EXTRACT FROM DfE FRAMEWORK AGREEMENT FOR PROJECT MANAGEMENT AND EDUCATIONAL SERVICES SCHEDULE 3 APPOINTMENT TERMS

Transcription

1 EXTRACT FROM DfE FRAMEWORK AGREEMENT FOR PROJECT MANAGEMENT AND EDUCATIONAL SERVICES SCHEDULE 3 APPOINTMENT TERMS The following Appointment Terms shall apply to any Order for Services issued in accordance with this Framework Agreement. 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions In these Appointment Terms unless the context otherwise requires, the following expressions shall have the following meanings:- Academy Academy Trust Appointing Authority Data Agreed Fixed Fees and Rates Allocated Project Appointing Authority Background IPR Consultant Consultant Data and means all or any project for the design and construction/ refurbishment of schools forming part of the Department s Academy programme means the charitable company established to run an Academy or (where the Academy Trust is not in existence) any shell/putative company incorporated to assume the role of the Academy Trust prior to its incorporation as a charitable company means any data (including in particular but without limitation personal data as defined in the Data Protection Act 1998) which is supplied to the Consultant by the Appointing Authority or otherwise obtained by the Consultant in the course of performing its obligations under the Order for Services and the provision of Services means the fixed fees and rates for the provision of Services payable by the Appointing Authority for the Consultant as identified and set out in Schedule 2 of the Framework Agreement and Agreed Fixed Fees and Agreed Rates shall be construed accordingly means a Project or several Projects to be procured from the Consultant pursuant to an Order for Services and which has been notified to the Consultant strictly in accordance with Clause 11 of the Framework Agreement Shall have the meaning ascribed to it in the Framework Agreement. means any and all Intellectual Property Rights relating to an Allocated Project in existence and owned by, or licensed to, the Consultant as at the date of the Order for Services, or arising during the term of the Order for Services but entirely independently of the Allocated Project, which is required for the exploitation of the Intellectual Property Rights assigned or licensed to the Appointing Authority under Clause 9 means the consultant named as a party to the Framework Agreement and in the Order for Services means any and all data, information and/or documents

2 Documents Consultant s Personnel Consultant s Persons Consultant s Representative CPAGI Data Protection Act Default the Department s Project Lead EIR Fee Framework Agreement Freedom of Information Act (whether in hard copy form or stored on electronic media) produced or procured by or on behalf of the Consultant and/or Consultant s Personnel or Consultant s Persons in connection with and/or pursuant to the Order for Services including, without limitation: measurements, surveys, investigations, enquiries, studies, reports, sketches, drawings, plans, working drawings, calculations and/or specifications means the individuals named in the Order for Services or any replacements thereof appointed in accordance with Clause 3 means all employees, agents and contractors and subcontractors of the Consultant means such person notified by the Consultant to the Appointing Authority and approved by the Appointing Authority as set out in the Order for Services means the Code of Practice on Access to Government Information 1997 edition as amended, updated or replaced from time to time means the Data Protection Act 1998 as amended, updated or replaced from time to time and DPA should be construed accordingly means any breach of the obligations of the relevant Party (including but not limited to fundamental breach or breach of a fundamental term) or any other default, act, omission, negligence or negligent statement of the relevant Party in connection with or in relation to the subject-matter of this Framework Agreement and / or any contract called off from it and in respect of which such Party is liable to the other. means such person notified in writing by the Department to the Consultant as set out in the Order for Services and PL shall be construed accordingly means the Environmental Information Regulations 2004 as amended, updated or replaced from time to time means the Consultant s fee payable by the Appointing Authority for the performance of the Services as set out in the Order for Services and based on the Agreed Rates means the framework agreement between the Department for Education and the Consultant to which these Appointment Terms are annexed means the Freedom of Information Act 2000 as amended, updated or replaced from time to time and FOIA shall be construed accordingly Intellectual Property means intellectual property of whatever nature (including patents, trademarks, trade names, service marks, domain names, design rights, topography rights, database rights, _1 2

3 present and future copyright, moral rights, know-how and any similar or analogous rights) existing anywhere in the world (whether registered or unregistered) Intellectual Property Rights Key Performance Indicators Management Information "Order for Services" "Other Consultants" "Other Framework Agreements" "Prohibited Act" means any right, title and/or interest in Intellectual Property and, where the context so admits, includes applications for such rights means the key performance indicators for monitoring ongoing performance and delivery by the Consultant set out in Schedule 6 of the Framework Agreement. means the information specified in Schedule 7 of the Framework Agreement and any other such obligations set out in the Order for Services. means an order for services issued by the Appointing Authority to the Consultant (in the form set out at Schedule 4 of the Framework Agreement) in respect of Services and which together with the Appointment Terms forms a binding agreement between the Appointing Authority and the Consultant for the provision of services means the persons named as such in Schedule 2 of the Framework Agreement means the framework agreements substantially in the form of this Framework Agreement entered into between the Department for Education and the Other Consultants means: (a) offering, giving or agreeing to give to any servant of the Appointing Authority any gift or consideration of any kind as an inducement or reward: (i) (ii) for doing or not doing (or for having done or not having done) any act in relation to the obtaining or performance of the Order for Services; or for showing or not showing favour or disfavour to any person in relation to the Order for Services; (b) (c) entering into the Order for Services in connection with which commission has been paid or has been agreed to be paid by the Consultant or on its behalf, or to its knowledge, unless before the relevant contract is entered into particulars of any such commission and of the terms and conditions of any such contract for the payment thereof have been disclosed in writing to the Appointing Authority and; committing any offence: (i) under the Prevention of Corruption Acts _1 3

