THIS AGREEMENT is made on the
13th day of February 2007
BETWEEN:
(1)
The Borough Council of Bolton of the Town Hall , Bolton , BL1 1RU (the
“Council”); and
(2)
Comensura Ltd (registered number 04085767), of 800 The Boulevard,
Capability Green, Luton L U1 3BA (the “Service Provider”).
WHEREAS :
(1)
The Council on behalf of fourteen (14) organisations within the Greater
Manchester Boundary have agreed that the Service Provider will manage the
supply of all Orders for Temporary Workers in accordance with the terms of
this Framework Agreement and a Service Level Agreement as executed
between each individual participating Organisation and the Service Provider;
and
(2)
Each Organisation shall submit Orders for Temporary Workers and the
Service Provider will manage, oversee and co -ordinate the process by which
Temporary Workers are supplied ; and
(3)
The Service Provider shall enter into separate Panel Vendor Agreements with
a panel of agreed third party companies, who will provide Temporary
Workers in accordance with the conditions specified by the Council and
participating Organisations.
PART I
GENERAL
1.
General interpretation
The Form of Tender shall be deemed to form and be read as part of this Agreement save
where the parties have agreed otherwise. For the avoidance of doubt where there is any
conflict between the documents the following order of precedence shall apply:
Ø This Framework Agreement;
Ø Each applicable Service Level Agreement;
Ø The Service Providers Tender Submission;
Ø The Invitation to Tender.
2.
Definitions
In this Framework Agreement and the Service Level Agreements the following words and
expressions have the following meanings except where the context otherwise requires:
"Applicable Legislation"
means any legislation, regulation, decision or authorisation having the force of law
from time to time in any Relevant Jurisdiction in relation to matters dealt with by this
Agreement.
"Assignment"
means the period during which a Temporary Worker is engaged by a Panel Vendor
to render work and/or s ervices to the Organisation on a temporary basis.
“Council”
The Borough Council of Bolton, as lead Local Authority for up to fourteen (14)
Organisations within the Greater Manchester Boundary, as set out in the Invitation
To Tender.
“Council’s representative”
means the person or persons appointed from time to time by the Council for the
purposes of this Framework Agreement, and the Council shall notify the Service
Provider of his, her or their appointment;
"Order"
means a request from the Organisation to the Service Provider for a Temporary
Worker in accordance with the Agreement and the applicable Service Level
Agreement;
“Organisation”
m eans each individual Local Authority, or partner organisation, which is party to this
Framework Agreement, for the purpose of requesting Temporary Workers.
“Organisation’s Representative”
means the nominated officer from each Organisation, for the purposes of this
Framework Agreement.
"Panel Vendor"
means any company, which has signed a Panel Vendor Agreement with the
Service Provider and who supplies Temporary Workers to an Organisation in
accordance with its terms and conditions.
"Panel Vendor Agreement"
means the agreement entered into between the Service Provider and a third party
supplier which sets out the terms upon which Temporary Workers will be made
available to the Customer by the relevant third party.
“Service Level Agreement”
m eans the agreement entered into between the Organisations and Comensura
which will supplement this Framework Agreement and define any requirements or
amendments appropriate to that participating Organisation only. A template is
incorporated as Schedule 1.
“Service Provider’s Representative ”
means the person or persons appointed from time to time by the Service Provider
for the purposes of this Framework Agreement, and the Service Provider must
notify the Council in writing of his, her or their appointment;
‘Temporary Worker’
means an individual put forward by a Panel Vendor via the Service Provider to
perform work for an Organisation on a temporary basis, under the Organisation’s
supervision and control.
3.
Meanings
3.1
Reference to any statute or statutory provision includes a reference to:
(i)
that statute or statutory provision as from time to time amended, extended,
re-enacted or consolidated; and
(ii)
all statutory instruments, orders or byelaws made pursuant to it.
3.2
Where the context requires:
(i)
words denoting the singular number only include the plural and vice versa;
(ii)
words denoting any gender include all genders ; and
(iii)
words denoting persons include firms, companies and corporations and vice
versa.
