LEEDS CITY COUNCIL

TEMPORARY SOCIAL CARE STAFF

TERMS AND CONDITIONS OF CONTRACT

INDEX OF CLAUSES

CLAUSE 1 DEFINITIONS

CLAUSE 2 CONTRACT PERIOD

CLAUSE 3 PRE-SELECTION CHECKS

CLAUSE 4 SELECTION AND INTERVIEW

CLAUSE 5 TEMPORARY TO PERMANENT FEES

CLAUSE 6 ORDERS

CLAUSE 7 THE SERVICES

CLAUSE 8 SUPERVISING OFFICER

CLAUSE 9 THE SECONDEE

CLAUSE 10 HOURS OF WORK

CLAUSE 11 TIME SHEETS

CLAUSE 12 CHARGES AND TRAVELLING

CLAUSE 13 ENTITLEMENT

CLAUSE 14 CLAUSE NOT USED

CLAUSE 15 INVOICES

CLAUSE 16 CONDUCT

CLAUSE 17 TERMINATION

CLAUSE 18 BREAK PROVISIONS

CLAUSE 19 PROPERTY COPYRIGHT AND DISCLOSURE

CLAUSE 20 BRIBERY AND CORRUPTION

CLAUSE 21 EQUAL OPPORTUNITIES.

CLAUSE 22 CONFIDENTIALITY

CLAUSE 23 CONTACT WITH THE MEDIA

CLAUSE 24 NOTICES

CLAUSE 25 TRANSFER AND SUB-CONTRACTING

CLAUSE 26 TERMS OF AGENCY

CLAUSE 27 WAIVER

CLAUSE 28 SEVERABILITY

CLAUSE 29 FORCE MAJEURE

CLAUSE 30 AMENDMENTS TO THIS AGREEMENT

CLAUSE 31 RIGHTS OF THIRD PARTIES

CLAUSE 32 DISPUTE RESOLUTION PROCEDURE

CLAUSE 33 POWER OF THE COUNCIL IN DEFAULT

CLAUSE 34 BANKRUPTCY OF CONTRACTOR OR BREACH OF AGREEMENT

CLAUSE 35 POWER OF “SET OFF"

CLAUSE 36 HUMAN RIGHTS

CLAUSE 37 EQUAL OPPORTUNITIES AND HEALTH AND SAFETY

CLAUSE 38 SCRUTINY BOARD/EXECUTIVE BOARD ASSISTANCE

CLAUSE 39 CONFLICT OF INTEREST

CLAUSE 40 FREEDOM OF INFORMATION ACT 2000

CLAUSE 41 INDEMNITY

CLAUSE 42 CLAUSE HEADINGS

CLAUSE 43 LAW

(1) DEFINITIONS

1.1 In these Conditions save where the context requires the following expressions shall have the meanings hereby assigned to them:

i) `The Contractor shall mean the person, firm or company whose tender has been accepted by the Council to supply Secondees under the Contract.

ii) `Conditions' shall mean these conditions set out herein.

iii) `Contract Period' shall mean the period stated in Special Condition 2.1.

iv) `Council' shall mean Leeds City Council.

v) `Category of Secondee' shall mean the job types of each Secondee mentioned in the Specification.

vi) `Supervising Officer' shall mean the person named on the Order in accordance with Clause 8.

vii) `Hourly Rate' shall be the amount which is payable per hour by the Contractor to the Secondee whilst that particular Secondee has been engaged by the Council.

xiii) `Sleeping-in Duty' shall be where a Residential Care Worker is required to sleep on the premises and be available for duty when called during the hours outside the waking day.

xiv) `Sleeping-in Duty Rate' shall be the amount which is payable, per duty, by the Contractor to the Secondee for any Secondee engaged by the Council on a sleeping-in duty.

xv) A `Waking Night Shift' shall be where a Secondee is required to work a shift at night, encompassing the hours between 12.00 Midnight and 5.00am. The waking night rate will also apply to hours worked, within the same shift, from 10.00pm until 7.00am.

xvi) `Waking Night Rate' shall be the amount which is payable, per hour, by the Contractor to the Secondee for any Secondee engaged by the Council on a waking night shift.