4 1916; (ii) (iii) under Legislation creating offences in respect of fraudulent acts; or at common law in respect of fraudulent acts in relation to the Order for Services; or (d) defrauding or attempting to defraud or conspiring to defraud the Appointing Authority or being an accessory to such fraud by another "Project" means any project in respect of which Services are to be provided by the Consultant or any of the Other Consultants to the Appointing Authority pursuant to the Framework Agreement or the Other Framework Agreements respectively prior to the Expiry Date, including any Allocated Project Regulatory Bodies means those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with in the Framework Agreement, these Appointment Terms or any other affairs of the Department and "Regulatory Body" shall be construed accordingly. "Services" Working Day means the services to be provided by the Consultant to the Appointing Authority in relation to an Allocated Project as more particularly described in any Order for Services means any day other than a Saturday, Sunday or public holiday in England and Wales. 1.2 References to clauses and annexes are references to clauses and annexes to these Appointment Terms. The provisions of the clauses and annexes are incorporated in these Appointment Terms. 1.3 Unless stated otherwise reference to Parties in these Appointment Terms are references to the Consultant and the Appointing Authority and Party shall be construed accordingly. 1.4 Where the Consultant comprises more than one person, references to "Consultant" shall include all persons comprising the Consultant and all obligations on the part of the Consultant under these Appointment Terms shall be deemed to be made and undertaken by such persons jointly and severally. 1.5 Reference to the singular includes the plural and vice versa and references to any gender includes both genders. 1.6 References to a person includes any individual, firm, unincorporated association or body corporate. 1.7 the headings and sub-headings in these Appointment Terms are inserted for convenience only and shall not affect the interpretation of these Appointment Terms _1 4

5 1.8 Any periods of time referred to in these Appointment Terms and expressed in days shall refer to calendar days unless stated otherwise. 1.9 Any reference to any statute or any section of any statute includes any statutory extension, amendment, modification, consultation or re-enactment and any statutory instrument, order or regulation made under any statute for the time being in force. 2. DUTIES OF CARE 2.1 the Consultant warrants and undertakes that it has exercised and will continue to exercise all reasonable skill, care and attention to be expected of a competent and appropriately qualified member of the Consultant's profession experienced in performing the same services in relation to projects of a similar scale, complexity, character, timescale and value to the Allocated Project. 2.2 the Consultant shall adhere to its equal opportunities policy and equal opportunities legislation including but not limited to the Disabilities Discrimination Act 1995, the Race Relations Act 1976 and Race Relations (Amendment Act 2000) and all other relevant equal opportunities and non-discrimination legislation. 2.3 the liability of the Consultant under or in connection with this Order for Services whether in contract, tort, negligence breach of statutory duty or otherwise shall not exceed 5 million for any occurrence or series of occurrences arising out of any one event (and in the aggregate annually in respect of pollution and contamination related claims and two hundred and fifty thousand pounds in the aggregate annually in respect of asbestos related claims.) 2.4 It is not intended that the Consultant should have any asbestos related duties or liabilities but to the extent that any nevertheless arise whether under statute or otherwise, the liability of the Consultant for asbestos related claims shall be limited to 250, The Appointing Authority acknowledges that the Consultant is not a designer and so agrees that the Consultant has no express or implied design duties or liabilities under these Appointment Terms. 3. PERSONNEL 3.1 the Consultant shall not remove any of the Consultant's Personnel from such role without the prior written approval of the Appointing Authority. If such approval is given the Consultant shall replace that person with a suitably qualified and competent replacement (unless and for so long as the Appointing Authority agrees that a replacement is unnecessary). 3.2 the Appointing Authority shall be entitled, after consultation with the Consultant, to require the replacement of any person employed by the Consultant in the performance of its obligations under the Order for Services including any member of the Consultant's Personnel who, in the Appointing Authority s reasonable opinion, has failed to perform satisfactorily or who has mis-conducted him or herself in any way. The Consultant shall promptly replace such person with an appropriately qualified and experienced substitute at no additional cost to the Appointing Authority. 4. USE OF PREMISES 4.1 Unless otherwise agreed, any land or premises made available to the Consultant by the Appointing Authority in connection with the provision of the Services shall be made _1 5

