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By email Cambrian Buildings, Mount Stuart Square, Cardiff CF10 5FL Telephone: 08442 64 06 70 Fax: 08442 64 06 80 www.olderpeoplewales.com 31 July 2012 Dear Sir/Madam Whistle-blowing culture and the safeguarding of older people in Wales research The Older People’s Commissioner for Wales is seeking expressions of interest for the provision of research services to the Commission from 01/12/2011 to 20/03/2012. A tender specification is enclosed with this letter. Please see our website www.olderpeoplewales.com for background information about the Commission and its activities. Please return the expression of interest reply form (below) by Wednesday 26 October 2011 to Anna Buchanan by email or at the above address. Three hard copies of your tender response document should be sent to Anna Buchanan, at the above address, by Friday 4 November 2011, in an unmarked envelope. You should be prepared to present and discuss your submission to a Commission panel, in Cardiff, on Friday 18 November 2011. If you would like discuss this invitation before submitting your tender please contact Anna Buchanan on the number above or via email - firstname.lastname@example.org Yours faithfully Anna Buchanan Policy Officer Older People’s Commissioner for Wales Reply Form To be returned by Wednesday 26 October 2011 For the attention of: Anna Buchanan Tender: Research services Company Name Contact Details Please indicate with a tick the appropriate box below: Thank you for the opportunity to work with the Older People’s Commissioner for Wales. We/I will not be submitting a tender on this occasion. We/I will be submitting a tender by DD/MM/YYYY. Please return to: Anna Buchanan Older People’s Commissioner for Wales Cambrian Buildings Mount Stuart Square CARDIFF CF10 5FL Older People’s Commissioner for Wales Whistle-blowing culture and the safeguarding of older people in Wales research Tender Specification 1. Introduction 1.1 The Older People’s Commissioner for Wales was established by the Commissioner for Older People (Wales) Act 2006. The First Commissioner, Ruth Marks took up post on 21 April 2008. Her role is to promote and safeguard the interests of people aged 60 and over in Wales. 1.2 The Commissioner is seeking tenders for research into whistle- blowing in Wales, with specific reference to older people and the health and social care context. More details are given at paragraph 3. 2. Research Context 2.1 The Commissioner is an independent advocate for older people in Wales. The Commissioner has four general statutory functions: a) To promote awareness of the interests of older people in Wales and of the need to safeguard those interests; b) To promote the provision of opportunities for, and the elimination of discrimination against, older people in Wales; c) To encourage best practice in the treatment of older people in Wales; and d) To keep under review the adequacy and effectiveness of the law affecting older people in Wales. 2.2 The Commissioner is required to have regard to the United Nation’s Principles for Older Persons. The Principles cover the independence, participation, care, self fulfilment and dignity of older people. Principles 10, 14 and 17 are particularly relevant to this piece of research. 2.3 The Commissioner may review the whistle-blowing arrangements of many of Wales’ public bodies, and organisations that deliver regulated services, in order to ensure that proper action is taken in response to the disclosure of potentially adverse information. 2.4 Supplementary information providing some background to the Commissioner’s role is available on the Commissioner’s website www.olderpeoplewales.com. 3. Research Objectives The overall objective of the research is to provide the following: 3.1 A report A report of no more than 30,000 words (excluding references, annexes or appendices), which conforms to the Older People’s Commissioner’s accessibility standards, describing: The obligations that different types of health and social care workers have in relation to whistle-blowing when working with older people in Wales (e.g. legal duties, codes of conduct, professional obligations, duties of care); attitudes to whistle-blowing amongst those who work with older people in Wales, including attitudes towards the word ‘whistle- blowing’ itself; barriers that potential whistle-blowers face; and the experiences, positive and negative, of those who have whistle- blown. Additionally, the report should contain an Annex with recommendations to the Older People’s Commissioner for Wales as to what she might do to address shortcomings in present whistle-blowing practice and culture, and to promote best practice in Wales. Once the report is written, copyright will belong to the Older People’s Commissioner for Wales – please see our standard terms and conditions in Appendix B. 3.2 Case studies Two types of case studies (ideally 3 of each type): the experiences of whistle-blowers in Wales positive change for older people as a result of whistle-blowing 4. Methodology It will be for the researcher to suggest a suitable methodology that will be approved by the Older People’s Commissioner. The methodology must operate within the following parameters: It must be Wales-focused. The report must focus on health and social care settings. Social care settings must include care homes and domiciliary care provision. Researchers will be given a full briefing of the Commissioner’s role and the statutory powers she has been given to effect change; recommendations made to the Commissioner in the annex to the report must not exceed the statutory powers of the Commissioner. There must be written agreement in relation to stakeholder management. 5. Timescales 5.1 The first draft of the report must be delivered to the Project Co- ordinator by Tuesday 28 February 2012 at 12 noon. 5.2 The final report must be with the Project Co-ordinator by Tuesday 20 March 2012 at 12 noon. 5.3 The Commissioner will be responsible for translation, design and publishing of the report. 