Terms and conditions for standard services

Terms and conditions of standard services

1. Status of the Contract

By entering into this Contract:

• the Contractor confirms that the Contractor’s Tender is accurate and includes everything necessary for the Contractor to meet its obligations under the Contract and;
• the Council accepts the Contractor’s Tender
• the Contract is the sole and entire agreement between the Parties for the provision of the Services and supersedes all negotiations, submissions, representations and/or undertakings in respect of the Services that took place before it was signed.
• these terms and conditions of Contract take precedence over the Specification and the Specification takes precedence over the Contractor’s Tender.

2. Definitions

In this Contract the following words and phrases have the meanings given in this clause:

• Council’s Manager: the Council Contract Manager authorised by the Council to manage the Contract on its behalf at a day-to-day operational level as shown in the Contract Information
• Confidential Information: any information which has been designated as confidential by either Party in writing or ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information the disclosure of which would, or would be likely to, prejudice the commercial interests of any person, trade secrets, intellectual property rights and know- how of either Party and all personal data and sensitive personal data within the meaning of the Data Protection Act (DPA) and Data Protection Law (DPL)
• Contract Information: the contract information sheet making up part of this Contract laying out certain information as amended from time to time
• Contractor’s Manager: the Contractor’s Contract Manager appointed by the Contractor to manage the Services on its behalf as shown in the Contract Information
• Disclosure and Barring Service: the body of that name or any organisation with the same function, whatever its name, by which it may be replaced
• DPA: Data Protection Act 2018
• DPL: the Data Protection Act 2018, the General Data Protection Regulation (EU 2016/679), the Law Enforcement Directive (EU 2016/680)
• EIR: the Environmental Information Regulations 2004
• End Date: the date on which the Contract will end as recorded in Contract Information
• Extended Contract Period: any period after the expiry of the Initial Contract Period for which the term of the Contract is extended
• FOIA: the Freedom of Information Act 2000
• Force Majeure Event: directly causes a Party to be unable to meet all or a material part of its obligations under this Contract: 
  • war, civil war, armed conflict or terrorism;
  • nuclear, radioactive, sonic damage, chemical or biological explosion or contamination unless this is the result of an action by the Contractor; or,

  • fire, explosion, storm, riot and civil commotion, tempest, flood, volcanic eruption or earthquake

• Initial Contract Period: the length (Term) of this Contract shown in Contract Information or as referred to in the Council’s Specification at the time the Contract was signed
• IPR: all patents, rights to inventions, utility models, copyright and related rights, trademarks, Services marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world
• Law: any law, sub-ordinate legislation within the meaning of Section 21(1) Interpretation Act 1978, bye-law, enforceable right within the meaning of Section 2 of the European Communities Act 1972, regulation, order, regulatory policy, mandatory guidance or code of practice, judgment of a relevant court of law or directives or requirements with which the Supplier is bound to comply
• Living Wage: the living wage defined by the Living Wage Foundation
• Month: a calendar month
• Normal Working Hours: between 9am to 5pm on all Working Days
• Parties: the Council and the Contractor
• Performance Indicator: any measure of the Contractor’s performance of the Services that may affect payment which are set out in the Specification or Contractor’s Tender 
• Personnel: the employees, agency personnel or sub-contractors of an organisation
• Prohibited Act: includes: 
  • defrauding, attempting to defraud or conspiring to defraud the Council;
  • directly or indirectly offering, promising or giving an advantage of any kind to an elected member of the Council or Council Personnel to induce that person to improperly perform a function or activity or rewarding that person for improper performance of a function or activity;
  • directly or indirectly requesting, agreeing to receive or accepting an advantage of any kind for improper performance of a function or activity in connection with the Contract;
  • committing an offence under the Bribery Act 2010;
  • committing any offence under section 117(2) of the Local Government Act 1972; or,