6 available to the Consultant free of charge and without exclusive possession and shall be used by the Consultant solely for the purpose of providing the Services. The Consultant shall have the use of such land or premises as licensee and shall vacate the same on the expiry or other termination of the Order for Services. 4.2 the Consultant shall ensure that in providing the Services its employees co-operate as far as may be reasonably necessary with the Appointing Authority s employees. The Consultant shall further ensure that its employees carry out their duties and behave while on the Appointing Authority s premises in such a way as to cause no unreasonable or unnecessary disruption to the routine and procedures of the Appointing Authority, its employees, visitors or other contractors. 4.3 the Consultant shall ensure that its employees comply with all rules and regulations from time to time issued by the Appointing Authority relating to the use and/or security of the Appointing Authority s premises. 5. PAYMENT FOR FRAMEWORK SERVICES 5.1 the Consultant shall maintain accurate and detailed records of all time spent by the Consultant's Personnel in performing the Services against the expenditure headings in Schedule 2. Such accounts shall be retained for at least 6 years after the end of the financial year in which the last payment was made under the Order for Services. Input and output VAT shall be included as separate items in such accounts. 5.2 the Fee to be set out in the Order for Services will be based on the Agreed Fixed Fees and Agreed Rates set out in Schedule the Appointing Authority will pay the Fee in the manner set out in the Order for Services. 5.4 In addition to the Fee the Appointing Authority shall pay such value added tax in relation thereto as may from time to time be prescribed by English Law. 5.5 Subject to Clause 24 the Appointing Authority shall be entitled to instruct lawful variations to the Services (including the addition, omission or change in nature of the Services set out in Appendix 1 of the Order for Services or Schedule 1 of the Framework Agreement). No variation shall invalidate the Order for Services or the Framework Agreement and the Appointing Authority shall not be responsible for any loss of profits, loss of contracts or other similar indirect losses if the Services are varied, added, omitted or changed. If at the Appointing Authority s request the Consultant undertakes any services additional to those covered by Appendix 1 of the Order for Services or Schedule 1 of the Framework Agreement, or by reason of any programme delivery changes requested by the Appointing Authority in accordance with Clause 7.2 or any other circumstances beyond the Consultant's control the Consultant is required to undertake extra work, provided the Consultant notifies the Appointing Authority before undertaking such work that the Consultant may require an additional fee, any additional fee will be payable in accordance with the rates contained in Schedule the Consultant shall have regard to the need for economy in all expenditure. Where any expenditure in an invoice, in the Appointing Authority's reasonable opinion, is excessive having due regard to the purpose for which it was incurred, the Appointing Authority shall only be liable to reimburse so much (if any) of the expenditure disallowed as, in the Appointing Authority s reasonable opinion after consultation with the Consultant, would reasonably have been required for that purpose _1 6

7 5.7 the Consultant shall permit duly authorised staff or agents of the Department or the National Audit Office to examine the accounts at any reasonable time and shall furnish oral or written explanations of the account if required. The Department reserves the right to carry out or have such staff or agents of the Department carry out examinations into the economy, efficiency and effectiveness with which the Consultant has used the Department s resources in the performance of the Order for Services. 5.8 In consideration of the performance of the Services, the Appointing Authority shall pay the Fee to the Consultant in accordance with the following clauses: invoices shall be prepared by the Consultant on the invoice dates specified in the Order for Services in arrears and shall be detailed against the payment and milestone profile set out in the Order for Services. The Consultant or the Consultant's Representative or accountant shall certify on the invoice that the amounts claimed were expended wholly and necessarily by the Consultant on the Services in accordance with the Order for Services and that the invoice does not include any costs being claimed from any other body or individual or from the Appointing Authority within the terms of another Order for Services [Where the Department is the Appointing Authority] invoices shall be sent, within 14 days of the end of the relevant month to Purchase to Pay, Shared Services, 3 rd floor Companies House, Crown Way, Cardiff, CF14 3UW, quoting the Order for Services order number. The Department undertakes to pay correctly submitted invoices within 14 days of receipt. The Department shall pay correctly submitted invoices in accordance with clause Any correctly submitted invoices that are not paid within 30 days may be subject to the provisions of the Late Payment of Commercial Debt (Interest) Act A correct invoice is one that: is delivered in timing in accordance with the contract; is for the correct sum; in respect of goods/services supplied or delivered to the required quality (or are expected to be at the required quality); includes the date, supplier name, contact details and bank details; quotes the relevant order number and has been delivered to the nominated address [Where the Academy Trust is the Appointing Authority] invoices shall be sent, within 14 days of the end of the relevant month to [Insert Academy Trust address here] quoting the Order for Services order number. The Academy Trust undertakes to pay correctly submitted invoices within 14 days of receipt. The Academy Trust shall pay correctly submitted invoices in accordance with clause Any correctly submitted invoices that are not paid within 30 days may be subject to the provisions of the Late Payment of Commercial Debt (Interest) Act A correct invoice is one that: is delivered in timing in accordance with the contract; is for the correct sum; in respect of goods/services supplied or delivered to the required quality (or are expected to be at the required quality); includes the date, supplier name, contact details and bank details; quotes the relevant order number and has been delivered to the nominated address If the Appointing Authority does not perform its obligations pursuant to clause 5.8.2, the Consultant shall contact the Department s Contract Manager. The Department shall use reasonable endeavours to reply to complaints within 10 working days. The Department shall not be responsible for any delay in payment caused by incomplete or illegible invoices the due date for payment of the amount claimed by the Consultant pursuant to Clause shall be 30 days after receipt from the day of physical or _1 7