3.3
Unless the context otherwise requires, references to any clause, sub-clause or
schedule is to a clause, sub-clause or schedule (as the case may be) of or to this
Agreement.
3.4
The headings are inserted for convenience only and shall not affect the
construction or interpretation of this Agreement.
3.5
The validity, construction and performance of this agreement shall be governed by
English law.
4.
Commencement and Term of Agreement
4.1
This Framework Agreement shall commence on January 29th 2007 for the term of
three (3) years, and may be extended thereafter by the agreement of the Council
and the Service Provider for a further two (2) consecutive years on a year-by-year
basis, unless terminated earlier in accordance with the provisions of this
Framework Agreement.
4.2
Each applicable Service Level Agreement shall commence on the date set out
therein as agreed by the Service Provider and the applicable Organisation, and
shall continue thereafter for the period of the Framework Agreement and any
subsequent renewal, unless terminated earlier in accordance with the provisions of
this Framework Agreement.
PART II
TEMPORARY WORKERS
1.
Supply of Temporary Workers
1.1
In accordance with the terms and conditions of this Framework Agreement and any
applicable Service Level Agreement, the Service Provider agrees to supply
Temporary Workers from a panel of approved Panel Vendor as and when required
in respect of each Organisation’s requirements for Temporary Workers.
1.2
The volume or value of bookings made by each Organisation cannot be
guaranteed, however in accordance with the Service Level Agreements signed by
each participating Organisation, all Orders for Temporary Workers will be submitted
to Comensura unless expressly agreed otherwise.
1.3
Save for any other provision of this Agreement or as may be required under
Applicable Legislation, the parties agree that no Temporary Worker shall be or
become an employee of the Organisation or the Service Provider for any purpose
and that no Temporary Worker shall be entitled to exercise any rights, or seek any
benefit, accruing to the regular employees of any Organisation or the Service
Provider by virtue of the services rendered by the Service Provider to the
Organisation.
2
Screening and Background Checks
2.1
Comensura shall require the Panel Vendors to perform or cause to be performed
background checks on all Temporary Workers prior to assigning them to or placing
them with any Organisation. Such background checks shall include the following:
- A minimum of two (2) years referencing, one reference the Panel Vendor shall
use reasonable endeavours to obtain from the current or last employer;
- Check history and evidence continuity of employment;
- Evidence of their eligibility to work within the United Kingdom in accordance with
the Asylum and Immigration Act.
- Where applicable as advised by the Organisation, evidence of current Criminal
Records Bureau disclosure certificate;
- Where applicable as advised by the Organisation, evidence of a POCA & POVA
certificate;
- Copies of relevant professional qualification certificates where appropriate;
- Reasonably verify the Temporary Worker’s past qualifications and relevant
experience in line with best industry practice and current legislative and
regulatory requirements
The Panel Vendor shall be responsible for the reasonable costs associated with
such screening.
2.2
Upon the request of the Organisation, Comensura shall require the Panel Vendors
to ensure that all Temporary Workers assigned to the Organisation attend
applicable orientation meetings regarding policies, procedures and expectations of
the Organisation relating to the work or services to be provided by such Temporary
Workers. Comensura shall require that all Temporary Workers assigned to the
Organisation are provided with and execute all documents required by the
Organisation prior to such Temporary Worker beginning any Assignment for the
Organisation.
3.
Suitability of Nominated Temporary Workers
3.1
The Service Provider shall audit each Panel Vendor every six (6) months to assess
their compliance with the Panel Vendor Agreement in accordance with its standard
audit process to determine whether: -
(i)
where required by an Organisation and set out in the Requirements Card, a
search has been conducted of the records of the Criminal Records Bureau at the
correct level (Enhanced or Standard and including POVA/C checks) for any
reference to or details of the Temporary Worker ;
(ii)
the Panel Vendor has placed on Assignment any Temporary Worker who has
declared unspent convictions to the Panel Vendor or where spent or unspent
convictions have been disclosed as part of a CRB check and the matter has not
been escalated to the Organisation;
(iii)
the Temporary Worker has the specified qualifications ; and
(iv)
the Temporary Worker’s most recent employment references have been
obtained;
3.2
The Service Provider should on request provide evidence to the Council of the
regular audit with Panel Vendors in accordance with this C lause 3.
