Croydon Equipment Service - Employee Mutual Partnership Opportunity

Tender description

The Council intends to 'spin-out' the Council team which provides community equipment and wheelchair services (CES) to a public service mutual (Mutual).<br /> <br />A Partner is sought in order to provide the following services:<br /> <br />- CES, to be provided to residents of the Council, and in order to support the Council in delivering similar services under third party contracts (Services Limb)<br />- business services in support of the Mutual’s ongoing business plan and commercial operations (Partnering Limb)<br /> <br />The Partner will also be a supplier under a single supplier framework, from which CES services can be called-off (Framework).<br /> <br />The Partner is expected to work with the Mutual in order to discharge these obligations. The Council will not pay the Partner for these services but, instead, the Partner will receive shares in the Mutual should certain conditions be satisfied<br /><br />IMPORTANT: Potential bidders please note:<br />In order to access the tender documents you must click the Opt-in button. By choosing to click the Opt-in button and access the tender documents you are accepting terms of non-disclosure as detailed below:<br /> <br />Confidentiality Agreement<br />Agreed terms<br /><br />1 Interpretation<br />1.1 Definitions:<br />Business Day: A day other than a Saturday, Sunday or Public Holiday in England when banks in London are open for business. <br />Council: London Borough of Croydon.<br />Confidential Information: Has the meaning given in Clause 2.<br />Holding Company: Has the meaning given in Clause 1.2.5.<br />Participant: A recipient of Confidential Information.<br />Purpose: The intended procurement of a partner for the delivery Community Equipment Service (CES) through an employee led mutual as further detailed in procurement documentation published by the Council. <br />Representative(s): In relation to each party: <br />a) is officers and employees that need to know the confidential information for the purpose; <br />b) is professional advisers or consultants who are engaged to advise that party in connection with the purpose;<br />c) is contractors and sub-contractors engaged by that party in connection with the purpose; and<br />d) any other person to whom the other party agrees in writing that Confidential Information maybe disclosed in connection with the purpose. <br />Subsidiary: has the meaning given in Clause 1.2.5.<br />1.2 Interpretation<br />1.2.1 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time. A reference to legislation or a legislative provision includes all subordinate legislation made from time to time under that legislation or legislative provision.<br />1.2.2 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.<br />1.2.3 A reference to writing or written includes email.<br />1.2.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.<br />1.2.5 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.<br />1.2.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.<br /><br />2 Confidential Information<br />2.1 Confidential Information means all confidential information relating to the Purpose which the Council or its Representatives directly or indirectly discloses, or makes available, to the Participant or its Representatives, before, on or after the date this agreement is accepted by the Participant. This includes:<br />2.1.1 discussions and negotiations concerning the Purpose;<br />2.1.2 all confidential or proprietary information relating to:<br />(a) the business, assets, affairs, customers, clients, suppliers or plans, intentions, or market opportunities of the Council; and<br />(b) the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the Council;<br />2.1.3 any information, findings, data or analysis derived from Confidential Information; and<br />2.1.4 any other information that is identified as being of a confidential or proprietary nature,<br />but excludes any information referred to in clause 2.2.<br />2.2 Information is not Confidential Information if:<br />2.2.1 it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Participant or its Representatives in breach of this agreement (except that any compilation of otherwise public information in a form not publicly known shall still be treated as Confidential Information);<br />2.2.2 it was available to the Participant on a non-confidential basis prior to disclosure by the Council;<br />2.2.3 it was, is, or becomes available to the Participant on a non-confidential basis from a person who, to the Participant 's knowledge, is not under any confidentiality obligation in respect of that information;<br />2.2.4 it was lawfully in the possession of the Participant before the information was disclosed by the Council; and<br />2.2.5 the parties agree in writing that the information is not confidential.<br /><br />3 Confidentiality obligations<br />3.1 In return for the Council making Confidential Information available to the Participant, the Participant undertakes to the Council that it shall:<br />3.1.1 keep the Confidential Information secret and confidential;<br />3.1.2 not use or exploit the Confidential Information in any way except for the Purpose;<br />3.1.3 not directly or indirectly disclose or make available any Confidential Information in whole or in part to any person, except as expressly permitted by, and in accordance with this agreement;<br />3.1.4 not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose. Any such copies, reductions to writing and records shall be the property of the Council; and<br />3.1.5 apply the same security measures and degree of care to the Confidential Information as the Participant applies to its own confidential information, which the Participant warrants as providing adequate protection from unauthorised disclosure, copying or use.<br />3.2 The Participant shall establish and maintain adequate security measures (including any reasonable security measures proposed by the Council from time to time) to safeguard the Confidential Information from unauthorised access or use.<br /><br />4 Permitted disclosure<br />4.1 The Participant may disclose the Confidential Information to its Representatives on the basis that it:<br />4.1.1 informs those Representatives of the confidential nature of the Confidential Information before it is disclosed; and<br />4.1.2 procures that those Representatives comply with the confidentiality obligations in clause 3.1 as if they were the Participant and if the Council so requests, procure that any of them enters into a confidentiality agreement with the Council on terms equivalent to those contained in this agreement.