General terms and conditions
Terms and conditions for the supply of goods and / or services
These terms and conditions are the standard terms of business for the Mayor And Burgesses of the London Borough of Tower Hamlets (“the Council”) when the Council purchases GOODS and / or SERVICES. They apply to all purchases of Goods and / or Services by the Council unless otherwise specifically agreed in writing that other terms are to apply.
Where a Contractor purports to offer alternative terms and conditions for the purchase and supply of any Goods and Services the Contractor must assume that it is the Council’s intention to automatically reject such terms and always provide a counter offer for the purchase and supply of those Goods and Services on these terms.
This is the default position unless otherwise agreed in writing with the Council represented by the Council’s Corporate Director – Governance and Monitoring Officer or his / herduly authorised representative.
NOW IT IS HEREBY AGREED between the Council and the Contractor as follows:
(A) This Contract and the documents referred to herein constitute the entire Contract between the Council and the Contractor for the delivery and performance by the Contractor of the Goods and / or Services.
(B) The Contractor shall provide the Goods and / or Services fully in accordance with the provisions of the Contract tothe standards required during the Contract Period.
(C) So long as the Contractor shall continue to so provide the Goods and / or Services to the required standard the Council shall make to the Contractor the payments provided by the Contract on the terms contained therein inconsideration of the Contract Price.
1.1 The headings in this Contract shall not affect its interpretation.
1.2 References to any statute or statutory provision include a reference to that statute or statutory provision as fromtime to time amended, extended or re-enacted.
1.3 References to a statutory provision shall include any subordinate legislation made from time to time under that provision.
1.4 References to Sections, clauses and Appendices are to the Sections, clauses and Appendices of this Contract, unless expressly stated otherwise.
1.5 References to any body, organisation or office shall include reference to its applicable successor from time to time.
1.6 Use of the singular includes the plural and vice versa.
1.7 References to correspondence being in writing shall include all forms of electronic communication including but not exclusively the use of any relevant Council operated system.
1.8 In this Contract the following capitalised words shall have the relevant meanings ascribed to them as detailed below (unless the context suggests otherwise):
“2000 Act” means the Freedom of Information Act 2000 and any subordinate legislation made thereunder from time to time together with any guidance and codes of practice issued by the Information Commissioner in relation thereto
“Audit” and “Auditor” means an audit carried out pursuant to clause 33 and the National Audit Office or an auditor appointed by the Audit Commission (or replacement bodies) as the context requires
“Authorised Officer” means an officer of the Council responsible for the management of this Contract.
“Best Value Duty” means the duty imposed by section 3 of the Local Government Act 1999 (the LGA 1999) as amended, and under which the Council is under a statutory duty to continuously improve the way its functions are exercised, having regard to a combination of economy, efficiency and effectiveness and to any applicable guidance issued from time to time
“Business Day” means a day (other than a Saturday, Sunday or a public holiday In England)
“Confidential Information” means Information, data and material of any nature which either Party may receive or obtain in connection with the Contract and:
(i) which comprises Personal Data or Sensitive Personal Data (as both terms are defined in the DPL); or
(ii) the disclosure of which would or would be likely to prejudice the commercial interests of either Party or any other person and the public interest in maintaining non disclosure would out weigh the public interest in disclosure; or
(iii) the disclosure of which by the Council would constitute a breach of confidence actionable by the Contractor or a third Party
“Charges” means the price or prices stated in the Contractor’s Quote
“Commencement Date” means the date on which this Contract is deemed to be in force and of effect between the Parties being the date acceptance of the Contractor’s Quote is transmitted by the Council
“Community Benefits” means the Contractor’s commitment to the community as more particularly set out in the Contractor’s Quote appended therein.
“Conditions” means these terms and conditions as amended from time to time in accordance with clause 19.9.
“Contractor” means the person or firm or organisation from whom the Council purchases the Goods and / or Services as described in the Contractor’s Quote.
“Contract Period” means the period starting on the Commencement Date during which this Contract is of effect until the Termination Date between the Parties or until the obligations of both parties have been fulfilled unless the Contract is terminated in accordance with the Conditions or operation of ordinary Common Law principles
“Contractor’s Manager” means the Contractor’s manager responsible for the Goods and / or Services.
“Contractor Personnel” means the Contractor’s employees; agents; workers; volunteers and sub-contractors.
“Contractor’s Premises” means premises controlled or used by the Contractor for any purposes connected with the provision of the Services which may be set out or identified in the Request For Quotes
“Contractor’s Quote” means the response from the Contractor following receipt from the Council of the Council’s Request For Quotes.
(i) any permission, consent, approval, certificate, permit, licence, statutory agreement, authorisation, exception or declaration required by Law for or in connection with the performance of Services; and or
(ii) any necessary consent or agreement from any third party needed either for the performance of the Contractor’s obligations under this Contract or for the provision by the Contractor of the Services inaccordance with this Contract
“Council Materials” means has the meaning set out in clause 4.2(l).