6. Tendering Timetable The key dates are as follows: 1. Issue Tender Friday 14 October 2012 2. Closing Date for Tenders Friday 4 November 2012 at 12 noon 3. Shortlisting Wednesday 9 November 2012 4. Presentation to Panel Friday 18 November 2012 5. Award of Contract Wednesday 23 November 2012 7. Tender Submission The tender submission should be limited to 6 sides of A4, excluding CVs, and will need to cover the following areas: Background and general information about your organisation Details of staff, including CVs, to undertake the work Details of your/your organisation’s expertise and experience of whistle-blowing and adult protection research, particularly in relation to older people and Wales Details of your current research commitments The added value your organisation would bring to the Commissioner in undertaking this research Proposed methodology for the research Overall proposed approach to the research project, including proposed work plan and timescales for research and write up The daily rates you will charge indicating if these rates are inclusive or exclusive of both travelling expenses and VAT Please send tender submissions (3 hard copies) to Anna Buchanan: email@example.com by Friday 14 November. Late submissions will not be accepted. It is your responsibility to ensure that your submission has reached us and we take no responsibility for those that do not reach us for whatever reason. 8. Presentation The evaluation of shortlisted tenders will include a presentation by each potential researcher of no more than 20 minutes, followed by a question and answer session. 9. Tendering Panel It is expected that the tendering panel will include, at a minimum, a member of the Commissioner’s Senior Management Team, and the lead policy officer. Appendix A AN EXAMPLE ONLY Schedule 1B 1. You have been engaged by the Commission to provide the following services: A wide ranging scoping study, which explores XXX. The project will include XXX. Overview Stage 1 – XXX Stage 2 – XXX Stage 3 – XXX 2. Key contacts For the Commission: Alison Phillips Contract issues Head of Finance, HR & Corporate Governance Anna Buchanan Project Co-ordinator Policy Officer Clive Carpenter Invoice Queries Finance Officer 3. This work will predominantly be done from your own office; however, from time to time you will be required to attend meetings at the Commission’s office. The Project Co-ordinator will meet regularly to discuss the progress of the work (dates to be arranged). 4. The project should be completed by 20/03/2012. Timetable Stage 1 December - January 2012 Stage 2 February 2012 Stage 3 March 2012 5. Payment Schedule The total value of this agreement shall not exceed £xxxxx including VAT. We will pay within 30 days of receipt of your invoice: £ 31 January 2012 30 March 2012 Total £x For the Commission Signed: Date: Name: Job Title: For the Researcher Signed: Date: Name: Appendix B GENERAL TERMS AND CONDITIONS OF CONTRACT FOR CONSULTANCY SERVICES/RESEARCH These terms and conditions may only be varied with the written agreement of the Older People’s Commissioner. No terms or conditions put forward at any time by the Consultant/Researcher shall form any part of the contract. 1. DEFINITIONS In these conditions, the words and phrases below shall have the following meaning: ‘Commencement Date’ means the date specified in the Tender Documents or (if no specific date is given) the date upon which award of this Contract was notified to the Consultant/Researcher; ‘Confidential Information’ means information (however it is conveyed or on whatever media it is stored) and which has either been designated as confidential by either Party in writing or which ought to be considered as subject to a duty of confidentiality and includes but is not limited to information which relates to the business, affairs, properties, assets, trading practices, developments, trade secrets, Intellectual Property Rights, Personal Data, know-how, personnel, customers and suppliers of either Party; ‘Contract’ means the contract between the Older People’s Commissioner and the Consultant/Researcher consisting of (in order of precedence) (i) these terms and conditions, (ii) the Tender Documents and (iii) any other documents (or parts thereof) specified in the Tender Documents; ‘Consultant/Researcher’ means the person, firm or company to whom the Contract is issued; ‘Contract Period’ means the period of duration of the Contract in accordance with Clause 2; ‘Contract Price’ means the monies payable by the Older People’s Commissioner to the Consultant/Researcher for the provision of the Services/Research as set out in the Contract; ‘Default’ means any breach of an obligation of either Party under the Contract (including but not limited to fundamental breach or a breach of a fundamental term) or any default, act, omission, negligence or statement of either Party, its employees, servants, agents or sub- contractors 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; ‘Deliverables’ means all Documents, products and materials developed by the Consultant/Researcher or its Staff in relation to the Services/Research in any form including computer programmes, data, reports and specifications (including drafts); ‘Documents’ means without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image whether recorded on paper, tape, disk or other device; ‘Intellectual Property Rights’ means patents, inventions, trade marks, rights in design (whether registrable or otherwise), applications for any of the foregoing, copyright, database rights, domain names, trade or business names, moral rights and any other similar rights or obligations whether registrable or not in any country (including but not limited to the UK) and the right to sue for passing off; ‘Older People’s Commissioner’ means The Commissioner for Older People in Wales, a body established by the Commissioner for Older People (Wales) Act 2006 or any designated representative of it; ‘Older People’s Commissioner Property’ means any property, other than real property, issued or made available to the Consultant/Researcher by the Older People’s Commissioner in connection with the Contract; ‘Party’ means the Older People’s Commissioner or the Consultant/Researcher, together ‘the Parties’; ‘Premises’ means the location where the Services/Research are to be performed, as specified in the Tender Document; ‘Services/Research’ means the services to be provided as specified in the Tender Documents which, where applicable, includes the Deliverables; ‘Staff’ means all persons employed by the Consultant/Researcher to perform the Contract and/or the Services/Research together with the Consultant/Researcher’s servants, agents and sub-contractors used in the performance of the Contract and/or the Services/Research; ‘Specification’ means the specification for the Services/Research the Older People’s Commissioner requires the Consultant/Researcher to perform as set out in the Tender Documents; ‘Tax’ means Value Added Tax, customs duties and any other applicable taxes or duties; ‘Tender Documents’ means the documents as contained in Schedule 1. 