8 electronic arrival at the nominated address of the Appointing Authority of the Consultant's application for such payment in accordance with Clause and the final date for payment of the same shall be 14 days thereafter; the Appointing Authority shall notify the Consultant in writing not later than five days after the due date for payment specifying the amount of the payment and any additional sums (if any) which the Appointing Authority has paid or proposes to pay by reference to the Consultant's invoice together with a statement of the basis on which such amount is calculated (if different from the amounts set out in the Consultant's invoice) the Appointing Authority shall notify the Consultant in writing not later than five days before the final date for payment specifying any amount which it intends to withhold from the Consultant's account, the grounds for withholding payment and, if there is more than one ground, each ground and the amount attributable to it. 5.9 If the Order for Services is terminated by the Appointing Authority due to the Consultant's insolvency or default in accordance with Clause 21 at any time before completion of the Services, the Appointing Authority shall only be liable to reimburse eligible payments made by, or due to, the Consultant before the date of termination the Appointing Authority shall not be obliged to pay the invoice until the Consultant has carried out the agreed elements of the Services specified in the Order for Services and completed the milestone to which the invoice relates On completion or on termination of the Order for Services, the Consultant shall promptly draw-up a final invoice, which shall cover all outstanding amounts incurred for the Services. The final invoice shall be submitted not later than 30 days after the date of completion of the Services or termination of the Order of Services the Appointing Authority shall not be obliged to pay the final invoice until the Consultant has achieved all the milestones specified in the Order for Services It shall be the responsibility of the Consultant to ensure that the final invoice covers all outstanding amounts for which reimbursement may be claimed. Provided that all previous invoices have been duly paid, on due payment of the final invoice by the Appointing Authority all amounts due to be reimbursed under the Order for Services shall be deemed to have been paid and the Appointing Authority shall have no further liability to make reimbursement of any kind. 6. PUBLICITY AND DISSEMINATION the Consultant shall give at least three weeks advance notification of any material relating to the Allocated Project which is to be published during the term of the Order for Services to the Appointing Authority and give the Appointing Authority the opportunity to comment. 7. CHANGES TO THE THE APPOINTING AUTHORITY S REQUIREMENTS 7.1 the Appointing Authority shall notify the Consultant of any material change to the Appointing Authority s requirement under the Order for Services. 7.2 the Consultant shall use its reasonable endeavours to accommodate any changes to the needs and requirements of the Appointing Authority including re-sequencing and reprogramming the Services at no cost to the Appointing Authority. If the Consultant has used reasonable endeavours to the satisfaction of the Appointing Authority but such re _1 8

9 8. INSURANCE sequencing and re-programming is not possible without the Consultant incurring additional material costs then the Consultant shall be entitled to payment for any such additional material costs incurred as a result of any such changes. The amount of such additional costs is to be agreed between the Appointing Authority and the Consultant in writing prior to the Consultant undertaking any changes. 8.1 the Consultant shall maintain professional indemnity insurance covering its liability for professional services under the Order for Services upon customary and usual terms and conditions prevailing for the time being in the insurance market, and with reputable insurers lawfully carrying on such insurance business in the United Kingdom unless otherwise stated in the Order for Services in an amount of not less than 5,000,000 (five million pounds) for any one occurrence or series of occurrences arising out of any one event (and in the aggregate annually for pollution and contamination related claims and two hundred and fifty thousand pounds in the aggregate annually for asbestos related claims) for a period beginning now and ending 6 (six) years after the date of completion of the latest Allocated Project, provided always that such insurance is available at commercially reasonable rates. The said terms and conditions shall not include any term or condition to the effect that the Consultant must discharge any liability before being entitled to recover from the insurers, or any other terms and conditions which might adversely affect the rights or any person to recover from the insurers pursuant to the Third Parties (Rights Against Insurers) Act As and when reasonably required so to do, the Consultant shall provide the Appointing Authority with documentary evidence that the insurance required under Clause 8.1 above is in force and is being properly maintained. 8.3 the Consultant shall immediately inform the Appointing Authority if the insurance required by Clause 8.1 ceases to be available at commercially reasonable rates in order that the Consultant and the Appointing Authority can discuss the means of best protecting the respective positions of the Appointing Authority and the Consultant in the absence of such insurance. Any increased or additional premium required by insurers by reason of the Consultant's own claims record or other acts, omissions, matters or things particular to the Consultant shall be deemed to be within commercially reasonable rates. 8.4 the above obligations in respect of professional indemnity insurance shall continue notwithstanding termination of this Order for Services by any reason whatsoever, including (without limitation) breach by the Appointing Authority. 9. INTELLECTUAL PROPERTY RIGHTS 9.1 All Intellectual Property Rights subsisting in the Consultant Data and Documents shall vest in and be the property of the Consultant. 9.2 the Consultant hereby grants to the Appointing Authority a non-exclusive, irrevocable, royalty free worldwide licence (including any and all Intellectual Property Rights therein) to use and reproduce any and all of the Consultant Data and Documents (including the Intellectual Property Rights therein) for any and all purposes whatsoever connected with the Services of any Allocated Project. Such licence shall entitle the Appointing Authority to grant sub-licences in the same terms as this licence. Provided always that the Consultant shall not be liable to the Appointing Authority or any sub-licensee or permitted assignee of the Appointing Authority for any use or reproduction of the Consultant Data and Documents for purposes other than those for which the same _1 9

10 10. INDEMNITY were originally prepared by or on behalf of the Consultant and/or the Consultant's Personnel Subject to Clause 2.4 the Consultant shall be liable for and shall indemnify and keep indemnified the Appointing Authority against any and all legally enforceable) expenses, liabilities, losses, claims or proceedings the Appointing Authority may incur in the event: that the rights granted by the Consultant pursuant to Clause 9.2 above are found to be invalid, ineffective or impaired in any way; and/or of any claim by any third party (whether upheld or not) that the exercise of the rights granted by the Consultant pursuant Clause 9.2 above infringe the rights of such third party. Save that such indemnities do not extend to third parties (who are not parties to this framework agreement), and that such indemnities require the claimant to first mitigate its loss and do not prevent the Consultant from running any defences that would otherwise be available under English common law and are subject to any limit of liability as set out in this agreement the Consultant hereby grants to the Appointing Authority an irrevocable, non-exclusive, royalty free, perpetual licence (with rights to grant sub-licences) of the Consultant s Background IPR to the extent necessary to exploit fully the Intellectual Property Rights assigned or licensed to the Department under Clause INFORMATION AND CONFIDENTIALITY 11.1 Except to the extent set out in this clause or where disclosure is expressly permitted elsewhere in the Appointment Terms, each Party shall: treat the other Party's confidential information as confidential and safeguard it accordingly; and not disclose the other Party's confidential information to any other person without such Party s prior written consent Clause 11 shall not apply to the extent that: such disclosure is a requirement of law placed upon the Party making the disclosure, including any requirements for disclosure under the FOIA, CPAGI or the EIR pursuant to Clause 12; such information was in the possession of the Party making the disclosure without obligation of confidentiality prior to its disclosure by the information owner; such information was obtained from a third party without obligation of confidentiality; such information was already in the public domain at the time of disclosure otherwise than by a breach of these Appointment Terms; or _1 10

