File Note · Web viewCity of York Council of West Offices, Station Rise, York YO1 6GA (the “ Council ” or “ Client ”) 2. NEPRO LIMITED of Sunderland Software Centre, Tavistock

1st June 2015

_________________________________________________________

CALL OFF AGREEMENT

FOR THE NEUTRAL VENDOR SUPPLY OF

SPECIALIST PROFESSIONAL SERVICES

_________________________________________________________

This Agreement (the “Agreement”) is made on the between:

1. City of York Council of West Offices, Station Rise, York YO1 6GA (the “Council” or “Client”)

2. NEPRO LIMITED of Sunderland Software Centre, Tavistock Place, Sunderland,SR1 1PB Company Registration No: 08045123) (“NEPRO Limited”)

RECITALS:

A. NEPRO Limited is currently contracted to the Borough Council of Gateshead representing the North East Purchasing Organisation (“NEPO”) as the Neutral Vendor for Specialist Professional Services (“SPS”) commencing 17th September 2012 continuing until 16th September 2015 with the option of a 12 month extension. The solution is known as “NEPRO”.

B. NEPRO Limited is a consultancy specialising in the neutral provision of professional services and interim management services to clients.

C. The Council have requested that NEPRO Limited provide a Neutral Vendor service via the NEPRO solution to source and contract on behalf of the Council relevant Specialist Professional Service providers (“SPS Providers”) who will assist the Council in fulfilling the outcomes detailed in Work Orders (the “Work Orders”).

D. NEPRO Limited cannot perform the professional services itself or appoint a particular SPS Provider without instruction from the Council (“Neutral Vendor”).

E. This Call-Off Agreement represents the terms upon which NEPRO Limited agree to provide the Services.

IT IS HEREBY AGREED AS FOLLOWS:

Definitions and Interpretation

The following terms shall, unless the context requires otherwise, have the following meanings in this Agreement (including the Recitals and Schedules to it):

“Ad hoc Services” means the services which are provided by NEPRO Limited to the Council which are not Through-Put Services and which may include (without limitation) implementation services, additional training and specification writing and such services will be invoiced to the Council in accordance with clause 4.1.

“Assignments” means the work specified in Work Orders in accordance with the pro forma Work Order set out in Schedule 1.

“Assignment Services” means the services, advice or goods to be provided by the SPS Provider via NEPRO Limited to the Council as specified in Part 1 (Assignment) of any Work Order;

“Background IPR” any and all Intellectual Property Rights that are owned by or licensed to either party and which are or have been developed independently of this Agreement or an Assignment (whether prior to the Commencement Date or otherwise).

“Foreground IPR” any and all Intellectual Property Rights comprised arising from the Services or otherwise pursuant to a Work Order.

“Intellectual Property Rights or IPR” means any and all patents, patent applications, ideas, know-how, trade marks, trade mark applications, trade names, designs, registered copyright, database

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rights, devices and processes and if registerable, whether registered or not, in the methods, systems, documents, material, data or other information, held or provided in any form, created, developed, subsisting or used in connection with this Agreement;

“Services” means all services provided by NEPRO Limited to the Council including Ad hoc Services, Assignment Services and Through-Put Services.

“SPS Provider” means the organisations specified in the Work Orders attached to this Agreement who have been engaged by the Council via NEPRO Limited to carry out an Assignment.

“Through-Put Services” means the services provided by NEPRO Limited to the SPS Providers in relation to solutions provided by SPS Providers to the Council which are not Ad hoc Services.

“Working Day” is any day of the week upon which the SPS Provider fulfils services for the Council in relation to an Assignment, as agreed between the Council and NEPRO Limited and NEPRO Limited and the SPS Provider from time to time.

1 AGREEMENT

1.1 NEPRO Limited will contract with, on behalf of the Council, the SPS Providers as defined and detailed in the relevant Work Order attached to this Agreement.

1.2 As a result of the Through-Put Services and in consideration of the Assignment Services provided by SPS Providers and any subsequent services undertaken by the SPS Providers, the Council will pay to NEPRO Limited the fees as set out in each applicable Work Order plus VAT (the “Assignment Services Fees").

1.3 In consideration of Ad hoc Services and any subsequent services undertaken by NEPRO Limited, the Council will pay to NEPRO Limited the fees set out in each applicable Work Order plus VAT (the “Ad hoc Services Fees").