1.1 In this Contract a reference to any statute, enactment, order, regulation or other similar instrument (“legislation”) shall, unless the context requires otherwise, be construed as a reference to such legislation as amended by any subsequent legislation or as contained in any subsequent re-enactment thereof. 1.2 Unless the context otherwise requires, words denoting the singular shall include the plural and vice versa, and references to any person shall include natural persons, partnerships, firms, corporations and other incorporated bodies and all other legal persons of whatever kind and however constituted, and words denoting any gender shall include the masculine, the feminine and the neuter. 1.3 The use of headings and bold type in this Contract shall not affect the interpretation of any provision of this Contract. 1.4 Any reference to “approval” by the Older People’s Commissioner shall mean approval in writing. 2. DURATION 2.1 The Contract shall take effect on the Commencement Date and shall expire automatically on the date specified in the Tender Documents, unless it is otherwise terminated in accordance with the Contract, or otherwise lawfully terminated. 3. APPOINTMENT 3.1 The Older People’s Commissioner appoints the Consultant/Researcher to provide the Services/Research: 3.1.1 promptly and in a professional and courteous manner so as to reflect and promote the image of the Older People’s Commissioner; 3.1.2 strictly in accordance with the Tender Documents and all the provisions of the Contract; 3.1.3 in accordance with all applicable UK and European laws and regulations, codes of practice; 3.1.4 in accordance with the policies (including any racial discrimination and equal opportunities policies), rules, procedures and the quality standards of the Older People’s Commissioner as amended from time to time. 3.2 The Consultant/Researcher accepts the terms of the appointment as provided in Clause 3.1. 4. PERFORMANCE OF THE SERVICES/RESEARCH 4.1 The Consultant/Researcher shall allocate sufficient resources to the Services/Research to enable it to comply with Clause 3. 4.2 In addition to any more specific obligations imposed by the terms of the Contract, it shall be the duty of the Consultant/Researcher to provide the Services/Research using the degree of skill, care and diligence reasonably to be expected of a Consultant/Researcher carrying on the trade business or profession of the Consultant/Researcher and who is experienced in providing Services/Research of similar value, nature, scope and complexity to the Services/Research. 4.3 The Consultant/Researcher will ensure that all its obligations to be performed under the Contract are performed and rendered by suitably experienced, qualified and trained Staff using all due skill, care and diligence. 5. STATUTORY OBLIGATIONS 5.1 In performing the Contract, the Consultant/Researcher shall comply with all applicable statutory obligations for the time being in force including, but without prejudice to the generality of the foregoing, those relating to confidentiality, health, safety and welfare, environment, employment, data protection, race relations and sexual discrimination. The Consultant/Researcher shall take all reasonable steps to ensure the observance of these provisions by all Staff of the Consultant/Researcher employed or engaged in the execution of the Contract. The Consultant/Researcher shall indemnify the Older People’s Commissioner against all actions, claims, losses, demands, costs and expenses which the Older People’s Commissioner may suffer or incur as a result of or in connection with any breach of any statutory obligation. 6. TIME OF PERFORMANCE 6.1 The Consultant/Researcher shall begin the Services/Research on the date stated in the Specification and shall complete the Services/Research by the date stated in the Specification or continue to perform the Services/Research for the period stated in the Specification (whichever is applicable). Time of performance is of the essence of the Contract. The Older People’s Commissioner may by written notice require the Consultant/Researcher to execute the Services/Research in such order as the Older People’s Commissioner may decide. 7. AUDIT 7.1 The Consultant/Researcher shall keep and maintain until two (2) years after the Contract has been completed or as long a period as may be agreed between the Parties, full and accurate records of the Contract including the Services/Research provided under it, all expenditure reimbursed by the Older People’s Commissioner, all payments made by the Older People’s Commissioner, and (where any Staff are paid for on a time-charge basis) of the hours worked and costs incurred in connection with the Contract. The Consultant/Researcher shall on request afford the Older People’s Commissioner or its representatives or agents (including but not limited to the Welsh Audit Office) or such access to those records as may be required by the Older People’s Commissioner in connection with the Contract. The provisions of this Clause 7 shall apply during the continuance of this Contract and shall survive its expiry or termination. 8. OLDER PEOPLE’S COMMISSIONER PROPERTY 8.1 Where the Older People’s Commissioner for the purpose of the Contract issues Older People’s Commissioner Property free of charge to the Consultant/Researcher, such property shall: 8.1.1 be and remain at all times the property of the Older People’s Commissioner. 8.1.2 be deemed to be in good condition when received by or on behalf of the Consultant/Researcher, unless the Consultant/Researcher notifies the Older People’s Commissioner otherwise within seven (7) days of receipt. 8.2 The Consultant/Researcher shall: 8.2.1 maintain all Older People’s Commissioner Property in good order and condition and shall use such property solely in connection with the Contract and for no other purpose without prior approval. 8.2.2 ensure the security of all Older People’s Commissioner Property, whilst in the Consultant/Researcher’s possession, either on its premises or elsewhere during the performance of the Contract, in accordance with the Older People’s Commissioner’s reasonable security requirements from time to time. 8.2.3 be liable for any and all loss of or damage to any Older People’s Commissioner Property unless the Consultant/Researcher is able to demonstrate that such loss or damage was caused by the negligence or Default of the Older People’s Commissioner. The Consultant/Researcher shall forthwith inform the Older People’s Commissioner of any defects appearing in or losses or damage occurring to Older People’s Commissioner Property made available for the purposes of the Contract. 