1.2. For the avoidance of doubt, these Terms do not create a contract of employment between the Assessment Specialist and OCR.

Transcription

1 Standard Terms for Assessment Services 1. BACKGROUND 1.1. These terms ( Terms ) set out the terms and conditions under which Oxford Cambridge and RSA Examinations ( OCR ) of 1 Hills Road, Cambridge, engages the Assessment Specialist to carry out Assessment Services For the avoidance of doubt, these Terms do not create a contract of employment between the Assessment Specialist and OCR No binding agreement will be formed until the Assessment Specialist has accepted an Invitation either in writing or by . By accepting an Invitation the Assessment Specialist accepts the Terms. 2. PROVISION OF ASSESSMENT SERVICES 2.1. The Assessment Specialist will provide the Assessment Services: in accordance with the Agreement; using reasonable skill and care commensurate with the responsibility of the task and acting in the best interest of OCR at all times; as detailed in any and all relevant instructions from OCR, including but not limited to the advice and guidance for Assessment Specialists in relation to child protection; as detailed in any relevant codes of practice; and in accordance with the General Conditions of Recognition issued by the Office of Qualifications and Examinations Regulation and any other relevant regulatory requirements; all policies of OCR and Cambridge as the same are in force from time to time and are notified to the Assessment Specialist The Assessment Specialist will be solely responsible at their own expense for the provision, protection and insurance of any equipment necessary to carry out the Assessment Services, including, but not limited to, sufficiently up-to-date computer hardware and software as appropriate, and OCR will not be liable for any damage or loss in respect of such equipment Subject to clause 2.1.3, while the Assessment Specialist is able to decide how best to perform the services, OCR will evaluate any services provided by the Assessment Specialist to ensure they are of a sufficient standard to meet OCR s quality and regulatory requirements The Assessment Specialist will attend and participate in such reviews and training activities as required by OCR. Standard Terms for Assessment Services v3 (as of August 2015) Page 1 of 10

2 2.5. The Assessment Specialist shall give to OCR all such information and reports as it may reasonably require in connection with matters relating to the provision of the Assessment Services The Assessment Specialist will co-operate in good faith with any Representative of OCR or its clients (or any other person nominated by OCR) in respect of any review The Assessment Specialist shall ensure than he (or she) has the visas, work permits and other consents necessary to enable OCR to make full use of the Assessment Services. The Assessment Specialist shall, upon request, promptly provide OCR with proof of the above visas, work permits and other consents. 3. DURATION 3.1. Unless terminated earlier, the Agreement will continue in force for the period set out in the Invitation and will automatically terminate on the expiry of that period or on the completion of the Assessment Services, as applicable For the avoidance of doubt OCR is under no obligation to offer any other invitation on expiry of the Agreement and the Assessment Specialist is under no obligation to offer any services for any further period. 4. TERMINATION AND SUSPENSION 4.1. Either Party may terminate the Agreement at any time by giving not less than one month s written notice to the other Party The Assessment Specialist may terminate the Agreement on written notice of less than one month, provided the Assessment Specialist gives as much notice as is reasonably possible, in the following circumstances: for reasons of ill health, subject to provision of a doctor s certificate; or, if an immediate family member is seriously ill or has died, or for any other reason on request, if consented to by OCR If the Assessment Specialist becomes aware of any event which is likely to prevent, hinder or delay him (or her), or is preventing, hindering or delaying him (or her) from performing any of his (or her) obligations under this Agreement, then he (or she) shall promptly notify OCR in writing of the event, including details about the nature of the event and its duration Without prejudice to any other rights or remedies it may have, OCR may terminate the Agreement immediately by giving written notice if, in the sole opinion of OCR: the Assessment Specialist breaches any material provision of this Agreement, including but not limited to, any of the provisions in clauses 5, 6 or 7; or the Assessment Specialist s conduct, standard of assessment tasks or administrative duties or any other aspect of the Assessment Specialist s performance under this Agreement or any other agreement with OCR or Cambridge is not in OCR s reasonable opinion satisfactory or professional; or Standard Terms for Assessment Services v3 (as of August 2015) Page 2 of 10