“DBS Checks” means any or all of the following as defined by the Disclosure and Barring Service (and amendedfrom time to time):
(i) Enhanced DBS & Barred List Check
(ii) Enhanced DBS & Barred List Check (Child)
(iii) Enhanced DBS & Barred List Check (Adult)
(iv) Enhanced DBS & Barred List Check (Child & Adult)
(v) Enhanced DBS Check
(vi) Enhanced DBS Position
(vii) Standard DBS Check
(viii) Standard DBS Position
“Data Protection Legislation or DPL” means the General Data Protection Regulation (EU) 2016/679) (GDPR) until the GDPR is no longer applicable in the UK and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then any successor legislation to the GDPR or the Data Protection Act 1998 (DPA)
“Deliverable” means any product tangible or intangible resulting from the performance of the Services
“Delivery Location” means the address(es) for delivery of the Goods or the performance of the Services as set out in the Request For Quotes.
“Duty of Candour” means the Contractor’s obligation to be, amongst other things, open, transparent and candid with Service Users in connection with the Services that they receive from the Contractor
“Environmental Information Regulations” means the Environmental Information Regulations 2004
“Employment Checks” means the pre-appointment checks that are required by Law, including without limitation, verification of identity checks, right to work checks, registration and qualification checks, employment history and reference checks, and occupational health checks
“Events” means any events or other activities which the Contractor is required to organise, coordinate or implementas part of the provision of the Services
“Equipment” means the Contractor’s equipment, plant, materials and such other items supplied and used by the Contractor in the performance of its obligations under this Contract
“Expiry Date” means the date in which this Contract ends as stated in the Request For Quotes or until the obligations of both parties have been fulfilled or until the Contract is terminated in accordance with the Conditions or operation of ordinary Common Law principles which ever is the sooner
“FOIA” means the Freedom of Information Act 2000 and any subordinate legislation made under this Act from time totime together with any guidance and/or codes of practice issued by the Information Authority or relevant government department in relation to such legislation and the Environmental Information Regulations 2004
“Goods” means the goods and related accessories, spare parts and documentation and other physical material set out in the Request For Quotes or as reasonably understood by the parties to be included in the Goods
“FOIA” means the Freedom of Information Act 2000 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 Authority or relevant governmentdepartment in relation to such legislation and the Environmental Information Regulations 2004
“Health and Safety Regulations” means those health and safety regulations and Law which are applicable to the Services and which the Contractor knows or ought to be aware of and understand for the provision of the Services
“Health and Safety Executive” means health and safety laws and regulations that are determined by this body
“Intellectual Property Rights” means any patent, patent application, know how, trade mark or name, service mark, design right, registered design, copyright, moral right, rights in commercial or technical information or any other intellectual property rights, whether registered or unregistered and including applications for the grant of any such rights and all rights or forms of protection having equivalent or similar effect anywhere in the world
(i) any applicable statute or proclamation or any delegated or subordinate legislation or regulation;
(ii) any enforceable EU right within the meaning of Section 2(1) of the European Communities Act 1972;
(iii) any applicable judgment of a relevant court of law which is a binding precedent in England and Wales;
(iv) National Standards; and
(v) any applicable industry code in each case in force in England and Wales
“London Living Wage” means an hourly rate of pay set by the Resolution Foundation , or its equivalent as notified from time to time applied in a manner as overseen by the Living Wage Commission
“National Standards” means those standards applicable to the Contractor under the Law as amended from time to time.
“Performance Reports” means a report to be produced and provided to the Council for the purposes of performance monitoring as may be more particularly set out in the Request For Quotes or as required by the Council from time to time.
“Prohibited Act” means the same as defined under the Bribery Act 2010.
“Request For Quotes” means a request made by the Council to the Contractor inviting a quote to be submitted for the potential supply of Goods and or Services.
“Review Meetings” means meetings between the Council and the Contractor in order to discuss any and all aspects of the performance of this Contract
“Services” means the services, including without limitation any Deliverables, to be provided by the Contractor under the Contract as set out in the Service Request For Quotes.
“Request For Quotes” means the invitation by the Council inviting the submission of a written quote on the Council’s System which describes the Goods and / or Services to be provided.
“Stage” means a defined section of the Request For Quotes which results in the production of a Deliverable
“Successor Provider” means any provider to whom a member of Staff is transferred pursuant to TUPE in relation to the Services immediately on termination or expiry of this Contract
“TUPE” means the Transfer of Undertakings (Protection of Employment) Regulations 2006
2. BASIS OF CONTRACT AND SCOPE OF GOODS AND / OR SERVICES
2.1 The Council shall have made a Request For Quotes and the Contractor shall have submitted to the Council the Contractor’s Quote in writing.
2.2 If the Council decides to accept the Contractor’s Quote it shall do so by communicating the same in writing.
2.3 This Contract shall commence on the Commencement Date and shall continue until the Expiry Date.
2.4 Throughout the Contract Period the Contractor shall perform any Services and or provide any Goods always in accordance with the Request For Quotes and the Contractor’s Quote and in accordance with the Law.
2.5 In the event of a conflict between a provision in the Request For Quotes and the Contractor’s Quote the provision in the Request For Quotes shall prevail.
2.6 The Contractor shall be deemed to have obtained for itself all necessary information as to risks, contingencies and any other circumstances which might reasonably influence or affect the Contractor’s ability to perform the Services.
2.7 The Council does not warrant the truth or accuracy of any representation which may have been made to the Contractor prior to its entering into this Contract and the Contractor acknowledges that it did not rely upon anyrepresentations made by or on behalf of the Council or either of them when entering into this Contract.
