1. Definitions and Interpretation

1.1 The definitions and rules of interpretation in this clause apply to this agreement:
Apprentice means a person who works under an Apprenticeship Agreement entered into with the Employer. 

Apprentice End Point Assessment Organisation (EPAO) means any organisation on the Register of Apprentice End Point Assessment Organisations which is selected by an Employer and contracted by the Training Provider to carry out End-Point Assessment.

Apprenticeship means the training and end-point assessment for an employee as part of a job with an accompanying skills development programme.

Apprenticeship Agreement means (a) an approved English apprenticeship agreement; or (b) an apprenticeship agreement within the meaning given in section 32 of the Apprenticeship, Skills, Children and Learning Act 2009, as it applies in relation to England by virtue of provision made under section 115(9) of the Deregulation Act 2015.

Apprenticeship Programme means a programme of Training set out in Schedule 1 or agreed pursuant to clause 5.

Apprenticeship Programme Completion Date means the date on which the last Apprentice successfully completes the relevant End-Point Assessment (including following any resits necessary for such successful completion).

Approved Apprenticeship Standard has the meaning given in Section A1 of the Apprenticeships, Skills, Children and Learning Act 2009.

Break in Learning means a period of time during an Apprenticeship Programme in which the Apprentice is not undertaking any training or learning with the Training Provider and where at the time of notification the Apprentice intends to resume participation in the Apprenticeship at some point in the future. By way of example only, this may be due to illness, pregnancy or other reason which makes them temporarily unable to continue with the Apprenticeship;

Bribery Act the Bribery Act 2010 and any subordinate legislation made under that Act from time to time together with any guidance or codes of practice issued by the relevant government department concerning the legislation.

Charges means the full cost of the Services provided in accordance with the Apprenticeship Programme(s) as set out the relevant Apprenticeship Programme including the cost of any resits pursuant payable to clause 4.1.9 and additional costs pursuant to clause 21.2;

Contract Particulars means the particulars of this agreement as set out and attached to this agreement above.

Contract Terms means these contract terms from clause 1 to 20 (inclusive).

Data Controller, Data Processor and Data Subject have the meanings as defined in the Data Protection Legislation.

Data Protection Legislation – the Data Protection Act 1998 from the date of this agreement up to and including 24 May 2018 or the General Data Protection Regulation (CEU) 2016/679)) on and from 25 May 2018 and any national implementing laws, regulations and secondary or related legislation, as amended or updated from time to time.

Personal Data and Processing have the meanings as defined in the Data Protection Legislation.

Employer’s Digital Account the part of the ESFA’s apprenticeship service which shows the amount of Funding available to the Employer to spend on Training of Apprentices.

Employer’s Representative means the person stated as the Employer’s representative in the Contract Particulars or notified to the Training Provider from time to time.

End-Point Assessment the independent assessment of the Apprentice’s knowledge, skills and behaviours carried out by an Apprentice Assessment Organisation (AAO) at the end of the training to confirm that the Apprentice has met the requirements of any relevant Approved Apprenticeship Standard.

ESFA means the Secretary of State for Education, acting through the Educations and Skills Funding Agency, an executive agency of the Department for Education, whose principal address is at Cheylesmore House, Quinton Road, Coventry, CV1 2WT.

ESFA Contingency means the action following change in employer, apprentice or provider circumstances set out in the Funding Rules (on page 33 after paragraph P206 in Version 3 of the Funding Rules)

ESFA Contingency Event means each scenario described in each ESFA Contingency.

Funding the funding paid to the Training Provider on behalf of the Employer towards the cost of Training and End-Point Assessment in accordance with this agreement.

Funding Rules the Apprenticeship Funding and Performance Management Rules for Training Provider and, where applicable, the Apprenticeship Funding: Rules for Employer-Providers, both as revised and amended from time to time and available at: https://www.gov.uk/guidance/apprenticeship-funding-rules

Incentive Payment means an incentive payment made available to employers and paid to Training Provider on employers’ behalf by the ESFA such as the apprenticeship grant for employers (AGE) or incentives for hiring a new apprentice, paid directly to the employer by the ESFA, after being claimed on the Apprenticeship Service https://www.gov.uk/guidance/incentive-payments-for-hiring-a-new-apprentice

Intellectual Property Rights means any and all intellectual property rights of any nature anywhere in the world whether registered, registerable or otherwise, including patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites.

