This Agreement Is Made the Day of 2006

This Agreement is made the day of 2006

Between:

1 DEVON COUNTY COUNCIL of County Hall, Topsham Road, Exeter EX2 4QD ("Devon") and

2 [insert name of service provider] of [insert address] company registration No. [insert number] ("the Service Provider")

“the parties”

Whereas

A Devon has invited tenders from service providers with expertise in the provision of [insert name of service] pursuant to a procurement exercise in [date] 2005.

B The purpose of the procurement exercise was to appoint alternative service providers to in-house provision for a number of service areas including [insert particular service].

C Devon has accepted Tenders from a number of service providers in the aforementioned service area and in particular has accepted a Tender dated [insert date] from the Service Provider in respect of [insert particular service].

D Accordingly Devon has appointed the Service Provider as one of its alternative service providers to Schools within the Devon LEA and the Service Provider has accepted the appointment subject to the terms and conditions contained in this Agreement.

E Further, as a result of the aforementioned procurement exercise schools within Plymouth and Torbay LEAs may choose to contract directly with the Service Provider for the provision of [insert name of service].

Confidential 02/06/2018 ALTERNATIVE PORTFOLIO

IT IS HEREBY agreed as follows:-

1 INTERPRETATION

1.1 In this Agreement unless the context otherwise requires the following expressions shall have the following meanings:-

“the Act” - means the Freedom of Information Act 2000

"Authorised - means the person appointed to act as Representative such pursuant to clause 14 and Deputy Authorised Representative"

"Devon LEA" - means Devon County Council acting in its capacity as a local education authority

"Devon Schools" - means a school or schools falling under the auspices of Devon LEA

“the Devon - means the online market place where Schools Portal” Devon Schools can source goods and services from registered companies

"Plymouth LEA" - means the Council of the City of Plymouth acting as a local education authority

"Plymouth - means a school or schools falling under the Schools" auspices of Plymouth LEA

“ Plymouth - means the catalogue where Plymouth Schools Portfolio” Schools can source services

"the LEAs" - means Devon LEA, Plymouth LEA and Torbay LEA

“SSSB” - means Devon's Schools Support Services Board

“School or - means a maintained School or Schools Schools” within Devon LEA, Plymouth LEA and Torbay LEA

“the Services” - means the [insert type of service here] provided to a School or Schools

“Tender” - means the Service Providers tender of [insert date]

"Torbay LEA" - means the Council of the Borough of Torbay acting as a local education authority

"Torbay Schools" - means a school or schools falling under the auspices of Torbay LEA

"Torbay Schools - means the catalogue, where Torbay Schools Portfolio" can source services

"LEA" - means individually either Devon LEA or Plymouth LEA or Torbay LEA

1.2 Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.

1.3 Words importing the singular include the plural, words importing any gender include every gender, and words importing persons include bodies corporate and unincorporated; and (in each case) vice versa.

1.4 References to clauses and schedules are references to clauses and schedules of this Agreement and any reference to a sub-provision is, unless otherwise stated, a reference to a sub-provision of the provision in which the reference appears.

1.5 Clauses and paragraph headings and titles appearing in this Agreement are for reference only and do not affect its construction or interpretation.

2 SCOPE OF THIS AGREEMENT

This Agreement sets out the scope and arrangements whereby Schools may enter into a contract with the Service Provider for the provision of the Services.

3 OBJECTIVES

The overriding principle of this Agreement is that Devon and the Service Provider agree to work together in an environment that fosters trust, goodwill and co-operation in order for the Service Provider to deliver when requested to do so by a School Services of a high quality and good value.

4 DURATION OF APPOINTMENT

4.1 Subject always to clause 21 the appointment of the Service Provider under this Agreement shall commence on 1 September 2006 and will continue for a period of 3 years expiring on 31 August 2009.

4.2 This Agreement may be terminated early by Devon in accordance with clause 21 below. The Service Provider may terminate its appointment by giving not less than three months written notice to Devon provided that such notice shall not expire prior to 31 August.

5 NO GUARANTEES OR REPRESENTATIONS OF FUTURE WORK

5.1 By entering into this Agreement Devon makes no guarantees or representations that the Service Provider will be selected by Schools at any time during the period of their appointment to provide the Services. For the avoidance of doubt this could mean that the Service Provider will not throughout the term of its appointment under this Agreement be asked by any Schools to provide the Services.

5.2 The Service Provider hereby expressly acknowledges the same and further acknowledges that any contracts in respect of Schools can only be awarded to him in accordance with the procedures and requirements set out in clause 7 below.

