Supply of Services Agreement (Short Form)

Supply of Services Agreement (short form)

DISCLAIMER:

This template agreement is provided free of charge and ,as such,the Energy Saving Trust Limited does not provide any warranty, representation or recommendation as to the suitability or otherwise of this template agreement for any supply of services. Consequently, any party choosing to use this template agreement agrees that the Energy Saving Trust Limited shall not be liable for any loss suffered whatsoever as a result of use of the template agreement. Each party should take its own legal advice before entering into any agreement.

[DRAFTING NOTES:

• Details which are required to be agreed between the parties and inserted are highlighted in yellow and are in square brackets. Where there are alternatives, this is indicated by the word “OR”.
• Drafting notes are highlighted in blue and in square brackets and should be deleted prior to finalising the agreement.
• In particular, Schedule 1 (Services) should set out in adequate detail all Services anticipated to by supplied under this agreement including the term for which the Services will be provided and any performance dates; Schedule 2 should set out agreed pricing arrangementsfor each type of Service (parties should note that under the default payment terms in Part 3 Schedule 2 , any expenses/disbursements will be charged separately).
• Any changes to the Services and pricing should be agreed in writing between the parties in accordance with clause 5.
• Depending on the types of legal entities who will be party to this agreement, the form of execution clause on page 16 may need to be amended ensure the agreement is validly executed.]

Contents

Clauses1...... Interpretation

2Commencement and Duration

3Supplier's Responsibilities

4Customer's Obligations

5Changes

6Charges and Payment

7Quality of Services

8Intellectual Property Rights

9Indemnity and Insurance

10Confidentiality

11Anti-bribery

12Data Protection

13Termination

14Consequences of Termination

15Remedies

16Force Majeure

17Assignment and Other Dealings

18Variation

19Waiver

20Severance

21Entire Agreement

22No Partnership or Agency

23Third Party Rights

24Notices

25Counterparts

26Mediation

27Governing Law and Jurisdiction

Schedules

1Services

2Pricing and Payment Terms

3Special Conditions

4Insurance

1

This agreement is made the day of

Between:

(1)[Full company name of Supplier] incorporated under the Companies Acts 1985 and 2006with company number [Company number of Supplier]whose registered office is at [Registered office address] (Supplier)

(2)[Full name of Customer] incorporated under the Companies Acts 1985 and 2006 with company number [Company number of Customer][if applicable - Charity Number [Charity number of Customer]] whose registered office is at [Registered office address]
OR
[Full name of Customer] a community interest company limited by guarantee incorporated under the Companies Acts 1985 and 2006 with company number [Company number of Customer] whose registered office is at [Registered office address]
OR
[Name of trader] trading as [name of business] of [address of business]
OR
[Names of trustees] of [addresses of trustees] in their capacity as trustees of [Name of charity] with Charity Number [Charity number] (Customer)

Background:

(A)The Supplier is in the business of [description of business]

(B)The parties wish to enter into an agreement for the Supplier to supply the Services (as defined below) to the Customer.

It isagreed as follows:

1Interpretation

The following definitions and rules of interpretation apply in this agreement.

1.1Definitions.

1.2Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.

1.4The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.

1.5A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.7Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.8A reference to any party shall include that party's personal representatives, successors and permitted assigns.

1.9A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.10A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.11A reference to writing or written includes fax and e-mail.

1.12Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.13References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.

1.14Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2Supply of Services

2.1The Supplier shall provide the Services to the Customer on the terms and conditions of this agreementunless this agreement is terminated in accordance with clause 12.

3Supplier's Responsibilities

3.1The Supplier shall provide the Services in accordance with Schedule 1 and the terms and conditions of this agreement and shall allocate sufficient resources to the Servicesto enable it to comply with this obligation.

3.2The Supplier shall meet, and time is of the essence as to, any performance dates specified in Schedule 1. If the Supplier fails to do so, the Customer may (without prejudice to any other rights it may have):

3.2.1terminate this agreement in whole or in part without liability to the Supplier;

3.2.2refuse to accept any subsequent performance of the Services which the Supplier attempts to make;

3.2.3purchase substitute services from elsewhere;

3.2.4hold the Supplier accountable for any loss and additional costs incurred; and

3.2.5have all sums previously paid by the Customer to the Supplier under this agreement refunded by the Supplier.

