Commercial Training Terms And Conditions Agreement (version 6.1)

Impact Futures Group: Trading as Tend

Parties, Commencement and Duration

1. Date

1.1 The date of this Agreement is the date on which the Employer completes the online checkout process on the Training Provider’s website (the “Effective Date”).

2. Parties

2.1 This Agreement is made as a deed between:

2.2 Impact Futures Training Limited, incorporated and registered in England and Wales with company number 03131863, whose registered office is at Spaces, Floor 5, 156 Great Charles Street, 2nd Floor, Queensway, Birmingham, B3 3HN (the “Training Provider”); and

2.3 The Employer, being the legal entity that completes the online checkout process on the Training Provider’s website, and whose details (including company name, registered office address, company number and number of employees) are provided during that process (the “Employer”).

2.4 Each a “Party” and together the “Parties”. By submitting its details and completing the online checkout process, the Employer acknowledges and agrees that it is entering into this Agreement with the Training Provider.

3. Commencement and Duration

3.1 This Agreement shall commence on the Commencement Date and shall continue unless terminated either:

3.1.1 by one Party serving on the other not less than 30 days’ notice to terminate this Agreement, such notice to expire no earlier than the first anniversary of the commencement of this Agreement; or

3.1.2 pursuant to Schedule 2.

Definitions and Interpretations

4. Interpretation

4.1 The definitions and rules of interpretation set out in Schedule 1 shall apply in this Agreement.

Ordering, Invoicing and Payment

5. Ordering Services

5.1 The Employer may order any of the Training Services by making a request (‘a Request for Services’) to the Training Provider pursuant to this clause 5.

5.2 The Training Provider shall provide the Agreed Services from the date specified in the Request for Services that relates to those services.

5.3 The Training Provider and the Employer shall negotiate in good faith each Request for Services and:

5.3.1 the Employer shall provide the Training Provider with such information as it may reasonably require to enable it to assess the prior learning of any Learner or prospective Learner; and

5.3.2 without any obligation on either Party to agree, both Parties shall sign and date the draft Request for Services once it is agreed.

5.4 When a Request for Services has been agreed and signed in accordance with clause 5.4, the services specified in that Request for Services shall be Agreed Services and the date of the signed Request for Services shall be the Request for Services Agreement Date.

5.5 Each Request for Services shall form part of this Agreement and shall not form a separate contract.

5.6 The Employer shall, for the duration of this Agreement, procure all of its requirements in the United Kingdom for the type of services constituting the Agreed Services (and any equivalent services) only from the Training Provider, to the extent that the Training Provider is willing and able to provide such services.

6. Changes to Services

6.1 If the Employer or the Training Provider wishes to change this Agreement or the Agreed Services, it may at any time request such change in accordance with the Change Procedure set out in Schedule 4.

6.2 Notwithstanding any other provisions of this Agreement, where the Training Provider reasonably considers that a change to the Agreed Services is required taking effect after the Request For Services Agreement Date the Training Provider shall be entitled by notice in writing to the Employer (‘a Mandatory Change Notice’) to make such changes as it may reasonably decide are necessary to comply as specified in such Mandatory Change Notice with effect from a time specified in that notice. The Employer shall pay the Training Provider such amount as the Training Provider may reasonably determine to be the additional cost (if any) of providing the Agreed Services as so varied (‘the Mandatory Additional Cost Payment’).

6.3 Should the learner not engage with their training nor make any progress within the first 12 weeks, this will be reviewed and the learner put at risk of withdrawal from their course. There will be no refund to the employer if the learner is withdrawn.

7. Charges, Invoicing and Payment

7.1 In consideration for the provision of the Agreed Services, the Training Provider shall be entitled to invoice the Employer for the whole of the Charges and the Additional Charges and the Employer shall pay such invoices within 30 days of receipt of such invoice.

7.2 The Employer is responsible for payment of the Charges.

7.3 The Training Provider shall be entitled to invoice the Employer for the Charges and Additional Charges in accordance with the Payment Schedule and otherwise at any time for services rendered at any time before the end of the most recently ended month and the Employer shall pay such invoices within 30 days of receipt provided.

7.4 The Charges are stated exclusive of applicable VAT.

7.5 The Training Provider shall promptly on request provide a VAT invoice to the Employer in respect of such of the Charges and the Additional Charges for the Agreed Services as are subject to VAT.

7.6 Without prejudice to the obligation on the Employer to pay the Charges and Additional Charges, the Employer shall provide such assistance to the Training Provider as the Training Provider may reasonably require to obtain any payment to which it may be entitled in respect of the Agreed Services.

7.7 Should the learner exceed their planned course duration, an extension may be requested by the employer, and agreed at the discretion of the Training Provider, and an additional extension charge will be applied for this service.

7.8 Without prejudice to any other rights of the Training Provider, any invoice that is not paid when due shall bear interest at the rate of 3 per cent above the base rate for the time being of HSBC UK Bank plc (but at 3 per cent for any period when such base rate is below zero per cent).

