Terms and Conditions of Sale

Standard Terms and Conditions for the Supply of Services for Schools

Date: March 2018

GENERAL NOTICE

These Terms and Conditions shall apply to all contracts for the supply of School Services to the Customer to the exclusion of all other terms and conditions including any terms and conditions which the Customer may purport to apply under the on-line purchase order or any written confirmation of order or similar document

These Terms and Conditions may only be varied with the written agreement of the Council.

WEB-PAGE NOTICES ON THE HOUNSLOW COUNCIL SERVICES TO SCHOOLS WEBSITE

Those Notices as to the Use of the Hounslow Council website Legal Notices and the Copyright Notice on the Hounslow Council Services for Schools web- site are incorporated into these Terms and Conditions.

1. DEFINITION AND INTERPRETATION

1.1 In these Terms and Conditions the following words shall have the following meanings:

“Agreement” means the agreement that results from the purchase of the Services under these Terms and Conditions into which are incorporated the Purchase Order the Purchase Order Confirmation and the Specifications for the relevant Service purchased.

“Bespoke Services” those Services advertised in the Services for Schools web-site that are neither Pay-as-You-Go Services or Subscription Services but which comprise a selection of the Services set out within the School for Services web-site or additional services agreed between the Parties which shall be payable on an hourly rate basis as or in the absence thereof at a rate to be agreed between the parties in writing before the commencement of the Bespoke Services.

“Commercially Sensitive Information” means the information prescribed by the Customer and specified to the Council in writing as information of a commercially sensitive nature.

“Core Services” means those educational support services which the Council provides to Schools by way of its statutory functions and mandatory duty as a local authority for the Council is remunerated by central government For the avoidance of doubt Core Services are not sold by the Council under the terms of the Agreement.

“Council” shall mean the London Borough of Hounslow whether acting in its own name or via a Direct Services Organisation of the Council or via a trading company or organisation established by the Council for the supply of the Services or the Project.

“Council’s Manager” means the Council’s Manager for the Services or the Project who shall be the Head of Service to which the relevant Purchase Order relates He or she is designated as the Council’s official representative for the purposes of day to day management liaison communication and resolution of issues in respect of this Agreement or alternatively a Council employee appointed by the relevant Head of Service to act in such manner on his or her behalf

“Customer” means either the Governing Body of any maintained school within or outside the London Borough of Hounslow or he Governing Body or Trustees or Directors or Sponsors of any Academy or Free School or the Governing Body or Trustee or Directors of any independent school on whose behalf the on-line purchase Order Form is deemed to have been completed. Where the Customer consists of more than one person the obligations of those persons in respect of the Agreement shall be joint and several.

“Customer Assets”: any materials plant or equipment owned or held by the Customer and provided by the Customer for use by the Council in providing the Services

“Customer’s Manager” means the Business Manager for the School to which the Services are delivered or in the absence of a School Business Manager the Head-Teacher of the School that is the Customer He or she shall be designated as the Customer’s official representative for the purposes of day to day management liaison communication and resolution of issues in respect of this Agreement.

“Customer’s Premises”: the premises if any which are to be made available by the Customer for use by the Council for the provision of the Services on the terms set out in this agreement.

Deliverables: all Documents products and materials developed by the Customer or its agent’s sub-contractors consultants and employees in relation to the Services or the Project in any form including computer programs data reports and specifications (including drafts) or the deliverables specified in the Project Plan.

“Confidential Information” means any information given to or obtained by the Council from the Customer or by the Customer from the Council under the Agreement the disclosure of which would constitute an actionable breach of confidence and which has either been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including commercially sensitive information which relates to the business affairs properties assets trading practices goods/services developments trade secrets Intellectual Property Rights know-how personnel customers and Customers of either Party and all personal data and sensitive personal data within the meaning of the Data Protection Act 1998.

“EIR” means the Environmental Information Regulations 2004.

“FOIA” means the Freedom of Information Act 2000.

“Information” has the meaning given under section 84 of FOIA.

Good Industry Practice” means the exercise of such degree of skill diligence and foresight that would reasonably and ordinarily be expected from a supplier engaged in the provision of services similar to the Services

“Information” has the meaning given under section 84 of FOIA.

