Datedclick Here to Enter a Date

DATEDClick here to enter a date.

SWALE BOROUGH COUNCIL

and

COMPANY NAME

______

SERVICES AGREEMENT

For

TENDER / OPPORTUNITIY NAME

______

Mid Kent Legal Services

Swale Borough Council

Ref: Enter Reference Number

CONTENTS

Clauses

Definitions and Interpretation
Commencement and Duration
Services
Fees and Charges
Payment Procedures and Approvals
Service Provider’s Warranties
Contract Management
Health and Safety
Staff and Key Personnel
Equipment and Materials
Performance and Monitoring
Records, Audit and Inspection
Set-Off
Indemnities
Insurance
Data Protection
Intellectual Property Rights
Confidentiality
Freedom of Information
Termination
Consequences of Termination and Expiry
Dispute Resolution
Business Continuity Plan
Sustainability
Equality
TUPE
Waiver
Severability
Third Party Rights
Successors
Authority’s Standing Orders
No Agency or Partnership
Anti-Bribery
Prevention of Fraud
Survival of Terms
Notices
No Fetter
Assignment, Sub-Contracting and Change of Ownership
Variation
Further Assurance
Costs
Entire Agreement
Law and Jurisdiction

Schedules

Schedule 1 - Key Agreement Information

Schedule 2 –Services

Schedule 3 – Standards and Performance Management Regime(s) including KPIs

Schedule 4–Charges

Schedule 5 – Service Provider’s Tender

Schedule 6 – Change Control Procedure

Schedule 7 - Variation

THIS AGREEMENTis made the 00day of Month20XX

BETWEEN:

(1)SWALE BOROUGH COUNCIL of Swale House, East Street, Sittingbourne, Kent ME10 3HT(the “Authority”); and

(2)COMPANY NAMEa company registered in England and Wales under Reg. No. COMPANY NUMBER and whose registered office is situate at Full Postal Address(the “Service Provider”).

WHEREAS:

(A)The Authority sought proposals for the provision of INSERT OUTLINE OF SERVICES by means of a public tender exercise. The Authority placed a contract notice REFERENCE on DATE in the Official Journal of the European Union seeking expressions of interest from potential providers for the provision of INSERT OUTLINE OF SERVICES.

(B)The Authority has, through a competitive process, selected the Service Provider to provide these Services and the Service Provider is willing and able to provide the services in accordance with the terms and conditions of this Agreement.

(C)The Authority wishes to appoint the Service Provider to provide the Services in connection with insert Project name and brief details.

(D)The Service Provider has agreed to provide the Services to the Authority on the terms and conditions set out in this Agreement.

NOW IT IS HEREBY AGREED:

1.DEFINITIONS AND INTERPRETATION

1.1In the Agreement (including the Recitals)unless the context indicates otherwise the following expressions shall have the following meanings:

“Achieved KPIs” / means, in respect of any Service in any measurement period, the standard of performance actually achieved by the Supplier in the provision of that Service in the measurement period in question (calculated and expressed in the same way as the KPI for that Service is calculated and expressed in Schedule 2);
“Agreement” / means this Agreement, including the Schedules and all other documents referred to in this Agreement;
“Agreement Commencement Date” / means the date for commencement of this Agreement specified in Schedule 1;
“Assigned Employees” / means the employees of the Service Provider engaged in the provision of the Services (if any) at the date on which this Agreement is terminated or expires in accordance with its terms;
“Authority’s Data” / means all information and documentation provided by the Authority to the Service Provider pursuant to and in connection with this Agreement;
“Change” / means any change to this Agreement including to any of the Services;
“Change Control Note” / means the written record of a Change agreed or to be agreed by the Parties pursuant to the Change Control Procedure;
“Change Control Procedure” / the procedure for changing this Agreement set out in Schedule 6;
“Charges” / means the charges payable by the Authority, in consideration of the due performance of the Services, as specified or calculated in accordance with the pricing schedule;
“Confidential Information” / means all information (whether written or oral) that by its nature may reasonably be regarded as confidential by the Authority (whether commercial, financial, technical or otherwise) including information which relates to the business affairs, customers, suppliers, products, and/or software, telecommunications, networks, trade secrets, know-how or personnel of the Authority;
“Contract Information” / (i)this Agreement in its entirety (including from time to time agreed changes to the Agreement); and
(ii)data extracted from the invoices submitted pursuant to Clause 5 (Payment Procedures and Approvals) which shall consist of the Service Provider’s name, the expenditure account code, the expenditure account code description, the document number, the clearing date and the invoice amount;
“Contract Manager” / means the Authority’s Contract Manager identified in Schedule1;
“Data Controller” / shall have the meaning as set out in the Data Protection Act 1998;
“Data Processor” / shall have the meaning as set out in the Data Protection Act 1998;
“Data Protection Legislation” / means the Data Protection Act 1998, the EU Data Protection Directive 95/46/EC, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner;
“Data Subject” / shall have the meaning as set out in the Data Protection Act 1998;
“Data Subject Access Request” / a request made by a Data Subject in accordance with rights granted pursuant to the DPA to access his or her Personal Data;
“FOI Legislation” / means the Freedom of Information Act 2000, all regulations made under it and the Environmental Information Regulations 2004 and any amendment or re-enactment of any of them; together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation;
“Force Majeure Event” / means any of the following: riot, civil unrest, war, act of terrorism, threat or perceived threat of act of terrorism, fire, earthquake, extraordinary storm, flood, abnormal weather conditions or other natural catastrophe or strikes, lock-outs or other industrial disputes to the extent that such event has materially affected the ability of the Party relying on the Force Majeure Event (“Affected Party”) to perform its obligations in accordance with the terms of this Agreement but excluding any such event insofar as it arises from or is attributable to the wilful act, omission or negligence of the Affected Party or the failure on the part of the Affected Party to take reasonable precautions to prevent such Force Majeure Event or its impact;
“Information” / means information recorded in any form held by the Authority or by the Service Provider on behalf of the Authority;
“Information Request” / means a request for any Information under the FOI Legislation;
“Insolvency Event” / means any of the following:
(a)the Service Provider suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts OR(being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 OR (being a partnership) has any partner to whom any of the foregoing apply;
(b)the Service Provider commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Service Provider with one or more other companies or the solvent reconstruction of that other party;
(c)a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) 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;
(d)an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Service Provider (being a company);
(e)the holder of a qualifying floating charge over the assets of the Service Provider (being a company) has become entitled to appoint or has appointed an administrative receiver; (i) a person becomes entitled to appoint a receiver over the assets of the Service Provider or a receiver is appointed over the assets of the Service Provider;
(f)the Service Provider (being an individual) is the subject of a bankruptcy petition or order;
(g)a creditor or encumbrancer of the Service Provider attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(h)any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (a) to (g) (inclusive);
(i)the Service Provider suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(j)the Service Provider (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation;
“Intellectual Property Rights” / means any and all intellectual property rights of any nature anywhere in the world whether registered, registerable or otherwise, including patents, utility models, trade marks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the "look and feel" of any websites;
“Key Personnel” / means the Service Provider’s key personnel named as such in Schedule 1;
“Losses” / means all costs (including legal costs and costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings and judgments;
“Milestone” / means an event which is the completion of one or more of the specified activities as may be set out in the Project Plan in the specification;
“Parties” / means the Authority and the Service Provider (including their successors and permitted assignees) and “Party” shall mean either of them as the case may be;
“Personal Data” / shall have the meaning as set out in the Data Protection Act 1998;
“Process” / has the meaning given to it under the Data Protection Legislation but, for the purposes of this Agreement, it shall include both manual and automatic processing;
“Prohibited Act” / means the offering or giving to any person, any gift or consideration of any kind as an inducement or reward for doing or forbearing to do, or for having done, any act in relation to the obtaining or execution of this Agreement except in the respect of payments made to the Service Provider in the normal course of this Agreement; or showing or forbearing to show, favour or disfavour to any person in relation to this or any other contract with the Authority; or in relation this Agreement; or committing any offence under the Prevention of Corruption Acts 1889 to 1916 or the Bribery Act 2010 or any related legislation or any of the money laundering related offences listed in the Public Agreement Regulations 2006 or giving any fee or reward, the receipt of which is an offence under sub-section(2) of Section 117 of the Local Government Act 1972;
“Project Plan” / means the plan (if any) in the specification in relation to the performance and timing of the Services which may include Milestones;
“Remediation Notice” / means a notice served by the Authority in accordance with Clause 20.1.1;
“Services” / means:
(a)all or any part of the services to be provided to, or activities to be undertaken and completed for, the Authority by the Service Provider in the specification including any variations to such services and/or activities pursuant to Clause 39 (Variation); and
(b)any responsibilities, services, or functions which may be reasonably regarded as incidental to the Services or activities and which may be reasonably inferred;
“Service Provider’s Personnel” / means all employees, staff, other workers, agents and consultants of the Service Provider and of any Sub-Contractors who are engaged in the provision of the Services from time to time, and including the Key Personnel;
“Service Provider’s Representative” / means the Service Provider’s Representative identified in Schedule 1;
“Service Provider’s Tender” / the tender submitted by the Supplier and other associated documentation set out in Schedule 5;
“Specification” / means the Specification (if any) and other requirements set out in the specification;
“Sub-Contract” / any contract or agreement or proposed contract or agreement between the Service Provider and any third party whereby that third party agrees to provide to the Service Provider the Services or any part thereof or facilities or services necessary for the provision of the Services or any part thereof or necessary for the management, direction or control of the Services or any part thereof;
“Sub-Contractor” / the third parties that enter into a Sub-Contract with the Service Provider;
“Target KPI” / means the minimum level of performance for a KPI which is required by the Authority as set out against the relevant KPI in Schedule 3;
“Term” / means the period during which this Agreement continues in force as set out in Schedule 1;
“Transferring Employee” / means the employees of the Authority providing the Services or equivalent to the Services immediately before the Commencement Date of this Agreementwho were engaged wholly or mainly in connection with the provision of Services;
“TUPE” / means the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended;
“VAT” / means value added tax as provided for in the Value Added Tax Act 1994 and any tax replacing the same or of a similar nature;
“Working Day” / means any day excluding Saturdays, Sundays or public or bank holidays in England.