2.8 These Conditions apply to the Contract to the exclusion of any other terms that the Contractor seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. COUNCIL'S OBLIGATIONS
3.1 During the Contract Period and provided always that the Contractor has complied with its obligations hereunder the Council shall:
3.1.1 pay to the Contractor the Charges pursuant to the provisions of the Contract;
3.1.2 provide such information as the Contractor may reasonably request in respect of the provision of the Goods and / or Services and as the Council considers reasonably necessary for the purpose of providing this Contract; and
3.1.3 comply with the terms of this Contract.4.
4. CONTRACTOR’S OBLIGATIONS
4.1 The Contractor shall meet any dates and other requirements for the Goods and / or Services specified in the Request For Quotes and/or notified to the Contractor by the Council from time to time.
4.2 In providing the Goods and / or Services the Contractor shall:
4.2.1 co-operate with the Council in all matters relating to the Goods and / or Services and comply with all instructions of the Council;
4.2.2 perform the Services and provide the Goods with the best care, skill and diligence in accordance with best practice in the Contractor's industry, profession or trade;
4.2.3 use Contractor’s Personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Contractor's obligations are fulfilled in accordance with this Contract;
4.2.4 ensure that the Goods and / or Services and Deliverables conform with all descriptions and specifications set out in the Request For Quotes and or the Contractor’s Quote, and that the Goods and or Deliverables shall be fit for any purpose expressly or impliedly made known to the Contractor by the Council particularly but not exclusively as could be reasonably derived from the information stated in the Request For Quotes;
4.2.5 ensure that the Goods are of reasonably satisfactory quality and notwithstanding the provisions of clause 4.2.4 fit for any purpose held out by the Contractor or for which the Goods were made and in this respect the Council relies on the Contractor's skill and judgment;
4.2.6 provide all equipment, tools and vehicles and such other items as are required to provide the Goods and /or Services;
4.2.7 ensure that the Goods are delivered or the Services performed by the Contractor to or at the DeliveryLocation on the date[(s)] specified in the Request For Quotes. The Goods will be delivered by the Contractor only on completion of unloading (or such other instructions of the Council) of the Goods at the Delivery Location.
4.2.8 not deliver and/or install the Goods in instalments without the Council's prior written consent. Where it isagreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Contractor to deliver and/or install any one instalment on time or at all or anydefect in an instalment shall entitle the Council to the remedies set out in clause 5;
4.2.9 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all Goods and materials supplied and used in the Goods and / or Services or transferred to the Council, will be free from defects whether in workmanship, installation and or design;
4.2.10 obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;
4.2.11 observe all health and safety rules and regulations and any other security requirements that apply at any of the Council's premises;
4.2.12 hold all materials, equipment and tools, drawings, Request For Quotes and data supplied by the Council to the Contractor (Council Materials) in safe custody at its own risk, maintain the Council Materials in good condition until returned to the Council, and not dispose or use the Council Materials other than in accordance with the Council's written instructions or authorisation;
4.2.13 not do or omit to do anything which may cause the Council to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Contractoracknowledges that the Council may rely or act on the Services; and
4.2.14 where applicable pay the London Living Wage to the Contractor’s Personnel.
4.3 The Contractor shall attend Review Meetings and submit Performance Reports on the dates, times and in themanner stipulated in the Request For Quotes or if not so stipulated in such a manner as is reasonably requested by the Council from time to time and as the case may be to discuss and review the performance of the Contract
4.4 In the event the Council reasonably so requests and in light of the Review Meetings referred to in clause 4.3, theContractor shall make reasonable adjustments to the Goods and / or Services.
5. CONTRACTOR’S PERSONNEL
5.1 At all times, the Contractor, must ensure that:
5.1.1 each of the Staff is suitably qualified and trained (which for the avoidance of doubt constitutes attainment of the training courses or qualifications that may be particularly set out in the Request For Quotes), experienced and legally able to work and capable of providing the applicable Services in respect of which they are engaged;
5.1.2 there is an adequate number of Staff or volunteers to provide the Services properly in accordance with the provisions of the Request For Quotes;
5.1.3 the Contractor shall only use such volunteers who are competent and have an appropriate level of skill, knowledge, training and qualifications to provide the Services (and for the avoidance of doubt suchtraining and qualifications shall constitute attainment of the training courses or qualifications that may beparticularly set out in the Request For Quotes);
5.1.4 where applicable, Staff and volunteers are registered with the appropriate professional Regulatory Body;
5.1.5 Staff are aware of and respect equality and human rights of colleagues and Service Users;
5.1.6 current and accurate records of all Staff engaged in the provision of the Services are maintained throughout the Contract Period including but not limited to Staff attendances, sickness, roles and salary bandings and provide such records to the Council within 10 Business Days of any requests for the same made by the Council;
5.1.7 current and accurate records of all work carried out for the provision of the Services and or supply of Goods are available for inspection by the Council on reasonable notice and in any event within 10 Business Days of any requests for the same made by the Council;
5.1.8 the Contractor does not cause any member of the Contractor’s Staff to become an employee of the Council; and
5.1.9 the Contractor or its Staff shall not hold themselves out as being the employee or agent of the Council.
