Part a General Terms

PART A – GENERAL TERMS

These Terms together with the provisions of the relevant Special Term and the Framework Agreement comprise the contractual provisions which form part of the Contract that is entered into between the CLIENT and the CONTRACTOR and which will govern the provision of Services by a CONTRACTOR to a CLIENT

A1.Interpretations

A1.1As used in these Terms, the following terms and expressions shall have the following meanings:

“CHARGES” means the rates and charges set out in the Services Order.

“CLIENT means London Borough of Merton

“COMMENCEMENT DATE” means the date for the commencement of the Services on 8th of December 2005

“CONFIDENTIAL INFORMATION” means all information designated as such by either party in writing together with all other information which relates to the business, affairs, developments, trade secrets, know-how, personnel, s customers and suppliers of either party or other information which may reasonably be regarded as the confidential information of the disclosing party.

“CONTRACTOR” means the contractor Hays Specialist Recruitment Limited.

“DEFAULT” means any breach of the obligations of either party (including but not limited to fundamental breach or breach of a fundamental term) or any default, act, omission, negligence or statement of either party, its employees, agents or sub-contractors in connection with or in relation to the subject matter of the Assignment Contract and in respect of which such party is liable to the other.

“KEY PERSONNEL” means those persons named on the Services Order as being key personnel.

“SERVICE OR SERVICES” means any of the services to be performed by the CONTRACTOR for the CLIENT to meet the requirements of the SLA.

“SERVICE LEVELS” means the service levels to be met by the Services as set out in the SLA.

“TERMS” means these Part A General Terms and Conditions, comprised of the Clauses and the Schedules hereto.

A1.2A reference to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment thereof.

A1.3Headings are included in these Terms for ease of reference only and shall not affect the interpretation or construction of the Assignment Contract.

A1.4References to “Clauses” and “Parts” are, unless otherwise provided, references to clauses and parts of these Terms.

A1.5In these Terms, the masculine includes the feminine and the neuter and the singular includes the plural and vice versa.

A2.Scope of Terms

A2.1These Terms shall apply to the provision of the Services to the CLIENT by the CONTRACTOR.

A3.The Services

A3.1The CONTRACTOR shall perform the Services specified in the SLA.

A3.2Both parties shall comply with any management provisions set outthe Contract.

A4.Rights of Third Parties

A4.1The Contract shall not create any rights that shall be enforceable by anyone other than the parties to this Assignment Contract.

A4.2Any rights created pursuant to Clause A6.1 may be altered or extinguished by the parties pursuant to Clause A24 without the consent of any third party beneficiary of such rights.

A5.Charges

A5.1In consideration for the performance of the Services in accordance with the terms of the Contract, the CLIENT shall pay the Charges in accordance with the invoicing procedure and payment profile specified in the Framework Agreement.

A5.2In the event and to the extent that the Services Order specifies that the CLIENT will reimburse any expenses incurred by the CONTRACTOR in carrying out the Services, the CLIENT shall reimburse any such expenses which are reasonably and properly incurred by the CONTRACTOR.

A5.3Payment shall be made within 14 days of receipt of invoice(s)

A5.4The Charges are exclusive of Value Added Tax. The CLIENT shall pay the Value Added Tax on the Charges at the rate and in the manner prescribed by law, from time to time.

A5.6All payments will be made in full free of any deduction and set-off. In the event of a bona fide dispute arising on the charges, the Client will inform the Contractor in writing as soon as practically possible and the matter will be resolved through the dispute resolution procedure in a timely manner. For the avoidance of doubt, the disputed sum will not be payable until the dispute is resolved but the remainder of the invoice will be payable by the due date.

A5.7Interest shall be payable on any late payments under the Contract in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.

A6.Warranties and Representations

A6.1The CONTRACTOR warrants and represents that:

A6.1.1the CONTRACTOR has full capacity and authority and all necessary to enter into and to perform this Contract;

A6.1.2the provision of the Services shall not infringe any Intellectual Property Rights of any third party;

A6.1.5the Services shall be supplied and rendered by appropriately experienced, qualified and trained personnel; and

A6.1.6the CONTRACTOR shall discharge its obligations hereunder with all due skill, care and diligence including but not limited to good industry practice and (without limiting the generality of this Clause) in accordance with its own established internal procedures.

A6.2Except as expressly stated in the Assignment Contract, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose) are hereby excluded to the extent permitted by law.

A7.Limitation of Liability

A7.1The following clause sets out the entire financial liability of the Contractor (including any liability for the acts or omissions of its employees, agents and sub-contractors but specifically excluding the Temporary Agency Workers) to the Client in respect of:

(a)the other’s breach of these conditions;

(b)the other’s negligence or

(c)the other’s wilful default of the Contractor during the terms of the Contract.

A7.2Nothing in this Contract excludes or limits the liability of the Contractor:

(a)for death or personal injury caused by the Contractor´s negligence; or

(b)for any matter which it would be illegal for the Contractor to exclude or attempt to exclude its liability.