3 the Assessment Specialist fails or refuses to comply with the requirements of the relevant codes of practice, OCR s current Assessment Specialist instructions and procedures, or any other reasonable instructions from OCR; or the Assessment Specialist fails, refuses, or is unable for an aggregate period of thirty days (whether or not they are consecutive days) by reason of mental or physical incapacity, to perform the Assessment Specialist s obligations under this Agreement; or there is insufficient volume of work and as a result the Assessment Services are no longer needed, or any project or event (or part of such project or event) in respect of which the Assessment Specialist was engaged has been cancelled or delayed; or the Assessment Specialist s previous or current conduct, statements or actions in any way (i) bring, or are likely to bring, OCR, Cambridge, or any Representatives of OCR or Cambridge, or its clients, products or services, into disrepute or (ii) adversely affect or are likely to adversely affect the interests of any of the foregoing; or the Assessment Specialist has failed to declare an interest, or to provide any other notice as required by this Agreement; or the Assessment Specialist has a conflict of interest which in the sole opinion of OCR makes the Assessment Specialist an inappropriate person to carry out the Assessment Services; or the Assessment Specialist is in custody or is under investigation by the police, an employer, regulatory authority, malpractice committee or any other agency; or the Assessment Specialist is convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed); the Assessment Specialist s use of any form of social media is detrimental to OCR and/or the Assessment Specialist is not acting in the best interests of OCR when using any form of social media; or the Assessment Specialist is in breach of any other agreement with OCR or Cambridge Other than as set out in this Agreement, neither party shall have any further obligation to the other under this Agreement after its termination Clauses which expressly or by implication have effect after termination will continue in full force and effect following expiry or termination of the Agreement however occurring OCR may, without notice, suspend the Assessment Specialist from work under this Agreement, pending an investigation into whether OCR should terminate the Agreement under clause 4.4 and/or claim damages. At this stage, OCR does not affirm or terminate the contract, or waive any rights. OCR shall endeavour to keep the suspension as brief as possible and shall keep the suspension under review, maintaining contact with the Assessment Specialist throughout this process. The Standard Terms for Assessment Services v3 (as of August 2015) Page 3 of 10

4 Assessment Specialist shall not be entitled to any fees during a period of suspension. 5. CONFIDENTIALITY AND DISCLOSURE 5.1. The Assessment Specialist s work is strictly confidential and the confidentiality restrictions contained in this clause continue after expiry or termination of the Agreement, however occurring, for a period of five (5) years The Assessment Specialist shall immediately notify the Responsible Officer of any breach of the confidentiality provisions in this clause The Assessment Specialist will not, either during or at any time after the expiry or termination of this Agreement, use (except in the course of his or her duties) or divulge or communicate or permit to be disclosed or communicated to any unauthorised person, company, business entity, the media/social media or any other organisation any Confidential Information connected with or acquired in the course of undertaking the Assessment Services To use or divulge, disclose, or communicate or permit to be disclosed or communicated any Confidential Information in breach of clause 5.3 will be treated as a very serious matter and could result in the immediate termination of the Agreement or further legal action as appropriate The provisions of this clause shall not apply to any Confidential Information that is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause); was available to the receiving party on a non-confidential basis before disclosure by the disclosing party; was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or is developed by or for the receiving party independently of the information disclosed by the disclosing party The Assessment Specialist must ensure the security of all Confidential Information, including any assessment materials, both in electronic and paper form, in the Assessment Specialist s possession and the Assessment Specialist is responsible for their security The Assessment Specialist will only carry out the Assessment Services at Secure Premises in accordance with the Assessment Specialist instructions The Assessment Specialist will return to OCR or destroy any documents or other articles containing Confidential Information on termination of this Agreement or if requested to do so by OCR for whatever reason An Assessment Specialist who contributes to, has sight of, or has any involvement in the production of confidential assessment materials or confidential information about an assessment for an OCR specification shall not accept any engagement, where such engagement involves the delivery of advice, training or guidance on that OCR specification for the lifetime of the specification. In this case engagement means any appointment or employment, either directly or with an agency, whether under contract of service or a contract for services or otherwise, which is not offered and organised by OCR. This clause applies from the date of the Assessment Specialist s first involvement with the specification. Standard Terms for Assessment Services v3 (as of August 2015) Page 4 of 10