5.2 Subject to clause 14 before the Contractor engages or employs any person in the provision of the Services, or in any activity related to, or connected with, the provision of the Services, the Contractor must without limitation,complete:
5.2.1 the Employment Checks;
5.2.2 immigration checks; and
5.2.3 any one or more of the DBS Checks or as required by any Regulatory Body and or as the Council otherwise reasonably directs.
5.3 Any DBS check shall be performed in accordance with the then current Code Of Practice implemented in accordance with section 12(2) of the Police Act 1997 and the Contractor shall also perform a check on the relevant Barred List where the role of the relevant employee is one which is covered by the appropriate legislation
5.4 Subject to clause 14 in any event the Contractor shall not employ any members of its staff on any services thatdeal with children young persons and or vulnerable adults or include the handling of money or any such other services where the veracity of the employee is paramount where such a member of staff has a conviction relating to fraudulent, violent and or sexual activity.
5.5 Where the Council has notified the Contractor that it intends to tender or retender any of the Services, the Contractor must on written request of the Council and in any event within 20 Business Days of that request (unless otherwise agreed in writing), provide the Council with all reasonably requested information on the Staff engaged in the provision of the Services to be tendered or retendered that may be subject to TUPE to at least a level sufficient for a tenderer to determine the overall cost of employing such Staff. In the event that the Contractor fails to comply with this clause the Council shall be entitled to deduct a proportion of the Charges that would be due to the Contractor. In the event that the Council suffers loss or becomes liable to pay additional sums to any Successor Provider which have arisen out or in connection with TUPE Regulations as a result of the Contractor’s failure to cooperate and provide the information requested at the requested time under this clause the Council shall be entitled to recover such additional costs payable to any Successor Provider from the Contractor on an indemnity basis.
5.6 For the purpose of clause 5.5, the Contractor shall keep and provide the information such records and data as the Council reasonably requires and the Contractor warrants that the information it shall provide will be true and accurate in all material respects and comply with the DPL.
5.7 The Contractor shall indemnify and keep indemnified the Council and any Successor Provider against any losses incurred by the Council and/or the Successor Provider in connection with any claim or demand by any transferring employee under TUPE.
5.8 The Contractor undertakes to cooperate fully and in good faith with the Council in connection with any succession plan.
6. PERFORMANCE REVIEW
6.1 Upon completion of the Services or at the end of any Stage (where applicable) the Contractor shall deliver to the Council a Performance Report against any such Stage or Deliverable at a frequency reasonably directed by the Council (in the event that such frequency is not more particularly set out in the Request For Quotes).
6.2 The Council will review the relevant Deliverable and Stage and the performance of the Services generally.
6.3 Where the monitoring referred to in this clause 6 indicates poor performance of the Services by the Contractor and or failures in any Goods or Deliverable the Council shall notify the Contractor of such poor performance and the Contractor shall remedy such poor performance within the reasonable timescale determined by the Council entirely at the Contractor’s expense. In the event that the Contractor fails to remedy the poor performance the Council shall be entitled to:
6.3.1 reasonably extend or revise the timescales for remediation and withhold or reduce a proportionate amount of the Charges payable by the Council from the date of such extension until such time as the poor performance has been appropriately remedied or;
6.3.2 terminate this Contract forthwith without liability to the Contractor for any losses or indirect losses howsoever they may accrue.
7. CHARGES AND PAYMENT
7.1 Subject to satisfactory performance of the Services, the Council shall pay the Contractor the Charges on thebasis as more particularly set out in the Contractor’s Quote and the Charges in respect of the same shall includeevery cost and expense of the Contractor howsoever incurred whereupon the Council shall not be liable to payany further sums to the Contractor unless otherwise agreed in writing by the Council pursuant to the terms of this Contract.
7.2 Prior to payment of the Charges the Contractor shall submit to the Council an Invoice. Each invoice shall include (but not exclusively):
7.2.1 the Council specific identifying order reference;
7.2.2 details of the Services and or Goods to which the invoice relates;
7.2.3 details of a contact within the Contractor’s organisation to which queries relating to the invoice may be directed; and
7.2.4 a separate reference for a deduction in respect of value added tax.
7.3 The Council shall pay a correct invoice within 30 days of receipt of such invoice.
7.4 In the event of a dispute relating to the sum owing under any presented invoice the Council shall pay such part of the invoice as is not in dispute.
7.5 Where a debt falls due under this Contract to which the Late Payments Of Commercial Debts (Interest) Act 1998 applies the relevant rate shall be deemed to be 2% above base rate of the Co-Operative Bank PLC per annum and calculated on a daily basis, which the parties hereto agree shall be a substantial remedy to deter late payment.
7.6 For the avoidance of doubt the Charges shall not be inclusive of value added tax.
8. ADDITIONAL SERVICES AND BEST VALUE DUTY
8.1 The Council may request a variation to the Services in writing
8.2 Upon receipt of the request referred to in clause 8.1 the Contractor shall provide to the Council a written response detailing at least:
8.2.1 a statement as to how additional services will be provided; and
8.2.2 any variation in price (including a decrease in price where the total Services to be provided are reduced);and
8.2.3 a statement detailing the impact on the remainder of the Services caused by such a variation.
8.3 In any event the Contractor shall not act on any proposed variation until the Council has agreed the response referred to in clause 8.2 in writing and the Contract shall remain unvaried until such time. For avoidance of doubt, the Council shall not be liable under any circumstances for any costs and expenses incurred by the Contractor for additional services which have not been approved in writing by the Council.
