Supplier terms & conditions

Terms and Conditions for the Supply of Goods and Services to Optimum Group Services

This Agreement is dated XXX

Parties

a. [Client Name] of xxxxxx, Company Registration Number xxxx (‘CLIENT’)

b. Optimum Group Services Plc of Jebsen House, 53-61 High Street, Ruislip, Middlesex HA4 7BD, Company Registration Number 2379290 (‘Supplier’)

1. Definitions

1.1 In this Agreement (which expression includes the Schedules hereto) the following words and phrases shall, unless the context otherwise requires, have the following meanings:

Agreement – this Agreement and its Schedules and any other document incorporated by reference which is signed by the authorised representatives of the Parties and attached to it;

Achieved Service Levels – in respect of any Services in any one month period means the standard of performance actually achieved by Supplier in the provision of those Services in the one month period in question (calculated and expressed in the same way as the Service Level for that Service is calculated and expressed in Schedule 7);

Asset Log – the asset log as set out in Schedule 5;

Business Day – a day on which the clearing banks in the City of London are open for business;

Chief Executive – means the chief executive officer of Supplier or CLIENT;

Commencement Date – XXX;

Confidential Information – this Agreement and all information disclosed by one party to the other or otherwise received by the other in the negotiation, entering into and performance of this Agreement, which is expressly marked as confidential or which concerns the technology, know how, methodology of supply, business, developments and finances of that party and any of its affiliates or of the suppliers, customers or clients of that party;

Consistent Failure – regular failure by Supplier (as reasonably deemed) to provide the Goods and Services to the standards set out in the Schedules;

Building –  Means XX;

Force Majeure – an event being one or more of the following; riot, civil unrest, military action, terrorism, earthquake, storm, flood, inability to obtain supplies of power, fuel or transport; exercise of emergency powers by any governmental authority;

Fees – the prices set out in Schedule 4;

Goods – means any goods, products or materials (or any part of them) as described in the Schedules supplied by the Supplier to the CLIENT under this Agreement;

Group – means any entity in which CLIENT whether directly or indirectly; owns at least 50% of the share capital; or has the power to appoint or remove the majority of the members of the management body, or can avail itself of the majority of voting rights by virtue of agreement entered into with the other shareholders; or has control of the management as a result of rights, agreements or other means which confer the possibility of exerting a decisive influence on such entity’s business activity, provided that it is incorporated or develops its business activity in any part of the territory;

Initial Period – the period from the Commencement Date to xxxx;

Intellectual Property Rights – patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals and extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;

Internals – the internals as set out in Schedule 5;

Management Reports – the reports and management information to be prepared and presented by Supplier in accordance with Schedule 6 to include a comparison of Achieved Service Levels with contractual Service Levels in the measurement period in question and measures to be taken to remedy and deficiency in Achieved Service Levels;

CLIENT General Terms – the terms contained from clause 1 to clause 30 of this Agreement and excluding the Schedules;

CLIENT Materials – materials belonging to CLIENT provided to Supplier for the purpose of enabling Supplier to supply the Goods and/or the Services;

CLIENT Policies – UN Global Compact, Environmental Policy, Anti-Bribery and Corruption Policy, Code of Conduct Policy and Non-Disclosure Agreement all of which Supplier has signed up to as part of registration with CLIENT Vendor Relationship Management programme;

CLIENT Variable Terms – the additional terms contained in the Schedules and incorporated into this Agreement as appropriate in accordance with CLIENT General Terms;

Force Majeure Event – as defined in clause 16;

Plant – the plant as set out in Schedule 5;

Premises – premises belonging to or under the control of CLIENT or other such premises that may be listed in this Agreement;

Services – the services set out in the Schedules to be provided by Supplier under this Agreement;

Service Levels – the performance standards set out in Schedule 7 in accordance with which Supplier must provide the Services;

Specification – any Specification or other requirements for the Goods and/or Services set out in the Schedules;

Supplier’s Chief Engineer – the Supplier’s chief engineer who will be notified to CLIENT in writing by the Supplier;

TUPE – has the meaning given in Schedule 8;

Year – a period of twelve (12) months commencing on the Commencement Date or an anniversary of the Commencement Date.

Clause, schedule and paragraph headings shall not affect the interpretation of these clauses.

A person includes a natural person, corporate or unincorporated body.

The schedules form part of this Agreement and shall have effect as if set out in full in the body of the clauses and any reference to this Agreement includes the schedules.

Words in the singular shall include the plural and vice versa.

A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking into account any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

2. Supply of Goods and Services

Supplier agrees to supply the Goods and Services subject to the terms and conditions set out in this Agreement.

Where any Service is stated in the Schedules to be subject to a specific Service Level, Supplier shall use reasonable endeavours to provide that Service in such a manner so that the Achieved Service Level in respect of that Service is equal to or higher than such specific Service Level.

Service Levels from time to time, by mutual consent, may be altered to reflect improvements to the Service that may be required. Any adjustments to the Services Levels shall only be effective if agreed by the parties and recorded in writing.

Supplier shall provide records of and Management Reports summarising the Achieved Service Levels as provided for in Schedule 6. In the event that any Achieved Service Levels falls short of the relevant Service Level for a period of any XX months in one year this may be considered a Consistent Failure. Any Consistent Failure may be considered as a material breach of the terms of this Agreement.

Supplier shall be entitled to compensation from CLIENT where the Services are varied, delayed or disrupted and any adjustment to the fees or the time for performance of the Services shall be calculated in accordance with Schedule 4 or where no such provisions are stated then in accordance with that which is reasonable in all the circumstances.

Supplier reserves the right to amend the specification of the Goods and/or Services if required by any applicable statutory or regulatory requirements.

Where Supplier is supplying mechanical and electrical maintenance Services, the additional terms as set out in Schedule 1 shall apply.

The parties shall comply with the governance detailed in Schedule 6.

 

3. Term

3.1 This Agreement shall commence on the Commencement Date and shall continue for the Initial Period. On expiry of the Initial Period, this Agreement may be extended for a further period of XX years by mutual consent, subject to the successful completion of benchmarking to agree the fees provisionally documented in Schedule 4 for the further XX year period.

4. Pricing

4.1 The Fees shall be fixed for the Initial Period.

Any failure to deliver against agreed Service Levels shall be rectified by Supplier at Supplier’s expense.

5. Payment

5.1 Subject to Supplier complying with its obligations under clauses 2 and 8 CLIENT shall accept the Goods and/or Services and pay the Fees. The Fees, expenses and disbursements under the Agreement shall be exclusive of VAT which shall be payable by CLIENT in addition at the prevailing rate.

5.2 Supplier may render an invoice to CLIENT for the Fees within thirty (30) days after delivery of the Goods or supply of Services, as applicable, unless otherwise agreed.

5.3 All sums due under this Agreement shall be payable by CLIENT within thirty (30) days of receipt of Supplier’s invoice. Supplier may also be required to send copy invoices direct to specific Premises as directed.