“Intellectual Property” means any copyright design right trademark trade name know-how patentable invention for the purposes of the Patents Act 1977 database right for the purposes of the Copyright and Rights in Databases Regulations 1997 and all intellectual property including Technical Information the rights to which are capable of protection under the law

“Parties” means the Council and the Customer

“Pay-as-You- Go” those Services ordered by the Customer and payable on those day half day and hourly rates described within the Services for Schools web-site.

“Pre-Existing Intellectual Property Rights” shall mean any rights in Intellectual Property owned or controlled by the Council arising before commencement of the Services or in parallel independently of the Services which are necessary for carrying out the Services and or alternatively the pre-existing materials specified in the Project Plan.

“Pricing Menu” means the tabular menu of prices for Pay-as-You- Go Services and Subscription Services as set out in the School for Services web-site.

“Post-Contract Intellectual Property Rights “shall mean rights in Intellectual Property which shall be obtained found produced devised developed or made or generated by the Council in the course of the carrying out of the Services

“Price” means either

a) the Pay-You-Go” or Subscription charges described in the Pricing Menu set out on the Council’s Services for Schools web-site for supply of the Services or

b) Such other rates and charges as are agreed in writing between the parties in respect for Bespoke Services

Project: a project as described in a Project Plan.

Project Milestones: a date (if any) by which a part of the Project is estimated to be completed as set out in a Project Plan.

Project Plan: a detailed plan describing a Project and setting out the estimated timetable (including Project Milestones) and responsibilities for the provision of the Services.

Project Specification: the written description of a Project agreed between the Parties prior to the commencement of Bespoke Services

“Purchase Order Form” means the electronic form (if any) on the Council’s on-line Services for Schools website which may be utilised and completed by the Customer for the ordering of Services under the Agreement

“Purchase Order Acceptance Form” means the electronic confirmation (if any) on the Council’s on-line Services for Schools website generated by the Council after consideration of the Purchase Order

“Services” means those Subscription and “Pay-as-you go” services that support achievement and attainment both within and beyond the classroom including those specialist non-statutory support services and those other administrative and technical support services described within the Council’s Services for Schools website together with any other Bespoke Services that are these Terms and Conditions agreed in writing between the Customer and the Council.

“Services for Schools Brochure” means the on-line brochure advertised and maintained on the Council’s web-site advertising the Services as updated from time to time

“School for Services Specification” means the Specification as displayed on the Services for Schools web-site.

“Schools” means schools within both the maintained and non- maintained educational sector that may purchase Services from the Council under these Terms and Conditions

Specification” means the description of the Services together with (where applicable) a brief description of Deliverables (if any) to be provided alongside the Services

“Subscription Services” means those Services subscribed by the Customer for a period of either 12 months or 24 months from April of each year in which and payable for by reference to those subscription rates described within the Council’s Services for Schools web-site.

“Subscription Period” means the period of either 12 months or 24 months from April of each year for which the Customer desires to purchase the Services

“Terms and Conditions” means these Terms and Conditions for the purchase by Customer and the supply of the Services by the Council.

“VAT” means UK value added tax.

1.2 Unless the context otherwise requires references in these Terms and Conditions:

a) Words in the singular will include the plural and vice versa.

b) Words importing individuals will be treated as importing corporations and vice versa.

c) References to conditions paragraphs clauses and schedules are references to conditions paragraphs clauses and schedules of the Contract except where specifically indicated otherwise.

d) Clause headings are for ease of reference only and will not affect construction.

e) Reference to an Act of Parliament and any order regulation statutory instrument or directive of the European Community will include a reference to any later amendment or re-enactment of the legislation regulation instrument or directive.

f) Reference to “person” or “third party” includes any individual company corporation unincorporated body firm partnership joint venture association organisation institution trust or agency whether or not having a separate legal personality and that person’s legal and personal representatives successors and permitted assignees

1.3 In line Services for Schools web-site or the Services for Schools Brochure these Terms and Conditions the Purchase Order Form the Purchase Order Acceptance Form and any agreement in writing for ancillary services between the Parties the Terms and Conditions shall take precedence.

1.4 The Schedules and Background form part of these Terms and Conditions and shall have effect as if set out in full in the body of these Terms and Conditions. Any reference to these Terms and Conditions includes the Schedules and Background.

1.5 A reference to writing or written documents does not include faxes but does include e-mails between the Council’s Manager and the Customer’s Manager.

1.6 Where the words including or in particular are used in these Terms and Conditions they are deemed to include 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.

