DATED ------------

DRAFT SUPPLY OF SERVICES AGREEMENT

FOR THE

HERNE BAY FESTIVAL

between

CANTERBURY CITY COUNCIL

and

DELIVERY PARTNER

Contents CLAUSE 1. Interpretation ................................................................. 4 2. Commencement and duration ........................................... 6 3. Project Plan [and Project Specification] .............................. 7 4. Delivery Partner's responsibilities....................................... 7 5. Council's obligations ......................................................... 9 6. Change control .............................................................. 10 7. Charges and payment .................................................... 10 8. Quality of Services ......................................................... 11 9. Intellectual property rights.............................................. 12 10. Indemnity..................................................................... 12 11. Confidentiality and the Council's property ......................... 13 12. Anti-bribery .................................................................. 14 13. Termination .................................................................. 15 14. Remedies ..................................................................... 17 15. Force majeure ............................................................... 17 16. Variation ...................................................................... 18 17. Waiver ......................................................................... 18 18. Severance .................................................................... 18 19. Entire agreement........................................................... 19 20. Assignment................................................................... 19 21. No partnership or agency ............................................... 19 22. Rights of third parties..................................................... 20 23. Notices ......................................................................... 20 24. Dispute resolution.......................................................... 21 25. Governing law and jurisdiction......................................... 22 26. Freedom of Information. 21 27. Data Protection. 21 28. Corporate Requirements 22 SCHEDULE SCHEDULE 1 SERVICES ............................................................... 22 SCHEDULE 2 PROJECT PLAN AND PROJECT SPECIFICATION ..................... 23 SCHEDULE 3 PRICING ................................................................. 24 Part 1. ............................................................................... Price Part 2. .......................................................................... Payment 26 26

ANNEX ANNEX 1 PROPOSAL .................................................................... 28

THIS AGREEMENT is dated [DATE] PARTIES (1) [FULL COMPANY NAME] incorporated and registered in England and Wales with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] CANTERBURY CITY of Military Road, Canterbury, Kent CT1 1YW. (Council).

(2)

BACKGROUND

1. The Council wishes to appoint a delivery partner to co-ordinate, manage and deliver the 9 day Herne Bay Festival to include a range of a range of family, celebratory, community and educational events, starting on Saturday 17th August (starting no later than midday) and finishing on Sunday 25th August 2013 (finishing no earlier than 4pm) in accordance with the Project Specification.
AGREED TERMS INTERPRETATION

1. 1.1

The definitions and rules of interpretation in this clause apply in this agreement. Council's Equipment: any equipment, systems, cabling or facilities provided by the Council and used directly or indirectly in the supply of the Services. Council's Manager: the Council's manager for the Project, appointed in accordance with clause 5. Deliverables: the events specified in the Project Plan. Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form. [holding company and subsidiary: mean a "holding company" and "subsidiary" as defined in section 1159 of the Companies Act 2006 [and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee]. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members' rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.]

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In-put Material: all Documents, information and materials provided by the Council relating to the Project. 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, 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. Key Personnel: any member of the Delivery Partner's Team who is identified as being key in the Project Plan and who is appointed under clause 4.3. Pre-existing Materials: all Documents, information and materials provided by the Delivery Partner relating to the Services which existed prior to the commencement of this agreement, including the pre-existing materials specified in the Project Plan. Project: the project as described in the Project Plan. Project Milestones: a date by which a part of the Project is to be completed, as set out in the Project Plan. Project Plan: the detailed plan to be prepared by the Delivery Partner describing the Project and setting out the Project timetable (including Project Milestones) and responsibilities for the provision of the Services agreed in accordance with clause 3. Project Specification: the specification for the Project agreed in accordance with clause 3 and, on such agreement, to be attached to this agreement and to form Schedule 2. Proposal: the materials set out in Annex 1 handed to the Council supporting the Delivery Partner's presentation to the Council and describing how the Delivery Partner proposes to carry out the Project. Services: the services to be provided by the Delivery Partner under this agreement in order to deliver the Project as set out in the brief and the Project Plan and the Delivery Partner's obligations under this agreement, together with any other services which the Council agrees to take from the Delivery Partner. Delivery Partner's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Delivery Partner or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Council. Delivery Partner's Manager: the Delivery Partner's manager for the Project appointed under clause 4.3.