xvii) `Travelling Rate' shall be the amount stated in the Schedule of Prices which is payable by the Council to the Contractor per mile travelled by the Secondee whilst that particular Secondee has been engaged by the Council in accordance with Clause 12.

xviii) `Services' shall mean those services and duties which are required by the Council and stated on the order in accordance with Clause 6 hereto.

xix) `Period of Appointment' shall mean the period stated on the order during which the Secondee will be seconded to the Council.

xx) `Secondee' shall mean an individual employed or engaged by the Contractor who is to be seconded to the Council during the period of appointment.

xxi) `Order' shall mean the order issued by the Council to the Contractor under Clause 6.1 hereto.

1.2 In these Conditions the masculine includes the feminine and the singular includes the plural and vice versa.

(2) CONTRACT PERIOD

2.1 This Contract shall commence on the first day of November two thousand and five (hereinafter referred to as `the Commencement Date') and shall continue until the thirty first day of October two thousand and eight unless previously terminated in accordance with the provisions of these Conditions and unless extended for two further periods of twelve months each at the sole discretion of the Council.

(3) PRE-SELECTION CHECKS

3.1 The Contractor will be expected to undertake rigorous pre-employment checks on all potential Secondees in compliance with all statutory regulations governing the recruitment and suitability of workers supplied under this contract. The Contractor is expected to comply with the Code of Practice for the Employment of Residential Child Care Workers issued by the Support Force set up to implement the Warner Report. This is also regarded as good practice for all recruitment and selection of potential Secondees.

3.2 In the absence of any statutory requirements, as a minimum pre-employment check, the Contractor must obtain two written references, one of which must be from the potential Secondee's last permanent employer. Further references may be taken from, for example, a person who has worked with the potential Secondee in a voluntary capacity, or an academic referee.

3.3 The Contractor must, when recruiting potential Secondees, specifically ask in writing whether they have any spent as well as current convictions in accordance with the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 1986.

3.4 Under no circumstances should any person who has a “specified offence” under LAC(97)17 Guidance to the Children (Protection from Offenders)(Miscellaneous Amendments) Regulations SI 1997/2308 be considered for secondment to the Council. Nor should any person be put forward for secondment to the Council where other non-conviction information indicates that they are in any way unsuitable to discharge the proposed duties of the post, having regard for the need to maintain public confidence in the Service.

3.5 The protection of children and young persons from potential sex offenders and other undesirable people is of paramount importance, as is the protection of all vulnerable client groups from any form of abuse. The Contractor will be required to ensure that the appropriate level of vetting check is carried out through the Criminal Records Bureau for each Secondee to determine the existence and content of any criminal record or other information relating to their suitability to have contact with children/young persons or vulnerable adults.

3.6 The Council will require the details of each potential Secondee in advance of their start date, in order to arrange any other checks felt to be appropriate.

3.7 If it is subsequently discovered that a Secondee has given false information or withheld information with regard to the declaration of convictions and/or cautions, the individual's secondment to the Council will be liable to immediate termination. Similarly, an individual's secondment to the Council will be liable to immediate termination should any other non-conviction information come to light which indicates that the person is unsuitable to discharge duties on behalf of the Council.

3.8 The Contractor is also obliged to comply with any regulations or best practice advice from the National Care Standards Commission or the General Social Care Council (or other regulatory body including all registration requirements under GSCC regulations) which are applicable to the social care workforce.

(4) SELECTION AND INTERVIEW

4.1 When the Council require a Secondee under the Contract they will notify the Contractor who will on receipt of such notification inform the Council of Secondees who are available under a particular Category of Secondee together with all necessary details which are required by the Council including the Hourly Rate to be paid.

4.2 When the Contractor informs the Council of Secondees who are available, they should provide background information about each individual. The information should be in a formal, typed format, detailing the individual's education and qualifications, skills, experience and employment history. The date of birth and National Insurance Number are also required for checking purposes.

4.3 The Council shall have the right to interview any of the Secondees which the Contractor has proposed before making any decision on selection.

4.4 Under no circumstances shall the Council be liable for any expenses incurred by the Secondee when attending the interview or any expenses of the Contractor unless such expenses have been authorised in advance by the Supervising Officer.

