DATED2012
ROYAL BOROUGH OF KENSINGTON AND CHELSEA (1)
and
LONDON BOROUGH OF HAMMERSMITH AND FULHAM (2)
and
WESTMINSTER CITY COUNCIL (3)
and
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (4)
CONTRACT FOR THE PROVISION OF E-CRB SERVICES
ROYAL BOROUGH OF KENSINGTON & CHELSEA
TOWN HALL
HORNTON STREET
LONDON
W8 7NX
1
THIS AGREEMENT is made this [insert day] day of [insert month]2012
BETWEEN
(1)THE ROYAL BOROUGH OF KENSINGTON AND CHELSEA of the Town Hall, Hornton Street, London, W8 7NX (“RBKC”); and
(2)THE LONDON BOROUGH OF HAMMERSMITH AND FULHAM of the Town Hall, King Street, London, W6 9JU (“LBHF”); and
(3)WESTMINSTER CITY COUNCIL of Westminster City Hall, 64 Victoria Street. London SW1E 6QP (“WCC”)
Hereinafter “the Bi/Tri-Borough Partnership”
and
(4)[insert company, partnership or sole trader name] (company number: [insert here if applicable]) whose registered address [insert registered address if a company or partnership/sole trade address](the “Contractor”).
RECITALS
(1)RBKC, LBHF and WCC are three London local authorities that have agreed to share certain functions
(2)The three authorities retain their sovereign status and for the purpose of this contract are separately party to it with discretion to exercise their rights under it jointly or severally as they see fit provided that none of the authorities shall act in a manner that frustrates performance of the Contract
(3)RBKC and LBHF already have a joint Director for Human Resources; it is intended that, in due, course, the three authorities will set up a unified service
(4)In the meantime, the three authorities have agreed to procure certain services jointly as a Bi/Tri-Borough Partnership
(5)One of the services that the Bi/Tri-Borough Partnership wishes to procure is E-CRB Services (“the Services”)
(6)RBKC has agreed to act as the lead authority for this procurement and will register with the Criminal Records Bureau (CRB) as a body with umbrella status, trading as Bi/Tri-Borough Partnership
(7)Pursuant to the above, a request for quotations was issued on 25 July 2012 and, following evaluation of these, the Bi/Tri-Borough Partnership has decided to award a Contract to the Contractor under the following terms and conditions
NOW IT IS AGREED AS FOLLOWS:
1.In this Contract unless the context shall otherwise require, the following words and expressions shall have the following meanings:-
“Client(s)”means customers, residents and any other persons that the Bi/Tri-Borough Partnership allows to access the Services;
“the Commencement Date”means midOctober2012 (provisional);
“Contract”means this agreement comprised of the terms and conditions, the Specification, the appendices and any other document to which reference may properly be made;
“Contract Year”means a 12 month period.The first Contract Year is a period of 12 months from the Commencement Date;
“the Contract Price(s)”means the contract price(s) set out in Schedule Y annexed hereto;
“Data”means any data whether in electronic or paper form and whether provided by the Bi/Tri-Borough Partnership or third parties that is processed by the Contractor or otherwise transferred to the Contractor;
“Defect”means the failure of the Software or the Contractor’s System to comply win all respects with the requirements of the Specification or to otherwise function properly;
“Documentation”means the technical specification, user manuals, training materials and any other paper or electronic media whose purpose is to assist the Bi/Tri-Borough Partnership or third party users to use the Services;
“Encumbrance”`means any right or interest of any third party including any mortgage, charge, lien, option, encumbrance, right of pre-emption or first refusal or any agreement to create any such right or interest;
“Force Majeure”means any event or occurrence which is outside the reasonable control of the Party concerned, and which is not attributable to any act or failure to take preventative action by the Party concerned, including (but not limited to) governmental regulations, fire, flood, or any disaster but does not include any industrial action;
“Good Industry Practice ”means the degree of skill, care, prudence and foresight and operating practice which would reasonably and ordinarily be expected from time to time of a skilled and experienced operator (engaged in the same type of undertaking as that of the Contractor) or any sub-contractor (as the case may be) under the same of similar circumstances;
“Implementation Plan”means any plan relating to the start up of services, the deployment of New Release or New Version Software or any other aspect of service provision;