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Delivery Partner's Team: the Delivery Partner's Manager and all employees, consultants, agents and subcontractors which it engages in relation to the Project and who are appointed under clause 4.3. VAT: value added tax chargeable under English law for the time being and any similar, additional tax.
1.2

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 and annex form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the schedules and annex. Words in the singular shall include the plural and vice versa. 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 reenactment and includes any subordinate legislation for the time being in force made under it. A reference to writing or written includes faxes but not e-mail. Where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them. Any obligation in this agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce to that thing being done. References to clauses, and schedules are to the clauses and schedules of this agreement. COMMENCEMENT AND DURATION

1.3

1.4

1.5

1.6

1.7

1.8

1.9

1.10

2. 2.1

The Delivery Partner shall provide the Services to the Council on the terms and conditions of this agreement. The Delivery Partner shall provide the Services from the date specified in the Project Plan.
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2.2

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2.3

The Services supplied under this agreement shall continue to be supplied until the Project is completed in accordance with the Project Plan, unless this agreement is terminated in accordance with clause 13. PROJECT PLAN AND PROJECT SPECIFICATION

3. 3.1

The Project Plan and Project Specification shall be agreed in the following manner:
(a)

the Council shall provide the Delivery Partner with a request for a Project Plan and Project Specification, setting out the requirements and specifications of the Services which it is requesting from the Delivery Partner, including a description of what work is to be done, dates by which the various parts of the work are to be started and delivered, Deliverables, In-put Materials and any additional information requested by the Delivery Partner from the Council to determine the Project Plan; the Delivery Partner shall, within 56? days of receipt of a request for a Project Plan and Project Specification, provide the Council, at no cost, with a draft Project Plan and Project Specification; and the Delivery Partner and the Council shall discuss and agree the draft Project Plan and Project Specification. When they have been agreed, they shall both sign a copy of them and they shall become Schedule 2, and subject to this agreement.

(b)

(c)

3.2

Once the Project Plan and Project Specification have been agreed and signed in accordance with clause 3.1(c), no amendment shall be made to them except in accordance with clause 6 and clause 16. DELIVERY PARTNER'S RESPONSIBILITIES

4. 4.1

The Delivery Partner shall manage and complete the Services, and deliver the Project to the Council and to any Authorised Service Recipients, in accordance with the Plan and Project Specification, and shall allocate sufficient resources to the Project to enable it to comply with this obligation. The Delivery Partner shall meet, and time is of the essence as to, any performance dates and, in any case where clause 3.1 applies, the time stipulated for the delivery of a draft Project Plan and Project Specification. If the Delivery Partner fails to do so, the Council may (without prejudice to any other rights it may have):
(a)

4.2

terminate this agreement in whole or in part without liability to the Delivery Partner; refuse to accept any subsequent performance of the Services which the Delivery Partner attempts to make; purchase substitute services from elsewhere;

(b)

(c)

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(d)

hold the Delivery Partner accountable for any loss and additional costs incurred; and have all sums previously paid by the Council to the Delivery Partner under this agreement refunded by the Delivery Partner.

(e)

4.3

The Delivery Partner shall:

(a) (b)

co-operate with the Council in all matters relating to the Project; subject to the prior written approval of the Council, appoint or, at the written request of the Council, replace without delay:
(i)

the Delivery Partner's Manager in respect of the Project, who shall have authority under this agreement contractually to bind the Delivery Partner on all matters relating to the Project; and Key Personnel, who shall be suitably skilled, experienced and qualified to carry out the Services.

(ii)

(c)

subject to clause 4.3(b), ensure that the same person acts as the Delivery Partner's Manager throughout the term of the Project; procure the availability of the Delivery Partner's Manager and Key Personnel to provide the Services during the term of this Project; promptly inform the Council of the absence (or anticipated absence) of the Delivery Partner's Manager, or any Key Personnel. If the Council requires, the Delivery Partner shall provide a suitably qualified replacement; not make any changes to the Delivery Partner's Manager or the Key Personnel without the prior written approval of the Council (such approval not to be unreasonably withheld or delayed); and ensure that the Delivery Partner's Team use reasonable skill and care in the performance of the Services.