(5) TEMPORARY TO PERMANENT FEES

(6) ORDERS

6.1 After the Council has selected a Secondee to carry out the Services from the Contractor then the Council will issue an Order to the Contractor detailing the Secondee required during the Period of Appointment and the nature of the Services to be provided by the Secondee together with the Charge Rate to be paid by the Council to the Contractor during the Period of the Appointment.

6.2 The Secondee shall not be allowed to take holiday leave at any time throughout the Period of Appointment unless this has been agreed by the Supervising Officer in writing.

6.3 The Contractor will take all reasonable steps to ensure that any Secondee mentioned in the Order attends at the Council throughout the Period of Appointment.

6.4 The Contractor shall be contractually bound to supply a Secondee stated in the Order under these conditions once such Order has been issued by the Council, unless there is a variation in the detail of the Order, in agreement with the Supervising Officer.

6.5 The Contractor hereby acknowledges that it is one of a number of Contractor appointed by the Council to supply temporary staff and the Council does not guarantee the number of Orders that will be issued under the Contract or that any Orders will be issued whatsoever.

(7) THE SERVICES

7.1 The Services shall be described in the Orders issued under 6.1 above or such other services as the Council may require from time to time during the period of the Contract.

7.2 The description of the type of Services to be provided by the Secondee will be included within any Orders which are placed under this Agreement.

7.3 The Services shall be carried out at any location which is occupied or owned by the Council and stated in the Orders issued under this Agreement or at any other location which the Council may require from time to time whilst the Secondee is with the Council (hereinafter referred to as `the Location').

(8) SUPERVISING OFFICER

8.1 The Council will appoint a Supervising Officer who shall be named on the Order and shall be the Contractor's first point of contact in relation to matters pertaining to the Secondment.

8.2 The Supervising Officer shall have the sole right to assign tasks and to supervise the work of the Secondee in connection with the Services.

(9) THE SECONDEE

9.1 The Secondee shall be a suitably qualified and experienced person able to carry out the Services which are mentioned in the Order.

9.2

In the event that any Secondee shall for any reason be unable to carry out the Services as required after the date for commencement stated in the Order the Council may but shall not be bound to accept another person nominated by the Contractor as a substitute for the Secondee if a substitute is not accepted by the Council the Council may terminate the Order forthwith.

9.3 Where the Secondee has notified the Contractor that he/she will not be attending at the location during the Period of Appointment due to illness or accident the Contractor shall immediately notify the Supervising Officer of this fact. The Contractor shall provide to the Supervising Officer suitable evidence of the Secondee's accident or illness when requested.

(10) HOURS OF WORK

10.1 The hours during which the provision of the Services are required shall be specified by the Council on the Order. Except in the case of residential care staff, Bank and other Public Holidays shall be excluded unless otherwise agreed. The provision of the Services outside the hours specified may reasonably be required at the discretion of the Council. Where the Council requires the Secondee to provide the Services on a weekend this shall be stated on the Order. Where the Council requires the Secondee to undertake Sleeping-in Duties, or Waking Night Shifts, this shall be stated on the Order.

(11) TIME SHEETS

11.1 The hours worked and authorised travelling expenses incurred in each week by the Secondee shall be entered and certified by the Secondee on a time sheet and travelling record.

11.2 The Secondee or the Contractor must ensure that timesheets are signed by the Supervising Officer at the end of each working week.

11.3 Time sheets shall be submitted weekly by the Secondee and when countersigned by the Supervising Officer they shall form the basis of invoices submitted to the Council for payment.

(12) CHARGES AND TRAVELLING

12.1 The Contractor shall only be entitled to charge the Council for the time each Secondee spent providing the Services at the Location at the rate per hour stated in the Order.

12.2 All charges shall be exclusive of Value Added Tax which if chargeable shall be invoiced at the rate ruling at the date of the invoice. Value Added Tax shall be separately itemised on all invoices.

12.3 No payment shall be made by the Council to the Contractor for the time taken by the Secondee in meal breaks or for any time taken as annual holiday, statutory holiday or sickness leave or for any other form of leave or holiday.