5.4 Supplier must ensure all invoices contain a valid purchase order number or business contact name, invoice/credit note number, the word invoice or credit, legal entity invoice date and VAT registration number if registered for VAT. Supplier acknowledges any invoices with incomplete information may result in rejection and CLIENT will not be liable for any subsequent missed payment.

5.5 CLIENT may, at its discretion, ask Supplier to provide documents to validate an invoice, such as a valid proof of delivery of Services signed by an authorised member of CLIENT’s staff.

5.6 Where CLIENT fails to pay in full the amount due under the Agreement by the final date for payment then Supplier may suspend performance of the Services and/or Goods. Supplier may only exercise this right after giving CLIENT 14 days notice of the Supplier’s intention to suspend performance. Such right will expire immediately upon payment by CLIENT of the sum due. Any period of suspension of the Services and/or Goods in accordance with this clause 5.6 shall be disregarded in computing any contractual time limit to complete work directly or indirectly affected by the exercise of the rights conferred by this clause 5.6 or as the case may be the time for completion of such work shall be extended by a period equal to the period of suspension.

5.7 CLIENT may not withhold payment of any part of an invoice for a sum or sums due to the Supplier under the Agreement by reason of claims or alleged claims against the Supplier unless the amount to be withheld has been agreed by the Supplier as due to the CLIENT or has been awarded in arbitration or litigation in favour of the CLIENT and arises under or in connection with this Agreement. Save as aforesaid all rights of set off at common law or in equity which the CLIENT would otherwise be entitled to exercise are hereby expressly excluded.

5.8 Any payment made after the final date for payment shall attract interest at 8% above the minimum bank-lending rate of the Bank of England.

 

6. Delivery/Scheduling

6.1 Supplier shall endeavour to deliver the Goods and/or Services on the date for delivery as notified by CLIENT in writing. Delivery shall be made to CLIENT’s address or such other delivery address notified by CLIENT to Supplier. Delivery is completed on the completion of unloading of the Goods at the Premises.

6.2 Delivery dates are approximate only and time for delivery is not of the essence. Supplier shall notify CLIENT immediately if delivery dates cannot be met. Supplier shall not be liable for any delay in delivery of any Goods and/or Services that is caused by:

6.2.1 A Force Majeure Event; or

6.2.2 CLIENT’S failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods and/or Services.

6.3 If Supplier fails to deliver Goods and/or Services by the delivery date, Supplier’s liability shall be limited to reasonably foreseeable, legally enforceable, and fully mitigated costs and expenses necessarily incurred by CLIENT as a result of Supplier’s failure to deliver the Goods and/or Services on the due date. Supplier shall have no liability for any failure to deliver Goods and/or Services to the extent that such failure is caused by:

6.3.1 A Force Majeure Event; or

6.3.2 CLIENT’S failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods and/or Services.

6.4 If 10 Business Days after the day on which Supplier attempted to make delivery of Goods and/or Services the CLIENT has not taken delivery of those Goods and/or Services, Supplier may resell or otherwise dispose of part or all of the Goods and/or Services and, after deducting reasonable storage and selling costs, account to CLIENT for any excess over the price of the Goods and/or Services, charge CLIENT for any shortfall below the price of the Goods and/or Services.

6.5 Unless otherwise agreed, Supplier shall be responsible for all transportation and delivery costs and related charges for the Goods and/or Services and any other materials transported between Supplier’s premises and CLIENT’s premises or, where relevant, other suppliers.

 

7. Risk and Title

7.1 Risk or damage to or loss of the Goods shall pass to CLIENT on delivery.

7.2 Title in the Goods shall only pass to CLIENT on receipt by Supplier of payment in full for the Goods.

7.3 Until title to the Goods has passed to CLIENT, CLIENT shall:

7.3.1 store the Goods separately from all other goods held by CLIENT so that they remain readily identifiable as the Supplier’s property;

7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

7.3.4 notify Supplier immediately if it becomes subject to any of the events listed in clause 14.1.3; and

7.3.5give Supplier such information relating to the Goods as Supplier may require from time to time.

7.4 The Supplier may recover Goods in which title has not passed to CLIENT. CLIENT irrevocably licenses Supplier, its officers, employees and agents, to enter any premises of CLIENT (including with vehicles), in order to satisfy itself that CLIENT is complying with the obligations in clause 7.3, and to recover any Goods in which property has not passed to CLIENT.

8. Quality and Acceptance

8.1 The Goods and/or Services provided by Supplier shall comply with the Specification provided that Supplier shall not be liable for any failure to comply with the Specification which is caused by CLIENT’s materials being materially defective or unsuitable for use in connection with provision of the Goods and/or Services.

8.2 If following an inspection or testing CLIENT, acting reasonably, considers the Goods and/or Services do not conform with the Specification CLIENT may inform Supplier and Supplier shall take such remedial action as is necessary to ensure compliance.

8.3 CLIENT shall not be deemed to have accepted the Goods (in whole or in part) until CLIENT has had a reasonable time to inspect them following delivery or, if later, a reasonable time after any latent defect in the Goods has become apparent. Any inspection or testing of Goods by CLIENT shall not prejudice CLIENT’s right to reject defective Goods at a later date and make a claim in respect of them.

 

9. Right to Inspect Materials and Premises

9.1  CLIENT shall be entitled, on giving reasonable notice, to attend the Premises or Supplier subcontractor’s premises at any time during the design or manufacture or on completion of Goods and inspect materials used in Goods or in the course of providing the Services.

10. Client’s Obligations

10.1 CLIENT shall:

10.1.1 provide the responsibilities as set out in Schedule 3;

10.1.2 provide such information as Supplier may reasonably request for the provision of the Goods and/or Services.

11. Licence

11.1 CLIENT hereby grants to Supplier for the duration of this Agreement a non-exclusive royalty free right and licence to use the CLIENT logo including any applicable registered trademarks for the purpose of providing Services.

11.2 Any such use shall be subject to the prior approval of CLIENT (such consent not to be unreasonably withheld and/or delayed) and CLIENT shall provide any required original artwork or images for reproduction.

11.3 The licence granted in clause 11.1 shall automatically terminate on the termination of this Agreement.

12. Product Developments and Innovations

12.1 Supplier shall at all times during this Agreement use reasonable endeavours to ensure that CLIENT receives the benefit of reduced third party costs and charges relevant to the provision of the Services (including, without limitation endeavouring to source equipment and software from suppliers with competitive rates). Supplier shall also at all times be seeking to improve the way the Services are delivered. Where Supplier identifies such a potential benefit, it shall promptly inform CLIENT and shall advise CLIENT whether, in Supplier’s professional opinion, the implementation of any change necessary to enable CLIENT to enjoy that benefit is desirable (in view of quality, reliability and other relevant factors as well as price).

12.2 Supplier shall co-operate with CLIENT in respect of each proposed change to Services and shall use its reasonable endeavours to implement each agreed change as required by CLIENT. Supplier shall not be required to commence the varied Services until such time as CLIENT has given his written approval of the fees and additional time associated with the varied Services.

