Agreement for the Provision of Somerset Services To
Education Providers (SSTEP)
Between
1) Somerset County Council (a statutory corporation) whose head offices are
based at Somerset County Council, County Hall, Taunton, Somerset TA1 4DY
(the “Supplier”); and
2) The School, Academy or any other form of educational establishment
obtaining Somerset Services To Education Providers pursuant to these
Terms and Conditions (the “Customer”);
together, the “Parties”
This Agreement shall be binding on the parties upon the Customer confirming on the
electronic ordering process that it accepts the Terms and Conditions set out in this
Agreement and proceeding to submit an order through the SSTEP system.
INDEX
1. DEFINITIONS AND INTERPRETATIONS
3
2. TERM
5
3. BASIS OF CONTRACT
5
4. PROVISION OF SERVICES
5
5. PRINCIPAL OBLIGATIONS
6
6. TERMINATION
6
7. CONSEQUENCES OF TERMINATION
7
8. CHARGES AND PAYMENT
7
9. GENERAL INDEMINITY CLAUSE
8
10. INTELLECTUAL PROPERTY RIGHTS
8
11. DATA PROTECTION AND CONFIDENTIALITY
9
12. LIMITATION OF LIABILITY
9
13. FORCE MAJEURE
10
14. ASSIGNMENT AND SUBCONTRACTING
10
15. NOTICES
11
16. ANNOUNCEMENTS
11
17. DISPUTE RESOLUTION
11
18. EXCLUSIVITY
12
19. GOVERNING LAW
12
20. VARIATION CLAUSE
12
21. WAIVER
13
22. ENTIRE AGREEMENT
13
23. SURVIVAL AND VALIDITY
13
24. THIRD PARTY RIGHTS ACT
13
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1.
DEFINITIONS AND INTERPRETATIONS
1.1 In these Conditions, the following definitions apply:
Academic Year:
1st September to 31st August each year
Academic Year
Services:
any Traded Service which is not a Financial Year Service
Academic Year
Services
Commencement
Date:
the start of the Academic Year following the Effective Date
Academy:
has the meaning set out in section 17 of the Academies Act
2010
Academy Order:
means an order made pursuant to section 4 of the
Academies Act 2010
Agreement:
these Conditions together with the Customer’s Order
Business Day:
9.00 am – 5.00 pm Monday to Friday, excluding Public
Holidays
Conditions:
these terms and conditions
Effective Date:
the date on which the Supplier issues the Order
Confirmation to the Customer
Financial Year
Services:
any Traded Service to be provided by Finance and
Performance, Somerset Scientific Services, or Property and
Facilities Management as set out in the SSTEP Catalogue
Financial Year
Services
Commencement
Date:
the 1st April following the Effective Date
Order:
the Customer's order for Traded Services as submitted
through the SSTEP Customer Ordering System
Order Confirmation:
a notice in writing sent by email from the Supplier to the
Customer accepting the Customer’s Order
Service Charge(s):
the sum payable by the Customer for the provision of the
Traded Services as set out in the Order Confirmation
Specification:
the description, inclusive of any drawings, photographs or
other as set out in the SSTEP catalogue and Customer
Ordering System
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SSTEP:
Somerset Services To Education Providers (SSTEP) - is a
collection of core and chargeable services provided by the
Supplier via an online catalogue for Schools, Academies or
other educational establishments, hosted on the Somerset
Learning Platform. The services are able to be ordered via
the SSTEP Customer Ordering System
Term:
where the Order is for:
a) Academic Year Services, one year from the
Academic Year Services Commencement Date;
b) Financial Year Services, one year from the Financial
Year Services Commencement Date; or
both Academic Year Services and Financial Year Services,
one year from the later of the Academic Year Services
Commencement Date and the Financial Year Services
Commencement Date
Termination date:
either:
a) the expiry of the Term; or
b) the date on which this Agreement is terminated in
accordance with these Conditions
Traded Services:
the Academic Year Services and the Financial Year
Services or any of them
1.2 In these Conditions, the following rules of construction apply:
a)
a person includes a natural person, corporate or unincorporated body
(whether or not having separate legal personality);
b)
a reference to a Party includes its personal representatives,
successors or permitted assigns;
c)
a reference to a statute or statutory provision is a reference to such
statute or statutory provision as amended or re-enacted. A reference
to a statute or statutory provision includes any subordinate legislation
made under that statute or statutory provision, as amended or reenacted;
d)
any phrase introduced by the terms including, include, in particular or
any similar expression, shall be construed as illustrative and shall not
limit the sense of the words preceding those terms;
e)
a reference to writing or written includes any text sent via the internet,
principally but not limited to via the SSTEP catalogue.