3.3The Supplier shall:

3.3.1co-operate with the Customer in all matters relating to the Services;

3.3.2comply with, and ensure that the Supplier's Team comply with, all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer's premises including those that have been communicated to it under clause 4.1.4. The Customer reserves the right to refuse the Supplier's Team access to the Customer's premises, which shall only be given to the extent necessary for the performance of the Services;

3.3.3comply with all legislation, laws, rules, regulations, standards, codes of practice and protocols (whether statutory, issued by a local authority, or relevant regulatory authority, self regulatory or otherwise) applicable or relevant to the provision of the Services by the Supplier under or in connection with this agreement;

3.3.4notify the Customer as soon as it becomes aware of any health and safety hazards or issues which arise in relation to the Services;

3.3.5before the date on which the Services are to start, obtain, and at all times maintain, all necessary licences and consents in relation to the provision of the Services;and

3.3.6comply with any special conditions set out inSchedule 3.

4Customer's Obligations

4.1The Customer shall:

4.1.1co-operate with the Supplier in all matters relating to the Services;

4.1.2provide such access to the Customer's premises and data, and such office accommodation and other facilities as may reasonably be requested by the Supplier and agreed with the Customer in writing in advance, for the purposes of the Services;

4.1.3provide such information as the Supplier may reasonably request and the Customer considers reasonably necessary, in order to carry out the Services, in a timely manner;

4.1.4inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer's premises.

5Changes

5.1If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.

5.2If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time (and in any event not more than [5] working days after receipt of the Customer's request), provide a written estimate to the Customer of:

5.2.1the likely time required to implement the change;

5.2.2any necessary variations to the Supplier's charges arising from the change based on the standard daily rates set out inSchedule 2;

5.2.3any other impact of the change on this agreement.

5.3If both parties consent to a proposed change, the change shall be made, only after agreement of the necessary variations to the Supplier's charges, the Services and any other relevant terms of this agreement to take account of the change that has been reached and this agreement has been varied in accordance with clause 18.

5.4If the Supplier requests a change to the scope or execution of the Services, in order to comply with any applicable safety or statutory requirements, and such changes do not materially affect the nature, scope of, or charges for the Services, the Customer shall not unreasonably withhold or delay consent to it. Unless the Supplier's request was attributable to the Customer's non-compliance with the Customer's obligations, neither the Supplier's charges or any other terms of this agreement shall vary as a result of such change.

6Charges and Payment

6.1Subject to any agreed change pursuant to clause 5 above and the terms of this clause 6, in consideration of the provision of the Services by the Supplier, the Customer shall pay either:

6.1.1the fixed price; or

6.1.2subject to an estimate to be agreed in advance with the Customer, a fee based on the standard daily rates of the Supplier’s Team

as set out in Part 1 of Schedule 2 and in accordance with the payment terms set out in Part 2 ofSchedule 2. Should no payment terms be set out in Part 2 of Schedule 2, the default payment terms in Part 3 of Schedule 2 shall apply.

7Quality of Services

7.1The Supplier warrants to the Customer that:

7.1.1the Supplier will perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry for similar services;

7.1.2the Services will conform with all descriptions and specifications provided to the Customer by the Supplier; and

7.1.3the Services will be provided in accordance with all applicable legislation from time to time in force, and the Supplier will inform the Customer as soon as it becomes aware of any changes in that legislation.

7.2The Customer's rights under this agreement are in addition to the statutory terms implied in favour of the Customer by the Supply of Goods and Services Act 1982 and any other statute.

7.3The provisions of this clause 7 shall survive any performance, acceptance or payment pursuant to this agreement and shall extend to any substituted or remedial services provided by the Supplier.