4.
The Organisations ’ Obligations
4.1
Each Organisation shall provide Comensura with a copy of relevant policies and
procedures. These will include as a minimum those covering, health and Safety,
Data protection, Discrimination, use of IT, and Security.
4.2
Each Organisation shall designate the individuals with whom Comensura and/or the
Temporary Workers should communicate (as necessary in each Order) with
respect to the Service Provider's performance of the services and with respect to
the Temporary Workers' performance of the Assignments.
4.3
The Organisations shall not solicit or cause or encourage any of the Service
Provider’s employees to terminate his or her employment with the Service Provider
during the term of this Framework Agreement and for a period of six (6) months
after the termination of this Framework Agreement.
4.4
Except as provided for in Part III, the Organisation shall not solicit or contract with
or cause any Panel Vendor to provide management services, Temporary Workers,
or other services related to the Organisation temporary workforce during the term of
this Framework Agreement.
4.5
In respect of each Assignment, the Organisation shall give the Service Provi der full
details of:
(i)
the intended duties of the Temporary Worker;
(ii)
any special skills which it requires the Temporary Worker to have including
any experience, training, qualifications or authorisations including those required by
a professional body or by law;
(iii)
any risks to health and safety known to the Organisation and any steps that
may have been taken to prevent or control such risks;
(iv)
any specific health and safety information which the Organisation wishes to
be passed on to the Temporary Worker.
5.
Supervision of Temporary W orkers
5.1
Each Organisation acknowledges that neither the Service Provider nor any Panel
Vendor has the obligation (or the opportunity) to supervise, direct or control the
manner, time or place of any Temporary Worker's work, whilst they are on site.
Each Organisation shall provide on behalf of the Service Provider and the Panel
Vendor sufficient supervision, direction and control over the Temporary Worker
throughout the Assignment to ensure a reasonable standard of performance by the
Temporary Worker.
5.2
Each Organisation undertakes to the Service Provider that it will discharge
responsibility for the health and safety of each Temporary Worker from the start of
any Assignment as if that Temporary Worker was an em ployee, and shall be
responsible for all acts, errors and omissions of each Temporary Worker whilst on
Assignment. This clause shall apply except to the extent any claim arises as a
direct result of the negligent acts or omission of the Panel Vendor, including but not
limited to the Panel Vendor failing to undertake the required checks prior to
supplying a Temporary Worker.
5.3
Each Organisation shall at all times discharge on behalf of the Service Provider all
statutory and common law duties which the Organisation may from time to time
owe to the Temporary Worker or to which the Organisation may from time to time
be subject to in respect of the Temporary Worker. Such duties include but are not
limited to those required under the Working Time Regulations and the Health and
Safety at Work Act 1974. Without limiting the generality of the foregoing, the
Organisation shall ensure on behalf of the Service Provider that the Temporary
Worker is provided with the necessary rest breaks and, where applicable, weekly
rest periods prescribed by Applicable Legislation.
5.4
Each Organisation shall complete any health and safety checklist provided to it by
the Service Provider for the purposes of providing Panel Vendors with health and
safety information.
5.5
Temporary Workers supplied by the Panel Vendor will not be subject to the
provisions of the Organisations’ disciplinary Procedures. Problems relating to
Temporary workers performance, attendance or conduct will be referred to the
Service Provider who will immediately notify the Panel Vendor responsible for the
supply of the Temporary Worker and, if necessary the booking will be terminated
without further charge.
6.
The Service Provider’s Obligations
6.1
The Service Provider shall require the Panel Vendors to comply with all reasonable
instructions of the Organisation in relation to the Temporary Workers' access to the
Organisation’s premises at all times during an Assignment, including but not limited
to instructions about ID cards, swipe cards or security measures.
6.2
The Service Provider shall provide to each Panel Vendor for supply to each
Temporary Worker prior to the commencement of each new Assignment a copy of
the organisation’s relevant personnel policies. These will include as a minimum
those covering, health and Safety, Data protection, Discrimination, use of IT and
Security.