1.7 Any obligation in these Terms and Conditions on a person not to do something includes an obligation not to agree allow permit or acquiesce in that thing being done.

1.8 In case of conflict or ambiguity between any provision contained in the body of these Terms and Conditions and any provision contained elsewhere in the Purchase Order the Purchase Order Acceptance Form or the Specification these Terms and Conditions shall take precedence.

2. COMMENCEMENT AND DURATION

2.1 The Council shall provide the Services to the Customer on the basis of the Agreement.

2.2 The Council shall provide the Services to the Customer from a date to be agreed between the Parties in respect of Bespoke Services or alternatively from the commencement of a Subscription period or a Pay-as-you-go period

2.3 The Services supplied under these Terms and Conditions shall continue to be supplied until either:

2.3.1 Bespoke Services are completed or

2.3.2 until the end of the period for which the Customer has purchased Pay-as-you go Services or Subscription Services

3. PROJECT PLAN AND PROJECT SPECIFICATION (IF ANY)

3.1 The Project Plan and Project Specification shall be agreed between the Parties in advance of the start of the supply of Services and shall describe the work required from the Council Project Milestones Deliverables and any additional information requested by the Council from the Customer to determine the Project Plan.

4. COUNCIL’S RESPONSIBILITIES

4.1 The Council agrees to provide the Services to the Customer in accordance with these Terms and Conditions.

4.2 In carrying out the Services the Council undertakes that it shall perform its obligations under these Terms and Conditions and at all times using reasonable skill and care and shall use its reasonable endeavours to do so in accordance with Good Industry Practice.

4.2.1 The Council shall remain responsible for employee salaries and other associated employee costs.

4.3 If the Services involve Customer’s premises the Council shall ensure that all individuals engaged in the provision of the Services which involve an activity regulated by the Safeguarding Vulnerable Groups Act 2006 or its successors are subject to a valid enhanced disclosure check undertaken through the Criminal Records Bureau or the Disclosure and Barring Service including a check against the children’s barred list. The Council shall monitor the level and validity of the checks under this clause 4.3 provided that the Customer shall immediately notify the Service of any information within its possession that affects the validity of existing such checks or if the Council reasonably requests the said information.

4.4 Time shall not be of the essence in relation to the provision of the Services by the Council to the Customer unless expressly so agreed in advance of the commencement of the Services in writing between the Parties

4.5 If the Council’s completion of the Services in accordance with this Agreement is delayed by reason of any act or default on the part of the Customer or its agents employees or pupils or by any other cause that the Council could not have reasonably foreseen or prevented and for which it was not responsible the Council shall on its request to the School be allowed a reasonable extension of time for completion of the Services so affected

4.6 While on the Customer’s Premises the Council shall comply with any health and safety measures implemented by the Customer in respect of staff and other persons working on the Customer’s Premises of which it is expressly advised in writing by the Customer.

5. CUSTOMER OBLIGATIONS

The Customer shall:

5.1 co-operate with the Council in all matters relating to the Services and appoint the Customer’s Manager in relation to the Services or the Project who shall have the power to bind the Customer contractually on matters relating to the Services or that Project and shall take all reasonable action as is necessary for the efficient transmission of information and instructions so as to enable the Council to perform the Services.

5.2 provide such access to the Customer’s premises and data and such office accommodation and other facilities as may reasonably be requested by the Council and agreed with the Customer in writing in advance for the purposes of the Services or the Project such provision to be made free of charge to the Council

5.3 provide such information as the Council may reasonably request and the Customer considers reasonably necessary in order to carry out the Services or the Project in a timely manner and ensure that it is accurate in all material respects.

5.4 The Customer shall in advance of the commencement of work by the Council ensure that the Council is informed of any of its confidentiality requirements and shall inform the Council of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s Premises at which the Services are to be delivered by the Council.

5.5.The Customer shall on demand provide the Council and any relevant regulatory body (and/or their agents or representatives) with all reasonable co-operation and assistance in relation to any external or internal audit to which the Council as a local authority is subject including:

5.5.1 all information requested by the above persons within the permitted scope of the audit or inquiry

5.5.2 reasonable access to any sites controlled by the Customer and

55.3 access to the Customer’s Personnel.

5.5.4 The Council shall endeavour to (but is not obliged to) provide at least fifteen (15) days notice of its or where possible a regulatory body’s intention to conduct an audit.

