ࡱ>  [ <bjbj >*kikiRR%%%%%%%%80&(%|++L+++0-4d-x- $ʴ!%00-0-00!%%++46>>>0%+%+F>0>> +``D1: bL0|:%-\.>.|r/)---!!<---|0000---------RX $:  TERMS AND CONDITIONS OF CONTRACT FOR THE SUPPLY OF NATIONAL DRIVER OFFENDING RETRAINING SCHEME TRAINERS TO THE POLICE AND CRIME COMMISSIONER FOR DYFED-POWYS POLICE Contents Page A. General Provisions A1 Definitions and Interpretation 5 A2 Contract Period 13 A3 Trainers Status 13 A4 Commissioners Obligations 14 A5 Notices 14 A6 Mistakes in Information 15 A7 Conflicts of Interest 15 A8 No Exclusivity 16 A9 No Guaranteed Purchases 16 B. Supply of Services B1 The Services 17 B2 Provision and Removal of Equipment 17 B3 Manner of Carrying Out the Services 18 B4 Trainer 19 B5 Licence to Occupy Premises 22 B6 Property 23 B7 Provision of Information 24 C. Payment and Contract Price C1 Contract Price 25 C2 Payment and VAT 25 C3 Recovery of Sums Due 26 C4 Form of Invoice 27 D. Statutory Obligations and Regulations D1 Prevention of Corruption 27 D2 Prevention of Fraud 28 D3 Discrimination 29 D4 The Contracts (Rights of Third Parties) Act 1999 29 D5 Environmental Requirements 29 D6 Health and Safety 30 D7 Welsh Language 34 D8 Indemnity for Breach of Clause D Statutory Obligations and Regulations 34 E. Protection of Information E1 Data Protection Act 34 E2 Official Secrets Acts 1911 to 1989, S182 of the Finance Act 1989 36 E3 Confidential Information 37 E4 Freedom of Information 40 E5 Publicity, Media and Official Enquiries 42 E6 Security 42 E7 Intellectual Property Rights 42 E8 Audit 46 F. Control of the Contract F1 Transfer and Sub-Contracting 47 F2 Waiver 49 F3 Variation 50 F4 Severability 51 F5 Remedies in the Event of Inadequate Performance 51 F6 Remedies Cumulative 53 F7 Monitoring of Contract Performance 53 F8 Entire Agreement 53 F9 Counterparts 54 G. Liabilities G1 Liability, Indemnity and Insurance 54 G2 Warranties and Representations 57 H. Default, Disruption and Termination H1 Termination 59 H2 Termination on Insolvency and Change of Control 59 H3 Termination on Default 60 H4 Break 61 H5 Consequences of Expiry or Termination 61 H6 Disruption 62 H7 Recovery upon Termination 63 H8 Force Majeure 64 H9 Ineffectiveness 65 I. Disputes and Law I1 Governing Law and Jurisdiction 66 I2 Dispute Resolution 66 J. Security for Performance 70 Schedules Contract Award Schedule Sell2Wales Postbox Docs Scope of Services Schedule Sell2Wales Postbox Docs Pricing Schedule Sell2Wales Postbox Docs A. GENERAL PROVISIONS A1 Definitions and Interpretation A1.1 In this Contract unless the context otherwise requires the following provisions shall have the meanings given to them below: Application Form means the application form submitted by the Trainer to the Commissioner in response to the Commissioners invitation to suppliers to apply to supply it with the Services. Approval means the prior written consent of the Commissioner (and Approved shall be construed accordingly). Commissioner means the party named in Schedule 1, any successor or replacement Commissioner and/or anybody to which all or part of the functions of the Commissioner may be lawfully transferred. Commissioner Contact means the person or persons duly appointed by the Commissioner as detailed in Schedule 1, to act as the day to day point(s) of contact in relation to the Contract. Chief Constable means that Chief Constable of the respective Commissioner from time to time; Commencement Date means the date detailed in Schedule 1 or such other date as agreed in writing by the Authority. Commercially Sensitive Information means the information listed in the Commercially Sensitive Information Schedule comprised of information: (a) which is provided by the Trainer to the Commissioner in confidence for the period set out in that Schedule; and/or (b) that constitutes a trade secret. Confidential Information means: (a) 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 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 DPA; and/or (b) any information, including, but not limited to, any survey results, research data, advice, plans, recommendations or other reports or information which is generated by or on behalf of the Trainer for the Commissioner in the course of performing its obligations under the Contract. Contract means this written agreement between the Commissioner and the Trainer consisting of these clauses and any attached Schedules or other documents attached to it, as Approved by the Commissioner (in each case as amended from time to time in accordance with the Contract). Contracting Authority means any contracting authority as defined in Regulation 3 of the Public Contracts Regulations 2006. Trainer means the person with whom the Commissioner enters into the Contract for the provision of NDORS. Contract Period means the period detailed in Schedule 1 and shall include, where applicable, such earlier period as shall end on the termination or partial termination of the Contract in accordance with the Law or the provisions of the Contract. Contract Price means the price (exclusive of any applicable VAT), payable to the Trainer by the Commissioner under the Contract, as set out in the Pricing Schedule, for the full and proper performance by the Trainer of its obligations under the Contract. Crown means the government of the United Kingdom (including the Northern Ireland Executive Committee and Northern Ireland Departments, the Scottish Executive and the National Assembly for Wales), including, but not limited to, government ministers, government departments, government and particular bodies and government agencies. Default 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 or its staff in connection with or in relation to the subject matter of the Contract and in respect of which such Party is liable to the other. DPA means the Data Protection Act 2018 and any subordinate legislation made under such Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation. Environmental Information Regulations means the Environmental Information Regulations 2004 and any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such regulations. Equipment means the Trainers equipment, vehicles, materials and such other items supplied and used by the Trainer in the performance of its obligations under the Contract. Fees Regulations means the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. FOIA means the Freedom of Information Act 2000 and any subordinate legislation made under such Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation. Force Majeure means in relation to either Party, a Force Majeure Event which is beyond the reasonable control of that Party concerned and which materially and adversely affects its ability to perform it obligations under the Contract. Force Majeure Event includes fire; flood; violent storm; pestilence; explosion; malicious damage; armed conflict; acts of terrorism; nuclear, biological or chemical warfare; or any other disaster, natural or man-made, but excluding any one or more of the following: (a) any industrial action occurring within the Partys or any sub-contractors organisation; or (b) any event to the extent that it could have been prevented or avoided, or its adverse impact could have been mitigated, through the exercise by the Party in question of Good Industry Practice, including the establishment and implementation of appropriate disaster recovery or business contingency arrangements; or (c) any lack of funds by the Party in question; or (d) the failure by any sub-contractor to perform its obligations under any sub-contract, unless that failure was in turn attributable to a Force Majeure Event, and cannot be excluded from, the preceding parts of this definition (if references in those preceding parts to the Party in question were references to the relevant sub-contractor). Fraud means any offence under Laws creating offences in respect of fraudulent acts or at common law in respect of fraudulent acts in relation to the Contract or defrauding or attempting to defraud or conspiring to defraud the Commissioner and/or the Crown. Good Industry Practice means standards, practices, methods and procedures conforming to the Law and the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in a similar type of undertaking under the same or similar circumstances. Information has the meaning given under section 84 of the FOIA. Intellectual Property Rights means patents, inventions, trade marks, service marks, logos, design rights (whether registerable or otherwise), applications for any of the foregoing, copyright, database rights, domain names, trade or business names, moral rights and other similar rights or obligations whether registerable or not in any country (including but not limited to the United Kingdom) and the right to sue for passing off. All references to Intellectual Property shall be construed accordingly. Schedule 1 Law means any applicable Act of Parliament, subordinate legislation within the meaning of Section 21(1) of the Interpretation Act 1978, exercise of the royal prerogative, enforceable community right within the meaning of Section 2 of the European Communities Act 1972, regulatory policy, guidance or industry code, judgment of a relevant court of law, or directives or requirements or any Regulatory Body of which the Trainer is bound to comply. Month means calendar month. NDORS means the National Driving Offenders Retraining Scheme. Party means a party to the Contract. Premises means the location where the Services are to be supplied, as set out in Schedule 2 or otherwise agreed by the Commissioner. Pricing Schedule means the Schedule containing details of the Contract Price. Property means the property, other than real property, issued or made available to the Trainer by the Commissioner in connection with the Contract. Quality Standards means the quality and performance monitoring standards as set by NDORS and external assessments carried out by NDORS and such standards that a skilled and experienced operator in the same type of industry or business sector as the Trainer would reasonably and ordinarily be expected to comply with, and as may be further detailed in Schedule 2. Receipt means the physical or electronic arrival of the invoice at the address of the Commissioner detailed at clause A5.3 or at any other address given by the Commissioner to the Trainer for the submission of invoices, provided that if any such invoice arrives on a day that is not a Working Day or after 17:00 on a Working Day, then it shall not be deemed to have been received until 10:00 on the next following Working Day. Regulatory Bodies means those government departments and regulatory, statutory and other entities, committees, ombudsmen 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 Contract or any other affairs of the Commissioner and Regulatory Body shall be construed accordingly. Replacement Trainer means any third party service provider appointed by the Commissioner to supply any services which are substantially similar to any of the Services and which the Commissioner receives in substitution for any of the Services following the expiry, termination or partial termination of the Contract. Request for Information shall have the meaning set out in FOIA or the Environmental Information Regulations as relevant (where the meaning set out for the term request shall apply). "Relevant Convictions" means a conviction that is relevant to the nature of the Services and/or as listed by the Commissioner and/or relevant to the work of the Commissioner for the purpose of the Contract. Schedule means a schedule attached to, and forming part of, the Contract. Services means the services to be supplied as specified in Schedule 2. Specification means the description of the Services to be supplied under the Contract as set out in Schedule 2. Trainer means the person with whom the Commissioner enters into the Contract for the provision of NDORS. VAT means value added tax in accordance with the provisions of the Value Added Tax Act 1994. Vetting Procedure means the Commissioners procedures for the vetting of personnel as advised to the Trainer by the Commissioner. Working Day means a day (other than a Saturday or Sunday) on which banks are open for general business in the City of London. A1.2 The interpretation and construction of this Contract shall be subject to the following provisions: (a) words importing the singular meaning include where the context so admits the plural meaning and vice versa; (b) words importing the masculine include the feminine and neuter; (c) reference to a clause is a reference to the whole of that clause unless stated otherwise; (d) 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 it may have been, or may from time to time be amended, modified or re-enacted and shall include any subordinate legislation made under the relevant statute; (e) reference to any person shall include 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; (f) the words include, includes and including are to be construed as if they were immediately followed by the words without limitation . The rule known as the ejusdem generis shall not apply and accordingly general words introduced by the word other shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things; (g) the recitals and headings are included in the Contract for ease of reference only and shall not affect the interpretation or construction of the Contract; (h) references to indemnity and indemnifying any person against any circumstance include indemnifying and keeping that person harmless from all actions, claims and proceedings from time to time made against that person and all loss and damage and all