6.3
The Service Provider shall require the Panel Vendors to keep the Service Provider
informed where it becomes aware of any accident which has occurred during an
Assignment involving any of the Temporary Workers and shall ensure that an
accident report for the same, in such form as the Organisation may from time to
time require, is completed promptly in respect of each such accident. Upon receipt
of such information the Service Provider shall pass such information to the
Organisation.
6.4
The Service Provider shall require the Panel Vendors to perform all interviews,
curricula vitae verification, testing and/or background checks as specified in the
Agreement in respect of each Temporary Worker proposed to be assigned to the
Organisation.
6.5
At any time upon the Organisations request and where there are reasonable
grounds for termination, the Service Provider shall require the Panel Vendor to
remove any Temporary Worker assigned to the Organisation. Where this request is
made within the first four (4) hours of commencement of an Assignment the
Organisation will be not be charged. Where the same is required by the
Organisation, The Service Provider shall require the Panel Vendor to arrange for
the provision of a replacement Temporary Worker.
6.6
The Service Provider shall require the Panel Vendors to ensure that all Temporary
Workers assigned to the Organisation are eligible to work legally in the Relevant
Jurisdiction. In the event that a Temporary Worker is found to be ineligible to work
in a Relevant Jurisdiction, then upon the Service Provider becoming aware of such
ineligibility, the Service Provider shall require the Panel Vendor to cause the
immediate termination of such Temporary Worker and shall require the Panel
Vendors to arrange for the provision of a replacement Temporary Worker within a
reasonable time thereafter.
6.7
The Service Provider shall manage the accounting and invoicing for the provision of
Temporary Workers in accor dance with the terms specified in Part III.
6.8
The Service Provider shall provide the Organisation with reports and information,
as detailed in the tender response.
6.9
The Service Provider has entered into or shall enter into a Panel Vendor
Agreement with each Panel Vendor in such format as is attached at Schedule 2.
6.10
The Panel Vendor Agreement shall set out the terms upon which the supply of
Temporary Workers to the Organisation by the relevant Panel Vendor shall be
made. Any requested amendment to the Panel Vendor Agreement which materially
amends the Panel Vendor Agreement will be passed by The Service Provider to the
Council for approval in writing
6.11
Where such approval in writing is given by the Council results in a discrepancy
between the obligations of the Panel Vendor to The Service Provider and the
obligations of the Service Provider to the Council, the Council shall indemnify the
Service Provider for any resultant liability.
6.12
The Service Provider shall provide to each Panel Vendor for supply to each
Temporary Worker any information disclosed by the Organisation to The Service
Provider under its obligations set out in Clause 4 above.
7.
Termination of an Assignment
7.1
Each Organisation may request the Service Provider to terminate a Temporary
Worker’s Assignment before the expiry of his initial period of Assignment if, in the
reasonable opinion of the appropriate line manager:
(i)
the Temporary Worker has failed to carry out the duties assigned to him;
(ii)
the Temporary Worker is guilty of serious misconduct;
(iii)
the Temporary Worker is no longer required; or
(iv)
where there are other reasonable and lawful grounds for removal .
7.2
Following the termination of a Temporary Worker’s Assignment for any of the
reasons above, the Organisation will co-operate with any reasonable request of the
Service Provider concerning any subsequent, necessary actions.
8.
Absence of a Temporary Worker
8.1
This clause applies where a Temporary Worker assigned under this Agreement is
absent from his or her Assignment:
(i)
due to an unforeseen reason, such as an accident or illness;
(ii)
due to pre-booked absence, such as holiday or hospital attendance or
otherwise; or
(iii)
due to an absence without explanation.
8.2
Where a Temporary Worker has notified that he is unable to undertake his or her
Assignment due to an unforeseen reason, the Service Provider’s Representative
must immediately on becoming aware of the same inform the Organisation’s
Representative of:
(i)
the Temporary Worker’s abs ence from the Assignment;
(ii)
the reason for the absence; and
(iii)
the likely period of absence from the Assignment.
8.3
Where a Temporary Worker is absent for any of the reasons specified, the
Organisation’s Representative may:
(i)
leave the Assignm ent vacant; or
(ii)
request an alternative Temporary Worker and the provisions of this
Framework Agreement will apply to that Assignment.
