SECTION C

POTENTIAL ADDITIONAL CLAUSES FOR LOCAL DETERMINATION 

C1.	EXTENDING THE DURATION OF CONTRACT

C1.1.	The Authority may extend the term of this Contract by a further period of up to [NUMBER] years (the Extension Period). If the Authority wishes to extend this Contract, it shall give the Provider at least [NUMBER] months' written notice of such intention before the Expiry Date set out in clause A3.3 (Commencement and Duration).

C1.2.	If the Authority gives such notice, the Expiry Date will be extended by the period set out in the notice. 

C2.	LIMITATION OF LIABILITY

C2.1.	Subject to clauses B25.1 and B26.3, the Provider’s total liability to the Authority, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited to [£INSERT].

C3.	INSURANCE

C3.1.	The Provider shall at its own cost effect and maintain with a reputable insurance company a policy or policies of insurance providing the following levels of cover:

(a)	public liability insurance with a limit of indemnity of not less than [£INSERT] in relation to any one claim or series of claims;

(b)	employer's liability insurance with a limit of indemnity of not less than [£INSERT];

(c)	professional indemnity insurance with a limit of indemnity of not less than [£INSERT] in relation to any one claim or series of claims and shall ensure that all professional consultants and sub-contractors involved in the provision of the Services hold and maintain appropriate cover;

(d)	product liability insurance with a limit of indemnity of not less than [£INSERT] in relation to any one claim or series of claims,

(together the Required Insurances).

C3.2.	If, for whatever reason, the Provider fails to give effect to and maintain the Required Insurances, the Authority may make alternative arrangements to protect its interests and may recover the costs of such arrangements from the Provider.

C3.3.	Clause B27.1 (Insurance) will not apply to this Contract.

C4.	CONTRACT BINDING ON SUCCESSORS

C4.1.	This Contract will be binding on and will be to the benefit of the Authority and Provider and their respective successors and permitted transferees and assigns.

C5.	DATA PROTECTION

C5.1.	If Authority data is corrupted, lost or sufficiently degraded as a result of the Provider’s omission or negligence so as to be unusable, the Authority may:

(a)	require the Provider (at the Provider’s expense) to restore or procure the restoration of such data and the Provider must do so as soon as practicable but not later than [insert long stop date – the latest date by which it must be done] and/or

(b)	Itself restore or procure the restoration of such data. The Provider must reimburse the Authority for any reasonable expenses incurred in doing so.

C5.2.	If at any time the Provider suspects or has reason to believe that Authority data has or may become corrupted, lost or degraded in any way for any reason, the Provider must notify the Authority immediately and inform the Authority of the remedial action the Provider proposes to take.

C6.	AGENCY

C6.1.	The Provider must not in any circumstances hold itself out as being the servant or agent of the Authority. The Provider must not hold itself out as being authorised to enter into any agreement on behalf of the Authority or in any way bind the Authority to the performance, variation, release or discharge of any obligation to a third party. The Provider’s staff shall not hold themselves out to be and shall not be held out by the Provider as being servants or agents of the Authority.

C7.	HUMAN RIGHTS

C7.1.	The Provider must not do or permit to allow anything to be done which is incompatible with the rights contained in the European Convention on Human rights and the Human Rights Act 1998. Without prejudice to the rights of the Authority under clause B25 (Indemnities), the Provider must indemnify the Authority against any loss, claims and expenditure resulting from the Provider’s breach of this clause.

C8.	SCRUTINY BOARD/EXECUTIVE BOARD ASSISTANCE

C8.1.	If required or reasonably requested by the Authority to do so, the Provider must throughout the period of this Contract and for a period of six (6) years after the expiry of this Contract give all reasonable assistance to the Authority’s Security Board and/or Executive Board and to any other board with a similar status, including attending the Authority’s Scrutiny and/or Executive Board in order to answer questions pertaining to this Contract.

C9.	HEALTH AND SAFETY

C9.1.	The Provider must promptly notify the Authority of any health and safety hazards which may arise in connection with the performance of this Contract.

C9.2.	The Provider must comply with the requirements of the Health and Safety at Work Act 1974 and any other Acts, orders regulations and codes of practice relating to health and safety which may apply to the Provider’s staff and other persons working on the Provider’s Premises in the performance of this Contract.

