Terms and conditions - services - rise and fall - no option to renew

1. DEFINITIONS AND INTERPRETATIONS 

1.1 In this Contract, unless the context requires otherwise, the following words and phrases shall have the following meanings:- 

• (a) "Award Date" means the date of the award of the Contract by the Council to the Contractor; 
• (b) "Contract" means the documents listed in the Council's acceptance letter, including these Conditions and the Specification. In case of discrepancy between these Conditions and other documents forming part of the Contract, these Conditions shall prevail unless otherwise agreed in writing; 
• (c) "Contract Price" means the price or prices payable to the Contractor by the Council under the Contract for the full and proper performance by the Contractor of his part of the Contract as determined under the provisions of the Contract; 
• (d) "Contractor" means the person appointed by the Council for the performance of the Services (including any successors); 
• (e) "Contractor's Representative" means a competent person appointed by the Contractor to be his representative in relation to the performance of the Contract who will receive and act on any directions given by the Contract Manager;
• (f) "Contract Manager" means the official of the Council, or other person appointed by the Council to act on its behalf for the purpose of managing the Contract; 
• (g) "Council” means Belfast City Council;
• (h) "Council’s Property" means anything issued or otherwise provided in connection with the Contract by or on behalf of the Council; 
• (i) "Key Personnel" means any person who, in the Council's opinion, is fundamental to the performance of the Contract; 
• (j) "month" means calendar month, unless otherwise defined; 
• (k) any reference to a "person" shall, as the context may require, be construed as a reference to any individual, firm, company, corporation, Government Department, Agency or any association or partnership (whether or not having a separate legal personality); 
• (l) "Premises" means any premises occupied, owned or leased by the Council, or as described in the Contract; 
• (m) "Programme" means any programme or timetable agreed by the parties to the Contract which regulates or specifies the period or periods for the performance of the Services or any part of them, together with any activities ancillary to the performance of the Services or the preparation and submission of reports; 
• (n) "Service(s)" or "Work" means all Services detailed in the Specification which the Contractor is required to carry out under the Contract; 
• (o) "Specification" means the description of Services to be performed under the Contract. 
• (p) “Commercially sensitive information” means the information listed by the Contractor in the “Freedom of Information Statement”. 
• (q) “Confidential information” means all information disclosed by either party to the other in any form or manner, provided that each such item of information would appear to a reasonable person to be confidential or is specifically stated by the disclosing party to be confidential. (r) “FOIA” means the Freedom of Information Act 2000. 

1.2 Unless the context requires otherwise, the singular shall include the plural and vice versa, and words expressed in any gender shall include any other gender; 

1.3 The headings are inserted for convenience only and shall not affect the interpretation of the Contract. 

1.4 Reference to any legislative requirement or similar instrument shall be deemed to include reference to any subsequent amendment to them. 

2. LAW 

The Contract shall be governed by and interpreted in accordance with Northern Ireland and shall be subject to the jurisdiction of the Courts of Northern Ireland. 

3. DURATION OF THE CONTRACT 

Subject to the Council's rights of termination under these conditions:- 

3.1 the Contract shall be in force for a period of 12 months from the Award Date (“the initial period”); 

3.2 the Council shall have the option as set out in condition 

3.3. to renew the Contract after the initial period from year to year (“the subsequent period(s)”); 3.3 the Council may exercise the option to renew the Contract by giving the Contractor no less than 12 weeks notice prior to the expiry of the initial period or the current subsequent period. 

4. ALTERATION OF REQUIREMENT 

The Council reserves the right to alter the requirements of the Contract, as detailed in the Specification, should this at any time become necessary. In the event of any alteration of the contractual requirement, payment under the Contract shall be subject to fair and reasonable adjustment to be agreed between the Council and the Contractor and recorded in writing. 

5. DUTY OF CARE 

The Contractor shall perform the Services with all reasonable skill, care and diligence and in accordance with all relevant legislative and statutory requirements. 

6. CONTRACTOR'S PERFORMANCE 

6.1 The Contractor shall properly manage and monitor performance of the Services and immediately inform the Contract Manager if any aspect of the Contract is not being or is unable to be performed. 

6.2 The Contractor shall provide all the necessary facilities, materials and any other equipment, and personnel of appropriate qualifications and experience to undertake the Services. All personnel deployed on work relating to the Contract shall have appropriate qualifications and competence, be properly managed and supervised and in these and any other respects be acceptable to the Council. If the Council gives the Contractor notice that any person is to be removed from involvement in the Services, the Contractor shall take immediate steps to comply with such notice. The decision of the Council regarding the Contractor's personnel shall be final and conclusive. 

6.3 The Contractor shall:- 

• (a) give the Council, if so requested, full particulars of all persons who are or may be at any time employed on the Contract; 
• (b) comply with any rules, regulations and any safety and security instructions from the Council, including completion of any additional clearance procedures required by the Council, and return of any passes as required. 

6.4 The Contractor shall take all reasonable steps to avoid changes to any of the staff designated in the Contract as Key Personnel. The Contractor shall give at least one month's notice to the Contract Manager of any proposals to change Key Personnel and Condition 6.2 shall apply to the proposed replacement personnel.

6.5 Unless otherwise agreed by the Council, neither the Contractor nor any of his employees or agents shall carry out any business or trading activity within the confines of the Premises and no advertisement, sign or notice of any description shall be exhibited without prior approval, in writing, from the Council. 

6.6 The Contractor shall exercise due care and propriety when dealing with third parties in connection with the Contract and ensure that no commitments are entered into (unless expressly required under the Contract), without the Council's prior written consent. 

6.7 Nothing in the Contract shall be construed as creating a partnership, a contract of employment or a relationship of principal and agent between the Council and the Contractor. 

7. MEETINGS AND REPORTS 

7.1 The Contractor shall attend all meetings arranged by the Council for the discussion of matters connected with the performance of the Services.