(d)

(e)

(f)

(g)

4.4

The Delivery Partner shall:

(a)

observe, and ensure that the Delivery Partner's Team observe, all health and safety rules and regulations and any other security requirements that apply during the Project and at any of the Council's premises. The Council reserves the right to refuse the Delivery Partner's Team access to the Council's premises, which shall only be given to the extent necessary for the performance of the Services; notify the Council as soon as it becomes aware of any health and safety hazards or issues which arise in relation to the Services; and before the date on which the Services are to start, obtain, and at all times maintain, all necessary licences and consents and comply with all relevant legislation in relation to:
(i) (ii)

(b)

(c)

the Services; the installation of the Delivery Partner's Equipment;

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(iii) (iv)

the use of In-put Material; the use of all Documents, information and materials provided by the Delivery Partner [or its agents, subcontractors, consultants or employees] relating to the Services which existed prior to the commencement of this agreement, including the pre-existing materials specified in the Project Plan; and the use of the Council's Equipment in relation to the Delivery Partner's Equipment.

(v)

4.5

The Delivery Partner acknowledges and agrees that:

(a)

the Council is entering into this agreement on the basis of the Proposal and Project Plan, the Proposal and Project Plan are accurate and complete in all material respects, and are not misleading; and if it considers that the Council is not, or may not, be complying with any of the Council's obligations, it shall only be entitled to rely on this as relieving the Delivery Partner's performance under this agreement:
(i)

(b)

to the extent that it restricts or precludes performance of the Services by the Delivery Partner; and if the Delivery Partner, promptly after the actual or potential non-compliance has come to its attention, has notified details to the Council in writing.

(ii)

4.6

[ANY OTHER RELEVANT RESPONSIBILITIES]. COUNCIL'S OBLIGATIONS

5.

The Council shall:

(a)

co-operate with the Delivery Partner in all matters relating to the Services and appoint (and, as it thinks fit, replace) the Council's Manager in relation to the Project, who shall have the authority contractually to bind the Council on matters relating to the Project; provide such access to the Council's premises and data, as may reasonably be requested by the Delivery Partner and agreed with the Council in writing in advance, for the purposes of the Project; provide the In-put Material OR such information as the Delivery Partner may reasonably request and the Council considers reasonably necessary, in order to carry out the Project, in a timely manner, and ensure that it is accurate in all material respects; inform the Delivery Partner of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Council's premises; and [ANY OTHER RELEVANT OBLIGATIONS].

(b)

(c)

(d)

(e)

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6. 6.1

CHANGE CONTROL

The Council's Manager and the Delivery Partner's Manager shall meet at least once every 14 days to discuss matters relating to the Project. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing. If either party requests a change to the scope or execution of the Services, the Delivery Partner shall, within a reasonable time (and in any event not more than 10 working days after receipt of the Council's request), provide a written estimate to the Council of:
(a) (b)

6.2

the likely time required to implement the change; any necessary variations to the Delivery Partner's charges arising from the change; the likely effect of the change on the Project Plan; and any other impact of the change on this agreement.

(c) (d)

6.3

Unless both parties consent to a proposed change, there shall be no change to the Project Plan or this agreement. If both parties consent to a proposed change, the change shall be made, only after agreement of the necessary variations to the Delivery Partner's charges, the Services, the Project Plan and any other relevant terms of this agreement to take account of the change that has been reached and this agreement has been varied in accordance with clause 16. If the Delivery Partner requests a change to the scope or execution of the Services, in order to comply with any applicable safety or statutory requirements, and such changes do not materially affect the nature, scope of, or charges for the Services, the Council shall not unreasonably withhold or delay consent to it. Unless the Delivery Partner's request was attributable to the Council's non-compliance with the Council's obligations, neither the Delivery Partner's charges, the Project Plan or any other terms of this agreement shall vary as a result of such change. CHARGES AND PAYMENT

6.4

6.5

7. 7.1

In consideration of the provision of the Services by the Delivery Partner, the Council shall pay the charges as set out in Schedule 3, on a fixed price basis. Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in Part 1 of Schedule 3. The total price shall be paid to the Delivery Partner in instalments, as set out in Part 2 of Schedule 3, with each instalment being conditional on the Delivery Partner achieving the corresponding Project Milestone. [On achieving a Project Milestone OR At the
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7.2

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end of a period specified in Part 2 of Schedule 3 OR the Project Plan] in respect of which an instalment is due, the Delivery Partner shall invoice the Council for the charges that are then payable, together with expenses, the costs of materials (and VAT, where appropriate) calculated as provided in clause 7.3.
7.3

Any fixed price and daily rate contained in [Part 1 of Schedule 3 OR the Project Plan] includes:
(a)

the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably and properly incurred by members of the Delivery Partner's Team in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Delivery Partner for the supply of the Services.; but excludes: VAT, which the Delivery Partner shall add to its invoices at the appropriate rate.