8.4 The Contractor shall co-operate with and assist the Council in fulfilling its Best Value Duty.
8.5 In addition to the Contractor’s obligations under clause 8.4, where reasonably requested by the Council, the Contractor at its own cost shall participate in any relevant Best Value Duty reviews and or benchmarking exercises (including without limitation providing information for such purposes) conducted by the Council and shall assist the Council with the preparation of any Best Value Duty performance plans.
9.1 The Council may terminate this Contract for whatever reason and without liability by giving not less than one month’s written notice to the Contractor. In doing so, the Council shall not incur any liability whatsoever, save in respect of any payment regarding correctly performed Services delivered at that date.
9.1.1 The Council may terminate this Contract by giving written notice to the Contractor in the event that the Contractor breaches a term of this Contract which is material; |or
9.1.2 breaches any term of this Contract three times or breaches any three terms throughout the Contract Period whether or not the relevant term or terms is or are material to this Contract;
9.2 The Council may terminate this Contract forthwith by notice in writing given to the Contractor in the event that:
9.2.1 the Contractor ceases to trade;
9.2.2 the Contractor makes a voluntary agreement with its creditors to arrange repayment of outstanding sums;
9.2.3 an administrator and or administrative receiver is appointed to manage the affairs of the Contractor;
9.2.4 the Contractor’s business is taken over in whole or in part either by sale of a controlling interest in the share capital of the Contractor or by a sale of the assets relevant to the part of the Contractor’s business that is performing this Contract.
9.2.5 It is subsequently determined that IR35 applies to any person engaged on the provision of Services
9.3 For the avoidance of doubt the allowance of the actions detailed in clause 9.3 and the subsequent sub-clauses constitute a material breach of this Contract.
9.4 In addition to the above clauses in relation to termination, the Council may terminate this Contract where:
9.4.1 the Contract has been subject to a substantial modification which would have required a new procurement procedure in accordance with regulation 72(9) of the Public Contracts Regulations 2015;
9.4.2 the Contractor has, at the time of contract award, been in one of the situations referred to in regulation57(1) and 57(2) of the Public Contracts Regulations 2015; and
9.4.3 the contract should not have been awarded to the Contractor in view of a serious infringement of the obligations under the Treaty on European Union, Treaty on the Functioning of the European Union(“TFEU”) and the Public Contracts Directive that has been declared by the Court of Justice of the European Union in a procedure under Article 258 of TFEU.
9.5 Notwithstanding the provisions of clause
9.2.5 the Council may make any deductions it thinks appropriate or take such other action as is reasonable in the circumstances relating to the application of IR35
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights existing prior to the commencement of this Contract shall remain the property of the respective party who owned the Intellectual Property Rights prior to the commencement of the Contract.
10.2 All Intellectual Property Rights in any and all Deliverables produced by the Contractor in performance of this Contract shall vest in the Council.
10.3 Where the Intellectual Property Rights referred to in clause 10.2 cannot vest in the Council because they are based upon Intellectual Property Rights owned by a third party then the Contractor shall ensure that the Council is granted sufficient licence to use such Deliverables unencumbered for the purposes for which the Deliverables are intended to be used under this Contract at no further cost to the Council.
10.4 In the event of notification of an actual or threatened claim that any Deliverables breaches the Intellectual Property Rights and or moral rights of a third party received by either party the recipient of the notification shall immediately notify the other party and in any event the Service Provider Contractor shall indemnify the Council against any loss claim and expenditure incurred by the Council resulting from the actual or threatened breach of any third party Intellectual Property Rights and or moral rights.
11.1 The Contractor shall keep the Council indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Council as a result of or in connection with:
11.1.1 any claim made against the Council by a third party for death, personal injury or damage to property arising out of, or in connection with the Goods and / or Services, to the extent that any defect in the Goods and / or Services is attributable to the acts or omissions of the Contractor, its employees, agents or subcontractors;
11.1.2 any claim made against the Council by a third party arising out of, or in connection with, the delivery and supply of the Goods and / or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Contractor, its employees, agents or subcontractors; and
11.1.3 any claim made against the Council for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with the use or supply of the Goods and / or Services or any Deliverables.
11.2 For the duration of the Contract, the Contractor shall maintain in force, with a reputable insurance company, at a minimum, employers liability insurance to the statutory minimum value and public liability insurance to a level of At least two million pounds to cover the liabilities that may arise under or in connection with this Contract and shall, on the Council's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
12.1 The Contractor shall not without the written consent of the Council during the Contract Period or at any time thereafter make use of for its own purposes or disclose to any person (except as may be required by law), the provisions of the Contract which shall be deemed confidential.
12.2 The Contractor shall not and shall ensure that the Contractor’s Personnel do not divulge to any third party any information relating to the provision of the Goods and / or Services without the express written permission of the Council other than as may be permitted by the terms of the Contract.
12.3 The Contractor’s duty of disclosure shall be subject to any legal requirements to the contrary.
12.4 The Contractor shall fully and promptly indemnify and keep fully indemnified the Council against all actions, demands, proceedings, damages, costs, charges and expenses whatsoever in respect of any breach by the Contractor of this Condition. Such indemnity shall be without prejudice to any other rights of the Council.