payments, costs and expenses (including legal fees on a solicitor own client basis and taxes) made or incurred by that person as a consequence of or which should have arisen but for that circumstance; (i) references to writing shall mean any mode of reproducing words in a legible and non-transitory form; (j) the Schedules form part of this Agreement and shall have the same force and effect as if expressly set out in the body of this Agreement; (k) where the Agreement is entered into by or on behalf of a partnership or otherwise by or on behalf of more than one person, any liability arising under it shall be deemed to be the joint and several liability of the partners or of such persons as stated above, and any demand for payment made or notice given by the Commissioner to any one or more of the persons so jointly and severally liable shall be deemed to be a demand made or notice given to all such persons. The Commissioner shall be at liberty to release or discharge any one or more of such persons from liability under the Agreement or to compound with, accept compositions from or make other arrangements with any of such persons without in consequence releasing or discharging any other party to this Agreement or otherwise prejudicing or affecting the Authoritys rights and remedies against any such party; (l) references to time shall be construed, during the period of summer time, to be British Summer Time and otherwise to be Greenwich Mean Time; and (m) except as otherwise expressly provided in the Agreement, all remedies are cumulative and may be exercised concurrently or separately and the exercise of any one remedy shall not exclude the exercise of any other remedy. A2 Contract Period A2.1 The Contract shall take effect on the Commencement Date, or such other date as agreed by the Parties and shall continue for the period detailed in Schedule 1 unless and until it is otherwise terminated in accordance with the provisions of the Contract, or otherwise lawfully terminated. A3 Trainers Status A3.1 At all times during the Contract Period the Trainer shall be an independent contractor and nothing in the Contract is intended to, shall be deemed to or shall create a contract of employment, a relationship of agency or partnership or a joint venture between the Parties and accordingly neither Party shall be authorised to act in the name of, or on behalf of, or otherwise bind the other Party, save as expressly permitted by the terms of the Contract. Each Party confirms that it is acting on its own behalf and not for the benefit of any other person, whether such person is an individual or a body corporate. A4 Commissioners Obligations A4.1 Save as otherwise expressly provided, the obligations of the Commissioner under the Contract are obligations of the Commissioner in its capacity as a contracting counterparty and nothing in the Contract shall operate as an obligation upon, or in any other way fetter or constrain the Commissioner in any other capacity, nor shall the exercise by the Commissioner of its duties and powers in any other capacity lead to any liability under the Contract (howsoever arising) on the part of the Commissioner to the Trainer. A5 Notices A5.1 Except as otherwise expressly provided within the Contract, no notice, consent or other communication from one Party to the other shall have any validity under the Contract unless made in writing by or on behalf of the Party concerned. A5.2 Any notice, consent or other communication which is to be given by either Party to the other shall be given by letter (sent by hand, first class post, recorded delivery or special delivery), or by facsimile transmission or electronic mail. Such letters shall be addressed to the other Party in the manner referred to in clause A5.3. Provided the relevant communication is addressed correctly and is not returned as undelivered, the notice, consent or communication shall be deemed to have been given: (a) if hand delivered, at the time of actual delivery; or (b) 2 Working Days after the day on which the letter was posted; or (c) 4 hours, in the case of electronic mail or facsimile transmission after successful transmission; or (d) sooner where the other Party acknowledges receipt of such letters, facsimile transmission or item of electronic mail; provided in each case that if the deemed receipt occurs either on a day that is not a Working Day or after 17:00 on a Working Day, then the notice, consent or other communication in question shall not in fact be deemed to have been received until 10:00 on the next following Working Day (such times being local time at the address of the recipient). A5.3 For the purposes of clause A5.2, the address and other contact details of each Party shall be detailed in Schedule 1 or otherwise advised to the other in writing prior to the Commencement Date. A5.4 Either Party may change its address for service by serving a notice in accordance with this clause. A5.5 At the same time as giving any notice, consent or other communication to the Commissioner in accordance with clauses A5.2-A5.4 above, the Trainer shall provide a copy of the relevant notice, consent or other communication to the Commissioner Contact using the email address or fax number set out in Schedule 1 or otherwise notified to the Trainer for these purposes from time to time. A6 Mistakes in Information A6.1 The Trainer shall be responsible for the accuracy of all drawings, documentation and information supplied to the Commissioner by the Trainer in connection with the supply of the Services and shall pay the Commissioner any extra costs occasioned by any discrepancies, errors or omissions therein. A7 Conflicts of Interest A7.1 The Trainer shall take appropriate steps to ensure that it is not placed in a position where, in the reasonable opinion of the Commissioner, there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of the Trainer and the duties owed to the Commissioner under the provisions of the Contract. The Trainer shall disclose to the Commissioner forthwith full particulars of any such conflict of interest, potential or otherwise, which may arise. A7.2 The Commissioner reserves the right to terminate the Contract immediately by notice in writing and/or to take such other steps it deems necessary where, in the reasonable opinion of the Commissioner, there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of the Trainer and the duties owed to the Commissioner under the provisions of the Contract. The actions of the Commissioner pursuant to this clause A7 shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to the Commissioner. A8 No Exclusivity A8.1 The Trainer hereby acknowledges and agrees that it is not being appointed as the Authoritys exclusive provider of Services or of services which are the same or similar to the Services and the Commissioner shall be free at any time to purchase such services from one or more other persons. A8.2 The Commissioner hereby acknowledges and agrees that the Trainer is not providing the Services to the Commissioner on an exclusive basis and that the Trainer shall be free at any time to provide such Services or any other services to any other person or entity. A9 No Guaranteed Purchases A9.1 The Commissioner does not give, and shall not be deemed to have given, any guarantee, warranty or other assurance as to the quantity or value of Services that may be required under the Contract, nor as to the revenue that the Trainer will generate as a result of entering into the Contract. A9.2 Any estimate of demand or historical data given to the Trainer is for guidance purposes only and shall not form part of the Contract. B. SUPPLY OF SERVICES B1 The Services B1.1 The Trainer shall supply the Services during the Contract Period in accordance with the Commissioners requirements as set out in Schedule 2 and the provisions of the Contract in consideration of the payment of the Contract Price. The Commissioner may inspect and examine the manner in which the Trainer supplies the Services at the Premises during normal business hours (or otherwise). B1.2 If the Commissioner informs the Trainer in writing that the Commissioner reasonably believes that any part of the Services do not meet the requirements of the Contract or differs in any way from those requirements, and this is other than as a result of a Default by the Commissioner, the Trainer shall at its own expense re-schedule and carry out the Services in accordance with the requirements of the Contract within such reasonable time as may be specified by the Commissioner. B1.3 Subject to the Commissioner providing written consent in accordance with clause B2.2, timely supply of the Services shall be of the essence of the Contract, including commencing the supply of the Services within the time agreed or on a specified date. B2 Provision and Removal of Equipment B2.1 The Trainer shall provide all the Equipment necessary for the supply of the Services. B2.2 The Trainer shall not deliver any Equipment nor begin any work on the Premises without obtaining prior Approval. B2.3 All Equipment brought onto the Premises shall be at the Trainers own risk and the Commissioner shall have no liability for any loss of or damage to any Equipment unless the Trainer is able to demonstrate that such loss or damage was caused or contributed to by the Commissioners Default. The Trainer shall provide for the haulage or carriage thereof to the Premises and the removal of Equipment when no longer required at the Trainers sole cost. Unless otherwise agreed, Equipment brought onto the Premises will remain the property of the Trainer. B2.4 The Trainer shall maintain all items of Equipment within the Premises in a safe, serviceable and clean condition. Where the Equipment consists of vehicles, the Trainer shall ensure that they are maintained in a safe and roadworthy condition at all times and that such vehicles have a valid MOT certificate and are insured for use in the provision of the Services. The Commissioner reserves the right to request a copy of the policy of insurance at any time, and the provisions of clause G of the Contract shall apply. B2.5 The Trainer shall, at the Commissioners written request, at its own expense and as soon as reasonably practicable: (a) remove from the Premises any Equipment which in the reasonable opinion of the Commissioner is either hazardous, noxious or not in accordance with the Contract; and (b) replace such item with a suitable substitute item of Equipment. B2.6 On completion of the Services the Trainer shall remove the Equipment together with any other materials used by the Trainer to supply the Services and shall leave the Premises in a clean, safe and tidy condition. The Trainer is solely responsible for making good any damage to the Premises or any objects contained thereon, other than fair wear and tear, which is caused by the Trainer in accordance with clause B7.4 hereto. B3 Manner of Carrying Out the Services B3.1 The Trainer shall ensure that sufficient resources are allocated to the Contract when required and ensure that performance is in accordance with the Contract and Good Industry Practice. B3.2 The Trainer shall at all times comply with the Quality Standards, and where applicable shall maintain accreditation with the relevant Quality Standards authorisation body. To the extent that the standard of Services has not been specified in the Contract, the Trainer shall agree the relevant standard of the Services with the Commissioner prior to the supply of the Services and, in any event, the Trainer shall perform its obligations under the Contract in accordance with the Law and Good Industry Practice. B3.3 The Trainer shall supply the Services with all due skill, care and diligence and shall possess such qualifications, skills and experience as are necessary for the proper supply of the Services. B3.4 Where directed by the Commissioner, the Trainer shall comply with Schedule 2. B4 Trainer B4.1 The Commissioner may, by written notice to the Trainer, refuse to admit the Trainer onto, or withdraw permission to remain on, the Premises where admission or continued presence would, in the reasonable opinion of the Commissioner, be undesirable. B4.2 The Trainer shall comply with such rules, regulations and requirements (including those relating to security arrangements) as may be in force from time to time for the conduct of personnel when at or outside the Premises. B4.3 The Trainer acknowledges that the Commissioner shall be free to security search it and shall fully co-operate with the Commissioner for these purposes. The Trainer shall also carry out its duties and behave while at any Premises or while carrying out any activities under the Contract in an orderly and appropriate manner, having regard to the nature of its duties and that it shall at all times be dressed appropriately in view of its job category and the activities it is to carry out. B4.4 If and when requested by the Commissioner, the Trainer shall provide a signed statement that it understands that the Official Secrets Act 1911 to 1989 applies to it both during the Contract Period and thereafter. B4.5 The Trainer shall comply with all requirements of the Commissioners Vetting Procedures. Without prejudice to the foregoing, the Commissioner may (in his absolute discretion) require the Trainer to undertake a Disclosure and Barring Service check as per its Vetting Procedures. If the Trainer discloses that it has a Relevant Conviction, or is found to have a Relevant Conviction (whether as a result of a police check or through the Disclosure and Barring Service check or otherwise) the Commissioner shall be entitled to