6 SERVICE PROVIDER PORTFOLIO

6.1 Devon LEA maintains a portfolio of the in-house services that are available to Devon Schools. The portfolio will signpost Devon Schools to the Devon Schools Portal where the Service Provider will, subject to clauses 6.2 and 6.6 below, be listed as one of a number of service providers of the Services. The information recorded about the Service Provider on the Devon Schools Portal will be as determined appropriate by Devon LEA following consultation with the Service Provider.

6.2 It is a requirement of the Service Providers appointment that it is responsible for paying to Devon an annual fee currently £48 in order to be listed on the Devon Schools Portal.

6.3 Plymouth LEA maintains a portfolio of services that are available to Plymouth Schools. The portfolio will advertise service providers and the Service Provider will, subject to clause 6.5 below, be listed as one of a number of service providers of the Services in the Plymouth Schools Portfolio. The information recorded about the Service Provider will be as determined appropriate by Plymouth LEA following consultation with the Service Provider.

6.4 Torbay LEA maintains a portfolio of services that are available to Torbay Schools. The portfolio will advertise service providers and the Service Provider will, subject to clause 6.5 below, be listed as one of a number of service providers of the Services in the Torbay Schools Portfolio. The information recorded about the Service Provider will be as determined appropriate by Torbay LEA following consultation with the Service Provider.

6.5 Notwithstanding the provisions of clause 2, an LEA may remove the Service Provider from the listing as described in clauses 6.1, 6.3 and 6.4 for such period as the LEA shall specify if the Service Provider fails to comply with any of its obligations under this Agreement or if the LEA acting reasonably determines that there are other circumstances necessitating the removal of the Service Provider from the aforementioned listings.

6.6 The Service Provider acknowledges that the prices and other information whether financial or not quoted in his Tender will be published in accordance with sub clauses 6.1, 6.3 and 6.4. As such the prices and other such information will be made available to and will be accessible by certain members of staff working at the Schools and appropriate staff of the LEAs. Whilst every effort is made to ensure that the prices and other information are maintained confidentially in accordance with confidentiality protocols Devon accepts no liability whether in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Service Provider of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill as a result of any breach of the aforementioned confidentiality protocols.

7 AWARD OF CONTRACTS BY SCHOOLS

7.1 Traditionally the Services have been provided to Schools by the LEAs' in-house providers. Whilst Schools may choose to continue to use their existing in-house provider the LEAs have decided that they wish to offer their respective Schools the opportunity of procuring the services from a service provider other than the in-house provider. In the event that a Devon School chooses so to do it will be able to consult the Devon Schools Portal and determine from the information contained therein which service provider to appoint. Plymouth Schools and Torbay Schools will be able to do likewise through consulting the Plymouth Schools Portfolio and Torbay Schools Portfolio respectively.

7.2 In the event that the Service Provider is appointed by any School to provide the Services the Service Provider must unless agreed otherwise by the School enter into a service contract in the form or substantially in the form set out in Schedule 1#. Further the charging basis for the provision of the Services will be as set out in Schedule 2 being the Service Providers schedule of charges as contained in its Tender.

7.3 It is an express condition of appointment that the Service Provider must be prepared to provide the Services to any School regardless of geographical location, size or type of School.

# Explanatory Note: An example of the type of contract a Devon School would expect to enter into is shown as Appendix I. The type of contract may differ in respect of Plymouth and Torbay Schools.

8 SCHOOLS SUPPORT SERVICES BOARD

The Service Provider is required when requested to do so to attend the SSSB. The function of the SSSB is to monitor the provision of services to Schools and to discuss and address any issues of general interest or concern.

9 CONTINUOUS IMPROVEMENT

9.1 The Service Provider is expected to co-operate and participate in the performance management of the Services throughout the term of his appointment under this Agreement. To that end the Service Provider shall use his best endeavours to seek to improve the delivery of the Services.

9.2 Accordingly the Service Provider will be expected to contribute towards the development of Schools' performance management and in so doing, will be expected to attend such meetings (other than the SSSB meetings) as Schools may arrange from time to time and to report at such intervals as may reasonably be required. In addition the Service Provider is required to provide to Devon such management information as Devon may reasonably require including but not limited to information as to the number of Schools to whom the Service Provider has provided the Services, the length of any contract, charging levels and a description of the services provided.

9.3 Further throughout the period of this Agreement the performance of the Service Provider will be monitored by Devon against the key performance indicators and method statements set out in Schedule 3.