12.5 The Contractor acknowledges to the Council that nothing in this clause 12 shall fetter or affect the Council’s discretion and or obligations under the DPL, the FOIA or the Environmental Information Regulations.
13. DATA PROTECTION
13.1 The parties acknowledge their respective duties under the Data Protection Legislation. The Contractor shall comply with its obligations, whether as data controller, data processor or otherwise under the DPL in so far as applicable to the performance of its obligations under this Contract.
13.2 If the Contractor is a Data Processor on behalf of the Council and processes Personal Data (as defined under Data Protection Legislation), the Contractor shall comply with the Data Protection Legislation and as a general obligation, obtain the direct positive consent for release of Personal Data information together with taking into account the nature, scope, context of processing throughout the Contract Period, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risks including;
13.2.1 the pseudonmisation and or encryption of Personal Data;
13.2.2 ensuring the on-going confidentiality, integrity, availability and resilience of processing systems and services;
13.2.3 ensuring that the availability of and access to Personal Data can be restored in a timely manner in the event of physical or technical incidents; and13.2.4 a process for regularly testing, assessing and evaluating the effectiveness of security systems;
13.2.5 not to transfer Personal Data outside of the EEA without the Council’s consent and required assurances.
13.3 In the event the Contractor receives Subject Access Requests and other Data Subject Rights under Articles 16 to22 of the GDPR (as defined therein), the Contractor must inform the Council within 24 hours and provide all reasonable cooperation requested by the Council and abide by its reasonable instructions in relation to them.
13.4 The Contractor shall not process special categories of Personal Data as stipulated by Article 9.1 of the GDPR expect where the conditions in Article 9.2 of the GDPR. The Council may require a separate schedule for GDPR.
13.5 In the event the Contractor commits any Personal Data breaches, it shall inform the Council within 24 hours, provide the information required by Article 33.2 of the GDPR, provide a remedial action plan and where appropriate under Data Protection Legislation confirm that it has notified the Data Subject of any such breach.
13.6 The Contractor shall maintain complete and accurate records and information of its compliance with this clause 13 and of Data Protection Legislation generally and allow the Council to carry out audits on reasonable notice and the Contractor shall cooperate and assist the Council with data impact assessments as required by the GDPR.
13.7 The Contractor shall not appoint a subcontractor to sub-process (Sub-Processor) without the Council’s written consent and presenting its due diligence on the Sub-Processor’s business, systems and written contract.
13.8 The Council may terminate this Contract if the Contractor breaches any terms of this clause 13 and remove all data relevant to the Services and Data Subjects on its systems, return all appropriate copies of information the subject of GDPR as requested and certify compliance of its compliance with the Council’s detailed instructions.
13.9 The Contractor shall indemnify the Council against all claims, proceedings and all liability, loss costs and expenses incurred by it resulting from the Contractor’s failure to comply with Data Protection Legislation.
14.1 The Council is committed to the protection of children and vulnerable adults. If the Contractor provides Services to persons under the age of 18 or to vulnerable adults and employs Staff in a position whose duties include caring for, training, supervising or being responsible in some way for children or vulnerable adults or who have access to records of information about any of these individuals, the Contractor must ensure that all such Staff and volunteers receives an Enhanced DBS Check or Enhanced DBS & Barred List Check (as appropriate) before such Staff commence relevant activities in connection with this Contract.
14.2 The Contractor shall (promptly on the Council’s request from time to time) issue the Council with a certificate certifying the Contractor’s proper compliance with clause 14.1 in relation to all relevant Staff engaged in the provision of the Services at the time. Such certificate shall be in a form approved by the Council from time to time (acting reasonably).
14.3 The Contractor must make available to the Council for inspection (with all relevant consents in place for the purposes of the DPL) all relevant records to evidence its compliance with clause 14.1.
14.4 The Contractor must ensure that Enhanced DBS Check or Enhanced DBS & Barred List Check (as appropriate) are updated for all relevant Staff and volunteers within three years of the most recent disclosure.
14.5 The Contractor must not allow those of its Staff or volunteers whose Enhanced DBS Check or Enhanced DBS & Barred List Check (as appropriate) reveal serious and adverse matters to have access to children under 18 years of and or vulnerable adults, and or access to records relevant to such children and or vulnerable adults. If any individual is recorded on any of the DBS Checks then they are deemed unsuitable to work with these groups or to have access to records relevant to them.
14.6 Any Staff carrying out any Services on behalf of the Contractor shall be subjected to the Contractor’s disciplinary procedure if the Council so requires in writing (within reasonable grounds).
14.7 The Contractor shall promptly remove relevant Staff from relevant duties in connection with this Contract if requested in writing by the Council (with reasonable grounds) to do so. Reasonable grounds includes, without limitation, where serious misconduct of the relevant Staff in relation to his or her duties for the provision of the Services.
14.8 The Contractor’s failure to comply with this clause 14 shall be regarded as a material breach of this Contract.
14.9 Subject to clause 14.10, the Contractor may engage a person in a Standard DBS Position or an Enhanced DBS Position (as applicable) pending the receipt of the Standard DBS Check or Enhanced DBS Check or Enhanced DBS & Barred List Check (as appropriate) with the agreement of the Council.