8. Training Provider Responsibilities

8.1 The Training Provider shall:

8.1.1 provide the Agreed Services in all material respects in accordance with the applicable Request for Services and Good industry Practice;

8.1.2 use all reasonable endeavours to meet any performance dates specified in a Request for Services but these dates are estimates only. Time is not of the essence for the performance of the Training Provider’s obligations;

8.1.3 specify in the Request for Services a manager (‘the Services Manager’), to act on behalf of the Training Provider in all matters relating to the Agreed Services and use reasonable endeavours to ensure that the same person acts as the Services Manager for the duration of the Agreed Services; and

8.1.4 observe all health and safety and security requirements that apply at any of the Employer’s premises that have been communicated to it under clause 10.1.5, provided that it shall not be liable under this Agreement if, as a result of such observance, it is in breach of any of its obligations under this Agreement.

8.2 The Training Provider shall, at all times for the duration of this Agreement, have and maintain the following policies (as amended from time to time):

8.2.1 data and privacy policy; and

8.2.2 Training Provider complaints policy.

9. Subcontracting by the Training Provider

9.1 If any subcontractor is used by the Training Provider to provide any of the Agreed Services the Training Provider warrants that:

9.1.1 it has the knowledge, skills and experience of contracting with, and managing, delivery subcontractors;

9.1.2 it has not assessed that subcontractor as unsuitable and that the quality of that subcontractor’s delivery is not demonstrably inadequate;

9.1.3 it will directly deliver some of the Training associated with each Employer’s training programme;

9.1.4 it will not use a subcontractor for the delivery of the Agreed Services unless that subcontractor satisfies the criteria for using delivery subcontractors;

9.1.5 it will manage, monitor and regularly assess for quality its delivery subcontractors through visits and face to face interviews to ensure high-quality delivery;

9.1.6 it will not permit any subcontractor to subcontract the performance of its obligations; and

9.1.7 the contract with the subcontractor will specify the matters required to be specified in that subcontract.

10. Employer Responsibilities

10.1 The Employer shall:

10.1.1 cooperate with the Training Provider in all matters relating to the Agreed Services;

10.1.2 specify in the Request for Services a manager (‘the Contract Manager’) to act on behalf of the Employer in all matters relating to the Agreed Services;

10.1.3 provide the Training Provider in a timely manner and at no charge with such access to the Employer’s premises, data and other facilities as the Training Provider may reasonably require;

10.1.4 provide the Training Provider in a timely manner and within no later than five Business Days with all such documents, information and materials in any form as the Training Provider may reasonably require;

10.1.5 inform the Training Provider of all health and safety and security requirements that apply at the Employer’s premises or otherwise for the purposes of this Agreement, such requirements and policies are as set out in Schedule 7;

10.1.6 ensure that all the Employer’s Equipment is in good working order and suitable for the purposes for which it is used;

10.1.7 ensure that the Learner is provided with suitable and appropriate Equipment as required to undertake the training;

10.1.8 obtain and maintain all necessary licences and consents and comply with all applicable laws as may be required to enable the Training Provider to provide the Agreed Services, the installation of the Training Provider’s Equipment, the use of all Employer Materials and the use of the Employer’s Equipment, in all cases before the date on which the Agreed Services are to start;

10.1.9 keep, maintain and ensure the Training Provider’s Equipment in accordance with the Training Provider’s instructions from time to time and not dispose of or use the Training Provider’s Equipment other than in accordance with the Training Provider’s written instructions or authorisation;

10.1.10 provide clear and prompt feedback on any draft Training Materials delivered by the Training Provider to the Employer;

10.1.11 respond promptly to any reasonable requests from the Training Provider for instructions or approvals required to provide the Services;

10.1.12 make any complaint to the Training Provider only in accordance with the Training Provider’s Complaints Policy provided comply with the Mandatory Policies in force from time to time;

10.1.13 for the duration of this Agreement, and for a period of two years after termination or expiry of this Agreement, the Employer shall not (and shall procure that none of its affiliates shall), without the prior written consent of the Training Provider: (a) solicit or entice away (or attempt to solicit or entice away) any person employed or engaged by the Training Provider (or any of its affiliates) (any such person, an ‘Employee’); or (b) employ or engage any Employee.