  • committing an offence of fraud

• Price: the sums payable by the Council to the Contractor for the Services as set out in the Contractor’s Tender or as otherwise varied in accordance with the Contract
• Purchase Order: any order for Services raised by the Council and placed with the Contractor pursuant to the Contract
• Regulatory Body: any of those government departments and regulatory, statutory and other entities, committees, ombudsmen and bodies which, are legally entitled to regulate the matters dealt with in the Contract or any other affairs of the Council
• Request for Information: a request or information made under the FOIA and/or the EIR
• Services: the Services set out in the Specification
• Start Date: the date on which the Contract will start as recorded in the Contract Information
• Working Day: a day (other than a Saturday or Sunday) on which banks are open for general business in England and Wales

The interpretation and construction of these terms and conditions will be subject to the following provisions:

• words meaning the singular include where the context allows the plural and vice versa and masculine words include the feminine and the neuter;
• reference to a clause is a reference to the whole of that clause unless stated otherwise;
• reference to any statute, enactment, order, regulation or other similar instrument will be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent enactment, modification, order, regulation or instrument as subsequently amended or re- enacted along with any subsidiary statutory provisions made from time to time together with any guidance or codes of practice issued by a regulatory body or relevant government department in relation to the regulations or legislation;
• reference to any person includes natural persons and partnerships, firms and other incorporated bodies and all other legal persons of whatever kind and however constituted and their successors and permitted assigns or transferees;
• the words “include”, “includes” and “including” are to be read as if they were immediately followed by the words “without limitation”; and
• headings are included for ease of reference only and will not affect the interpretation or construction of these terms and conditions of contract.

 

3. Term

• The Contract begins on the Start Date and ends on the End Date unless it is terminated as laid out elsewhere in this Contract or in another lawful way.
  
  
• The Council may extend the Contract for the further periods shown in Contract Information if it gives the Contractor at least one (1) month’s written notice prior to the End Date.
  
  
• The Parties may extend the Contract.

4. Provision of the Services

The Contractor will provide the Services:

• to the standards laid out in the Specification and any relevant Purchase Order and in accordance with the Contractor’s Tender;
• to all applicable standards and codes of practice or conduct of any appropriate professional bodies, trade associations or regulators; and,
• with all due skill, care and diligence to be expected of a competent contractor experienced in providing services of the type, size and scope of the
• The Contractor will comply with these terms and conditions of Contract and with all the requirements and provisions of the Specification when providing the Services.
• This is not an exclusive contract and the Council is entitled to enter into other contracts and arrangements with other providers for the provision of any or all services which are the same as or similar to the Services.
• The Council does not promise or guarantee the total quantity or value of the Services and the Contractor agrees that it has not entered into the Contract on the basis of any such promise or guarantee.
• The quantity or value of the Services or of the Contract in any year does not give any right to a particular quantity or value of the Services or of the Contract in any subsequent year.
• The Contractor will provide all premises, facilities, equipment, materials, personnel and anything else required for the proper performance of the Contract at its own cost.
• The Contractor will be responsible for the activities of its Personnel engaged in the provision of the Services.
• The Contractor will engage sufficient competent, qualified and experienced Personnel to ensure that the Services are provided at all times and in all respects in accordance with this Contract.
• Use its best endeavours to ensure that its Personnel engaged in the provision of the Services will comply with all applicable laws, statutes, regulations and codes from time to time in force whether or not they are detailed in this Contract.

5. Contract Management

• The Council will appoint a Council’s Manager and the Contractor will appoint a competent, qualified and experienced person to act as a Contractor’s Manager and the Parties will inform the other immediately of any change in appointment.
  
  
• The Contractor’s Manager will be authorised to act on behalf of the Contractor for all purposes connected with the Contract and any statement or direction given to the Contractor’s Manager will be deemed to have been given to the Contractor.
  
  
• If the Contractor requires an explanation or clarification of part of the Contract it will contact the Council’s Manager, and will accept and comply with the Council’s Manager’s explanation or direction which will be given or confirmed in writing.
  
  
• From time to time the Council’s Manager may appoint one or more other persons to act as their deputy and will notify the Contractor of any appointments.
  
  
• The Contractor’s Manager must be available during Normal Working Hours; if the Contractor’s Manager is unavailable because of holiday, sickness or statutory daily breaks, they must nominate a deputy to perform their duties.
  
  
• The Council’s Manager, acting reasonably, may because of the nature of the Services or the locations at which it is to be provided or by virtue of the behaviour of any of the Contractor’s Personnel, require the Contractor to remove certain Personnel from the provision of the Services by giving the Contractor’s Manager written notice to that effect, stating the reasons.
  
