ࡱ> { bjbjzz 4,,4h"\~F dv####$+l.djFlFlFlFlFlFlF$GJVF/$$//F##4F777/##jF7/jF77EF#3t0zE8VFF0FE6J6<J$FJF<//7/////FFV7X///F////J/////////, L:  Dated ------------ Supply of goods agreement between LEICESTER CITY COUNCIL and [SUPPLIER] THIS AGREEMENT is dated [DATE] Parties LEICESTER CITY COUNCIL whose principal address is New Walk Centre, welford Place, Leicester LE1 6ZG (Council). [THE SUPPLIER], a company incorporated and registered in England and Wales with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (Supplier). Background The Supplier carries on the business of selling the Products. The Council is contracting with the Supplier to supply, the Products on the terms and conditions set out in this agreement following a tendering process and tender award (together the Tender). Agreed terms Interpretation The definitions and rules of interpretation in this clause apply in this agreement. ADR notice: has the meaning given in clause REF "a502891" \h \w 23.1. Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business. Confidential Information: has the meaning given in clause REF "a530648" \h \w 14. Dispute: has the meaning given in clause REF "a502891" \h \w 23.1. Dispute Notice: has the meaning given in clause REF "a502891" \h \w 23.1. Force Majeure Event: has the meaning given in clause REF "a167483" \h \w 20. Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. Intellectual Property Right means any one of the Intellectual Property Rights. month: a calendar month. Products: the products set out in REF "a644097" \h \w Schedule 1 and, where the context requires, the Products ordered by and supplied to the Council. Product Prices: the prices of the Products as determined in accordance with clause REF "a601372" \h \w 7.1 and Product Price means the price of an individual Product as determined in accordance with that clause. Representatives: has the meaning given in clause REF "a537148" \h \w 14.2. Specification: the specification of the Products set out in REF "a825680" \h \w Schedule 2.. VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns. The schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the schedules. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. . A reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re-enacted from time to time and, in the case of a statute, includes any subordinate legislation made under that statute from time to time. A reference to writing or written includes faxes but not e-mail. Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done. A reference to an agreement is a reference to that agreement as varied or novated (in each case, other than in breach of the provisions of this agreement) at any time. References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. Supply of the products The Supplier shall supply the Products, quality and packing The Supplier shall pack and supply the Products in accordance with the specification in Schedule 2 The Products supplied to the Council by the Supplier under this agreement shall: conform to the Specification; be in accordance with the samples approved by the Council during the Tender process be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose or made known to the Supplier by the Council; comply with all applicable statutory and regulatory requirements. The Supplier shall ensure that the Products are properly packed and secured in such manner as to enable them to reach their destination in good condition. The Supplier shall obtain and maintain in force for the Term all licences, permissions, authorisations, consents and permits needed to manufacture and supply the Products in accordance with the terms of this agreement. The Supplier shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to the manufacture, packing, packaging, marking, storage, handling, and delivery of the Products. Delivery The Supplier shall deliver the Products in accordance with the delivery instructions set out in Schedule 3 Delivery of each instalment shall be complete on its being offloaded by the supplier at the delivery address. If delivery of an instalment is not completed at the arranged delivery time, then without limiting any other right or remedy the Council may have, the Council may: refuse to take any subsequent attempted delivery of the instalment; terminate this agreement with immediate effect; obtain substitute products from another supplier and recover from the Supplier any costs and expenses reasonably incurred by the Council in obtaining such substitute products; and subject to clause REF "a338384" \h \w 12, claim damages for any other costs, expenses or losses resulting from the Supplier's failure to deliver the instalment in accordance with the arranged delivery time, provided that the Supplier shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by the Council's failure to comply with its obligations under this agreement. If the Council fails to accept delivery of an instalment on a date agreed with the Council for delivery, then, except where such failure or delay is caused by the Supplier's failure to comply with its obligations under this agreement: the instalment shall be deemed to have been delivered at 9.00am on the day of the arranged delivery time of the instalment; and the Supplier shall store the instalment until delivery takes place, and charge the Council for all related costs and expenses (including insurance). Each instalment shall be accompanied by a delivery note from the Supplier showing the instalment/Contract reference, Street Name, Product details and the number of each product in each pack, in the case of a delivery by instalments, the outstanding balance of Products remaining to be delivered in respect of each Street. Each completed instalment may be invoiced separately The supplier acknowledges that the delivery address and access thereto including highway access is suitable for its delivery requirements. If the