12.4 Services required by the Council to be provided outside the hours of work specified in accordance with Clause 10 shall be paid for at the Hourly Rate and no extra charges will be payable.

12.5 When Residential Care Staff are required by the Council to undertake sleeping-in duty the Contractor will be entitled to charge the Council the Sleeping-in Duty Rate for each duty that is worked.

12.6 When Residential Care Staff are required by the Council to work a Waking Night Shift, the Contractor will be entitled to charge the Council the Waking Night Rate for each night that is worked.

12. 7 When Residential Care Staff are required by the Council to work on a Bank or Public Holiday, the Contractor will be entitled to charge the Council for the hours spent by the Secondee in providing the Services on the Bank or Public Holiday at the Premium Rate stated in the Price Schedule.

12.9 The Rates of Pay may be reviewed at any time and changed at the Council's discretion. National Insurance Contributions and Holiday Pay shall be subject to legislative change. The Contractors Margin shall be fixed for the first twelve months and varied at the end of each twelve month period in line with changes in the Retail Price Index (excluding mortgages).

12.10 The Contractor shall not be entitled to charge for travelling expenses from the home or base of the Secondee to and from the Location but shall be entitled to charge for travelling whilst the Secondee is actually working for the Council from the Location to any other Site and back again at the Travelling Rate determined by the Council. Travelling time and expenses shall only be paid for where they are incurred at the express instruction of the Supervising Officer and distances shall be measured by the shortest practicable route.

(13) ENTITLEMENT

13.1 The rates set out in Clause 12 hereof shall be the Contractor's sole entitlement to payment under the Contract and the Council shall not be liable to pay any other expenses, costs, fees or charges incurred by the Contractor in respect of personal or corporate taxes, duties, royalties, licences or any other matter.

(14) CLAUSE NOT USED

(15) INVOICES

15.1 The Contractor shall submit invoices for payments due monthly in arrears at the end of each month following such month during which the Services were performed by the Secondee. The invoices shall particularise:

(i) the authorised hours worked by the Secondee for which the Contractor will be charging the Council at the rates mentioned in Clause 12 hereto.

(ii) a record of authorised journeys undertaken on each working day together with appropriate travelling expenses incurred.

(iii) the Purchase Order Number (Qxxxxxx or Zxxxxxx)

(iv) the Secondee's post number and title (e.g. SC26 Care Assistant)

(v) the name of the Secondee

All invoices must be accompanied by the relevant Secondee's timesheet, which has been signed by the Supervising Officer.

15.2 Invoices must be sent to:

Leeds City Council,

Social Services Payment Department,

3^rd Floor East,

Merrion House,

110 Merrion Centre,

Leeds,

LS2 8QB

Properly presented invoices shall be paid by the Council within 30 days of their receipt.

(16) CONDUCT

16.2 If any Secondee shall be guilty of any serious misconduct or shall fail or neglect to carry out any duties assigned to him/her or shall fail to attend at the Location or other site when required or shall fail to comply with any standards, rules, procedures or policies mentioned in 16.1 above then the Council may immediately terminate the secondment for that particular Secondee in which case no further payments will be due from the Council to the Contractor in respect of that Secondee from the date of termination. Without prejudice to any other remedy it may have the Council may thereafter retain any amounts due to the Contractor under the Contract and apply it to meet any loss or expense suffered by the Council as a result of any default under this Clause.

16.3 If in the sole opinion of the Supervising Officer any Secondee who has been appointed does not have the necessary skills or qualifications to undertake the Services then the Supervising Officer shall have the right to immediately terminate the secondment of that particular Secondee. Where the Supervising officer has terminated the secondment of a Secondee in the first day of the Period of Appointment then no payment will be due from the Council to the Contractor in respect of that particular Secondee. In no way shall the termination of the secondment of a particular Secondee affect secondment of any other Secondee mentioned in the Order or any other Order placed with the Contractor under this Contract.

(17) TERMINATION

17.1 The Council shall have the right to terminate the Contract forthwith and recover from the Contractor the amount of any loss caused to the Council through such termination in any of the following circumstances:

(i) if the Contractor is in breach of any of the obligations of the Contract - and fails to remedy such breach within 14 days of receiving notice from the Council detailing the breach.