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2.
TERM
2.1 This Agreement shall take effect on the Effective Date and shall continue for
the Term.
3.
BASIS OF CONTRACT
3.1 The Order constitutes an offer by the Customer to purchase Traded Services in
accordance with these Conditions.
3.2 The Order shall only be deemed to be accepted when the Supplier issues an
Order Confirmation.
3.3 These Conditions apply to the Agreement to the exclusion of any other terms
that the Customer seeks to impose or incorporate, or which are implied by
trade, custom, practice or course of dealing.
3.4 Any quotation given by the Supplier shall not constitute an offer, and is only
valid from its date of issue for a period of one calendar month.
3.5 The Supplier has the right to amend the terms and conditions of this Agreement
from time to time. These amendments will not be applied retrospectively to
Orders that have already been received by the Supplier. In that instance the
terms and conditions at the date of the original Order will be applied.
4.
PROVISION OF SERVICES
4.1 The Supplier shall:
a)
perform the Traded Services with reasonable skill and care;
b)
deal promptly with queries or problems relating to the performance of
the Traded Services and use reasonable endeavours to correct or
procure the prompt correction of Traded Service defects; and
c)
comply with such reasonable policies relevant to the provision of the
Traded Services which have been notified to the Supplier from time to
time (including where compliance is reasonably required while working
on the Customer’s premises by any of the Customer’s suppliers or
contractors);
d)
the Customer will grant to the Supplier all access reasonably required
in the circumstances to the Customer and its premises during
Customer normal working hours.
4.2 If the Customer fails to advise the Supplier of any restrictions to access to its
premises the Supplier shall not be liable for any breach of this Agreement to the
extent that it arose as a direct result of such failure by the Customer.
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4.3 In the circumstances described in clause 4.2 the Customer shall pay the
Supplier’s standard daily rate for any of the Traded Services which the Supplier
would otherwise have been required under this Agreement to provide.
4.4 The Supplier may sub-contract the provision of any of the Traded Services
without the consent of the Customer provided that the Supplier shall not subcontract any service which in its reasonable opinion requires a substantial
degree of confidentiality without the written consent of the Customer such
consent not to be unreasonably withheld or delayed.
5.
PRINCIPAL OBLIGATIONS
5.1 The Customer and the Supplier shall each comply with their respective
obligations set out in this Agreement and the schedules hereto with each Party
remaining solely liable for the obligations and liabilities of its employees, agents
and its subcontractors.
6.
TERMINATION
6.1 For the avoidance of doubt, no rights of termination for convenience exist.
6.2 Without limiting its other rights or remedies, either Party may terminate this
Agreement by giving 14 days written notice to the other Party if the other Party
commits a material breach of this Agreement and:
a)
the breach is incapable of remedy; or
b)
the breach being capable of remedy, fails to remedy that breach within
30 days (or such other period as may be agreed in writing between the
Parties) of receipt of a written notice specifying the breach or breaches.
6.3 The Supplier may terminate this Agreement without liability if the Customer fails
to pay proper and correct invoices in accordance with clause 8.
6.4 The Customer may terminate this Agreement in the event that an Academy
Order is made in respect of the Customer, in which case it shall:
a)
give at least 4 months’ written notice of termination and upon such
notice being given payment shall be due for the full notice period and
for all services which have been provided up to the termination date; or
b)
terminate without notice or upon less than 4 months’ notice but in such
circumstances the Customer will pay an early termination fee equal to
the 4 months’ charges for the Traded Services which have been
delivered up until the termination date less any charges actually paid
from the date of giving notice down to the date of termination.