9. CONFLICTS OF INTEREST 9.1 The Consultant/Researcher shall take appropriate steps to ensure that neither the Consultant/Researcher nor any member of its Staff is placed in a position where there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of the Consultant/Researcher or its Staff and the duties owed to the Older People’s Commissioner under the Contract. The Consultant/Researcher will disclose to the Older People’s Commissioner full particulars of any such conflict of interest which may arise as soon as possible after becoming aware of it. The provisions of this Clause 9 shall apply during the continuance of the Contract and indefinitely after expiry or termination. 10. CONTRACT PRICE AND PAYMENT 10.1 In consideration of the provision of the Services/Research the Older People’s Commissioner shall pay the Contract Price. 10.2 The Consultant/Researcher shall be entitled to be reimbursed by the Older People’s Commissioner the amount of all expenses reasonably and properly incurred by him in the performance of his duties subject to production of such evidence as the Older People’s Commissioner may reasonably require and subject to the maximum specified in the Older People’s Commissioner’s policy on expenses. 10.3 If applicable, the Older People’s Commissioner shall pay the Consultant/Researcher subject to Clause 10.4, in addition to the Contract Price and Clause 10.2, a sum equal to the Tax chargeable on the Services/Research. 10.4 The Older People’s Commissioner shall pay each valid Tax invoice (or if Tax is not due, each valid invoice) which is properly due and submitted to it by the Consultant/Researcher within 30 days of receipt. 10.5 If the Older People’s Commissioner fails to pay any amount payable under the Contract, the Consultant/Researcher may charge the Older People Commissioner interest on the overdue amount from the due date up to the date of actual payment at the rate of 2% per annum above the base rate for the time being of the Bank of England. 10.6 The Older People’s Commissioner may reduce payment in respect of any Deliverables and/or Services/Research which the Consultant/Researcher has either failed to provide or has provided inadequately, without prejudice to any other rights and remedies of the Older People’s Commissioner. 11. RECOVERY OF SUMS DUE 11.1 Wherever under the Contract any sum of money is recoverable from or payable by the Consultant/Researcher (including any sum which the Consultant/Researcher is liable to pay to the Older People’s Commissioner in respect of any breach of the Contract), the Older People’s Commissioner may unilaterally deduct that sum from any sum then due, or which at any later time may become due to the Consultant/Researcher under the Contract or under any other agreement or contract with the Older People’s Commissioner. 11.2 Any overpayment to the Consultant/Researcher by the Older People’s Commissioner, whether of the Contract Price or of Tax, shall be a sum of money recoverable by the Older People’s Commissioner from the Consultant/Researcher. 11.3 The Consultant/Researcher shall make any payments due to the Older People’s Commissioner without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Consultant/Researcher has a valid court order requiring an amount equal to such deduction to be paid by the Older People’s Commissioner to the Consultant/Researcher. 12. CONSULTANT/RESEARCHER'S STAFF 12.1 The Older People’s Commissioner reserves the right under this Contract to refuse to admit to, or to withdraw permission to remain on, any Premises occupied by or on behalf of the Older People’s Commissioner any member of the Consultant/Researcher’s Staff whose admission or continued presence would be, in the opinion of the Older People’s Commissioner, undesirable. The decision of the Older People’s Commissioner shall be final and conclusive. 12.2 The Consultant/Researcher and its Staff must when present at any Premises occupied by or on behalf of the Older People’s Commissioner, comply fully with any rules, regulations and requirements (including without limitation those relating to security arrangements) as may be in force from time to time for the conduct of personnel when at those Premises. This may include but is not limited to security checks on the Consultant/Researcher and the Consultant/Researcher's Staff and the production of proof of identity. 12.3 The Consultant/Researcher shall take the steps reasonably required by the Older People’s Commissioner to prevent unauthorised persons being admitted to the Premises. If the Older People’s Commissioner gives the Consultant/Researcher notice that any person is not to be admitted to or is to be removed from the Premises or is not to become involved in or is to be removed from involvement in the performance of the Contract, the Consultant/Researcher shall take all reasonable steps to comply with such notice and if required by the Older People’s Commissioner the Consultant/Researcher shall replace any person removed under this Clause 14 with another suitably qualified person and procure that any pass issued to the person removed is surrendered. 12.4 The Older People’s Commissioner shall have no liability in respect of any claim made or any award of compensation in respect of redundancy or unfair or wrongful dismissal brought by any Staff arising from the operation of the Older People’s Commissioner's security measures. 13. CORRUPT GIFTS OR PAYMENTS 13.1 The Consultant/Researcher shall not offer or give, or agree to give, to any employee, servant, agent or representative of the Older People’s Commissioner any gift or consideration of any kind as an inducement or reward for doing or refraining from doing, or for having done or refrained from doing, any act in relation to the obtaining or execution of this Contract or any other contract with the Older People’s Commissioner or the Crown or for showing or refraining from showing favour or disfavour to any person in relation to this Contract or any such contract. The attention of the Consultant/Researcher is drawn to the criminal offences created by the prevention of Corruption Acts 1889 to 1916. 13.2 Where the Consultant/Researcher or any of its Staff or anyone acting on the Consultant/Researcher’s behalf, breach the provisions of Clauses 13.1 in relation to this or any other contract with the Older People’s Commissioner, the Older People’s Commissioner has the right to: 13.2.1 terminate the Contract with immediate effect and recover from the Consultant/Researcher the amount of any loss suffered by the Older People’s Commissioner resulting from the termination; 13.2.2 recover from the Consultant/Researcher the amount or value of any such gift, consideration or commission; and 13.2.3 recover in full from the Consultant/Researcher any other loss suffered by the Older People’s Commissioner in consequence of any breach of this Clause 13, whether or not the Contract has been terminated. 