  
• The Contractor will remove the Personnel referred to above immediately and will, as soon as practicable, provide replacement Personnel of appropriate skills and experience.
  
  
• For the avoidance of doubt, removal of any Contractor’s Personnel from the provision of the Services does not mean dismissal from the employment or cessation of Services to the Contractor and the Council will not be liable either to the Contractor or to any of its Personnel in respect of any liability, loss or damage as a result of that removal.
  
  
• The Contractor’s Manager and Council’s Manager will meet, as laid out in the Specification, or as otherwise agreed from time to time by the Parties, in order to monitor the Contractor’s performance under the Contract.

6. Price

• The Price will be calculated as laid out in the Contractor’s Tender.
  
  
• The Price will remain unchanged during the Initial Contract Period unless it is varied under clause 24.
  
• If the Parties agree to alter the Services or Price as described in clause 24, the altered Services or Price will be subject to review.

7. Payment

• The Contractor will submit invoices to the Council using the process and timing laid out in the Specification and this clause.
  
  
• All invoices must contain:
  
  
• the correct Council Purchase Order number;
  
  
• all appropriate references;
  
  
• a detailed breakdown of the Services supplied;
  
  
• any other documentation stipulated in the Specification; and,
  
  
• any other documentation that is reasonably required by the Council to substantiate the invoice.
  
  
• The Contractor will add VAT to the Price at the prevailing rate as applicable.
  
  
• The Council will pay each agreed, correct and valid invoice within thirty (30) days of receipt together with a sum equal to the VAT chargeable on the amount payable.

• If the Council does not pay an undisputed amount by the due date then the Council will pay the Contractor interest at the Statutory Interest rate in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
• If the Parties have a dispute about an invoice:
  
  
• the Council will pay any undisputed part of the invoice;
  
  
• the Contractor will continue to supply the Services; a dispute about an invoice does not allow it to suspend or terminate the supply of the Services; and,
  
  
• the Parties will resolve the dispute using the dispute resolution procedure laid out in clause 22.
  
  
• The Contractor will indemnify the Council on a continuing basis against any liability, including any interest, penalties or costs, which the Council is required to pay at any time in respect of the Contractor’s failure to account for or to pay any VAT connected to payments made to the Contractor under the Contract; the Contractor will pay any amounts due under this clause to the Council not less than five (5) Working Days before the date upon which the tax or other liability is payable by the Council.
  
  
• If the Contractor owes money to the Council for any reason connected with this Contract then the Council may deduct (set-off) that money from any sum owed by the Council to the Contractor, whether owed for a reason connected with this Contract or not, without the Contractor needing to agree. The Contractor cannot make any claim against the Council in order to withhold payment and/or set-off of any such amount in whole or in part.

8. Intellectual Property

• The Contractor assigns to the Council all existing and future IPR in any products of the Services and all materials embodying these rights to the fullest extent permitted by law. If for any reason they do not transfer, the Contractor will hold legal title in these rights on trust for the Client and will transfer them to the Council promptly and at their own expense.
  
  
• The Contractor warrants that the IPR in the products of the Services does not infringe the rights of any third party.

9. Bribery and Corruption

The Contractor:

• will not ask for or accept any gratuity, tip or any other form of money-taking or reward in connection with the Contract other than the Price;
  
  
• will not commit a Prohibited Act; and
  
  
• warrants that it is not aware of any financial or other advantage being given or any agreement reached with any elected member of the Council or the Council’s Personnel in connection with the execution of the Contract.

The Contractor will:

• ensure that neither the Contractor nor its Personnel are placed in a position where, in the reasonable opinion of the Council, there is or may be an actual or potential conflict between the pecuniary or personal interests of the Contractor and the duties owed to the Council under the provisions of the Contract; and,
  
  
• disclose to the Council full particulars of any such conflict of interest which arises.
  
  
• If the Contractor breaches Clause 2 the Council may:
  
  
• take such steps it considers necessary to prevent, stop or remedy any breach; and,
  
  
• terminate the Contract immediately in accordance with clause 20.