Supplier requires the Council to return any packaging materials to the Supplier, that fact must be clearly stated on the delivery note accompanying the relevant instalment, and any such returns shall be at the Supplier's expense. Acceptance and defective products The Council shall not be deemed to have accepted any Products until 30 Business Days following Delivery of an instalment to inspect them, or, in the case of a latent defect in the Products, following the latent defect becoming apparent]. If any Products delivered to the Council do not comply with clause REF "a642829" \h \w 3.1, or are otherwise not in conformity with the terms of this agreement, then, without limiting any other right or remedy that the Council may have, the Council may reject those Products and: require the Supplier to replace the rejected Products at the Suppliers risk and expense within five Business Days of being requested to do so; or require the Supplier to repay the price of the rejected Products in full (whether or not the Council has previously required the Supplier to replace the rejected Products); and claim damages for any other costs, expenses or losses resulting from the Supplier's delivery of Products that are not in conformity with the terms of this agreement. The Council's rights and remedies under clause REF "a571602" \h \w 5 are in addition to the rights and remedies available to it in respect of the statutory conditions relating to description, quality, fitness for purpose and correspondence with sample implied into this agreement by the Sale of Goods Act 1979. The terms of this agreement shall apply to any repaired or replacement Products supplied by the Supplier. If the Supplier fails to promptly repair or replace rejected Products in accordance with clause REF "a749340" \h \w 5.2(a), the Council may, without affecting its rights under clause REF "a594433" \h \w 5.2(c), obtain substitute products from a third party supplier, or have the rejected Products repaired by a third party, and the Supplier shall reimburse the Council for the costs it incurs in doing so. If the parties dispute whether any Products comply with clause REF "a642829" \h \w 3.1, either party may refer the matter to an Independent Expert for determination in accordance with clause REF "a674076" \h \w 1. Title and risk The risk in Products delivered to the Council shall pass to the Council on Delivery. Title to Products delivered to the Council shall pass to the Council on Delivery. Product prices The Product Prices shall be the prices set out in REF "a644097" \h \w Schedule 1.. The Product Prices are exclusive of amounts in respect of VAT. The Council shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on a supply of Products. The Product Prices are inclusive of the costs of packaging, insurance and carriage of the Products. . Terms of payment The Supplier shall be entitled to invoice the Council for each instalment on or at any time after delivery of that instalment. Each invoice shall include the same information as that required on the delivery notes. The Council shall pay invoices in full within 30 days of receipt. Payment shall be made to the bank account nominated in writing by the Supplier. If a party fails to make any payment due to the other under this agreement by the due date for payment (due date), then, without limiting the other party's remedies under clause REF "a746865" \h \w 17.1, the defaulting party shall pay interest on the overdue amount at the rate of [4] % per annum above Cooperative Bank plc base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments that the defaulting party disputes in good faith. If the Council disputes any invoice or other statement of monies due, the Council shall immediately notify the Supplier in writing. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. The Supplier shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. If the parties have not resolved the dispute within 30 days of the Council giving notice to the Supplier, the dispute shall be resolved in accordance with clause REF "a992536" \h \w 23, Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date as set out in clause REF "a559779" \h \w 8.2. The Suppliers obligations to supply the Products shall not be affected by any payment dispute. Each party may, without limiting any other rights or remedies it may have, set off any amounts owed to it by the other party against any amounts payable by it to the other party under this agreement. All payments payable to the Supplier or the Council under this agreement shall become due immediately on its termination. This clause REF "a701413" \h \w 8.6 is without prejudice to any right to claim for interest under the law or under this agreement. Council Policies The supplier shall comply with the council policies set out in Schedule 4. Insurance During this agreement the Supplier shall maintain in force the following insurance policies with reputable insurance companies: public liability insurance for not less than 5 million per claim; and product liability insurance for not less than 5 million for claims arising from any single event and not less than 5 million in aggregate for all claims arising in an year. The Supplier shall ensure that the Council's interest is noted on each insurance policy, or that a generic interest clause has been included. On taking out and on renewing each policy, the Supplier shall promptly send a copy of the receipt for the premium to the Council. On the Council's written request, the Supplier shall provide the Council with copies of the insurance policy certificates and details of the cover provided. The Supplier shall ensure that any subcontractors also maintain adequate insurance having regard to the obligations under this agreement which they are contracted to fulfil. The Supplier shall: do nothing to invalidate any insurance policy or to prejudice the Council's entitlement under