“Intellectual Property Rights ”means any means patents, trademarks, service marks, design rights, copyright, know-how, rights in databases, domain names and all other industrial or intellectual property rights (whether registered or not) and all applications to register any of the same in any part of the world and any related goodwill;
“New Release”means any modification to the Software which remedies defects in the Software including any TPF’s (temporary programme fixes) bug fixes, patches and maintenance releases and any modifications required to maintain compatibility with other software;
“New Version”means any upgrades of the Software including any replacement products released by the Contractor from time to time;
“Party”means a party to the Contract and “Parties” shall be construed accordingly;
“the Responsible Officers”means the two people elected by and who work for the respective parties who have been elected to make decisions relating to this Contract;
“the Services”means the services defined in the Specification annexed hereto as Schedule X;
“Software”means the Software that is needed to provide the Services;
“the Specification”means the description of the Services that are required and which is annexed hereto;
“System”means hardware and software.
2.COMMENCEMENT AND DURATION
2.1This Contract shall start on the Commencement Date and shall continue until the 30day of September2014(provisional) or until terminated in accordance with clause 7.
2.2Subject to satisfactory performance by the Contractor, the Bi/Tri-Borough Partnership may wish to extend the Contract for a further period of up to one year. The Bi/Tri-Borough Partnership may approach the Contractor if it wishes to do so at any time before Contract expiry. The clauses in the Contract will apply throughout any such extended period unless otherwise stated to the contrary.
3.THE CONTRACTORS’ OBLIGATIONS
General
3.1The Contractor warrants that it has full right, power and authority to enter into this Contract and provide the Services and that all information relating to the performance of the System given to the Bi/Tri-Borough Partnership prior to the signing of the Contract was and remains to the best of the Contractor’s knowledge, true and accurate.
3.2The Contractor shall provide the Services in accordance with the Bi/Tri-Borough Partnership’s requirements as set out in the Schedule X (the Specification) any agreed Implementation Plan and the terms of this Contract.
3.3Unless otherwise stated in the Schedule the Contractor shall provide all necessary hardware, software, equipment, apparatus and facilities to undertake the Services and shall ensure that all such are suitable for the Services, free from defects in design or workmanship and able to function properly.
3.4In providing the Services the Contractor shall ensure that it is complying with all applicable law and with Good Industry Practice.
3.5The Contractor acknowledges that the fact that a provision does not state that the Contractor must perform the obligations at no additional charge shall not be taken as implying that the Contractor may charge for complying with the obligation.
Invoicing
3.6RBKC, LBHF and WCC will require separate invoices dividing in three equal portions the annual charges, such as the Annual Licence fee and the non-recurring costs (such as the set-up cost, if any). Charges for recurring costs (such as transaction fees) will also need to be invoiced separately so that each authority pays according to the usage made of the Services. All charges shall be based on the Contract Prices in Appendix Y.
Reports and Documentation
3.7The Contractor shall provide reports in accordance with the details set out in Schedule X.
3.8The Contractor shall provide such Documentation in the way of training materials as may be necessary to enable users to access and use the Services and shall provide updates to such Documentation as may from time to time be required by New Releases or New Versions of the Software.
3.9Documentation may be made available on-line or downloadable via the Internet in a user-friendly, context-centric format.
Annual Licence
3.10The Contractor shall grant the Bi/Tri-Borough Partnership an Annual Licence to use the Contractor’s Software and the Contractor warrants that it has the right to grant such a licence, that it owns the Intellectual Property Rights to the software and that usage of it to provide the Services does not infringe the rights of any third party or is subject to any Encumbrance.
3.11The Annual Licence shall permit usage of the Contractor’s Software by employees, agents, professional advisers and Clients of the Bi/Tri-Borough Partnership.