(b)

7.4

The Council shall pay each invoice which is properly due and submitted to it by the Delivery Partner, within 30 days of receipt, to a bank account nominated in writing by the Delivery Partner. If the Council fails to pay any amount payable by it under this agreement, the Delivery Partner may charge the Council interest on the overdue amount from the due date up to the date of actual payment, after as well as before judgment, at the rate of 1% per annum above the base rate for the time being of Nat West Bank. Such interest shall accrue on a daily basis and be compounded quarterly and the Council shall pay the interest immediately on demand. The Delivery Partner shall maintain complete and accurate records of the time spent and materials used by the Delivery Partner in providing the Services in such form as the Council shall approve. The Delivery Partner shall allow the Council to inspect such records at all reasonable times on request. Each party may, without limiting any other rights or remedies it may have, set off any amounts owed to it by the other party under this agreement against any amounts payable by it to the other party under this agreement. QUALITY OF SERVICES

7.5

7.6

7.7

8. 8.1

The Delivery Partner warrants to the Council that:

(a)

the Delivery Partner will perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards for similar services];

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(b)

the Services will conform with all descriptions and specifications provided to the Council by the Delivery Partner, including the Proposal and Project Plan; and the Services and Deliverables will be provided in accordance with all applicable legislation from time to time in force, and the Delivery Partner will inform the Council as soon as it becomes aware of any changes in that legislation.

(c)

8.2

The Council's rights under this agreement are in addition to the statutory terms implied in favour of the Council by the Supply of Goods and Services Act 1982 and any other statute. The provisions of this clause 8 shall survive any performance, acceptance or payment pursuant to this agreement and shall extend to any substituted or remedial services provided by the Delivery Partner. INTELLECTUAL PROPERTY RIGHTS

8.3

9. 9.1

The Delivery Partner assigns to the Council, with full title guarantee and free from all third party rights, the Intellectual Property Rights and all other rights in the products of the Services (including the Deliverables). The Delivery Partner shall, promptly at the Council's request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Council may from time to time require for the purpose of securing for the Council the full benefit of this agreement, including all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to the Council in accordance with clause 9.1. The Delivery Partner shall obtain waivers of any moral rights in the products of the Services (including the Deliverables) to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction. INDEMNITY

9.2

9.3

10. 10.1

The Delivery Partner shall indemnify and hold the Council harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the Council as a result of or in connection with:
(a)

any alleged or actual infringement, whether or not under English law, of any third party's Intellectual Property Rights or other rights arising

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out of the use or supply of the products of the Services (including the Deliverables); or
(b)

any claim made against the Council in respect of any liability, loss, damage, injury, cost or expense sustained by the Council's employees or agents or by any Council or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the provision of the Services or the Deliverables as a consequence of a breach or negligent performance or failure or delay in performance of this agreement by the Delivery Partner.

10.2

During the term of this agreement and for a period of 12 months thereafter, the Delivery Partner shall maintain in force, with a reputable insurance company, public indemnity insurance in an amount not less that 10 million for one event or series of events, employers liability insurance in the sum of 10 million and professional indemnity insurance in an amount not less than 5 million and shall, on the Council's request, produce both the insurance certificates giving details of cover and the receipt for the current year's premium. The provisions of this clause 10 shall survive termination of this agreement, however arising. CONFIDENTIALITY AND THE COUNCIL'S PROPERTY

10.3

11. 11.1

The Delivery Partner shall keep in strict confidence all In-put Material and all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Delivery Partner by the Council, its employees, agents, consultants or subcontractors, and any other confidential information concerning the Council's business or its products which the Delivery Partner may obtain. The Delivery Partner shall restrict disclosure of such confidential material to the Delivery Partner's Team and to such of its other employees, agents, consultants or subcontractors as need to know it for the purpose of discharging the Delivery Partner's obligations to the Council, and shall ensure that the Delivery Partner's Team and all other employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Delivery Partner. All In-put Materials, Council's Equipment and all other materials, equipment and tools, drawings, specifications and data supplied by the Council to the Delivery Partner shall, at all times, be and remain [as between the Council and the Delivery Partner] the exclusive property of the Council, but shall be held by the Delivery Partner in safe custody at its own risk and maintained and kept in good condition by the Delivery Partner until returned to the Council. They shall not be disposed of or used other than in accordance with the Council's written instructions or authorisation.