5 5.10. An Assessment Specialist who contributes to, has sight of, or has any involvement in the production of confidential assessment materials or confidential information about an assessment for an OCR specification is required to disclose this in writing to the Responsible Officer. The disclosure should include all instances in which the Assessment Specialist has been, or is currently, involved in the preparation of a resource designed to support the preparation of learners for assessments for an OCR qualification in which the Assessment Specialist has been required to provide any services in any capacity. In this case 'learners' includes persons who are likely to become learners for an OCR qualification. For the avoidance of doubt this does not apply to the preparation of teaching resources or materials by an Assessment Specialist exclusively for learners the Assessment Specialist teaches To ensure the integrity of OCR s assessments the Assessment Specialist must notify the Responsible Officer, in writing, if the Assessment Specialist has any interest in or with any person taking or involved in any way with an OCR assessment at any time during the period of this Agreement and for 2 years following the termination of this Agreement. The Assessment Specialist has an interest in a person if that person is a close relative, or is a person where the Assessment Specialist s interest (whether professional or not) could compromise the integrity of OCR s assessments, or the Assessment Specialist s integrity, if the relationship were not disclosed The Assessment Specialist shall notify the Responsible Officer, in writing, at the commencement of the Agreement and at any time during the Agreement of any potential conflicts of interest, including, but not limited to, authoring, preparing candidates, offering any type of support services, or any previous or existing relationship with any OCR centre in which the Assessment Specialist as an individual has been required to provide services in any capacity The Assessment Specialist shall notify the Responsible Officer, in writing, at the commencement of the Agreement and at any time during the Agreement, if the Assessment Specialist is preparing candidates for the specification for which the Assessment Specialist is providing Assessment Services to OCR OCR retains the right to determine in its sole discretion whether a conflict of interest exists and any such judgement will be final The Assessment Specialist shall notify the Responsible Officer, in writing, at the commencement of this Agreement or at any time during the period of this Agreement, if the Assessment Specialist is barred by the Disclosure and Barring Service (DBS), is in custody or is under investigation by the police, an employer, any regulatory authority, a malpractice committee, or any other agency The Assessment Specialist will ensure that any computer or other electronic equipment used to carry out the Assessment Services is kept safe and secure at all times, and that all Confidential Information stored therein is password protected. 6. DATA PROTECTION 6.1. The Assessment Specialist consents to the processing by OCR of his or her Personal Data and Sensitive Personal Data (both as defined in the Data Protection Act 1998 (the DPA )), including name, address and other contact details, details of any medical conditions, and any details or commentary pertaining to the Assessment Specialist s engagement by OCR, for OCR s legitimate business purposes, including any processing necessary for OCR s Representatives to carry Standard Terms for Assessment Services v3 (as of August 2015) Page 5 of 10

6 out their legitimate business activities, recording any review of the Assessment Specialist s performance under the Agreement, or undertaking checks to ensure the Assessment Specialist s suitability to work with vulnerable groups The Assessment Specialist consents to the transfer by OCR of his or her Personal Data and Sensitive Personal Data, for its legitimate business purposes, within OCR, the University of Cambridge Local Examination Syndicate and its group, the University of Cambridge and to third parties such as schools or centres and Cambridge s suppliers, including other Assessment Specialists, and outside the European Economic Area (EEA) The Parties will comply with the DPA in their processing of Personal Data insofar as such processing is necessary pursuant to this Agreement. For the avoidance of doubt the Assessment Specialist will treat all Personal Data obtained in the course of the performance of his or her duties, including information relating to other Assessment Specialists, in accordance with the DPA. Without prejudice to the generality of the foregoing, the Assessment Specialist shall (a) process all such Personal Data in accordance with OCR s instructions and (b) take such technical and organisational measures against unauthorised or unlawful processing of such data and against accidental loss or destruction of, or damage to, such data and information as are appropriate to OCR as data controller. 7. INTELLECTUAL PROPERTY RIGHTS 7.1. The Assessment Specialist acknowledges that OCR is beneficially entitled to all inventions, designs, information, modifications and improvements of any kind, knowhow, copyright work, rights in databases, domain name, trademarks including but not limited to all records, reports, documents, papers, examination materials and any and all other intellectual property rights in all works in each case made, developed or created by the Assessment Specialist in connection with the Assessment Services whether alone or with any other person, including all Materials ( the Works ). The Assessment Specialist hereby assigns existing and future intellectual property rights in the Works and all materials embodying these rights to the fullest extent permitted by law The Assessment Specialist hereby irrevocably and unconditionally waives all moral rights in the Works to which he (or she) is or may at any future time be entitled to under Chapter IV of the Copyright, Designs and Patents Act 1988 or similar provisions of law in any jurisdiction The Assessment Specialist will, at OCR s request, sign such documents and do all such acts as OCR may require to fully and effectively vest in OCR, free from encumbrances, all rights, titles and interest in the matters referred to in clause 7.1 above so that OCR may obtain patents, registered designs or other protection in its own name in the United Kingdom or any other countries required by OCR If any of the Intellectual Property Rights, or any other rights, in the Materials are owned by third parties ("Third Party Rights"), the Assessment Specialist will promptly provide details of the relevant third party and the extent of their ownership to OCR The Assessment Specialist will not use Cambridge Marks or any other OCR Intellectual Property for any purpose other than as expressly provided in this Agreement The Assessment Specialist will not, without OCR s prior written consent, use the Assessment Specialist s name in association with that of OCR whilst carrying out Standard Terms for Assessment Services v3 (as of August 2015) Page 6 of 10