14. FRAUD 14.1 The Consultant/Researcher shall safeguard any payments made by the Older People’s Commissioner’s pursuant to this Contract against fraud generally and, in particular, fraud on the part of the Staff, or the Consultant/Researcher’s directors and suppliers. The Consultant/Researcher shall notify the Older People’s Commissioner immediately if it has reason to suspect that any fraud has occurred or is occurring or is likely to occur. 15. CONFIDENTIALITY 15.1 The Consultant/Researcher acknowledges that any Confidential Information obtained from or relating to the Older People’s Commissioner and its employees, servants, agents or sub- contractors, is the property of the Older People’s Commissioner. 15.2 Each Party shall: 15.2.1 maintain in confidence any information or materials provided to it directly or indirectly by the Consultant/Researcher under, or in anticipation of this Contract, taking such reasonable security measures as it takes to protect its own confidential information and trade secrets; 15.2.2 treat all Confidential Information obtained as secret and confidential and safeguard it accordingly, and only use it for the purpose of this Contract; 15.2.3 not disclose any Confidential Information to any other person other than to its Staff who have accepted obligations of confidentiality equivalent to this Clause 15 and who need to have access to such information or materials in connection with the performance of the Contract. 15.3 Without prejudice to Clause 15.2.3 of the Contract neither Party shall disclose any Confidential Information to any other person whatsoever without the prior written consent of the Party supplying it. 15.4 Without prejudice to the generality of the foregoing neither the Consultant/Researcher nor any of its Staff shall use the Confidential Information for the solicitation of business from the Older People’s Commissioner its employees, servants, agent or sub-contractors. 15.5 The provisions of this Clause 15 shall not apply to any information which: 15.5.1 is or becomes public knowledge (otherwise than by breach of this Contract); or 15.5.2 which is in the possession of the receiving Party, without restriction as to its disclosure, before receiving it from the disclosing Party; or 15.5.3 which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or 15.5.4 which is independently developed without access to the Confidential Information; or 15.5.5 which must be disclosed pursuant to a statutory, legal or parliamentary obligation placed on a Party making the disclosure. 15.6 Nothing in this Clause 15 shall prevent the Consultant/Researcher from: 15.6.1 disclosing any Confidential Information which is required to be disclosed by an order of court or other competent tribunal or required to be disclosed by any applicable legal requirement; or 15.6.2 disclosing such Confidential Information as is strictly necessary for the purpose of obtaining legal advice or for the examination or preparation of the Consultant/Researcher’s accounts to its legal advisers and accountants, provided that such legal advisers and accountants are bound by a professional duty of confidence. 15.7 The provisions of this Clause 15 shall apply during the continuance of the Contract and indefinitely after its termination howsoever arising. 16. STATUTORY PROHIBITION ON INFORMATION DISCLOSURE 16.1 The Consultant/Researcher acknowledges that, unless authorised by section 18(3) of the Commissioner for Older People (Wales) Act 2006, disclosure of any of the following information is unlawful: 16.1.1Information obtained by the Older People’s Commissioner in the discharge of her functions; 16.1.2Information obtained by the Commissioner through collaborative working; 16.1.3Information obtained by the Commissioner from the Information Commissioner by virtue of section 76 of the Freedom of Information Act 2000. 16.2 Unless authorised to do so by section 18(3) of the Commissioner for Older People (Wales) Act 2006, the Consultant/Researcher shall not therefore disclose to any person any information obtained in the circumstances listed in clause 16.1 by the Commissioner, its employees, servants, agents or sub-contractors. 17. PUBLICITY, MEDIA AND OFFICIAL ENQUIRIES 17.1 Except with the written consent of the Older People’s Commissioner, the Consultant/Researcher shall not make any press announcements or publicise the Contract or any part thereof in any way. 18. DATA PROTECTION 18.1 In this Clause, the terms “ Personal Data”, “Data Subject”, “Process”, “Data Controller” and “Data Processor” have the meanings given in the Data Protection Act 1998 (“1998 Act”) and the term “Data” means Personal Data in respect of which the Older People’s Commissioner is Data Controller and which is subject to Processing by the Consultant/Researcher. 18.2 The Parties agree that with respect to their rights and obligations under this Agreement the Older People Commissioner is Data Controller and the Consultant/Researcher is the Data Processor in respect of any Data Processed by the Consultant/Researcher. 18.3 The Consultant/Researcher must: 18.3.1 Process Data only to the extent necessary to perform its obligations under this Contract and strictly in accordance with the instructions of the Older People’s Commissioner (from time to time); 18.3.2 maintain appropriate technical and organisational measures against unauthorised or unlawful Processing of Data (including against accidental loss, damage or destruction of Data) which reflect the level of damage that might be suffered by a Data Subject as a result of unauthorised or unlawful Processing (including loss, damage or destruction) of the Data Subject’s Data; and 18.3.3 not without the Older People’s Commissioner’s prior written consent which the Older People’s Commissioner may withhold at its absolute discretion do anything which would cause Data to be transferred outside the European Economic Area. 19. FREEDOM OF INFORMATION 19.1 The Consultant/Researcher acknowledges that the Older People’s Commissioner is subject to the requirements of the Freedom of Information Act 2000 (the “FOIA”) and the Environmental Information Regulations 2004 (“EIR”). 