11. General Terms and Conditions

11.1 The general terms and conditions set out in Schedule 2 shall apply.

11.2 This Agreement has been entered into as a deed and delivered on the date stated at the beginning of it.

Schedule 1: Definitions and Interpretations

1. The definitions and rules of interpretation set out below shall apply in this Agreement.

1.1.1 Actual End Date means the date on which the Learner completes the period of training;

1.1.2 Achievement Date means the date on which the Learner completes the training;

1.1.3 Additional Charges means the following expenses and costs not included in the Charges: (i) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Training Provider in connection with the Agreed Services, provided that the Training Provider obtains the Employer’s prior written approval before incurring any such Additional Charges; and (ii) the cost to the Training Provider of any materials or services procured by the Supplier from third parties for the provision of the Agreed Services, provided that the Training Provider obtains the Employer’s prior written approval before incurring any such third party costs;

1.1.4 Agreed Services means the Training Services and any other services to be provided by the Training Provider pursuant to clause 5, including unless the context otherwise requires services which are incidental or ancillary to the Training Services and ‘the Agreed Services’ shall mean all Agreed Services agreed pursuant to every Request for Services under this Agreement as varied by any applicable Change Note or Mandatory Change Notice;

1.1.5 Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

1.1.6 Business Hours means the period from 9.00 am to 5.00 pm on any Business Day;

1.1.7 Change Note means a Change Note pursuant to clause 6 and Schedule 4;

1.1.8 Charges means the charges specified in a Request for Services for the Agreed Services together with any Mandatory Additional Cost Payment;

1.1.9 Commencement Date means the date of this Agreement;

1.1.10 Commitment Statement means the statement agreed between the Parties as set out in Schedule 6;

1.1.11 Control shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly;

1.1.12 Confidential Information means any information that a Party has or acquires before, on or after the date of this Agreement that is confidential in nature concerning the other Party including, without limitation, its business, affairs, customers, clients, suppliers, plans or strategy or that of any member of the group of companies to which the other Party belongs;

1.1.13 Employer’s Equipment means any equipment, including tools, systems, cabling or facilities, provided by the Employer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Agreed Services including any such items specified in a Request for Services;

1.1.14 Employer Materials means all documents, information, items and materials in any form, whether owned by the Employer or a third party, which are provided by the Employer to the Training Provider in connection with the Agreed Services, including the items provided pursuant to clause 12;

1.1.15 Force Majeure Event means any circumstance not within a Party’s reasonable control including, without limitation:

(a) acts of God, flood, drought, earthquake or other natural disaster;

(b) epidemic or pandemic;

(c) terrorist attack, civil commotion or riots, war, threat of or preparation for war;

(d) nuclear, chemical or biological contamination;

(e) any law or any action taken by a government or public authority;

(f) collapse of buildings, fire, explosion or accident;

(g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the Party seeking to rely on this clause or companies in the same group as that Party);

(h) non-performance by suppliers or subcontractors (other than by companies in the same group as the Party seeking to rely on this clause); and

(i) interruption or failure of utility service;

1.1.16 Good Industry Practice means standards, practice methods and procedures conforming to applicable legal requirements and that degree of care and skill diligence and prudence which would be reasonably expected of an experienced person engaged in providing services similar in nature to the Training Services in a similar type and size of undertaking and under the same or similar circumstances as anticipated by this Agreement;

1.1.17 Intellectual Property Rights (IPRs) means patents, rights to inventions, copyright and moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential Information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

1.1.18 Learner means an individual employed by the Employer or by a connected company or charity;

1.1.19 Mandatory Additional Cost Payment shall have the meaning given in clause 6.2;

1.1.20 Mandatory Change Notice shall have the meaning given in clause 6.2;

1.1.21 Mandatory Policies means the Training Provider’s business policies listed in Schedule 7, as amended by notice to the Training Provider from time to time;

1.1.22 Request for Services means a request for services made in accordance with clause 5;

1.1.23 Request For Services Agreement Date means the date which is the Request For Services Agreement Date pursuant to clause 5.5;

1.1.24 Training Provider’s Equipment means any equipment, including tools, systems, cabling or facilities, provided by the Training Provider to the Employer and used directly or indirectly in the supply of the Agreed Services, including any such items specified in a Request for Services but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Employer;

1.1.25 Training Materials means all documents, information, items and materials in any form, whether owned by the Training Provider or a third party, which are used by the Training Provider in connection with the Agreed Services;

1.1.26 Training Services means the services provided against the agreed program;

1.1.27 VAT means value added tax chargeable under the Value Added Tax Act 1994.

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

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 The 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.

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

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

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

1.8 This Agreement shall be binding on, and ensure to the benefit of, the Parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any Party shall include that Party’s personal representatives, successors and permitted assigns.

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

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

1.11 A reference to writing or written does not include fax and email.

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

1.13 A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference of this Agreement or such other Agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.

1.14 References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.

1.15 Any 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.

Schedule 2: General Terms and Conditions

1. Intellectual Property Rights

1.1 In this paragraph 1 ‘its Materials’ means, in relation to the Training Provider; the Training Materials, and in relation to the Employer; the Employer Materials.

1.2 Each Party (or its licensors, as applicable) shall retain ownership of all IPRs in its Materials.

1.3 Each Party hereby grants to the other a non-exclusive, non-transferable, royalty-free licence to use its Materials to the extent reasonably necessary for the Training Provider to provide the Agreed Services, provided that in the case of the Training Provider, such licence shall be granted subject to the Training Provider receiving payment of all Charges and Additional Charges (as applicable).