13. Access to Systems and Management Reporting

13.1 Supplier grants CLIENT the right to access and use Supplier’s management information systems for the purposes of facilitating the operation of this Agreement and Management Reporting. If requested by CLIENT, Supplier will assist CLIENT with installation of such systems and shall provide reasonable training to CLIENT’s personnel to enable CLIENT to use the systems.

13.2 Unless provided by CLIENT Supplier shall be responsible for the software required to use Supplier’s management information systems and shall be liable to CLIENT for all reasonably foreseeable, legally enforceable, and fully mitigated costs, expenses, claims or damage incurred by CLIENT as a direct result of the installation or use by CLIENT of any software provided by Supplier under this clause. Supplier shall have no such liability to the extent such costs, expenses, claims or damage arise from any negligent act or omission of CLIENT.

13.3 Supplier shall provide the real time data and produce the Management Reports listed in Schedule 6. In particular, Supplier shall produce a weekly/monthly Management Report showing the Achieved Service Levels against the agreed Service Levels. Supplier shall also provide any other ad hoc reports as CLIENT may require.

14. Termination

14.1 Subject to clause 15, this Agreement may be terminated for cause in whole by either party in the following circumstances;

14.1.1 by either party with immediate effect from service on the other of written notice if the other party is in breach of any material obligation under this Agreement and, if the breach is capable of remedy, that party has failed to remedy such breach within twenty eight (28) days of receipt of notice so to do;

14.1.2 by either party with immediate effect from the date of service on the other of written notification if a resolution is passed or an order is made for the winding up of the other (otherwise than for the purpose of solvent amalgamation or reconstruction) or the other becomes subject to an administration order or a receiver or administrative receiver is appointed over or an encumbrancer takes possession of Supplier’s premises;

14.1.3 by either party with immediate effect from the date of service on the other party of written notice if the other party ceases or threatens to cease to carry on business in the United Kingdom;

14.1.4 by CLIENT with immediate effect from the date of service on Supplier of written notice from CLIENT if there is a change of control (as defined in section 574 of the Capital Allowances Act 2001) of Supplier to which CLIENT reasonably objects.

14.2 CLIENT may terminate this Agreement at any time by giving 4 months’ written notice to Supplier. Supplier shall be reimbursed any additional costs reasonably incurred as a result of any notice issued under this clause 14.2.

14.3 Termination of this Agreement shall not affect any of the parties’ accrued rights or liabilities or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination.

14.4 On termination CLIENT shall be entitled to have any sub-contract that Supplier has entered into for the purposes of supplying the Goods and/or Services under this Agreement novated to it on reasonable request, and insofar as is reasonable to do so, any such sub-contract shall anticipate this requirement and shall not terminate automatically on the termination of this Agreement.

14.5 Insofar as is reasonably practicable, in the event of termination of this Agreement by either party, Supplier will support the transition of the Services to a third party.

15. Disputes

15.1 Except for either party’s right to seek interlocutory relief in the courts, any dispute between the parties in relation to or arising out of or in connection with this Agreement shall be dealt with as follows;

15.1.1 written notice of the dispute (or potential dispute) may be served by either party to this Agreement upon the other party;

15.1.2 the Procurement Manager from CLIENT and the Operations Director of Supplier shall have XX Business Days from the date of service of the notice in which to consider, and if possible, resolve the dispute to the satisfaction of both parties;

15.1.3 if the dispute is not resolved within the time period set out in clause 15.1.2, the dispute shall be referred to the Chief Executives of each party who shall have a further period of XX Business Days (commencing on the expiry of the period of XX Business Days referred to in clause 15.1.2) in which to consider, and if possible, resolve the dispute to the satisfaction of both parties;

15.1.4 if the dispute is not resolved within the time period set out in clause 15.1.3, clause 28.1 shall apply.

16. Force Majeure

16.1 Notwithstanding anything else contained in this Agreement, neither party shall be liable for delay in performing its obligations under this Agreement if and to the extent that the delay is caused either by circumstances beyond its reasonable control (including a delay caused by an act or omission of the other party); or by any of the following;

16.1.1 acts of God;

16.1.2 outbreaks of hostilities, riot, civil disturbance, acts of terrorism;

16.1.3 the act of any government or authority (including refusal or revocation of any licence or consent);

16.1.4 fire, explosion, flood, fog or unusually bad weather

together a Force Majeure Event.

16.2 Provided the party suffering the delay promptly notifies the other party of the reasons for, and likely duration of, the delay, the performance of that party’s obligations shall be suspended during the period that the circumstances persist and it shall be granted an extension of time for performance equal to the period of the delay.

17. Client Materials

16.1 Supplier undertakes to store CLIENT’s Materials in a suitable location. All CLIENT’s Materials shall remain the property of CLIENT (notwithstanding Supplier’s obligation under clause 20.1.1). Supplier shall if requested by CLIENT and in any event within XX Business Days of termination of this Agreement, return (in no worse a condition than they were in when provided) or, at CLIENT’s option, destroy CLIENT’s Materials.

18. Intellectual Property

18.1 The Intellectual Property Rights in all written or tangible work created by or on behalf of Supplier in the course of supplying the Goods and/or Services including but not limited to Confidential Information, and any artwork, drawings, photographs, design documentation, and specifications, or computer output shall remain vested in Supplier. Subject to Suppler receiving full payment of any Fees properly due and owing as at the date of the exercise of the licence, Supplier shall grant to CLIENT an irrevocable, royalty-free, non-exclusive licence to use all rights, titles and interest in any such Intellectual Property Rights belonging to Supplier in connection with the construction, completion, maintenance, reinstatement, repair, letting, promotion and/or advertisement (whether by CLIENT or by a third party authorised by CLIENT) of the project.

18.2 Supplier shall not be liable for the consequences of any use of the documents by the CLIENT for any purposes other than that for which they were prepared and provided by or on behalf of Supplier.

18.3 Supplier shall at the request of CLIENT sign all documents and take all steps necessary to procure the grant of the licence set out in clause 18.1 above in CLIENT.

19. Liability

18.1 Supplier shall not be required to process any matter that is illegal or libellous in nature. Furthermore, Supplier shall be indemnified by CLIENT in respect of any claims, costs or expenses arising out of the processing of any illegal or libellous matter for CLIENT or arising out of any infringement of copyright, patent or design, or otherwise howsoever by reason of the performance of the Services hereunder at CLIENT’s direct request.

18.2 Notwithstanding the remaining provisions of this Agreement and except in respect of death or personal injury caused by the negligence of Supplier and except in the case of fraudulent misrepresentation, Supplier’s liability for all and any loss, damages, costs and expenses and other claims for compensation whatsoever, caused by reason of any breach, default, non-observance of or non-compliance under or in connection with this Agreement and/or by Supplier’s negligent acts or omissions or breach of any other duties and obligations owed at Common Law, shall be limited to and which shall not exceed in amount, and in the aggregate, the maximum sum of one million pounds (£1,000,000).

18.3 Neither party shall be liable to the other for any indirect, special or consequential loss (including but not limited to loss of profit whether direct or indirect, loss of production, loss of contracts, loss of use, loss of business, and loss of business opportunity).

