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EARLY YEARS FREE ENTITLEMENT FUNDING CONTRACT 2017 – 2018 CONTENTS CLAUSE 1. Definitions and Interpretation 1 2. Term 5 3. local authority responsibilities 5 4. Provider responsibilities 6 5. Supply of Services 6 6. personnel used to provide the services 7 7. Safeguarding 7 8. Vulnerable Groups Act 2006 8 9. Eligibility 8 10. The Grace Period 9 11. Flexibility 9 12. Partnership working 10 13. Dispute resolution 11 14. No Partnership or agency 11 15. Special educational needs and disabilities 12 16. Social mobility and disadvantage 12 17. Equality & Human Rights 12 18. Quality 13 19. Service standards 13 20. Business planning 13 21. Reporting and meetings 13 22. Monitoring 13 23. Absences 14 24. Freedom of information 14 25. Data protection 14 26. Confidentiality 15 27. Indemnities 15 28. Insurance 15 29. Sub-Contracting and assignment 16 30. Charging 16 31. Funding 17 32. Payment 17 33. Compliance 17 34. Audit 18 35. Prevention of bribery 18 36. Termination and withdrawal of funding 19 37. Termination for breach 20 38. Consequences of termination 20 39. Appeals process 21 40. Complaints process 21 41. Waiver 22 42. Rights and remedies 22 43. Severability 22 44. Third party rights 22 45. Publicity 22 46. Notices 23 47. Entire agreement & Variations 23 48. Governing law 23 49. Jurisdiction 24


THIS AGREEMENT is dated 2017 PARTIES (1) Cumbria County Council of Cumbria House, 117 Botchergate, Carlisle, Cumbria, CA1 1RD (Council). (2) The party whose details are set out in Schedule 1 (Provider). BACKGROUND (A) The Provider is a Provider of care within the Council’s area and is willing to provide the care required by the Childcare Act 2006 (B) The Council and the Provider have agreed to enter into this contract to ensure the provision of care to the relevant children within the Council’s area. AGREED TERMS 1. DEFINITIONS AND INTERPRETATION 1.1 The definitions and rules of interpretation in this clause apply in this agreement. Allotted Time: means the number of hours of the Service per week that the Parents and Child are eligible to receive based on their Eligibility. Authorised Representatives: the persons respectively designated as such by the Council and the Provider, the first such persons being set out in Schedule 1 and Schedule 4. Bribery Act: the Bribery Act 2010 and any subordinate legislation made under that Act from time to time together with any guidance or codes of practice issued by the relevant government department concerning the legislation. Charges: the charges which shall become due and payable by the Council to the Provider in respect of the Services in accordance with the provisions of this agreement, as such charges are set out in Schedule 3. Child/Children: means an individual of the Relevant Age who is Eligible to receive the Services Commencement Date: the date of this agreement. Data Processor: shall have the same meaning as set out in the Data Protection Act 1998. Data Protection Legislation: the Data Protection Act 1998 (DPA), the EU Data Protection Directive 95/46/EC, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner. EIRs: the Environmental Information Regulations 2004 (SI 2004/3391) together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such regulations. Eligibility: the eligibility for receipt of the Services as determined in accordance with clause 9 EYFS: the Early Years Foundation Stage statutory framework FOIA: the Freedom of Information Act 2000, and any subordinate legislation made under the Act from time to time, together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation. Force Majeure: any cause affecting the performance by a party of its obligations under this agreement arising from acts, events, omissions or non-events beyond its reasonable control, including acts of God, riots, war, acts of terrorism, fire, flood, storm or earthquake and any disaster, but excluding any industrial dispute relating to the Provider, the Provider's Personnel or any other failure in the Provider's supply chain. Funded Period: means each school term and the school holiday immediately following the term Guidance: means the Council’s Guidance on Services as updated from time to time. Information: has the meaning given under section 84 of FOIA. Insolvency Event: where: (a) the Provider suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; (b) the Provider 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; (c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company); (d) 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 Provider (being a company); (e) the holder of a qualifying floating charge over the assets of the Provider (being a company) has become entitled to appoint or has appointed an administrative receiver; (i) a person becomes entitled to appoint a receiver over the assets of the Provider or a receiver is appointed over the assets of the Provider; (f) the Provider (being an individual) is the subject of a bankruptcy petition or order; (g) a creditor or encumbrancer of the Provider 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 the other party's assets and such attachment or process is not discharged within 14 days; (h) 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 (a) to (g) (inclusive); (i) the Provider suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or (j) the Provider (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation. Law: any law, statute, subordinate legislation within the meaning of section 21(1) of the