3.12If the Bi/Tri-Borough Partnership (or any member of it) outsources the provision of all or part of its information technology services or human resources services to a third party contractor, the third party contractor shall be entitled to use the Software in accordance with the terms of this agreement and for no other purpose other than to provide services to the Bi/Tri-Borough Partnership or any member of it.
Conflict of Interest
3.13The Contractor shall take appropriate steps to ensure that neither the Contractor nor any employee, servant, agent, supplier or sub-contractor is placed in a position where there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of the Contractor or such persons and the duties owed to the Bi/Tri-Borough Partnership under the provisions of the Contract. The Contractor will disclose to the Bi/Tri-Borough Partnership full particulars of any such conflict of interest which may arise.
3.14The Contractor shall take all reasonable steps, in accordance with Good Industry Practice, to prevent any fraudulent, dishonest or corrupt activity by its staff, the Contractor (including its shareholders, members, directors) and/or any of the Contractor’s suppliers, in connection with the receipt of monies from the Bi/Tri-Borough Partnership. The Contractor shall notify the Bi/Tri-Borough Partnership immediately if it has reason to suspect that any fraud, dishonesty or corrupt practice has occurred or is occurring or is likely to occur.
Legal Proceedings
3.15The Contractor shall assist the Bi/Tri-Borough Partnership by providing any relevant information and reasonable assistance in connection with any legal proceedings in which the Bi/Tri-Borough Partnership has an interest relating to this Contract.
Software Refresh
3.16The Contractor shall ensure that the Software is, at all times, capable of fulfilling all the requirements of the Specification and shall issue such New Releases and New Versions as may be required from time to time to maintain functionality and comply fully with any new or amended legal or regulatory requirements.
3.17For the avoidance of doubt, throughout the Contract Period, any New Releases or New Versions that may be required to maintain functionality and comply with any new or amended legal or regulatory requirements are to be provided free of any additional charges.
4.THE BI/TRI-BOROUGH PARTNERSHIP’S OBLIGATIONS
4.1In consideration of the Services provided by the Contractor under this ContractRBKC, LBHF and WCC shall upon receipt of their monthly invoices make the payments to the Contractor within 30 days, subject to the Contractor having complied with their obligations under the Contract.
4.2RBKC, LBHF and WCC are not jointly liable for payment of the Contract Price and each authority is only liable for such amount as is due under the Contract for the Services rendered to that authority.
4.3If any member of the Bi/Tri-Borough Partnership fails to make payment on the due date and that payment is not subject to any dispute, then, the Contractor may charge the particular member interest on the amount unpaid at the rate of 2% above the Lloyds Bank Base Rate applicable at the time until payment has been made in full. It is agreed between the Parties that the interest described herein provides the Contractor with a substantial remedy pursuant to sections 8 and 9 of the Late Payment of Commercial Debts (Interest) Act 1998.
4.4RBKC, LBHF and WCC are not jointly liable and shall not contribute to and/or indemnify each other for, any liabilities incurred for the performance of any obligation of the Bi/Tri-Borough Partnership under this Contract.
4.5The Bi/Tri-Borough Partnership shall not sub-license, assign or transfer the right to use the Contractor’s Software nor modify or alter the Contractor’s Software.
4.6The two/three authorities in the Bi/Tri-Borough Partnership authorise the Contractor to have access to their computer systems but only to the extent necessary for the performance of the Services and the Contractor warrants that it shall use all reasonable care to avoid contamination, corruption, adverse effects or other form of harm to the authorities’ systems.
5THE RESPONSIBLE OFFICERS
5.1The Contractor shall notify the other in writing the name of its Responsible Officer within 14 days of the date of the start of the Contract.
5.2The Bi/Tri-Borough Partnership’s Responsible Officer is [insert name and position here][1].
6.REVIEW MEETINGS
6.1The Responsible Officers shall be responsible for organising meetings to take place on an agreed basis, at which they shall review the provision of the Services and at which other representatives of the Bi/Tri-Borough Partnership and the Contractor may attend when the matters to be discussed warrant their attendance.