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6.5 Where an annual charge is made such charges applicable under this clause
shall be calculated pro rata for the time periods based on the annual charges
payable under this Agreement, the notice period of 4 months or for actual
services which have been delivered.
7.
CONSEQUENCES OF TERMINATION
7.1 On termination of this Agreement for any reason:
8.
a)
the Customer shall immediately pay to the Supplier all of the Supplier's
outstanding unpaid invoices and interest due where applicable and, in
respect of Services supplied but for which no invoice has been
submitted, the Supplier shall submit an invoice, which shall be payable
by the Customer immediately on receipt;
b)
the accrued rights, remedies, obligations and liabilities of the parties as
at expiry or termination shall not be affected, including the right to claim
damages in respect of any breach of this Agreement which existed at
or before the date of termination or expiry; and
c)
clauses which expressly or by implication have effect after termination
shall continue in full force and effect;
d)
any personal data collected on behalf of either Party shall be returned
to the responsible data controller.
CHARGES AND PAYMENT
8.1 The Charges for the Services shall be on a time and materials basis:
a)
the Charges shall be calculated in accordance with the Supplier's
prices provided in the SSTEP Catalogue and SSTEP Customer
Ordering System;
b)
where there is no fixed rate price in the supplier’s SSTEP Catalogue or
SSTEP Customer Ordering System a quotation will be provided as part
of the Supplier’s written acceptance of the Service.
8.2 The Supplier reserves the right to increase its standard fee rates and this will
be enforced from the point of there being a change in the Charges in the
SSTEP catalogue. Such increases would only be made on publication of new
packages. There would be no increase in prices once a contract has been
agreed.
8.3 The Supplier shall invoice the Customer dependent upon the type of Traded
Service being provided.
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Payment Terms
8.4 Except as provided by clause 8.6 the Customer shall pay in full each invoice
submitted by the Supplier:
a)
within 21 days of the date of the invoice; and
b)
in cleared funds to a bank account nominated in writing by the
Supplier.
8.5 All charges are exclusive of VAT which will be charged at the prevailing rate
where applicable.
Disputed Amounts
8.6 Where the Customer acting reasonably disputes any charge invoiced by the
Supplier under this Agreement, the Customer will provide immediate written
notice to the Supplier detailing in full its reasons for disputing any charge. The
Customer shall pay the undisputed portion (if any) of the invoice in accordance
with clause 8.4.
8.7 The parties shall attempt in good faith to resolve any such dispute as soon as
practicable but in any event within 30 days of the invoice date. If the dispute is
not resolved, either Party may seek to have the matter resolved through SCC
dispute resolution process. Upon resolution of a dispute the Customer will pay
the Supplier according to the resolution of the dispute.
Interest
8.8 Without limiting any other right or remedy of the Supplier, if the Customer fails
to make any payment due to the Supplier under this Agreement by the due date
for payment the Supplier shall have the right to charge interest on overdue
payments at the rate of 8 per cent per annum above base rate of Bank of
England accruing on a daily basis from the due date until the date of cleared
actual payment of the overdue amount, whether before or after judgment, and
compounding quarterly.
9.
GENERAL INDEMNITY CLAUSE
9.1 The Supplier reserves the right to charge compensation costs for any work
undertaken as part of the recovery process.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in or arising out of or in connection with the
Services shall be owned by the Supplier.
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10.2 The Customer acknowledges that, in respect of any third party Intellectual
Property Rights, the Customer's use of any such Intellectual Property Rights is
conditional on the Supplier obtaining a written licence from the relevant licensor
on such terms as will entitle the Supplier to license such rights to the Customer.
10.3 All Supplier Materials remain the intellectual property of the Supplier.
11. DATA PROTECTION AND CONFIDENTIALITY
11.1 Both the Supplier and the Customer keep in strict confidence all information of
a confidential nature that has been disclosed to either Party by the other Party,
its employees, agents or subcontractors.
11.2 Both parties shall restrict disclosure of such confidential information to such of
its employees, agents or subcontractors as are required to know for the
purpose of discharging their obligations under this Agreement.
11.3 Nothing in this Clause 11 shall prevent either Party from disclosing confidential
information to the extent such disclosure is required by law, judicial action,
recognised stock exchange, governmental department or agency or other
regulatory authority to be disclosed in which event the recipient shall take
reasonable steps to consult and take into account the reasonable requirements
of the other Party in relation to such disclosure.