Law means all statutes, statutory instruments, regulations, byelaws, rules, judicial rulings and orders made under any statute, directive or by any competent legislative or judicial body in England and Wales.

Mandatory Policies means the policies of the Training Provider set out in Schedule 2 or made known to the Employer from time to time;

Resits means when an apprentice sits an exam/test for a qualification or End-Point Assessment again, but no additional learning takes place.

Retakes means that additional learning takes place prior to an apprentice resitting the exam/test for a qualification or End-Point Assessment a second or even a third time.

Services the provision of training services in respect of the Apprenticeship Programmes, as further detailed in Schedule 1.

Training means the delivery of training and on-programme assessment by the Training Provider to one or more Apprentices.

Training Provider’s Representative means the person stated as the Training Provider’s representative in the Contract Particulars or notified to the Employer from time to time.

Unfunded Charges means such parts of the Charges that have not been recovered from the ESFA for any reason other than the default of the Training Provider.

VAT means value added tax at the rate prevailing at the time of the relevant supply charged in accordance with the provisions of the Value Added Tax Act 1994;

1.2 Clause and Schedule headings do not affect the interpretation of this agreement.
1.3 References to clauses and Schedules are (unless otherwise provided) references to the clauses and Schedules of this agreement.
1.4 If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular.
1.6 A reference to a statute or statutory provision or the Funding Rules is a reference to it as amended, extended or re-enacted from time to time.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time.
1.8 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.
1.9 Words or phrases defined in the Funding Rules shall have the same meaning in this agreement.
1.10 a reference to a person includes firms, partnerships and corporations and their successors and permitted assignees or transferees.

2. Commencement and Duration

2.1 This agreement shall commence on the date stated in the Contract Particulars and shall continue until the later of:
2.1.1 the Expiry Date;
2.1.2 the latest Apprenticeship Programme Completion Date to occur provided that the relevant Apprenticeship Programme giving rise to such date has commenced prior to the Expiry Date.
2.2 The Expiry Date may be amended by agreement between the parties in writing.

3. Training Provider’s Obligations

3.1 The Training Provider shall deliver the Services to the Employer:
3.1.1 in accordance with and for the duration of the relevant Apprenticeship Programme;
3.1.2 using reasonable skill and care;
3.1.3 in compliance with the Funding Rules;
3.1.4 in compliance with the Law and associated codes and guidance from time to time in force.
3.2 The Training Provider shall enter into written agreements with all relevant:
3.2.1 Delivery Subcontractors (If applicable); and
3.2.2 Apprentice Assessment Organisations;
as specified in the relevant Apprenticeship Programme.
3.3 The Training Provider shall monitor the quality of Training delivered by a Delivery Subcontractor through such means as it considers appropriate including regular meetings, audits and observations of teaching, learning and assessment.
3.4 Subject to the Employer fulfilling the obligations set out in clause 4, the Training Provider shall use its reasonable endeavours to recover sums in respect of the Charges from the ESFA.