Interpretation Act 1978, bye-law, enforceable right within the meaning of section 2 of the European Communities Act 1972, regulation, order, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements of any regulatory body with which the Provider is bound to comply; Measures: means those activities outlined at Schedule 5. Necessary Consents: all approvals, certificates, authorisations, permissions, licences, permits, regulations and consents necessary from time to time for the performance of the Service including without limitation registration with Ofsted. Ofsted: means the Office for Standards in Education, Children’s Services and Skills or such other body or independent inspectorate as approved by central government from time to time Parent: means a parent, guardian or care giver of any relevant Child. Parent Declaration Form: means the form at Schedule 6 of this agreement. Personal Data: shall have the same meaning as set out in the Data Protection Act 1998. Progress Record: means a plan for the development of a Childs learning as part of the Services Prohibited Act: the following constitute Prohibited Acts: (a) to directly or indirectly offer, promise or give any person working for or engaged by the Council 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 or common law concerning fraudulent acts; (iii) defrauding, attempting to defraud or conspiring to defraud the Council. (d) any activity, practice or conduct which would constitute one of the offences listed under clause 1.1(c), if such activity, practice or conduct had been carried out in the UK. Provider’s Personnel: all employees, staff, other workers, agents and consultants of the Provider and any Sub-Contractors who are engaged in the provision of the Services from time to time. Register: the register of providers held by the Council who are capable of providing the Services. Regulated Activity: shall have the same meaning as set out in Part 1 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006. Regulated Activity Provider: shall have the same meaning as set out in section 6 of the Safeguarding Vulnerable Groups Act 2006. Relevant Age: means the age set out in documents referred to at Schedule 2 as applicable. Remediation Notice: a notice served by the Council in accordance with clause 37.1. Request for Information: a request for information or an apparent request under the Code of Practice on Access to Government Information, FOIA or the EIRs. SEND: Children with special educational needs and/or disabilities Services: the provision of early years free entitlement for Children in accordance with this agreement, as more particularly described at Schedule 2 Setting: the location for delivery of the Services Significant Failure: when: a. the Provider receiving an Ofsted report of “requires improvement” or “inadequate”, or any other equivalent grading; b. any action by the provider, whether in relation to the Services and this agreement or otherwise, which in the reasonable opinion of the Council, has or may cause significant harm to the reputation of the Council; c. the Provider commits a material breach of this agreement; d. the Provider fails to promote British values e. the Provider breaches the provisions of this agreement three or more times in any 6 month period Term: the period of 12 months from the Commencement Date Termination Date: the date of expiry or termination of this agreement. Working Day: Monday to Friday, excluding any public holidays in England and Wales. 1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. 1.3 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. 1.4 The schedules, and those documents referred to therein, 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 them. 1.5 Words in the singular shall include the plural and vice versa. 1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. 1.7 A reference to writing or written includes faxes and email. 1.8 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. 1.9 A reference to a document is a reference to that document as varied or novated (in each case, other than in breach of the provisions of this agreement) at any time. 1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule. 1.11 Where there is any conflict or inconsistency between the provisions of the agreement, such conflict or inconsistency shall be resolved according to the following order of priority: (a) the clauses of the agreement; (b) Schedule 2 to this agreement; (c) the remaining schedules to this agreement; 2. TERM 2.1 This agreement shall take effect on the Commencement Date and shall continue for the Term. KEY LOCAL AUTHORITY RESPONSIBILITIES 3. LOCAL AUTHORITY RESPONSIBILITIES 3.1 The Council shall, from time to time, set out the support on offer locally to meet the needs of children with special educational needs and/or disabilities (SEND) as well as its expectations of providers. 3.2 The Council may offer reasonable assistance to the Provider from time to time as requested by the Provider in relation to the safeguarding and promote the welfare of children and young people. 