1.4 Because of the nature of the work to be undertaken by the SPS Provider, both Parties accept that it may be necessary to agree to alter or adapt the Assignment Services and that any additional works required may not be included in the Assignment Services Fees specified in the Work Order. The Parties accept that any changes or additions to the Assignment Services Fees or the terms of this Agreement shall be valid only if agreed in writing by the Council and NEPRO Limited.

1.5 The SPS Provider shall take all reasonable steps to comply with any timescale as specified in the Work Order or other targets for progress or delivery of the whole or any agreed part of the Assignment Services or the completion of the Assignment Services agreed in the Work Order.

1.6 The Council shall notify NEPRO Limited in writing if any deliverables, as specified in the Work Order, fail to meet desired acceptance criteria within 30 days of the deliverable being supplied.

1.7 The SPS Provider may at any time, via NEPRO Limited, and without giving the Council prior notification make any changes to the Assignment Services which are necessary to comply with any applicable safety or other statutory requirements.

2 TERM

2.1 This Agreement will come into force on the date set out at the head of this Agreement ("Commencement Date") and shall continue until 16th September 2016 or until earlier termination in accordance with the terms of this Agreement.

2.2 The term may be extended by 12 months and by mutual consent between the parties. Such an extension will be set out by an extension letter signed by both parties.


3 FEES AND EXPENSES

3.1 The Council agrees to pay NEPRO Limited the Assignment Services Fees and the Ad hoc Services Fees, together with any extraordinary expenses ("Expenses") which the Council has approved and which have been incurred by NEPRO Limited or by the SPS Provider in the performance of the Services.

4 INVOICING

4.1 The Assignment Services Fees, Ad hoc Services Fees and Expenses will be invoiced to the Council by NEPRO Limited in accordance with the arrangements outlined in each Work Order. Fees for Through-Put Services are payable by the SPS Provider, which shall be recoverable by the SPS Provider as part of the Assignment Services Fees.

4.2 All fees and Expenses become due on the date of the invoice and are payable within 30 days.

4.3 The Council shall pay all fees and Expenses in full subject to any deduction, set-off or counterclaim. Any termination of this Agreement will not affect the Council’s obligation to pay for any Assignment Services or Ad hoc Services or work already performed or contracted to be performed pursuant to a Work Order.

4.4 NEPRO Limited reserves the right to charge interest on any overdue amounts at the rate of 3% per annum above the base rate as amended from time to time of Barclays Bank from the due date until the date of payment.

5 OBLIGATIONS OF NEPRO LIMITED

5.1 NEPRO Limited shall use all reasonable endeavours to ensure that each SPS Provider has the expertise, qualifications and necessary experience as appropriate for the Assignment.

5.2 NEPRO Limited confirms that it will comply in all respects with all relevant laws and shall require that SPS Providers are obliged to ensure that the Required Insurances set out in clause 11.1 are taken out and maintained.

6 OBLIGATIONS OF THE COUNCIL

6.1 The Council shall, during the provision of Assignment Services or Ad hoc Services:

6.1.1 ensure reasonable working conditions and facilities are provided for the SPS Provider or NEPRO Limited’s personnel when working on Council premises; and

6.1.2 ensure provision to the SPS Provider and NEPRO Limited of the Council’s regulations, standards, documentation, access to systems and materials applicable to or necessary for provision of the Services.

7 LIABILITY

7.1 The parties acknowledge and agree that the staff and associates of each SPS Provider (including the methods whereby they perform the Assignment Services during the Assignment) are not under the supervision or control of NEPRO Limited.

Subject to clause 7.3, NEPRO Limited’s liability shall be limited to £5,000,000 in annual aggregate.

7.2 Subject to clause 7.3, NEPRO Limited excludes all liability whether in contract, tort, common law or under statute for any:

7.2.1 indirect and consequential loss or damage suffered or incurred by the Council; /tt/file_convert/5ab366967f8b9a00728e164f/document.docx 4

7.2.2 any loss, damage, costs or expenses suffered by the Council as a result of any claim made against the Council by a third party.

7.3 NEPRO Limited does not limit its liability in relation to:

7.3.1 death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors;

7.3.2 fraud by it or its employees; or

7.3.3 any other act or omission, liability for which may not be limited under law.