terminate the Contract with immediate effect. B4.6 The Commissioner reserves the right to charge a fee to the Trainer in respect of the vetting procedure carried out in relation to the Trainer. B4.7 The Trainer may, as determined by the Commissioner in its absolute discretion, be issued with a photo pass confirming its identity. The Trainer shall attend such location as the Commissioner shall direct for the issue of such photo pass. B4.8 Where photo passes are required: the Trainer shall obtain an authenticated photo pass and shall provide a second copy of each photo pass for the retention of the Commissioner; the Trainer shall retrieve and destroy its photo pass when it ceases to be authorised to carry out work in relation to the Contract or to require access to the Premises in order to do so; photo passes will be valid for the Contract Period or such shorter period as the Commissioner may direct and in order that the Commissioner may be assured of the continuing suitability of the Trainer, the Trainer shall also submit a completed security questionnaire not less than 6 weeks before the expiry of any existing pass. B4.9 The Trainer shall be required to submit a completed security questionnaire in relation to the performance of its obligations under the Contract. The security questionnaires must be completed by the Trainer and submitted within 5 Working Days following receipt from the Commissioner and in any event prior to the commencement of the provision of the Services. B4.10 To ensure compliance with the requirements of this clause B4, the Trainer shall at no additional cost to the Commissioner: (a) consent to itself being vetted; (b) complete the security questionnaire in an accurate and timely manner; (c) confirm and validate the content of the security questionnaires; and carry out such other activities as the Commissioner may from time to time direct. B4.11 The Commissioner hereby reserves the right to re-vet the Trainer throughout the Contract Period. B4.12 The decision of the Commissioner as to whether any person is to be admitted to or is to be removed from the Premises or is to become involved in or is not to become involved in or is to be removed from involvement in the Contract and as to whether the Trainer has furnished the information or taken the steps required of it by this clause B4 shall be final and conclusive. B4.13 The Commissioner shall not be required to provide any reasoning for any decisions under this clause B4. B4.14 The Trainer shall bear the cost of any notice, instruction or decision of the Commissioner under this clause B4. B4.15 While on the Premises the Trainer shall obey all reasonable instructions given to it by the Authoritys supervisory staff in any matter in which the immediate safety of the Authoritys staff, clients and visitors shall be involved. B4.16 If requested to do so by the Authority, the Trainer shall provide to the Commissioner all relevant information in connection with any legal inquiry, court proceedings or other proceedings in which the Commissioner and/or the Chief Constable may become involved or any relevant disciplinary hearing internal to the Commissioner and/or the Police Force and shall give evidence in such inquiries or proceedings or hearings, arising out of the provision of the Contract, and shall if requested to do so by the Commissioner give evidence in connection with any matter with which the Trainer has been involved in the course of their duties hereunder. Without prejudice to the foregoing, the Trainer Staff shall give all reasonable assistance to the Commissioner in the investigation of any complaints, contract monitoring, disciplinary matters involving the Commissioners staff and/or its officers, claims for damages and similar matters. B5 Licence to occupy Premises B5.1 Any land or Premises made available from time to time to the Trainer by the Commissioner in connection with the Contract shall be made available to the Trainer on a non-exclusive licence basis free of charge and shall be used by the Trainer solely for the purpose of performing its obligations under the Contract. The Trainer shall have the use of such land or Premises as licensee and shall vacate the same on completion, termination or abandonment of the Contract. B5.2 The Trainer shall co-operate with such other persons working concurrently on such land or Premises as the Commissioner may reasonably request. B5.3 The Trainer shall observe and comply with such rules and regulations as may be in force at any time for the use of such Premises as determined by the Commissioner, and the Trainer shall pay for the cost of making good any damage caused by the Trainer other than fair wear and tear. For the avoidance of doubt, damage includes damage to the fabric of the buildings, plant, fixed equipment or fittings therein. B5.4 The Parties agree that there is no intention on the part of the Commissioner to create a tenancy of any nature whatsoever in favour of the Trainer and that no such tenancy has or shall come into being and, notwithstanding any rights granted pursuant to the Contract, the Commissioner retains the right at any time to use any premises owned or occupied by it in any manner it sees fit. B6 Property B6.1 Where the Commissioner issues Property free of charge to the Trainer such Property shall be and remain the property of the Commissioner and the Trainer irrevocably licences the Commissioner and its agents to enter upon any premises of the Trainer during normal business hours on reasonable notice to recover any such Property. The Trainer shall not in any circumstances have a lien or any other interest on the Property and the Trainer shall at all times possess the Property as fiduciary agent and bailee of the Commissioner. The Trainer shall take all reasonable steps to ensure that the title of the Commissioner to the Property and the exclusion of any such lien or other interest are brought to the notice of all sub-contractors and other appropriate persons and shall, at the Commissioners request, store the Property separately and ensure that it is clearly identifiable as belonging to the Commissioner. B6.2 The Property shall be deemed to be in good condition when received by or on behalf of the Trainer unless the Trainer notifies the Commissioner otherwise within 5 Working Days of receipt. B6.3 The Trainer shall maintain the Property in good order and condition (excluding fair wear and tear), and shall use the Property solely in connection with the Contract and for no other purpose without prior Approval. B6.4 The Trainer shall ensure the security of all the Property whilst in its possession, either on the Premises or elsewhere during the supply of the Services, in accordance with the Commissioners reasonable security requirements as required from time to time. B6.5 The Trainer shall be liable for all loss of, or damage to, the Property (excluding fair wear and tear), unless such loss or damage was caused by the Commissioners Default. The Trainer shall inform the Commissioner within 2 Working Days of becoming aware of any defects appearing in, or losses or damage occurring to, the Property. B6.6 The Commissioner shall only issue Property to the Trainer in the event that the Trainer is prevented from providing its Equipment in accordance with the provisions of clause B2 for reasons beyond the Trainers control, and where such failure to provide the Equipment would otherwise prevent the Services from being carried out by the Trainer on the date and at the time and location agreed between the Commissioner and the Trainer. B7 Provision of Information B7.1 Without prejudice to any other provision in the Contract, including those in Schedule 2 and the Monitoring Schedule (if used), the Trainer shall provide such information in relation to the performance of its obligations under the Contract (including information in respect of progress against relevant timescales or milestones and information required by the Commissioner for the purposes of re-tendering the provision of the Service) as the Commissioner may reasonably request from time to time, such information to be provided in the format and within the timescales reasonably specified by the Commissioner. B7.2 The Trainer shall ensure that all such information is accurate and complete and, in respect of any information required by the Commissioner for re-tendering purposes, shall notify the Commissioner without delay of any changes made to information previously provided to the Commissioner. C PAYMENT AND CONTRACT PRICE C1 Contract Price C1.1 In consideration of the Trainers performance of its obligations under the Contract, the Commissioner shall pay the Contract Price in accordance with clause C2. C1.2 The Commissioner shall, in addition to the Contract Price and following Receipt of a valid VAT invoice, pay the Trainer a sum equal to the VAT chargeable on the value of the Services supplied in accordance with the Contract. C2 Payment and VAT C2.1 Unless otherwise specified in the Pricing Schedule, the Commissioner shall pay all sums due to the Trainer within 30 days of Receipt of a valid invoice, submitted monthly in arrears for work undertaken to the full satisfaction of the Commissioner. If a separate method of payment shall be used by the Commissioner this shall be specified in Schedule 1. C2.2 The Trainer shall ensure that each invoice contains the information set out in clause C4 and that it is supported by any other documentation reasonably required by the Commissioner to substantiate the invoice. Without prejudice to the generality of the previous sentence, the Trainer shall ensure that each invoice contains details of the appropriate purchase order issued by the Commissioner in respect of the Services in question, unless the Commissioner has confirmed in writing that such details are not required. C2.3 The Trainer shall indemnify the Commissioner on a continuing basis against any liability, including any interest, penalties or costs incurred, which is levied, demanded or assessed on the Commissioner at any time in respect of the Trainers failure to account for or to pay any VAT relating to payments made to the Trainer under the Contract. Any amounts due under this clause C2.3 shall be paid by the Trainer to the Commissioner not less than 5 Working Days before the date upon which the tax or other liability is payable by the Commissioner. C3 Recovery of Sums Due C3.1 Wherever under the Contract any sum of money is recoverable from or payable by the Trainer (including any sum which the Trainer is liable to pay to the Commissioner in respect of any breach of the Contract), the Commissioner may unilaterally deduct that sum from any sum then due, or which at any later time may become due to the Trainer under the Contract or under any other agreement or contract with the Commissioner. C3.2 Any overpayment by either Party, whether of the Contract Price or of VAT or otherwise, shall be a sum of money recoverable by the Party who made the overpayment from the Party in receipt of the overpayment. C3.3 The Trainer shall make all payments due to the Commissioner without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Trainer has a valid court order requiring an amount equal to such deduction to be paid by the Commissioner to the Trainer. C3.4 All payments due shall be made within a reasonable time unless otherwise specified in the Contract, in cleared funds, to such bank or building society account as the recipient Party may from time to time direct in the name of the recipient Party. C4 Form of Invoice C4.1 Unless otherwise agreed in writing by the Commissioner, all invoices shall include the following information: the Contract number; the purchase order number; the Commissioners contact; invoice number and date; a detailed description of the Services provided (including the location, date or time period of delivery of the Services); a detailed description of any recoverable expenses and costs; the Trainers VAT number; the amount due exclusive of VAT, other duty or early settlement discount; the VAT rate and VAT amount; details of any other duty or early settlement discount; details of the Trainers BACS details or other method of payment. D. STATUTORY OBLIGATIONS AND REGULATIONS D1 Prevention of Corruption D1.1 The Trainer shall not offer or give, or agree to give, to the Commissioner or any other public body or any person employed by or on behalf of the Commissioner or any other public body any gift or consideration of any kind as an inducement or reward for doing, refraining from doing, or for having done or refrained from doing, any act in relation to the obtaining or execution of the Contract or any other contract with the Commissioner or any other public body, or for showing or refraining from showing favour or disfavour to any person in relation to the Contract or any such contract. D1.2 The Trainer warrants that it has not paid commission or agreed to pay commission to the Commissioner or any other public body or any person employed by or on behalf of the Commissioner or any other public body in connection with the Contract. D1.3 If the Trainer, or anyone acting on the Trainers behalf, engages in conduct prohibited by clauses D1.1 or D1.2, the Commissioner may: (a) terminate the Contract with immediate effect by notice in writing; and (b) recover in full from the Trainer any other loss sustained by the Commissioner in consequence of any breach of those clauses . D2 Prevention of Fraud D2.1 The Trainer shall not commit Fraud in connection with the receipt of monies from the Commissioner. D2.2 The Trainer shall notify the Commissioner immediately if it has