3.3 Subject to the terms of this agreement the Council shall: (a) Fund, as set out in this agreement, places for two-, three- and four-year-old Children with the Provider if it is judged ‘good’ or ‘outstanding’ by Ofsted, or where the Provider is a childminder registered with a childminder agency judged ‘effective’ by Ofsted; and (b) Fund, as set out in this agreement, places for three- and four-year-old Children with the Provider if it is judged ‘requires improvement’ by Ofsted or, if the Provider is a childminder registered with a childminder agency, judged ‘effective’ by Ofsted if Parents wants their Child to take up their free place with the Provider and the Provider is willing to accept the Council’s funding and the terms of this agreement KEY PROVIDER RESPONSIBILITIES 4. PROVIDER RESPONSIBILITIES 4.1 The Provider shall comply with the requirements of all relevant regulatory bodies and all requirements of HMRC in accordance with all relevant Laws throughout the Term. Failure to comply with this clause 4.1 shall entitle the Council to immediately terminate this agreement. 4.2 The Provider must follow the EYFS and have clear safeguarding policies and procedures in place that link to Guidance for recognising, responding, reporting and recording suspected or actual abuse. 4.3 The Provider must have arrangements in place to support SEND. These arrangements should include a clear approach to identifying and responding to SEND. The Provider shall utilise the SEN inclusion fund and Disability Access Fund to deliver effective support, whilst making information available about their SEND offer to Parents. 4.4 The Provider shall undertake the Measures set out in Schedule 5 4.5 The Provider shall at all times maintain its registration as a provider of nursery, school or care services with OFSTED and the Council and take all such actions as are necessary to ensure that its registration is not invalidated or terminated (save that this clause does not oblige the Provider to undertake any appeal). 4.6 Providers must ensure that meals, snacks and drinks are healthy, balanced and nutritious; and involve Parents to promote healthy eating and lifestyles. 4.7 The Provider shall provide Parents will all relevant information in relation to the Services and the current policies and procedures used by the Provider. 5. SUPPLY OF SERVICES 5.1 The Provider shall provide the Services to the Parents and Children for the Council with effect from the Commencement Date and for the duration of this agreement in accordance with the provisions of this agreement. 5.2 The Provider shall deliver the Services consistently to all Parents, irrespective of the Allotted Time each Parent is entitled to and regardless of whether they opt to pay for optional services or consumables. The Provider shall clearly communicate to Parents details about the days and times that they offer the Services, along with their other services and charges. All Children accessing the Services must receive the same quality and access to provision. 5.3 In the event that the Provider does not comply with the provisions of clauses 5.1 or 5.2 in any way, the Council may terminate this agreement in accordance with Clause 37. 5.4 The Provider shall offer to Parents the Allotted Time of the Services each week, however Parents are not obliged to accept all of the time offered and the Provider shall not refuse to supply the Services to a Parent and Child on the basis that they do not wish to take up the full Allotted Time available. 5.5 Where the Provider wishes to offer any Child less than the Allotted Time per week provision of the Services over the course of the Funding Period this must be agreed in writing with the Council not less than one Funding Period prior to the commencement of the reduction in Service Provision. The Council shall be entitled to require any relevant information from the Provider prior to determining whether or not, in its absolute discretion, such consent will be given. 5.6 Where the Provider fails to obtain the Councils consent, the Council shall have the option of terminating this Agreement in accordance with clause 37. 5.7 The Provider shall perform its obligations under this agreement (including those in relation to the Services) in accordance with all applicable Law regarding health and safety and child protection. 6. PERSONNEL USED TO PROVIDE THE SERVICES 6.1 At all times, the Provider shall ensure that: (a) each of the Provider's Personnel is suitably qualified, adequately trained and capable of providing the applicable Services in respect of which they are engaged; (b) there is an adequate number of Provider's Personnel to provide the Services properly; and (c) only those people who are authorised by the Provider (under the authorisation procedure to be agreed between the parties) are involved in providing the Services; 6.2 The Provider shall use all reasonable endeavours to ensure continuity of personnel and to ensure that the turnover rate of its staff engaged in the provision or management of the Services is at least as good at the prevailing industry norm for similar services, locations and environments. SAFEGUARDING 7. SAFEGUARDING 7.1 The Provider must follow the EYFS and have clear safeguarding policies and procedures in place that are in line with the Council’s guidance and procedures for responding to and reporting suspected or actual abuse and neglect. A lead practitioner (whose details shall be provided to the Council within 5 Working Days of appointment) must take responsibility for safeguarding and all staff must have training to identify signs of abuse and neglect. The Provider must have regard to ‘Working Together to Safeguard Children’ 2015 guidance, as updated and replaced from time to time. 8. VULNERABLE GROUPS ACT 2006 8.1 The parties acknowledge that the Provider is a Regulated Activity Provider with ultimate responsibility for the management and control of the Regulated Activity provided under this agreement and for the purposes of the Safeguarding Vulnerable Groups Act 2006 8.2 The Provider shall: (a) ensure that all individuals engaged in Regulated Activity are subject to a valid enhanced disclosure check for regulated activity undertaken through the Disclosure and Barring Service (DBS); (b) monitor the level and validity of the checks under this clause 8 for each member of staff; and (c) not employ or use the services of any person who is barred from, or whose previous conduct or records indicate that he or she would not be suitable to carry out Regulated Activity or who may otherwise present a risk to Children. 