9.4 At intervals of three months or at such other intervals as the parties may agree during this Agreement, Devon and the Service Providers shall undertake formal reviews of the performance of the Service Provider against the key performance indicators and method statements and shall discuss any ways in which the performance of the Service Provider may be improved.

9.5 At least two months prior to the anniversary date of the commencement of this Agreement the Service Provider shall provide such financial and other information as Devon shall require in order for Devon to determine after consultation with Plymouth LEA and Torbay LEA whether it remains appropriate for the Service Provider to be listed as described in clauses 6.1, 6.3 and 6.4.

10 RESOURCE STRUCTURE AND SERVICE PROVIDER’S STAFF

10.1 The Service Provider will provide sufficient personnel, accommodation, equipment, materials and all other things necessary to provide (if called upon to do so) the Services in an effective and efficient manner.

10.2 At all times throughout its appointment the Service Provider shall ensure that its personnel are properly and sufficiently skilled, appropriately qualified and trained in order to deliver the Services and further shall ensure that its staff whilst performing the Services carry out their duties and behave in an orderly manner and in as quiet a manner as may reasonably be practicable having regard to the nature of the duties being performed by them.

10.3 The Service Provider shall comply with any instructions issued by the LEAs in respect of the carrying out of checks with the Criminal Records Bureau and any other checks deemed appropriate by the LEAs in order to assess the suitability of employees working with children or vulnerable people.

10.4 The Service Provider shall remove from the performance of the Services any employee whom an LEA considers detrimental to the best interests of the LEA in question and its Schools and because of, but without limit, unsatisfactory conduct, behaviour or manner and shall immediately provide a replacement. Such persons as are removed shall not again be employed in the performance of any Services without the permission of the LEA in question.

10.5 The Service Provider may in such circumstances make representations to the LEA in question as to the reasons why any such employees should not be removed from the performance of their duties. Notwithstanding the right to make representations any decision of an LEA following such representations shall be final.

10.6 The LEAs shall in no circumstances be liable either to the Service Provider or to the employee in respect of any liability, loss or damage occasioned by such withdrawal, suspension or removal and the Service Provider shall fully and promptly indemnify the LEAs against any claim made by such employee.

11 KEY PERSONNEL

The Service Provider has identified certain key personnel and their key responsibilities as set out in Schedule 4. The key personnel will be expected to be involved during the term of this Agreement. Any replacement key personnel shall be suitably experienced and qualified to perform the relevant role of the person replaced.

12 MARKETING

The Service Provider must ensure that any marketing is in accordance with its marketing strategy as detailed in its Tender and must obtain the written consent of the LEAs before commencing any marketing campaign including distributing any marketing material.

13 INSURANCE

13.1 The Service Provider shall throughout the duration of this Agreement have in place full, proper and appropriate insurance arrangements of the type normally expected of service providers delivering [insert type] services.

13.2 The Service Provider shall, if called upon by the LEAs, provide evidence of the insurance arrangements it has in place pursuant to clause 13.1 and shall immediately remedy any deficiencies identified.

14 AUTHORISED REPRESENTATIVES

The parties will each appoint two persons to act as their respective Authorised Representatives and Deputy Authorised Representatives for the purposes of this Agreement. The names of the parties Authorised Representatives and Deputy shall be notified in writing within 7 days of the commencement of this Agreement and in the event of any subsequent change within 7 working days of such change.

15 DATA PROTECTION

15.1 If at any time during this Agreement the Service Provider or any person or persons engaged by him (whether as an employee or independent contractor):-

15.1.1 is furnished by Devon (upon any medium) with, or otherwise obtains (with or without the knowledge and consent of Devon), access to confidential or personal or commercial data owned or held by Devon (either in relation to Devon's own affairs or those of others); or

15.1.2 at any time either directly or indirectly discloses or copies or makes improper use of any such data to a third party or allows a third party unauthorised access to it; or

15.1.3 if the Service Provider or any person or persons engaged by him is responsible for, or causes the loss, damage or destruction of all or any such data;

the Service Provider shall indemnify Devon against any loss or damage suffered by Devon and any costs and expenses incurred by Devon in relation to any claims or proceedings brought against Devon.

15.2 For the avoidance of doubt reference to personal data includes personal data and sensitive personal data as defined by the Data Protection Act 1998.

16 ASSIGNMENT

The Service Provider shall not assign the whole or part of any rights or obligations under this Agreement without the prior written consent of Devon.