The actions of the Council under this clause will not prejudice or affect any rights of action or remedy which the Council may have.

10.  Compliance with Laws and Policies

The Contractor will at all times comply:

• with all applicable laws, statutes, regulations and codes from time to time in force; and,
  
  
• the requirements of the Health and Safety at Work etc. Act 1974, the Management of Health and Safety at Work Regulations 1999 (as amended) and all other statutory provisions relating to health and safety.

• The Contractor will ensure it complies with the requirements of the Equality Act 2010 and in particular will:

• use its best endeavours to eliminate all conduct prohibited by the Act and will seek to promote equality among its Personnel and generally;

• set out its equal opportunities policy to those concerned with recruitment, training or promotion, in documents available to its Personnel and recognised trade unions or other representative groups of its Personnel and in its advertisements and literature.
  
  
• If this Contract is with Cambridge City Council the Contractor will:
  
  
• pay at least the Living Wage to all Personnel who work on Cambridge City Council premises , or land maintained by Cambridge City Council for two hours or more on any day of the week for eight or more consecutive weeks;
  
  
• ensure that its sub-contractors pay the Living Wage;
  
  
• promptly provide evidence of its compliance with this clause 3 on written request by the Council’s Manager.
• The Contractor will comply with all applicable anti-slavery and human trafficking laws, statutes and regulations including the Modern Slavery Act 2015.

11. Data Protection and Freedom of Information

• Both Parties will fulfil their obligations under the DPA and DPL connected with the Contract and will comply with the terms contained in Appendix I.
  
  
• The Contractor will assist and cooperate with the Council to enable the Council to comply with its information disclosure obligations under the FOIA and the EIR and in particular will comply with the terms contained in Appendix II.
  
  
• This clause 11 will continue to apply indefinitely after the Contract ends.

12. Safeguarding

• The Contractor will ensure that where its Personnel work directly with or have access to children or vulnerable adults that they will comply with the conditions laid out in Appendix III.
  
  

13. Access

• The Contractor will allow the Council and its auditors access at all reasonable times and on reasonable notice to all premises of the Contractor :
  
  
• to inspect work being done as part of the Contract;
  
  
• to all records and information relating to the Contract;
  
  
• to any of the Contractor’s personnel; and,
  
  
• to all resources and systems used by the Contractor in connection with the Contract.
• For a period of six (6) years, or such other period as the Parties may agree, following the expiry or termination of the Contract, the Contractor will allow the Council and its auditors reasonable access from time to time as may be reasonably required for the purposes of examining records and information relating to the Contract.
  
  
• The Council will allow the Contractor to have such access as is reasonable in the circumstances to the Council’s premises, officers, members or information for the purpose of providing the Services only to the extent it is necessary to deliver the Services.

14. Management Information and Audit

• The Contractor will provide the Council with:
  
  
• the reports and information as set out in the Specification; and,
  
  
• such other information as the Council may reasonably require from time to time or as a consequence of the Contract ending; and agrees that the costs of so doing are included in the Price.

• The Contractor will co-operate fully with any enquiry or investigation made by the Council’s internal or external auditors or any other quality or performance inspectors that in any way concerns the Contract or the Services.
  
  
• The Council may use information given by the Contractor under the Contract to prevent and detect fraud and money-laundering and may share such information with other organisations that handle public funds for the same purpose.

15. Insurance

• The Contractor shall maintain adequate insurance levels, as outlined in the Specification, throughout the term of the Contract.
  
  
• On each policy renewal date, the Contractor will provide the Council with written evidence that it has complied with this condition.

16. Confidentiality

• Except to the extent set out in this clause or where disclosure is expressly permitted elsewhere in the Contract, each Party will:
  
  
• 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 the owner's prior written consent.
• Clause 1 will 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 or the EIR;
  
  
• 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 the Contract; or
  
  
• it is independently developed without access to the other Party's Confidential Information.
  
  
• The Contractor may only disclose the Council's Confidential Information to the Personnel who are directly involved in the provision of the Services and who need to know the information, and will ensure that such Personnel are aware of and will comply with these obligations as to confidentiality.
  
  
• The Contractor will not, and will procure that the Personnel do not, use any of the Council's Confidential Information received otherwise than for the purposes of the Contract.
  