5.5.5 The parties agree that they shall bear their own respective costs and expenses incurred in respect of compliance with their obligations under clause 5.5.

5.5.6 If an audit or inquiry or court of law identifies a material failure by the Customer to perform its obligations under this Agreement then without prejudice to any other remedies available to the Council the Customer shall reimburse the Council a reasonable proportion of its costs of audit or inquiry or legal proceedings.

5.6 The Customer shall promptly notify the Council of any health and safety hazards which may arise in connection with the performance of the Agreement.

6. CHANGE CONTROL

6.1 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.

6.2 In the event of its receipt of a request as described in sub-clause 6.1 the Council shall within a reasonable time (and in any event not more than 14 working days after receipt of the Customer’s request) provide a written estimate to the Customer of:

6.2.1 the likely time required to implement the change

6.2.2 any necessary variations to the Council’s charges arising from the change

6.2.3 the likely effect of the change on the Project Plan (if any) and

6.2.4 any other impact of the change on this Agreement.

6.3 Unless both parties consent to a proposed change in writing there shall be no change to the Services or the Project Plan (if any).

6.4 If both parties consent to a proposed change the change shall be made only after agreement of the necessary variations to the Council’s charges the Services the relevant Project Plan and any other relevant terms of the Agreement

6.5 If the Council 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 Customer shall not unreasonably withhold or delay consent to it.

7. CHARGES AND PAYMENT

7.1 In consideration of its receipt of the Services from the Council the Customer shall pay the Price in accordance with this Clause 7.

7.2 In the case of Pay-as-you-go Services or Subscription Services such payment shall be made by the Customer to the Council at the start of the relevant Pay-as-you-go period or the relevant Subscription Period for which payment is due.

7.3 In the case of Bespoke Services payment shall be due in advance of the commencement of the Services at such times and in such manner as is set out in each of the Specifications for the Services set out in the School for Services web-site.

7.4 The Price shall be calculated in accordance with the Council’s rates for Pay-as- you-go Services or Subscription Services as displayed in the Services for Schools Service Specification or in the case of Bespoke Services at those rates agreed in writing between the Parties.

7.5 The Council may include within the Price the cost of subsistence travelling and any other ancillary expenses reasonably and properly incurred by members of the Council’s Team in connection with the provision of the Services including the cost of any materials the cost of services reasonably and properly provided by third parties and required by the Council for the supply of the Services.

7.6 If the Customer fails to pay any amount payable by it under these Terms and Conditions the Council may charge the Customer 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 4 per annum above the base rate for the time being of the Council’s Bank.

7.7 The Council shall maintain complete and accurate records of the time spent and materials used by the Council in providing the Services in such form as the Customer shall approve. The Council shall allow the Customer to inspect such records at all reasonable times on request.

7.8 Payment of the Price shall be made in pounds (£) sterling.

7.9 All cheques drafts or other payment instructions issued by the Customer should be drawn on a bank trading in the UK.

7.10 Time shall be of the essence in relation to payments by the Customer to the Council under these Terms and Conditions.

8. COUNCIL WARRANTY

8.1 The Council warrants to the Customer that:

8.1.1 the Council will perform the Services with reasonable care and skill and in accordance with Good Industry Practice

8.1.2 the Services will conform with all descriptions and or Specifications including the relevant Project Specification and Project Plan and

8.1.3 the Services and Deliverables will be provided in accordance with all applicable legislation from time to time in force and the Council will inform the Customer as soon as it becomes aware of any changes in that legislation.

8.2 The Customer’s rights under these Terms and Conditions are in addition to the statutory terms implied in favour of the Customer by the Supply of Goods and Services Act 1982 and any other statute.

9. CUSTOMER WARRANTY AND INDEMNITY

9.1 The Customer warrants to the Council that:

9.1.1 it shall provide the Council in a timely manner all such information and materials as are necessary for the Council to carry out the Services in accordance with these Terms and Conditions and that all information so provided by it or on its behalf to the Council will be accurate.

9.1.2 The Customer warrants that it has the necessary rights and is entitled to use or disclose for the purposes of the Services all Intellectual Property licensed to it by a third party to the Council for the purposes of carrying out the Services.

9.1.3 The Customer warrants that it shall not without the Council’s prior written consent for one year following the termination or expiry of the Agreement solicit or entice away from the Council or employ or attempt to employ any person who is or has been engaged as an employee or sub-contractor of the Council in the provision of the Services.