1.4 Each Party:

1.4.1 warrants that the receipt and use in the performance of this Agreement by the other, its agents, subcontractors or consultants of its Materials will not infringe the Intellectual Property Rights, of any third party; and

1.4.2 shall keep the other indemnified against all damages, costs, claims and expenses suffered or incurred by it as a result of any actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this Agreement of its Materials, provided that the Training Provider’s liability under this indemnity will be reduced to the extent that any losses are caused by the failure of the other Party to comply with paragraph 1.5 below.

Notwithstanding the above, the Training Provider shall not be liable to the extent that the infringement arises from: (i) any changes made to the Training Materials without the Training Provider’s prior written consent; (ii) compliance with the Employer’s specifications or instructions for the development of the Training Materials; (iii) the use of the Training Materials in combination with any other materials not supplied or approved in writing by the Training Provider; or (iv) the use of the Training Materials for a purpose or in a manner not authorised in writing by the Training Provider.

1.5 If a third party brings a claim against the Employer or notifies the Employer of its intention to do so, and that claim may reasonably be considered likely to give rise to a liability under an indemnity in this paragraph, the Employer shall:

1.5.1 as soon as reasonably practicable, notify the Training Provider of the claim, specifying the nature of the claim in reasonable detail;

1.5.2 allow the Training Provider to conduct all negotiations and proceedings in relation to the claim and to settle or compromise the claim;

1.5.3 not make any admission of liability, settlement or compromise in relation to the claim without the prior written consent of the Training Provider; and

1.5.4 provide the Training Provider with reasonable information, assistance and co-operation in responding to and defending claim.

2. Data Protection and Data Processing

2.1 The Parties shall comply with the Data Protection Wording set out at Schedule 3.

3. Confidentiality

3.1 Each Party undertakes that it shall not at any time during this Agreement, and for a period of five years after termination of this Agreement, disclose to any person any Confidential Information of the other Party or of any member of the group of companies to which the other Party belongs, except as permitted by paragraphs 3.2 and 3.3.

3.2 Each Party may disclose the other Party’s Confidential Information:

3.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Party’s rights or carrying out its obligations under or in connection with this Agreement provided that such Party shall procure that its employees, officers, representatives or advisers to whom it discloses the other Party’s Confidential Information comply with this paragraph 3; and

3.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

3.3 Each Party may disclose the other Party’s Confidential Information if, to the extent to which either Party can prove to the other’s reasonable satisfaction that the Confidential Information:

3.3.1 is, or has become, generally available to the public other than as a direct or indirect result of the information being disclosed by a Party or its representatives in breach of this Agreement;

3.3.2 was available on a non-confidential basis to a Party prior to disclosure to it by the other Party;

3.3.3 is developed by or for a Party independently of the Information disclosed by the other Party; or

3.3.4 the Parties agree in writing that the Information is not confidential.

4. Anti-bribery and anti-corruption

4.1 Each Party undertakes that it shall:

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

4.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK.

5. Limitation of Liability

5.1 Nothing in this Agreement shall limit or exclude either Party’s liability for:

5.1.1 death or personal injury caused by its negligence;

5.1.2 its payment obligations under this agreement;

5.1.3 fraud or fraudulent misrepresentation; or

5.1.4 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

5.2 Subject to paragraph 5.1, the Training Provider shall not be liable to the Employer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:

5.2.1 loss of profits; sales or business; anticipated savings; loss of business or business opportunity; goodwill;

5.2.2 loss of use or corruption of software, data or Information; or

5.2.3 any indirect or consequential loss.

5.3 Subject to paragraph 5.1, the Training Provider’s total liability to the Employer, whether in contract, tort (including negligence), for breach of statutory duty, misrepresentation or otherwise, arising under or in connection with the performance or contemplated performance of this Agreement shall be limited to the total Charges paid for the Agreed Services pursuant to the Request for Services for the relevant Learner during the six months immediately preceding the date on which the claim arose.

5.4 The terms implied by section 3, 4 and 13 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.

6. Termination

6.1 Without affecting any other right or remedy available to it, either Party may terminate this Agreement in its entirety or only in relation to the Agreed Services agreed pursuant to any Request for Services with immediate effect by giving written notice to the other Party if:

6.1.1 the other Party commits a material breach of any term of this Agreement, and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

6.1.2 the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

6.1.3 the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.

6.2 Without affecting any other right or remedy available to it, the Training Provider may terminate this Agreement with immediate effect by giving written notice to the Employer if:

6.2.1 the Employer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; and/or

6.2.2 there is a change of control of the Employer.