7.2 Without prejudice to the submission of reports as specified under the Contract, the Contractor shall render any additional reports as to the performance of the Services at such time or times, and in such form as the Contract Manager may reasonably require. 

8. INSPECTION 

During the course of the Contract the Council shall have the power to inspect and examine any of the Services on the Premises at any reasonable time. Where the Services are being performed on any other premises, the Contract Manager or the Council shall on giving reasonable notice to the Contractor be entitled to inspect and examine such Services. The Contractor shall provide free of charge all such facilities as the Council may reasonably require for such inspection and examination. In this Condition, Services includes planning or preliminary work for the Services. 

9. INVOICES AND PAYMENT 

9.1 The Contractor shall submit an invoice to the Council for the attention of the Central Transactions Unit as specified in the Contract or within 28 days of the completion of the Services. All invoices shall quote the Contract number and, where appropriate, the purchase order number. 

9.2 The Contractor shall submit with the invoice such records as the Council may reasonably require including, but not limited to time sheets, expenses incurred, invoices paid or any other documents which would enable the Council to verify the information and the amounts referred to in that invoice. 

9.3 The Contractor shall provide to the Council the name and address of his bank, the account name and number, the bank sort code and any other details, in whatever format the Council may require. 

9.4 The Council shall pay the Contractor in respect of the satisfactory performance of the Services in accordance with the Contract. 

9.5 Except where otherwise provided in the Contract, the amount payable to the Contractor for the performance of the Services shall be inclusive of all costs of staff, facilities, equipment, materials and all other expenses whatsoever incurred by the Contractor in discharging his obligations under the Contract. 

9.6 The Council is committed to prompt payment in accordance with statutory legislation and shall pay the Contractor within 30 days of the receipt of a valid invoice, provided that the Council is satisfied that the Services for which the invoice relates have been performed fully in accordance with the Contract. 

9.7 The Contractor shall be bound by the Council’s Standing Order 67 and Financial Regulation H. 

10. VALUE ADDED TAX

The Council shall pay to the Contractor the amount of any VAT chargeable in respect of the performance of the Services in accordance with Contract. 

11. CORRUPT GIFTS AND PAYMENTS OF COMMISSION 

11.1 The Contractor shall not receive or agree to receive from any person, or offer or agree to give to any person, or procure for any person any gift or consideration of any kind as an inducement or reward for doing or not doing anything, or for showing favour or disfavour to any person in relation to the Contract or any other contract with the Crown. 

11.2 The Contractor shall not conspire with any person to do any of the acts mentioned in Condition 11.1. 

11.3 Any:- 

• (a) breach by the Contractor of this Condition; or
• (b) commission of any offence by the Contractor under the Prevention of Corruption Acts 1889 to 1916 or Sections 46 to 47 of the Local Government Act (NI) 1972 in relation to this or any other contract with the Council; shall entitle the Council to terminate the Contract and recover from the Contractor the amount of any loss resulting from such termination and recover from the Contractor the amount of value of any such gift, consideration or commission. 

11.4 The decision of the Council in relation to this Condition shall be final and conclusive. 

12. THE FAIR EMPLOYMENT AND TREATMENT (NI) ORDER 1998 

12.1 The Contractor shall not be an unqualified person for the purposes of Section 64 to 66 of the fair Employment and Treatment (NI) Order 1998 and shall sign the Declaration and Undertaking annexed hereto. 

12.2 The Contractor shall not sub-contract any Services or Work to an unqualified person for the purposes of Section 64 to 66 of the Fair Employment and Treatment (NI) Order 1998. 

13. DISCLOSURE OF INFORMATION 

13.1 The Council reserves the general right to disclose information about this Contract, unless otherwise agreed in writing. 

13.2 The Contractor shall not disclose the Contract or any provision thereof or any information resulting from, in connection with, or during the course of, the Contract, to any person unless it is strictly necessary for the performance of the Contract, and authorised in writing by the Council. The Contractor shall comply with any instructions regarding changes to authorisations and other instructions regarding disclosure or non-disclosure. This Condition does not apply in relation to information 

• (a) which is in or enters the public domain otherwise than by a breach of an obligation of confidentiality 
• (b) which is or becomes known from other sources without breach of any restriction on disclosure or 
• (c) which is required to be disclosed by law or any professional or regulatory obligation. 

13.3 Subject to Condition 13.2, the Contractor shall ensure that information about the Contract, or arising from or connected with the Contract:- 

• (a) is divulged only to the minimum number of persons; 
• (b) is divulged only to the extent essential to each person's action in carrying out (or in connection with) the Contract and that such persons do not further divulge such information; 
• (c) is properly safeguarded. 

13.4 Subject to the retention of proper professional records, the Contractor shall, on written request from the Council, return all documents containing any part of the Work carried out by the Contractor, including but not limited to, documents stored electronically. 

13.5 The Contractor shall ensure that any contract with:- 

• (a) any employee of his, and 
• (b) any contractor of his engaged in any way in connection with the Contract, contains a condition requiring that person to keep all information in relation to the Contract and its performance confidential, and shall draw their attention to this condition and condition 13.2. 

13.6 No information regarding the Services being provided under the Contract or facilities to photograph or film shall be given or permitted by the Contractor except with prior written permission of the Council, to whom any press or other enquiry or any such matter should be referred. This Condition does not apply in relation to information 

• (a) which is in or enters the public domain otherwise than by a breach of an obligation of confidentiality 
• (b) which is or becomes known from other sources without breach of any restriction on disclosure or 
• (c) which is required to be disclosed by law or any professional or regulatory obligation. 

13.7 The Contractor shall not, in connection with the Contract, communicate with representatives of the general or technical press, radio, television or other communications media unless specifically granted permission to do so in writing by the Council. 