9.1.4 The Customer warrants that it has obtained all necessary licences approvals permits or authorities required in relation to the Services and the Customer accepts full responsibility and liability in respect of any failure to obtain such permissions.

10. INSURANCE

10.1 The Council shall effect and maintain with a reputable insurance company a policy or policies of insurance providing an adequate level of cover in respect of all risks which may be incurred by the Council because of the performance of its obligations under this Agreement including death or personal injury loss of or damage to property or any other loss. Such policies shall include cover in respect of any financial loss arising from any advice given or omitted to be given by the Council Such insurance shall be maintained for the duration of the as set out below:

10.2 The minimum levels of insurance obtained by the Council are:

10.2.1 professional indemnity insurance with a minimum limit of indemnity of one million pounds sterling (£1,000,000) for each individual claim or such higher limit as the Customer may reasonably require (and as required by Law) from time to time

10.2.2 employers’ liability insurance with a minimum limit of five million pounds sterling (£5,000,000) or such higher minimum limit as required by Law from time to time.

10.2.3 public liability insurance with an indemnity limit of not less than £5 million pounds (£5,000,000) in respect of any one act or occurrence or series of acts or occurrences in any one year.

11. INDEMNITY

11.1 This clause 11 sets out the entire financial liability of the Council (including any liability for the acts or omissions of its employees agents consultants and sub-contractors) to the Customer in respect of:

11.1.1 any breach of the Agreement however arising

11.1.2 any use made by the Customer of the Services the Deliverables or any part of them and

11.1.3 any representation statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

11.2 All warranties conditions and other terms implied by statute or common law are to the fullest extent permitted by law excluded from these Terms and Conditions.

11.3 Nothing in these Terms and Conditions limits or excludes the liability of the Council for:

11.3.1 death or personal injury resulting from its negligence or

11.3.2 fraud or fraudulent misrepresentation or

11.3.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.

11.4 Subject to clause 11.2 and clause 11.3:

11.4.1 the Council shall not under any circumstances be liable for loss of profits or loss of business depletion of goodwi1l and/or similar losses or loss of anticipated savings or loss of goods or loss of contract or loss of use or loss of corruption of data or information or any special indirect consequential or pure economic loss costs damages charges or expenses and

11.4.2 the Council’s total liability in contract tort (including negligence or breach of statutory duty) misrepresentation restitution or otherwise arising in connection with the performance or contemplated performance of the Agreement shall in all circumstances be limited to the price paid for the Services.

12. CONFIDENTIALITY AND THE COUNCIL’S PROPERTY

12.1 The Customer shall keep in strict confidence all technical or commercial know-how specifications inventions processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Council its employees agents consultants or sub-contractors and any other confidential information concerning the Council’s business or its products which the Customer may obtain.

12.2 The Customer may disclose such information:

12.2.1 to its employees officers representatives advisers agents or sub- contractors who need to know such information for the purposes of carrying out the Customer’s obligations under this agreement and as may be required by law court order or any governmental or regulatory Council.

12.2.2 The Customer shall ensure that its employees officers representatives advisers agents or sub-contractors to whom it discloses such information comply with this clause 11.

12.2.3 The Customer shall not use any such information for any purpose other than to perform its obligations under the Agreement.

12.2.4 All materials equipment and tools drawings specifications and data supplied by the Council to the Customer (including Pre-existing Materials and the Council’s Equipment) shall at all times be and remain the exclusive property of the Council but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Council and shall not be disposed of or used other than in accordance with the Council’s written instructions or authorisation.

13. INTELLECTUAL PROPERTY

13.1 As between the Customer and the Council all Pre-existing Intellectual Property Rights shall be owned by the Council.

13.2 Subject to clause 13.1 the Council licenses all such Pre-Existing Intellectual Property Rights to the Customer free of charge on a non-exclusive basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services for the duration of each Pay-as-you-go Subscription and Bespoke Service ordered by the Customer from the Council. For the avoidance of doubt the licence terminates immediately once the Agreement ends.

13.3 The Customer acknowledges that where the Council does not own any of the Pre-existing Intellectual Property Rights the Customer’s use such rights is conditional on the Council having obtained a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Council to license such rights to the Customer.

13.4 Subject to any third party rights other than those created by virtue of the Agreement to the extent that the provision of the Services results in the creation of any Post-Contract Intellectual Property Rights such Post-Contract Intellectual Property Rights shall vest in the Council.