reason to suspect that any Fraud in relation to any contract with the Commissioner has occurred or is occurring or is likely to occur. D2.3 If the Trainer commits Fraud in relation to this Contract or any other contract with the Crown (including the Commissioner) the Commissioner may: (a) terminate the Contract with immediate effect by notice in writing; or (b) recover in full from the Trainer any other loss sustained by the Commissioner in consequence of any breach of this clause. D3 Discrimination D3.1 The Trainer shall not unlawfully discriminate either directly or indirectly on such grounds as race, colour, ethnic or national origin, disability, sex or sexual orientation, religion or belief, or age and without prejudice to the generality of the foregoing the Trainer shall not unlawfully discriminate within the meaning and scope of the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, the Equality Act 2006, the Human Rights Act 1998, the Equality Act 2010 or other relevant or equivalent legislation (including any equivalent legislation in force in any other jurisdiction in which any activities are carried out under or in connection with the Contract by the Trainer), or any statutory modification or re-enactment thereof. D3.2 If the Trainer engages in conduct prohibited by clause D3.1, the Commissioner may: (a) terminate the Contract with immediate effect by notice in writing; or (b) recover in full from the Trainer any other loss sustained by the Commissioner in consequence of any breach of those clauses. D4 The Contracts (Rights of Third Parties) Act 1999 D4.1 A person who is not a Party to the Contract shall have no right to enforce any of its provisions which, expressly or by implication, confer a benefit on him, without the prior written agreement of both Parties. This clause D4 does not affect any right or remedy of any person which exists or is available apart from the Contracts (Rights of Third Parties) Act 1999 and does not apply to the Crown. D5 Environmental Requirements D5.1 The Trainer shall perform its obligations under the Contract in accordance with the Commissioners environmental policy, which is to conserve energy, water, wood, paper and other resources, reduce waste and phase out the use of ozone depleting substances and minimise the release of greenhouse gases, volatile organic compounds and other substances damaging to health and the environment. D5.2 In so far as the Trainer disposes of any waste goods or other items (including electronic products) in the course of or in connection with the performance of the Trainers obligations under the Contract, the Trainer shall ensure that those goods or other items are disposed of in an environmentally friendly manner and in accordance with all applicable laws and regulations, including (where applicable) the Waste Electrical and Electronic Equipment Regulations 2006. D5.3 If and when requested to do so by the Commissioner at any time, the Trainer shall provide the Commissioner with such documents and/or permit representatives of the Commissioner to have such access to the Trainers premises and personnel as the Commissioner may reasonably require for the purposes of verifying compliance on the part of the Trainer with its obligations under clauses D5.1 to D5.2. D6 Health and Safety D6.1 The Trainer shall, when working on the Premises or any site in connection with the Contract comply with all relevant health and safety legislation, codes of practice and any other appropriate standards, policies, procedures and documentations notified by the Commissioner. This will include, but is not limited to, the following: (a) Health and Safety at Work etc Act 1974; (b) Management of Health and Safety at Work Regulations 1999; (c) Workplace (Health, Safety and Welfare) Regulations 1992; (d) Control of Substances Hazardous to Health Regulations 2002; (e) Provision and Use of Work Equipment Regulations 1998; (f) Personal Protective Equipment at Work Regulations 1992; (g) Construction (Design and Management) Regulations 2007; (h) Electricity at Work Regulations 1989; (i) Personal Protective Equipment Regulations 2002; (j) Work at Heights Regulations 2005; (k) any legislation which is equivalent to any of the legislation referred to in this clause D6.1 and which is in force in any other jurisdiction in which any activities are carried out under or in connection with the Contract by the Trainer. D6.2 The Trainer shall provide applicable hazard information such as material safety data sheets and shall inform the Commissioner of all regulations, guidance and significant risk (statutory or otherwise) which the Trainer knows or believes to be associated with the Services, and/or any combination of the Services with any other product or service. D6.3 The Trainer shall indemnify the Commissioner against all liability and loss related to any third party claim which arises from the act or omission of the Trainer resulting in the alleged release of any waste, hazardous substance or other pollutant. D6.4 The Trainer shall notify the Commissioner of past enforcement action taken against the Trainer and provide such details of prosecutions, fines, accident history and frequency rate as may be considered necessary by the Authority. D6.5 The Commissioner shall be entitled, acting through its authorised officers and health and safety advisors, to suspend the performance by the Trainer of some or all of its obligations under the Contract in the event of non-compliance by the Trainer of its obligations under this clause D6. The Trainer shall not resume performance of the suspended obligations until notified that the Commissioner is satisfied that the relevant non-compliance has been rectified. D6.6 The Trainer acknowledges and agrees that any breach of its obligations under this clause D6, including any persistent, minor breaches, may (at the Authoritys discretion) have the following consequences (without limitation); (a) the exercise of rights on the part of the Commissioner to suspend the performance by the Trainer of some or all of its obligations under the Contract or terminate the Contract; (b) to the extent permitted by applicable laws, the imposition of restrictions on the Trainer from working on any other contract with the Commissioner until improvements to its health and safety practices have been made and suitable evidence of such has been provided to the Authority; (c) to the extent permitted by applicable laws, the removal of the Trainer from the Commissioners approved/select lists. D6.7 The Trainer shall provide the Commissioner on request with a copy of its health and safety policy, risk assessments, method statements and safe systems and procedures. Notwithstanding this, the Trainer comply at all times with the Commissioners health and safety policies and safety rules in so far as it or they are relevant to the Contract. D6.8 The Trainer shall comply with any health and safety related conditions stipulated by the Commissioner from time to time. Such conditions shall override details contained in the Trainers internal documentation. D6.9 The Trainer shall notify the Commissioner in writing without delay of all incidents, which either could have lead, or did lead, to injury and/or damage. All accidents involving the Trainer must be reported by completion of an Accident Report form in the Commissioners standard form, which will be provided by the Commissioner and which must then be immediately forwarded to the Commissioner Contact. The Commissioner Contact must be advised of all occurrences at the earliest opportunity. The Commissioner reserves the right to investigate all accidents occurring within the Premises and the Trainer shall co-operate fully with such investigations. D6.10 The Trainer shall act as co-ordinator between both Parties for matters of health and safety arising out of the Contract. D6.11 The Trainer represents and warrants to the Commissioner that it has satisfied itself that all necessary tests and examinations have been made or will be made prior to the delivery of the Services to ensure that the provision of the Services are designed to be safe and without risk to the health and safety of persons. D6.12 The Trainer shall undertake risk assessments on Premises and activities included in the Contract. Where an assessed risk may also affect other persons at the Premises, the Trainer shall provide a copy of the assessment to the Commissioner Contact. The Trainer shall undertake risk assessments to ascertain whether the nature or the location of any duties upon which the Trainer shall be engaged in the provision of the Contract make the wearing of any special or protective clothing and footwear necessary or appropriate, and where this is the case the Trainer shall obtain and wear such clothing or footwear, at the Trainers sole expense. D6.13 The Trainer shall hold the following documents and ensure that they are accurately maintained: The Trainers Health and Safety Policy; Arrangements in place to cover health and safety; The Trainers Health and Safety training programme; Risk Assessment Programme; Risk Assessments, including but not limited to general assessments, manual handling, DSE, COSHH, First Aid, Fire; Health and safety training records, including: Risk Assessment Manual Handling DSE COSHH First Aid Fire Warden Evidence of communication of risks identified; Evidence of application of appropriate controls; Fire prevention and fire evacuation programme; Evidence of systems of monitoring standard of health and safety. D6.14 Upon request by the Commissioner, the Trainer shall supply evidence of any or all documentation listed in clause D6.13. D7 Welsh Language D7.1 Where applicable, the Trainer shall comply with the provisions of the Welsh Language Act 1993 and with the provision of the Commissioners Welsh Language Scheme in the provision of the Service. D8 Indemnity for Breach of Clause D Statutory Obligations and Regulations D8.1 The Trainer shall fully indemnify the Commissioner and the Chief Constable against any actions, claims, loss, proceedings, demands, damages, charges or other costs (including legal costs and disbursements on a solicitor own client basis) arising from any breach of any provision of clauses D1 D7 inclusive. E PROTECTION OF INFORMATION E1 Data Protection Act E1.1 For the purposes of this Clause E1, the terms Data Controller, Data Processor, Data Subject, Personal Data, Process and Processing shall have the meaning prescribed under the DPA. E1.2 The Trainer shall comply with any notification requirements under the DPA and both Parties will duly observe all their obligations under the DPA which arise in connection with the Contract. E1.3 Notwithstanding the general obligation in clause E1.2, where the Trainer is processing Personal Data as a Data Processor for the Commissioner the Trainer shall: (a) process the Personnel Data only in accordance with instructions from the Commissioner (which may be specific instructions or instructions of a general nature) as set out in this Contract or as otherwise notified by the Commissioner; comply with all applicable laws; process the Personal Data only to the extent; and in such manner as is necessary for the provision of the Trainers obligations under this Contract 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; not cause or permit the Personal Data to be transferred outside of the European Economic Area without the prior consent of the Commissioner; (f) not publish disclose or divulge any of the Personal Data to any third parties unless directed in writing to do so by the Commissioner; (g) not disclose Personnel Data to any third parties in any circumstances other than with the written consent of the Commissioner or in compliance with a legal obligation imposed upon the Commissioner; and (h) notify the Commissioner (within 5 Working Days) if it receives a request from a Data Subject to have access to that persons Personal Data or a complaint or request relating to the Commissioners obligations under the DPA. E1.4 The provision of this Clause E1 shall apply during the Contract Period and indefinitely after its expiry. E1.5 The Trainer shall fully indemnify the Commissioner and Chief Constable against any actions, claims, loss, proceedings, demands, damages, charges or other costs (including legal costs and disbursements on a solicitor own client basis) arising from any breach of any provision of this clause E1. E2 Official Secrets Acts 1911 to 1989, S182 of the Finance Act 1989 E2.1 The Trainer shall comply with the provisions of: the Official Secrets Acts 1911 to 1989; and (b) Section 182 of the Finance Act 1989. E2.2 In the event that the Trainer fails to comply with this clause E2, the Commissioner reserves the right to terminate the Contract by giving notice in writing to the Trainer. E2.3 The Trainer shall fully indemnify the Commissioner and Chief Constable against any actions, claims, loss, proceedings, demands, damages, charges or other costs (including legal costs and disbursements on a solicitor own client basis) arising from any breach of any provision of this clause E2. E3 Confidential Information E3.1 Except to the extent set out in this clause E3 or where disclosure is expressly permitted elsewhere in this Contract, each Party shall: (a) treat all Confidential Information belonging to the other Party as confidential and use all reasonable endeavours to prevent their staff from making any disclosure to any person of any such Confidential Information; and (b) not disclose any Confidential Information belonging to the other Party to any other person without the prior written consent of the other Party, except to such persons and to such extent as may be necessary for the performance of either Partys obligations under the Contract or except where disclosure is otherwise expressly permitted by the provisions of the Contract. E3.2 Clause E3.1 shall not apply to the extent that the disclosing party can show by reference to written records that: (a) such disclosure is a requirement of Law placed upon the Party making the disclosure, including any requirements for disclosure under the FOIA or the Environmental Information Regulations; (b) such information was in the possession of the Party making the disclosure without obligation of confidentiality prior to its disclosure by the information owner; (c) such information was obtained from a third party without obligation of confidentiality; (d) such information was already in the public domain at the time of disclosure otherwise than by a breach of this Contract; or (e) it is independently developed without access to the other Party's Confidential Information. E3.3 The Trainer shall not use any of the Commissioner's Confidential Information received otherwise than for the purposes of this Contract. E3.4 The Trainer shall ensure that its professional advisors and consultants are aware of and comply with the Trainers confidentiality obligations under the Contract. Where it is considered necessary in the opinion of the Commissioner, the Trainer shall ensure its professional advisors and/or consultants give a confidentiality undertaking before beginning work in connection with the Contract on terms equivalent to those set out in this Agreement. Such undertaking shall ensure that such professional advisors and consultants are bound in every respect as the Contract is bound by the terms of this Agreement. E3.5 Nothing in this Contract shall prevent the Commissioner from disclosing any Confidential Information obtained from the Trainer: (a) to any Crown Body or any other Contracting Authority. 