PART V
INDEMNITIES AND INSURANCE
1.
Indemnities
1.1
Save to the extent that the loss, damage or liability is caused or contributed to by
the Council, its employees or agents or participating Organisations the Service
Provider agrees with the Council to indemnify and keep indemnified the Council,
and participating Organisations from and against any and all loss, damage or
liability (whether criminal or civil) suffered and legal fees and costs incurred
resulting directly from a breach of this agreement by the Service Provider or its
negligence or its breach of Applicable Legislation, including any breach of
professional duty on the part of the Service Provider’s employees;
1.2
The Service Provider shall not be responsible or obliged to indemnify the Council or
participating Organisation for:
(i)
any loss, damage or liability under Clause 1.1 above, which arises as a
direct result of a temporary worker acting on the instruction of his line manager or
other authorised officer of the Council or Organisation, or as a result of the absence
of appropriate levels of supervision and control over the Temporary W orker; and
(ii)
any injury, loss, damage, cost and expense caused by the negligence of the
Organisation or by the breach of its obligations under this agreement.
1.3
In no event shall either party be liable to the other party for any indirect, special or
consequential damages or loss (including but not limited to, liability to or by a third
party, loss of present or future profits, business, revenue, goodwill, anticipated
savings and/or any claims made under third party contracts) in any way arising
under or in connection with this Framework Agreement or otherwise.
1.4
The Service Provider’s insurance must have the minimum limits as shown in
Clause 2 below.
1.5
Where one party becomes liable to the other party under the provisions of this
Framework Agreement, they shall
(i)
use all reasonable efforts to minimise any amounts claimed under any
indemnities and /or liabilities;
(ii)
promptly notify the other Party in writing of any matter which may result in a
claim under any such indemnities and /or liabilities;
(iii)
make no admission nor make any statement which may prejudice the
defence of such a matter (the subject of the indemnity) ;
(iv)
give the other Party sole conduct and control of such matter ( and any related
settlement negotiations); and
(v)
give the other party full assistance an d co-operation in the defence of such
claim.
2.
Insurance
2.1
The Service Provider undertakes to obtain insurance cover with an insurance
company of good repute and financial standing in respect of the company’s
liabilities and obligations under this Framework Agreement, including where
applicable the indemnities given by the Service Provider.
2.2
The terms of the Service Providers insurance shall be subject to the approval of the
Council, which approval shall not be unreasonably withheld.
1.3
The Service Providers insurance shall:
(i)
have a limit in respect of professional indemnity of not less than £2,000,000
(two million pounds) for any one claim or in the aggregate in any period of twelve
(12) months;
(ii)
have Public Liability Insurance to a minimum of £5 ,000,000 (five million
pounds) for any one claim; and
(iii)
have Employers Liability Insurance to a minimum of £5,000,000 (five million
pounds) for any one claim; and
(iv)
be for an annually renewable period over the full term of this Framework
Agreement;
2.4
Exc ept in the event of death or personal injury caused by the negligence of the
Service Provider, the Service Provider’s aggregate liability during any one (1)
annual insurance period whether contractual, tortious, for breach of statutory duty
or otherwise sh all not exceed:
(i)
in the case of a claim falling within the scope of the Service Provider’s
Professional indemnity insurance, £2,000,000.
(ii)
in the case of a claim falling within the scope of the Service Provider’s Public
Liability insurance, £5,000,000.
(iii)
in the case of a claim falling outside of the scope of either of the insurances
as set out in (i) and (ii) above, £1,000,000.
2.4
The Service Provider further undertakes that:
(i)
it will pay in full and when due all premiums payable under the Service
Provider’s insurance;
(ii)
it will provide to the Council on request the receipts for all premiums and a
copy of the policy; and
(iii)
it will not cancel, surrender or terminate the insurance nor in any way
mortgage, charge or otherwise deal with the Council’s interest in the insurance
except with the Council’s prior written consent.
2.5
Prior to the commencement of the Framework Agreement and thereafter from time
to time at the Council’s written request, the Service Provider must provide the
Council’s Representative with a certificate from its insurers or brokers certifying that
the Service Providers insurance cover complies with this clause.