it; and notify the Council if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change. The Supplier's liabilities under this agreement shall not be deemed to be released or limited by the Supplier taking out the insurance policies referred to in clause REF "a597162" \h \w 10.1. If the Supplier fails or is unable to maintain insurance in accordance with clause REF "a597162" \h \w 10.1, or fails to provide evidence that it has paid the current year's premiums in accordance with clause REF "a209038" \h \w 10.2, the Council may, so far as it is able, purchase such alternative insurance cover as it deems to be reasonably necessary and shall be entitled to recover all reasonable costs and expenses it incurs in doing so from the Supplier. Indemnity The Supplier shall indemnify the Council against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and otherreasonable professional costs and expenses) suffered or incurred by the Council arising out of or in connection with: any claim made against the Council for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the supply or use of the Products; any claim made against the Council by a third party arising out of, or in connection with, the supply of the Products, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this agreement by the Supplier, its employees, agents or subcontractors; and any claim made against the Council by a third party for death, personal injury or damage to property arising out of, or in connection with, defective Products, to the extent that the defect in the Products is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors. Nothing in this clause shall restrict or limit the Council's general obligation at law to mitigate a loss which it may suffer or incur as a result of a matter that may give rise to a claim under this indemnity. Limitation of liability This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of: any breach of this agreement; any use made or resale of the Products by the Council, or of any product incorporating any of the Products; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement. Nothing in this agreement shall limit or exclude the liability of either party for: death or personal injury resulting from negligence; or fraud or fraudulent misrepresentation; or breach of the terms implied by section 12 of the Sale of Goods Act 1979; or breach of section 2 of the Consumer Protection Act 1987; or the indemnities contained in clause REF "a334339" \h \w 11; or the deliberate default or wilful misconduct of that party, its employees, agents or subcontractors] Without prejudice to clause REF "a985764" \h \w 12.2, neither party shall be liable to the other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any: loss of profit; or loss of goodwill; or loss of business; or loss of business opportunity; or loss of anticipated saving; or loss or corruption of data or information; or special, indirect or consequential damage or loss suffered by the other party that arises under or in connection with this agreement. Without prejudice to clause REF "a985764" \h \w 12.2 the Supplier's total liability arising under or in connection with this agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to 5 million Without prejudice to clause REF "a985764" \h \w 12.2 [or clause REF "a330158" \h \w 12.3], the Council's total liability arising under or in connection with this agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited as follows: for non-payment of invoices for Products purchased, to the amount unpaid, and any interest due on such amount pursuant to clause REF "a615460" \h \w 8.3; or for any other type of liability, to 5 million Assignment and subcontracting Neither party may assign or transfer or subcontract any of its rights, benefits or obligations under this agreement without the prior written consent of the other party. Confidentiality Each party undertakes that it shall not at any time disclose to any person any confidential information disclosed to it by the other party concerning the business or affairs of the other party or of any member of its Group, including information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and Councils (Confidential Information), except as permitted by clause REF "a537148" \h \w 14.2. Each party may disclose the other partys Confidential Information: to its employees, officers, agents, consultants or subcontractors (Representatives) who need to know such information for the purposes of carrying out the party's obligations under this agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause REF "a530648" \h \w 14 as though they were a party to this agreement. The disclosing party shall be responsible for its Representatives' compliance with the confidentiality obligations set out in this clause; and as may be required by law, court order or any governmental or regulatory authority. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a partys Confidential Information other than those expressly stated in this agreement are granted to the other party or to be implied from this agreement. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either party now or in the future. prevention of bribery Prohibited Act shall mean one or more the following: (a) to directly or indirectly offer, promise or give any person working for or engaged by the Authority a financial or other advantage to: (i) induce that person to perform improperly a relevant function or activity; or (ii) reward that person for improper performance of a relevant function or activity; (b) to directly or indirectly request, agree to receive or accept any financial or other advantage as an inducement or a reward for improper performance of a relevant function or activity in connection with this Agreement; (c) committing any offence: (i) under the Bribery Act; (ii) under legislation creating offences concerning fraudulent acts; (iii) at common law concerning fraudulent acts relating to this Agreement or any other contract with the Authority; or (iv) defrauding, attempting to defraud or conspiring to defraud the Authority. The Supplier: shall not, and shall procure that it and any subcontractor and any employees of either shall not, in connection with this agreement commit a Prohibited Act; warrants, represents and undertakes that it is not aware of any financial or other advantage being given to any person working for or engaged by the Council, or that an agreement has been reached to that effect, in connection with the execution of this agreement, excluding any arrangement of which full details have been disclosed in writing to the Council before execution of this agreement. The Supplier shall: if requested, provide the Council with any reasonable assistance, at the Council's reasonable cost, to enable the Council to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with the Bribery Act; within ten Working Days of the Commencement Date, and annually thereafter, certify to the Council in writing (such certification to be signed by an officer of the Supplier) compliance with this clause 17 by the Supplier and all persons associated with it or other persons who are supplying goods or services in connection with this agreement. The Supplier shall provide such supporting evidence of compliance as the Council may reasonably request. The Supplier shall have an anti-bribery policy (which shall be disclosed to the Council) to prevent itself or any subcontractor or any employee or agent of either from committing a Prohibited Act and shall enforce it where appropriate. If any breach of clause 17.1 is suspected or known, the Supplier must notify the Council immediately. If the Supplier notifies the Council that it suspects or knows that there may be a breach of clause 25.1, the Supplier must respond promptly to the Council's enquiries, co-operate with any investigation, and allow the Council to audit books, records and any other relevant documentation. This obligation shall continue for seven years following the expiry or termination of this agreement. The Council may terminate this agreement by written notice with immediate effect if the Supplier, any subcontractor or employee or agent of either (in all cases whether or not acting with the Supplier's knowledge) breaches clause 25.1. In determining whether to exercise the right of termination under this clause 25.6, the Council shall give all due consideration, where appropriate, to action other than termination of this agreement unless the Prohibited Act is committed by the Supplier or a senior officer of the Supplier or by an employee, sub-contractor or supplier not acting independently of the Supplier. The expression "not acting independently of" (when used in relation to the supplier or a rub-contractor) means and shall be construed as acting: with the Council; or, with the actual knowledge; of any one or more of the directors of the Supplier or sub-contractor (as the case may be); or in circumstances where any one or more of the directors of the Supplier ought reasonably to have had knowledge. Any notice of termination under clause 17.6 must specify: the nature of the Prohibited Act; the identity of the party whom the Council believes has committed the Prohibited Act; and the date on which this agreement will terminate. Despite clause 25 (Dispute resolution), any dispute relating to: the interpretation of clause 17; or the amount or value of any gift, consideration or commission, shall be determined by the Council and its decision shall be final and conclusive. Any termination under clause 17.6 will be without prejudice to any right or remedy which has already accrued or subsequently accrues to the Council. Freedom of information The Supplier acknowledges that the Council is subject to the requirements of the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations2004 and shall assist and co-operate with the Council (at the Supplier's expense) to enable the Council to comply with these information disclosure requirements. The Supplier shall and shall procure that its Sub-Contractors shall: transfer the Request for Information to the Council as soon as practicable after receipt and in any event within two Working Days of receiving a Request for Information; provide the Council with a copy of all Information in its possession or power in the form that the Council requires within five Working Days (or such other period as the Council may specify) of the Council requesting that Information; and provide all necessary assistance as reasonably requested by the Council to enable the Council to respond to a Request for Information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the Environmental Information Regulations. The Council shall be responsible for determining at its absolute discretion whether any Information: is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Information Regulations; and/or is to be disclosed in response to a Request for Information. In no event shall the Supplier respond directly to a Request for Information unless expressly authorised to do so by the Council. The Supplier acknowledges that the Council may, acting in accordance with the Secretary of State for Constitutional Affairs' Code of Practice on the discharge of public authorities' functions under Part 1 of FOIA (issued under section 45 of the FOIA, November 2004), be obliged under the FOIA or the Environmental Information Regulations to disclose Information: without consulting with the Supplier; or following consultation with the Supplier and having taken its views into account, provided always that where clause REF "a451697" \h \w 16.5(b) applies the Council shall, in accordance with any recommendations of the Code, take reasonable steps, where appropriate, to give the Supplier advanced notice, or failing that, to draw the disclosure