19.2 The Consultant/Researcher acknowledges that the Older People’s Commissioner shall be responsible for determining in its absolute discretion whether: 19.2.1 to disclose any information which it has obtained or created under or in connection with the Contract to the extent that the Older People’s Commissioner is required to disclose such information to a person making a disclosure request under the FOIA or the EIR (an “RFI”); 19.2.2 any information is exempt from disclosure under the FOIA or the EIR. 19.3 The Consultant/Researcher acknowledges that the Older People’s Commissioner may be obliged under the FOIA or the EIR to disclose information subject to an RFI. 19.4 The Consultant/Researcher shall promptly and at no additional charge provide all necessary assistance as reasonably required by the Older People’s Commissioner to respond to an RFI by providing such information and access to documents and records as the Older People’s Commissioner reasonably requires in order to answer a disclosure request within the time for compliance set out in Section 10 of the FOIA. 19.5 The provisions of this Clause 19 shall apply during the continuance of this Contract and indefinitely after its expiry or termination. 20. INTELLECTUAL PROPERTY RIGHTS 20.1 It shall be a condition of this Contract that the Services/Research will not infringe any Intellectual Property Rights of any third party and the Consultant/Researcher shall fully indemnify the Older People’s Commissioner against all actions, suits, claims, demands, losses (including consequential losses), charges, costs and expenses which the Older People’s Commissioner may suffer or incur as a result of or in connection with any breach of this Clause 20. 20.2 The Consultant/Researcher shall obtain the Older People’s Commissioner’s approval before using any material in relation to the performance of the Contract which is or may be subject to any third party Intellectual Property Rights. Where such approval is given by the Older People’s Commissioner and subject always to the Consultant/Researcher obtaining the Older People’s Commissioner’s prior written consent in respect of any costs incurred pursuant to this Clause, the Consultant/Researcher shall procure that the owner of the rights grants to the Older People’s Commissioner a non-exclusive licence or, if itself a licensee of those rights, shall grant to the Older People’s Commissioner an authorised sub-licence to use, reproduce, adapt and distribute the material subject to such rights. Such licence granted to the Older People’s Commissioner shall be perpetual and irrevocable . 20.3 All Intellectual Property Rights in any specifications, instructions, plans, drawings, patterns, models, designs or other material furnished to or made available to the Consultant/Researcher by the Older People’s Commissioner shall remain the property of the Older People’s Commissioner. 20.4 All Intellectual Property Rights in the Services/Research prepared by or for the Consultant/Researcher or its Staff for use, or intended use, in relation to the performance of this Contract are hereby assigned with full title guarantee to and shall vest in the Older People’s Commissioner absolutely. Without prejudice to Clause 15 (Confidentiality) the Consultant/Researcher shall not and shall procure that his Staff shall not (except to the extent necessary for the implementation of this Contract) without the prior approval of the Older People’s Commissioner use or disclose any such Intellectual Property Rights and in particular (but without prejudice to the generality of the foregoing) the Consultant/Researcher shall not refer to the Older People’s Commissioner or the Contract in any advertisement without the Older People’s Commissioner's prior approval. 20.5 The Consultant/Researcher shall obtain waivers of all moral rights in the Services/Research which any individual is now or may at any time in the future be entitled under Chapter IV of Part 1 of the Copyright Design and Patent Act 1988 or any similar provision of law in any jurisdiction. 20.6 The Consultant/Researcher shall forthwith notify the Older People’s Commissioner if any claim or demand is made or action brought against the Consultant/Researcher for infringement or alleged infringement of any Intellectual Property Right in connection with the performance of the Contract. The Consultant/Researcher shall at its own expense conduct any litigation arising therefrom and all negotiations in connection therewith provided always that the Consultant/Researcher shall consult the Older People’s Commissioner on all substantive issues which arise during the conduct of such litigation and negotiations and shall, in such conduct, take due and proper account of the interests of the Older People’s Commissioner. 20.7 The Older People’s Commissioner shall at the request of the Consultant/Researcher afford to the Consultant/Researcher all reasonable assistance for the purpose of contesting any claim or demand made or action brought against the Older People’s Commissioner or the Consultant/Researcher for infringement or alleged infringement of any Intellectual Property Right in connection with the performance of the Contract and shall be repaid by the Consultant/Researcher all costs and expenses (including but not limited to legal costs and disbursements on a solicitor and client basis) incurred in doing so. 20.8 The Older People’s Commissioner shall not 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 Older People’s Commissioner or the Consultant/Researcher in connection with the performance of the Contract. 20.9 The provisions of this Clause 20 shall apply during the continuance of this Contract and indefinitely after its termination or expiry howsoever arising. 21. INDEMNITIES AND INSURANCE 21.1 The Consultant/Researcher shall indemnify and keep indemnified the Older People’s Commissioner its servants, agents or sub-contractors against all actions, claims, proceedings, damages, demands, costs (including but not limited to legal costs), expenses and any other liabilities whatsoever arising out of or in connection with the Contract and the Consultant/Researcher’s performance thereof in respect of any death or personal injury, loss, damage, injury cost or expense which is caused directly or indirectly by any act or omission of the Consultant/Researcher and Staff. 21.2 The Consultant/Researcher shall further indemnify and keep indemnified the Older People’s Commissioner, and its or their employees, servants, agents or sub-contractors against any expenditure relating to the repair of the Premises or replacement of equipment arising as a result of negligence or Default on the part of the Consultant/Researcher or its Staff. 