4. Employer Obligations

4.1 The Employer shall:
4.1.1 from the commencement of the relevant Apprenticeship Programme, employ and pay the Apprentice in accordance with the Law, agreed employment terms and conditions for the duration of the relevant Apprenticeship Programme which shall be not less than the period set out in the relevant Apprenticeship Programme (subject to earlier termination of this agreement in accordance with its terms and/or the Apprentice’s employment contract);
4.1.2 promptly do all acts and not omit to do anything reasonably requested of the Employer by the Training Provider for the purposes of the Training Provider’s:
(a) compliance with the Funding Rules; and
(b) obtaining any payment to which it may be entitled under the Funding Rules;
4.1.3 enter into and procure that each Apprentice enters into:
(a) an Apprenticeship Agreement; and
(b) a commitment statement as required by the Funding Rules,
Each of which must be in place for the entire length of the Apprenticeship and meet the requirements of the Funding Rules and made available to the Training Provider on request;
4.1.4 provide such training and/or carry out such actions as are assigned to the Employer in the Apprenticeship Programme and in any event support each Apprentice in their learning and development to the reasonable satisfaction of the Training Provider;
4.1.5 notify in writing the Training Provider of any Break in Learning;
4.1.6 confirm promptly on request by providing signed declarations to the Training Provider:
(a) each Apprentice’s eligibility for apprenticeship funding;
(b) any eligibility for 16-18-year-old incentive payments (if applicable);
(c) the average number of employees employed by the Employer in the three years immediately preceding the first day of an Apprenticeship and (if applicable) the Employer’s eligibility for small employer incentive payment;
(d) any other matters on which the Training Provider requires written evidence that is in the possession of the Employer in order for the Training Provider to comply with the Funding Rules;
(e) the address or addresses where the Apprentice shall be carrying out their working hours; and
(f) whether learning support is available to support Apprentices with additional learning needs,
4.1.7 ensure, and on request confirm, that:
(a) the Apprentice is employed for a minimum of 30 hours per week and that training both on and off the job is included in those hours of employment;
(i) if the apprentice works fewer than 30 hours a week the minimum duration must be extended (pro rata)
(ii) if the apprentice works on a temporary period of part-time working the minimum duration must be extended (pro rata)
(iii) the average weekly working hour must not be less than 16 hour per week.
(b) the funding for the Apprenticeship is not used to pay the apprentice’s wages;
(c) the Apprentice is enabled to complete the Apprenticeship within their working hours and make available time for the Apprentice to be able to complete the Apprenticeship Programme including:
(i) permitting 20% of each Apprentice’s employed hours to be used for off-the-job training;
(ii) releasing the Apprentice to the Training Provider for undertaking such training and courses with the Training Provider as referred to in the Apprenticeship Programme, Commitment Statement /Apprenticeship Agreement and the Individual Learning Plan;
(iii) providing the Apprentice the use of equipment necessary to enable the Apprentice to fulfil training objectives;
(iv) cooperating with the Training Provider to arrange for any necessary End-Point Assessment and allowing the Apprentice to attend the same
4.1.8 comply with the terms of any agreement between the Employer and the ESFA;
4.1.9 the Main Provider reserves the right to charge the Employer for non-attendance at agreed end-point assessments where the Main Provider has incurred a cost due to insufficient notice & the Employer is deemed accountable.
4.1.10 provide payment for resits for qualifications or End-Point Assessment required by the Approved Apprenticeship Standard where no extra learning takes place before the re-sit;
4.1.11 comply with the Mandatory Policies.
4.2 To secure an efficient working relationship between the Training Provider and the Employer and to protect the interests of the Apprentice, the Employer shall:
4.2.1 cooperate in good faith with the Training Provider and/or Apprentice Assessment Organisation to enable the successful delivery and completion of each Apprenticeship;
4.2.2 where indicated in the Contract Particulars that the Training Provider will be providing on-line administrative tasks, provide to the Training Provider on request all necessary log-in information to enable the Training Provider to access the Employer’s Digital Account for the purposes of confirming the Funding available in respect of an Apprentice and uploading on behalf of the Employer information required pursuant to the Funding Rules relating to the Apprentice, the Apprenticeship Programme and/or other relevant matters;
4.2.3 allow the Training Provider, it’s staff, auditors, contractors or agents, including the Training Provider’s Representative, access to the Apprentice, the Employer’s premises and any relevant records or documents, including a Health & Safety Plan (HASP) and health & safety records, to allow the Training Provider to comply with the Training Provider’s obligations under this agreement. Such access shall be as reasonably agreed between the parties or on reasonable notice from the Training Provider;
4.2.4 promptly notify the Training Provider in writing when it becomes aware or develops a reasonable suspicion that the Apprentice wishes to withdraw from the Apprenticeship;
4.2.5 immediately notify the Training Provider if the Apprentice informs the Employer that they no longer wish to continue with the Apprenticeship; and
4.2.6 appoint an Employer’s Representative and promptly notify the Training Provider of any change of the Employer’s Representative from time to time.