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; (b) to any consultant, Trainer or other person engaged by the Commissioner or any person conducting an Office of Government Commerce gateway review; (c) for the purpose of the examination and certification of the Commissioner 's accounts; or (d) for any examination pursuant to Section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which the Commissioner has used its resources. E3.6 The Commissioner shall use all reasonable endeavours to ensure that any government department, Contracting Authority, employee, third party or sub-Trainer to whom the Trainer's Confidential Information is disclosed pursuant to clause E3.5 is made aware of the Commissioner's obligations of confidentiality. E3.7 Nothing in this clause E3 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 use does not result in a disclosure of the other Party's Confidential Information or an infringement of Intellectual Property Rights. E3.8 In the event that the Trainer fails to comply with clauses E3.1 to E3.4, the Commissioner reserves the right to terminate the Contract with immediate effect by notice in writing. E3.9 Clauses E3.1 to E3.5 are without prejudice to the application of the Official Secrets Acts 1911 to 1989 to any Confidential Information. E3.10 In order to ensure that no unauthorised person gains access to any Confidential Information or any data obtained in the supply of the Services under the Contract, the Trainer undertakes to maintain adequate security arrangements that meet the requirements of professional standards, best practice and any requirements specified by the Commissioner. E3.11 The Trainer shall immediately notify the Commissioner of any breach of security in relation to Confidential Information and all data obtained in the supply of the Services under the Contract and will keep a record of such breaches. The Trainer shall use its best endeavours to recover such Confidential Information or data howsoever it may be recorded. This obligation is in addition to the Trainers obligations under clauses E3.1 to E3.4. The Trainer shall co-operate with the Commissioner in any investigation that the Commissioner considers necessary to undertake as a result of any breach of security in relation to Confidential Information or data. E3.12 The Trainer shall, at its own expense, alter any security systems at any time during the Contract Period at the Commissioners request if the Commissioner reasonably believes the Trainer has failed to comply with clause E3.10. E3.13 The Trainer shall fully indemnify the Commissioner and Chief Constable against any actions, claims, loss, proceedings, demands, damages, charges or other costs (including legal costs and disbursements on a solicitor own client basis) arising from any breach of any provision of this clause E3. E4 Freedom of Information E4.1 The Trainer acknowledges that the Commissioner is subject to the requirements of the FOIA and the Environmental Information Regulations and shall assist and cooperate with the Commissioner to enable the Commissioner to comply with its Information disclosure obligations. E4.2 The Trainer shall: (a) transfer to the Commissioner all Requests for Information (RFI) that it receives as soon as practicable and in any event within 2 Working Days of receiving a RFI; (b) provide the Commissioner with a copy of all information the subject of a RFI in its possession, or power in the form that the Commissioner requires within 5 Working Days (or such other period as the Commissioner may specify) of the Commissioner 's request; and (c) provide all necessary assistance as reasonably requested by the Commissioner to enable the Commissioner to respond to the Request for Information within the time for compliance set out in section 10 of the FOIA or Regulation 5 of the Environmental Information Regulations. E4.3 The Commissioner shall be responsible for determining in its absolute discretion and notwithstanding any other provision in this Contract or any other agreement whether the Commercially Sensitive Information and/or any other Information is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Information Regulations E4.4 In no event shall the Trainer respond directly to a RFI unless expressly authorised to do so by the Commissioner. E4.5 The Trainer acknowledges that (notwithstanding the provisions of clause E4) the Commissioner may, acting in accordance with the Secretary of State for Constitutional Affairs Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the Freedom of Information Act 2000 (the Code), be obliged under the FOIA, or the Environmental Information Regulations, to disclose information concerning the Trainer or the Services in certain circumstances: without consulting the Trainer; or following consultation with the Trainer and having taken their views into account; provided always that where clause E4.5(a) applies the Commissioner shall, in accordance with any recommendations of the Code, take reasonable steps, where appropriate, to give the Trainer advanced notice, or failing that, to draw the disclosure to the Trainers attention after any such disclosure. E4.6 The Trainer shall ensure that all Information is retained for disclosure and shall permit the Commissioner to inspect such records as requested from time to time. E4.7 The Trainer acknowledges that the Commercially Sensitive Information listed in the Commercially Sensitive Information Schedule is of indicative value only and that the Commissioner may be obliged to disclose it in accordance with this clause E4. E4.8 The Trainer shall fully indemnify the Commissioner and Chief Constable against any actions, claims, loss, proceedings, demands, damages, charges or other costs (including legal costs and disbursements on a solicitor own client basis) arising from any breach of any provision of this clause E4. E5 Publicity, Media and Official Enquiries E5.1 The Trainer shall not make any press announcement or publicise the Contract or any part thereof in any way, except with the Approval of the Commissioner. E6 Security E6.1 The Commissioner shall maintain the security of the Premises in accordance with its own security requirements from time to time. The Trainer shall comply with all applicable security requirements of the Commissioner in respect of the Premises and/or in respect of any Confidential Information of the Commissioner (including documents containing confidential and/or secret information) which is in the possession and/or control of the Trainer from time to time. E6.2 The Commissioner shall provide to the Trainer, upon request, copies of its written security procedures and may afford the Trainer, upon reasonable request, with an opportunity to inspect its physical security arrangements. E7 Intellectual Property Rights E7.1 Subject to clause E7.11, all Intellectual Property Rights in any training materials, guidance, specifications, instructions, toolkits, plans, data, drawings, databases, patents, patterns, models, designs and/or other material (the "IP Materials"): (a) furnished to or made available to the Trainer by or on behalf of the Commissioner shall remain the property of the Commissioner; and (b) prepared by or for the Trainer on behalf of the Commissioner for use, or intended use, in relation to the performance by the Trainer of its obligations under the Contract shall belong to the Commissioner; and the Trainer shall not (except when necessary for the performance of the Contract) without Approval, use or disclose any Intellectual Property Rights in the IP Materials. E7.2 The Trainer hereby assigns to the Commissioner with full title guarantee, all Intellectual Property Rights which may subsist in the IP Materials prepared in accordance with clause E7.1(b). This assignment shall take effect on the Commencement Date or as a present assignment of future rights that shall take effect immediately on the coming into existence of the Intellectual Property Rights produced by the Trainer. The Trainer shall execute all documentation necessary to execute this assignment at the Trainers expense. E7.3 The Trainer shall waive or procure a waiver of any moral rights subsisting in all Intellectual Property produced by the Contract or the performance of the Contract. E7.4 The Trainer shall ensure that the third party owner of any Intellectual Property Rights that are or which may be used to perform the Contract grants to the Commissioner a non-exclusive licence or, if itself a licensee of those rights, shall grant to the Commissioner an authorised sub-licence, to use, reproduce, modify, develop and maintain the Intellectual Property Rights in the same. Such licence or sub-licence shall be non-exclusive, perpetual, royalty free and irrevocable and shall include the right for the Commissioner to sub-license, transfer, novate or assign to another body as set out in clause F1.8, the Replacement Trainer or to any other third party supplying services to the Commissioner. E7.5 The Trainer shall not infringe any Intellectual Property Rights of any third party in supplying the Services and the Trainer shall, during and after the Contract Period, indemnify and keep indemnified and hold the Commissioner and/or the Crown harmless from and against all actions, suits, claims, demands, losses, charges, damages, costs and expenses and all other liabilities which the Commissioner or the Crown may suffer or incur as a result of or in connection with any breach of this clause, except where any such claim arises from: (a) items or materials based upon designs supplied by the Commissioner and/or the Crown; or (b) the use of data supplied by the Commissioner and/or the Crown which is not required to be verified by the Trainer under any provision of the Contract. E7.6 The Commissioner shall notify the Trainer in writing of any claim or demand brought against the Commissioner for infringement or alleged infringement of any Intellectual Property Right in materials supplied, licensed and/or sub-licensed by the Trainer. E7.7 The Trainer shall at its own expense conduct all negotiations and any litigation arising in connection with any claim for breach of Intellectual Property Rights in materials supplied, licensed and/or sub-licensed by the Trainer, provided always that the Trainer: (a) shall consult the Commissioner on all substantive issues which arise during the conduct of such litigation and negotiations; (b) shall take due and proper account of the interests of the Commissioner; and (c) shall not settle or compromise any claim without the Commissioners Approval (such consent not to be unreasonably withheld or delayed). E7.8 The Commissioner shall at the request of the Trainer afford to the Trainer all reasonable assistance for the purpose of contesting any claim or demand made or action brought against the Commissioner or the Trainer by a third party for infringement or alleged infringement of any third party Intellectual Property Rights in connection with the performance of the Trainers obligations under the Contract and the Trainer shall indemnify the Commissioner for all costs and expenses (including, but not limited to, legal costs and disbursements) incurred in doing so. The Trainer shall not, however, be required to indemnify the Commissioner in relation to any costs and expenses incurred in relation to or arising out of a claim, demand or action which relates to the matters in clause E7.5 (a) or (b). E7.9 Subject to the conditions of clause E7.7 being met by the Trainer in respect of any negotiations or litigation undertaken by the Trainer in accordance with clause E7.7, the Commissioner shall not (without the Approval of the Trainer, such consent not to be unreasonably