11.2

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12. 12.1

ANTI-BRIBERY

The Delivery Partner shall:

(a)

comply with all applicable laws, statutes, regulations [and codes] relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements); [not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;] comply with the Council's Ethics and Anti-bribery Policy annexed to this agreement at Error! Reference source not found. [and [INSERT RELEVANT INDUSTRY CODE ON ANTI-BRIBERY]], [in each case] as the Council [or the relevant industry body] may update them from time to time (Relevant Policies); have and shall maintain in place throughout the term of this agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies [and clause 12.1(b)], and will enforce them where appropriate; promptly report to the Council any request or demand for any undue financial or other advantage of any kind received by the Delivery Partner in connection with the performance of this agreement; [immediately notify the Council (in writing) if a foreign public official becomes an officer or employee of the Delivery Partner[ or acquires a direct or indirect interest in the Delivery Partner], and the Delivery Partner warrants that it has no foreign public officials as [direct or indirect owners], officers or employees at the date of this agreement;] within [INSERT] months of the date of this agreement, and annually thereafter, certify to the Council in writing signed by an officer of the Delivery Partner, compliance with this clause 12 by the Delivery Partner and all persons associated with it under clause 12.2. The Delivery Partner shall provide such supporting evidence of compliance as the Council may reasonably request.

(b)

(c)

(d)

(e)

(f)

(g)

12.2

The Delivery Partner shall ensure that any person associated with the Delivery Partner who is performing services [or providing goods] in connection with this agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Delivery Partner in this clause 12 (Relevant Terms). The Delivery Partner shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Council for any breach by such persons of any of the Relevant Terms.

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12.3

[Breach of this clause 12 shall be deemed a material breach under clause 13.2(b)).]

13. 13.1

TERMINATION

Subject to clause 13.4, clause 13.5 and clause 13.6, this agreement shall terminate automatically on completion of the Services in accordance with the Project Plan. Without prejudice to any other rights or remedies which the parties may have, either party may terminate this agreement immediately on giving written notice to the other if:
(a)

13.2

the other party fails to pay any amount due under this agreement on the due date for payment and remains in default at least 14 days after being notified in writing to make such payment; or the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or [(being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR (being a natural person) 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; 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, is made, for or on connection with the winding up of that (other than for the sole purpose of a scheme for amalgamation of that other party with one or more other or the solvent reconstruction of that other party); or or an order other party a solvent companies,

(b)

(c)

(d)

(e)

(f)

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(g)

an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or 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 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 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 13.2(d) to clause 13.2(j) (inclusive); or the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or there is a change of control of the other party (as defined in [section 574 of the Capital Allowances Act 2001]).

(h)

(i)

(j)

(k)

(l)

(m)

13.3

The parties acknowledge and agree that any breach of clauses 8, 4.4, 10.2 shall constitute a material breach of this agreement for the purposes of this clause 13. On termination of this agreement for any reason, the Delivery Partner shall immediately deliver to the Council:
(a)

13.4

all In-put Material and all copies of information and data provided by the Council to the Delivery Partner for the purposes of this agreement. The Delivery Partner shall certify to the Council that it has not retained any copies of In-put Material or other information or data, except for one copy which the Delivery Partner may use for audit purposes only and subject to the confidentiality obligations in clause 11; and all specifications, programs (including source codes) and other documentation comprised in the Deliverables and existing at the date of such termination, whether or not then complete. All Intellectual Property Rights in such materials shall automatically pass to the Council (to the extent that they have not already done so by virtue of clause 9.1), who shall be entitled to enter the premises of the Delivery Partner to take possession of them.

(b)

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13.5

If the Delivery Partner fails to fulfil its obligations under clause 13.4, then the Council may enter the Delivery Partner's premises and take possession of any items which should have been returned under it. Until they have been returned or repossessed, the Delivery Partner shall be solely responsible for their safe keeping. On termination of this agreement (however arising) the accrued rights and liabilities of the parties as at termination, and the following clauses, shall survive and continue in full force and effect:
(a) (b) (c) (d) (e)

13.6

Clause 9; Clause 10; Clause 11; Clause 13; and Clause 25. REMEDIES

14.