13.8 Except with the consent in writing of the Council the Contractor shall not make use of the Contract or any information issued or furnished by or on behalf of the Council otherwise than for the purpose of the Contract. 

13.9 The decision of the Council regarding anything in this Condition 13 shall be final and conclusive. 

14. DISCRIMINATION 

The Contractor shall not unlawfully discriminate within the meaning and scope of the provisions of the Race Relations (NI) Order 1997, Sex Discrimination (NI) Order 1976 (as amended), Fair Employment and Treatment (NI) Order 1998, the Disability Discrimination Act 1995, the Employment Equality (Sexual Orientation) Regulations (NI) 2003 and the Employment Equality (Age) Regulations (NI) 2006 and shall take all reasonable steps to ensure that all servants, employees or agents of the Contractor and all sub-contractors employed in the execution of the 5 Contract do not unlawfully discriminate. This condition shall not in any way relieve the Contractor of his general obligations to comply with any legislative requirements as provided in Condition 5. 

15. MERGER, TAKE-OVER OR CHANGE OF CONTROL 

The Contractor shall forthwith inform the Council in writing of any proposal or negotiations which may or will result in a merger, take-over, change of control, change of name or status, or the Contractor (being a company as defined in the Companies (NI) Order 1986-1990) shall inform the Council of any such change as defined in section 416 of the Income and Corporation Taxes Act 1988. The Contractor shall comply with any request by the Council for information arising from this Condition. 

16. UNSATISFACTORY PERFORMANCE 

16.1 Where in the opinion of the Council the Contractor has failed to perform the whole or any part of the Services, with the standard of skill, care and diligence which a competent and suitably qualified person performing the same Services could reasonably be expected to exercise, or in accordance with the Contract (including the Specification and Programme), the Council may give the Contractor a notice specifying the way in which his performance falls short of the requirements of the Contract, or is otherwise unsatisfactory. 

16.2 Where the Contractor has been notified of a failure in accordance with Condition 16.1 the Council may: 

• (a) request from the Contractor that, at his own expense and as specified by the Council, he reschedules and performs the Services to the Council's satisfaction within such period as may be specified by the Council in the notice, including where necessary, the correction or re-execution of any Services already carried out; or 
• (b) withhold or reduce payments to the Contractor, in such amount as the Council deems appropriate in each particular case. 

17. TERMINATION OF THE CONTRACT 

Without prejudice to any other power of termination, the Council may terminate the Contract without notice, for any of the following reasons:- 

• (a) the breach by the Contractor of any of Conditions 11 (Corrupt Gifts & Payments of Commission), 12 (Fair Employment and Treatment (NI) Order 1998), 13 (Disclosure of Information) of the Contract, or any other material breach of contract; 
• (b) the failure by the Contractor to comply with a notice given under Condition 16 (Unsatisfactory Performance)within 14 days from the date of the notice; 
• (c) the Contractor ceases or proposes to cease to carry on his business; 
• (d) there is a change of control of the type referred to in Condition 15 (Merger, Take-over or Change of Control), and the Council has not agreed in advance in writing to the particular change of control, save that in this event the Council shall give one month's notice in writing to the Contractor. 

18. BREAK 

The Council shall in addition to its powers under any other of these Conditions have power to terminate the Contract at any time by giving to the Contractor one month's written notice. Upon the expiry of the notice the Contract shall be terminated without prejudice to the rights of the parties accrued to the date of termination. 

19. CONSEQUENCES OF TERMINATION AND BREAK 

19.1 Where the Contract is terminated under Condition 17 (Termination of the Contract), the following provisions shall apply:- 

• (a) Any sum due or accruing from the Council to the Contractor may be withheld or reduced by such amount as the Council in either case considers reasonable and appropriate in the circumstances; 
• (b) the Council may make all arrangements which are in its view necessary to procure the orderly completion of the Services including the letting of another contract or contracts; 6 
• (c) where the total costs reasonably and properly incurred by the Council by reason of such arrangements exceed the amount that would have been payable to the Contractor for the completion of the Services, the excess shall, subject to any overall limitation of liability contained in condition 22, be recoverable from the Contractor and the Council reserves the right to recover such excess by set-off against any amount withheld by the Council under Condition 19.1 (a) or as otherwise provided for under Condition 25 (Recovery of Sums Due). 

19.2 Without prejudice to Condition 19.1, where the Contract is terminated under Condition 17 (d) or Condition 18 (Break), the Contractor shall have the right to claim from the Council reimbursement of all reasonable costs necessarily and properly incurred by him in relation to the orderly cessation of the Services, including any commitments, liabilities or expenditure which are reasonably and properly incurred, and would otherwise represent an unavoidable loss by the Contractor by reason of the termination of the Contract. For the avoidance of doubt the Council will not indemnify the Contractor against loss of profit. The Council shall not in any case be liable to pay under the provisions of this Condition any sum which, when taken together with any sums paid or due or becoming due to the Contractor under the Contract, shall exceed the total Contract price. 

19.3 Where the Contract is terminated under Condition 17 (Termination of the Contract) or Condition 18 (Break), the Council may, during any notice period:- 

• (a) direct the Contractor, where the Services have not been commenced, to refrain from commencing such Services or where the Services have been commenced, to cease work immediately; 
• (b) direct the Contractor to complete in accordance with the Contract all or any of the Services, or any part or component thereof, which shall be paid at the agreed Contract Price or, where no agreement exists, a fair and reasonable price. 

20. ASSIGNMENT, SUB-CONTRACTORS AND SUPPLIERS 

20.1 The Contractor shall not sub-contract or transfer, assign, charge, or otherwise dispose of the Contract or any part of it without the prior written consent of the Council. 

20.2 The Contractor shall ensure that any sub-contractor complies with the terms and conditions of the Contract, so far as they are applicable. Any sub-contract shall not relieve the Contractor of his obligations under the Contract.