7 the Assessment Services. The Assessment Specialist will not use the OCR name for the Assessment Specialist s own commercial or non-commercial purposes or whilst carrying out services under any other agreement with OCR, or allow it to be so used, whether expressly or by implication The Assessment Specialist will not do or authorise any third party to do any act which would or might invalidate or might be inconsistent with any OCR Intellectual Property Rights and shall not omit or authorise any third party to omit to do any act which, by its omission would have that effect. 8. FEES 8.1. All sums payable under this Agreement are inclusive of any applicable value added or sales tax or any other duties, Taxes or imports for which OCR shall not be additionally liable OCR reserves the right to reduce the Fees, or to refuse to pay the Fees or a portion of the Fees, if the Assessment Specialist s work is below the standard expected by OCR in terms of quality, quantity or timing of delivery, or if the work is outside the remit of the Assessment Services set out in the Invitation OCR will reimburse all reasonable travel and hotel expenses, including such other expenses as are set out in the Invitation, properly incurred in the provision of the Assessment Services and which comply with OCR s expenses guidelines, as amended from time to time, subject to the production of receipts OCR shall endeavour to pay undisputed, accurate, properly submitted expenses claims within 30 calendar days of receipt OCR shall pay the Fees and expenses only by direct transfer to one personal bank account which is solely or jointly held by the Assessment Specialist, in accordance with the payment schedule set out in the Invitation. The Assessment Specialist shall ensure that he (or she) provides OCR with his (or her) bank details and such information as it may reasonably require in order to make the above payments In the event that the Agreement terminates under clause before the Assessment Specialist has fully performed the Assessment Services, OCR will only be liable to pay the Fees pro rata based on the proportion of the Assessment Services satisfactorily performed. 9. TAX LIABILITY AND WITHHOLDINGS 9.1. Subject to clause 9.2, the Assessment Specialist is liable to account to the relevant authorities for Taxes In accordance with HM Revenue and Customs ( HMRC ) regulations in force from time to time, OCR will on the Assessment Specialist s behalf deduct income tax at such rates advised by HMRC if the Assessment Specialist is subject to UK tax OCR will make any deductions or withholdings from the Fees on the Assessment Specialist s behalf as required by law including payments into any automatic enrolment pension scheme The Assessment Specialist hereby agrees to indemnify OCR in respect of any claims that may be made by the relevant authorities against OCR in respect of any Taxes. Standard Terms for Assessment Services v3 (as of August 2015) Page 7 of 10