11.4 All personal data will be collected, stored, transmitted, processed and
destroyed in accordance with the provisions of the Data Protection Act 1998.
11.5 Any breach of personal data must be reported to the appropriate data
controller.
12. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS
PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
a)
death or personal injury caused by its negligence, or the negligence of
its employees, agents or subcontractors; or
b)
fraud or fraudulent misrepresentation.
12.2 Subject to clause 12.1.
a)
The Supplier shall under no circumstances whatsoever be liable to the
Customer, whether in contract, tort (including negligence), breach of
statutory duty, or otherwise, for any loss of profit, or any indirect or
consequential loss arising under or in connection with this Agreement;
and
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b)
The Supplier’s total liability to the Customer in respect of all other
losses arising under or in connection with this Agreement, whether in
contract, tort (including negligence), breach of statutory duty, or
otherwise, shall in no circumstances exceed the total Charges payable
by the customer for the particular Service wherein the liability has
arisen.
12.3 Except as set out in these Conditions, all warranties, conditions and other terms
implied by statute or common law are, to the fullest extent permitted by law,
excluded from this Agreement.
12.4 This clause 12 shall survive termination of this Agreement.
13. FORCE MAJEURE
13.1 For the purposes of this Agreement, Force Majeure Event means an event
beyond the reasonable control of the Supplier including but not limited to
strikes, lock-outs or other industrial disputes (whether involving the workforce
of the Supplier or any other person), 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 or machinery, fire, flood, storm or default of suppliers or
subcontractors.
13.2 The Supplier shall not be liable to the Customer as a result of any delay or
failure to perform its obligations under this Agreement as a result of a Force
Majeure Event.
13.3 If the Force Majeure Event prevents the Supplier from providing any of the
Services for more than 4 weeks, the Supplier shall, without limiting its other
rights or remedies, have the right to terminate this Agreement or any individual
Service supplied under it immediately by giving written notice to the Customer.
14. ASSIGNMENT AND SUBCONTRACTING
14.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in
any other manner with all or any of its rights under this Agreement and may,
subject only to clause 4.4, subcontract or delegate in any manner any or all of
its obligations under this Agreement to any third party or agent.
14.2 The Customer shall not, except in the circumstances set out in clause 14.3,
without the prior written consent of the Supplier assign, transfer, charge,
subcontract or deal in any other manner with all or any of its rights or
obligations under this Agreement.
14.3 Where an Academy Order is made in respect of the Customer, the Customer
may assign all rights and obligations under this Agreement to the Academy.
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15. NOTICES
15.1 Any communication to be given in connection with this Agreement shall be in
writing and shall either be delivered by hand or sent by first class pre-paid post
or facsimile transmission. Delivery by courier shall be regarded as delivery by
hand.
15.2 Notices shall be sent to:
a)
in the case of the Supplier, the address shown above (page 1), and
marked for the attention of the Strategic Manager for Support for
Educational Improvement and Commercial Development; and
b)
in the case of the Customer, to the address stated on the Order, and
marked for the attention of the signatory to this Agreement, or in the
absence of the signatory, their replacement or such other person(s)
deemed by the Supplier to have the relevant authority to receive such
notice.
15.3 A communication shall be deemed to have been served if delivered by hand, at
the time of delivery and if sent by first class pre-paid post, on the 3rd Business
Day following the time of posting. If a communication would otherwise be
deemed to have been delivered outside of normal business hours (being 9.30
am to 5.30 pm on a business day) under this clause 15.3 it shall be deemed to
have been delivered at the opening of business on the next business day.
16. ANNOUNCEMENTS
16.1 No press conference, announcement or other communication concerning this
Agreement, its terms, or the transactions referred to in this Agreement shall be
made or despatched by either Party to any third party without the prior written
consent of the other save as may be required by any law, any regulatory or
governmental body to which either Party is subject, whether or not the
requirement has the force of law, or existing contractual arrangements provided
that the other Party has first been informed of this and any confidentiality
undertaking reasonably required by it has been entered into by the third party
provided such communication shall be made only after consultation as to form
of notice with the other Party.