C9.3.	The Provider must on written request of the Authority and in any event within 5 Business Days of that request, provide the Authority with a copy of its health and safety policy statement (as required by the Health and Safety at Work Act 1974).

C10.	DISCLOSURE AND BARRING SERVICE

C10.1.	The Provider must have policies and procedures which acknowledge and provide for ongoing monitoring of the Staff, including undertaking further DBS disclosures every three years.

C10.2.	The  Provider must keep and must procure that the Authority is kept advised at all times of any Staff who, subsequent to their commencement of employment, receives a relevant conviction, caution, reprimand or warning or whose previous relevant convictions, cautions, reprimands or warnings become known to the Provider  (or any employee of a Sub-Contractor involved in the provision of the Services). 

C11.	BRANDING POLICY

C11.1.	The Provider must comply with the Authority’s local brand policy and guidelines, as revised, updated or re-issued from time to time.  

C12.	CONFLICTS OF INTEREST

C12.1.	If a Party becomes aware of any conflict of interest which is likely to have an adverse effect on the other Party’s decision whether or not to contract or continue to contract substantially on the terms of this Contract, the Party aware of the conflict must immediately declare it to the other. The other Party may then take whatever action under this Contract as it deems necessary.

C13.	INTELLECTUAL PROPERTY

C13.1.	Except as set out expressly in this Contract, no Party will acquire the IPR of the other Party.

C13.2.	The Provider now grants the Authority a fully paid-up non-exclusive licence to use Provider IPR for the duration of this Contract for the purposes of the exercise of its functions and obtaining the full benefit of the Services, which will include the dissemination of best practice to other providers who have a contract with the Authority.

C13.3.	The Authority now grants the Provider a fully paid up non-exclusive licence to use Authority IPR for the duration of this Contract for the sole purpose of providing the Services.

C13.4.	In the event that the Provider or the Authority at any time devise, discover or acquire rights in any Improvement, they must promptly notify the other Party of the IPR to which that Improvement relates giving full details of the Improvement and whatever information and explanations as that Party may reasonably require to be able to use the Improvement effectively and must assign to that Party all rights and title in any such Improvement without charge.

C13.5.	For the purposes of this clause:

Authority IPR means any IPR owned by or licensed to the Authority which is relevant and necessary to the performance of the Services by the Provider, including without limitation the IPR set out herein [insert details of any Authority IPR which the Provider will have a right to use], including Improvements

Improvements means any improvement, enhancement or modification to the Provider IPR which cannot be used independently of the Provider IPR or any improvement, enhancement or modification to the Authority IPR which cannot be used independently of the Authority IPR

IPR means inventions, copyright, patents, database right, trademarks, designs and confidential know-how and any similar rights anywhere in the world whether registered or not, including applications and the right to apply for any such rights

Provider IPR means any IPR owned by or licensed to the Provider (other than by the Authority) that will be used by the Provider in the delivery of the Services, as set out herein [insert details of any Provider IPR which the Authority will have a right to use], including Improvements.

C14.	CHANGE IN CONTROL

C14.1.	This clause applies to any Provider Change in Control and/or any Material Sub-Contractor Change in Control, but not to a Change in Control of a company which is a Public Company.

C14.2.	The Provider must:

(a)	as soon as possible on, and in any event within 5 Business Days following, a Provider Change in Control; and/or

(b)	immediately on becoming aware of a Sub-contractor Change in Control,

notify the Authority of that Change in Control and submit to the Authority a completed Change in Control Notification.

C14.3.	If the Provider indicates in the Change in Control Notification an intention or proposal to make any consequential changes to its operations then, to the extent that those changes require a change to the terms of this Contract in order to be effective, they will only be effective when a Variation is made in accordance with clause B22 (Variations). The Authority will not and will not be deemed by a failure to respond or comment on the Change in Control Notification to have agreed to or otherwise to have waived its rights under clause B22 (Variations) in respect of that intended or proposed change. 

C14.4.	The Provider must specify in the Change in Control Notification any intention or proposal to make a consequential change to its operations which would or would be likely to have an adverse effect on the Provider’s ability to provide the Services in accordance with this Contract. If the Provider does not do so it will not be entitled to propose a Variation in respect of that for a period of 6 months following the date of that Change in Control Notification, unless the Authority agrees otherwise.