KPI’s
Comensura KPIS
Target
Reporting Frequency
KEY PERFORMANCE INDICATORS
1 General
Supply of all temporary workers via
1.1 Comensura fully implemented by (Date
(TBC)
2 Confirmation of Orders
2.1 Confirmation of orders in 20 minutes
100% Weekly
3 Fulfillment
3.1 Immediate Fill
50% Weekly
3.2 Same Day Orders
80% Weekly
3.3 Next Day Orders
90% Weekly
3.4 Next Day +
95% Weekly
4 Background Checks/Audits
4.1 6 monthly audit programme to be in place
ensuring all agencies are audited every 6
months against the Comensura.net
Requirements Cards
100% 6 monthly
5 Provision of MI
5.1 MI to be provided
Weekly cost savings report:
100%
- Shift Fulfillment
PART VII
CHANGE MANAGEMENT, MEDIATION, BREACHES & TERMINATION
1.
Change Management Process
1.1
This process (the “Change Management Process”) shall be utilised by the Service
Provider and the Council to manage any change to the Agreement, Services or
Charge Rates which either party deems necessary following a Service Review:
(i)
Either party may request a change by submitting to the other party in writing
a proposal which shall include full details in writing of the justification for the change
proposed, any evidence supporting the requirement and it’s probable im pact on the
operational and commercial aspects of the Services and Agreement including the
Charge Rates (the “Change Proposal”).
(ii)
The Representatives of the parties shall meet within twenty-eight (28) days of
the submission of the change proposal to discuss the Change Proposal. The party
reviewing the Change Proposal submitted shall either accept or reject the change
proposal in full or in part.
(iii)
If the party submitting the Change Proposal is dissatisfied with the decision of
the operational account manager, the Change Proposal shall be escalated to the
Managing Director of the Service Provider and the Senior Procurement Team for
the Council for a final decision.
(iv)
Nothing in this Clause shall prevent either party from invoking the Dispute
Res olution Process set out in Part VII of this Framework Agreement.
2.
Mediation
2.1
If any dispute arises between parties under or in relation to the Framework
Agreement or any Service Level Agreement, it shall first be referred to the
Organisation’s Repr esentative, and Service Provider’s Representative. If it cannot
be resolved to the satisfaction of both parties within ten (10) working days of such
referral, it shall be referred to the line manager of each representative for
resolution. The Service Provider’s obligation to supply Temporary Workers shall not
be affected by this procedure, or by any other procedure for the resolution of
disputes referred to in this clause.
2.2
If the parties are unable to resolve any dispute under or in relation to the services
provided under the Framework Agreement within ten (10) working days of its
referral, the parties will attempt to settle it by mediation in accordance with the
Centre for effective Dispute Resolutions (CEDRs) Model Mediation Procedure:
(i)
to initiate th e mediation, either party must give notice in writing to the other
party requesting mediation in accordance with this clause 21. The initiating party
shall send a copy of such request to CEDR
(ii)
if there is any issue on the conduct of the mediation (includin g as to the
nomination of the mediator) upon which the parties cannot agree within a
reasonable time, CEDR will, at the request of any party, decide the issue for the
parties having consulted with them.
(iii)
if the dispute is not resolved within ninety (90) days of the initiation of
mediation, or if either party will not participate in the mediation, either party may
commence proceedings in accordance with English Law and subject to this Clause
21 and shall be subject to the exclusive jurisdiction of the English Courts to which
both parties hereby submit.
1.3
N othing in this clause shall prejudice the right of either party to apply to Court for
interim relief to prevent the violation by the other party of any proprietary interest, or
any breach of the other party’s obligations which could cause irreparable harm to
the first party.
2.4
Work and activity to be carried out under this Agreement shall not cease or be
delayed by this dispute resolution procedure.
3.
Notice of Breach
3.1
If the Service Provider commits a material breach of any of the terms and
conditions of this Framework Agreement, or persistently breaches any of the terms
and conditions of this Framework Agreement the Council shall have the right by
written notice (a “default notice”):
(i)
to require the Service Provider to remedy the breach within a reasonable
specified time; and
(ii)
if the breach complained of is not so remedied, to terminate immediately the
relevant Service Level Agreement or Framework Agreement.