  
• In discharging its obligations under this clause 16, the Contractor will observe all further or particularised requirements in respect of confidentiality as may be set out in the Specification.

17. Liability

• The Contractor will be liable for and will indemnify and keep indemnified the Council against all liabilities, actions, damages, costs, losses, claims, expenses, demands and proceedings whatsoever either arising directly from the breach by the Contractor of any of its obligations under the Contract including in respect of any death or personal injury, loss of or damage to property, financial loss arising from any advice given or omitted to be given by the Contractor, or any other loss which is caused directly or indirectly by any act or omission of the Contractor.
  
  
• The Contractor will not be responsible for any injury, loss, damage, cost or expense if and to the extent that it is caused by the negligence or wilful misconduct of the Council or by breach by the Council of its obligations under the Contract.

18. Status and Publicity

• At all times during the term of the Contract, the Contractor will be an independent contractor and nothing in the Contract will create a contract of employment, a relationship of agency, a partnership or a joint venture between the Parties.
  
  
• A Party is not authorised to act in the name of, or on behalf of, or otherwise bind the other Party unless it is authorised to do so under the terms of the Contract.
  
  
• The Contractor will not communicate by any means with the press or broadcasting media about any matters connected with the Contract, except with the prior consent of the Council’s Manager.
  
  
• The Contractor will not advertise its provision of the Services to the Council or use the Council’s corporate logo, coat of arms or name without the prior consent of the Council’s Manager.

19. Business Continuity

• The Contractor will have business continuity arrangements in place so that in the event of a failure of or disruption of the Services they will:
  
  
• ensure that the Council can continue to provide its functions;
  
  
• prevent loss of data;
  
  
• prevent or as far as possible minimise any impact on any service levels set out in the Contract; and
  
  
• ensure that normal provision of the Services begins as soon as possible.
  
  
• The Contractor must continue to meet its obligations under the Contract and the Price will not be increased where any failure or disruption of the Services occur because of any breach of Contract by the Contractor.

20. Termination

• The Council may without liability terminate the Contract for any reason by giving the Contractor not less than one (1) Month’s notice in writing.
  
  
• If the Contractor materially breaches any of the terms of the Contract, the Council may give the Contractor ten (10) Working Days’ notice to remedy the breach. If the breach is not remedied within those 10 days or is not capable of remedy the Council may end the Contract by giving the Contractor ten (10) Working Days’ notice in writing.
  
  
• The Council may end this Contract immediately by giving the Contractor notice in writing if the Contractor:
  
  
• becomes bankrupt or insolvent, in circumstances which entitle the Court or a creditor to appoint or have appointed a receiver, manager or administrative receiver, has a provisional liquidator appointed or has a winding-up order made
  
  
• breaches Clause 10; or,
  
  
• repeatedly breaches the Contract which the Council, acting reasonably, considers sufficiently material to terminate the Contract including where breaches are of the same or different obligations, or if the breaches have been cured.

21. Force Majeure

• No Party will be considered in breach of its obligations under this Contract, or be responsible for any delay in their performance if this is prevented or delayed as a direct or indirect consequence of a Force Majeure Event.
  
  
• If a Party reasonably considers that its obligations are delayed or affected by a Force Majeure Event, then that Party will promptly notify the other Party in writing providing full details of the Force Majeure Event and how long they estimate the delay will be.

22. Dispute Resolution

• If there is a dispute connected with the Contract the Parties will attempt in good faith to negotiate a settlement to the dispute following the dispute resolution process laid out in this clause 22.
  
• Firstly, the Council’s Manager and the Contractor’s Manager will endeavour to resolve any dispute between them.
  
  
• If the Council’s Manager and the Contractor’s Manager are unable to reach agreement within five (5) Working Days, the dispute will be referred to a Director of the Council and a person of equivalent status with the Contractor.
  
  
• If the Council’s Manager and the Contractor’s Manager are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the Parties agree to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure.
  
  
• No Party may commence any court proceedings in relation to the whole or part of the Dispute until 30 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by such delay.
  