(18) BREAK PROVISIONS

18.1 Either party shall have the right once an order has been placed with the Contractor to terminate the secondment of any particular Secondee for whatever reason by serving not less than the required period of notice which has been stated on the Order unless it is stated on the Order that the Secondee is required for a fixed period in which case the Contractor shall not have the right to terminate that particular secondment and the Secondee must attend for the whole Period of Appointment.Where no period of notice has been stated on the Order then such notice provisions for each Secondee will be as follows:

(i) where the period of appointment is stated on the Order as being less than 3 months or where no duration has been stated then the required period of notice shall be 1 week.

(ii) where the period of appointment is stated on the Order as being more than 3 months then the required period of notice shall be 2 weeks.

18.2 Where either party has terminated the secondment of any particular Secondee under this clause then the Contractor will be entitled to claim for all the hours which have been properly worked by the Secondee up to the date of termination.

18.3 Under no circumstances shall the Council be liable for any further payment to the Contractor through any termination under this clause other than that is which is mentioned in Sub-Clause 18.2 above.

18.4 Where either party has terminated the secondment of any particular Secondee under this clause it shall in no way affect the secondment of any other Secondee mentioned in the Order or any other Order placed with the Contractor under the Contract.

(19) PROPERTY COPYRIGHT AND DISCLOSURE

19.1 The property and copyright in any drawings or any other documents produced by the Secondee under the Contract shall become and vest in the Council from the time of their creation.

(20) BRIBERY AND CORRUPTION

(21) EQUAL OPPORTUNITIES

21.1 The Contractor shall at all times throughout the Contract Period abide by the relevant provisions of the Sex Discrimination Act 1975 the Race Relations Act 1976 and the Disability Discrimination Act 1995 or any statutory modification or re-enactment thereof and comply with other statutory requirements as to the employment of disabled persons that may be in force from time to time.

21.2 The Contractor shall at all times comply with the relevant Codes of Practice which relate to the legislation stated in sub-clause 21.1 above which may be produced from time to time in relation to the employment of its own employees and Secondees engaged under this Agreement.

(22) CONFIDENTIALITY

22.1 The Contractor shall not and shall ensure that the Secondees do not divulge to any third party any information concerning or in connection with the Services or the business activities of the Council.

22.2 The Contractor and the Secondees shall neither dispose or part with possession of any document or information given to it in connection with the Services or this Contract.

22.3 The provisions of this clause shall not apply to:

(i) any information in the public domain otherwise than by breach of this Contract

(ii) any information required by a court of competent jurisdiction

22.4 The provisions of this clause shall survive any termination of this Contract and shall continue in perpetuity.

(23) CONTACT WITH THE MEDIA

23.1 The Contractor shall not and shall ensure that its employees and the Secondees do not divulge any details of their contractual arrangements or individual secondments with the Council to the media, and shall refer any such enquiries to the Council.

(24) NOTICES

24.1 Any notice to be given to either party by the other the Contract shall be served by sending it by first class post to the principal place of business of the party concerned, and in the case of the party being a company at its registered office.

24.2 All notices served under Clause 24.1 shall be deemed to have been served 24 hours after being posted.

(25) TRANSFER AND SUB-CONTRACTING

25.1 This Agreement is personal to the Contractor. The Contractor shall not assign, novate, Sub-Contract or otherwise dispose of this Agreement or any part thereof without the previous consent in writing of the Council such consent not to be unreasonably withheld.

25.2 Notwithstanding any Sub-Contracting permitted hereunder, the Contractor shall remain primarily responsible for the acts and omissions of its Sub-Contractors as though they were its own.

25.3 Subject to Clause 25.5, the Council shall be entitled to:

25.3.1 assign, novate or otherwise dispose of its rights and obligations under this Agreement or any part thereof to any contracting authority (as defined in Regulation 4(2) of the Public Contracts (Work, Services and Supply) (Amendment) Regulations 2000) (a "Contracting Authority"); or

25.3.2 novate this Agreement to any other body (including but not limited to any private sector body) which substantially performs any of the functions that previously had been performed by the Council

provided that where such assignment, novation or other disposal increases the burden of the Contractor's obligations pursuant to this Agreement, the Contractor shall be entitled to such additional Charges as may be agreed between the parties to compensate for such additional burdens.