18.4. Further and without prejudice to the aforesaid limit of liability any such liability of Supplier for any loss or damage (“the loss or damage”) in respect of any claim or claims shall be limited to such sum or sums as it would be just and equitable for Supplier to pay having regard to Supplier’s responsibility for the same and on the basis that:

18.4.1 all other parties appointed or to be appointed by CLIENT to perform related services in connection with the project shall be deemed to have provided undertakings on terms no less onerous than this Agreement and shall be deemed to have paid to CLIENT such contribution as it would be just and equitable for them to pay having regard to their responsibility for the loss or damage; and

18.4.2 it shall be deemed that all such other parties have not limited or excluded their liability to CLIENT for the loss or damage in any way which may be prejudicial to Supplier’s liability under this clause. 

18.5 CLIENT’s maximum liability to Supplier (excluding any liability to pay fees) shall not exceed XXX (£XXX) pounds.

19. Insurance

19.4 Supplier shall at its own cost:

19.4.1 insure CLIENT Materials held on Suppliers’ Premises to a level to be agreed with CLIENT; and

19.4.2 adequately insure against all loss, damage, injury or other claims suffered or incurred by Supplier or CLIENT which may arise in any way whatsoever (a) under this Agreement or (b) in respect of product liability, employers liability or public liability. Supplier shall provide evidence of the insurance and payment of the current premiums on the reasonable request by CLIENT.

20. Confidentiality

20.4 Each of the parties shall at all times while this Agreement remains in force and after it has terminated for a period of 2 years after the termination of this Agreement, keep confidential the Confidential Information (as defined in clauses 1.1 and 21.3) except where:

20.4.1 the Confidential Information was already lawfully known, or became lawfully known to either or the parties independently;

20.4.2 the Confidential Information is, or comes into, the public domain other than due to wrongful use or disclosure by the parties;

20.4.3 disclosure or use is necessary by either of the parties (including their employees, agents and sub-contractors) for the proper and effective performance of this Agreement;

20.4.4 disclosure is required by insurers, by law, or to any government, governmental department, agency, regulatory or fiscal body or authority (whether national or foreign) and their authorised agents (including professional advisers).

20.5 Neither party shall make copies of the Confidential Information or any of it or record, store or transmit any Confidential Information in any manner except as may be strictly required in connection with the supply of Goods and/or Services and as may be authorised under the terms of this Agreement, and will on request immediately return or destroy any written documents or material in any form whatsoever containing Confidential Information if so requested by the other party.

20.6 In addition to the definition under clause 1.1, Confidential Information shall also mean all information (whether written or oral) concerning the business and affairs of either party which is obtained or received as a result of the discussions leading up to, the entering into or the performance of this Agreement, including financial information, trade secrets, customer lists, trade and commercial details and computer software and databases, the contents of all reports and documentation prepared by Supplier or on Supplier’s behalf and any other information designated by a party as confidential.

20.7 Each of the parties shall ensure that their respective employees, agents, sub-contractors or nominees shall comply with the requirements of this clause and, if requested, shall ensure that contractors sign a confidentiality undertaking in a form approved by the other. The parties shall use the same standard of care in relation to the information as if it were Confidential Information of their own.

21. Client Data Protection

21.4 Supplier shall take all necessary steps to ensure that the data or information belonging to CLIENT which comes into its possession or control in the course of providing the Goods and/or Services is protected and in particular Supplier shall not:

(a) use the data or information nor reproduce the data or information in whole or in part in any form except as may be required by this Agreement; or

(b) alter, delete, add to or otherwise interfere with the data or information (save where expressly required to do so by the terms of this Agreement).

20.2 To the extent that any data or information belonging to CLIENT is personal data within the meaning of the Data Protection Act 1998:

(a) Supplier will process such data and information only in accordance with CLIENT’s instructions;

(b) Supplier will not transmit such data and information to a country or territory outside the European Economic Area without CLIENT’s express consent; and

(c) Supplier will take such technical organisation measures against unauthorised or unlawful processing of such data and information and against accidental loss or destruction of, or damage to, such data and information as are appropriate to CLIENT as data controller.

22. Assignment and Sub-Contracting

22.4 Supplier shall not assign, transfer, sub-contract or otherwise dispose of any of its rights or obligations under this Agreement whether in part or in whole, without the prior written consent of CLIENT (such consent not to be unreasonably withheld and/or delayed).

22.5 CLIENT shall not assign the whole or any part of the benefit or in any way transfer its obligations under this Agreement without the written consent of Supplier.

22.6 CLIENT reserves the right to approve the terms of any sub-contract as a condition of granting its permission to sub-contract.

22.7 In the event that any of the Services or obligations of Supplier under this Agreement are sub-contracted, such sub-contract will include terms substantially in the following form:

CLIENT has the right to directly enforce the terms of this contract in accordance with the Contracts (Rights of Third Parties) Act 1999.”

“The sub-contractor shall be liable to CLIENT for any losses under Supplier’s contract with CLIENT that arise as a result of any default under the terms of this sub-contract.”

22.8 Supplier shall remain liable as primary obligor for the acts and omissions of its sub-contractors.

23.Tupe

23.4 If TUPE applies to this Agreement, the provisions of Schedule 8 shall apply.

24. Waiver

24.4 No failure or delay by either party to exercise any right or remedy under this Agreement shall be construed or operate as a waiver of that right or remedy nor shall any single or partial exercise of any right or remedy preclude the further exercise of that right or remedy. No waiver by either party of any breach of this Agreement shall be considered as a waiver of a preceding or subsequent breach. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.

25. Notices

25.4 All notices which are required to be given under this Agreement shall be in writing and shall be delivered personally, or sent by prepaid recorded or registered post to the party at the address set out for such party in this Agreement marked for the attention of the individual specified in clause 26.2. Notice delivered personally shall be deemed to have been served when delivered, and notice sent by prepaid recorded or registered delivery shall be deemed to have been served forty eight (48) hours after despatch.

25.5 Notices shall be marked for the attention of:

25.5.1 on behalf of CLIENT, Procurement Manager; and

25.5.2 on behalf of Supplier, Managing Director.

26. Period

26.4 No action of proceedings under or in connection with this Agreement shall be commenced against Supplier after the expiry of six (6) years from supply of the Goods and/or Services.

27. Governing Law

27.4 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with English law.

27.5 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.

28. Legal Status

26.1 Nothing in this Agreement shall be deemed to constitute a partnership or any employment relationship between the parties nor shall anything in this Agreement be deemed to constitute one party the agent of the other for any purpose.

29. Entire Agreement

29.4 This Agreement and any documents referred to in this Agreement excludes all other terms and conditions and supersedes all prior agreements and understandings between Supplier and CLIENT and shall prevail over any terms and conditions contained in or referred to in any documentation submitted by Supplier or in any correspondence or implied by trade, custom, practice or course of dealing, and constitutes the entire Agreement between Supplier and CLIENT relating to the subject matter of this Agreement.

