with them.
b) Mediation will commence no later than twenty-eight (28) days after the date of the ADR Notice.
47 LAW AND JURISDICTION
47.1 This Contract shall be governed by and interpreted in accordance with English Law and shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
48 RIGHTS OF THIRD PARTIES
48.1 Except where it is expressly provided otherwise, no person who is not a party to this Contract shall have any rights under the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this Contract.
49 COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS
49.1 The Contractor shall provide the goods and/or Services required under the Contract in accordance with applicable laws and the Authority’s environmental policy, which is to conserve energy, water and other resources, reduce waste and phase out the use of ozone depleting substances and minimise the release of greenhouse gases, volatile organic compounds and other substances damaging to health and the environment.
49.2 All written outputs, including reports, produced in connection with the Contract shall (unless otherwise specified) be produced on recycled paper containing at least 80% post consumer waste and used on both sides where appropriate.
50 CONFLICT OF INTEREST
50.1 The Contractor shall establish and maintain appropriate business standards, procedures and controls to ensure that no conflict of interest arises between Services undertaken for the Authority and that undertaken for other clients. The Contractor shall avoid knowingly committing any acts which are likely to result in any allegation of impropriety against the Authority, including conflicts of interest which are likely to prejudice his independence and objectivity in performing the Contract, howsoever arising.
50.2 The Contractor shall notify the Authority immediately of any circumstances of which it becomes aware which give rise or potentially give rise to a conflict with the Services and shall advise the Authority of how they intend to avoid such a conflict arising or remedy such situation. The Contractor shall subject to any obligations of confidentiality it may have to third parties provide all information and assistance reasonably necessary (at the Contractor's cost) that the Authority may request of the Contractor in order to avoid or resolve a conflict of interest and shall ensure that at all times they work together with the Authority with the aim of avoiding a conflict or remedy a conflict.
50.3 Pursuant to 50.2, the Authority shall have the right to require that the Contractor puts in place "Ethical Walls" and will ensure and satisfy the Authority that all information relating to the Contract and to the Services and Deliverables completed pursuant to it (to include all working papers, draft reports in both tangible and intangible form) are not shared or made available to other employees, contractors or agents of the Contractor and that such matters are not discussed by the relevant staff with other employees, contractors or agents of the Contractor.
50.4 In the event of a failure to maintain the "Ethical Walls" as described above arising during the course of this Contract, the Authority reserves the right to immediately terminate the Contract on giving written notice to the Contractor and to pursue the Contractor for damages.
50.5 To the extent that any of the Contractor's staff breach this Conflict of Interest Condition, the Contractor undertakes to keep the Authority fully and effectively indemnified in respect of all costs, losses and liabilities arising from any wrongful disclosure or misuse of the Confidential Information by the Contractor's staff. This indemnity shall be without prejudice to any other rights or remedies, including injunctive or other equitable relief, which the Authority may be entitled to, but for the avoidance of doubt shall be subject to the limitations of liability (including without limitation the cap on liability) set out in this Contract.
51.1 The parties acknowledge that, except for any information which is exempt from disclosure in accordance with the provisions of the FOI Act, the content of this Contract is not Confidential Information. The Authority shall be responsible for determining in its absolute discretion whether any of the content of the Contract is exempt from disclosure in accordance with the provisions of the FOI Act. Notwithstanding any other term of this Contract, the Contractor gives consent to the Authority to publish the Contract in its entirety, (but with any information which is exempt from disclosure in accordance with the provisions of the FOI Act redacted) including from time to time agreed changes to the Contract, to the general public.
51.2 The Authority may consult with the Contractor to inform its decision regarding any exemptions but the Authority shall have the final decision in its absolute discretion.
51.3 The Contractor shall assist and cooperate with the Authority to enable the Authority to publish this Agreement.
[See Condition 39]
VARIATION TO CONTRACT FORM
FOR THE PROVISION OF ………………………………………………..
CONTRACT REF: VARIATION No: DATE: / / 200.. BETWEEN:
The Secretary of State for Foreign and
] Commonwealth Affairs
(hereinafter called (hereinafter called
"the Authority") "the Contractor"
1. The Contract is varied as follows:
2. Words and expressions in this Variation shall have the meanings given to them in the Contract.
3. The Contract, including any previous Variations, shall remain effective and unaltered except as amended by this Variation.
SIGNED by the Parties in duplicate:
For: The Authority For: The Contractor
By: ........................................ By: ....................................
Full Name: ........................... Full Name: .......................
Title: ................……………. Title: .................................
Date: ..................................... Date: .................................
[See Condition 25.3]
(To be signed by persons employed in providing the services before being given access to Government information).
This Confidentiality Undertaking is made as a Deed by me, [insert full name] to the Secretary of State for Foreign and Commonwealth Affairs (the “FCO”) in connection with a contract between LSE Enterprise and the FCO for the provision of economics training levels 1 and 2.
I am employed by I have been informed that I may be required to work for my
employer in providing services to the Secretary of State for Foreign and Commonwealth Affairs.
I understand that information in the possession of the FCO or obtained from the FCO must be treated as confidential.
I hereby give a formal undertaking, as a solemn promise to my employer and to the FCO, that:
1. I will not communicate any of that information, or any other knowledge I acquire about the FCO in the course of my work, to anyone who is not authorised to receive it in connection with that work; and
2. I will not make use of any of that information or knowledge for any purpose apart from that work.
I acknowledge that this applies to all information that is not already a matter of public knowledge and that it applies to both written and oral information.
I also acknowledge that this undertaking will continue to apply at all times in the future, even when the work has finished and when I have left my employment.
I have also been informed that I will be bound by the provisions of the Official Secrets Acts 1911 to 1989. I am aware that under those provisions it is a criminal offence to disclose information that has been given to me or my employer by the FCO. I am aware that serious consequences (including criminal sanctions) may follow any breach of those provisions.
EXECUTED AS A DEED By:.........................……………………………………
Date of Signature: .........................................................................................
In the presence of (a) (witness)
Contractor's Name: ..............................…................................................................
Contract Reference No: ........................................................................................................