20.3 Where the Contractor enters into a contract with a supplier or sub-contractor for the purpose of performing the Contract or any part of it, he shall cause a term to be included in such contract which requires payment to be made by the Contractor to the supplier or subcontractor within a specified period not exceeding 30 days from receipt of a valid invoice as defined by the Contract requirements. 

21. INSURANCE 

21.1 The Contractor shall effect and maintain insurance necessary to cover his liabilities under the Contract and, where the Contractor sub-contracts part of the Contract, he shall procure that any such sub-contractor effects and maintains insurance to cover its liabilities under the subcontract. 

21.2 Where in compliance with Condition 21.1 the Contractor effects, or is to procure that a sub-contractor effects, professional indemnity insurance, the requisite insurance shall cover liabilities under the Contract, or sub-contract as the case may be, from the commencement of the Services, or the services under the sub-contract as the case may be, until 6 years after: 

• (i) the completion of the Services; or 
• (ii) the termination of the Contract whichever is the earlier. 

21.3 The Contractor shall, whenever required by the Council, produce to the Council documentary evidence showing that the insurance required by Conditions 21.1 and 21.2 has been taken out and is being maintained. 

21.4 If, for whatever reason, the Contractor fails to maintain, or fails to procure that any subcontractor maintains, the insurance required by this Condition 21, the Council may make alternative arrangements necessary to protect its interests and recover the costs thereof from the Contractor, provided always that any overall limitation of liability contained in Condition 22 shall not thereby be exceeded. 

21.5 The terms of any insurance or the amount of cover shall not relieve the Contractor or his sub-contractors or consultants of any liabilities under the Contract, their sub-contracts or their terms of commission. 

21.6 Without prejudice to any rights or remedies of the Council (including the Council’s rights and remedies under the Contract) the Contractor shall indemnify the Council against all actions, suits, claims, demands, losses, charges, costs and expenses which the Council or any third party may suffer or incur as a result of or in connection with any damage to property or in respect of any injury (whether fatal or otherwise) to any person or in respect of any consequential loss which may result directly or indirectly from the provision of the service or the negligent or wrongful act or omission of the Contractor. 

21.7 The Contractor shall effect with a reputable insurance company a policy or policies of insurance at the level stated in the Schedule hereto covering the matters which are the subject of indemnities under these conditions and shall at the request of the Council produce the relevant policy or policies together with receipts or other evidence of payment of the latest premium due thereunder. 

22. LOSS OR DAMAGE 

22.1 Condition 22 applies to any loss or damage which arises out of or is in any way connected with the performance of the Contract and shall include, for the avoidance of doubt and without prejudice to the generality of the foregoing, breaches of Conditions 26.1, 28 and 34. 

22.2 The Contractor shall, without delay and at his own expense, replace or make good to the satisfaction of the Council, or, if the Council requires, compensate the Council for, any loss or damage.

22.3 If any loss or damage:-

• (a) was not caused or contributed to by the Contractor's neglect or default, whether by act, omission or otherwise (for the purposes of this condition 22.3, "Contractor" shall include his servants, agents or sub-contractors) , he shall be under no liability under this condition 22; 
• (b) was in part caused or contributed to by the Contractor's neglect or default, whether by act, omission or otherwise, and in part by:- 

22.4 In this condition 22 loss or damage includes:- 

• (a) loss or damage to property; 
• (b) personal injury and death; 
• (c) loss of profit or loss of use; 
• (d) any other loss. 

23. CONFIDENTIALITY 

23.1 Each Party:- 

• (a) shall treat all Confidential Information belonging to the other Party as confidential and safeguard it accordingly; and 
• (b) shall not disclose any Confidential Information belonging to the other Party to any other person without the prior written consent of the other Party, except to such persons and to such extent as may be necessary for the performance of the Contract or except where disclosure is otherwise expressly permitted by the provisions of this Contract. 

23.2 The Contractor shall take all necessary precautions to ensure that all Confidential Information obtained from the Council under or in connection with the Contract:- 

• (a) is given only to such of the Staff and professional advisors or consultants engaged to advise it in connection with the Contract as is strictly necessary for the performance of the Contract and only to the extent necessary for the performance of the Contract; 
• (b) is treated as confidential and not disclosed (without prior Council approval) or used by any Staff or such professional advisors or consultants otherwise than for the purposes of the Contract; 

23.3 The Contractor shall ensure that Staff or its professional advisors or consultants are aware of the Contractor’s Confidentiality obligations under this Contract. 

23.4 The Contractor shall not use any Confidential Information it receives from the Council otherwise than for the purposes of the Contract. 

23.5 The provisions of Clauses 23.1 to 23.4 shall not apply to any Confidential Information received by one Party from the other:- 

• (a) which is or becomes public knowledge (otherwise than by breach of this Condition); 
• (b) which was in the possession of the receiving Party, without restriction as to its disclosure, before receiving it from the disclosing Party; 
• (c) which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; 
• (d) which is independently developed without access to the Confidential Information; or 
• (e) which must be disclosed pursuant to a statutory, legal or parliamentary obligation placed upon the Party making the disclosure, including any requirements for disclosure under the FOIA, or the Environmental Information Regulations pursuant to Condition 24.3 (Freedom of Information). 

23.6 Nothing in this Condition shall prevent the Council:- 

• (a) disclosing any Confidential Information for the purpose of:- 
• (b) disclosing any Confidential Information obtained from the Contractor:-

23.7 Nothing in this Condition shall prevent either Party from using any techniques, ideas or know-how gained during the performance of the Contract in the course of its normal business, to the extent that this does not result in a disclosure of Confidential Information or an infringement of Intellectual Property Rights. 

23.8 In the event that the Contractor fails to comply with this Condition 23, the Council reserves the right to terminate the Contract by notice in writing with immediate effect. 