13.5.1 Until the expiry or termination of the Agreement and subject to clause 13.3 the Council licenses all Post-Contract Intellectual Property Rights for a relevant Service to the Customer free of charge and on a non-exclusive basis to such extent as is necessary to enable the Customer to make reasonable use of the Services and the Deliverables.

14. ANTI-BRIBERY

The Council and the Customer shall:

14.1 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 and

14.2 shall 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.

15. TERMINATION

15.1 Without prejudice to sub-clauses 15.2 and 15.3 the Agreement shall expire on completion of the Pay-as-you-go Services or the Subscription Period or the relevant Project.

15.2 Without prejudice to any other rights or remedies which the parties may have either party may terminate the Bespoke Services and Subscription Services as follows:

15.2.1 on giving the other not less than 30 days’ written notice of termination in respect of any agreement for Bespoke Services between the parties of a duration of less than 12 months in length

15.2.2 on giving the other not less than 3 months’ written notice of termination in respect of any agreement for Bespoke Services between the parties of a duration of between 12 months and 24 months in length

15.2.3 on giving the other not less than 6 months’ written notice of termination in respect of any agreement for Bespoke Services between the parties of a duration of between 12 months and 24 months in length

15.2.4 on giving the other not less than 6 months’ written notice of termination in respect of any agreement for Subscription Services between the parties of any duration.

15.3. Without prejudice to clauses 15.1 and 15.2 an Agreement in respect of Services that are either Pay-As-You-Go Bespoke Services or a Project will be terminable by the Council at its discretion immediately in the event of the occurrence of an event described below namely if:

15.3.1 the Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment or

15.3.2 the Customer commits a breach of any of the material terms of these Terms and Conditions and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of the Customer being notified in writing of the breach by the Council of the need to remedy the said breach or

15.3.3 the Customer repeatedly breaches any of these Terms and Conditions 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 these Terms and Conditions or

15.3.4 the Customer 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 or

15.3.5 the Customer 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

15.3.6 a petition is filed a notice is given a resolution is passed or an order is made for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of that other party or

15.3.7 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 Customer or

15.3.8 a floating charge holder over the assets of the Customer 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

15.3.9 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 fourteen (14) days or

15.3.10 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 15.3.4 to 15.3.9 (inclusive) or

15.3.11 the other party suspends or ceases or threatens to suspend or cease to carry on all or a substantial part of its business or

15.4 there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).

15.4.1 On termination of the Agreement for any reason: the Customer shall immediately pay to the Council all of the Council’s outstanding unpaid invoices and interest and in respect of Services supplied but for which no invoice has been submitted the Council may submit an invoice which shall be payable immediately on receipt

15.4.2 the Customer shall within a reasonable time return all of the Pre-existing Intellectual Property and Deliverables. If the Customer fails to do so then the Council may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed the Customer shall be solely responsible for their safe keeping

15.4.3 the accrued rights remedies obligations and liabilities of the parties as at termination shall not be affected including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination and

15.4.4 which expressly or by implication have effect after termination shall continue in full force and effect including the following clauses: clause 13 (Intellectual Property rights) clause 12 (Confidentiality and the Council’s property) clause 9 (Indemnity) clause 22 (Notices) clause 30 (Dispute resolution) clause 33 (Governing law and jurisdiction).

16. FORCEMAJEURE

16.1 A party provided that it has complied with the provisions of clause 16.3 shall not be in breach of the Agreement nor liable for any failure or delay in performance of any obligations under this agreement (and subject to clause 16.4 (the time for performance of the obligations shall be extended accordingly) arising from or attributable to acts events omissions or accidents beyond its reasonable control (“Force Majeure Event) including but not limited to acts of God including but not limited to fire flood earthquake windstorm or other natural disaster war threat of or preparation for war armed conflict imposition of sanctions embargo breaking off of diplomatic relations or similar actions terrorist attack civil war civil commotion or riots nuclear chemical or biological contamination or sonic boom voluntary or mandatory compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law fire explosion or accidental damage loss at sea-extreme adverse weather conditions collapse of building structures failure of plant machinery machinery computers or vehicles any labour dispute including but not limited to strikes industrial action or lockouts non- performance by suppliers or sub-contractors other than by companies in the same group as the party seeking to rely on this clause) and interruption or failure of utility service including but not limited to electric power gas or water.