Signed by the duly authorised representatives of the parties on the date of this Agreement.

 

For and on behalf of CLIENT

 

For and on behalf of Supplier

 

Schedule 1 – Additional Terms Relating to the Supply of Mechanical & Electrical Maintenance

1. Supplier will provide planned preventative maintenance to the equipment listed in Schedule 5 and to the frequency dictated by CLIENT at each Premises listed in Schedule 5.

2. Supplier shall provide a team of XX resident engineers to be based at CLIENT Premises as listed in Schedule 5 to carry out the planned preventative maintenance (XX to be based at the Hellaby sites and XX to be based at the London site). CLIENT may request the resident engineers to attend any other Premises within the UK on agreement with Supplier and upon giving reasonable notice.

3. Supplier shall provide Services between the hours of XX:XX and XX:XX –day to –day excluding English statutory holidays.

4. Work required in addition to the contracted hours shall be charged on an hourly basis. The hourly rates shall be:

Out of hours Monday to Friday £XX

Saturdays £XX

Sundays £XX

Bank Holidays £XX

5. Additionally Supplier shall provide an on-call service whereby engineers shall be available to attend Premises listed in Schedule 5 out of hours.

6. Supplier shall ensure at all times that there are XX additional engineers who are familiar with the Premises and Services included in this Agreement, and who would be able to attend site for a call out should the need arise. In the event that neither the resident engineers nor the additional engineers were available to attend the Premises listed in Schedule 5, Supplier may provide the most suitable engineer that it has available, given that any such engineer provided has suitable qualifications and experience in the areas required by the call out.

7. In the event of a call out, Supplier shall provide an engineer to the specified Premises within XX hours of a logged call to Supplier helpdesk for an out of hours call, and within two (2) hours of a logged call to Supplier helpdesk for an in hours call.

8. Supplier shall carry out the daily, weekly, monthly and any other checks reasonably required by CLIENT. Supplier shall maintain accurate and auditable records to show when these checks have been carried out and any comments or recommendations noted during an inspection.

9. Supplier shall provide a BMS monitoring service which shall monitor the BMS for all CLIENT Premises listed in Schedule 5 when Supplier is on site.

10. Supplier shall update the Asset Log listed in Schedule 5 in accordance with any additions or deletions from the Premises.

11. Supplier shall provide to CLIENT risk assessments and method statements for maintenance jobs to be performed on CLIENT Premises. Such assessments and statements are to be received prior to the commencement of any onsite work.

12. Supplier shall provide copies of Health and Safety policies and competency records for all representatives on-site (including all third party sub-contractors).

Schedule 2 – Responsibilities of Supplier

Subject to the conditions set out in clause 18 and the performance by CLIENT of the obligations set out in Schedule 3, Supplier undertakes to carry out the following services as are marked with a tick in the Building Schedule (the “Building Services”):

1.. Operation and Maintenance of Plant 

To operate and maintain the Plant. All other installations that form part of the heating/air conditioning system (“the System”) shall remain the responsibility of CLIENT.  Supplier shall not be liable in any respect for defects in design or installation or the incorrect selection of plant or materials by the designer or installer of the System that may at any time prove to be unsuitable for the purpose for which it was intended.

2. Heating and Air Conditioning

To supply Heating during the Heating Season and/or Air Conditioning throughout the year, during Normal Occupancy Hours in order to maintain the Specified Conditions subject to the design capacity of the Plant and the System and to the limits set out in Condition 5.2.  CLIENT may by giving reasonable prior notice that is subsequently confirmed in writing, extend the Heating Season and Normal Occupancy Hours.

3. Domestic Hot Water

To make available domestic hot water during Normal Occupancy Hours throughout the year and store it at the DHW Storage Temperature.

4. Internal Air Temperature

So long as the outside air temperature, as recorded at the nearest Meteorological Station  remains within the External Air Temperature Range, to supply sufficient Heating (and/or, if part of the Building Services Air Conditioning) to maintain the Average Internal Temperature.  For control purposes, the temperature will be measured at the Reference Points or such other points as are in the reasonable opinion of Supplier representative of the Building as a whole.

5. Labour

To provide supervisory and operating staff in sufficient numbers to carry out the normal operation and routine maintenance of the Plant consistent with the provision of the Building Services.

6. Emergency Call-Outs

To provide a prompt response relating to the Plant listed in Schedule 5 on a 24-hour basis throughout the year.

7. Automatic Surveillance System

To install an Automatic Surveillance System to monitor critical items of Plant and internal conditions and to alert its engineers in the event of a malfunction.  This equipment shall remain the property of Supplier and shall be removed on expiry or termination of this Agreement.

8. Expendable Materials

To supply the expendable Minor Maintenance Materials required for the routine maintenance of the Plant i.e. pulley belts, fuses (up to 32 amps) valve and gland packing (in the plant room only), grease, lubricants, cleaning materials, paint and plant room light bulbs, and to supply disposable Filter Media.

9. Total Guarantee

To carry out the major maintenance and repair or replacement of any item of the Plant, should it fail as result of fair wear and tear to the point at which it is no longer capable of performing its duties.  To provide such engineering insurance as Supplier may think fit.

At the end of this Agreement to hand back to CLIENT the Plant (or its replaced equivalent) in good working condition and capable of performing the duties for which it was originally installed.  In the event of dispute the parties, by agreement, will appoint a qualified Building Services Engineer who shall act as an expert and certify whether or not the Plant is in such working condition. Where the parties fail to agree upon the choice of a Building Services Engineer he shall be appointed by the President, for the time being, of the Chartered Institution of Building Services Engineers.  The costs of this procedure shall be borne by the parties as directed by the expert.

10. Maintenance of Internals

To carry out an inspection of and report on all radiators/finned convectors, associated visible valves and visible pipe work in the internal areas.  To carry out the routine servicing and cleaning of the Internals detailed in Schedule 5.

11. Additional Services

To provide the Building Services agreed between the parties as detailed in this Agreement.

12. Statutory Requirements

To comply with all relevant Legislation.  If, in the reasonable opinion of Supplier, the cost to Supplier in providing the Building Services is altered in order to comply with any Legislation enacted since the date of the Contract or any change to existing Legislation, the Annual Charge shall be adjusted to reflect the cost to Supplier of providing the Building Services.  The Parties shall use reasonable endeavours to minimise, to the extent practicable and permissible, any such increase.

13. Freedom to Install Additional Equipment

Supplier may at its own expense install additional equipment to be linked up with the Plant.  Such additional equipment will be and shall remain Supplier’s property and may be removed at any time it may think fit provided that at the time of its installation and removal, Supplier shall make good any damage thereby caused.  The installation of such additional equipment shall be carried out in accordance with accepted standards of practice, be covered by insurance if appropriate and comply with any statutory or local government regulations.  At the end of this Agreement CLIENT shall have the option, subject to the agreement of Supplier, of purchasing Supplier’s equipment at an agreed valuation.

14. Insurance

To maintain a public liability insurance policy subject to the Limit of Indemnity to cover its liabilities under this Agreement.