withheld or delayed), make any admissions which may be prejudicial to the defence or settlement of any claim, demand or action for infringement or alleged infringement of any Intellectual Property Right by the Commissioner or the Trainer in connection with the performance of its obligations under the Contract. E7.10 If a claim, demand or action for infringement or alleged infringement of any Intellectual Property Right is made in connection with the Contract or in the reasonable opinion of the Trainer is likely to be made, the Trainer shall notify the Commissioner and, at its own expense and subject to the Approval of the Commissioner (not to be unreasonably withheld or delayed), use its best endeavours to: (a) modify any or all of the Services without reducing the performance or functionality of the same, or substitute alternative Services of equivalent performance and functionality, so as to avoid the infringement or the alleged infringement, provided that the provisions herein shall apply mutatis mutandis to such modified Services or to the substitute Services; or (b) procure a licence to use and supply the Services, which are the subject of the alleged infringement, on terms which are acceptable to the Commissioner, and in the event that the Trainer is unable to comply with clauses E7.10(a) or (b) within 20 Working Days of receipt of the Trainers notification the Commissioner may terminate the Contract with immediate effect by notice in writing. E7.11 The Trainer grants to the Commissioner a royalty-free, irrevocable and non-exclusive licence (with a right to sub-licence) to use any Intellectual Property Rights that the Trainer owned or developed prior to the Commencement Date and which the Commissioner reasonably requires in order exercise its rights and take the benefit of this Contract including the Services provided. E7.12 The Trainer shall fully indemnify the Commissioner (and the Chief Constable) against any actions, claims, loss, proceedings, demands, damages, charges or other costs (including legal costs and disbursements on a solicitor own client basis) arising from any breach of any provision of this clause E7. E8 Audit E8.1 The Trainer shall keep and maintain, until six years after the Contract has been completed to the satisfaction of the Commissioner or otherwise terminated, records of all Services supplied under the Contract, all expenditures which are reimbursable by the Commissioner and of the hours worked and costs incurred by the Trainer in connection with the Contract. The Trainer shall on request afford the Commissioner or its representatives such access to those records as may be required by the Commissioner in connection with the Contract. E8.2 The Trainer shall, if so required by the Commissioner, permit representatives of the National Assembly for Wales, National Audit Office, the European Commissioner or the European Court of Auditors, to examine their records at all reasonable times and shall, if required by such an organisation, provide appropriate oral and/or written explanation thereof. E8.3 The Trainer shall grant to the Commissioner, Association of Chief Police Officers, any statutory auditors of the Commissioner together with other similar professional advisors of the Commissioner and their respective authorised agents the right of reasonable access to such records and/or materials used in connection with this Contract, and shall provide all reasonable assistance at all times during the currency of this Contract for the purposes of carrying out an audit of the Trainers compliance with this Contract, including its activities, the calculation of charges in accordance with the terms of the Contract, performance security and integrity in connection therewith. E8.4 Without prejudice to the foregoing, in the event of any investigation into suspected fraudulent activity or other impropriety by the Trainer or any third party the Commissioner reserves for itself, any statutory auditors of the Commissioner and their respective authorised agents the right of immediate access to such records and/or materials described in clauses E8.1 and E8.3 above, and the Trainer agrees to render all assistance necessary to the conduct of such investigation at all times during the currency of the Contract or at any time thereafter. For the avoidance of doubt, the Trainer shall only be repaid its reasonable expenses incurred in giving assistance pursuant to this clause E8.4 in the event that the result of such investigation reveals no fraudulent activity or other impropriety by the Trainer, its servants, agents or sub-Trainers. F. CONTROL OF THE CONTRACT F1 Transfer and Sub-Contracting F1.1 The Trainer shall not assign, sub-contract or in any other way dispose of the Contract or any part of it. F1.2 Subject to clause F1.4, the Commissioner may assign, novate or otherwise dispose of its rights and obligations under the Contract or any part thereof to: (a) any Contracting Authority; or (b) any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Commissioner (including, without limitation any body established pursuant to the provisions of the Police Reform and Social Responsibility Act 2011); or (c) any private sector body which substantially performs the functions of the Commissioner, provided that any such assignment, novation or other disposal shall not increase the burden of the Trainers obligations under the Contract. F1.3 Any change in the legal status of the Commissioner such that it ceases to be a Contracting Authority shall not, subject to clause F1.2, affect the validity of the Contract. In such circumstances, the Contract shall bind and inure to the benefit of any successor body to the Commissioner. F1.4 If the rights and obligations under the Contract are assigned, novated or otherwise disposed of pursuant to clause F1.2 to a body which is not a Contracting Authority or if there is a change in the legal status of the Commissioner such that it ceases to be a Contracting Authority (unless such change is pursuant to the provisions of the Police Reform and Social Responsibility Act 2011) (in the remainder of this clause both such bodies being referred to as the Transferee): (a) the rights of termination of the Commissioner in clauses H1 shall be available to the Trainer in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and (b) the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under the Contract or any part thereof with the prior consent in writing of the Trainer (such consent not to be unreasonably withheld or delayed). F1.5 The Commissioner may disclose to any Transferee any Confidential Information of the Trainer which relates to the performance of the Trainers obligations under the Contract. In such circumstances the Commissioner shall authorise the Transferee to use such Confidential Information only for purposes relating to the performance of the Trainers obligations under the Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Confidential Information. F1.6 Each Party shall at its own cost and expense carry out, or use all reasonable endeavours to ensure the carrying out of, whatever further actions (including the execution of further documents) the other Party reasonably requires from time to time for the purpose of giving that other party the full benefit of the provisions of the Contract. F2 Waiver F2.1 The failure of either Party to insist upon strict performance of any provision of the Contract, or the failure of either Party to exercise, or any delay in exercising, any right or remedy shall not constitute a waiver of that right or remedy and shall not cause a diminution of the obligations established by the Contract. F2.2 No waiver shall be effective unless it is expressly stated to be a waiver and communicated to the other Party in writing in accordance with clause A5. F2.3 A waiver of any right or remedy arising from a breach of the Contract shall not constitute a waiver of any right or remedy arising from any other or subsequent breach of the Contract. F3 Variation F3.1 Subject to the provisions of this clause F3, the Commissioner may request a variation to Schedule 2 (such a change is hereinafter called a Variation). F3.2 The Commissioner may request a Variation by notifying the Trainer in writing of the Variation and giving the Trainer sufficient information to assess the extent of the Variation and consider whether any change to the Contract Price is required in order to implement the Variation. The Commissioner shall specify a time limit within which the Trainer shall respond to the request for a Variation. Such time limits shall be reasonable having regard to the nature of the Variation. If the Trainer accepts the Variation it shall confirm the same in writing. F3.3 In the event that the Trainer is unable to accept the Variation to Schedule 2 or where the Parties are unable to agree a change to the Contract Price, the Commissioner may; (a) allow the Trainer to fulfil its obligations under the Contract without the variation to Schedule 2; (b) terminate the Contract with immediate effect, except where the Trainer has already delivered all or part of the Services or where the Trainer can show evidence of substantial work being carried out to fulfil the requirements of Schedule 2; and in such case the Parties shall attempt to agree upon a resolution to the matter. Where a resolution cannot be reached, the matter shall be dealt with under the Dispute Resolution procedure detailed at clause I2. F3.4 No variation of the Contract shall be valid unless effected in accordance with clause F3.2 (in respect of Variations) or otherwise expressly agreed in writing by the Commissioner and communicated to the other Party in writing in accordance with clause A5. F4 Severability F4.1 If any provision of the Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of the Contract shall continue in full force and effect as if the Contract had been executed with the invalid, illegal or unenforceable provision eliminated. F5 Remedies in the event of inadequate performance F5.1 Where a complaint is received about the standard of Services or about the manner in which any Services have been supplied or work has been performed or about the materials or procedures used or about any other matter connected with the performance of the Trainers obligations under the Contract, then the Commissioner shall notify the Trainer, and where considered appropriate by the Commissioner, investigate the complaint. The Commissioner may, in its sole discretion, uphold the complaint and take further action in accordance with clause H2 of the Contract. F5.2 In the event that the Commissioner is of the reasonable opinion that there has been a material breach of the Contract by the Trainer, then the Commissioner may, without prejudice to its rights under clause H2, do any of the following: (a) without terminating the Contract, itself supply or procure the supply of all or part of the Services until such time as the Trainer shall have demonstrated to the reasonable satisfaction of the Commissioner that the Trainer will once more be able to supply all or such part of the Services in accordance with the Contract and in such circumstances the Commissioner shall have no liability to pay the Contract Price in respect of those Services which the Commissioner has itself supplied or procured; (b) without terminating the whole of the Contract, terminate the Contract in respect of part of the Services only (whereupon a corresponding reduction in the Contract Price shall be made) and thereafter itself supply or procure a third party to supply such part of the Services; and/or (c) terminate, in accordance with clause H2, the whole of the Contract. F5.3 Without prejudice to its rights under clause C3, the Commissioner may charge the Trainer for any costs reasonably incurred and any reasonable administration costs in respect of the supply of any part of the Services by the Commissioner or a third party to the extent that such costs exceed the payment which would otherwise have been payable to the Trainer for such part of the Services and provided that the Commissioner uses its reasonable endeavours to mitigate any additional expenditure in obtaining replacement Services. F5.4 If the Trainer fails to supply any of the Services in accordance with the provisions of the Contract and such failure is capable of remedy, then the Commissioner shall instruct the Trainer to remedy the failure and the Trainer shall at its own cost and expense remedy such failure (and any damage resulting from such failure) within 10 Working Days or such other period of time as the Commissioner may direct. F5.5 In the event that: (a) the Trainer fails to comply with clause F5.4 above and the failure is materially adverse to the interests of the Commissioner or prevents the Commissioner from discharging a statutory duty; or (b) the Trainer persistently fails to comply with clause F5.4 above, the Commissioner may terminate the Contract with immediate effect by notice in writing. F6 Remedies Cumulative F6.1 Except as otherwise expressly provided by the Contract, all rights and remedies available to either Party for breach of the Contract or otherwise are cumulative and may be exercised concurrently or separately, and the exercise of any one right or remedy shall not be deemed an election of such right or remedy to the exclusion of (and shall be without prejudice to the availability of) any other right or remedy. F7 Monitoring of Contract Performance F7.1 Where applicable, the Trainer shall comply with the monitoring arrangements set out in Schedule 2 or, if used, the Monitoring Schedule including, but not