<br />4.2 The Participant shall be liable for the actions or omissions of its Representatives in relation to the Confidential Information as if they were the actions or omissions of the Participant.<br /><br />5 Mandatory disclosure<br />5.1 Subject to the provisions of this clause 5, the Participant may disclose Confidential Information to the minimum extent required by an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction.<br />5.2 Before the Participant discloses any Confidential Information pursuant to clause 5.1 it shall, to the extent permitted by law, give the Council as much notice of this disclosure as possible. Where notice of such disclosure is not prohibited and is given in accordance with this clause 5.2, the Participant shall take into account the Council's requests in relation to the content of this disclosure.<br />5.3 If the Participant is unable to inform the Council before Confidential Information is disclosed pursuant to clause 5.1 it shall, to the extent permitted by law, inform the Council of the full circumstances of the disclosure and the information that has been disclosed as soon as reasonably practicable after such disclosure has been made.<br /><br />6 Return or destruction of Confidential Information<br />6.1 If so requested by the Council at any time by notice in writing to the Participant, the Participant shall promptly:<br />6.1. destroy or return to the Council or permanently erase (including, to the extent legally and technically practicable, from its computer(s) and communications systems and devices or from systems and data storage services provided by third parties) all documents and materials (and any copies) containing, reflecting, incorporating or based on any Confidential Information; and<br />6.1.2 certify in writing to the Council that it has complied with the requirements of this clause 6.1.<br />6.2 Nothing in clause 6.1 shall require the Participant to return or destroy any documents and materials containing or based on the Confidential Information that the Participant is required to retain by applicable law, or to satisfy the requirements of a regulatory authority or body of competent jurisdiction or the rules of any listing authority or stock exchange, to which it is subject. The provisions of this agreement shall continue to apply to any documents and materials retained by the Participant pursuant to this clause 6.2.<br /><br />7 Reservation of rights and acknowledgement<br />7.1 The Council reserves all rights in its Confidential Information. The disclosure of Confidential Information by the Council to the Participant does not give the Participant or any other person any licence or other right in respect of any Confidential Information beyond the rights expressly set out in this agreement.<br />7.2 Except as expressly stated in this agreement, the Council makes no express or implied warranty or representation concerning its Confidential Information, including but not limited to the accuracy or completeness of the Confidential Information.<br />7.3 The disclosure of Confidential Information by the Council shall not form any offer by, or representation or warranty on the part of, the Council to enter into any further agreement with the Participant in relation to the Purpose or the development or supply of any products or services to which the Confidential Information relates to.<br /><br />8 Indemnity<br />8.1 The Participant shall indemnify the Council against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Council arising out of or in connection with any breach of this agreement by the Participant, including as a result of the actions or omissions of any of its Representatives in accordance with clause 4.2.<br />8.2 If a payment due from the Participant under clause 8.1 is subject to tax (whether by way of direct assessment or withholding at its source), the Council shall be entitled to receive from the Participant such amount as shall ensure that the net receipt, after tax, of the Council in respect of the payment is the same as it would have been were the payment not subject to tax.<br /><br />9 Inadequacy of damages<br />Without prejudice to any other rights or remedies that the Council may have, the Participant acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement. Accordingly, the Council shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of this agreement by the Participant.<br /><br />10 No obligation to continue discussions<br />Nothing in this agreement shall impose an obligation on the Council to continue discussions or negotiations in connection with the Purpose, or an obligation on the Council to disclose any information (whether Confidential Information or otherwise) to the Participant.<br /><br />11 Ending discussions<br />11.1 The end of discussions relating to the Purpose shall not affect any accrued rights or remedies to which either party is entitled.<br /><br />12 No partnership or agency<br />12.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.<br />12.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.<br /><br />13 General<br />13.1 Assignment and other dealings. Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.<br />13.2 Entire agreement.<br />13.2.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.<br />13.2.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.<br />13.3 Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).<br />13.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.<br />13.5 Severance<br />13.5.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.<br />13.5.2 If any provision or part-provision of this agreement is deemed deleted under clause 13.5.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.<br />13.6 Notices<br />13.6.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or<br />13.6.2 Any notice or other communication shall be deemed to have been received:<br />(a) if delivered by hand, at the time the notice is left at the proper address;<br />(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or<br />13.6.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.<br />13.7 Third party rights.<br />13.7.1 This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.<br />13.8 Governing law. This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.<br />13.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.