3.2
The Council may request the Service Provider to terminate any Panel Vendor
Agreement at any time, if in the reasonable opinion of the Council, the Panel
Vendor:
(i)
supplied Temporary Workers who materially did not meet the required
standard as set out in the Order.
(iii)
did not carry out the appropriate vetting procedures and pre-employment
checks.
3.3
The Council shall have the right to terminate this Framework Agreement on giving
notice in writing to the Service Provider to that effect if:
(i)
the Service Provider goes into com pulsory or voluntary liquidation or enters
into a composition or scheme of arrangement (otherwise than for the purpose of a
genuine reconstruction or amalgamation):
(ii)
an administrator, administrative receiver or receiver is appointed in respect of
the whole or any part of the Service Provider’s assets,
(iii) the Service Provider makes an assignment for the benefit of or composition
with its creditors, or
(iv) any similar occurrence under any jurisdiction affects the Service Provider, or
(v)
if the Service Provider has offered paid or given directly or indirectly any gift
in money or in any other form to any member employee or agent of the
Organisation as an inducement or reward in connection with their behaviour in
relation to the Agreement or has committed any offence under the Prevention of
Corruption Acts 1889 to 1916 to or has paid or offered any fee or reward contrary to
section 117(2) of the Local Government Act 1972.
3.4
If the Council or any participating Organisation commits a material breach of any of
the terms and conditions of this Framework Agreement, or persistently breaches
any of the terms and conditions of this Framework Agreement, the Service Provider
shall have the right by written notice (a “default notice”):
(i)
to require the Council or any participating Organisation to remedy the breach
within a reasonable specified time; and
(ii)
if the breach complained of is not so remedied, to terminate immediately the
relevant Service Level Agreement. or Framework Agreement.
3.5
The failure by either party to enforce at any time or for any period any one or more
of the terms or conditions of this Framework Agreement or any Service Level
Agreement shall not be a waiver of them or of the right at any time subsequently to
enforce all of the terms and conditions.
3.6
Either party may terminate this Framework Agreement or any individual Service
Level Agreement for convenience at any time after the first twelve (12) months of
the commencement date of that respective agreement by giving not less than one
hundred and eighty (180) days written notice of termination to the other party.
4.
Consequences of Termination
4.1
On termination of this Framework Agreement or any individual Service Level
Agreement;
(a)
any Service Charges payable by the Council or Organisation under this Framework
Agreement which have been invoiced to it by the Service Provider shall become immediately
payable; and
(b)
any Service Charges payable by the Organisation to the Service Provider under this
Framework Agreement which are outstanding but have not been invoiced shall become
payable immediately on the issue of an invoice by the Service Provider to the Council or the
Organisation.
4.2
If either party terminates this Framework Agreement in accordance with its terms, it
shall incur no liability to the other party as a result of such termination.
4.3
The Organisation agrees and acknowledges the substantial cost to the Service
Provider of implementing the services and expended within the initial twelve (12)
months of any con tract period. The Organisation therefore agrees that where it
invokes the right to terminate during the first twelve (12) months of any Service
Level Agreement, the Service Provider shall immediately be entitled to recover the
full costs of such implementa tion from the Organisation.
5.
General Notices
5.1
All notices and other communications relating to this Framework Agreement:
(a)
shall be in English and in writing;
(b)
shall be delivered by hand or sent by post, facsimile or electronic mail (email).
(c)
shall be delivered or sent to the party at the address detailed in Clause 5.2.;
(d)
may in the case of any claim form, judgment or other notice of process on the Service
Provider be delivered or sent to its registered office from time to time or on the
O rganisation be delivered or sent to the address referred to in Clause 5.2 below; and shall
take effect:
(i)
if delivered, upon delivery, proof of which is required;
(ii) if posted, at the earlier of the time of delivery and (if posted in the United
Kingdom by first class registered post) 10am on the second business day after
posting provided that if any communication would otherwise become effective on a
non-business day or after 5pm on a business day, it shall instead become effective at
10am on the next business day.