11 such information is independently developed without access to the other Party's confidential information the Consultant may only disclose the Appointing Authority s confidential information to the Consultant s Persons who are directly involved in the provision of the Project and who need to know the confidential information, and shall ensure that such Consultant s Persons are aware of and shall comply with these obligations as to confidentiality the Consultant shall not, and shall procure that the Consultant s Persons do not, use any of the Appointing Authority s confidential information received otherwise than for the purposes of these Appointment Terms the Consultant shall ensure that the Consultant s Persons are aware of the Consultant s obligations under these Appointment Terms Nothing in these Appointment Terms shall prevent the Appointing Authority from disclosing the Consultant s confidential information: to any crown body or any other contracting authorities. All crown bodies or contracting authorities receiving such confidential information shall be entitled to further disclose the confidential information to other crown bodies or other contracting authorities on the basis that the information is confidential and is not to be disclosed to a third party which is not part of any crown body or any contracting authority; to any consultant, contractor or other person engaged by the Appointing Authority or any person conducting an Office of Government Commerce gateway review; for the purpose of the examination and certification of the Appointing Authority s accounts; or for any examination pursuant to Section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which the Appointing Authority has used its resources the Appointing Authority shall use all reasonable endeavours to ensure that any government department, contracting authority, employee, third party or sub-contractor to whom the Consultant s confidential information is disclosed pursuant to clause 12 is made aware of the Appointing Authority s obligations of confidentiality Nothing in this clause 11 shall prevent either party from using any techniques, ideas or know-how gained during the performance of these Appointment Terms in the course of its normal business to the extent that this use does not result in a disclosure of the other Party's confidential information or an infringement of Intellectual Property Rights the Consultant shall not, without the prior written consent of the Appointing Authority, publish alone or in conjunction with any other person any articles, research, papers, drawings, illustrations, photographs or videos relating to the Projects Save: as may be strictly necessary for the proper carrying out of any of its obligations under the Order for Services; or as the Appointing Authority is entitled pursuant to Clause 11.11; or _1 11

12 as required by law, including, for the avoidance of doubt, the FOIA and similar legislation or equivalent codes with which the Appointing Authority is bound to comply; the Appointing Authority shall not disclose to any person any confidential or proprietary information provided to it by the Consultant the Consultant undertakes to make no reference in any advertising or other promotional material to the Order for Services without the prior written consent of the Appointing Authority the Consultant shall take all reasonable steps to ensure that all people employed by the Consultant in connection with this contract are aware of the Official Secrets Acts 1911 to 1989 and that these Acts apply to them during the execution of this Contract. 12. FREEDOM OF INFORMATION ACT 2000 ( FOIA ) 12.1 the Consultant recognises that the Appointing Authority is subject to legal duties which may require the release of information under FIOA, EIR or similar legislation or equivalent codes and that the Appointing Authority will be/is under an obligation to provide information on request. Such information may include matters relating to, arising under or out of the Framework Agreement or any Allocated Project in any way the Consultant recognises that each request for information must be considered individually and that any decision to disclose information will be the decision of the Appointing Authority In any event, the Appointing Authority shall not be responsible to the Consultant for any loss, damage, harm or other detriment, however caused, arising from the disclosure of any information under FIOA or other similar legislation or code the Consultant will provide such assistance to the Appointing Authority as the Appointing Authority requires to enable it to comply with its obligations under the Act. In particular the Consultant acknowledges that the Appointing Authority is entitled to access any and all information relating to the performance of the Services on an Allocated Project and the Consultant shall grant such access the Consultant shall and shall procure that the Consultant s Persons shall: transfer to the Appointing Authority all requests for information that it receives as soon as practicable and in any event within two Working Days of receiving a request for information; provide the Appointing Authority with a copy of all information in its possession or power in the form that the Appointing Authority requires within five Working Days (or such other period as the Appointing Authority may specify) of the Appointing Authority s request; and provide all necessary assistance as reasonably requested by the Appointing Authority to enable the Appointing Authority to respond to the request for information within the time for compliance set out in section 10 of FOIA or regulation 5 of EIR the Appointing Authority shall be responsible for determining in its absolute discretion and notwithstanding any other provision in these Appointment Terms or any other _1 12