7. Consequences of Termination

7.1 On termination or expiry of this Agreement:

7.1.1 unless expressly stated otherwise in the termination notice this Agreement shall continue in relation to any uncompleted Agreed Services agreed pursuant to every Request for Services until those services are completed, provided that the Training Provider shall be entitled to cease to perform these Agreed Services on notice in writing;

7.1.2 the Employer shall immediately pay to the Training Provider all Charges due in respect of the Agreed Services or otherwise and whether or not the Training Provider is entitled to be paid any of those charges out of the Levy Funding or Government-Employer Co-Investment;

7.1.3 the Employer shall promptly return all of the Training Provider’s Equipment, and if the Employer fails to do so, the Training Provider may enter the Employer’s premises and take possession of the Training Provider’s Equipment;

7.1.4 until the Training Provider’s Equipment has been returned or repossessed, the Employer shall be solely responsible for its safekeeping; and

7.1.5 the Training Provider shall on request return any of the Employer Materials not used up in the provision of the Agreed Services.

7.2 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

8. Employer Delay and Force Majeure

8.1 If a Party (‘the Affected Party’) is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event, the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. Without prejudice to paragraph 8.3, the time for performance of such obligations shall be extended while the effects of Force Majeure Event prevails.

8.2 The corresponding obligations of the other Party shall be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

8.3 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than three months, the Party not affected by the Force Majeure Event may terminate this Agreement by giving one month written notice to the Affected Party and paragraph 7 shall apply.

8.4 Notwithstanding the other provisions of this paragraph 8, if the Training Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Employer, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, the Training Provider shall be allowed an extension of time to perform its obligations equal to the delay caused by the Employer or further if reasonably required by the Training Provider.

9. Assignment and Other Dealings

9.1 Subject to paragraph 9.2, neither Party may assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the consent of the other Party.

9.2 The Training Provider may, in accordance with the other provisions of this Agreement, sub-contract performance of the Agreed Services to any sub-contractor with the consent of the Employer such consent not to be unreasonably withheld and provided for the avoidance of doubt that the Training Provider shall remain responsible for the performance of the Agreed Services by that sub-contractor.

9.3 If any subcontractor undergoes a change of circumstances that affects its ability to continue to deliver any of the Agreed Services, the Training Provider shall be entitled to make such alternative delivery arrangements for each affected Learner as it may reasonably decide.

10. Variation

10.1 Subject to clause 6, no variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

11. Waiver

11.1 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

11.2 A failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

12. Severance

12.1 If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

13. Entire Agreement

13.1 This Agreement constitutes the entire Agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

13.2 Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

14. Partnership and Agency

14.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between either of the Parties, constitute either Party the agent of the other, or save as otherwise expressly provided authorise either Party to make or enter into any commitments for or on behalf of the other.

14.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

15. Third-Party Rights

15.1 No one other than a Party or their respective successors and permitted assignees shall have any right to enforce any of the terms of this Agreement.

16. Notices

16.1 Any notice given to a Party under or in connection with this Agreement shall be in writing and shall be delivered:

16.1.1 by hand or by pre-paid first-class recorded or other next Business Day signed for delivery service at its registered office (if a company) or its principal place of business (in any other case); and

16.1.2 sent by email to the address specified by the parties from time to time.

16.2 Any notice shall be deemed to have been received: on signature of a delivery receipt or if sent by email with a confirmed read receipt or confirmation, at the time of transmission, or if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 16.2 business hours means 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.

16.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

17. Counterparts

17.1 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.

17.2 No counterpart shall be effective until each Party has executed and delivered at least one counterpart.

18. Disputes

18.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it, the Parties shall follow the procedure set out in Schedule 5.

19. Governing Law and Jurisdiction

19.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

19.2 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

Schedule 3: Data Protection Wording

The definitions set out at Schedule 1 of this Agreement shall apply to this Schedule 3. In addition, the following definitions shall also apply:

Agreed Purposes: means the purposes set out in the section titled “Purpose” in Appendix 1 to this Schedule and such other purpose as the Parties may agree in writing from time to time.

Controller: has the meaning given in the applicable Data Protection Law;

Data Discloser: a Party who discloses Personal Data to the other under or in connection with this Agreement.

Processor: has the meaning given in the applicable Data Protection Law;

Data Protection Law: means the General Data Protection Regulation EU 2016/679 (GDPR) and any national laws or regulations implementing or constituting a replacement or successor data protection regime to that governed by GDPR (including the Data Protection Act 2018);

Data Receiver: a Party who receives Personal Data from the other under or in connection with this Agreement.