8 TERMINATION

8.1 The Council may terminate this Agreement, which shall terminate all Work Orders under this Agreement, by written notice to NEPRO Limited:

8.1.1 with three month’s notice and without reason;

8.1.2 with immediate effect if NEPRO Limited is in wilful or material breach (and NEPRO Limited fails to remedy such breach (where capable of remedy) within five Working Days) or persistent breach of its obligations under this Agreement or becomes bankrupt or insolvent; and

8.1.3 in the event that this Agreement is terminated in accordance with clause 8.1.2 above, the Council shall provide to NEPRO Limited full reasons for the termination of this Agreement, to include details of the alleged acts or omissions which have given rise to such termination.

8.2 The Council may terminate any individual Assignment by written notice to NEPRO Limited:

8.2.1 with immediate effect if the SPS Provider has acted in breach of any statutory or other reasonable rules and regulations applicable to them while performing the Assignment Services;

8.2.2 with immediate effect if the Council reasonably believes that the SPS Provider has not observed any applicable condition of confidentiality from time to time;

8.2.3 with 30 day’s notice and without reason subject to Council paying for any Assignment Services or work already performed; or

8.2.4 in the event that an Assignment is terminated in accordance with clause 8.2.1 or 8.2.2, the Council shall provide to NEPRO Limited full reasons for the termination of the Assignment, to include details of the alleged acts or omissions of the SPS Provider (if applicable) which have given rise to such termination.

8.3 NEPRO Limited may terminate this Agreement immediately by notice in writing if the Council is in wilful or persistent breach of its obligations under this Agreement.

9 INTELLECTUAL PROPERTY RIGHTS

9.1 The Background IPR shall remain the absolute property of the owner of such rights at the date of this Agreement. No party will make any representation or do any act which may be taken to indicate that it has any right title or interest in or to the ownership or use of any of the Background IPR of the other party except under the terms of this Agreement, and each party acknowledges that nothing contained in this Agreement shall give it any right, title or interest in or to the Background IPR of the other party save as granted hereby.


9.2 NEPRO Limited, on behalf of each SPS Provider, hereby grants to the Council an irrevocable, non-exclusive, royalty free licence to use the SPS Provider’s Background IPR with a right to grant sub-licences to such third parties as the Council reasonably requires (the “Transferees”) for the purposes of the each Assignment and solely for the purposes of the applicable Work Order and for the duration of the Work Order. NEPRO Limited, on behalf of the SPS Provider, shall not be liable for any use by the Council or the Transferees of any of the Background Intellectual Property for any purpose other than that for which the same were prepared by or on behalf of the SPS Provider.

9.3 The Council hereby grants to NEPRO Limited, on behalf of each SPS Provider a non-exclusive, royalty free licence to use the Council’s Background IPR with a right to sub-licence to such third party sub-contractors as are approved by the Council solely for the purposes of the applicable Work Order and for the duration of the Work Order.

9.4 All Foreground IPR shall remain the sole, exclusive property of the Council and NEPRO Limited acknowledges that nothing contained in this Agreement shall give it any right, title or interest in or to the Foreground IPR save as granted hereby.

9.5 The Council hereby grants to NEPRO Limited, on behalf the SPS Provider a royalty free, non-exclusive licence to use the Council’s Foreground IPR with a right to sub-licence to such third party sub-contractors as are approved by the Council solely for the purposes of the applicable Work Order project and for the duration of this Agreement.

9.6 The parties shall provide all reasonable assistance to each other when reasonably requested to do so by the other for the purposes of ensuring that each party receives the full benefit of the licences of Intellectual Property Rights granted hereunder.

9.7 Both parties warrant to the other that:

9.7.1 it is the exclusive legal and beneficial owner of all right, title and interest in its Background IPR and that there are no liens, encumbrances options or other charges over any of them;

9.7.2 to the best of its knowledge, information and belief the use of its Background IPR by the other party pursuant to this Agreement will not infringe Intellectual Property Rights of any third party.

9.8 Each party shall inform the other of any infringement of any Intellectual Property Rights as soon as reasonably practicable upon such infringement coming to its notice. The party that is the owner of such Intellectual Property Rights shall have the sole conduct of any proceedings in relation to them.