limited to, providing such data and information as the Trainer may be required to produce under the Contract. F8 Entire Agreement F8.1 The Contract constitutes the entire agreement between the Parties in respect of the matters dealt with therein. The Contract supersedes all prior negotiations between the Parties and the Trainer acknowledges and agrees that it has not been induced to enter into the Contract in reliance upon (and in connection with the Contract does not have any remedy and waives all rights in respect of) any warranty, representation, statement, agreement or undertaking of any nature whatsoever, whether written or oral, other than as expressly set out in the Contract, except that this clause shall not exclude liability in respect of any Fraud or fraudulent misrepresentation. F8.2 In the event of, and only to the extent of, any conflict or inconsistency between the clauses of the Contract, the Schedules and/or any document referred to in or attached to the Contract, Schedules, and/or any document, the conflict shall be resolved in accordance with the following order of precedence: (a) the clauses of the Contract; (b) the Schedules; and (c) any other document referred to in or attached to the Contract. F8.3 No terms or conditions put forward at any time by the Trainer shall form any part of the Contract. F9 Counterparts F9.1 This Contract may be executed in counterparts, each of which when executed and delivered shall constitute an original but all counterparts together shall constitute one and the same instrument. G LIABILITIES G1 Liability, Indemnity and Insurance G1.1 Neither Party excludes or limits liability to the other Party for or in respect of: (a) death or personal injury caused by its negligence; or (b) Fraud; or (c) fraudulent misrepresentation; or (d) any breach of any obligations implied by Section 2 of the Supply of Goods and Services Act 1982; or (e) any liability arising under any indemnity provision in the Contract, save as expressly provided for in the Contract. G1.2 Subject to clauses G1.4 and G1.5, the Trainer shall indemnify the Commissioner and keep the Commissioner indemnified fully against all claims, proceedings, actions, damages, costs, expenses and any other liabilities which may arise out of, or in consequence of, the supply, or the late or purported supply, of the Services or the performance or non-performance by the Trainer of its obligations under the Contract or the presence of the Trainer on the Premises, 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 Trainer, or any other loss which is caused directly or indirectly by any act or omission of the Trainer. G1.3 The Trainer shall 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 Commissioner or by breach by the Commissioner of its obligations under the Contract. G1.4 Without prejudice to the Trainers liability pursuant to clause G1.1, the Trainer shall effect and maintain for the Contract Period with a reputable insurance company or companies acceptable to the Commissioner a policy or policies of insurance covering all the matters which are the subject of the indemnities and undertakings on the part of the Trainer contained in the Agreement and against all actions, claims, demands, costs and expenses in respect thereof, in the sum of 5,000,000 at least in respect of any one incident and unlimited in total unless otherwise agreed by the Commissioner in writing. G1.5 The Trainer shall have in force with a reputable insurance company or companies acceptable to the Commissioner in the following amounts unless otherwise specified by the Commissioner in Schedule 1: (a) employers liability insurance in accordance with any legal requirements for the time being in force, in the sum of not less than 10,000,000; and public liability insurance in the sum of not less than 5,000,000 for any one incident and unlimited in total, unless otherwise agreed by the Commissioner in writing; and professional indemnity insurance in the sum of not less than 1,000,000 for any one incident and unlimited in total; and such insurance shall be maintained for the Contract Period and for a minimum of 6 years following the expiration or earlier termination of the Contract. G1.6 Save as otherwise provided in the Contract and subject always to clause G1.1, in no event shall the Commissioner be liable to the Trainer: (a) loss of profits, business, revenue or goodwill; and/or (b) loss of savings (whether anticipated or otherwise); and/or (c) indirect or consequential loss or damage. G1.7 The Trainer shall not exclude liability for additional operational, administrative costs and/or expenses or wasted expenditure resulting from any Default on the part of the Trainer. G1.8 The Trainer shall give the Commissioner, on request, copies of all insurance policies referred to in this clause G1 or a brokers verification of insurance to demonstrate that the appropriate cover is in place, together with receipts or other evidence of payment of the latest premiums due under those policies. Inspection and/or receipt of such information shall not constitute acceptance by the Commissioner of the terms thereof, nor be a waiver of the Trainers liability under the Contract. G1.9 If, for whatever reason, the Trainer fails to give effect to and maintain the insurances required by the provisions of the Contract the Commissioner shall be entitled to make alternative arrangements to protect its interests and may recover the costs of such arrangements from the Trainer on written demand, together with any expenses incurred in procuring such insurance. G1.10 The provisions of any insurance or the amount of cover shall not relieve the Trainer of any liabilities or obligations under the Contract. It shall be the responsibility of the Trainer to determine the amount of insurance cover that will be adequate to enable the Trainer to satisfy any liability referred to in clause G1.2. G1.11 In the event that the Commissioner receives a claim relating to the Services or the Contract, the Trainer shall fully co-operate with the Commissioner or its insurers and shall assist them in dealing with such claims (including, without limitation, providing information and documentation in a timely manner and at the Trainers sole expense). G2 Warranties and Representations G2.1 The Trainer warrants and represents that: (a) it has full capacity and authority and all necessary consents to enter into and perform its obligations under the Contract; (b) in entering the Contract it has not committed any Fraud; (c) as at the Commencement Date, all information contained in the Application Form remains true, accurate and not misleading, save as may have been specifically disclosed in writing to the Commissioner prior to execution of the Contract; (d) no claim is being asserted and no litigation, arbitration or administrative proceeding is presently in progress or, to the best of its knowledge and belief, pending or threatened against it or any of its assets which will or might have a material adverse effect on its ability to perform its obligations under the Contract; (e) it is not subject to any contractual obligation, compliance with which is likely to have a material adverse effect on its ability to perform its obligations under the Contract; (f) no proceedings or other steps have been taken and not discharged (nor, to the best of its knowledge, are threatened) for the bankruptcy of the Trainer; (g) it owns or has obtained valid licences for all Intellectual Property Rights that are necessary for the performance of its obligations under the Contract; (h) the Services or any part thereof and/or the Commissioners use and/or possession of all and/or any of the goods provided as part of the Services will not infringe the Intellectual Property Rights of any third party; (i) the Trainer is appropriately experienced, qualified and shall exercise all due skill, care and diligence to provide the Services in accordance with Good Industry Practice; (j) all materials supplied by the Trainer shall of satisfactory quality, fit for all purposes for which all and any such materials are supplied and shall correspond to any description or sample provided by the Trainer to the Commissioner; (k) the training and/or documentation provided by the Trainer in relation to the NDORS shall contain all information necessary to enable the Commissioner to make full and proper use of the Services provided under the Contract. (l) in the 3 years prior to the date of the Contract: (i) it has conducted all financial accounting and reporting activities in compliance in all material respects with the generally accepted accounting principles that apply to it in any country where it files accounts; (ii) it has been in full compliance with all applicable securities and tax laws and regulations in the jurisdiction in which it is domiciled; and (iii) it has not done or omitted to do anything which could have a material adverse effect on its assets, financial condition or its ability to fulfil its obligations under the Contract. G2.2 Each of the warranties set out in this clause G2 shall be construed as a separate warranty and/or condition and shall not be limited by reference to any other warranty and/or condition. H DEFAULT, DISRUPTION AND TERMINATION H1 Termination H1.1 The Commissioner can terminate this agreement at any time by giving 3 calendar months notice in writing to the Trainer. H1.2 The Trainer can terminate this agreement at any time by giving 3 calendar months notice in writing to the Commissioner. H2 Termination on insolvency and change of control H2.1 The Commissioner may terminate the Contract with immediate effect by notice in writing where: (a) an application for an interim order is made pursuant to sections 252-253 of the Insolvency Act 1986 or a proposal is made for any composition scheme or arrangement with, or assignment for the benefit of, the Trainers creditors; or (b) a petition is presented and not dismissed within 10 Working Days or order made for the Trainers bankruptcy; or (c) a receiver, or similar officer is appointed over the whole or any part of the Trainers assets or a person becomes entitled to appoint a receiver, or similar officer over the whole or any part of his assets; or (d) the Trainer is unable to pay his debts or has no reasonable prospect of doing so, in either case within the meaning of section 268 of the Insolvency Act 1986; or (e) a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Trainers assets and such attachment or process is not discharged within 10 Working Days; or (f) he dies or is adjudged incapable of managing his affairs within the meaning of Part VII of the Mental Capacity Act 2005; or (g) he suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of his business. H3 Termination on Default H3.1 The Commissioner may terminate the Contract by written notice to the Trainer with immediate effect if the Trainer commits a Default and if: (a) the Trainer has not remedied the Default to the satisfaction of the Commissioner within 10 Working Days, or such other period as may be specified by the Commissioner, after issue of a written notice specifying the Default and requesting it to be remedied; or (b) the Default is not, in the opinion of the Commissioner, capable of remedy; or (c) the Default is a material breach of the Contract, or (d) the Default relates to a failure to meet and/or rectify performance in respect of particular delivery timescales, service levels or key performance indicators and the failure in question is of a severity that permits the Commissioner by reference to other provisions in the Contract (whether in a Schedule or otherwise) to terminate the Contract. H3.2 In the event that through any Default of the Trainer, data transmitted or processed in connection with the Contract is either lost or sufficiently degraded as to be unusable, the Trainer shall be liable for the cost of reconstitution of that data and shall reimburse the Commissioner in respect of any charge levied for its transmission and any other costs charged in connection with such Default. H4 Break H4.1 The Commissioner shall have the right to terminate the Contract at any time with immediate effect on giving notice to the Trainer if there is a risk, or the Commissioner reasonably considers that there is a risk, of the Commissioners reputation being damaged if the Contract was to continue in force. H4.2 The decision of the Commissioner to terminate the Contract under this clause H3 is at its reasonable, sole discretion and it is not required to provide any reasoning for such decision. H5 Consequences of Expiry or Termination H5.1 Where the Commissioner terminates the Contract under clauses A7.2, B4.5, D1.3, D2.3, D3.2, D6.6, E2.2, E3.8, E7.10, F5.2, F5.5, H1, H2.1, H3.1 and/or Schedule 2 and then makes other arrangements for the supply of Services, the Commissioner may recover from the Trainer the cost reasonably incurred of making those other arrangements and any additional expenditure incurred by the Commissioner throughout the remainder of the Contract Period. The Commissioner shall take all reasonable steps to mitigate such additional expenditure. H5.2 Where the Contract is terminated under any of the clauses referred to in clause H4.1, no further payments shall be payable by the Commissioner to the Trainer (for Services supplied by the Trainer prior to termination and in accordance with the Contract, but where the payment has yet to be made by the Commissioner), until the Commissioner has established the final cost of making the other arrangements envisaged under this clause. The Trainer shall also return to the Commissioner any sums pre-paid