8[Drafting note: A Customer should choose either to use the first option wording below, which grants it an assignment of Intellectual Property Rights in the products of the Services, or alternatively, use the second option which grants a mere licence of those rights. Assignment will give ownership to the Customer of all rights in the products of the Services. It will be appropriate if the Supplier has produced bespoke products specifically for the Customer’s sole use and/or there is any other reason why the Customer will require ownership of the products, for example if the Customer wishes to license use of the product to any third party.
The Supplier will more easily be able to argue that only a licence should be granted where the products supplied are more generic in nature so that the Supplier supplies the same products to parties other than the Customer and will need the ability to continue to do so after a supply to the Customer.]

9Intellectual Property Rights

9.1The Supplier assigns to the Customer, with full title guarantee and free from all third party rights, the Intellectual Property Rights and all other rights in the products of the Services.

9.2At its own expense, the Supplier shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this agreement, including securing for the Customer all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to the Customer in accordance with clause 9.1.

9.3The Supplier shall obtain waivers of any moral rights in the products of the Services to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.

OR

8.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the products of the Services shall be owned by the Supplier.

8.2The Supplier licenses all such Intellectual Property Rightsand all other rights in the products of the Services to the Customer free of charge and on a non-exclusive, worldwide basis to enable the Customer to make full use of the Services as intended by the parties. If the Supplier terminates this agreement under clause 13.1.5 as a result of a material breach by the Customer,this license will automatically terminate.

10Indemnity and Insurance

10.1The Supplier shall indemnify and hold the Customer harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the Customer as a result of or in connection with:

10.1.1any alleged or actual infringementof any third party's Intellectual Property Rights or other rights arising out of the use or supply of the products of the Services; or

10.1.2any claim made against the Customer in respect of any liability, loss, damage, injury, cost or expense sustained by the Customer's employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the provision of the Services as a consequence of a breach or negligent performance or failure or delay in performance of this agreement by the Supplier.

10.2The Supplier shall maintain in force, with a reputable insurance company, insurance cover in accordance with the requirements ofSchedule 4and shall, on the Customer's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium.

10.3The provisions of this clause 10 shall survive termination of this agreement, however arising.

11Confidentiality

11.1Each party shall safeguard and keep confidential the terms of this agreement and any and all confidential information that it may acquire in relation to the business or affairs of the other party. Neither party shall use or disclose the other party's confidential information except to the extent that such use or disclosure is necessary for the purposes of performing its obligations or exercising its rights under this agreement. Each party shall ensure that its officers and employees and any other persons to whom the confidential information is disclosed comply with the provisions of this Clause 11.

11.2The obligations on a party set out in Clause 11.1shall not apply to any information to the extent that such information:

11.2.1is publicly available or becomes publicly available through no act or omission of that party;

11.2.2is required to be disclosed by law.

11.3The provisions of this Clause 11 shall survive any termination of this agreement.

12Anti-bribery

12.1The Supplier warrants that it shall:

12.1.1comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;

12.1.2have and shall maintain in place throughout the term of this agreement policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010 and will enforce them where appropriate;

12.1.3ensure that all persons associated with it and other persons who are performing services in connection with this agreement comply with clause 12.1.1 throughout the operation of this agreement;

12.1.4immediately notify the Customer if a foreign public official becomes an officer or employee of the Supplieror acquires a direct or indirect interest in the Supplier (and the Supplier warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this agreement); and

12.1.5within one month of the date of this agreement, and annually thereafter, certify to the Customer in writing signed by an officer of the Supplier, compliance with clause 11.1 by the Supplier and all persons associated with it and all other persons for whom the Supplier is responsible under clause 1.1.3. The Supplier shall provide such supporting evidence of compliance as the Supplier may reasonably request.

12.2Breach of clause 12.1 shall be deemed a material breach under clause 14.1.5.

12.3For the purpose of this clause11.1:

12.3.1the meaning of foreign public official and whether a person is associated with another person shall be determined in accordance with sections 6(5) and 6(6) of the Bribery Act 2010 and section 8 of that Act respectively; and

12.3.2a person associated with the Supplier includes but is not limited to any subcontractor of the Supplier.

12.4The Supplier shall indemnify, to the extent permitted by law, the Customer against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, any criminal and/or civil penalty imposed by a regulatory body or analogous organization and legal and other professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with any breach of the warranties contained in clause 11.1.