5. Additional Apprenticeship Programmes

Where indicated in the Contract Particulars, this clause 5 shall have effect.
5.1 The Employer may prior to the Expiry Date request that additional Apprenticeship Programmes be delivered to its employees by the Training Provider in accordance with this clause 5.
5.2 The Training Provider and the Customer shall discuss the nature and content of the Employer’s requirement for an additional Apprenticeship Programme and such a discussion shall result in the Employer requesting either:
5.2.1 the provision of one of the Apprenticeship Programmes set out in Schedule 1 (a Repeat Apprenticeship Programme Request) in accordance with clause 5.3; or
5.2.2 the development of a new Apprenticeship Programme in accordance with clause 5.4 (a Bespoke Apprenticeship Programme Request).
5.3 Repeat Apprenticeship Programmes
5.3.1 The Employer shall notify the Training Provider in a written Repeat Apprenticeship Programme Request which of the Apprenticeship Programmes set out in Schedule 1 that it wants to be repeated and shall provide the Training Provider with sufficient information (in the opinion of the Training Provider acting reasonably) to allow the Training Provider to prepare an updated Apprenticeship Programme (a UAP).
5.3.2 Within ten (10) Business Days of receipt of the Repeat Apprenticeship Programme Request, the Training Provider shall:
(a) notify the Employer that it declines to repeat the requested Apprenticeship Programme; or
(b) provided that the Employer has provided sufficient information pursuant to clause 5.3.1, provide the Employer with a UAP (in the form of the Apprenticeship Programmes set out in Schedule 1) containing all relevant information required by the Funding Rules.
5.3.3 The parties shall negotiate the contents of the UAP provided pursuant to clause 5.3.2(b) and once agreed between the parties the Employer and the Training Provider shall each indicate such agreement by executing the UAP under hand.
5.3.4 A UAP that has been executed by both parties pursuant to clause 5.3.3 shall be deemed to be an Apprenticeship Programme for the purposes of this agreement and shall be incorporated into Schedule 1 accordingly.
5.4 Bespoke Apprenticeship Programmes
5.4.1 The Employer shall notify the Training Provider in a written Bespoke Apprenticeship Programme Request that it request a bespoke apprenticeship programme (a BAP) to be developed and delivered. The Bespoke Apprenticeship Programme Request shall contain sufficient information (in the opinion of the Training Provider acting reasonably) for the Training Provider to develop a BAP setting out the Training required.
5.4.2 Within twenty (20) Business Days of receipt of the Bespoke Apprenticeship Programme Request, the Training Provider shall:
(a) notify the Employer that it declines to offer the requested bespoke Training; or
(b) provided that the Employer has provided sufficient information pursuant to clause 5.4.1, provide the Employer with a BAP (in the form of the Apprenticeship Programmes set out in Schedule 1) containing all relevant information required by the Funding Rules.
5.4.3 The parties shall negotiate the contents of the BAP provided pursuant to clause 5.4.2(b) and once agreed between the parties the Employer and the Training Provider shall each indicate such agreement by executing the BAP under hand.
5.4.4 A BAP that has been executed by both parties pursuant to clause 5.4.3 shall be deemed to be an Apprenticeship Programme for the purposes of this agreement and shall be incorporated into Schedule 1 accordingly.