  
• If the Dispute is not resolved within 30 days after service of the ADR notice, or either Party fails to participate or ceases to participate in the mediation before the end of that 30 day period, or the mediation terminates before the end of that 30 day period, the Dispute shall be resolved by the courts of England and Wales in accordance with clause 25.5 of this Contract.
  
  
• Nothing in this dispute resolution procedure will prevent the Parties from seeking from any court of competent jurisdiction an interim order restraining the other Party from doing any act or compelling the other Party to do any act.

23. Assignment and Sub-contracting

• The Council can assign the Contract to another public body.
  
  
• The Contractor cannot transfer or assign the Contract, including to a purchaser of the Contractor’s business without the written consent of the Council before doing so.
  
  
• The Contractor cannot sub-contract any of its obligations under the Contract or use the Contract as security without obtaining the written consent of the Council before doing so.
  
  
• The Contractor will be liable for any failure of a sub-contractor to perform the Services, or for its failure to meet any of the Contractor’s obligations under the Contract.
  
  
• If a Contractor sub-contracts it obligations under the Contract, it will ensure that its contract with the contractor shall:
  
  
• require payment to be made of all sums due from the Contractor to the sub- contractor within 30 days from the receipt of a valid invoice; and,
  
  
• require that the sub-contractor will have insurance at the same levels as the Contractor’s insurance under this Contract.

24. Contract Changes

• Either Party may propose a change to the Specification or these terms and conditions of contract which may include a change to the Price.
  
  
• The Parties may need to negotiate the proposal and if they agree a change they will record the change in writing and this will be signed by an authorised representative of the Council and an authorised representative of the Contractor.
  
  
• A Contract change will not take effect if a proposal is not agreed by both Parties in writing.
  
  
• Any extension to the Term of the Contract or another change to the information contained in the Contract Information will be recorded by the Council issuing a revised version of the Contract Information

25. General

• No third party shall have the right to enforce any term of the Contract under the Contracts (Rights of Third Parties) Act 1999.
  
  
• If any provision of the Contract or if any Court of competent jurisdiction declares any provision of the Contract to be invalid or unenforceable in any way, this will not affect the other provisions of the Contract which will remain in full effect.
• Where any of the rights and obligations of the Parties in the Contract will or may be exercised after the end of the Contract, the Contract’s Clauses conferring these rights and powers will survive and remain in full force and effect despite the Contract ending.
  
  
• Any formal demand, notice or other communication required to be given under the Contract will be sufficiently served if sent by recorded delivery post (or equivalent), or electronic mail to the address of the Party to be served recorded in this contract and, if so sent, will (subject to proof to the contrary) be deemed to have been received by the addressee (in the case of transmission by post) on the second working day after the date of posting or (in the case of electronic mail) on the first working day after confirmed transmission, as the case may be.
  
  
• The Contract will be governed by the laws of England and Wales and subject to the exclusive jurisdiction of the Courts of England and Wales.

Schedule 1 Specification

Schedule 2 Contractor’s Tender

Appendix I – data protection

In this Appendix the following definitions shall apply:

Data Protection Legislation: means (i) the GDPR, the LED, the DPA and any applicable national implementing Laws as amended from time to time, to the extent that it relates to the processing of personal data and privacy;

Data Protection Impact Assessment: means an assessment by the Council of the impact of the envisaged processing on the protection of Personal Data;

Contractor Personnel: means all directors, officers, employees, agents, consultants and contractors of the Contractor and or any sub-contractor engaged in the performance of its obligations under this Contract;

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, Data Protection Officer: take the meaning given in the GDPR;

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

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: Data Protection Act 2018;

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

Law: means any law, sub-ordinate legislation within the meaning of Section 21(1) Interpretation Act 1978, bye-law, enforceable right within the meaning of Section 2 of the European Communities Act 1972, regulation, order, regulatory policy, mandatory guidance or code of practice, judgment of a relevant court of law or directives or requirements with which the Supplier is bound to comply;

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

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;

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

 

1. DATA PROTECTION

• 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 1A below by the Council and may not be determined by the Contractor.

• The Contractor shall notify the Council immediately if it considers that any of the Council’s instructions infringe the Data Protection Legislation.