14.10 Where clause 14.9 applies, the Contractor will ensure that until the Standard DBS Check or Enhanced DBS Check or Enhanced DBS & Barred List Check (as appropriate) is obtained, the following safeguards will be put in place:
14.10.1 an appropriately qualified and experienced member of Staff is appointed to supervise the new member of Staff/volunteers; and
14.10.2 wherever it is possible, this supervisor is on duty at the same time as the new member of Staff or volunteer, or is available to be consulted; and
14.10.3 the new member of Staff or volunteer is accompanied at all times by another member of Staff, preferably the appointed supervisor, whilst providing services under this Contract; and
14.10.4 any other reasonable requirement of the Council.
14.11 In any event the Contractor shall not employ any member of its Staff on the provision of the Services who has a previous conviction (spent or otherwise) of a violent dishonest and or sexual nature.
14.12 If the Contractor is registered under the Care Quality Commission (“CQC”) the Contractor acknowledges and agrees that it is subject to the Duty of Candour and hereby warrants that it shall comply with the Law in relation to or in connection with the Duty of Candour. If the Contractor is not CQC registered then it shall at all times actin an open, transparent and candid manner in any event and shall conduct itself in a manner equivalent or comparable to the Duty of Candour.
14.13 The Contractor shall, prior to the commencement of any Services, inform the Council, if any of its employees, agents or volunteers or the sub-contractor’s employees, agents or volunteers engaged in providing any Services have declared any serious unspent convictions at the time of the recruitment.
14.14 Pursuant to Clause 14.13, the Council shall write to the Contractor in accordance to clause 14.7.
15. FREEDOM OF INFORMATION
15.1 The parties acknowledge their respective duties under the FOIA and must give all reasonable assistance to each other where appropriate or necessary to comply with such duties.
15.2 The Contractor acknowledges that the Council is subject to the requirements of the FOIA and will assist and cooperate with the Council to enable the Council to comply with its disclosure obligations under the FOIA. Accordingly the Contractor agrees:
15.2.1 that this Contract and any other recorded information held by the Contractor on the Council’s behalf for the purposes of this Contract are subject to the obligations and commitments of the Council under the FOIA;
15.2.2 that the decision on whether any exemption to the general obligations of public access to information applies to any request for information received under the FOIA is a decision solely for the Council;
15.2.3 that if the Contractor receives a request for information under the FOIA, it will not respond to such request (unless directed to do so by the Council) and will promptly (and in any event within 2 Business Days) transfer the request to the Council;
15.2.4 that the Council, acting in accordance with the codes of practice issued and revised from time to time under both section 45 of the FOIA, and regulation 16 of the Environmental Information Regulations 2004, may disclose information concerning the Contractor and this Contract either without consulting with the Contractor, or following consultation with the Contractor and having taken its views into account; and
15.2.5 to assist the Council in responding to a request for information, by processing information or environmental information (as the same are defined in the FOIA) in accordance with a records management system that complies with all applicable records management recommendations and codes of conduct issued under section 46 of the FOIA, and providing copies of all information requested by a Council within 5 Business Days of such request and without charge.
15.3 The Parties acknowledge that, except for any information which is exempt from disclosure in accordance with the provisions of the FOIA, the content of this Contract is not Confidential Information. Notwithstanding any other provision of this Contract, Contractor hereby consents to the publication of this Contract in its entirety including from time to time agreed changes to this Contract subject to the redaction of information that is exempt from disclosure in accordance with the provisions of the FOIA.
16. PREVENTION OF BRIBERY
16.1 The Contractor:
16.1.1 shall not, and shall procure that Contractor Personnel shall not, in connection with this Contract commit a Prohibited Act;
16.1.2 warrants, represents and undertakes that it is not aware of any financial or other advantage being given to any person working for or engaged by the Council, or that an agreement has been reached to that effect, in connection with the execution of this Contract, excluding any arrangement of which full details have been disclosed in writing to the Council before execution of this Contract.
16.2 The Contractor shall:
16.2.1 if requested, provide the Council with any reasonable assistance, at the Council's reasonable cost, to enable the Council to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with the Bribery Act;
16.2.2 within 14 Business Days of the Start Date, and annually thereafter, certify to the Council in writing (such certification to be signed by an officer of the Contractor) compliance with this clause 14 by the Contractor and all persons associated with it or other persons who are supplying goods or services in connection with this Contract. The Contractor shall provide such supporting evidence of compliance as the Council may reasonably request.
16.3 The Contractor shall have an anti-bribery policy (which shall be disclosed to the Council) to prevent any Contractor Personnel from committing a Prohibited Act and shall enforce it where appropriate.
16.4 If any breach of clause 16 is suspected or known, the Contractor must notify the Council immediately.
16.5 If the Contractor notifies the Council that it suspects or knows that there may be a breach of clause 14, the Contractor must respond promptly to the Council's enquiries, co-operate with any investigation, and allow the Council to audit books, records and any other relevant documentation. This obligation shall continue for 6 years following the expiry or termination of this Contract.