13 agreement whether any information is exempt from disclosure in accordance with the provisions of FOIA or EIR In no event shall the Consultant respond directly to a request for information unless expressly authorised to do so by the Appointing Authority the Consultant acknowledges that (notwithstanding the provisions of Clause 13) the Appointing Authority may, acting in accordance with the Ministry of Justice s Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of FOIA ( the Code ), be obliged under FOIA, or EIR, to disclose information concerning the Consultant or the Project: in certain circumstances without consulting the Consultant; or following consultation with the Consultant and having taken its views into account; provided always that where applies the Appointing Authority shall, in accordance with any recommendations of the Code, take reasonable steps, where appropriate, to give the Consultant advanced notice, or failing that, to draw the disclosure to the Consultant s attention after any such disclosure the Consultant shall ensure that all information is retained for disclosure and shall permit the Appointing Authority to inspect such records as requested from time to time. 13. DATA 13.1 With respect to the Parties rights and obligations under these Appointment Terms the Parties agree that the Appointing Authority is a Data Controller and the Consultant is the Data Processor. For the purposes of this clause 13 the terms Data, Data Controller, Data Processor, Data Subject, Data Subject Request, Personal Data, Process and Processing shall have the meaning prescribed under the DPA the Consultant shall not acquire any right in, or title to, any part of the Department Data or Academy Trust Data whether existing prior to the date of the Order for Services, or created after such date the Consultant shall not: disclose, use, modify or adapt the Appointing Authority Data; merge or combine the Appointing Authority Data with any other data; store, copy, disclose or use the Appointing Authority Data; or reproduce the Appointing Authority Data in whole or in part in any form except as may be expressly required by, or necessary for, performance by the Consultant of its obligations under these Appointment Terms the Consultant shall: process the Personal Data only in accordance with instructions from the Appointing Authority (which may be specific instructions or instructions of a general nature as set out in these Appointment Terms or as otherwise _1 13

14 notified by the Appointing Authority to the Consultant during the period of these Appointment Terms); process the Personal Data to the extent, and in such manner, as is necessary for the provision of the Services or as is required by law or any Regulatory Body; Implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful Processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected; Take reasonable steps to ensure the reliability of any Consultant Persons who have access to the Personal Data; Obtain prior written consent from the Appointing Authority in order to transfer the Personal Data to any Consultant Persons for the provision of the Services; Ensure that all Consultant Persons required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations set out in this clause 13; Ensure that none of Consultant Persons publish, disclose or divulge any of the Personal Data to any third party unless directed in writing to do so by the Appointing Authority; Notify the Appointing Authority within five Working Days if it receives: (i) (ii) a request from a Data Subject to have access to that person's Personal Data; or a complaint or request relating to the Appointing Authority s obligations under the Data Protection Act; Provide the Appointing Authority with full cooperation and assistance in relation to any complaint or request made, including by: (i) (ii) (iii) (iv) providing the Appointing Authority with full details of the complaint or request; complying with a Data Subject Request within the relevant timescales set out in the DPA and in accordance with the Appointing Authority s instructions; providing the Appointing Authority with any Personal Data it holds in relation to a Data Subject (within the timescales required by the Appointing Authority); and providing the Appointing Authority with any information requested by the Appointing Authority _1 14

15 Permit the Appointing Authority or the Appointing Authority s representative (subject to reasonable and appropriate confidentiality undertakings) to inspect and audit the Consultant s Data Processing activities (and/or those of the Consultant s Persons) and comply with all reasonable requests or directions by the Department to enable the Department to verify and/or procure that the Consultant is in full compliance with its obligations under these Appointment Terms; Provide a written description of the technical and organisational methods employed by the Consultant for processing Personal Data (within the timescales required by the Appointing Authority); and Not process Personal Data outside the European Economic Area without the prior written consent of the Appointing Authority and, where the Appointing Authority consents to a transfer, to comply with: (i) the obligations of a Data Controller under the Eighth Data Protection Principle set out in Schedule 1 of the DPA by providing an adequate level of protection to any Personal Data that is transferred; and (ii) any reasonable instructions notified to it by the Appointing Authority on request by the Appointing Authority, promptly provide information which the Appointing Authority requires in order to comply with: (i) (ii) Data Subject Requests; and requests from the Information Commissioner the Consultant warrants that it has appropriate operational and technological processes and procedures in place to safeguard against any unauthorised or unlawful access, loss, destruction, theft, use or disclosure of Personal Data the Consultant shall indemnify and shall keep indemnified the Appointing Authority against all liabilities, losses, demands, damages, costs, claims, expenses and interest suffered by the Appointing Authority, including payment of compensation to a third party and the Appointing Authority's expenses in settling such third party claim, as a result of any failure by the Consultant to comply with its obligations in accordance with any part of this Clause 13. Save that such indemnities do not extend to third parties (who are not parties to this framework agreement), and that such indemnities require the claimant to first mitigate its loss and do not prevent the Consultant from running any defences that would otherwise be available under English common law and are subject to any limit of liability as set out in this agreement the Contractor shall comply at all times with the DPA and shall not perform its obligations under these Appointment Terms in such a way as to cause the Appointing Authority to breach any of its applicable obligations under the DPA the Consultant shall employ appropriate organisational, operational and technological processes and procedures to keep the Appointing Authority s Data safe from unauthorised use or access or disclosure, loss, destruction, theft, misuse interception or corruption. The organisational, operational and technological processes and procedures adopted are required to comply with the requirements of ISO/IEC as appropriate to the services being provided to the Appointing Authority _1 15