15. Equipment of the Seller

All equipment and all other property belonging to Supplier or its servants or agents brought into the Building will be at Supplier’s sole risk and remain the property of Supplier.

16. Health & Safety

Supplier will, at all times, take particular note of the requirements of the Health & Safety at Work Act 1974 and will comply with all requirements concerning its duty to its own employees, its servants or agents, or authorised visitors to the plant rooms and areas it controls, in the course of its obligations under this Agreement.

17. The obligations of Supplier to provide the Building Services shall be subject to the following:

Essential Maintenance

Supplier reserves the right to interrupt or reduce the supply of heating and/or air conditioning in order to undertake the Essential Maintenance.  Supplier will endeavour to exercise this right only at those times when an interruption of supply will cause least inconvenience and to carry out the maintenance as expeditiously as possible.  Prior notice of such interruption will be given when possible.

Limits to Specified Conditions

Supplier’s obligation to provide sufficient Heating and/or Air Conditioning to maintain the Average Internal Temperature shall be limited as follows:

(a) Supplier shall not be obliged to operate the Plant beyond its maximum capacity, subject to the limits of safety. 

(b) In the event that the Plant does not include stand-by Heating and/or Air Conditioning capacity then Supplier shall not be obliged to provide Heating and/or Air Conditioning during periods when the Plant is inoperable, or to maintain the Average Internal Temperature during periods when the Plant is defective.

(c) In the event of:

(i) a greater hourly rate of heat loss, or gain or air change than that allowed for in the original design of the installation, such as might be caused by cracked brickwork or poorly fitting doors and windows;

(ii) installations forming part of the System, other than the Plant, being in a defective state (save in the case of serious risk of damage or injury when Supplier may suspend operations immediately);

(iii) internal partitioning without due regard for temperature distribution; or

(iv) lack of balance in the Heating and/or Air Conditioning distribution pipe work and/or ductwork outside the plant room.

Supplier shall not be obliged to maintain the Average Internal Temperature until CLIENT has remedied such defects.

Schedule 3 – Responsibilities of CLIENT

1. Access to and Use of Plant

CLIENT hereby grants Supplier the unrestricted right of access to, and use of the Plant without payment.  CLIENT shall place the Plant at the disposal of Supplier free of charge with all the equipment correctly installed, completely finished, conforming to all statutory and local government regulations, and in running order to the satisfaction of Supplier, to enable it to operate the Plant in accordance with the terms of this Agreement.

Recognising the importance of prompt attention to plant failure at any time, CLIENT undertakes to provide Supplier with guaranteed access to the Plant in order to render it into a safe condition.  Supplier shall not be held responsible for any costs arising from Plant failure should CLIENT fail to provide such access for any reason.

2. Security

CLIENT shall, at all times, keep the doors giving access to the Plant locked and restrict access to authorised personnel only.  CLIENT shall have access to the Plant but shall be responsible for making good, at its own expense, any damage caused by its employees, servants or agents, either to the Plant or to any equipment owned by Supplier.

CLIENT shall remain responsible at all times for the security of the Building.

3. Vehicle Access and Parking

CLIENT shall use its reasonable endeavours to grant Supplier at all times reasonable access and parking facilities for its vehicles whilst in attendance at the Building for the purpose of carrying out its obligations.

4. Structural Maintenance, Builders Work and Craneage

CLIENT undertakes to maintain the Building in a sound state of repair and in particular to keep it as weather-proof as Supplier shall reasonably require to enable it to perform the terms of this Agreement.  CLIENT shall also be responsible for:

(a) Tanking of the plant room floors;

(b) Any builder’s work, cranes or lifting tackle that may be required;

(c) All costs associated with asbestos;

(d) All costs relating to compliance with CFC legislation; and

(e) All costs of employing a surveyor as required by the CDM regulations.

5. Access to Remainder of System

CLIENT shall grant Supplier right of access, at all reasonable times, to those parts of the System for which CLIENT or its tenants are responsible, in order to carry out any examinations, tests or checks that may be necessary.

6. Access in Emergency

In the case of emergency, Supplier’s employees, servants or agents shall have the right of immediate access to all relevant parts of the System, and to take whatever action the situation demands.

7. Maintenance of Remainder of System

CLIENT undertakes to maintain in good and effective repair the System that remains its responsibility under this Agreement.

8. Major Maintenance Repair or Replacement

This shall apply where CLIENT does not have the benefit of a Total Guarantee Service.

In the event of a requirement for major maintenance and repair or replacement of the Plant, CLIENT, shall at all times remain responsible for such remedial work, and may instruct Supplier to proceed with such work to be charged extra, either for an agreed sum or at Supplier’s current day work rate. CLIENT shall remain free to instruct others to proceed with such work, but shall be responsible for ensuring that any such work is carried out in a workmanlike manner to the satisfaction of Supplier’s Chief Engineer.

Where the total cost of the remedial work does not exceed the Repair Authorisation Level revised pro rata to any changes to the Labour and Materials Indices Supplier may carry out or arrange for such remedial work without reference to CLIENT.

In the case of emergency Supplier shall take and is hereby authorised by CLIENT to take whatever action is necessary to render the Plant into a safe condition.

9. Technical Documents

CLIENT shall use its reasonable endeavours to make available to Supplier free of charge at the start of this Agreement, two (2) complete sets of operating and maintenance instructions, together with ‘as fitted’ drawings and wiring diagrams, specifications and commissioning data for the Plant.

10. Supplies and Services

Where it remains its responsibility, CLIENT shall provide, free of charge, the supply of all oil, gas, electricity and water required for the operation and lighting of the Plant.

11. Local Rates

CLIENT shall pay all local rates, statutory and all other charges in respect of the plant rooms and space occupied by the Plant.

12. Alterations to System

CLIENT undertakes not to make any alteration whatsoever to the space heating, air conditioning, ventilating or domestic hot water supply equipment in the Building and in particular to the size, number and output of the terminal units, without first seeking the written consent of Supplier.  Such consent shall not be unreasonably withheld or delayed unless the effect of such alteration would be inconsistent with the capacity of the Plant and irreconcilable with the undertakings given by Supplier under this Agreement.

Where Supplier gives its consent, it shall also notify CLIENT in writing of any variation that may be necessary in the amount of the annual charge in Schedule 4.

13. Alterations to Electricity Loading and Water Consumption

CLIENT undertakes to notify Supplier of any significant changes in the electrical loading, water consumption or changes in the nature, extent and pattern of use of the Building likely to have an effect on electricity or water consumption.  As a result of any such changes, Supplier shall revise its charges up or down accordingly.

14. Health & Safety

CLIENT shall comply with the requirements of the Health & Safety at Work Act 1974 in affording Supplier, its servants or agents, safe access to and egress from the plant rooms and areas which are the subject of this Agreement and shall take all reasonably practicable measures as are required to provide a safe and proper place of work.

Schedule 4 – Fees

INSERT COST SHEET

INCLUDE Annual Charge

Set out the Fees

INCLUDE provisional fees further to clause 3.1.