24. FREEDOM OF INFORMATION 

24.1 The Contractor acknowledges that the Council is subject to the requirements of the FOIA and the Environmental Information Regulations and shall assist and co-operate with the Council (at the Contractor’s expense) to enable the Council to comply with these Information disclosure requirements. 

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

• (a) transfer the Request for Information, as defined in the FOIA or the Environmental Information Regulations, to the Council as soon as practicable after receipt and in any event, within [two] Working Days of receiving a Request for Information: 
• (b) 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 
• (c) 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 [or regulation 5 of the Environmental Information Regulations]. 

24.3 The Council shall be responsible for determining at its absolute discretion whether the 9 Commercially Sensitive Information and/or any other information:- 

• (a) is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Information Regulations; 
• (b) 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; 

24.4 The Contractor acknowledges that the Council may be obliged under the FOIA, or the Environmental Information Regulations, or any regulations or guidelines made thereunder, to disclose Information:- 

• (a) without consulting with the Contractor, or 
• (b) following consultation with the Contractor and having taken its views into account. 

24.5 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. 

24.6 The Contractor acknowledges that any lists or schedules provided by it outlining Confidential Information or Commercially Sensitive Information are of indicative value only and that the Council may nevertheless be obliged to disclose Confidential Information or Commercially Sensitive Information in accordance with Clause 24.4. 

25. RECOVERY OF SUMS DUE

Whenever under the Contract any sums of money shall be recoverable from or payable by the Contractor to the Council, the same may be deducted from any sum then due, or which at any later time may become due, to the Contractor under the Contract or under any other contract with the Council. 

26. DATA PROTECTION

Annex A and Schedule One thereto are applicable to this Contract and are incorporated herewith. 

27. INSOLVENCY OF THE CONTRACTOR

27.1 The Contractor shall inform the Council:- 

• (a) if being an individual, or where the Contractor is a firm, any partner in that firm, shall at any time become bankrupt, or shall have a receiving order or administration order made against him, or shall make any composition or arrangement with or for the benefit of his creditors, or shall make any conveyance or assignment for the benefit of his creditors, or shall purport to do so, or if in Scotland he shall become insolvent or notour bankrupt, or any application shall be made under any bankruptcy Act for the time being in force for sequestration of his estate, or a trust deed shall be granted by him for the benefit of his creditors; or 
• (b) if being a company, he passes a resolution, or the Court makes an order, that the company be wound up otherwise than for the purpose of reconstruction or amalgamation, or if a receiver or manager on behalf of a creditor shall be appointed, or if circumstances shall arise which entitle the Court, otherwise than for the purposes of amalgamation or reconstruction, to make a winding-up order. 

27.2 If any of the events in the conditions 27.1 (a) or 27.1 (b) occur (whether or not the Contractor has informed the Council) the Council may at any time by notice in writing summarily terminate the Contract without compensation to the Contractor. Such termination shall not prejudice or affect any right of action or remedy which shall have accrued before that date or shall accrue thereafter to the Council. 

28. ROYALTIES AND LICENCE FEES 

The Contractor shall ensure that all royalties, licence fees or similar expenses in respect of all intellectual property used in connection with the Contract have been paid and are included within the Contract Price. 

29. DRAWINGS, SPECIFICATIONS, SOFTWARE, DESIGNS AND OTHER DATA

Any drawings, specification, software, designs or other data (including working documents, maps and photographs) completed or provided in connection with the Contract shall become or, as the case may be, remain the property of the Council and be delivered up to the Council on completion or termination of the Contract, subject to the retention of proper professional records. Where the Council has agreed to accept modern storage media, drawings and other documents shall be supplied by the Contractor in an agreed form. 

30. RETENTION OF DOCUMENTATION

 The Contractor shall retain, produce when required (and explain as necessary) such accounts, documents (including working documents) and records as the Council, or the Contract Manager, may request, in connection with the Contract, at any time during the Contract and for a period of 2 years from the date of expiry or termination or such longer period as may be agreed between the Council and the Contractor in writing at or before the commencement of the Contract; and afford such facilities as the Council may reasonably require for his representatives to visit the Contractor's premises and examine the records under this Condition. 

31. SERVING OF NOTICES

 Any notice required to be given or served under this Contract by the Council shall be in writing and shall be served by either:- 

• (a) delivery to the Contractor's Representative, or 
• (b) sending it by first-class post to the Contractor's last known place of business or registered office, when it shall be deemed to be served on the day when in the ordinary course of the post it would have been delivered. Any notice required to be given by the Contractor to the Council shall be sent to the Chief Executive of the Council. 

32. ARBITRATION 

All disputes, differences or questions between the parties to the Contract with respect to any matter or thing arising out of or relating to the Contract (other than a matter or thing as to which the decision of the Council is under the Contract to be final and conclusive, and except to the extent to which special provision for arbitration is made elsewhere in the Contract), shall be referred to either:- 

• (a) the arbitration of 2 persons, one to be appointed by the Council and one by the Contractor, or 
• (b) their Umpire in accordance with the provisions of the Arbitration Acts 1950, 1996 or any statutory modification or re-enactment thereof for the time being in force. 

33. TRANSFER OF RESPONSIBILITY

33.1 In the event that a different organisation is required to take over the Services at the expiry or termination of the Contract, the Contractor shall co-operate in the transfer, under arrangements to be notified to him by the Council. 

33.2 The transfer shall be arranged between the Council and the Contractor so as to reduce to a minimum any interruption in the Services. 

34. CONTRACTOR'S OBLIGATIONS IN CONNECTION WITH TUPE 

34.1 Where requested to do so the Contractor shall provide such information (including any changes to and interpretations thereof) in connection with The Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended (TUPE) and / or the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006, as the Council may require, to the Council and/or to any other person authorised by the Council who is to be invited to submit a tender in relation to the provision of similar Services, within 10 days of the request. 