C14.5.	If the Provider does not specify in the Change in Control Notification an intention or proposal to sell or otherwise dispose of any legal or beneficial interest in the Provider’s Premises as a result of or in connection with the Change in Control then, unless the Authority provides its written consent to the relevant action, the Provider must:

(a)	ensure that there is no such sale or other disposal which would or would be likely to have an adverse effect on the Provider’s ability to provide the Services in accordance with this Contract; and

(b)	continue providing the Services from the Provider’s Premises,

in each case for at least 12 months following the date of that Change in Control Notification. The provisions of this clause will not apply to an assignment by way of security or the grant of any other similar rights by the Provider consequent upon a financing or re-financing of the transaction resulting in Change of Control.

C14.6.	The Provider must supply (and must use its reasonable endeavours to procure that the relevant Sub-contractor supplies) to the Authority, whatever further information relating to the Change in Control the Authority may, within 20 Business Days after receiving the Change in Control Notification, reasonably request.

C14.7.	The Provider must use its reasonable endeavours to ensure that the terms of its contract with any Sub-contractor include a provision obliging the Sub-contractor to inform the Provider in writing on, and in any event within 5 Business Days following, a Sub-contractor Change in Control in respect of that Sub-contractor.

C14.8.	If:

(a)	there is a Sub-contractor Change in Control; and

(b)	following consideration of the information provided to the Authority in the Change in Control Notification or under clause C14.6, the Authority reasonably concludes that, as a result of that Sub-contractor Change in Control, there is (or is likely to be) an adverse effect on the ability of the Provider and/or the Sub-contractor to provide Services in accordance with this Contract (and, in reaching that conclusion, the Authority may consider any factor, in its absolute discretion, that it considers relevant to the provision of Services),

then:

(c)	the Authority may, by serving a written notice upon the Provider, require the Provider to replace the relevant Sub-contractor within 10 Business Days (or other period reasonably specified by the Authority  taking into account the interests of Service Users and the need for the continuity of Services); and

(d)	the Provider must duly replace the relevant Sub-contractor within the period specified under clause C14.8.(c).

C14.9.	Notwithstanding any other provision of this Contract:  

(a)	a Restricted Person must not hold, and the Provider must not permit a Restricted Person to hold, at any time 5% or more of the total value of any Security in the Provider or in the Provider’s Holding Company or any of the Provider’s subsidiaries (as defined in the Companies Act 2006); and

(b)	a Restricted Person must not hold, and the Provider must not permit (and must procure that a Sub-contractor must not at any time permit) a Restricted Person to hold, at any time 5% or more of the total value of any Security in a Sub-contractor or in any Holding Company or any of the subsidiaries (as defined in the Companies Act 2006) of a Sub-contractor.

C14.10.	If the Provider breaches clause C14.9.(b), the Authority may by serving written notice upon the Provider, require the Provider to replace the relevant Sub-contractor within:

(a)	5 Business Days; or

(b)	whatever period may be reasonably specified by the Authority (taking into account any factors which the Authority  considers relevant in its absolute discretion, including the interests of Service Users and the need for the continuity of Services), 

and the Provider must replace the relevant Sub-contractor within the period specified in that notice.

C14.11.	Nothing in this clause will prevent or restrict the Provider from discussing with the Co-ordinating Commissioner a proposed Change in Control before it occurs. In those circumstances, all and any information provided to or received by the Authority in relation to that proposed Change in Control will be Confidential Information.

C14.12.	Subject to the Law and to the extent reasonable the Parties must co-operate in any public announcements arising out of a Change in Control.

C14.13.	For the purposes of this clause:

Change in Control means any sale or other disposal of any legal, beneficial or equitable interest in any or all of the equity share capital of a corporation (the effect of which is to confer on any person (when aggregated with any interest(s) already held or controlled) the ability to control the exercise of 50% or more of the total voting rights exercisable at general meetings of that corporation on all, or substantially all, matters), provided that a Change in Control will be deemed not to have occurred if after any such sale or disposal the same entities directly or indirectly exercise the same degree of control over the relevant corporation

Change in Control Notification means a notification in the form to be provided to the Provider by the Authority and to be completed as appropriate by the Provider

Holding Companies means has the definition given to it in section 1159 of the Companies Act 2006

Institutional Investor means an organisation whose primary purpose is to invest its own assets or those held in trust by it for others, including a bank, mutual fund, pension fund, private equity firm, venture capitalist, insurance company or investment trust