Schedule 5 – Asset Log & Premises

This Agreement covers the following CLIENT Premises and the respective assets listed;

INSERT ASSET LIST

List the equipment

List the Premises

List the Internals

List the Asset Log

List the Plant

Schedule 6 – Governance

1. Supplier shall provide CLIENT with named internal and external account managers as needed per site, and will inform CLIENT of any planned changes in key personnel.

2. The parties responsible for the day to day operation of this Agreement will be:

XXX (in the case of CLIENT)

Kevin Garlick (in the case of Supplier)

3. The parties responsible for the effective management of the Agreement will be:

XX (in the case of CLIENT)

Lee Bainbridge (in the case of Supplier)

4. The parties responsible for the operational management of this Agreement, as identified in clauses 2 and 3, will meet at monthly intervals to review the operation of this Agreement. If required, CLIENT’s Procurement Manager may be invited to attend meetings.

5. Supplier will provide accurate management reports to CLIENT on a monthly basis. These reports should demonstrate as a minimum:

(a) Supplier’s ability to respond to logged calls;

(b) the schedule of maintenance that has been performed within that month, including any comments or observations made by the attending engineer, or third party company;

(c) the pre-planned maintenance tasks that are planned for the coming period;

(d) the utilisation of resources over the period including a breakdown on a line basis, of the hours spent on pre-planned maintenance and reactive maintenance, and when those tasks took place;

(e) review of any assets added to, or removed from the Asset Log;

(f) performance against any other SLAs not specified in points ‘a’ to ‘e’ in clause 5.

6. Supplier shall have a positive and flexible approach to the management of this Agreement.

7. Supplier shall continually strive to deliver cost savings to CLIENT, through product recommendations, efficiency gains and new innovations in products and technology.

Schedule 7 – Service Levels

INSERT SERVICE LEVEL AGREEMENTS

Contact Points for Queries

Client  contact – TBC

Supplier contact – kgarlick@oges.eu.com

Service Level Monitoring

The monitoring of the above service levels shall be broken down into one month periods as indicated in Schedule 6, and shall be reviewed by the parties at the monthly review meeting following the end of each period.

In the event that a dispute cannot be resolved by the parties, then the dispute shall be resolved in line with the dispute resolution provisions set out in the Main Agreement.

Schedule 8 – Additional Terms Relating to TUPE Regulations

1.Interpretation

  1. The definitions in this paragraph, in addition to the definitions and rules of interpretation in the Agreement apply in this Schedule 8.

CLIENT PartiesCLIENT, CLIENT Group and any of their subcontractors;

Employment Costs – means all employee costs including, but without limitation: wages, salary, holiday pay, provision of non-cash benefits, bonuses, commissions, allowances, payments of PAYE, employer’s national insurance contributions, employer’s pension contributions, maternity, paternity and sickness pay and expenses;

Enhanced Employee Information – age, start date, working hours, job title/brief description of duties, status (employee, worker, self-employed, contractor or consultant, agency worker or other), name of employing or contracting entity, notice period, contractual entitlements on termination including enhanced redundancy terms, all pay and benefits, all outstanding or potential liabilities (including personal injury claims), details of long-term absences in the last 2 years (including sickness, maternity or other reason), copies of grievances and grievance outcomes in the last 2 years, copies of contracts, policies, procedures and all other relevant documents relating to the above information;

Employee Obligations – all obligations in respect of employees and/or their representatives;

Existing Provider – any third party who prior to any Supplier Party assumed responsibility for the Services, any part of the Services or was responsible for providing the same or similar services on behalf of any CLIENT Party;

Exit – any Supplier Party ceasing to provide the Services or any part of the Services;

Incoming Employees – all those employees listed at Appendix 1 of this Schedule being employees of any Existing Provider who are wholly or mainly assigned to services which are the same as or fundamentally similar to the Services or any part of the Services;

Incoming Transfer – Supplier or any Supplier Party assuming responsibility for the Services or any part of the Services pursuant to this Agreement;

Incoming Transfer Date – The date on which an Incoming Transfer occurs;

Losses – all claims, costs, demands, actions, penalties, expenses or liabilities whatsoever and howsoever arising incurred or suffered including without limitation all legal expenses and other professional fees (together with any VAT thereon) and settlement costs;

Outgoing Employees – all those employees of any Supplier Party who are wholly or mainly assigned to the Services or relevant part of the Services who transfer or are expected to transfer to any CLIENT Party or Replacement Supplier under clause 4;

Outgoing Transfer – any Replacement Supplier or CLIENT Party assuming responsibility for the Services or any part of the Services following an Exit;

Outgoing Transfer Date – the date on which an Outgoing Transfer occurs;

Pre-transfer Redundancy Consultation – consultation under section 198A of the Trade Union & Labour Relations (Consolidation) Act 1992;

Redundancy Costs – redundancy pay (statutory or contractual) and notice pay (statutory or contractual);

Replacement Supplier – any third party who assumes responsibility for services that are the same as or fundamentally similar to the Services or any part of the Services in place of any Supplier Party;

Supplier Parties – Supplier, Supplier Group and any of their subcontractors;

TUPE – Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended from time to time.

2. Employee Transfer on Commencement

Tupe

1. The parties believe that TUPE may apply to an Incoming Transfer such that Supplier would, with effect from the Incoming Transfer Date, become the employer of the Incoming Employees who are so employed immediately prior to the Incoming Transfer Date.

Employee Data

2. CLIENT will and will ensure that the Existing Provider will, subject to its obligations under Data Protection Legislation, as soon as reasonably practicable give to Supplier a list of all Incoming Employees (being those employees identified at Appendix 1 of this Agreement) (“Incoming Employee List”) and in relation to each Incoming Employee, in accessible form:

2.1 the employee liability information as required by TUPE; and

2.2 Enhanced Employee Information,

together referred to as the “Incoming Employee Data”.

CLIENT will and will ensure that the Existing Provider will:

3.1 provide Supplier with any information it requires in relation to each Incoming Employee to organise payroll;

3.2 ensure the Incoming Employee List and Incoming Employee Data are accurate;

3.3 promptly inform Supplier of any changes to the Incoming Employee Data;

3.4 not add or remove any individual from the Incoming Employee List without Supplier’s prior written approval (not to be unreasonably withheld or delayed) except to remove any individual who has resigned (which shall be promptly notified to Supplier);

3.5 not make, offer or promise to make changes to the Incoming Employee Data without Supplier’s prior written approval (not to be unreasonably withheld or delayed);

3.6 promptly and fully respond to any query raised by Supplier in relation to the Incoming Employee List and the Incoming Employee Data.

Employee Consultation

4. CLIENT will comply, and will ensure that all CLIENT Parties and the Existing Provider shall comply, with their information and consultation obligations under TUPE.

5. Supplier will comply with its information and consultation obligations under TUPE.

6. Supplier will give to CLIENT the information required by TUPE as to the measures, in connection with the transfer, Supplier envisages it will take in relation to any Incoming Employees whose employments will transfer to Supplier under TUPE.