34.2 During the 8 month period preceding the expiry of this Contract or within any period of notice of Termination or notice of Break, the Contractor shall not without the prior written agreement of the Council, which shall not be unreasonably withheld or delayed:- 

• (a) materially amend the terms and conditions of employment of any employee whose work, wholly or mainly falls within the scope of this Contract; or 
• (b) materially increase the number of employees whose work (or any part of it) is work undertaken for the purposes of this Contract. 

34.3 The Contractor shall not knowingly do or omit to do anything which may adversely affect an orderly transfer of responsibility for provision of the Services. 

35. USE OF COUNCIL FACILITIES

The Council shall make available to the Contractor all facilities under the Council’s control and information and give such assistance as shall reasonably be required for the carrying out by the Contractor of the services under the contract. 

36. SEVERABILITY 

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

37. WAIVER 

37.1 The failure of the Council or the Contractor to exercise any right or remedy shall not constitute a waiver of that right or remedy. 

37.2 No waiver shall be effective unless it is communicated to either the Council or the Contractor in writing. 

37.3 A waiver of any right or remedy arising from a breach of contract shall not constitute a waiver of any right or remedy arising from any other breach of the Contract. 

38. RIGHTS OF THIRD PARTIES

Nothing in this Contract confers or purports to confer on any third party any right to enforce any term of this Contract. 

39. RISE AND FALL PRICE PROVISIONS 

39.1 Subject to condition 9, the Contract Price shall remain fixed during the initial period. 

39.2 If the Council exercises the option to extend the Contract as per condition 3.3 then the following shall apply:- 

39.2.1 If by reason of any rise or fall in the costs (ruling at the time of tender) of materials, labour, transport or the carrying out by the Contractor of his statutory obligations, the cost to the Contractor of performing his/its obligations under the Contract shall be increased or reduced, the amount of such increase or reduction shall be added to or deducted from the price quoted in the tender documents, as the case may be, provided that no account shall be increased by the default negligence or omission of the Contractor; 

39.2.2 The Contractor shall only be entitled to one price increase for each year of the remainder of the Contract period and any subsequent period arising from the Council having exercised its option to renew the Contract and any price increase shall be in line with the Consumer Price Index. 

39.2.3 All requests for a price increase must be made in writing by the Contractor and sent to the Council’s Procurement Manager not less than two months prior to the expiry of the first year of the Contract period and thereafter not less than two months before each anniversary of the commencement date of the Contract period (and any subsequent period applicable). 

39.2.4 Any price increase request under this condition shall not be admissible unless the aforementioned provision is adhered to and unless the Contractor shall within 28 days of being requested to do so, furnish such evidence as the Council shall reasonably require substantiating the claim. 

STANDING ORDER 67 - ENGAGEMENT OF CONSULTANTS 

• 67 (a) It shall be a condition of the engagement of any architect, engineer, surveyor or other consultant (who is not an officer of the Council) who is retained to supervise a contract on behalf of the Council that he/she will - 

FINANCIAL REGULATION H - ORDERS FOR WORK, GOODS AND SERVICES 

• H.1 Official orders shall be in a form approved by the Director of Finance and Resources and are to be signed only by officers authorised by the appropriate Chief Officer. 
• H.2 Each Chief Officer shall be responsible for all orders emanating from his/her Department and shall be responsible for ensuring that sufficient provision is available in the approved estimates for the expenditure. 
• H.3 Official orders shall be issued for all work, goods or services to be supplied to the Council, except for supplies of public utility services, for periodic payments such as rent or rates, for petty cash purchases or such other exceptions as the Director of Finance and Resources may approve. 
• H.4 Each order shall conform with the directions of the Council with respect to central purchasing and the standardisation of supplies and materials. 
• H.5 A copy of each order shall, if so required, be supplied to the Director of Finance and Resources. 
• H.6 Chief Officers shall acquire official order forms in accordance with arrangements approved by the Director of Finance and Resources, and be responsible for their control and use.
• H.7 Where urgent orders are given orally, they shall be confirmed by a written official order within 2 working days. 
• H.8 No order may be given unless the expenditure that will arise from it is in accordance with Standing Orders and Financial Regulations. 
• H.9 The Standing Orders relating to contracts have been made by the Council under the terms of Section 99 of the Local Government Act (Northern Ireland) 1972 and are therefore of statutory effect and their terms must be carefully observed. 

The following additional arrangements relating to the invitation of quotations have been agreed with the Local Government Auditor and will be amended from time to time:- 

Where the cost does not exceed £3,000, written quotations need not be invited; where it does not exceed £8,000, three quotations and, where it exceeds £8,000 but not £30,000, four quotations should be invited. These are minimum requirements. It may well be advisable to seek quotations in excess of the number specified, or to advertise where this step appears likely to attract lower prices. 

In all cases the accepted quotation, together with a summary of all quotations received must be sent to the Director of Finance and Resources when the account is submitted for payment. 

Where

• (a) it is proposed to accept a quotation other than the lowest, or 
• (b) the specified number of quotations has not been invited, or 
• (c) the expenditure is not of a normal everyday nature, then the circumstances should be reported in writing to the Director of Finance and Resources.

Annex A

GDPR CLAUSE DEFINITIONS:

Data Protection Legislation: 

• (i) the GDPR, the LED and any applicable national implementing Laws as amended from time to time 
• (ii) the DPA 2018 to the extent that it relates to processing of personal data and privacy; 
• (iii) all applicable Law about the processing of personal data and privacy. 

Data Protection Impact Assessment: an assessment by the Controller of the impact of the envisaged processing on the protection of Personal Data. 

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, Data Protection Officer, Special Category Data, Processing and Information Commissioner take the meaning given in the GDPR. 

Council Liaison Officer: the person nominated by the Controller who will assume the day to day management responsibility and liaison with the 

Processor Data Loss Event: any event that results, or may result, in unauthorised access to Personal Data held by the Contractor under this Agreement, and/or actual or potential loss and/or destruction of Personal Data in breach of this Agreement, including any Personal Data Breach. 