Data Subject: means an identified or identifiable natural person about whom Personal Data is processed; an identifiable natural person is one who can be identified, directly or indirectly, by reference to the Personal Data;

Joint Data Controller: has the meaning given in the applicable Data Protection Law;

Learner Personal Data: means Personal Data about Learners of the Employer;

Personal Data: has the meaning given in the applicable Data Protection Law;

Processing: has the meaning given in the applicable Data Protection Law;

Processor: has the meaning given in the applicable Data Protection Law;

Special Category Personal Data: Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership; genetic or biometric data processed for the purpose of uniquely identifying a natural person; data concerning a natural person’s physical or mental health or condition, sex life or sexual orientation;

Shared Personal Data: the Personal Data to be shared between the parties for the Agreed Purpose, including the Learner Personal Data and the Staff Personal Data and such other Personal Data as agreed from time to time between the parties for the purpose of giving effect to this Agreement.

Staff Personal Data: Personal Data about the employees, consultants, agents and others engaged by one of the Parties.

Subject Rights Requests: means the exercise by a Data Subject of their rights under the Data Protection Law.

1. This Schedule sets out the framework for the sharing of Personal Data between the Parties as Data Controllers. It defines the principles and procedures that the Parties shall adhere to and the responsibilities the Parties owe to each other. Notwithstanding this paragraph, if and to the extent that the Parties determine in respect of any Processing of Personal Data that the relationship between them is one of Joint Controllers or between Controller and Processor, then they will cooperate in agreeing and documenting appropriate arrangements for that other relationship or those other relationships.

2. Each Party agrees to only process Shared Personal Data for the Agreed Purposes and such other purpose as the Data Subjects may consent from time to time.

3. Each Party shall comply with all applicable requirements of the Data Protection Law with respect to its Processing of the Shared Personal Data.

4. Each Party agrees to only Process the Shared Personal Data for the Agreed Purpose on the terms set out in this Agreement. This clause is in addition to, and does not relieve, remove or replace a Party’s obligations under the Data Protection Law.

5. The Data Discloser shall, in respect of Shared Personal Data, ensure that its privacy notices are clear and shall provide clear and sufficient information to the Data Subjects for them to understand what of their Personal Data the Data Discloser is sharing with the Data Receiver, the circumstances in which it will be shared, the purposes for the data sharing and the identity of the Data Receiver.

6. The Data Receiver undertakes to inform the Data Subjects, in accordance with the Data Protection Law, of the purposes for which it will Process their Personal Data, the legal basis for such purposes and provide all of the information that it must provide in accordance with Data Protection Law, to ensure that the Data Subjects understands how their Personal Data will be processed by the Data Receiver.

7. The Training Provider may, at its sole discretion, request that the Employer provide evidence in a form acceptable to the Training Provider of the Employer’s compliance with Data Protection Law.

8. Each Party agrees to provide such assistance as is reasonably required to enable the other Party to comply with Subject Rights Requests within the time limits imposed by the Data Protection Law.

Use of Data Processors and Sub-Processors

9. The Data Receiver shall not engage a third-party Data Processor to Process the Shared Personal Data without the prior written consent of the Data Discloser, provided that the Training Provider may appoint a Permitted Data Processor without requiring further consent from the Employer.

10. Where the Data Receiver (‘the Data Controller’ for the purpose of paragraphs 10 and 11) appoints a third party as Data Processor for the purpose of Processing Shared Personal Data it shall ensure that the Data Processor has in place appropriate technical and organisational measures to meet the requirements of Data Protection Law and protect Data Subject rights.

11. The Data Controller shall enter into a written agreement which provides that the Data Processor shall Process Shared Personal Data only in accordance with the following:

11.1 the Data Processor shall only Process the Shared Personal Data on documented instructions from the Data Controller, including with regard to transfers of Personal Data to a third country or an international organisation unless required to do so by applicable law to which the Data Processor is subject; in such a case, the Data Processor shall inform the Data Controller of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest;

11.2 the Data Processor shall ensure that persons authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

11.3 taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Data Processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:

11.3.1 the pseudonymisation and encryption of Personal Data;

11.3.2 the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

11.3.3 the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and

11.3.4 a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the Processing;

11.3.5 any specific measures set out in Appendix 1 to this Schedule 3;

11.4 with reference to paragraph 11.3.4, in assessing the appropriate level of security, account shall be taken in particular of the risks that are presented by Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed;

11.5 in the event of an actual or suspected Personal Data breach involving the Shared Personal Data, the Data Controller shall take overall responsibility for any Personal Data breach obligations under Data Protection Law. The Data Processor shall conform to the reasonable requirements of the Data Controller in respect of Personal Data breach notification requirements under Data Protection Law, including:

11.5.1 notifying the Data Controller without undue delay, and not later than 48 hours after having become aware of the Personal Data breach, to enable the Data Controller to fulfil its notification requirements to the ICO; and

11.5.2 the notification described in paragraph 11.5.1 shall at least:

(a) describe the nature of the Personal Data breach, including where possible: the categories and approximate number of Data Subjects concerned and the categories and approximate number of Personal Data records concerned;

(b) communicate the name and details of the data protection officer or other contact point where more information can be obtained;

(c) describe the likely consequences of the Personal Data breach; and

(d) describe the measures taken or proposed to be taken to address the Personal Data breach, including, measures to mitigate its possible adverse effects;