PART VII I
MISCELLANEOUS
1.
Compliance with statutory requirements
1.1
The Service Provider shall comply with all statutory and other provisions to be
observed and performed in both its capacity as an employer and in connection with
its obligations under or arising from this Agreement.
2.
Familiarisation with the Service Provider
2.1
In its reasonable discretion, the Service Provider shall provide appropriate training
and induction of Panel Vendors to the Panel Vendor Program and appropriate
training and induction of the Organisation personnel of the processes and
procedures The Service Provider shall use in providing the services described in
this Framework Agreement. There shall be no additional cost for this service .
3.
Additional Mana gement Services
3.1
The Service Provider shall assist each O rganisation with the communications the
Organisation reasonably considers necessary to inform the employees of the new
process for managing the Temporary Workforce and/or Panel Vendors.
3.2
Each Organisation shall assist the Service Provider with the communications The
Service Provider reasonably considers necessary to inform the Panel Vendors of
the new process to facilitate compliance.
4.
Reports and Information
4.1
The Service Provider will pr ovide the Council and the Organisations with all reports
as set out in the tender at no additional cost, and leave in 4.4
4.2
The Service Provider shall provide each Organisation with additional reports and
information as agreed upon from time to time by the parties. In additional overall
management information will be provided to the Organisation.
5.
Rewards, etc.
5.1
The Service Provider shall not offer or give, or agree to give, to any person any gift,
emolument, or consideration of any kind as an ind ucement or reward for:
(i)
doing, not doing, having done or not done, any action, or
(ii)
showing favour or disfavour, or not showing favour or disfavour, to any
person,
(iii)
in relation to the obtaining or execution of this agreement or any other
contract with the Council or participating Organisation.
5.2
The Service Provider shall be deemed to have breached sub-clause (6.1) if any
person employed by it, or acting on its behalf, does anything, or fails to do anything,
which would constitute a breach of that sub-clause if done by the Service Provider
itself.
5.3
The Service Provider shall be deemed to be in breach of this agreement if in
relation to any contract with the Council or partner organisation it, or any person
empowered by it or acting on its behalf, has:
(i)
committed an offence under the Prevention of Corruption Acts 1889 to
1916; or
(ii)
given any fee or reward the receipt of which is an offence under subsection
(2) and (3) of section 117 of the Local Government Act 1972.
6.
Contracts (Rights of Third Parties) Act 1999
6.1
Save as expressly provided for, the Contracts (Rights of Third Parties) Ac t 1999
shall not apply to this Framework Agreement.
7.
Unforeseeable Events
7.1
Neither the Council, or participating Organisation, nor the Service Provider shall be
liable to the other because of any interference or delay in the carrying out of this
Framework Agreement or Service Level Agreement in whole or in part by reason of
circumstances beyond their respective control, including but not by way of limitation
war (whether declared or not), civil commotion and action of competent authority,
strikes or other industrial action, act of God, abnormal weather conditions or other
unavoidable accident or circumstances.
7.2
Clause 7.1 shall not apply where the event leading to the act or default by either
party was reasonably foreseeable or within the reasonable contemplation of the
party in breach.
8.
Entire agreement
8.1
This agreement (together with any documents referred to in it including all
subsequent Service Level Agreements executed between participating
Organisations and the Service Provider) constitutes the entire agreement between
the Service Provider and the Council in connection with the supply of Temporary
Workers by the Service Provider.
8.2
This Framework Agreement supersedes all prior discussion, representations,
correspondence and agreements (whether oral or written) between the Service
Provider and the Council and/or the Organisations in connection with the supply of
Temporary Workers.
IN WITNESS whereof the Council has caused its Common Seal to be hereunto affixed and
the Service Provider has signed the same as its Deed the day and year first before written
THE COMMON SEAL of
The Borough Council of Bolton
was hereunto affixed to this deed
in the presence of:
The Mayor
Name:
Authorised Sealing Officer
SIGNED as a DEED by COMENSURA LIMITED
Acting by a Director and its secretary/two Directors
Name:
Position
Secretary/Director