9.9 Each party (the “Indemnifying Party”) will indemnify and hold harmless the other party against any and all liability, loss, damages, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by such other party in respect of any claim or action that the use of the Indemnifying Party’s Background IPR infringes the Intellectual Property Rights of any third party (an “Intellectual Property Infringement”) provided that such other party:

9.9.1 gives notice to the Indemnifying Party of any Intellectual Property Infringement forthwith upon becoming aware of the same;

9.9.2 gives the Indemnifying Party the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the Indemnifying Party; and


9.9.3 acts in accordance with the reasonable instructions of the Indemnifying Party and gives the Indemnifying Party such assistance as it shall reasonably require in respect of the conduct of the said defence.

9.10 NEPRO Limited will, on behalf of each SPS Provider ensure that any copyright materials produced by or on behalf of the Council in connection with the provision of the Assignment Services for the Council are vested in the Council.

10 BRANDING

10.1 The Council gives permission for use of its logo on the NEPRO Limited website and for the sole purposes of reference to the Council with respect to the neutral vendor service.

10.1.1 NEPRO Limited will abide by the Council’s brand guidelines.

10.1.2 If the Council terminates the call-off agreement prior to the contract end date, NEPRO Limited will remove the Council’s logo from the NEPRO website.

11 INSURANCES

11.1 NEPRO Limited (and NEPRO Limited shall procure that each SPS Provider contracted to it pursuant to a Work Order) shall at its own cost effect and maintain with a reputable insurance company a policy or policies of insurance providing an adequate level of cover and as a minimum the following levels of cover:

11.1.1 Public Liability Insurance with a limit of indemnity of not less than £5,000,000.00 in relation to any one claim or series of claims;

11.1.2 Employer's liability insurance with a limit of indemnity of not less than £5,000,000.00 in relation to any one claim or series of claims; and

11.1.3 Professional Indemnity insurance with a limit of indemnity of not less than £5,000,000 in relation to any one claim or series of claims and NEPRO Limited shall procure that all SPS Providers involved in the provision of the Assignments hold and maintain the aforementioned cover,

(the “Required Insurances”).

11.2 The Required Insurances shall be in respect of all risks which may be incurred by the SPS Provider, arising out of the SPS Provider's performance of the Work Order, including death or personal injury, loss of or damage to property or any other loss. Such policies shall include cover in respect of any financial loss arising from any advice given or omitted to be given by the SPS Provider.

11.3 NEPRO Limited, on behalf of the SPS Provider, shall give the Council, on request, copies of all insurance policies referred to in this clause or a broker's verification of insurance to demonstrate that the Required Insurances are in place, together with receipts or other evidence of payment of the latest premiums due under those policies.

11.4 NEPRO Limited shall procure that each SPS Provider holds and maintains the Required Insurances for a minimum of six years following the expiration or earlier termination of the Agreement.

11.5 NEPRO Limited shall procure that each individual SPS Provider or member of a team of an SPS Provider represents that he is regarded by both the Inland Revenue and the Department for Work and Pensions as self-employed and accordingly shall indemnify NEPRO Limited and the Council against any tax, national insurance contributions or similar impost for which NEPRO Limited and the Council may be liable in respect of the SPS Provider or member of a team of an SPS Provider by reason of this Agreement.


12 CONFIDENTIALITY

12.1 The Council and NEPRO Limited, and NEPRO Limited shall procure that each SPS Provider, undertake that they shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the Council, NEPRO Limited or the SPS Providers except as provided for in this clause 12.

12.2 The Council and NEPRO Limited may disclose the other party's confidential information:

12.2.1 to those of its or any SPS Providers employees, officers, representatives or advisers who need to know such information for the purpose of carrying out the party's obligations under this Agreement. The Council and NEPRO Limited shall, and NEPRO Limited shall procure that each SPS Provider shall, ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12; and

12.2.2 as may be required by law, court order or any governmental or regulatory authority.

12.3 The Council and NEPRO Limited shall not, and NEPRO Limited shall procure that any SPS Provider, shall not use any of the Council’s, NEPRO Limited or any SPS Providers’ confidential information for any purpose other than to perform the Services.

13 DATA PROTECTION

13.1 With respect to the parties' rights and obligations under this Agreement, the parties agree that the Council is the Data Controller and that NEPRO Limited is the Data Processor in relation to a Data Subject’s Personal Data (as such terms are defined in the Data Protection Act 1998).