A7.3Subject to condition A7.1:

(a)the Contractor´s total liability in contract, tort (including negligence or breach of statutory duty), arising in connection with the performance or contemplated performance of the Contract shall be limited to the will be limited to the aggregate profit made for each Contract Year (or pro rata if for a shorter period) plus 25%; and

(b)the Contractor shall not be liable to the Client for any economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

A7.4The Client agrees to indemnify and hold harmless the Contractor from and against all loss, liability, costs, charges, claims or damages made against the Contractor by third parties arising out of or in connection with the provision of services by Reed Health Limited in its capacity as the Contractor’s subcontractor pursuant to this Contract.

A7.5If any terms or provisions of this Clause A7 are or become invalid, illegal or unenforceable, the remainder shall survive unaffected.

A8.Confidentiality

A8.1 The Contractor shall take reasonable precautions to ensure that none of its officers or employees (including its advisers):-

a)discloses any term of this Contract; or

b)discloses or uses any Confidential Information (as defined below) which is acquired in connection with this Contract or which has been acquired in the negotiations leading up to it except as is reasonably necessary for the performance of its obligations under this Contract or as the CLIENT agrees; and

shall not use any Confidential Information it receives from the CLIENT other than for the purposes of the Contract.

A8.2This confidentiality undertaking does not apply to disclosure by either Party which is made for a proper purpose:

a)to a public authority (which for the purposes of this Contract means any governmental, regulatory or other public authority in the UK or elsewhere including a person appointed by a public authority to carry out an investigation); or

b)to a Court of Law in the UK or elsewhere in any legal proceeding; or

c)in connection with the Freedom of Information Act pursuant to the terms of this Contract

A8.3 This clause shall not apply to any Confidential Information received by one Party from the other:-

(a)which is or becomes public knowledge (otherwise than by breach of this clause);

(b)which was in the possession of the receiving Party, without restriction as to its disclosure, before receiving it from the disclosing Party;

(c)which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

(d)which is independently developed without access to the Confidential Information; or

(e)which must be disclosed pursuant to a statutory, legal or parliamentary obligation placed upon the Party making the disclosure.

A8.4Nothing in this clause shall prevent the CLIENT:-

(a)disclosing any Confidential Information for the purpose of:-

(i)the examination and certification of the CLIENT’s accounts; or

(ii) any examination pursuant to the National Audit Act 1983 of the economy, efficiency and effectiveness with which the CLIENT has used its resources; or

(b)disclosing any Confidential Information obtained from the Contractor to any other public authority

provided that in disclosing information under sub-paragraph (b) the CLIENT discloses only the information which is necessary for the purpose concerned and requires that the information is treated in confidence and that a confidentiality undertaking is given where appropriate.

A8.5Nothing in this clause shall prevent either Party from using any techniques, ideas or know-how gained during the performance of the Contract in the course of its normal business, to the extent that this does not result in a disclosure of Confidential Information or an infringement of Intellectual Property Rights.

A8.5For the purposes of this clause, “Confidential Information” means any information which has been designated as confidential by either Party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information which relates to the business, affairs, properties, assets, trading practices, developments, trade secrets, Intellectual Property Rights, know-how, personnel customers and suppliers of either Party, all personal data and sensitive personal data within the meaning of the Data Protection Act 1998 and any information specifically designated by either party to be commercially sensitive information.

A9TERMINATION

A9.1Notwithstanding any other provision within this Contract, the Contract may be terminated in accordance with this clause.

A9.2If

a)The Contractor offered, gave or agreed to give to any person any inducement or reward of any kind in order to obtain this Contract or any other contract with the CLIENT; or

b)the Contractor’s personnel or agents did any of the acts set out in subclause 1(a) above whether the Contractor knew about it or not; or

c)the Contractor or anyone employed by it or acting on behalf of the Contractor committed an offence under the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Acts 1906-1916 or the Corrupt Practices Act 1909 or s117 Local Government Act 1972; or

d)any information provided by the Contractor during any tender process or during any presentation made to the CLIENT in connection with the entering of this or any other contract with the CLIENT proves to be materially untrue or incorrect; or

e)where the Contractor is revealed as being or having been a member of a cartel or similar arrangement, whether or not in connection with this Contract

then the CLIENT on becoming aware of such act shall terminate this Contract with immediate effect.

A9.3The Contractor acknowledges and accepts that where it has breached any of the provisions of subclause 1, then without prejudice to its other remedies the CLIENT shall be entitled to any costs caused by the need to re-tender the Contract and where the Contractor was a member of a price-fixing cartel shall be entitled to the difference between the tender price and uncorrupted market price as part of its claim for damages.

A9.4If either Party commits a breach of any of its material obligations under this Contract and fails to remedy it, if capable of remedy, within thirty days of receipt of notice specifying the breach, then the other Party may terminate the Contract on expiry of the written notice.

A9.5If either Party is by any cause, other than a proper cause directly attributable to the other Party or by way of Force Majeure, prevented from performing its obligations under the Contract for a period of three (3) calendar months or for a total period of six (6) calendar months in any period of twelve (12) consecutive calendar months, then the prevented Party may terminate the Contract by giving the other Party thirty days’ notice in writing.