16.2 The corresponding obligations of the other party will be suspended to the same extent save to the extent the Customer shall pay the Council for all Services delivered prior to the Force Majeure event.

16.3 Any party that is subject to a Force Majeure Event shall not be in breach of this agreement provided that:

16.3.1 it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance

16.3.2 it could not have avoided the effect of the Force Majeure Eventby taking precautions which having regard to all the matters known to it before the Force Majeure Event it ought reasonably to have taken but did not and

16.3.3 it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event to carry out its obligations under this agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.

16.4 If the Force Majeure Event prevails for a continuous period of more than six months either party may terminate this agreement by giving 30 days’ written notice to all the other party. On the expiry of this notice period this Agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.

17. RIGHTS AND DUTIES RESERVED

17.1 All rights and duties which the Council has as a local Council or which Council Officers have as local Council officers are expressly reserved and nothing in the Agreement shall prejudice the powers duties or rights of the Council as a local Council nor be implied or deemed as consent or waiver of the Council pursuant to any such power right or duty.

18. DATA PROTECTION

18.1 The Customer acknowledges and agrees that details of the Customer’s name address and payment record may be submitted to a credit reference agency and personal data will be processed by and on behalf of the Supplier in connection with the Services.

19. FREEDOM OF INFORMATION

19.1 The Customer acknowledges that the Council is subject to the requirements of the FOIA and the EIR and shall assist and co-operate with the Council (at the Service Provider’s expense) to enable the Council to comply with these information disclosure requirements

19.2 The Customer shall provide the Council with a copy of all Information in its possession or power in the form that the Council requires within five (5) Working Days (or such other period as the Council may specify of the Council requesting that Information and shall provide all necessary assistance as reasonably requested by the Council to enable the Council to respond to a Request for Information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the Environmental Information Regulations.

19.3 The Customer shall ensure that all Information produced in the course of the agreement or relating to the Agreement is retained for disclosure and shall permit the Council to inspect such records as requested from time to time

19.4 In no event shall the Customer respond directly to a Request for Information unless expressly authorised to do so by the Council

19.5 The Customer acknowledges that the Council may acting in accordance with the Secretary of State for Constitutional Affairs’ Code of Practice on the discharge of public authorities’ functions under Part 1 of FOIA (issued under section 45 of the FOIA November 2004) be obliged under the FOIA or the Environmental Information Regulations to disclose Information without consulting with the Service Provider or following consultation with the Customer and having taken its views into account

19.6 The Council shall be responsible for determining at its absolute discretion whether the Commercially Sensitive Information and/or any other Information is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Information Regulations and/or is to be disclosed in response to a Request for Information.

20. EQUALITIES AND HUMAN RIGHTS

20.1 The Council and the Customer shall and shall ensure that their agents sub-contractors and employees in the provision and receipt of the Services comply with and not unlawfully discriminate within the meaning of any UK legislation statutory instrument byelaw or legislation of the European Communities relating to equal opportunities (“the Equalities Legislation”) which may be in force or come into force during the Agreement

21. VARIATIONS

21.1 No variation of these Terms and Conditions shall be valid or of any effect unless agreed in writing and signed by the authorised representatives of both parties.

22. WAIVER

22.1 No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.

23. VALUE ADDED TAX

23.1 The Customer shall be liable to pay to the Council such Value Added Tax (“VAT”) as may be properly chargeable by the Council upon receipt of a proper VAT invoice in respect of the supply of the relevant Services to the Customer.

24. SUB-CONTRACTING NOVATION OR ASSIGNMENT

24.1 The Council may sub-contract the whole or any part of its obligations under this agreement with the express prior written consent of the Customer such consent not to be unreasonably withheld.

24.2 The Council shall be entitled to novate the agreement to any other body which substantially performs any of the functions that previously had been performed by the Council.

24.3 Subject to sub-clauses 24.1 and 24.2 neither party shall be entitled to assign novate or otherwise dispose of any or all of its rights and obligations under the Agreement

25. CUSTOMER’S PREMISES AND ASSETS

25.1 The Customer shall licence and allow access to such parts of the Customer’s Premises as the Council reasonably requires for the purposes only of properly providing the Services free of charge.

25.2 The Customer shall provide the Council with such accommodation and facilities in the Customer’s Premises as agreed by the parties at the start of these Terms and Conditions or from time to time free of charge.