to the Supplier's attention after any such disclosure. The Supplier shall ensure that all Information produced in the course of this agreement or relating to this agreement is retained for disclosure and shall permit the Council to inspect such records as requested from time to time. The Supplier acknowledges that any details provided by it outlining information that it considers to be confidential or commercially sensitive are of indicative value only and that the Council may nevertheless be obliged to disclose such information in accordance with clause REF "a473060" \h \w 16.5. Termination A party shall be entitled to terminate this agreement with immediate effect by giving notice in writing to the other party if: the other party fails to pay any undisputed amount due under this agreement on the due date for payment and remains in default not less than 14days after being notified in writing to make such payment; or the other party commits a material breach of its obligations under this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30days after receipt of notice in writing requiring it to do so; or the other party commits a series of persistent minor breaches which, when taken together, amount to a material breach; or the other party 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or the other party 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 for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or 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 that other party [other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party]; or a creditor or encumbrancer of the other party 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 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 other party; or a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause REF "a804694" \h \w 17.1(d) to clause REF "a104408" \h \w 17.1(j) (inclusive); or the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or any Force Majeure Event prevents the other party from performing its obligations under this agreement for any continuous period of three months. A breach of any clause shall be a material breach of obligations for the purposes of this clause. Termination of this agreement shall not prejudice any of the parties' rights and remedies which have accrued as at termination. Obligations on termination Each party shall promptly: return to the other party all equipment, materials and property belonging to the other party that the other party had supplied to it or a member of its Group in connection with the supply of the Products under this agreement; return to the other party all documents and materials (and any copies) containing the other partys Confidential Information; erase all the other partys Confidential Information from its computer systems (to the extent possible); and on request, certify in writing to the other party that it has complied with the requirements of this clause REF "a501195" \h \w 18. Survival of obligations On termination of this agreement the following clauses shall survive and continue in full force and effect: Clause REF "a495588" \h \w 10 (Insurance);] Clause REF "a334339" \h \w 11 (Indemnity); Clause REF "a338384" \h \w 12 (Limitation of liability); Clause REF "a530648" \h \w 14 (Confidentiality); Clause 16 (Freedom of Information) Clause REF "a501195" \h \w 18 (Obligations on termination); Clause REF "a992536" \h \w 23 (Dispute resolution); and Clause REF "a244843" \h \w 30 (Governing law and jurisdiction). Force majeure Neither party (or any person acting on its behalf) shall have any liability or responsibility for failure to fulfil any obligation under this agreement so long as, and to the extent to which, the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event, except as provided in clause REF "a487923" \h \w 17. A party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of a Force Majeure Event: notify the other party of the nature and extent of such Force Majeure Event; and use all reasonable endeavours to remove any such causes and resume performance under this agreement as soon as feasible. For the purposes of this clause REF "a167483" \h \w 20, a Force Majeure Event means an event beyond the control of a party (or any person acting on its behalf), which by its nature could not have been foreseen by such party (or such person), or, if it could have been foreseen, was unavoidable, and includes acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources. Costs Save as otherwise provided in this agreement, each party shall pay its own costs in connection with the negotiation, preparation, execution and performance of this agreement, and all documents ancillary to it. Severance If any provision of this agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable. Dispute resolution procedure If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then, except as expressly provided in this agreement, the parties shall follow the dispute resolution procedure set out in this clause: 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 [SPECIFY EMPLOYEE TITLE] of the Supplier and [SPECIFY EMPLOYEE TITLE] of the Council shall attempt in good faith to resolve the Dispute; if the [SPECIFY EMPLOYEE TITLE] of the Supplier and [SPECIFY EMPLOYEE TITLE] of the Council are for any reason unable to resolve the Dispute within [30] days of service of the Dispute Notice, the Dispute shall be referred to the [SPECIFY SENIOR OFFICER TITLE] of the Supplier and [SPECIFY SENIOR OFFICER TITLE] of the Council who shall attempt in good faith to resolve it; and if the [SENIOR OFFICER TITLE] of the Supplier and [SENIOR OFFICER TITLE] of the Council are for any reason unable to resolve the Dispute within [30] days of it being referred to them, 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, a party must 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 [NUMBER] days after the date of the