8 10. ASSIGNMENT The Assessment Specialist may only assign, sub-contract or otherwise transfer any benefit or burden of this Agreement to any third party with the prior approval and written consent of OCR. 11. GENERAL These Terms together with the Invitation contains the entire agreement between the Parties relating to the Assessment Services provided by the Assessment Specialist and supersedes all previous agreements and understandings between the Parties with respect thereto, and may not be modified except by mutual agreement of the Parties evidenced in writing (and writing for the purpose of this clause includes ) Both the Assessment Specialist and OCR acknowledge that in entering into this Agreement, they do not do so on the basis of, and do not rely on, any representation or warranty or other provision except as expressly provided herein; however, nothing in the Agreement purports to exclude liability for any fraudulent statement or act The total liability of OCR to the Assessment Specialist, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement will not exceed the sum of 10,000, except in the case of death or personal injury caused by negligence, or in case of fraudulent misrepresentation No person who is not a party to the Agreement will have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement The Assessment Specialist shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and shall not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act The Assessment Specialist shall promptly report to OCR any request or demand which if complied with would amount to a breach of these terms and conditions The Parties acknowledge that OCR is subject to the requirements of the Freedom of Information Act The Assessment Specialist agrees that it will provide all necessary assistance as may be reasonably requested by OCR at its own expense to enable OCR to comply with its obligations under the act Any notice required to be given under the Agreement by either party to the other will be in writing and, in the case of the Assessment Specialist, will be served by sending the same to the Responsible Officer at the address set out in clause 1, and in the case of OCR, will be served by sending the same to the last known address of the Assessment Specialist The Assessment Specialist will not hold himself or herself out as an employee of OCR and will not commit the funds of OCR or sign any document or make any promise on OCR s behalf except with OCR s prior written permission The invalidity, illegality or unenforceability of any of the provisions of this Agreement will not affect the validity, legality and enforceability of its remaining provisions. Standard Terms for Assessment Services v3 (as of August 2015) Page 8 of 10

9 12. ENGLISH LAW The Agreement will be governed by English Law, and all disputes will be subject to the non-exclusive jurisdiction of the courts of England and Wales. 13. INTERPRETATION AND DEFINITIONS In the event of any conflict between the provisions of these Terms and the provisions of the Invitation, the provisions of the Terms will prevail In these Terms and any agreement based on them the following words and phrases have the meanings given to them below: Agreement means the complete legal agreement between OCR and the Assessment Specialist comprising the Terms, the Invitation including any attachments or enclosures with the Invitation; Assessment Services means the services described in the Invitation; Assessment Specialist means the individual or entity engaged to carry out the Assessment Services; Cambridge means the University of Cambridge Local Examinations Syndicate trading as Cambridge Assessment acting for and on behalf of The Chancellor Masters and Scholars of the University of Cambridge Cambridge Marks means any trademark, registered mark or design or any other identifier that is identified with OCR, Cambridge, Cambridge University, University of Cambridge Local Examination Syndicate or Cambridge Assessment and for the purposes of clarity only but not exclusively includes OCR, CIE, University of Cambridge International Examinations, University of Cambridge Local Examinations Syndicate, UCLES, the University of Cambridge or Cambridge ; Confidential Information includes, but is not limited to, any information that would be reasonably regarded as confidential, which relates to: a) the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of OCR, and the operations, processes, product information, know-how, designs, trade secrets or software of OCR and any photographs or videos taken at OCR training sessions; b) the nature or any aspect of the Assessment Services undertaken by the Assessment Specialist; c) the nature or any aspect of the work undertaken by OCR; d) any other of OCR s affairs, whether financial or otherwise; e) the content of any work undertaken or created by the Assessment Specialist or created or produced by OCR; f) usernames, passwords or any other security measures issued by OCR or its agents or sub-contractors; g) any and all assessment materials, and h) any Personal Data referred to in clause 6.3. Standard Terms for Assessment Services v3 (as of August 2015) Page 9 of 10

10 Fees mean the fees detailed in the Invitation; Force Majeure means any circumstance beyond the reasonable control of a Party including any strike or other form of industrial action, war, riot, civil commotion, terrorism, malicious damage, compliance with law or governmental order or regulation, accident, breakdown of plant or machinery, epidemic, fire, flood, storm or other act of god; Invitation means the particular invitation letter or (including any additional enclosures or attachments) inviting the Assessment Specialist to perform the Assessment Services specified in the invitation, as amended or varied from time to time; Materials means any deliverable items in whatever media produced for OCR as part of the Assessment Services; Parties means the Assessment Specialist and OCR; and Representatives mean officers, employees, agents, sub-contractors or professional advisors; Responsible Officer means the person designated as the responsible officer in the Invitation, and absent an express designation means the person who has signed the Invitation on behalf of OCR; Secure Premises means premises where an Assessment Specialist can work confidentially and can keep materials away from third parties; and secure premises do not generally include public places; and Taxes means all taxes on income including withholding tax and any National Insurance, penalties, interest or other contributions or liabilities imposed in relation to the Fees. Standard Terms for Assessment Services v3 (as of August 2015) Page 10 of 10