7.TERMINATION
Change of control, insolvency and default
7.1The Bi/Tri-Borough Partnership may terminate the Contract by notice in writing with immediate effect where:
(a)the Contractor undergoes a change of control, within the meaning ofsection 450 of the Corporation Tax Act 2010which impacts adversely and materially on the performance of the Contract; or
(b)the Contractor is an individual or a firm and a petition is presented for the Contractor’s bankruptcy, or a criminal bankruptcy order is made against the Contractor or any partner in the firm, or the Contractor or any partner in the firm makes any composition or arrangement with or for the benefit of creditors, or makes any conveyance or assignment for the benefit of creditors, or if an administrator is appointed to manage the Contractor’s or firm’s affairs; or
(c)the Contractor is a company, if the company passes a resolution for winding up or dissolution (otherwise than for the purposes of and followed by an amalgamation or reconstruction) or an application is made for, or any meeting of its directors or members resolves to make an application for an administration order in relation to it or any party gives or files notice of intention to appoint an administrator of it or such an administrator is appointed, or the court makes a winding-up order, or the company makes a composition or arrangement with its creditors, or an administrative receiver, receiver, manager or supervisor is appointed by a creditor or by the court, or possession is taken of any of its property under the terms of a fixed or floating charge; or
(d)where the Contractor is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 orany similar event occurs under the law of any other jurisdiction; or
(e)There is a material or substantial breach of Contract by the Contractor
7.2The Bi/Tri-Borough Partnership may only exercise its right under clause 7.1(a) within 3 months after a change of control occurs and shall not be permitted to do so where it has agreed in advance to the particular change of control that occurs. The Contractor shall notify the Responsible Officer immediately when any change of control occurs.
7.3If the Contractor, being an individual, shall die or be adjudged incapable of managing his or her affairs within the meaning of section 2 of the Mental Capacity Act 2005,the Bi/Tri-Borough Partnership shall be entitled to terminate the Contract by notice to the Contractor or the Contractor’s Responsible Officer with immediate effect.
8.LIABILITY AND INDEMNITY
8.1The Contractor shall accept full responsibility for and indemnify on demand the Bi/Tri-Borough Partnership, its staff, its agents and its other contractors against all liability for:
death and personal injury
breaches of warranties contained in clause 3
loss or damage to property (including property belonging to the Bi/Tri-Borough Partnership for which it is responsible)
loss, misplacement or corruption ofpersonal data by whatever means
which may arise out of or in consequence of the performance or non performance by the Contractor of its obligations under the Contract or by a sub-contractor or any of their employees or agents.
8.2Where liabilities arise to the Bi/Tri-Borough Partnership through the Contractor’s and or its sub-contractors’ negligence and the Contractor and/or its sub-contractors and its or their staff have merely contributed by their negligence to such a claim, the Bi/Tri-Borough Partnership will only rely on this indemnity to the extent of the Contractor’s or its sub-contractors’ contributory negligence.
8.3All other liability for all breaches or non-performance of this Contract by the Contractor whether in contract, tort or otherwise shall be limited to 10 percent (10%) of the Contract Price payable by the Bi/Tri-Borough Partnership during the twelve (12) months in which the breach occurs.
8.4The aggregate liability of the Bi/Tri-Borough Partnership for liability arising from fraud or death or injury to persons to the extent to which it arises as a result of its negligence, there will be no limit
8.5All other liability for all breaches or non-performance of this Contract by the Bi/Tri-Borough Partnership whether in contract, tort or otherwise shall be limited to in aggregate for each Contract Year to £3000, except that this limitation shall not apply to payment by the Bi/Tri-Borough Partnership of the Contract Price
8.6The Bi/Tri-Borough Partnership shall in no circumstances be liable to the Contractor under this Contract for any indirect or consequential loss, loss of goodwill; or loss of income arising from provision of the Services.