Dated
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Customer agreement
between
Buying Support Agency Limited
and
[Insert full company name of customer]
THIS AGREEMENT is dated
Parties
(1)[FULL COMPANY NAME] incorporated and registered in England and Wales with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (Customer).
(2)BUYING SUPPORT AGENCY LIMITEDincorporated and registered in England and Wales with company number 04448500 whose registered office is at Red Lion Yard, Frome Road Bath BA2 2PP (BSA).
Background
(A)The Customer has agreed to purchase, and BSA has agreed to supply, the Services on the terms and conditions of this agreement.
Agreed terms
1.Interpretation
1.1The definitions and rules of interpretation in this clause 1 apply throughout this agreement.
Approved Supplier: any approved supplierintroduced by BSA to the Customer pursuant to this Agreement.
Approved Supplier Contract: any contract between an Approved Supplier and the Customer entered into in consequence of this Agreement.
Average Earnings Index: the index of average earnings for private-sector earnings as published by the Office for National Statistics from time to time, or failing such publication, that other index as the parties may agree most closely resembles such index.
Benchmarking Data: anonymised data related to the Customer and the Approved Supplier Contracts which BSA may retain for benchmarking and cost modelling purposes.
Charges:the charges payable by the Customer for the Services which may become due and payable pursuant to this agreement.
Commission: means any commission, fee or other benefit that BSA receives from an Approved Supplier in connection with an Approved Supplier Contract.
Confidential Information: any information, however conveyed or presented, that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, personnel and suppliers of the disclosing party, together with all information derived by the receiving party from any such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked "confidential"), or which ought reasonably be considered to be confidential including in the case of BSA’s confidential information, details of its Approved Suppliers and the prices and other terms and conditions (including preferential terms)upon which the Approved Suppliers agree to supply goods and services to BSA or to the Customer pursuant to this Agreement.
Customer Employees: any person who is an employee of the Customer or of any other third party including any member of the Customer’s Group immediately prior to the Effective Date.
Customer's Group: the Customer, its ultimate holding company and all subsidiaries of its ultimate holding company.
Effective Date: the date of this agreement.
Existing Customer Supply Contracts: supply contracts to which the Customer is party which the Customer has entered into independently of this Agreement either whether before or after the Effective Date which are replaced or affected by an Approved Supplier Contract.
Implementation Services: the services set out in Part 1 of Schedule 1.
Initial Term: as defined in Schedule 3 (Special Terms)
Losses: includes all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses).
Operational Services: the operational services described in Part 2 of Schedule 1.
Services: the services to be delivered by or on behalf of BSA under this agreement being the Implementation Services and the Operational Services and Service means any of the Services (or any part of any of them).
Termination Date: the date of expiry or termination of this agreement.
TUPE: the Transfer of Undertakings (Protection of Employment) Regulations 2006.
VAT: value added tax as provided for in the Value Added Tax Act 1994.
Working Day: Monday to Friday, excluding any public holidays in England and Wales.
1.2A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3Unless a right or remedy of a party is expressed to be an exclusive right or remedy, the exercise of it by a party is without prejudice to that party's other rights and remedies.
1.4Holding company and subsidiary: mean a "holding company" and "subsidiary" as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members' rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
1.5A person includes a corporate or unincorporated body (whether or not having separate legal personality).
1.6Writing or written includes faxes but not e-mail.
2.Commencement and duration
2.1The Services supplied under this agreement shall continue to be supplied, and the Charges paid, for the Initial Termand, after that, shall continue to be supplied unless this agreement is terminated by one of the parties giving to the other not less than one months' written notice, such notice to expire on the expiry of the Initial Term or at any time after that date, unless this agreement is terminated in accordance withclause13.
3.Services
3.1The Customer shall appoint BSA, and BSA shall from the Effective Date provide the Services to the Customer pursuant to the terms, and conditions of this agreement. The Operational Services will be provided once an Approved Supplier Contract is in place.
3.2BSA shall at all timesprovide the Services in accordance with good industry practice.