17 PUBLICITY

The Service Provider agrees that any publicity it wishes to give in connection with any matters arising under this Agreement shall be agreed with and approved by Devon, who shall consult where appropriate with Plymouth LEA and/or Torbay LEA.

18 CONFIDENTIALITY

18.1 Information provided by the Service Provider in his Tender relating to prices, performance and terms shall not be deemed to be exempt information for the purposes of the Freedom of Information Act 2000 and nothing in his Tender or this Agreement shall prejudice or affect the discharge by the LEAs of their obligations under the Act.

18.2 Information provided to the Service Provider by the LEAs for the purposes of his Tender or this Agreement and which is exempt from disclosure under the Act shall not be disclosed by the Service Provider to any person or organisation.

18.3 The Service Provider shall comply promptly and fully with all reasonable requests made by the LEAs to enable them to comply with the Act.

19 LEGISLATIVE OBLIGATIONS

19.1 The Service Provider in providing the Services to any School or Schools shall comply with all applicable and relevant statutory requirements including but without limitation those specifically referred to in clauses contained elsewhere within this Agreement as well as those in clause 19.2 and 19.3 below.

19.2 The Service Provider shall at all times comply with the requirements of the Health and Safety at Work etc Act 1974 and associated regulations and shall ensure that it has in place at all times a health and safety policy which complies with all statutory requirement.

19.3 The Service Provider shall comply with the provisions of the Race Relations Act 1976 as amended and shall operate an equal opportunities policy a copy of which shall upon request be provided to the LEAs.

20 LEA POLICIES

20.1 The LEAs will draw to the attention of the Service Provider any policies and procedures of which the Service Provider needs to be aware of and have regard to in the provision of Services to the Schools.

20.2 The Service Provider must not do anything or omit to do anything which is contrary to or affects detrimentally the aforementioned policies.

21 TERMINATION

21.1 Devon may by notice terminate the Service Provider’s appointment under this Agreement forthwith or with effect from such date as may be specified in the following circumstances:-

21.1.1 if the Service Provider fails to proceed regularly and diligently to perform its obligations under this Agreement or if the Service Provider consistently fails to meet key performance indicators set either under this Agreement or consistently fails to meet performance standards including those in the Service Providers method statements in delivering the Services to a School or Schools; or

21.1.2 if the Service Provider becomes insolvent, or if an order is made or a resolution is passed for the winding up of the Service Provider (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Service Provider’s assets or business, or if the Service Provider makes any composition with his creditors or takes or suffers any similar or analogous action in consequence of debt.

21.1.3 if the Service Provider shall have offered or given or agreed to give to any person any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or having done or forborne to do any action in relation to securing its appointment under this Agreement or the obtaining of any contract with Devon or a School or Schools or for showing or forbearing to show favour or disfavour to any person in relation to its appointment or any contract with Devon or a School or Schools or if the like act shall have been done by any person employed by the Service Provider acting on the Service Provider's behalf (whether with or without the knowledge of the Service Provider); or

21.1.4 if in relation to its appointment under this Agreement or in relation to any contract as referred to in clause 21.1.3 the Service Provider or any person employed by the Service Provider or acting with authority of the Service Provider has committed any offence under the Prevention of Corruption Acts 1906–1916 or has given any fee or reward the receipt of which is an offence under Section 117(2) of the Local Government Act 1972; or

21.1.5 if it is found that the Service Provider has fixed or adjusted the amount of his Tender by or in accordance with any agreement or arrangement with any other person; or

21.1.6 if it is found that the Service Provider has indicated to any person other than Devon the amount or approximate amount of his Tender, except where the disclosure, in confidence, of the approximate amount of the Tender was necessary to obtain insurance premium or other quotations necessarily required for the preparation of the Tender; or

21.1.7 if it is found that the Service Provider has entered into any agreement or arrangement with any other person to the extent that the other person refrains from tendering or as to the amount of any Tender to be submitted.

21.2 For the avoidance of doubt in the event that Devon terminates the Service Provider’s appointment or the Service Provider withdraws from the appointment in accordance with clause 4.2 the Service Provider will forthwith be removed from the Devon Schools Portal, Plymouth Schools Portfolio and Torbay Schools Portfolio referred to in clause 6 and any contracts already put in place with a School or Schools under the provisions of this Agreement maybe terminated by the School or Schools in question.

22 INSTRUCTIONS FOLLOWING TERMINATION

22.1 Upon termination of this Agreement by Devon the Service Provider shall promptly deliver to Devon copies of all documents completed or in the course of preparation by the Service Provider relating to any matters arising out of its appointment.