21.3 The Consultant/Researcher shall effect and maintain with an insurer of repute a policy or policies of insurance providing an adequate level of cover in respect of all risks which may be incurred by the Consultant/Researcher arising out of the Consultant/Researcher’s performance of the Contract, including (without limitation) death or personal injury or loss of or damage to property. Such policies shall include (but shall not be limited to): 21.3.1 cover in respect of any financial loss arising from any advice given or omitted to be given by the Consultant/Researcher; and 21.3.2 public liability and product liability insurance to include any liabilities (whether arising in contract, tort or otherwise) it may have to the Older People’s Commissioner under the Contract including cover for loss or damage to the Older People’s Commissioner’s Premises or any of the Older People’s Commissioner’s property from time to time in the custody or control of the Consultant/Researcher, 21.3.3 in the sum of not less than £500,000 for any one event or series of connected events arising from the same incident and unlimited in total, unless otherwise agreed by the Older People’s Commissioner in writing. 21.4 The Consultant/Researcher shall hold employer’s liability insurance in respect of Staff in accordance with any legal requirement for the time being in force. 21.5 The terms of any insurance or the amount of cover shall not relieve the Consultant/Researcher of any liabilities under the Contract. It shall be the responsibility of the Consultant/Researcher to determine the amount of insurance cover that will be adequate to enable the Consultant/Researcher to satisfy any liability referred to under Clauses 21.1 and 21.2. 22. TERMINATION 22.1 The Older People’s Commissioner may terminate the Contract by notice in writing with immediate effect where: 22.1.1 the Consultant/Researcher suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or 22.1.2 the Consultant/Researcher commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Consultant/Researcher with one or more other companies or the solvent reconstruction of the Consultant/Researcher; or 22.1.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Consultant/Researcher (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Consultant/Researcher with one or more other companies or the solvent reconstruction of the Consultant/Researcher; or 22.1.4 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Consultant/Researcher (being a company); or 22.1.5 a floating charge holder over the assets of the Consultant/Researcher (being a company) has become entitled to appoint or has appointed an administrative receiver; or 22.1.6 a person becomes entitled to appoint a receiver over the assets of the Consultant/Researcher or a receiver is appointed over the assets of the Consultant/Researcher; or 22.1.7 the Consultant/Researcher (being an individual) is the subject of a bankruptcy petition or order; or 22.1.8 a creditor or encumbrancer of the Consultant/Researcher 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 its assets and such attachment or process is not discharged within 14 days; or 22.1.9 the Consultant/Researcher suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or 22.1.10 the Consultant/Researcher (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or 22.1.11 there is a change of control of the Consultant/Researcher (within the meaning of section 840 of the Income and Corporation Taxes Act 1988). 22.2 In respect of termination for a change in control, the Older People’s Commissioner may only exercise its right under Clause 22.1 within six (6) months after a change of control occurs and shall not be permitted to do so where it has agreed in advance to the particular change of control that occurs. 22.3 The Consultant/Researcher shall notify the Older People’s Commissioner in writing immediately upon the occurrence of any of the events described in Clause 22.1 above. 22.4 The Older People’s Commissioner may terminate the Contract, or terminate the provision of any part of the Contract, by written notice to the Consultant/Researcher with immediate effect if the Consultant/Researcher commits a Default and if: 22.4.1 the Consultant/Researcher has not remedied the Default to the satisfaction of the Older People’s Commissioner within thirty (30) days, or such other period as may be specified by the Older People’s Commissioner, after issue of a written notice specifying the Default and requesting it to be remedied; or 22.4.2 the Default is not capable of remedy; or 22.4.3 the Default is a fundamental breach of the Contract. 22.5 In the event that through any Default of the Consultant/Researcher, data transmitted or processed in connection with the Contract is either lost or sufficiently degraded to be unusable, the Consultant/Researcher shall be liable for the cost of reconstitution of that data and shall provide a full credit in respect of any charge levied for its transmission. 23. CONSEQUENCE OF TERMINATION FOR DEFAULT 23.1 Where the Contract is terminated in accordance with Clause 23, or for Default or breach of any other obligation under the Contract, thereupon, without prejudice to any other of its rights, the Older People’s Commissioner may itself complete the Services/Research or have them completed by a third party and the Older People’s Commissioner shall not be liable to make any further payment to the Consultant/Researcher until the Services/Research have been completed in accordance with the requirements of the Contract, and shall be entitled to deduct from any amount due to the Consultant/Researcher any extra costs in respect thereof incurred by the Older People’s Commissioner (including the Older People’s Commissioner's own costs). If the total of such extra costs to the Older People’s Commissioner exceeds the amount (if any) due to the Consultant/Researcher, the difference shall be recoverable by the Older People’s Commissioner from the Consultant/Researcher. 24. BREAK 24.1 In addition to the Older People’s Commissioner’s rights of termination under Clause 22, the Older People’s Commissioner shall be entitled to terminate this Contract by giving to the Consultant/Researcher not less than thirty (30) days’ notice to that effect. 24.2 Upon receiving notice under Clause 24.1, the Consultant/Researcher shall: 24.2.1 be entitled to fair and reasonable remuneration in accordance with the Contract Price for such part of the Services/Research as it has completed or commenced and in respect of which it has not been paid, and for any costs or liabilities incurred to third parties as a result of any irrevocable commitment entered into in performance of the Contract, to the extent that the Consultant/Researcher is able to provide evidence to the reasonable satisfaction of the Older People’s Commissioner to support any sums which it claims. 