3.3Save as expressly provided otherwise in this Agreement, the Customer acknowledges that it is not guaranteed any particular level of savings arising from this Agreement.
4.Customer Obligations
4.1The Customer shall at its expense:
(a)remain responsible for placing all orders with Approved Suppliers, receiving the goods/services from all Approved Suppliers, checking deliveries from Approved Suppliers against purchase orders and paying all invoices due pursuant to Approved Supplier Contracts.
(b)Be responsible for reviewing the terms of and, if applicable, terminating any existing contracts with its existing suppliers that may be replaced or otherwise impacted by Approved Supplier Contracts.
(c)provide feedback to BSA on request from BSA as to the services and service levels provided by Approved Supplier.
4.2The Customer acknowledges and accepts that:
(a)all Approved Supplier Contracts shall be made directly between the Approved Supplier and the Customer and on such terms as they shall agree; and
(b)all orders for goods or services pursuant to any Approved Supplier Contract will be placed directly by the Customer with Approved Suppliers and all deliveries will be made directly to the Customer (or as it may direct).
(c)the Customer shall be responsible for terminating any Existing Customer Supply Contract.
(d)BSA shall not be liable to the Customer or to any member of the Customer’s Group under any circumstances for:
(i)any failure on the part of any Approved Supplier to deliver or delay in delivery of any goods or services pursuant to any Approved Supplier Contract;
(ii)for any breach of any express or implied term or warranty as to the condition or quality or fitness for purpose of any goods or services delivered pursuant to any Approved Supplier Contract; or
(iii)any other acts or omissions of any Approved Supplier;
(iv)any claim made against the Customer arising from anyExisting Customer Supply Contract.
4.3The Customer undertakes:
(a)not to change or interfere in any waywith any commission payment arrangement with an Approved Supplier(s) without the prior written consent of BSA;
(b)to perform in full all its obligations under all Approved Supplier Contracts; and
(c)to indemnify BSA against all liabilities, costs, expenses, damages and losses (including but not limited to all interest, penalties and legal costs (calculated on a fullindemnitybasis) and all other reasonable professional costs and expenses) suffered or incurred by BSA arising out of or in connection with any claim by an Approved Supplier against BSA arising from the Customer failing to make any payments due under any Approved Supplier Contract or otherwise breaching the terms of any Approved Supplier Contract.
5.Charging and invoicing
5.1In consideration of the provision of the Services by BSA in accordance with the terms and conditions of this agreement, the Customer shall pay the Charges to BSA in accordance with the terms of Schedule 2. The Customer acknowledges that BSA shall not be obliged to commence the Implementation Services prior to receipt of the first month’s Charges.
5.2BSA shall invoice the Customer for payment of the Charges annually in advance with the first monthly instalment due on the Effective Date.
5.3The Customer shall pay the annual Charges by equal monthly instalments by direct debit on the 1st day of each month or such other date agreed in writing by the parties (Due Date).
5.4BSAmay suspend the supply of the Services if any payment is overdue.
5.5If the Customer fails to make any payment due to BSA under this agreement by the due date for payment, then, without limiting BSA's remedies, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Lloyds Bank PLC's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5.6Except as otherwise provided, the parties shall each bear their own costs and expenses incurred in respect of compliance with their obligations under this agreement and any Approved Supplier Contract.
5.7All sums payable by either party under this agreement shall be paid in sterling.
5.8The Charges are stated exclusive of VAT, which shall be added at the prevailing rate as applicable and paid by the Customer following delivery of a valid VAT invoice.
5.9The Customer shall have no right to retain or set off any sums against any sums due to BSA under this agreement.
6.Employees
6.1The parties do not consider that the entry into, performance, expiry or termination of this Agreement will constitute a relevant transfer for the purposes of TUPE and, accordingly, the parties do not anticipate that the contracts of employment of any Customer Employees shall be transferred to BSA pursuant to TUPE or otherwise as a result of this Agreement.