25.3 In the event of the expiry or termination of the agreement the Customer shall on reasonable notice provide the Council with such access as the Council reasonably requires to the Customer’s Premises to remove any of the Council’s equipment. All such equipment shall be promptly removed by the Council.

25.4 The Council shall ensure that:

25.4.1 where using the Customer’s Premises and any Customer Assets they are kept properly secure and it will comply and cooperate with the Customer Manager’s reasonable directions regarding the security of the same

25.4.2 only those of the Service Provider’s Personnel that are duly authorised to enter upon the Customer’s Premises for the purposes of providing the Services do so.

25.4.3 The Council shall notify the Customer immediately on becoming aware of any damage caused by the Service Provider its agents employees or Sub-Contractors to any property of the Customer to any of the Customer’s Premises or to any property of any other recipient of the Services in the course of providing the Services.

26. NO PARTNERSHIP OR AGENCY

26.1 Nothing in the Agreement shall be construed as constituting a partnership between the parties or as constituting either party as the agent of the other for any purpose whatsoever except as specified by the terms of this agreement

27. THIRD PARTY RIGHTS

27.1 No term of the Agreement is intended to confer a benefit on or to be enforceable by any person who is not a party to the Agreement.

28. NOTICES

28.1.1 Any notice which the Customer is required to give to the Council under these Terms and Conditions shall be made in writing and served by recorded hand or post delivery to the Council’s Manager at:

Director of Children’s and Adult’s Services London of Hounslow
The Civic Centre
Lampton Road
Hounslow TW3 4DN

or

28.1.2 by e-mail served by upon the Council’s Manager at:

servicesforschools@hounslow.gov.uk

28.2 Any notice that the Council is required to give to the Customer under this Agreement shall be made in writing and may be served either:

28.2.1 By delivering the notice by hand to the Customer’s Manager at the School at which the Services are delivered

28.2.2 By e-mail served by upon the School’s Headteacher.

29. CUMULATION OF REMEDIES

29.1 Unless specifically provided otherwise rights arising under this agreement are cumulative and do not exclude rights provided by law.

30. DISPUTE RESOLUTION

30.1 The Parties shall use their best endeavours to resolve by agreement any dispute between them.

30.2 In order to resolve a dispute a Party may use the following procedure:

30.2.1 request a meeting between representatives within 10 working days or such other period that might be agreed between the parties.

30.2.2 if the dispute remains unresolved then a further meeting between senior representatives may be requested within a further 20 working days or such other period as might be agreed.

30.2.3 If the dispute is still not resolved then the matter will if all parties agree be referred to independent mediation as soon as is reasonably practicable. The choice of mediator shall be mutually agreed upon and any resultant costs shall be paid equally between the parties.

30.2.4 If the matter cannot be satisfactorily resolved through mediation it will be referred to an independent arbitrator. The arbitrator shall be a member of The Institute of Arbitrators. The choice of arbitrator shall be mutually agreed upon or failing such agreement shall be appointed by the President of the Institute of Arbitrators. The arbitrator’s decision is binding and shall be recorded in writing. Any costs of arbitration will be apportioned by the arbitrator as he/she thinks fit.

30.3 This dispute resolution procedure shall not prejudice any other rights of the Parties.

31. COUNCILS’ FUNCTIONS AS A LOCAL AUTHORITY

31.1 Nothing in this Agreement shall prejudice or affect the Council’s rights powers duties and obligations in relation to the exercise of the Council’s functions as a local authority.

32. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999

32.1 The parties agree that the Contracts (Rights Of Third Parties) Act 1999 shall not apply to this Agreement and no person who is not a party to this Agreement may enforce any term of it unless this Agreement expressly provides that he or she may do so.

33. GOVERNING LAW AND JURISDICTION

33.1 The Agreement will be governed by and construed according to the law of England and the Council irrevocably submits to the jurisdiction of the English courts.

34. ENTIRE AGREEMENT

34.1 The Agreement the Specification and any other document expressly otherwise referred to in it contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements arrangements and understandings between the parties relating to that subject matter. These Terms and Conditions shall apply to all contracts for the supply of Services to the Customer to the exclusion of all other terms and conditions including any terms and conditions which the Customer may purport to apply under the on-line purchase order or any written confirmation of order or similar document

Version Date: March 2018