24.2.2 immediately take all reasonable steps to mitigate its costs and losses and withdraw from any commitments to third parties relating to performance of its obligations under the Contract. 24.3 The Older People’s Commissioner shall not be liable upon termination under Clause 24.1 to pay any sum which, when added to the sums paid or due to the Consultant/Researcher under the Contract, exceeds the total sum which would have been payable to the Consultant/Researcher if the Contract had not been terminated prior to the expiry of the original Contract Period. 25. EFFECT OF TERMINATION GENERALLY 25.1 Termination under any provision of the Contract shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereupon accrue to the Older People’s Commissioner and shall not affect the continued operation of any obligation which is expressed to continue beyond termination or expiry of the Contract. 26. ASSIGNMENT AND SUB-CONTRACTING 26.1 The Consultant/Researcher shall not assign, mortgage, charge or otherwise transfer any rights or obligations under this Contract without the prior written consent of the Older People’s Commissioner. 26.2 The Consultant/Researcher shall not sub-contract any portion of the Contract without the prior written consent of the Older People’s Commissioner. Sub-contracting any part of the Contract shall not relieve the Consultant/Researcher of any obligation or duty attributable to him under the Contract. 27. FORCE MAJEURE 27.1 For the purpose of this Clause 27, “Force Majeure” means any event or occurrence which is outside the reasonable control of the Party concerned, and which is not attributable to any act or failure to take preventative action by the Party concerned, including (but not limited to) governmental regulations, fire, flood, or any disaster. It does not include any industrial action occurring within the Consultant/Researcher’s organisation or within any sub-contractor’s organisation. 27.2 Neither Party shall be liable to the other for any delay in or failure to perform its obligations under the Contract if such delay or failure results from an event of Force Majeure. Each Party shall use all reasonable endeavours to continue to perform its obligations hereunder for the duration of such Force Majeure event. However, if such event prevents either Party from performing all of its obligations under the Contract for a period in excess of 30 days, either Party may terminate the Contract by notice in writing with immediate effect. 28. SCOPE OF CONTRACT 28.1 At all times in connection with the Contract, the Consultant/Researcher shall be an independent contractor and nothing in the Contract shall create a relationship of agency or partnership or a joint venture as between the Consultant/Researcher and the Older People’s Commissioner and accordingly the Consultant/Researcher shall not be authorised to bind the Older People’s Commissioner. 29. NOTICES 29.1 Any notice or other communication which is to be given by either Party to the other shall be given by letter sent by hand, post, registered post or by the recorded delivery service. Such letters shall be addressed to the Consultant/Researcher at the address notified in the Tender Documents or such other address as either Party may nominate to the other from time to time. 29.2 Provided the relevant communication is not returned as undelivered, the notice or communication shall be deemed to have been given two (2) working days after the day on which the letter was posted or sooner where the Consultant/Researcher acknowledges receipt of such letter. 30. DISPUTE RESOLUTION 30.1 If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (“Dispute”) then, except as expressly provided in this Contract, the Parties shall follow the dispute resolution procedure set out in this clause: 30.1.1 either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documentation. On service of the Dispute Notice the Older People’s Commission’s Head of Finance, HR and Corporate Governance and the Consultant/Researcher’s Finance Director shall attempt in good faith to resolve the Dispute; 30.1.2 if the Dispute cannot be resolved within 30 days of service of the Dispute Notice the Parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, either Party may serve notice in writing (“ADR notice”) to the other Party requesting a mediation. A copy of the ADR Notice should be sent to CEDR Solve. The mediation will start not later than 30 days after the date of the ADR notice. Unless otherwise agreed by the Parties, the place of mediation shall be Cardiff. 30.2 No Party may commence any court proceedings in relation to any dispute arising out of this agreement until 30 days after the appointment of a mediator, provided that the right to issue proceedings is not prejudiced by a delay. 31. GENERAL 31.1 The Consultant/Researcher warrants to the Older People’s Commissioner that it has all necessary corporate standing and authorisation to enter into and be bound by the terms of the Contract. 31.2 This Contract may only be amended in writing signed by the duly authorised representatives of the Parties. 31.3 No failure or delay on the part of either Party to exercise any right or remedy under this Contract shall be construed or operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy. 31.4 If any provision or part of this Contract is held to be invalid, amendments to this Contract may be made by the addition or deletion of wording as appropriate to remove the invalid part or provision but otherwise retain the provision and the other provisions of this Contract to the maximum extent permissible under the applicable law. 31.5 No person who is not a Party to this Contract (including without limitation any employee, officer, agent, shareholder, representative or sub-contractor of either the Older People’s Commissioner or the Consultant/Researcher) shall have any right to enforce any term of the Contract which expressly or by implication confers a benefit on such person. This Clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to the Contracts (Rights of Third Parties) Act 1999. 31.6 This Contract shall be deemed to be a contract made in Wales and shall be governed by and interpreted in accordance with the law of England and Wales, as it applies in Wales. All disputes arising under or in connection with it shall be submitted in the first instance to the non-exclusive jurisdiction of the Courts in Cardiff.
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