16.2 The restrictions contained in this Clause 16.2 shall continue to apply after the
Term without limit in time.
17.
DISPUTE RESOLUTION
17.1 The Parties warrant that they will attempt to resolve any dispute that arises in
good faith.
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17.2 If the Parties cannot resolve a dispute within 30 days of it arising, the matter will
be referred to the Strategic Manager of the Supplier and Head Teacher, or
equivalent of the Customer. At this point a further 30 days will be given for
dispute resolution to take place. Only once this has been exhausted will 17.3 be
triggered.
17.3 Upon the steps set out at 17.1 & 17.2 failing, any dispute arising out of or in
connection with this Agreement, including any question regarding its existence,
validity or termination, shall be referred to and finally resolved by arbitration
under the CEDR Rules, which Rules are deemed to be incorporated by
reference into this clause. The governing law of this Agreement shall be the
substantive law of England and Wales.
18. EXCLUSIVITY
18.1 The Supplier shall have the sole and exclusive right to provide the SCC Traded
Services of the nature of those ordered by the Customer to the Customer on
the terms and subject to the Conditions of this Agreement with effect from the
Effective Date and for the remainder of the term of the Agreement.
19. GOVERNING LAW
19.1 This Agreement shall be governed by and interpreted in accordance with
English law. The parties irrevocably submit to the non-exclusive jurisdiction
of the English courts to settle any disputes which may arise in connection
with this Agreement.
20. VARIATION CLAUSE
20.1 No variation to this Agreement shall be effective unless agreed in
accordance with this clause 20.
20.2 Where either Party (the Proposing Party) wishes to make a variation to this
Agreement the Proposing Party shall give notice (a Variation Proposal) to
the other Party (the Receiving Party).
20.3 Within 14 days of receipt of a Variation Proposal the Receiving Party shall
give notice to the Proposing Party setting out its acceptance or otherwise to
the proposed variation.
20.4 Where a variation proposed in accordance with clause 20.2 is agreed by the
Receiving Party the notice referred to in clause 20.3 shall be in the form of a
copy of the Variation Proposal signed by:
a)
where the Receiving Party is SCC, the Head of Support Services for
Education or another delegated Strategic Manager within Support
Services for Education; or
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b)
where the receiving Party is the Customer, the signatory to this
Agreement, or in the absence of the signatory, a person of equivalent
seniority;
and shall be effective upon receipt.
21. WAIVER
21.1 No omission to exercise or delay in exercising on the part of either Party to
this Agreement any right, power or remedy provided by law or under this
Agreement shall constitute a waiver of such right, power of remedy of any
other right, power or remedy or impair such right, power or remedy. No
single or partial exercise of any such right, power or remedy shall preclude
or impair any other or further exercise thereof or the exercise of any other
right, power or remedy provided by law or under this Agreement.
22. ENTIRE AGREEMENT
22.1 This Agreement and any documents referred to herein constitutes the whole
and only agreement between the parties relating to the provision of services,
and supersedes and extinguishes any prior drafts, previous agreements,
undertakings, representations, warranties and arrangements of any nature
whatsoever, whether or not in writing between the parties, in connection with
the subject matter hereof.
23. SURVIVAL AND VALIDITY
23.1 The provisions of this Agreement which expressly or by implication are
intended to survive its termination or expiry will survive and continue to bind
both parties, such as confidentiality, intellectual property and limitation of
liability.
23.2 Each of the provisions of this Agreement are severable. If any such
provision or any part of such provision is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, the legality,
validity or enforceability in that jurisdiction of the remaining provisions of this
Agreement or the remaining parts of that provision shall not in any way be
affected or impaired thereby.
24. THIRD PARTY RIGHTS
24.1 The Contracts (Right of Third Parties) Act 1999 shall not apply to this
Agreement which is entered solely for the benefit of the parties hereto save
that where an agreement is entered into pursuant to which any rights and/or
obligations contained in this Agreement are permissibly assigned or novated
to a third party, nothing in this clause 24 shall, or itself, operate to prevent
the assignee from taking the benefit of, and enforcing, any rights so
assigned.
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