ADR notice. Unless otherwise agreed by the parties, the place of mediation shall be nominated by the mediator. The commencement of a mediation shall not prevent the parties commencing or continuing court proceedings Further assurance Each party shall (at its own expense) promptly execute and deliver all such documents, and do all such things, or procure the execution and delivery of all documents and doing of all such things as are required to give full effect to this agreement and the transactions contemplated by it. Variation and waiver Any variation of this agreement shall be in writing and signed by or on behalf of the parties. Any waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. No failure to exercise or delay in exercising any right or remedy provided under this agreement or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy. No single or partial exercise of any right or remedy under this agreement shall prevent or restrict the further exercise of that or any other right or remedy. Notices A notice served under this agreement: shall be in writing in the English language; shall be signed by or on behalf of the party giving it; shall be sent for the attention of the person, and to the address or fax number, given in this clause REF "a330294" \h \w 26 (or such other address, fax number or person as the relevant party may notify to the other parties in accordance with the provisions of this clause REF "a330294" \h \w 26); and shall be: delivered personally; or sent by fax; or sent by commercial courier; or sent by pre-paid first-class post or recorded delivery; or (if the notice is to be served by post outside the country from which it is sent) sent by airmail requiring signature on delivery. The addresses for service of notice are: [SUPPLIER] Address: For the attention of: Fax number: [COUNCIL] Address: For the attention of: Fax number: A notice or any other communication given in connection with this agreement is deemed to have been received: if delivered personally, at the time of delivery; or in the case of fax, at the time of transmission; or if sent by commercial courier, at the time of signature of the courier's delivery receipt; or in the case of pre-paid first class post or recorded delivery, [9.00 am] on the second Business Day after posting; or in the case of airmail, [9.00 am] on the fifth Business Day after posting. For the purposes of this clause: all times are to be read as local time in the place of deemed receipt; and if deemed receipt under this clause is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on any Business Day), the notice shall be deemed to have been received at the opening of business on the next Business Day in the place of receipt. To prove delivery, it is sufficient to prove that the notice was transmitted by fax to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted. Entire agreement This agreement constitute[s] the whole agreement and understanding of the parties and supersede[s] any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement. Each party acknowledges that, in entering into this agreement, it has not relied on any statement, representation, assurance or warranty (whether made negligently or innocently) other than those expressly set out in this agreement save such as may have been made to the Council during the Tender.. Each party agrees that all liability for and remedies in respect of any representations are excluded except as expressly provided in this agreement. Nothing in this clause shall limit or exclude any liability for fraud. Rights of third parties No term of this agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this agreement, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act. Counterparts This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement. Governing law and jurisdiction This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. The parties irrevocably agree that the courts of England and Wales shall have [non-]exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). This agreement has been entered into on the date stated at the beginning of it. The Products and Product Prices Tender Schedule to be inserted Specification [ Tender Specification to be inserted Schedule 3 Delivery/Stock Requirements Schedule 4 Council Policies PUBLIC INTEREST DISCLOSURE (WHISLTEBLOWING) The Supplier shall comply with the Public Interest Disclosure Act 1998 (as if such Act applied to the Supplier) and shall establish and where necessary update from time to time a procedure for the Supplier's Personnel encouraging those personnel to report to the Supplier any incidents of malpractice within the Supplier or Council. In this context malpractice shall include any fraud or financial irregularity, corruption, criminal offences, failure to comply with any legal or regulatory obligation, endangering the health or safety of any individual, endangering the environment, serious misconduct or serious financial maladministration. EQUALITIES a) The Supplier shall adopt and operate a policy to comply with its statutory obligations including but not limited to those under the Human Rights Act 1998, the Data Protection Act 1998 and the Equality Act 2010 and shall observe as far as possible all relevant codes of practice, including the EHRC Employment Statutory Code of Practice, which came into force on 6 April 2011, and accordingly will not treat one group of people less favourably than another because of their colour race religion nationality gender age sexual orientation or any disability in relation to its decisions to recruit, train or promote employees or its performance of the Services, particularly in relation to its dealings with members of the public and the Supplier shall ensure that its employees also comply with its statutory obligations, in the same terms as above, particularly in relation to their dealings with members of the public when engaged