6. Charges and Payments

6.1 The Employer shall pay the Charges to the Training Provider to the extent that the Charges have not been recovered by the Training Provider from the ESFA.
6.2 The Training Provider shall send invoices in respect of the Unfunded Charges to the Employer at the frequency set out in the relevant Apprenticeship Programme (or if the Apprenticeship Programme does not so specify, on a monthly basis). The Employer shall pay such invoices within thirty (30) days of date specified on the invoice.
6.3 Subject to the Employer providing the bank account details of the company or other legal person that employs the relevant Apprentice, the Training Provider shall pay to the Employer any Incentive Payments received from the ESFA on behalf of the Employer within thirty (30) days of receipt or such other timescale as may be specified in the Funding Rules.
6.4 Where for any reason the ESFA requires the Training Provider to return any Incentive Payments or any other payment, the Employer shall pay to the Training Provider an amount equal to the sum required to be returned. The Training Provider shall notify the Employer of any requirement to return payments to the ESFA and the Employer shall pay such amount to the Training Provider within thirty (30) days of such notice.
6.5 All sums payable by or to the Training Provider or the Employer are exclusive of VAT. In the case of any VAT payable, the VAT shall be due thirty (30) days after receipt by the receiving party of a valid VAT invoice.
6.6 Without prejudice to the rights of either party under this agreement, any sums that remain unpaid after their due date shall bear interest at the rate of four per cent (4%) above the Bank of England base rate and will become subject to the Training Provider’s debt recovery procedures.

7 Dispute Resolution

This clause 7 shall have effect provided that where the Contract Particulars state that the Training Provider has its own Complaints Procedure, such Complaints Procedure shall take precedence over and be completed prior to the process set out in clauses 7.1 to 7.3 is commenced.
7.1 In the event of a dispute arising between the parties in relation to this agreement, either party may serve written notice on the other stating the nature of the dispute (a Dispute Notice).
7.2 After service of the Dispute Notice, the following procedure shall be followed by the parties (all periods specified in this clause 7.2 shall be extendable by mutual agreement):
7.2.1 within five (5) days, the Training Provider’s Representative and the Employer’s Representative shall meet to attempt to settle the dispute (each party acting in good faith);
7.2.2 if the Training Provider’s Representative and the Employer’s Representative are unable to reach a settlement within twenty one (21) days from the date of service of the Dispute Notice, the chief executive officers of each of the parties shall meet within the following fourteen (14) days to attempt to settle the dispute; and
7.2.3 if no settlement results from the meeting specified in clause 7.2.2, for the following fifty six (56) days the parties shall attempt to settle the dispute by mediation (in accordance with the CEDR Model Mediation Procedure) by an independent mediator appointed by CEDR unless otherwise agreed between the parties, with costs to be shared equally between the parties.
7.3 If no settlement is reached under clause 7.2 the dispute shall be determined by the English High Court and the parties submit to the exclusive jurisdiction of such court for such purposes.
7.4 In addition to the process set out in clauses 7.1 to 7.3, Apprentices and Employers can contact the apprenticeship helpline regarding apprenticeship concerns, complaints and enquiries:
National Apprenticeship Helpline
email: nationalhelpdesk@apprenticeships.gov.uk
tel: 0800 015 0400

8. Termination

8.1 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may at any time terminate this agreement or any part of it with immediate effect by giving written notice to the other party if:
8.1.1 the other party commits a material breach of any term of this agreement (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
8.1.2 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;
8.1.3 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
8.1.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
8.1.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party;
8.1.6 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;
8.1.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
8.1.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
8.1.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
8.1.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.1.3 to clause 8.1.9 (inclusive);
8.1.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
8.1.12 the other party’s funding agreement with the ESFA is terminated.
8.2 If the Training Provider ceases to be an ESFA approved Training Provider (so indicated at the date of this agreement by being listed on the Register of Apprenticeship Training Providers (RoATP)) then the provisions of clause 9.5 shall apply.