6.2If any contract of employment or engagement or collective agreement of any Customer Employee has effect as if originally made between BSA and any Customer Employee or their representatives as a result of the provisions of TUPE or otherwise:
(a)BSA may terminate such contract or agreement; and
(b)the Customer shall indemnify BSA against all Losses suffered or incurred by BSA arising out of or in connection with any of the following:
(i)such termination;
(ii)BSA’s employment of such Customer Employees after the Effective Date;or
(iii)such contract or collective agreement before the Effective Date, if BSA does not terminate such contract or collective agreement.
7.Non-solicitation
7.1Neither party shall (except with the prior written consent of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party in the provision of the Services or (in the case of the Customer) in the receipt of the Services at any time prior to the termination or expiry of this Agreement or for a further period of 12 months after the termination or expiry of this agreement other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.
7.2If either BSA or the Customer commits any breach of clause 7.1, the breaching party shall, on demand, pay to the claiming party a sum equal to one year's basic salary or the annual fee that was payable by the claiming party to that employee, worker or independent contractor plus the recruitment costs incurred by the claiming party in replacing such person.
8.Confidentiality
8.1Except to the extent set out in this clause 8, or where disclosure is expressly permitted elsewhere in this agreement, each party shall:
(a)treat the other party's Confidential Information as confidential; and
(b)not disclose the other party's Confidential Information to any other person without the owner's prior written consent.
8.2Clause 8.1 shall not apply to the extent that:
(a)such information was in the possession of the party making the disclosure, without obligation of confidentiality, prior to its disclosure; or
(b)such information was obtained from a third party without obligation of confidentiality; or
(c)such information was already in the public domain at the time of disclosure otherwise than through a breach of this agreement; or
(d)such information was independently developed without access to the other party's Confidential Information.
8.3Each party may only disclose the other party's Confidential Information to personnel who are directly involved in the provision or receipt of the Services and who need to know the information. Each party shall ensure that such its personnel are aware of, and comply with, these confidentiality obligations.BSA may disclose the Customer’s Confidential Information to Approved Suppliers and sales broker in connection with the performance of its obligations under this Agreement.
8.4Nothing in this clause 8 shall prevent BSA from:
(a)using any techniques, ideas or know-how gained during the performance of this agreement in the course of its normal business to the extent that this use does not result in a disclosure of the other party's Confidential Information;
(b)using the Benchmarking Data for its normal purposes.
8.5On the Termination Date, each party shall:
(a)return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information excluding any Benchmarking Data;
(b)erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically practicable); and
(c)certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party.
8.6Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
9.Warranties and representations
9.1Each party warrants, represents and undertakes that:
(a)it has full capacity and authority to enter into and to perform this agreement;
(b)this agreement is executed by a duly authorised representative of that party;
(c)once duly executed, this agreement will constitute its legal, valid and binding obligations.
9.2Both parties agree that the warranties set out in this agreement are in lieu of and exclude all other terms, conditions or warranties implied by statute, law or otherwise as to the merchantability, satisfactory quality of fitness for any particular purpose of the Services to the fullest extent permitted by law.
10.Anti-bribery
10.1BSA shall in connection with this agreement comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption includingthe Bribery Act 2010.
11.Force majeure
11.1Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 30 days' written notice to the affected party.
12.Limitations on liability
12.1Neither party limits its liability for:
(a)death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors; or
(b)fraud by it or its employees; or
(c)breach of any obligation as to title implied by statute; or
(d)any other act or omission, liability for which may not be limited by.
12.2Subject to clause 12.1, BSA's total aggregate liabilityin respect of all claims, losses or damages, whether arising from tort (including negligence), breach of contract or otherwise under or in connection with this agreement, shall be limited to in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period, the equivalent of the total Charges paid by the Customer in that period.
12.3Subject to clause 12.1, neither party shall in any circumstances be liable to the other party for:
(a)loss of profits;
(b)loss of sales or business;
(c)loss of agreements or contracts;
(d)loss of anticipated savings;
(e)loss of or damage to goodwill;
(f)loss of use or corruption of software, data or information;
(g)any indirect or consequential loss.