8.3 The Provider warrants that at all times for the purposes of this agreement it has no reason to believe that any person who is or will be employed or engaged by the Provider in the provision of the Services is barred from the activity in accordance with the provisions of the Safeguarding Vulnerable Groups Act 2006 and any regulations made thereunder, as amended from time to time. 8.4 The Provider shall immediately notify the Council of any information that it reasonably requests to enable it to be satisfied that the obligations of this clause 8 have been met. 8.5 The Provider shall refer information about any person carrying out the Services to the DBS where it removes permission for such person to carry out the Services (or would have, if such person had not otherwise ceased to carry out the Services) because, in its opinion, such person has harmed or poses a risk of harm to the Children. ELIGIBILITY 9. ELIGIBILITY 9.1 The Provider should check original copies of documentation to confirm each Child has reached the eligible age, as determined by Central Government from time to time, on initial registration for the Services. The Provider must retain details of the documentation the Provider has checked, and the date that such documentation was inspected to enable the Council to check compliance with this clause and to carry out audits and fraud investigations. Where a Provider retains a copy of documentation this must be stored securely, deleted when there is no longer a good reason to keep the data and in a manner compliant with clause 25. 9.2 The Provider should offer places to eligible two-year-olds on the understanding that the child remains eligible until they become eligible for the universal entitlement for three- and four-year-olds. 9.3 Alongside the Allotted Time eligibility code, which is the Child’s unique 11-digit number, and original copies of documentation, the Provider must acquire written consent from, or on behalf of, the Parent to be able to receive confirmation and future notifications from the Council of the validity of the parent’s 30 hours eligibility code. The Provider shall use the parental declaration form at Schedule 6 which asks the parent for the necessary information and consents. 9.4 Once the Provider has received written consent from the Parent, it must verify the Allotted Time eligibility code with the Council within 10 Working Days or receipt of the consent. 9.5 The Council will, within a reasonable period, confirm the validity of Allotted Time eligibility codes to allow providers to offer places for eligible three- and four-year-olds. Such confirmation will be provided through the Early Years Portal in accordance with Guidance produced by the Council from time to time. 9.6 The Council will complete audit checks to review the validity of eligibility codes for children who qualify for the Services at any time during the Term. 9.7 The Provider shall undertake appropriate investigations to confirm a Child’s eligibility to access the Services, such as, without limitation, inspection of the Childs original birth certificate, passport or immigration papers. The Provider shall ensure that the Parent completes the Parent Declaration Form prior to commencing the Services for the Child. 9.8 The Provider shall produce a Progress Record for each Child (in consultation with other providers where appropriate) and deliver the Services in such a way so as to meet the needs of each Child as identified in its Progress Record. GRACE PERIOD 10. THE GRACE PERIOD 10.1 A Child will enter the grace period when the Parents cease to meet the eligibility criteria set out in the Childcare (Early Years Provision Free of Charge) (Extended Entitlement) Regulations 2016, as determined by HMRC or a First Tier Tribunal in the case of an appeal. 10.2 The Council may, but shall not be obliged to, continue to fund a place for a Child who enters the grace period in accordance with Legislation and any guidance issued by central government from time to time. Where funding is to continue the Council shall advise the Provider in accordance with its Guidance. FLEXIBILITY 11. FLEXIBILITY 11.1 The Services must be offered within the national parameters on flexibility as set out in the Early Education and Childcare Statutory guidance for local authorities, or such other guidance as may be issued from time to time. 11.2 The Provider shall work with the Council and share information about the times and periods at which they are able to offer free entitlements to support the Council to secure sufficient stretched and flexible places to meet Parental demand in Cumbria. 11.3 The Provider shall make information about their offer and admissions criteria available to Parents at the point the Child first accesses provision at their Setting. 