16 13.9 the Consultant shall not delete or remove any proprietary or copyright notices contained within or relating to the Appointing Authority s Data the Consultant shall not store, copy, disclose, or use the Appointing Authority s Data except as necessary for the performance by the Consultant of its obligations under these Appointment Terms or as otherwise expressly authorised in writing by the Appointing Authority To the extent that the Appointing Authority s Data is held and/or processed by the Consultant, the Consultant shall supply that the Appointing Authority s Data to the Appointing Authority as requested by the Appointing Authority in the format specified by the Appointing Authority the Consultant shall take responsibility for preserving the integrity of the Appointing Authority s Data and preventing the corruption or loss of the Appointing Authority s Data the Consultant shall ensure that any files containing the Appointing Authority s Data are stored on the Consultant s secure servers and/or secured IT equipment. The Consultant shall ensure that the Appointing Authority s Data relating to the project is segregated from other data on their IT systems the Consultant shall not keep the Appointing Authority s Data on any laptop or other removable drive or device unless that laptop, other removable drive or device is protected by being fully encrypted and password protected, and the use of the device or laptop is necessary for the provision of the services set out in these Appointment Terms. Laptops should have full disk encryption using either a CESG (communications electronic security group) CAPS approved product or alternatively a product that complies with the FIPS Standard. USB devices used for transferring the Appointing Authority s Data should be encrypted to the FIPS Standard the Consultant shall keep an audit trail of where the Appointing Authority s Data is held, including hardware, laptops, drives and devices the Consultant shall ensure that the Appointing Authority s Data is stored in locked cabinets the Consultant shall ensure that the Appointing Authority s Data is securely removed from its systems and any printed copies securely destroyed at the end of this work, or on termination of these Appointment Terms. In complying with this clause, electronic copies of the Appointing Authority s Data shall be securely destroyed by either physical destruction of the storage media or secure deletion using appropriate electronic shredding software, using a minimum setting of US DOD overwriting standard (7 passes). Any hard copy shall be destroyed by cross-cut shredding and secure recycling of the resulting paper waste. However, the Consultant is permitted to retain such record and back-up copies of documents and data as are necessary to comply with the requirements of the Consultant s insurers and regulatory body the Consultant shall perform secure back-ups of all the Appointing Authority s Data and shall ensure that up-to-date back-ups are stored off-site. The Consultant shall ensure that such back-ups are available to the Appointing Authority at all times upon request the Consultant shall ensure that any of the Appointing Authority s Data to be sent between the Consultant s offices/staff, and/or the sub-contractors, and/or any other third party are sent by CD or DVD and are fully encrypted and password protected. The Consultant shall ensure that the password for files is sent separately from the data _1 16

17 to the named recipient of the data. The Appointing Authority s Data shall be transferred by a secure courier or registered postal service (special delivery) and not by or on USB pens If the Appointing Authority s Data is corrupted, lost or sufficiently degraded as a result of the Consultant s breach of these Appointment Terms so as to be unusable, the Appointing Authority may: require the Consultant at the Consultant s expense to restore or procure the restoration of the Appointing Authority s Data and the Consultant shall do so as soon as practicable and/or itself restore or procure the restoration of the Appointing Authority Data, and shall be repaid by the Consultant any reasonable expenses incurred in doing so If at any time the Consultant suspects or has reason to believe that the Appointing Authority s Data has or may become corrupted, lost or sufficiently degraded in any way for any reason, then the Consultant shall notify the Appointing Authority immediately and inform the Appointing Authority of the remedial action the Consultant proposes to take. 14. ACCESS AND INFORMATION the Consultant shall provide access at all reasonable times to the Appointing Authority s internal auditors or other duly authorised staff or agents to inspect such documents as the Appointing Authority considers necessary in connection with the Order for Services and where appropriate speak to the Consultant's employees. 15. MONITORING PERFORMANCE AND MANAGEMENT INFORMATION 15.1 the performance of the Consultant in relation to any Allocated Project shall be monitored by the Appointing Authority against the Key Performance Indicators and if in the opinion of the Appointing Authority s representative the Consultant has failed to achieve such Key Performance Indicators the Appointing Authority shall be entitled to withhold reasonable payment under Clause the Consultant shall meet and continue to meet the Management Information obligations set out in Schedule 7 of the Framework Agreement and any other such obligations set out in the Order for Services. 16. CONTINUOUS IMPROVEMENT, CO-OPERATION AND REPORTING 16.1 during the term of the Order for Services the Consultant shall look for and seek to achieve continuous improvement in the quality of the Services the Consultant shall (at the request of the Appointing Authority) participate in meetings with the Appointing Authority and/or with Other Consultants in relation to any Projects in which the Consultant is engaged by the Appointing Authority Monthly or at Project end, whichever is the earlier, the Consultant shall provide to the Appointing Authority a written report in such form and details as the Appointing Authority shall prescribe, reporting as to all matters within the Consultant's responsibility under the Order for Services. On a three monthly basis the Consultant will rate its own performance against the relevant Key Performance Indicators in _1 17