If any Services are not supplied in accordance with, or the Delivery Partner fails to comply with, any terms of this agreement, the Council shall be entitled (without prejudice to any other right or remedy) to exercise any one or more of the following rights or remedies:
(a) (b)

to rescind this agreement; or to refuse to accept the provision of any further Services by the Delivery Partner and to require the immediate repayment by the Delivery Partner of all sums previously paid by the Council to the Delivery Partner under this agreement; or to require the Delivery Partner, without charge to the Council, to carry out such additional work as is necessary to correct the Delivery Partner's failure; and in any case, to claim such damages as it may have sustained in connection with the Delivery Partner's breach (or breaches) of this agreement not otherwise covered by the provisions of this clause 14. FORCE MAJEURE

(c)

(d)

15.

The Council reserves the right to defer the date for performance of, or payment for, the Services, or to terminate this agreement, if it is prevented from, or delayed in, carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lockouts or other industrial disputes (whether involving the workforce of the Council or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant

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or machinery, fire, subcontractors.

flood,

storm

or

default

of

Delivery

Partners

or

16.

VARIATION

Subject to clause 3 and clause 6, no variation of this agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by, or on behalf of, each of the parties. WAIVER

17. 17.1

Failure to exercise, or any delay in exercising, any right or remedy provided under this agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of that right or remedy. A waiver (which may be given subject to conditions) of any right or remedy provided under this agreement or by law shall only be effective if it is in writing. It shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances. A party that waives a right or remedy provided under this agreement or by law in relation to another party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party. Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law. SEVERANCE

17.2

17.3

17.4

17.5

18. 18.1

If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected. If any invalid, unenforceable or illegal provision of this agreement would be valid, enforceable and legal if some part of it were deleted, [the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable OR the parties shall negotiate in good faith to amend such
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18.2

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provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention] ENTIRE AGREEMENT

19. 19.1

This agreement and any documents referred to in it OR annexed to it constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this agreement. Each party acknowledges that, in entering into this agreement, it does not rely on, and shall have no remedies in respect of, any representation warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that its only remedies in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract. Nothing in this clause shall limit or exclude any liability for fraud. ASSIGNMENT

19.2

19.3

20. 20.1

The Delivery Partner shall not, without the prior written consent of the Council, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement. The Council may, at any time, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement. Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person. NO PARTNERSHIP OR AGENCY

20.2

20.3

21.

Nothing in this agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

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22.

RIGHTS OF THIRD PARTIES

A person who is not a party to this agreement shall not have any rights under or in connection with it. NOTICES

23. 23.1

A notice or other communication given to a party under or in connection with this agreement:
(a)

shall be in writing in English (or accompanied by a properly prepared translation into English); shall be signed by or on behalf of the party giving it; shall be sent for the attention of the person, at the address or fax number specified in this clause (or to such other address, fax number or person as that party may notify to the other, in accordance with the provisions of this clause); and shall be:
(i) (ii) (iii) (iv) (v)

(b) (c)

(d)

delivered personally; or sent by commercial courier; or sent by fax; or sent by pre-paid first-class post or recorded delivery; or sent by airmail requiring signature on delivery.

23.2

The addresses for service of a notice or other communication are as follows:

(a)

Delivery Partner:
(i) (ii) (iii)

address: [ADDRESS] for the attention of: [CONTACT] fax number: [FAX NUMBER];

(b)

Council:
(i) (ii) (iii)

address: Military Road Canterbury Kent CT13 9LA for the attention of: The Head of Culture and Enterprise fax number: [FAX NUMBER].

23.3

If a notice or other communication has been properly sent or delivered in accordance with this clause, it will be deemed to have been received as follows:
(a) (b)

if delivered personally, at the time of delivery; or if delivered by commercial courier, at the time of signature of the courier's receipt; or if sent by fax, at the time of transmission; or
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(c)
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(d)

if sent by pre-paid first-class post or recorded delivery, at 10.00 am] on the second day after posting; or if sent by airmail, five days from the date of posting.

(e)

23.4

For the purposes of this clause:

(a)

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 a day that is not a public holiday in the place of receipt), the notice is deemed to have been received when business next starts in the place of receipt.