A Data Loss Event can take the form of, but is not limited to, the following:- the loss or theft of Personal Data; equipment failure; hacking; “blagging” whereby Personal Data is obtained by a third party by deceit; accidental or unintentional disclosure of Personal Data due to human error.

Data Subject Access Request: a request made by, or on behalf of, a Data Subject in accordance with rights granted pursuant to the Data Protection Legislation to access their Personal Data. 

DPA 2018: Data Protection Act 2018 

GDPR: the General Data Protection Regulation (Regulation (EU) 2016/679) 

LED: Law Enforcement Directive (Directive (EU) 2016/680) 

Project Manager: the person nominated by the Processor who will assume the day to day management responsibility and liaison with the Controller 

Protective Measures: appropriate technical and organisational measures which may include: pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident and regularly assessing and evaluating the effectiveness of such measures adopted by it. 

Services: the services that will be provided by the Processor during the period of this Agreement 

Sub-processor: any third Party appointed to process Personal Data on behalf of the Contractor related to this Agreement. 

1. DATA PROTECTION 

Controller and Processor 

1.1 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Council is the Controller and the Contractor is the Processor. The only processing that the Contractor is authorised to do is listed in Schedule One by the Council and may not be determined by the Contractor. The Parties further acknowledge that the Council will at all times retain ownership and control of Council Personal Data. 

Instructions 

1.2 The Contractor will only process Personal Data in accordance with written instructions received from the Council and shall notify the Council immediately if it considers that any of the Council’s instructions infringe the Data Protection Legislation. At all times the processing carried out by the Contractor must be proportionate to the purpose of the processing. 

Compliance with Data Protection Legislation 

1.3 The Contractor shall comply with all Data Protection Legislation in connection with the processing of Personal Data, the Services and the exercise and performance of its respective rights and obligations under this Agreement. In particular the processor will apply all such measures as are necessary to ensure full compliance with GDPR Article 5 (1) (a) – (f)

Data Protection Impact assessment 

1.4 The Contractor shall provide all reasonable assistance to the Council in the preparation of any Data Protection Impact Assessment prior to commencing any processing. Such assistance may, at the discretion of the Council, include: 

• (a) a systematic description of the envisaged processing operations and the purpose of the processing; 
• (b) an assessment of the necessity and proportionality of the processing operations in relation to the Services; 
• (c) an assessment of the risks to the rights and freedoms of Data Subjects; and 
• (d) the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of Personal Data.

Processing Personal Data and Security 

1.5 The Contractor shall, in relation to any Personal Data processed in connection with its obligations under this Agreement: 

• (a) process that Personal Data only in accordance with Schedule One, unless the Contractor is required to do otherwise by Law. If it is so required, the Contractor shall promptly notify the Council in writing, before processing the Personal Data, stating the identity of the requesting body and the nature of the Personal Data sought, unless prohibited by Law from doing so; 
• (b) ensure that it has in place Protective Measures, which have been reviewed and approved in writing by the Council as appropriate to protect against a Data Loss Event having taken account of the:
  • (i) nature of the data to be protected; 
  • (ii) harm that might result from a Data Loss Event; 
  • (iii) state of technological development; and 
  • (iv) cost of implementing any measures; 
• (c) ensure that:
  • (i) the Contractor Personnel do not process Personal Data except in accordance with this Agreement (and in particular Schedule One); 
  • (ii) it takes all reasonable steps to ensure the reliability, integrity and suitability of any Contractor Personnel who have access to the Personal Data and ensure that they:
    • (A) are aware of and comply with the Contractor’s duties under this clause; 
    • (B) are subject to appropriate confidentiality undertakings with the Contractor or any Sub-processor; if required to do so by the Council, the Contractor must confirm this in writing in the Council’s prescribed confidentiality undertaking form (currently form D/Pro-3). 
    • (C) are informed of the confidential nature of the Personal Data and do not publish, disclose or divulge any of the Personal Data to any third Party unless directed in writing to do so by the Council or as otherwise permitted by this Agreement; and 
    • (D) have undergone adequate training in the use, care, protection and handling of Personal Data; and 
• (d) If requested by the Council to do so, the Contractor will provide written details to the Council of any Contractor Personnel who have access to the Personal Data. 
• (e) not transfer Personal Data outside of the EU unless the prior written consent of the Council has been obtained and the following conditions are fulfilled: 16
  • (i) the Data Subject has enforceable rights and effective legal remedies; 
  • (ii) the Contractor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred (or, if it is not so bound, uses its best endeavours to assist the Council in meeting its obligations); and 
  • (iii) the Contractor complies with any reasonable instructions notified to it in advance by the Council with respect to the processing of the Personal Data; 
  • (iv) the Data Subject has enforceable rights and effective legal remedies; 
  • (v) the Contractor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred (or, if it is not so bound, uses its best endeavours to assist the Council in meeting its obligations); and 
  • (vi) the Contractor complies with any reasonable instructions notified to it in advance by the Council with respect to the processing of the Personal Data; 
• (f) at the written direction of the Council, delete or return Personal Data (and any copies of it) to the Council on termination of the Agreement, unless the Contractor is required by Law to retain the Personal Data. 
• (g) ensure appropriate security of Personal Data, including adequate protection against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of personal Data or damage to Personal Data, by using appropriate technical or organisational measures to ensure the integrity and confidentiality of the Personal Data. In particular, the Processor shall ensure that adequate measures are in place to:
  • (i) prevent accidental compromise or damage during storage, handling, use, processing, transmission or transport 
  • (ii) deter deliberate compromise or opportunist attack 
  • (iii) promote discretion in order to avoid unauthorised access (iv) provide suitable training to its staff on how to handle the Council’s Personal Data 

Confidentiality

• (a) Subject to sub-clause (c) below, the Contractor acknowledges that the Council’s Personal Data is strictly private and confidential and the Contractor will not disclose or communicate the Council’s Personal Data to any other individual, organisation or third party. 
• (b) The obligations of confidentiality imposed on the Processor under this Agreement will remain in full force and effect after the expiry or termination of this Agreement. 