in respect of Services not provided by the date of termination (or expiry). H5.3 Save as otherwise expressly provided in the Contract: (a) termination or expiry of the Contract shall be without prejudice to any rights, remedies or obligations accrued under the Contract prior to termination or expiration and nothing in the Contract shall prejudice the right of either Party to recover any amount outstanding at such termination or expiry; and (b) termination of the Contract shall not affect the continuing rights, remedies or obligations of the Commissioner or the Trainer under clauses C2, C3, D1, D2.3, D3.2, D4.1, D8.1, E1, E2, E3, E4, E5, E6, E7, E8, F6, G1, H4, H6, I1 and I2. H6 Disruption H6.1 The Trainer shall take reasonable care to ensure that in the performance of its obligations under the Contract it does not disrupt the operations of the Commissioner, its employees or any other contractor employed by the Commissioner. H6.2 The Trainer shall immediately inform the Commissioner of any actual or potential industrial action, which affects or might affect its ability at any time to perform its obligations under the Contract. H6.3 In the event of industrial action, the Trainer shall seek Approval to its proposals to continue to perform its obligations under the Contract. H6.4 If the Trainers proposals referred to in clause H5.3 are considered insufficient or unacceptable by the Commissioner (acting reasonably), then the Contract may be terminated with immediate effect by the Commissioner by notice in writing. H7 Recovery upon Termination H7.1 On the termination of the Contract for any reason, the Trainer shall: (a) immediately return to the Commissioner all Confidential Information, Personal Data and IP Materials in its possession which were obtained or produced in the course of providing the Services; (b) immediately deliver to the Commissioner all Property (including materials, documents, information and access keys) provided to the Trainer under clause B7. Such property shall be handed back in good working order (allowance shall be made for fair wear and tear); (c) assist and co-operate with the Commissioner to ensure an orderly transition of the provision of the Services to the Replacement Trainer and/or the completion of any work in progress; (d) promptly provide all information concerning the provision of the Services which may reasonably be requested by the Commissioner for the purposes of adequately understanding the manner in which the Services have been provided or for the purpose of allowing the Commissioner or the Replacement Trainer to conduct due diligence. H7.2 If the Trainer fails to comply with clause H6.1 (a) and (b), the Commissioner may recover possession thereof and the Trainer grants a licence to the Commissioner and/or its appointed agents to enter (for the purposes of such recovery) any premises of the Trainer where any such items may be held. H7.3 Where the end of the Contract Period arises due to the Trainers Default, the Trainer shall provide all assistance under clause H6.1(c) and (d) free of charge. Otherwise, the Commissioner shall pay the Trainers reasonable costs of providing such assistance where requested by the Commissioner and the Trainer shall take all reasonable steps to mitigate such costs. H8 Force Majeure H8.1 Neither Party shall be liable to the other Party for any delay in performing, or failure to perform, its obligations under the Contract (other than a payment of money) to the extent that such delay or failure is a result of Force Majeure. Notwithstanding the foregoing, each Party shall use all reasonable endeavours to continue to perform its obligations under the Contract for the duration of such Force Majeure. However, if such Force Majeure prevents either Party from performing its material obligations under the Contract for a period in excess of 3 Months, either Party may terminate the Contract with immediate effect by notice in writing. H8.2 If either Party becomes aware of Force Majeure which gives rise to, or is likely to give rise to, any failure or delay on its part as described in clause H7.1 it shall immediately notify the other by the most expeditious method then available, inform the other of the period for which it is estimated that such failure or delay shall continue and shall use its best endeavours, acting in accordance with Good Industry Practice, to resume performance of its obligations as quickly as possible to minimise the duration and impact of any such failure or delay. H8.3 The Commissioner shall not be required to pay the Trainer in respect of any period during which (and to the extent that) the Trainer is prevented or delayed in performing its obligations due to Force Majeure. In these circumstances, the Contract Price shall be adjusted and any necessary refund or credit effected in accordance with the Commissioners reasonable instructions. H9 Ineffectiveness H9.1 If at any time a declaration of ineffectiveness is made by a court in respect of the Contract pursuant to regulation 47J of the Public Contracts Regulations 2006 (as amended) then: (a) the provisions of clause H6 and any other provisions in the Contract which are intended to apply on or after the date on which the Contract is terminated for any reason shall apply as if on the date on which the relevant declaration of ineffectiveness is to take effect (and as a result the Contract is to come to an end); (b) the Commissioner shall not be required or liable (on whatever grounds) to pay any compensation or restitution to the Trainer in respect of any loss, damage, costs, expenses or other liabilities suffered or incurred by the Trainer as a result of or in connection with the relevant declaration of ineffectiveness being made, including any loss of revenue or profit that the Trainer might otherwise have generated under the Contract during the Contract Period. H9.2 If at any time an order is made by a court, pursuant to regulation 47N of the Public Contracts Regulations 2006 (as amended), that the duration of the Contract be shortened, then: (a) the provisions of clause H6 and any other provisions in the Contract which are intended to apply on or after the date on which the Contract is terminated for any reason shall apply as if on the date on which the relevant declaration of ineffectiveness is to take effect (and as a result the Contract is to come to an end); (b) the Commissioner shall not be required or liable (on whatever grounds) to pay any compensation or restitution to the Trainer in respect of any loss, damage, costs, expenses or other liabilities suffered or incurred by the Trainer as a result of or in connection with the relevant declaration of ineffectiveness being made, including any loss of revenue or profit that the Trainer might otherwise have generated under the Contract during the Contract Period. I DISPUTES AND LAW I1 Governing Law and Jurisdiction I1.1 Subject to the provisions of clause I2, the Commissioner and the Trainer accept the exclusive jurisdiction of the courts of England and Wales and agree that the Contract and all non-contractual obligations and other matters arising from or connected with it are to be governed and construed according to the laws of England and Wales. I2 Dispute Resolution I2.1 The Parties shall attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with the Contract within 20 Working Days of either Party notifying the other of the dispute and such efforts shall involve the escalation of the dispute to a chief executive (or equivalent) of each Party. I2.2 Nothing in this dispute resolution procedure shall 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. I2.3 If the dispute cannot be resolved by the Parties pursuant to clause I2.1 the Parties shall refer it to mediation pursuant to the procedure set out in clause I2.5 unless (a) the Commissioner considers that the dispute is not suitable for resolution by mediation; or (b) the Trainer does not agree to mediation. I2.4 The obligations of the Parties under the Contract shall not cease, or be suspended or delayed by the reference of a dispute to mediation (or arbitration) and the Trainer shall comply fully with the requirements of the Contract at all times. I2.5 The procedure for mediation and consequential provisions relating to mediation are as follows: (a) a neutral adviser or mediator (the Mediator) shall be chosen by agreement between the Parties or, if they are unable to agree upon a Mediator within 10 Working Days after a request by one Party to the other or if the Mediator agreed upon is unable or unwilling to act, either Party shall within 10 Working Days from the date of the proposal to appoint a Mediator or within 10 Working Days of notice to either Party that he is unable or unwilling to act, apply to the Centre for Effective Dispute Resolution or other mediation provider to appoint a Mediator. (b) The Parties shall within 10 Working Days of the appointment of the Mediator meet with him in order to agree a programme for the exchange of all relevant information and the structure to be adopted for negotiations to be held. If considered appropriate, the Parties may at any stage seek assistance from the Centre for Effective Dispute Resolution or other mediation provider to provide guidance on a suitable procedure. (c) Unless otherwise agreed, all negotiations connected with the dispute and any settlement agreement relating to it shall be conducted in confidence and without prejudice to the rights of the Parties in any future proceedings. (d) If the Parties reach agreement on the resolution of the dispute, the agreement shall be recorded in writing and shall be binding on the Parties once it is signed by their duly authorised representatives. (e) Failing agreement, either of the Parties may invite the Mediator to provide a non-binding but informative written opinion. Such an opinion shall be provided on a without prejudice basis and shall not be used in evidence in any proceedings relating to the Contract without the prior written consent of both Parties. (f) If the Parties fail to reach agreement in the structured negotiations within 60 Working Days of the Mediator being appointed, or such longer period as may be agreed by the Parties, then any dispute or difference between them may be referred to the Courts unless the dispute is referred to arbitration pursuant to the procedures set out in clause I2.6. (g) In the absence of any specific arrangements as to costs which is recorded in accordance with clause I2.5(d), each Party shall bear their own costs and expenses in respect of any mediation. I2.6 Subject to clause I2.2, the Parties shall not institute court proceedings until the procedures set out in clauses I2.1 and I2.3 have been completed save that: (a) the Commissioner may at any time before court proceedings are commenced, serve a notice on the Trainer requiring the dispute to be referred to and resolved by arbitration in accordance with clause I2.7. (b) if the Trainer intends to commence court proceedings, it shall serve written notice on the Commissioner of its intentions and the Commissioner shall have 15 Working Days following receipt of such notice to serve a reply on the Trainer requiring the dispute to be referred to and resolved by arbitration in accordance with clause I2.7. (c) the Trainer may request by notice in writing to the Commissioner that any dispute be referred and resolved by arbitration in accordance with clause I2.7, to which the Commissioner may consent as it sees fit. I2.7 In the event that any arbitration proceedings are commenced pursuant to clause I2.6: (a) the arbitration shall be governed by the provisions of the Arbitration Act 1996; (b) the Commissioner shall give a written notice of arbitration to the Trainer (the Arbitration Notice) stating: (i) that the dispute is referred to arbitration; and (ii) providing details of the issues to be resolved; (c) the London Court of International Arbitration (LCIA) procedural rules in force at the date that the dispute was referred to arbitration in accordance with I2.7 (b) shall be applied and are deemed to be incorporated by reference to the Contract and the decision of the arbitrator shall be binding on the Parties in the absence of any material failure to comply with such rules; (d) the tribunal shall consist of a sole arbitrator to be agreed by the Parties; (e) if the Parties fail to agree the appointment of the arbitrator within 10 Working Days of the Arbitration Notice being issued by the Commissioner under clause I2.7 (b) or if the person appointed is unable or unwilling to act, the arbitrator shall be appointed by the LCIA; (f) the arbitration proceedings shall take place in London or Cardiff and in the English or Welsh language; and (g) the arbitration proceedings shall be governed by, and interpreted in accordance with the laws of England and Wales. J. SECURITY FOR PERFORMANCE J1.1 If required by the Commissioner, the Trainer shall provide a security for its performance, in a form Approved by the Commissioner. This security for performance shall be at the sole discretion of the Commissioner and can take the form, without limitation, of a performance bond and/or bank guarantee. J1.2 In the event of a performance bond being required by the Commissioner, it shall be a condition precedent of this Agreement to become effective that the said performance bond shall be delivered by the Trainer to the Commissioner within fourteen days (or such other period as shall be agreed by the Commissioner) of the execution of this Agreement, failing which, this Agreement shall become null and void. 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