(b)

23.5

To prove delivery, it is sufficient to prove that:

(a)

if sent by fax, the notice was transmitted by fax to the fax number of the party; or if sent by pre-paid first-class post, the envelope containing the notice was properly addressed and posted.

(b)

23.6

The provisions of this clause 23 shall not apply to the service of any process in any legal action or proceedings. A notice required to be given under or in connection with this agreement shall not be validly served if sent by e-mail. DISPUTE RESOLUTION

23.7

24. 24.1

If any dispute arises in connection with this agreement, the Delivery Partner's Manager and the Council's Manager shall, within 7 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute. If the Delivery Partner's Manager and the Council's Manager do not resolve the dispute a senior representative of the Delivery Partner and the Councils Head of Culture and Enterprise shall meet within 7 days in to resolve the dispute. If the dispute is not resolved at that meeting, 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. To initiate the mediation, a party must give notice in writing (ADR notice) to the other party requesting a mediation. A copy of the request shall be sent to CEDR Solve. The mediation shall start not later than 28 days after the date of the ADR notice.

24.2

24.3

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24.4

The commencement of a mediation shall not prevent the parties commencing or continuing court proceedings. GOVERNING LAW AND JURISDICTION

25. 25.1

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, the law of England and Wales. 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).

25.2

26. FREEDOM OF INFORMATION 26.1 The Council is subject to the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 (the Acts). As part of the Council's duties under the Acts, it may be required to disclose information forming part of the Contract to anyone who makes a request. The Council has absolute discretion to apply or not to apply any exemptions under the Acts. 26.2 The Contractor shall assist and cooperate with the Council (at the Contractors expense) to enable the Council to comply with the information disclosure requirements under the Acts and in so doing will comply with any timescale notified to it by the Council. The Contractor acknowledges that the Authority is committed to the Government's transparency agenda requiring the Authority to publish on-line items of spend over 500 (five hundred pounds), including actual payments made to the Contractor, the Contractors tender and the terms of this Agreement (excluding Commercially Sensitive Information).

26.3

26.4 The Contractor acknowledges that the Authority 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: (a) (b) without consulting with the Contractor, or following consultation with the Contractor and having taken its views into account.

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27. DATA PROTECTION 27.1 The Contractor shall (and shall procure that any of its staff involved in the provision of the Services) comply with any requirements under the Data Protection Act 1998. 28. CORPORATE REQUIREMENTS 28.1 28.2 The Contractor shall comply with all obligations under the Human Rights Act 1998. The Contractor shall ensure that it has policies or codes of conduct in relation to: equality and diversity policies; sustainability; information security rules; whistleblowing and/or confidential reporting policies; 28.3 The Contractor shall not unlawfully discriminate within the meaning and scope of any law, enactment, order, or regulation relating to discrimination (whether age, race, gender, religion, disability, sexual orientation or otherwise) in employment. The Contractor shall comply with all relevant legislation relating to its staff however employed including (but not limited to) the compliance in law of the ability of the staff to work in the United Kingdom. If the Contractor has a finding against it relating to its obligations under the Equality Act 2010 it will provide the Council with: 28.5.1 details of the finding; and 28.5.2 the steps the Contractor has taken to remedy the situation.

28.4

28.5

This agreement has been entered into on the date stated at the beginning of it.

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Schedule 1 Services [DESCRIPTION OF THE SERVICES TO BE PROVIDED UNDER THE AGREEMENT.]

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Schedule 2 Project Plan and Project Specification [THE PROJECT PLAN AND SPECIFICATION AGREED IN ACCORDANCE WITH CLAUSE 3, INCLUDING ANY PROJECT MILESTONES AGREED.]

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Schedule 3 Pricing

Part 1.

Price

[DETAILS OF PRICE, FOR EXAMPLE THE FIXED PRICE OR DAILY RATE.] Part 2. Payment

[THE PAYMENT SCHEDULE, WHICH SHOULD INCLUDE THE DATES OR EVENTS ON WHICH INSTALMENTS ARE TO BE INVOICED AND THE AMOUNT OF EACH INSTALMENT.]

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Signed by [NAME OF DIRECTOR] for and on behalf of [NAME OF DELIVERY PARTNER]

....................................... Director

....................................... Director

Signed by Head of Culture and Enterprise for and on behalf of Canterbury City Council

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Annex

Annex [1] Proposal

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