• 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, at the discretion of the Council, include:
  
  
• systematic description of the envisage processing operations and the purpose of the processing;
  
  
• an assessment of the necessity and proportionality of the processing operations in relation to the Services;
  
  
• an assessment of the risks to the rights and freedoms of Data Subjects; and
  
  
• the measures envisaged to address the risks, including safeguards, security measures, and mechanisms to ensure the protection of Personal Data.
  
  
• The Contractor shall, in relation to Personal Data processed in connection with its obligations under this Agreement:
  
  
• process that Personal Data only in accordance with schedule 1A below unless the Contractor is to do otherwise by Law. If it is so required the Contractor shall promptly notify the Council before processing the Personal Data unless prohibited by Law;
  
  
• ensure that it has in place Protective Measures, which have been reviewed and approved by the Council as appropriate to protect against a Data Loss Event having taken account of the:
  
  
• nature of the data to be protected;
• harm that might result from a Data Loss Event;
• state of technological development; and
• cost of implementing any measures;
  
  
• ensure that:
  
  
• the Contractor Personnel do not process Personal Data accept in accordance with this Contract (and in particular schedule 1A);
• it takes all reasonable steps to ensure the reliability and integrity of any Contractor Personnel who have access to the Personal Data and ensure that they:
• are aware of and comply with the Contractor’s duties under this clause;
• are subject to appropriate confidentiality undertakings with the Contractor or any Sub-processor;
• 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 Contract; and
• have undergone adequate training in the use, care, protection and handling of Personal Data; and
• 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:
• the Council or the Contractor has provided appropriate safeguards in relation to the transfer (whether in accordance with GDPR Article 46 or LED Article 47) as determined by the Council;
• the Data Subject has enforceable rights and effective legal remedies;
• 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
• the Contractor complies with any reasonable instructions notified to it in advance by the Council with respect to the processing of the Personal Data;
  
  
• at the written direction of the Council, delete or return Personal Data and any copies of it to the Council on termination of the Contract unless the Contractor is required by Law to retain the Personal Data.

• Subject to clause 1.6, the Contractor shall notify the Council immediately if it:
• receives a Data Subject Access Request (or purported Data Subject Access Request);
• receives a request to rectify, block or erase any Personal Data;
• receives any other request, complaint or communication relating to either Party’s obligations under the Data Protection Legislation;
• receives any communication from the Information Commissioner or any other regulatory authority in connection with Personal Data processed under this Agreement;
• 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

• becomes aware of a Data Loss Event
• The Contractor’s obligation to notify under clause 1.5 shall include the provision of further information to the Council in phases as details become available.
• Taking into account the nature of the processing, the Contractor shall provide the Council with full assistance in relation to either Parties obligations under the 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:
• the Council with full details and copies of the complaint, communication or request;
• 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;
• the Council, at its request, with any Personal Data it holds in relation to a Data Subject;
• assistance as requested by the Council following any Data Loss Event;
• assistance as requested by the Council with respect to any request from the Information Commissioner’s Office, or any consultation by the Council with the information Commissioner’s Office.
  
  
• 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:
• the Council determines that the processing is not occasional;
• 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
• the Council determines that the processing is likely to result in a risk to the rights and freedoms of the Data Subjects.
• The Contractor shall allow for audits of its Data Processing activity by the Council or the Council’s designated
• The Contractor shall designate a data protection officer if required by Data Protection Legislation.
  
  
• Before allowing any Sub-processor to process any Personal Data related to this Contract, the Contractor must:
• notify the Council in writing of the intended Sub-processor and processing;
• obtain the written consent of the Council;
• enter into a written agreement with the Sub-processor which give effect to the terms set out in this clause such that they apply to the Sub-processor; and
• provide the Council with such information regarding the Sub-processor as the Council may reasonably require.
• The Contractor shall remain fully liable for all such acts or omissions of any Sub-processor.
  
  
• The Council may, at any time on not less than 30 Working Days’ notice, revise this clause by replacing it 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 Contract).
  
  
• 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 to the Contractor amend this Contract to ensure it complies with any guidance issued by the Information Commissioner’s Office.
  
  
• The provisions of this Appendix I shall apply during the term of the Contract and indefinitely after its expiry.

 

Schedule 1A 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 instructions shall be incorporated into this Schedule.