25.4 Any change in the legal status of the Council such that it ceases to be a Contracting Authority shall not, subject to Clause 25.5, affect the validity of this Agreement. In such circumstances, this Agreement shall be binding on any successor body to the Council.

25.5 If this Agreement is novated to a body which is not a Contracting Authority pursuant to Clause 25.3.2 or if a successor body which is not a Contracting Authority becomes the Council pursuant to Clause 25.4 (in the remainder of this Clause both such bodies are referred to as the "Transferee"):

25.5.2 the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Agreement or any part thereof with the previous consent in writing of the Contractor

25.5.3 the rights acquired by the Transferee relating to the use of the specially written software shall not extend beyond the activities previously performed by the Council and, in particular, the Transferee shall not be entitled to perform any service bureau or facilities management services utilising the specially written software for any third party.

25.5.4 The Council shall be entitled to disclose to any Transferee any confidential information of the Contractor which relates to the performance of the Services by the Contractor. In such circumstances the Council shall authorise the transferee to use such confidential information only for purposes relating to the performance of the Services and for no other purposes and, for the avoidance of doubt, the Transferee shall be bound by the confidentiality undertaking contained herein in relation to such confidential information.

(26) TERMS OF AGENCY

26.1 For the purposes of the Contract, the Contractor is deemed to be an independent contractor and the Secondees are in no circumstances deemed to be employees or agents of the Council.

26.2 The Contractor and the Secondees shall under no circumstances hold themselves out as being authorised to enter into any contract on behalf of the Council or in any other way to bind the Council to the performance variation release or discharge of any obligation.

(27) WAIVER

27.1 No forbearance, indulgences or relaxation on the part of the Council shown or granted to the Contractor in respect of its obligations under the Contract shall in any way affect, restrict or diminish the rights and powers of the Council under the Contract or operate as or be deemed a waiver of any breach of Contract.

(28) SEVERABILITY

28.1 If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been executed with the invalid illegal or unenforceable provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of this Agreement, the Council and the Contractor shall immediately commence good faith negotiations to remedy such invalidity.

(29) FORCE MAJEURE

29.1 For the purposes of this Agreement the expression "Force Majeure" shall mean any cause affecting the performance by a party of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control including (but without limiting the generality thereof) governmental regulations, fire, flood, or any disaster or an industrial dispute affecting a third party for which a substitute third party is not reasonably available. Any act, event, omission, happening or non-happening will only be considered Force Majeure if it is not attributable to the wilful act, neglect or failure to take reasonable precautions by the affected party, its agents or employees.

29.2 For the avoidance of doubt, both parties agree that any acts, events, omissions, happenings or non-happenings resulting from the adoption of the Euro by the United Kingdom government shall not be considered to constitute Force Majeure under this Agreement.

29.3 Neither party shall in any circumstances be liable to the other for any loss of any kind whatsoever including but not limited to any damages or abatement of Charges whether directly or indirectly caused to or incurred by the other party by reason of any failure or delay in the performance of its obligations hereunder which is due to Force Majeure. Notwithstanding the foregoing, each party shall use all reasonable endeavours to continue to perform, or resume performance of, such obligations hereunder for the duration of such Force Majeure event.

29.4 If either of the parties shall become aware of circumstances of Force Majeure which give rise to or which are likely to give rise to any such failure or delay on its part it shall forthwith notify the other by the most expeditious method then available and shall inform the other of the period which it is estimated that such failure or delay shall continue.

29.5 It is expressly agreed that any failure by the Contractor to perform or any delay by the Contractor in performing its obligations under this Agreement which results from any failure or delay in the performance of its obligations by any person, firm or company with which the Contractor shall have entered into any contract, supply arrangement or Sub-Contract or otherwise shall be regarded as a failure or delay due to Force Majeure only in the event that such person firm or company shall itself be prevented from or delayed in complying with its obligations under such contract, supply arrangement or Sub-Contract or otherwise as a result of circumstances of Force Majeure.