18 relation to all Projects. The Appointing Authority s representative will also rate the performance of the Consultant against the Key Performance Indicators Notwithstanding the obligations in Clause 16.3 the Consultant shall send to the Appointing Authority as and when requested to do so by the Appointing Authority copies of all correspondence and documents sent or received by the Consultant, and of all minutes of meetings relating to the Order for Services and Allocated Projects the Consultant shall provide termly reviews and provide information detailing: the Services undertaken; emerging best practice; details of how the appointment and partnership methods are working; and any recommendations for continuous improvement in both service delivery and framework operations. 17. ASSIGNMENT AND SUBCONTRACTING BY THE CONSULTANT the Consultant shall not be entitled to assign an Order for Services either in whole or in part without the prior written consent of the Appointing Authority. Where such consent is given, this may be subject to conditions at the discretion of the Appointing Authority. 18. CORPORATE GOVERNANCE AND CORRUPTION the Consultant warrants that in entering into the Order for Services it has not and will not (and shall procure that anyone employed or acting on behalf of it or any of its agents will not) commit any Prohibited Act. 19. CONFLICT OF INTEREST 19.1 the Consultant shall take appropriate steps to ensure that neither the Consultant nor any employee, agent or supplier 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 Consultant or such persons and the duties owed to the Appointing Authority under the provisions of the Order for Services. The Consultant will disclose to the Appointing Authority full particulars of any such conflict of interest which may arise. The provisions of this condition shall apply during the continuance of this Order for Services and indefinitely after termination In the event that the Consultant procures goods and services including equipment from third parties on behalf of the Appointing Authority then it shall at all times do so in accordance with the provisions of the Public Contracts Regulations 2006 as though the Consultant were a contracting authority within the meaning of the Regulations. 20. INTERFACE 20.1 the Consultant undertakes to co-operate, liaise and assist with the Appointing Authority (not being the Department for Education) in relation to any obligations and services the Appointing Authority may have under a separate agreement with the Department for Education in relation to project management services for the Allocated Project, provided that the Consultant shall not be required to act in breach of its obligations under these Appointment Terms. For the avoidance of doubt the Consultant _1 18

19 shall not be responsible for carrying out the Appointing Authority's obligations under the Appointing Authority s agreement with the Department for Education the Consultant shall take all reasonable steps to ensure that, wherever necessary, it liaises and co-operates with any Other Consultant appointed to the Allocated Project under [Lot 1 / Lot 2 delete as appropriate] of the Framework Agreement. 21. SUSPENSION AND TERMINATION 21.1 the Appointing Authority may terminate these Appointment Terms at any time upon seven days notice in writing to the Consultant there is a change of Government policy which materially affects the Appointing Authority s ability to comply with these Appointment Terms; or the Consultant commits a Default, and (a) the Consultant has not remedied the Default to the satisfaction of the Appointing Authority within 25 working days, or such other period as may be specified by the Appointing Authority, after issue of a written notice specifying the Default and requesting it to be remedied; (b) the Default is not, in the opinion of the Appointing Authority, capable of remedy; or (c) the Default is a material breach of contract In the event that either Party becomes aware that it was induced to enter into this Order for Services as a result of a material misrepresentation of fact by the other, the innocent Party may terminate this Order for Services with immediate effect by notice in writing (without prejudice to any other remedy that Party may have against the other) these Appointment Terms may be terminated by the Appointing Authority with immediate effect by notice in writing if at any time: the Consultant passes a resolution that it be wound-up or that an application be made for an administration order or the Consultant applies to enter into a voluntary arrangement with its creditors; a receiver, liquidator, administrator, supervisor or administrative receiver be appointed in respect of the Consultant or any member of the Consultant s property, assets or any part thereof; the court orders that the Consultant be wound-up or a receiver of all or any part of the Consultant s assets be appointed; the Consultant is unable to pay its debts in accordance with section 123 of the Insolvency Act 1986; the Consultant fails to meet the Key Performance Indicators for a three month period or the Appointing Authority s representative has serious concerns about the Consultant s performance [Applicable to Lot 2 services only] in the event that, as a result of the appointment of a Principal designate to the proposed Academy which is the _1 19

20 subject matter of this Order for Services in advance of the Academy s opening, the Services are no longer required the Consultant may terminate these Appointment Terms if the Appointing Authority shall be in material and persistent breach of its obligations (including without limitation the non payment of fees) and shall fail to remedy the same after receiving a 21 day written notice from the Consultant specifying the breach and requiring its remedy in accordance with this Clause the termination of these Appointment Terms, howsoever arising, shall be without prejudice to the rights and remedies of either party in relation to any omission or default of the other prior to such termination. 22. TRANSFER OF RESPONSIBILITY ON TERMINATION OR EXPIRY OF THE ORDER FOR SERVICES 22.1 the Consultant shall, at no cost to the Appointing Authority, promptly provide such assistance and comply with such timetable as the Appointing Authority may reasonably require for the purpose of ensuring an orderly transfer of responsibility upon the expiry or other termination of the Order for Services. The Appointing Authority shall be entitled to require the provision of such assistance both prior to and for a reasonable period of time after the expiry or other termination of the Order for Services Such assistance may include (without limitation) the delivery of documents and data including working information in relation to deliverables in the possession or control of the Consultant which relate to the Order for Services the Consultant undertakes that it shall not knowingly do or omit to do anything which may adversely affect the ability of the Appointing Authority to ensure an orderly transfer of responsibility. 23. WAIVER Failure by either party at any time to enforce any provision of the Order for Services against the other shall not be construed as a waiver of such entitlement and shall not affect the validity of these Appointment Terms or any part or parts hereof or the right of the relevant Party to enforce any provision in accordance with its terms. The rights and/or remedies of either Party may only be waived by formal written waiver which is signed by a duly authorised representative of the Party waiving its rights and which makes express and unequivocal reference to the waiver being made pursuant to this Clause Error! Reference source not found AMENDMENTS No variation to this Agreement shall be effective unless in writing and signed by both Parties. The Consultant shall comply with any formal procedures for amending or varying contracts which the Appointing Authority may have in place from time to time. 25. DISPUTE RESOLUTION 25.1 If any dispute arises under or in connection with the Order for Services (a "Dispute") the Parties may agree that the Dispute shall be referred by the Parties, at the request of either Party, to the Consultant's Representative and the Appointing Authority s representative for resolution _1 20