11.4 The Provider must publish their admissions criteria and ensure parents understand which hours/sessions can be taken as free provision. Not all providers will be able to offer fully flexible places, but providers should work with parents to ensure that as far as possible the pattern of hours are convenient for parents’ working hours. 11.5 Where Parents choose to receive Services from the Provider and another provider, the Provider shall set this out in the Parental Declaration Form, stipulating where the Child is receiving Services from and comply with the Council’s Guidance on Children receiving Services from multiple providers from time to time. 11.6 The Provider shall: (a) deliver the Services for 2, 3 & 4 year old Children at times and in patterns that support parents to maximise the use of their Child’s entitlement (b) Offer flexible Services, subject to the following standards on flexibility; (i) No session is longer than 10 hours; (ii) No minimum session length (iii) No session begins before 6am and extends after 8pm (iv) a maximum of two sites in one day Providers may offer additional patterns of provision of the Service in addition to one of the above and shall have regard to the Guidance. PARTNERSHIP WORKING 12. PARTNERSHIP WORKING 12.1 The Provider shall work in the spirit of partnership with Parents and other providers to improve provision and outcomes for Children in their Setting. 12.2 Without prejudice to clause 11.5, the Provider shall discuss and work closely with Parents to agree how a Child’s overall care will work in practice when their free entitlement is split across different providers to ensure a smooth transition for the Child in relation to receipt of Services. 12.3 The Provider shall work together with other providers of the Services and cooperate with other providers in order to achieve an improvement in the Services. Such cooperation may include, without limitation: (a) Sharing information with other providers to ensure that a Child’s needs are met as they move between providers (b) Considering how to share Child specific curriculum planning when a Child is accessing more than one provider and work together to produce Progress Records for those Children. (c) Helping new Children settle by having an effective policy and by planning transfer of Children for each family’s individual needs.
(d) Having clear arrangements for transition to ensure Children move seamlessly to the free entitlement for 3 & 4 year olds and to school. 12.4 Where the Provider shares any information in accordance with clause 12.3 it shall first ensure that it has received all necessary consents from the relevant Parents to share such information. 12.5 The Provider shall use reasonable endeavours to work collaborate with other education and nursery providers within their local children’s centre footprint clusters in order to maximise the efficient use of resources. 13. DISPUTE RESOLUTION 13.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:
(a) 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 documents. On service of the Dispute Notice, the Authorised Representatives shall attempt in good faith to resolve the Dispute;
(b) if the Authorised Representatives 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 Authority's Senior Manager and the Provider's director who shall attempt in good faith to resolve it. 13.2 If any dispute referred to the Authority's Senior Manager and the Provider's director is not resolved within 20 days then this dispute resolution procedure shall be deemed exhausted. 14. NO PARTNERSHIP OR AGENCY 14.1 Notwithstanding the headings in this section nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of 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.
14.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person. SPECIAL EDUCATIONAL NEEDS AND DISABILITIES 15. SPECIAL EDUCATIONAL NEEDS AND DISABILITIES 15.1 The Provider must ensure all Provider’s Personnel are aware of their duties in relation to the SEND Code of Practice, the Equality Act 2010 and other Legislation. 15.2 The Council shall set out from time to time the support on offer in its area, through the Authorised Representative, so Parents and the Provider can access that support. 15.3 The Provider must be clear and transparent about the SEND support on offer at their Setting and make information available about their offer to support Parents to choose the right Setting for their Child. SOCIAL MOBILITY AND DISADVANTAGE 16. SOCIAL MOBILITY AND DISADVANTAGE 16.1 The Provider shall identify the disadvantaged Children in their Setting as part of the process for checking Early Years Pupil Premium (EYPP) eligibility. They will also use EYPP and any locally available funding streams or support to improve outcomes for this group of Children. 17. EQUALITY & HUMAN RIGHTS 17.1 The Provider shall (and shall procure that the Provider's Personnel shall): (a) perform its obligations under this agreement (including those in relation to the Services) in accordance with: (i) all applicable equality law (whether in relation to race, sex, gender reassignment, age, disability, sexual orientation, religion or belief, pregnancy, maternity or otherwise) including the Equality Act 2010; and (ii) any other requirements and instructions which the Council reasonably imposes in connection with any equality obligations imposed on the Council at any time under applicable equality law; and (b) take all necessary steps, and inform the Council of the steps taken, to prevent unlawful discrimination designated as such by any court or tribunal, or the Equality and Human Rights Commission or (any successor organisatio