Provider Change in Control means any Change in Control of the Provider or any of its Holding Companies

Public Company means:

a company which:

(i)	has shares that can be purchased by the public; and

(ii)	has an authorised share capital of at least £50,000 with each of the company’s shares being paid up at least as to one quarter of the nominal value of the share and the whole of any premium on it; and

(iii)	has securities listed on a stock exchange in any jurisdiction

Restricted Person means:

(i)	any person, other than an Institutional Investor, who has a 	material interest in the production of tobacco products or alcoholic beverages; or

(ii)	any person who the Authority  otherwise reasonably believes is inappropriate for public   policy reasons to 	have a controlling interest in the Provider or in a Sub-contractor

Security means shares, debt securities, unit trust schemes (as defined in the Financial Services and Markets Act 2000), miscellaneous warrants, certificates representing debt securities, warrants or options to subscribe or purchase securities, other securities of any description and any other type of proprietary or beneficial interest in a limited company
 
Sub-contractor Change in Control means any Change in Control of  a Sub-contractor or any of its Holding Companies.

C15.	TUPE 

C15.1.	If the Authority has notified the Provider that it intends to tender or retender any Services, the Provider must within 20 Business Days following written request (unless otherwise agreed in writing) provide the Authority with anonymised details of Staff engaged in the provision of the relevant Services who may be subject to TUPE. The Provider must indemnify and keep indemnified the relevant Commissioner and at the Co-ordinating Commissioner’s request, any new provider who provides any services equivalent to the Services or any of them after expiry or termination of this Contract or termination of a Service, against any Losses in respect any inaccuracy in or omission from the information provided under this clause.

C15.2.	During the 3 months immediately preceding the expiry of this Contract or at any time following a notice of termination of this Contract or of any Service being given, the Provider must not and must procure that its sub-contractors do not, without the prior written consent of the Authority, in relation to any persons engaged in the provision of the Services or the relevant Service:

(a)	terminate or give notice to terminate the employment of any person engaged in the provision of the Services or the relevant Service (other than for gross misconduct); 

(b)	increase or reduce the total number of people employed or engaged in the provision of the Services or the relevant Service by the Provider and any sub-contractor by more than 5% (except in the ordinary course of business); 

(c)	propose, make or promise to make any material change to the remuneration or other terms and conditions of employment of the individuals engaged in the provision of the Services or the relevant Service;

(d)	replace or relocate any persons engaged in the provision of the Services or the relevant Service or reassign any of them to duties unconnected with the Services or the relevant Service; and/or

(e)	assign or redeploy to the Services or the relevant Service any person who was not previously a member of Staff engaged in the provision of the Services or the relevant Service.  

C15.3.	The Provider must indemnify and keep indemnified the Authority and, at the Authority’s request, any new provider who provides any services equivalent to the Services or any of them after expiry or termination of this Contract or any Service, against any Losses in respect of:

(a)	the employment or termination of employment of any person employed or engaged in the delivery of the relevant Services by the Provider and/or any sub-contractor before the expiry or termination of this Contract or of any Service which arise from the acts or omissions of the Provider and/or any sub-contractor; 

(b)	claims brought by any other person employed or engaged by the Provider and/or any sub-contractor who is found to or is alleged to transfer to the Authority or new provider under TUPE; and/or

(c)	any failure by the Provider and/or any sub-contractor to comply with its obligations under TUPE in connection with any transfer to the Authority or new provider.   
	
C15.4.	The Authority must use all reasonable endeavours to procure that any new provider who provides any services equivalent to the Services or the relevant Service after expiry or termination of this Contract or of any Service will indemnify and keep indemnified the Provider and/or any sub-contractor against any Losses in respect of:

(a)	any failure by the new provider to comply with its obligations under TUPE in connection with any relevant transfer under TUPE to the new provider; 
  
(b)	any claim by any person that any proposed or actual substantial change by the new provider to the persons' working conditions or any proposed measures of the new provider are to that person's detriment, whether that claim arises before or after the date of any relevant transfer under TUPE to the new provider on expiry or termination of this Contract or of any Service; and/or

(c)	any claim by any person in relation to any breach of contract arising from any proposed measures of the new provider, whether that claim arises before or after the date of any relevant transfer under TUPE to the new provider on expiry or termination of this Contract or of any Service.