7. If Supplier requests to conduct Pre-transfer Redundancy Consultation, CLIENT will, and will ensure that every CLIENT Party and the Existing Provider will, promptly consent and cooperate with Supplier in relation to that process.

Liabilities and Indemnities

8. CLIENT will discharge, and will ensure that the relevant CLIENT Party and the Existing Provider discharges all liabilities relating to any act or omission of any CLIENT Party or Replacement Supplier up to the Incoming Transfer Date and CLIENT or relevant CLIENT Party and the Existing Provider will be liable for all Employee Costs relating to the Incoming Employees up to the Incoming Transfer Date.

9. CLIENT will indemnify Supplier Parties in full for and against all Losses incurred or suffered by any Supplier Party, in relation to:

9.1 the dismissal of any Incoming Employee prior to the Incoming Transfer Date;

9.2 any breach by any CLIENT Party or the Existing Provider of clause 2.8; 

9.3 any act or omission of any CLIENT Party or the Existing Provider or any matter, event or circumstance relating to the Incoming Employees occurring on or before the Incoming Transfer Date;

9.4 any failure by any CLIENT Party or Existing Provider to comply with any of their obligations under TUPE;

9.5 any act or omission of any CLIENT Party or Existing Provider during any period whether before, on or after the Incoming Transfer Date in relation to any individual engaged by any CLIENT Party or the Existing Provider other than any Incoming Employees who transfer under TUPE to any Supplier Party;

but excluding any such Losses that arise from any act or omission of any Supplier Party.

10. Supplier will, and will take reasonable steps to ensure that all Supplier Parties will, discharge all Employee Obligations and the relevant Supplier Party will be liable for all Employee Costs relating to the Incoming Employees who transfer under TUPE following the Incoming Transfer Date.   

11. Supplier will indemnify CLIENT in full for and against all Losses incurred or suffered by CLIENT, in relation to:

11.1 any breach by Supplier of clause 2.10; 

11.2 any act or omission of Supplier or any matter, event or circumstance relating to any Incoming Employees who transfer under TUPE occurring after the Incoming Transfer Date;

11.3 any failure by Supplier to comply with any of its obligations under TUPE;

but excluding any such Losses that arise from any act or omission of any CLIENT Party or the Existing Provider.

3. Unexpected Employees

3.1. Where the employment, contract of employment and/or any liability regarding the employment of any person other than an Incoming Employee transfers or is claimed to have transferred to a Supplier Party under TUPE (“Unexpected Employee”):

(a) Supplier shall immediately notify CLIENT and the Existing Provider of the identity of the Unexpected Employee (Unexpected Employee Notice). The Existing Provider or any of its Group Companies shall have a period of 30 days from the date of receipt of the Unexpected Employee Notice (Offer Period) within which to offer to employ such person under a new contract of employment with the Existing Provider or one of its Group Companies should it or they so wish.

(b) If, by the expiry of the Offer Period, an Unexpected Employee is still claiming to be employed by Supplier, Supplier may terminate such employment. 

(c) CLIENT shall fully indemnify Supplier in respect of all Losses relating to the employment or dismissal of the Unexpected Employee.

(d) The indemnity in clause (c) above not apply to cover any Losses in the event that notice of termination of employment is not effectively served on the relevant Unexpected Employee within 3 month of the expiry of the Offer Period.

4. Employee Transfer on Exit

1. The following provisions at clauses 4.1 to 4.9 apply to any Exit which is a relevant transfer within the meaning of TUPE.

Employee Data

2. Supplier will, subject to its obligations under Data Protection Legislation, as soon as reasonably practicable but no later than 28 days before any Exit, give to CLIENT and on request, to a Replacement Supplier, a list of all Outgoing Employees (“Outgoing Employee List”) and in relation to each Outgoing Employee, in accessible form:

2.1 the employee liability information as required by TUPE; and

2.2 Enhanced Employee Information,

together referred to as the “Outgoing Employee Data”.

3. Supplier will:

3.1 provide CLIENT and/or the Replacement Supplier with any information it requires in relation to each Incoming Employee to organise payroll;

3.2 ensure the Outgoing Employee List and Outgoing Employee Data are accurate;

3.3 promptly inform CLIENT and/ or the Replacement Supplier of any changes to the Outgoing Employee Data;

3.4 not add or remove any individual from the Outgoing Employee List without CLIENT’s prior written approval (not to be unreasonably withheld or delayed) except to remove any individual who has resigned (which shall be promptly notified to CLIENT);

3.5 not make, offer or promise to make changes to the Outgoing Employee Data without CLIENT’s prior written approval (not to be unreasonably withheld or delayed);

3.6 promptly and fully respond to any query raised by CLIENT in relation to the Outgoing Employee List and the Outgoing Employee Data.

Employee Consultation

4. Supplier will comply, and will ensure that all Supplier Parties comply, with their information and consultation obligations under TUPE.

5. CLIENT will comply with its information and consultation obligations under TUPE.

6. CLIENT and/or the Replacement Supplier will give to Supplier the information required by TUPE as to the measures, in connection with the transfer, it or they envisage will be taken in relation to any Outgoing Employees whose employment will transfer to CLIENT or the Replacement Supplier under TUPE.

7. If CLIENT or the Replacement Supplier request to conduct Pre-transfer Redundancy Consultation, Supplier will, and will ensure that every Supplier Party will, promptly consent and cooperate with CLIENT or the Replacement Supplier in relation to that process.

8. CLIENT will, and will ensure all CLIENT Parties and the Replacement Supplier will, discharge all Employee Obligations and be liable for all Employee Costs relating to the Outgoing Employees following and on the date of the Exit.

9. CLIENT will indemnify all Supplier Parties in full for and against all Losses incurred or suffered by any Supplier Party, in relation to:

9.1 any breach by any CLIENT Party or Replacement Supplier of clauses 4.7 or 4.8; 

9.2 any act or omission of any CLIENT Party or Replacement Supplier or any matter, event or circumstance relating to the Outgoing Employees occurring on or after the Exit;

9.3 any failure by any CLIENT Party or Replacement Supplier to comply with any of their obligations under TUPE;

9.4 any statement communicated to, or act or omission of any CLIENT Party or Replacement Supplier in respect of, the Outgoing Employees on or before the date of the Exit regarding the transfer, which has not been previously agreed in writing by Supplier;

9.5 any claim under Regulations 4(9) or 4(11) of TUPE;

but excluding any such Losses that arise from any act or omission of Supplier.

10. Where, in the opinion of Supplier, an Exit will not amount to a relevant transfer within the meaning of TUPE in respect of any employee of any Supplier Party wholly or mainly assigned to the Services or relevant part of the Services, or where the relevant part of the Services are intended to cease, CLIENT will indemnify Supplier Parties in full for and against the Redundancy Costs of any such employee who is dismissed for redundancy within 90 days of the date on which the Exit occurs together with the Employee Costs of such employee from the date of the Exit or date of termination of the relevant Services, until their employment terminates.

[Appendix 1 – List of Incoming Employees]