Notifications to the Council 

1.6 Subject to clause 1.7, the Contractor shall notify the Council immediately if it: 

• (a) receives a Data Subject Access Request (or purported Data Subject Access Request); 
• (b) receives a request to rectify, block or erase any Personal Data; 
• (c) receives any other request, complaint or communication relating to either Party's obligations under the Data Protection Legislation; 
• (d) receives any communication from the Information Commissioner or any other regulatory authority in connection with Personal Data processed under this Agreement; 
• (e) receives a request from any third Party for disclosure of Personal Data where compliance with such request is required or purported to be required by Law; or 
• (f) becomes aware of a Data Loss Event. A Data Loss Event must be notified by the Project Manager to the Council Liaison Officer in the Council’s prescribed form, which is currently form D/Pro-4. 

Ongoing obligation to notify 

1.7 The Contractor’s obligation to notify under clause 1.6 shall include the provision of further information to the Council in phases, as details become available. 

Provision of Assistance 

1.8 Taking into account the nature of the processing, the Contractor shall provide the Council with full assistance in relation to either Party's obligations under Data Protection Legislation and any complaint, communication or request made under clause 1.5 (and insofar as possible within the timescales reasonably required by the Council) including by promptly providing: 

• (a) the Council with full details and copies of the complaint, communication or request; 
• (b) such assistance as is reasonably requested by the Council to enable the Council to comply with a Data Subject Access Request within the relevant timescales set out in the Data Protection Legislation; 
• (c) the Council, at its request, with any Personal Data it holds in relation to a Data Subject; 
• (d) assistance as requested by the Council following any Data Loss Event; 
• (e) assistance as requested by the Council with respect to any request from 18 the Information Commissioner’s Office, or any consultation by the Council with the Information Commissioner's Office. 
• (f) assistance as requested by the Council in order to investigate any alleged breach of this Agreement or the Data Protection Legislation. Records

1.9 The Contractor shall maintain complete and accurate records and information to demonstrate its compliance with this clause. This requirement does not apply where the Contractor employs fewer than 250 staff, unless: 

• (a) the Council determines that the processing is not occasional; 
• (b) the Council determines the processing includes special categories of data as referred to in Article 9(1) of the GDPR or Personal Data relating to criminal convictions and offences referred to in Article 10 of the GDPR; and 
• (c) the Council determines that the processing is likely to result in a risk to the rights and freedoms of Data Subjects. 

Audit 

1.10 The Contractor shall allow for audits of its Data Processing activity by the Council or the Council Liaison Officer. In particular:- 

• (a) at any time the Contractor shall promptly provide, following a written request from the Council, such information or documentation as the Council may reasonably require to demonstrate the Contractor’s compliance with its obligations under the Data Protection Legislation 
• (b) At any time during the Agreement the Council Liaison Officer may perform such inspections, whether at the Contractor’s premises or otherwise, as the Council considers are appropriate to ensure that any assurances provided by the Contractor are being met to the satisfaction of the Council. Any such inspection will be carried out after 48 hours’ notice is given to the Processor and will be permitted during normal working hours.

Data Protection Officer 

1.11 The Contractor shall designate a data protection officer if required by the Data Protection Legislation. 

Sub-processor 

1.12 Before allowing any Sub-processor to process any Personal Data related to this Agreement, the Contractor must: 

• (a) notify the Council in writing of the intended Sub-processor and processing; 
• (b) obtain the written consent of the Council; 
• (c) enter into a written agreement with the Sub-processor which give effect to the terms set out in this Agreement such that they apply to the Subprocessor; and 
• (d) provide the Council with such information regarding the Sub-processor as the Council may reasonably require. 

Liability for Sub-processor

1.13 The Contractor shall remain fully liable for all acts or omissions of any Subprocessor. 

ISO 27001 

1.14 The Council is working to the principles of Information Security Standards ISO 27001. The Contractor at all times must meet the same or similar standards regarding the handling of Personal Data processed on behalf of the Council. 

Location of Processing

1.15 If at any time the Contractor should consider processing Personal Data place in a home office environment, in the first instance the Contractor must obtain the prior written consent of the Council and shall provide such additional written guarantees as are necessary to satisfy the Council that such processing of Personal Data can be safely, properly and securely carried out in the particular home office environment.

Freedom of Information 

1.16 The Contractor acknowledges that the Council is a public authority for the purposes of the Freedom of Information Act 2000 (“the FOIA”) and may be required to disclose information about the Agreement, including the Services provided by the Contractor and the processing carried out under this Agreement. The Contractor agrees to provide any such assistance to the Council as may reasonably be required to enable the Council to comply with its obligations under the FOIA. 

Revision of this Agreement 

1.17 The Council may, at any time on not less than 30 Working Days’ notice in writing, revise any clause(s) in this Agreement by replacing it/them with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when incorporated by attachment to this Agreement). 

Information Commissioner’s Office 

1.18 The Parties agree to take account of any guidance issued by the Information Commissioner’s Office. The Council may on not less than 30 Working Days’ notice in writing to the Contractor amend this Agreement to ensure that it complies with any guidance issued by the Information Commissioner’s Office. 

Headings 

1.19 The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 

21 SCHEDULE OF PROCESSING, PERSONAL DATA AND DATA SUBJECTS 

Schedule One: Processing, Personal Data and Data Subjects 

1. The Contractor shall comply with any further written instructions with respect to processing by the Council 

2. Any such further instructions shall be incorporated into this Schedule.