1.2a reference to the singular includes the plural and vice versa, and a reference to any gender includes all genders;

1.3a reference to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended or re-enacted by any subsequent statute, enactment, order, regulation or instrument and shall include all statutory instruments or orders made pursuant to its whether replaced before or after the date of this Agreement;

1.4a reference to any document other than as specified in Clause 1.3 and save as expressed otherwise shall be construed as a reference to the document as at the date of execution of this Agreement;

1.5headings are included in the Agreement for ease of reference only and do not affect the interpretation or construction of the Agreement;

1.6the Schedules form part of the Agreement and will have the same force and effect as if expressly set out in the body of the Agreement;

1.7references to Clauses and Schedules are, unless otherwise provided, references to Clauses of, and Schedules to, the Agreement and any reference to a paragraph in any Schedule shall, in the absence of provision to the contrary, relate to the paragraph in that Schedule;

1.8in the event, and only to the extent, of any conflict between the Clauses and the Schedules, the Clauses prevail, except where the conflicting part of the Schedule is explicitly expressed to take precedence or to be of equal importance to the applicable Clause(s);

1.9the expression “person” means any individual, firm, body corporate, unincorporated association, partnership, government, state or agency of a state or joint venture;

1.10a reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established;

1.11the words “including”, “includes” and “included” will be construed without limitation unless inconsistent with the context;

1.12any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done;

1.13a reference to a document is a reference to that document as varied or novated (in each case, other than in breach of the provisions of this Agreement) at any time;

1.14A reference to writing or written includes faxes but not OR and e-mail;

1.15except as otherwise expressly provided in this Agreement, and subject to Clause 1.7, if there is any inconsistency between any of these Clauses or the Schedules, or any other document referred to in or incorporated into this Agreement the order of priority for the purposes of construction is:

1.15.1the Clauses;

1.15.2the Schedules;

1.15.3any other document referred to in or incorporated by reference into this Agreement.

2.COMMENCEMENT AND DURATION

This Agreement commences on the Agreement Commencement Date and continues in force for the Term unless terminated earlier, either in whole or in part, in accordance with this Agreement.

3. SERVICES

3.1The Service Provider acknowledges that it has sufficient information about the Authority, the Services and the Specification (if any) and that it has made all appropriate and necessary enquiries to enable it to perform the Services.

3.2The Service Provider shall provide the Services:

3.2.1with the high degree of skill, care and diligence normally exercised by recognised professional firms or by highly skilled and experienced Service Providers providing services of a similar scope, type and complexity as the Services in this Agreement and with sufficient resources including project management resources;