in the performance of the Services. b) The Supplier shall observe as far as possible and at least in accordance with the Councils published criteria the Equality and Human Rights Commissions Code of Practice on Racial Equality in Employment brought into effect by the Race Relations Code of Practice relating to Employment (Appointed Day) Order 2006 which gives practical guidance to employers and others on the elimination of racial discrimination and the promotion of equality of opportunity in employment including the steps that can be taken to encourage members of the ethnic minorities to apply for jobs or take up training opportunities. c) In the event of any finding of unlawful discrimination being made against the Supplier during the term this agreement by any court or employment tribunal or of an adverse finding in any form of investigation by a body charged with carrying out such investigation over the same period the Supplier shall inform the Council of this finding and shall take appropriate steps to prevent repetition of the unlawful discrimination. d) The Supplier shall on request provide the Council with details of any steps taken under paragraph 1.2(c) above. The Supplier shall set out its policy on discrimination: in instructions for those concerned with the recruitment training and promotion of its employees and sub-contractors; in documents available to employees recognised trade unions or other representative groups of employees; and in recruitment advertisements and other literature. e) The Supplier shall set out its policy on discrimination In instructions for those concerned with the recruitment training and promotion In documents available to employees recognised Trade Unions or other representative groups of employees In recruitment advertisements or other literature f) The Supplier shall on request provide the Council with examples of the instructions and document recruitment advertisements or other literature. g) The Supplier shall provide such information as the Council may reasonably request for the purpose of assessing the Suppliers compliance with paragraphs 1.2(a) to 1.2(f) above as far as relevant. The Supplier shall maintain racial incidents records and provide this information on a regular basis h) The Supplier shall by reference to its obligations under this paragraph 1.2 at all times maintain a system of audit monitoring and actions in respect of its employment practices services and customer care generally with a view to eliminating any disadvantage or discrimination on the basis of and to promoting equality of opportunity on the grounds of race (including ethnic origin nationality national origin or colour), gender, marital status, gender reassignment or disability, the promotion of good race relations between people of different racial groups, the need to take steps to take account of disabled persons disabilities, the promotion of positive attitudes towards disabled persons and the need to encourage participation by disabled persons in public life. Further, the Supplier shall co-operate with the Council in providing statistics and other information as the Council may from time to time reasonably require in connection with its duties as a public authority in connection with persons protected under equality legislation. BEST VALUE In undertaking the Services, the Supplier shall be under a duty to secure demonstrable, measurable continuous improvement (having regard to efficiency, economy and effectiveness) in the achievement of the delivery of its contractual obligations and of the Services as a whole, including specifically the cost of the Services, the time, cost quality and health and safety standards of the various processes involved in delivery of the Services and generally to provide best value outcomes to the Council as are set out in the Specification AND FURTHER the Supplier shall co-operate with the Council and others to the extent required so that the Council can keep under review the performance of the Services required under this agreement and this paragraph in particular. 1.4. EQUALITY a The Supplier must not discriminate between or against Service Users on the grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity race, religion or belief, sex, sexual orientation or any other nonmedical characteristics except as permitted by the Law. b In performing this Agreement the Supplier must comply with the Equality Act 2010 and have due regard to the obligations created by section 149 of the Act to: eliminate discrimination harassment victimisation or any other conduct that is prohibited by the Equality Act 2010; advance equality of opportunity between persons who share a protected characteristic (as defined in the Equality Act 20120) and persons who do not share it, and foster good relations between persons who share a relevant protected characteristic (as defined in the Equality Act 2010) and person who do not share it. c As soon as reasonably practicable following any reasonable request from the Commissioner the Provider must provide the Commissioner with a plan detailing how it will comply with its obligations under this Clause 1.4, ii) evidence of such compliance, and evidence that demonstrates that Staff have had appropriate training so that they understand the duties required under the Equality Act 2010 and other relevant Law not to discriminate and to promote equality. d The Provider must provide to the Commissioner as soon as reasonable practicable any information that the Commissioner reasonably requires in order to monitor the equity of access to the Services and/or to fulfil its obligations under the Law Signed by [NAME OF DIRECTOR] for and on behalf of [NAME OF SUPPLIER]....................................... DirectorSigned by [NAME OF DIRECTOR] for and on behalf of [NAME OF COUNCIL]....................................... 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