29.6 For the avoidance of doubt it is hereby expressly declared that the only events which shall afford relief from liability for failure or delay shall be any event qualifying for Force Majeure hereunder.

(30) AMENDMENTS TO THIS AGREEMENT

30.1 This Agreement shall not be varied or amended unless such variation or amendment is agreed in writing by a duly authorised representative of the Council on behalf of the Council and by a duly authorised representative of the Contractor on behalf of the Contractor.

30.2 Orders placed under this Agreement shall not be varied or amended unless such variation or amendment is agreed in writing by a duly authorised representative of the Council on behalf of the Council and by a duly authorised representative of the Contractor on behalf of the Contractor.

30.3 The control of change under this Agreement shall be in accordance with any agreed change control procedures. The control of change under any Order shall be in accordance with any agreed order change control procedures.

(31) RIGHTS OF THIRD PARTIES

31.1 This Agreement shall not create any rights that shall be enforceable by anyone other than the parties to this Agreement.

(32) DISPUTE RESOLUTION PROCEDURE

32.1 The parties shall refer all matters in dispute arising out of or in connection with this Agreement for consideration and decision by directors or designated senior managers of each party, who shall use their reasonable endeavours to reach a solution to any such dispute within a period of twenty one (21) days, and failing which, unless the parties agree another period of time, any such dispute may, upon agreement of the parties be dealt with as set out in sub-clause 32.2.

32.2 If the dispute cannot be resolved by the parties representatives nominated under Clause 32.1 the dispute may be referred to effective dispute resolution (“EDR”) under the supervision of the Centre for Effective Dispute Resolution of the International Dispute Resolution Centre, 70 Fleet Street, London, EC4Y 1EU (“CEDR”). EDR shall commence by either party serving on the other written notice (“EDR Notice”) setting out in summary the issues in dispute and calling upon that other party to join in an approach to CEDR for the appointment of the Neutral.

32.3 EDR shall be conducted using a sole mediator (“Neutral”) in or substantially in accordance with CEDR's recommended agreement for the time being in use. The Neutral should be a CEDR accredited mediator agreed between the parties, or in default of agreement within 14 days of notice of either party calling upon the other to engage in EDR, appointed by CEDR.

32.4 The parties agree to co-operate fully and promptly and in good faith with CEDR or the Neutral in the performance of their obligations under this Clause. Both parties will afford the Neutral all necessary assistance which the Neutral requires to consider the dispute including but not limited to full access to any documentation or correspondence relating to the Services.

32.5 Unless agreed otherwise in the course of the procedure each party shall bear its own costs of EDR.

32.6 If and to the extent that after engaging in good faith in EDR the parties do not resolve the matters in dispute, all matters remaining in dispute shall be referred to the Courts.

32.7 In the event that the process of EDR does not succeed in finding a resolution to the dispute within a period of 56 days, or such other time as the parties may agree, either party may take such action as is available to it under this Agreement or generally at law.

32.8 Work and activity to be carried out under this Agreement shall not cease or be delayed by this dispute resolution procedure.

(33) POWER OF THE COUNCIL IN DEFAULT

33.1 Where the Council re-let the Agreement or any part thereof pursuant to clause 17 the Contractor shall make good to the Council all loss damages and expenses they may incur or be liable to in consequence of such re-letting as aforesaid for the period for which this Agreement shall have been accepted by the Council.

(34) BANKRUPTCY OF CONTRACTOR OR BREACH OF AGREEMENT

34.1 If the Contractor shall commit any act of bankruptcy or if (the Contractor being a Company) proceedings shall be commenced for the winding up of the Contractor or if the Contractor shall make any arrangements or composition with his creditors or shall suffer any execution to be levied on his goods or shall fail to observe or perform any of the terms and conditions of the Agreement or shall not in the opinion of the Council exercise such due diligence as will enable the Agreement to be performed during the Agreement period then and in any such case the Council may by notice in writing under the hand of its Director of Legal and Democratic Services Department given or addressed to the Contractor in the manner hereinafter provided determine the Agreement but without prejudice to the liabilities of the Contractor already accrued thereunder or to accrue by virtue of Clause 8 hereof.

(35) POWER OF “SET OFF”

35.1 The Council shall have power to set off any sums due from the Contractor to the Council against any sums due from the Council to the Contractor under the Agreement.