16.6 The Council may terminate this Contract by written notice with immediate effect if the Contractor, or Contractor Personnel (in all cases whether or not acting with the Contractor's knowledge) breaches clause 14. In determining whether to exercise the right of termination under this clause 14.6, the Council shall give all due consideration, where appropriate, to action other than termination of this Contract unless the Prohibited Act is committed by the Contractor or a senior officer of the Contractor or by an employee, sub-contractor or supplier not acting independently of the Contractor. The expression "not acting independently of" (when used in relation to the Contractor or a sub-contractor) means and shall be construed as acting:
16.6.1 with the Council; or,
16.6.2 with the actual knowledge;
16.6.3 of any one or more of the directors of the Contractor or the sub-contractor (as the case may be); or
16.6.4 in circumstances where any one or more of the directors of the Contractor ought reasonably to have had knowledge.
16.7 Any notice of termination under clause 16.6 must specify:
16.7.1 the nature of the Prohibited Act;
16.7.2 the identity of the party whom the Council believes has committed the Prohibited Act; and
16.7.3 the date on which this Contract will terminate.
16.8 Despite condition 16 (Disputes), any dispute relating to:
16.8.1 the interpretation of this clause 16; or
16.8.2 the amount or value of any gift, consideration or commission, shall be determined by the Council and its decision shall be final and conclusive.
16.9 Any termination under clause 16.6 will be without prejudice to any right or remedy which has already accrued or subsequently accrues to the Council.
17. EQUALITY AND DIVERSITY
17.1 The Contractor's equalities policy shall be notified to all members of the Contractor's Personnel involved in the delivery and performance of the Goods and / or Services under this Contract.
17.2 The Contractor may be required to provide to the Council copies of such instructions, documents, advertisements and other literature and details of monitoring applicants and employees for the purpose of assessing the Contractor's compliance with this Condition.
17.3 The Contractor warrants that its policy complies with the statutory obligations set down in the all current equalities legislation including but not limited to the Equalities Act 2010 and that it shall not treat one group of people less favourably than others because of any protected characteristic in relation to the provision of the Goods and / or Services or to decisions to recruit, train, promote, discipline or dismiss staff, and such policy must also specify that the Contractor will not tolerate behaviour, which is inconsistent with it and the detailed measures it will take if this occurs. The Contractor shall also take all reasonable steps to ensure that all staff, suppliers and sub-Contractors meet their obligations under the Equality Act.
17.4 The Contractor shall observe as far as possible the Equality & Human Rights Commission’s Code of Practice on Employment and non-statutory guidance which gives practical guidance to employers and others on equalities issues. The Contractor shall provide such information as the Council may reasonably require to enable it to assess the Contractor’s compliance with the said Code of Practice and guidance.
17.5 The Contractor shall support the Council in observing the requirements of all equalities legislation and policy relating to equalities and the Public Sector Equality Duty and the requirement for public bodies to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity, and foster good relations across all aspects of equality protected by the Equality Act.
17.6 If any court or tribunal, or the Commission for Equality and Human Rights, should make any finding of unlawful discrimination against the Contractor, then the Contractor shall immediately notify the Contract Manager and take all necessary steps to prevent recurrence of such unlawful discrimination. The Council may require the Contractor to provide full details of the steps taken to prevent such recurrence.
17.7 In the delivery and performance of the Goods and / or Services and in its dealings with service users, Council employees and members of the general public, the Contractor shall comply and shall ensure that its representatives comply with the Human Rights Act 1998 as if the Contractor were a public body, and all laws relating to equal opportunities.
17.8 The Contractor shall indemnify and keep the Council so indemnified against all direct and indirect claims, costs, losses and expenses arising out of a breach of any of the provisions of this Condition 17.18.
18.1 During any dispute, including but not limited to any dispute as to the validity of this Contract, it is mutually agreed that the Contractor shall continue its performance of the provisions of the Contract unless the Council requests inwriting that the Contractor ceases performance.
18.2 If any dispute arises out of or in connection with the Contract, the parties shall promptly notify each other of the matter in dispute (“Dispute”), which shall in the first instance be referred to the Authorised Officer and the Contractor’s Manager who shall use all reasonable skill, care and diligence to ensure that they receive the views of all parties and consider all solutions proposed and use their reasonable endeavours with the objective of resolving the dispute and achieving an agreed solution.
19.1 Force majeure: Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party. If such event or circumstance prevents the Contractor from delivering or supplying the Goods and / or Services for more than 2 weeks, the Council shall have the right, without limiting its other rights or remedies, to terminate this Contract with immediate effect by giving written notice to the Contractor.
19.2 Gratuities: The Contractor shall not, whether by himself or by any person employed by him to deliver the Goods or perform the Services, solicit or accept any gratuity or tip or any other form of money taking or reward.
19.3 Assignment and subcontracting:
19.3.1 The Contractor shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Council.
19.3.2 The Council may at any time assign, transfer, charge, subcontract, or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
19.4.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business. This also includes sending electronically to a principal email address
19.4.2 Any notice or communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by prepaid first-class post or recorded delivery, at [9.00am] on the [second] Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax or email, on the next Business Day after transmission.
19.4.3 This clause 19.4 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
19.5 Waiver and cumulative remedies:
19.5.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
19.5.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
19.6.1 If a court or any other competent authority finds that any provision (or part of any provision) of the Contract is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
19.6.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
19.7 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
19.8 Contracts (Rights of Third Parties) Act 1999: A person who is not a party to the Contract shall not have any rights under or in connection with it.
19.9 Variation: Any variation, including any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Council.
19.10 Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.