22.2 The requirements of clause 22.1 shall also apply upon the expiry of this Agreement through the effluxion of time.

23 DISPUTE RESOLUTION

23.1 The parties agree to adopt the principles outlined below in regard to any disputes that may arise between them arising under the terms of the Service Provider’s appointment.

23.2 Devon and the Service Provider shall endeavour to notify each other of any anticipated dispute so that in accordance with the overriding principle as set down in clause 3 of this Agreement any potential dispute can be avoided by discussions and negotiations between the parties.

23.3 Accordingly any dispute arising out of or in connection with this Agreement will in the first instance be referred to the parties' Authorised Representatives for discussion and resolution at a meeting to take place no later than 7 working days from the date that the dispute arises. If the dispute is not resolved at that meeting the dispute will be referred to the second management level who must meet within 3 working days of the reference to attempt to resolve the dispute. If the dispute is not resolved at that meeting the escalation will continue with the same maximum time interval up to the third management level. If the unresolved dispute is having a material effect on the appointment of the Service Provider, the parties will use their respective best endeavour to reduce the elapsed time in reaching a resolution of the dispute.

23.4 The levels of escalation are:

Devon Service Provider Second Level [Insert] [Insert] Third Level [Insert] [Insert]

If any of the above are unable to attend a meeting a substitute may attend, provided that such substitute has at least the same seniority and is authorised to settle the unresolved dispute.

23.5 Each party acting in good faith will use all reasonable endeavours to reach a negotiated resolution through the above dispute resolution procedure. The specific format for such resolution will be left to the reasonable discretion of the relevant management level, but may include the preparation and submission of statements of fact or of position.

23.6 Any disputes arising under the Agreement which cannot be resolved under clause 23.3 to 23.5 shall thereafter be dealt with in a manner (having due regard to objectives set out in Clause 3) to be agreed between the parties which may include referral to arbitration, adjudication or mediation and failing agreement either party shall be at liberty to refer the dispute to the English Courts for determination.

23.7 Nothing in this clause 23 will restrict at any time while the above dispute resolution procedures are in progress or before or after they are invoked either party's freedom to commence legal proceedings to preserve any legal right or remedy or to protect any intellectual property or trade secret right.

24 FORCE MAJEURE

Neither party shall be liable for any failure to perform any of its obligations hereunder if such performance is in any way adversely affected by any Act of God, consequence of war, insurrection, confiscation, riot, civil commotion, act of terrorism, fire or other event beyond the reasonable control of a party.

25 WAIVER

Failure by Devon at any time to enforce the provisions of this Agreement or to require performance by the Service Provider of any of the obligations under this Agreement shall not be construed as a waiver of any such provision and shall not affect the validity of this Agreement or any part thereof or the right of Devon to enforce any provisions in accordance with its terms.

26 NOTICES

Any notice to be served on either of the parties by the other shall be sent by prepaid recorded delivery or registered post to the address of the relevant party shown at the head of this agreement or by facsimile transmission or by electronic mail and shall be deemed to have been received by the addressee within 72 hours of posting or 24 hours if sent and actually received by facsimile transmission or by electronic mail.

27 THIRD PARTY

The parties intend that no terms of this Agreement may be enforced by a third party pursuant to the Contracts (Rights of Third Parties) Act 1999, save that Plymouth LEA and Torbay LEA shall be at liberty of enforce or rely upon the provisions of clauses 6, 7, 10, 12, 13, 18 and 19.

28 RIGHTS CUMULATIVE

All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this agreement shall restrict or prejudice the exercise of any other right granted by this agreement or otherwise available to it.

29 SEVERANCE

If any term or provision of this Agreement shall in whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law that term or provision or part shall to that extent be deemed not to form part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected.

30 WHOLE AGREEMENT

Each party acknowledges that this Agreement and the schedules to it contains the whole Agreement between the parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.

31 SUPERSEDES PRIOR AGREEMENT

This Agreement supersedes any prior agreement between the parties whether written or oral and any such prior agreements are cancelled as at the commencement date of this Agreement but without prejudice to any rights which have already accrued to either of the parties.

32 COST

Each of the parties shall pay any costs and expenses incurred by it in connection with this Agreement.

33 PROPER LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with the law of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales.

AS WITNESS whereof the parties have signed this Agreement on the date written at the head of this Agreement.

SIGNED ) on behalf of ) DEVON COUNTY COUNCIL in the presence of: )

SIGNED ) on behalf of [INSERT NAME ) OF SERVICE PROVIDER] in the presence of:- )

Confidential 02/06/2018