(36) HUMAN RIGHTS

36.1 The Contractor shall not do or permit or allow anything to be done which is incompatible with the rights contained within the European Convention on Human Rights.

36.2 The Contractor shall not do or permit or allow anything to be done which may result in the Council acting incompatibly with the rights contained within the European Convention on Human Rights and the Human Rights Act 1998.

36.3 The Contractor shall indemnify the Council against any loss claims and expenditure resulting from the Contractor's breach of Clauses 36.1 and 36.2.

(37) EQUAL OPPORTUNITIES AND HEALTH AND SAFETY

37.1 The Contractor shall at all times carry out the provisions of this Agreement in accordance with the Council's approved Equal Opportunities Policy and Health and Safety Policy.

(38) SCRUTINY BOARD/EXECUTIVE BOARD ASSISTANCE

38.1 It is a condition of this Agreement that if required by the Council to do so the Contractor shall throughout the period of this Agreement and for a period of six years after expiry of this Agreement give all reasonable assistance to the Council including attending the Council's Scrutiny and/or Executive Board in order to answer questions pertaining to this Agreement should the need arise.

38.2 In the event that the Council requires the Contractor's assistance after the expiry of this Agreement as referred to in Clause 35.1 the Council shall pay the reasonable expenses of the Contractor arising as a result of providing such assistance.

(39) CONFLICT OF INTEREST

39.1 The Contractor shall notify the Council immediately upon becoming aware of any possible conflict of interest which may arise between the interests of the Council and any other client of the Contractor and the Contractor shall take all reasonable steps to remove or avoid the cause of any such conflict of interest to the satisfaction of the Council.

(40) Freedom of Information Act 2000

40.1 The Contractor acknowledges that the Council is subject to the requirements of the FOIA and the Environmental Information Regulations and shall assist and cooperate with the Council (at the Contractor's expense) to enable the Council to comply with these Information disclosure requirements.

40.2 The Contractor shall and shall procure that its sub-contractors shall:

transfer any Request for Information to the other Party as soon as practicable after receipt and in any event within two Working Days of receiving a Request for Information;

(i) provide the Council with a copy of all Information in its possession or power in the form that the Council requires within five Working Days (or such other period as the Council may specify) of the Council requesting that Information; and

(ii) provide all necessary assistance as reasonably requested by the Council to enable the Council to respond to a Request for Information within the time for compliance set out in section 10 of the FOIA.

40.3 The Council shall be responsible for determining at its absolute discretion whether:-

a) the Information is exempt from disclosure under , the FOIA and the Environmental Information Regulations;

b) the Information is to be disclosed in response to a Request for Information, and

in no event shall the Contractor respond directly to a Request for Information unless expressly authorised to do so by the Council.

40.4 The Contractor acknowledges that the Council may, acting in accordance with the FOIA, the Local Government Act 1972 (as amended) the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000 (as amended) or the Environmental Information Regulations be obliged to disclose Information:-

(i) without consulting with the Contractor, or

(ii) following consultation with the Contractor and having taken its views into account.

40.5 The Contractor shall ensure that all information produced in the course of the Contract or relating to the Contract is retained for disclosure and shall permit the Council to inspect such records as requested from time to time.

40.6 The Contractor acknowledges that any lists or schedules provided by it outlining Confidential Information are of indicative value only and that the Council may nevertheless be obliged to disclose Confidential Information in accordance with this Clause.

(41) INDEMNITY

41.1 The Contractor will indemnify the Council fully against all claims, proceedings, actions, damages, legal costs, expenses and any other liabilities in respect of any death or personal injury or loss of or damage to property or financial loss, to the extent caused by any negligence or default arising by any act or omission by the Contractor, its staff, subcontractors, agents or representative, or anyone acting on their behalf, during the performance of this Agreement.

(42) CLAUSE HEADINGS

42.1 The Clause headings used in the Conditions and underlined are for reference purposes only and shall not be used in the construction of the Contract.

(43) LAW

43.1 This Contract shall be construed in accordance with the Laws of England and both parties submit to the exclusive jurisdiction of the English Courts.

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