11.6 each Party shall be responsible for any obligation it has with regards to the rights of Data Subjects, save that if a Data Subject exercises, or purports to exercise any of their rights under Data Protection Law in respect of Personal Data then:

11.6.1 the Data Processor shall inform the Data Controller and the Data Controller may, at its discretion, provide any response to the Data Subject having regard to both the Data Controller’s and the Data Processor’s obligations under Data Protection Law;

11.6.2 the Data Processor shall not respond to the Data Subject unless instructed to do so by the Data Controller; and

11.6.3 the Data Processor shall promptly provide all Information in its possession or control that the Data Controller requires in order to respond to the Data Subject;

11.7 where the Data Controller seeks to implement a new type of Processing activity under this Agreement, in particular where the Data Controller is making use of new technologies, the Data Processor shall either:

11.7.1 carry out a data protection impact assessment (DPIA) assessing the impact of the envisaged processing activity on the protection of Personal Data; or

11.7.2 provide the Data Controller with all such cooperation and reasonable assistance as required to enable the Data Controller to carry out the DPIA and implement measures to mitigate the risks to Personal Data and the rights and freedoms of the Data Subjects; and

11.7.3 where the results of the DPIA indicate that the Processing activity will result in a high risk to the rights and freedoms of natural persons, the Data Processor shall assist the Data Controller in notifying the Processing activity to the Information Commissioner’s Office (ICO) and implementing the agreed measures, prior to the commencement of the new Processing activity.

11.8 the Data Controller and Data Processor shall take steps to ensure that any natural person acting under the authority of the Data Controller or the Data Processor who has access to Personal Data does not process them except on instructions from the Data Controller unless they are required to do so by applicable law;

11.9 the Data Processor shall not engage another Data Processor without first informing the Data Controller of any intended changes concerning the addition or replacement of other Data Processors, thereby giving the Data Controller the opportunity to object to such changes;

11.10 where a Data Processor engages another Data Processor for carrying out specific Processing activities on behalf of the Data Controller, the same data protection obligations as set out in this Agreement shall be imposed on that other Data Processor by way of a contract or other legal act under applicable law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the Processing will meet the requirements of Data Protection Law. Where that other Data Processor fails to fulfil its data protection obligations, the initial Data Processor shall remain fully liable to the Data Controller for the performance of that other Data Processor’s obligations;

11.11 taking into account the nature of the Processing, the Data Processor shall assist the Data Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Data Controller’s obligation to respond to requests for exercising the Data Subject’s rights laid down in Data Protection Law;

11.12 at the choice of the Data Controller, the Data Processor shall delete or return all the Personal Data to the Data Controller after the end of the provision of the Agreed Services relating to Processing, and delete existing copies unless applicable law requires storage of the Personal Data;

11.13 the Data Processor shall make available to the Data Controller all information necessary to demonstrate compliance with the obligations laid down under Data Protection Law and allow for and contribute to audits, including inspections, conducted by the Data Controller or another auditor mandated by the Data Controller; and

11.14 with regard to paragraph 11.11, the Data Processor shall immediately inform the Data Controller if, in its opinion, an instruction infringes Data Protection Law.

12. Where either Party is acting as a Data Processor on behalf of the other Party, the provisions of paragraph 11 shall apply directly between the Parties.

Appendix 1: Data Processing Particulars

Processing by the Training Provider

Scope:	Processing of Personal Data by the Training Provider under the terms of this Agreement whereby the Training Provider provides a programme of academic learning for training to Learners of the Employer.
Nature:	1. The collection, recording, Organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of Learner Personal Data in connection with the Training Provider providing a programme of academic learning for training, 2. The collection, recording, Organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of Employer Staff Personal Data in connection with the Training Provider providing a programme of academic learning for Learnerships to the Employer’s Learners
Purpose:	The provision by the Training Provider of a programme of academic learning for Learnerships to the Employer’s Learners Communication between the Training Provider and the Employer in relation to the provision by the Training Provider of a programme of academic learning for training to the Employer’s Learners [Other]
Period for which Shared Personal Data will be retained:	Learner Personal Data (other than the Training Records) until [six months] after the Learnership End Date, or until the Agreement terminates, whichever is earlier. Employer’s Staff Personal Data – for the period of time for which the Information is required to facilitate the running of the training or until this Agreement terminates (whichever is earlier), and for [6 months] thereafter.
Types of Personal Data:	Types of Personal Data to be processed including Special Categories – e.g. Name, date of birth, address, email, telephone number, job title, employer details, qualifications, training records, funding eligibility, salary information, health conditions, ethnicity, disability status, attendance data, performance data, assessment data, login credentials, IP addresses, safeguarding disclosures, and consent records.
Categories of Data Subject:	• Learners of the Employer. • Staff of the Employer. • Staff of the Training Provider.
Permitted Data Processors	• Any person providing the Training Services on behalf of the Training Provider; • IT service providers (for the purpose of hosting, supporting or maintaining the Training Provider’s IT systems, including any back-up and disaster recovery systems

Schedule 4: Change Procedure

1. Any discussions which may take place between the Employer and the Training Provider in connection with a possible change shall be without prejudice to the rights of either Party.