13.2 NEPRO Limited shall:

13.2.1 process the Personal Data only on behalf of the Council, only for the purposes of performing this Agreement and only in accordance with instructions contained in this Agreement or received from the Council from time to time;

13.2.2 not otherwise modify, amend or alter the contents of the Personal Data or disclose or permit the disclosure of any of the Personal Data to any third party unless specifically authorised in writing by the Council;

13.2.3 at all times comply with the provisions of the Seventh Data Protection Principle set out in Schedule 1 of the Data Protection Act 1998 and, in so doing, provide a written description of the technical and organisational methods employed by NEPRO Limited for processing Personal Data (within the timescales required by the Council) and 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; and

13.2.4 not transfer Personal Data outside the European Economic Area without the prior written consent of the Council and, where the Council consents to such transfer, to comply with the obligations of a Data Controller under the Eighth Data Protection Principle set out in Schedule 1 of the Data Protection Act 1998 by providing an adequate level of protection to any Personal Data that is transferred.

14 REMEDIES

If Council is in breach of or fails to comply with any terms of this Agreement, NEPRO Limited shall be entitled (without prejudice to any other right or remedy) to claim such damages as it


may have sustained in connection with the Council’s breach (or breaches) of this Agreement not otherwise covered by the provisions of this clause 14.

15 CORRUPT GIFTS AND BRIBERY ACT

15.1 NEPRO Limited shall not and shall use its reasonable endeavours to ensure that any SPS Providers shall not, pay any commission, fees or grant any rebates to any employee, officer or agent of the Council nor favour any employee, officer or agent of the Council with gifts or entertainment of significant cost or value nor enter into any business arrangement with employees, officers or agents of the Council other than as a representative of the Council, without the Council's written approval.

15.2 NEPRO Limited shall not commit any offence:

15.2.1 under the Bribery Act 2010;

15.2.2 under legislation creating offences concerning fraudulent acts;

15.2.3 at common law concerning fraudulent acts relating to this Agreement or any other contract with the Council; or

15.2.4 defrauding, attempting to defraud or conspiring to defraud the Council.

15.3 The Council shall have the right to audit any and all such records necessary to confirm compliance with this clause 15.3 at any time during performance of the Assignment Services under this Agreement and during the three year period following completion of performance. Breach of this clause 15.3 shall entitle the Council to terminate this Agreement and any other contracts between the SPS Provider and the Council with immediate effect.

16 ASSIGNMENT

16.1 Neither party shall be entitled to assign, sublicense or otherwise transfer this Agreement or any of its rights or obligations without written permission of the other party.

17 FORCE MAJEURE

17.1 The parties shall not be liable for any delay or failure to meet their obligations under this Agreement due to any cause outside its reasonable control including (without limitation), inclement weather, Acts of God, war, terrorism, riot, malicious acts of damage, civil commotion, strike, lockout, industrial dispute, refusal of license, power failure or fire.

17.2 If performance of the Assignment Services or Ad hoc Services are substantially prevented for a continuous period of three (6) months by virtue of any of aforesaid events then either party may terminate this Agreement forthwith by written notice to the other.

18 NOTICES

18.1 Any notice given under or pursuant to this Agreement may be sent by hand or by post or by registered post or by the recorded delivery service or transmitted by facsimile transmission or other means of telecommunication resulting in the receipt of a written communication in permanent form and if so sent or transmitted to the address of the party shown on this Agreement or to such other address as the party may by notice to the other have substituted therefore, shall be deemed effectively given on the day when the ordinary course of the means of transmission it would first be received by the addressee in normal business hours.

19 GOVERNING LAW

19.1 This Agreement (including any non-contractual claims arising out of it) shall be governed by and construed in accordance with the laws of England and the parties irrevocably agree that


the Courts of England and Wales shall have exclusive jurisdiction in relation to any dispute in connection with this Agreement (including any non-contractual claims arising out of it).

20 WHOLE AGREEMENT

20.1 This Agreement constitutes the entire Agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to such subject matter.

Signed on behalf of The City of York Council

Name and position: Category Manager, the City of York Council

Dated: first June 2015

Signed on behalf of NEPRO LIMITED:

Name and position:

Dated

Dated:


Documents

File Note · Web viewCity of York Council of West Offices, Station Rise, York YO1 6GA (the “ Council ” or “ Client ”) 2. NEPRO LIMITED of Sunderland Software Centre, Tavistock