A9..6If the Contractor

a)becomes bankrupt or makes a composition or arrangement with its creditors or has a proposal in respect of its company for voluntary arrangement of debts or scheme or arrangement approved in accordance with the Insolvency Acts; or

b)has an application made to the Court for the appointment of an administrative receiver; or

c)has a provisional liquidator, receiver, manager of its business or undertaking duly appointed under the Insolvency Acts; or

d)has a winding up order made or resolution for voluntary winding up passed; or

e)has possession taken by or on behalf of any holders of debentures secured by a floating charge or any property comprising or subject to the floating charge; or

f)is in circumstances which entitle the Court or creditor to appoint or have appointed a receiver or which entitle the court to make a winding up order; or

g)has any director or partner become insolvent or bankrupt or disqualified as a director; or

h)or any director or partner convicted of any offence of fraud or dishonesty whether in connection with an event before or after the Commencement date; or

i)has any partner or director disqualified from her/his professional body

then in any such circumstances at its sole discretion the CLIENT may terminate the Contract with immediate effect.

A9..7Where

a)there is a change of control in the Contractor’s company or parent company within the definition of s416 of the Income and Corporation Taxes Act 1988, other than for a bona fide reconstruction or amalgamation which in the opinion of the CLIENT does not have an adverse effect on the financial standing of the Contractor or the parent company

then at it s sole discretion the CLIENT may terminate the Contract by giving the Contractor thirty days’ notice in writing.

A9.8If the Contractor

a)fails to provide a satisfactory Service which constitutes a fundamental breach of the Contract; or

b)is in material breach of any of the conditions of this Contract; or

c)subject to the strictures of s17 Local Government Act 1988, makes such changes to its Key Personnel that the CLIENT is no longer satisfied that the Contractor is able to provide a satisfactory service; or

d)brings the CLIENT into disrepute or does anything which the CLIENT reasonably considers may bring the CLIENT into disrepute by association; or

e)commits any act or behaves in any manner such that it is reasonable to conclude that public trust and confidence in the Contractor have seriously diminished or expired; or

f)takes any steps that in the reasonable view of the CLIENT will preclude the Contractor from delivering the Service to the standard legitimately anticipated at the time the Contract was awarded; or

g)fails to make proper arrangements for the timely payment of the Temporary Agency Workers; or

h)has an act of gross misconduct committed by any of its Key Personnel; or

i)has an act of gross misconduct committed by any of its employees who are based on CLIENT premises

then entirely at its own discretion but not vexatiously or unreasonably the CLIENT may terminate the Contract by giving the Contractor thirty days’ notice in writing.

A9.9If, due to a series of events or set of circumstances, it becomes the CLIENT’s reasonable view that it is impossible to maintain confidence in the Contractor’s ability to perform the Contract to a satisfactory standard, then entirely at its sole discretion but not vexatiously or unreasonably the CLIENT may terminate the Contract by thirty days’ notice in writing.

A9.10If the CLIENT has the whole of its undertaking terminated by any Act of Parliament or regulations and thereby its financial and other assets transferred or vested in another body (excepting always an act of renaming the CLIENT or in the event of any petition being successfully entertain by the High Court for the liquidation or winding up of the whole or any part or parts of the CLIENT’s undertaking or in the event of a successful action for the sequestration or the freezing of the whole of the CLIENT’s financial undertaking for more than three months, then the Contractor may terminate the Contract with immediate effect.

A9.12Notice of termination by either Party shall be served in writing in accordance with the Notices clause.

A9.13Where this Contract is terminated:

a)the Parties shall be relieved from further performance of their obligations; and

b)any rights and remedies to which either Party becomes entitled or subject before the termination shall remain effective; and

c)subject at all times to clause A9, the termination shall not affect any right to damages that the Party serving notice of termination may have in respect of the default giving rise to the termination or any other right to damages which either party may have in respect of any breach occurring before the termination; and

d)notwithstanding the termination of the Contract, the clauses pertaining to the following matters shall remain in effect: confidentiality, copyright; data protection; disclosure of staffing information; disputes resolution; documents, records and management information; evidence in connection with legal proceedings; applicable law; liability, interpretation, indemnity and insurance; non-collusive behaviour; notices; ombudsman; set-off; all clauses with regard to co-operation at expiry/termination of Contract

A9.14The Contractor acknowledges and accepts that the CLIENT, as a public service, must be particularly careful about the character and background of persons whose work will bring them into substantial contact with vulnerable groups, including but not limited to elderly persons, sick persons, disabled persons or children. Without prejudice to any other remedy available to the CLIENT, the Contractor further acknowledges and accepts that any breach of its obligations in respect of the placement of Temporary Agency Workers who work with such vulnerable groups may be treated by the CLIENT as fundamental breach by the Contractor and then at its sole discretion the CLIENT may terminate the Contract with immediate effect.