2. A request to amend this Agreement or the Agreed Services by either Party shall be made in writing to the other in the form of a note (‘a Proposed Change Note’).

3. Each Proposed Change Note shall state:

3.1 the name of the Party requesting the change;

3.2 the date of the request;

3.3 the reason for the change;

3.4 full details of the change;

3.5 the price, if any, of the change;

3.6 the likely impact of the change on other aspects of this Agreement including:

3.6.1 the timetable for the provision of the Agreed Services;

3.6.2 the effect on the Charges;

3.6.3 the Training to be provided;

3.6.4 the use of sub-contractors;

3.6.5 working arrangements;

3.6.6 other contractual issues; and

3.7 a timetable for implementation of the change.

4. The Training Provider and the Employer shall negotiate each Proposed Change Note in good faith and without any obligation on either Party to agree, both Parties shall sign the Proposed Change Note once it is agreed.

5. A Proposed Change Note when signed by the Employer and the Training Provider shall thereupon become a Change Note and shall constitute an amendment to this Agreement.

Schedule 5: Dispute Resolution Procedure

1. Either Party may give to the other written notice (‘a Dispute Notice’), setting out the nature and particulars of the disputed matter (‘the Dispute’) together with relevant supporting documents.

2. On service of a Dispute Notice, the Contract Manager and the Training Manager (together ‘the Managers’) shall attempt in good faith to resolve the Dispute.

3. If the Managers are unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the chief executive officer of the Employer and chief executive officer of the Training Provider (together ‘the chief executive officers’) who shall attempt in good faith to resolve it.

4. If the chief executive officers are unable to resolve the Dispute within 30 days of it being referred to them, the Parties shall attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure.

5. Unless otherwise agreed between the Parties, the mediator shall be nominated by CEDR, and the process conducted in accordance with the following:

5.1 to initiate the mediation, a Party shall serve notice in writing (‘an ADR notice’) to the other Party to the Dispute, requesting a mediation;

5.2 a copy of the ADR notice should be sent to CEDR; and

5.3 the mediation will start not later than 30 days after the date of the ADR notice.

6. If the Dispute is not resolved within 90 days after service of the ADR notice, or either Party fails to participate or to continue to participate in the mediation before the expiration of the said period of 90 days, or the mediation terminates before the expiration of the said period of 90 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 18.

The commencement of mediation shall not prevent the Parties commencing or continuing court proceedings in relation to the Dispute at any time.

Schedule 6: The Commitment Statement

1. The Parties shall agree a commitment statement (a ‘Commitment Statement’), which shall comprise:

1.1 the planned content and schedule for eligible Training;

1.2 what is expected from and offered by the Employer, Training Provider (and any subcontractors) and the Learner to achieve the training;

1.3 a summary of:

1.3.1 details of the training being followed, including start and end-dates for the training and (where applicable), dates relating to the practical period of Training and key milestones for mandatory or other qualification achievements;

1.4 roles and responsibilities for the Employer, Training Provider and Learner and arrangements for how the three parties will work together. This must include contact details and the expected commitment from each Party to ensure the smooth running and day-to-day delivery of the training, including:

1.4.1 Learner: attendance and study time;

1.4.2 Employer: commitment to wages and time off to study in the working day; and

1.4.3 Training Provider: support and guidance available and how to access this.

1.5 details of tripartite progress reviews (Training provider, Employer, Learner), including the frequency and format, to discuss progress to date against the Commitment Statement and the immediate next steps required;

1.6 the process for resolving any queries or complaints regarding the training, including quality; this must include details of the escalation route within the Training Provider’s own organisation.

Schedule 7: Mandatory Policies

The Mandatory Policies are the mandatory policies of the Training Provider in place from time-to-time and notified to the Employer, including:

• Health and Safety Policy;
• Equal Opportunities Policy
• Anti-Harassment and Anti-Bullying;
• Anti-Corruption and Bribery Policy;
• Anti-Slavery and Human Trafficking Policy
• Whistleblowing Policy;
• Grievance Policy;
• Accident Reporting Policy;
• Environmental and Sustainability Policy; and
• Data Protection Policy

Execution

By completing the online checkout process on the Training Provider’s website, and by actively selecting the box confirming acceptance of these terms and conditions, the Employer agrees to enter into this Agreement as a deed with the Training Provider.

Such electronic acceptance shall have the same legal force and effect as if this Agreement had been signed by hand by the Employer.

This Agreement is deemed executed and delivered by the Parties on the Effective Date.

To follow