9. Consequences of Termination

9.1 Other than as set out in this agreement, neither party shall have any further obligation to the other under this agreement after its termination.
9.2 Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement, including clause 1, clause 4.1.2, clause 7, clause 9, clause 10, clause 12, clause 15, clause 16, clause 17 and clause 20 shall remain in full force and effect.
9.3 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.
9.4 On termination (for any reasons) or expiry of this agreement:
9.4.1 the Employer shall immediately pay to the Training Provider all Charges due at the date of termination or expiry pursuant to the Apprenticeship Programmes;
9.4.2 to the extent that the Employer has paid the Charges pursuant to clause 9.4.1 and the Training Provider recovers funding from the ESFA in respect of those Charges, the Training Provider shall, provided that the Employer does not owe any other sums to the Training Provider, reimburse the Employer those sums paid pursuant to clause 9.4.1;
9.4.3 each party shall promptly return to the other any equipment, documents, information or materials owned by the other party (or a third party) and used in connection with the Services; and
9.4.4 each party shall cooperate in good faith to ensure that no Apprentice is materially disadvantaged by the termination of this agreement.
9.5 If the Training Provider ceases to be an ESFA approved Training Provider then:
9.5.1 this agreement shall continue in full force and effect in respect of Apprentices who have started their Apprenticeship prior to the date on which the Training Provider ceased to be an ESFA approved Training Provider and the Apprenticeship Programme Completion Date for the purposes of clause 2.1.2 shall be the date on which the last such Apprentice successfully completes the relevant End-Point Assessment; and
9.5.2 this agreement shall terminate in respect of any person who was due to become an Apprentice on or after the date on which the Training Provider ceased to be an ESFA approved Training Provider and the Training Provider shall use its reasonable endeavours to assist such persons in their transition to another Training Provider.

10. ESFA Contingencies

The parties shall take all necessary steps to give effect to the ESFA Contingencies in the event of an ESFA Contingency Event occurring. For the avoidance of doubt, giving effect to the ESFA Contingencies shall not constitute a breach of this agreement.

11. Force Majeure

Neither 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 results 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 one ninety (90) days or more, the party not affected may terminate this agreement by giving thirty (30) days’ written notice to the other party.

12. Liabilities and Insurance

12.1 Neither party excludes or limits liability to the other party for:
12.1.1 fraud or fraudulent misrepresentation;
12.1.2 death or personal injury caused by negligence;
12.1.3 a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
12.1.4 any matter for which it would be unlawful for the parties to exclude liability.
12.2 Subject to clause 12.1, neither party shall in any circumstances be liable to the other whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
12.2.1 any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
12.2.2 loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
12.2.3 any loss or liability (whether direct or indirect) under or in relation to any other contract.
12.3 Subject to clause 12.1 and except in relation to the indemnity contained in clause 16.3, the parties’ total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract shall be limited to the total Charges payable during the 12 months immediately preceding the date on which the claim arose or, if the claim arose during the first twelve months of this agreement being in force, the Charges payable during the first twelve months of this agreement.
12.4 Insurance
Each party shall at its own cost effect and maintain with a reputable insurance company a policy or policies of insurance providing an adequate level of cover in respect of all risks which may be incurred by that party, arising out of the its performance of the agreement, including death or personal injury, loss of or damage to property or any other loss.
12.5 The terms of any insurance or the amount of cover shall not relieve the insured party of any liabilities under this agreement.

13. Safeguarding

13.1 The Employer acknowledges that the Training Provider has a statutory duty to safeguard and promote the welfare of individuals under the age of 18 years old and vulnerable adults over the age of eighteen (18) years old pursuant to the Children Act 2004 and the Safeguarding Vulnerable Groups Act 2006.
13.2 The Employer shall and shall ensure that the Employer’s employees, contractors and agents:
13.2.1 clearly identify a member of staff as key contact in the workplace for Prevent and safeguarding
13.2.2 comply with the requirements of the Children Act 2004 and the Safeguarding Vulnerable Groups Act 2006 to the extent that they apply to the Employer; and
13.2.3 confidentially report to the Training Provider’s designated safeguarding lead – the Head of Learning Support, Resources & Welfare, any concerns relating to an Apprentice or other learner enrolled with the Training Provider, employee, agent or contractor of the Training Provider.
13.3 The Employer shall by signing this agreement, be deemed to have read the Training Provider’s policy and guidance relating to safeguarding and will comply with its contents at all times.

14. Prevent

14.1 The Employer acknowledges that the Training Provider has a statutory duty under Section 26 of the Counter-Terrorism and Security Act 2015 to have due regard to the need to prevent people from being drawn into terrorism. The government has defined extremism in the Prevent strategy as: “vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. British values are defined as “democracy, the rule of law, individual liberty and mutual respect and tolerance for those with different faiths and beliefs”.
14.2 The Employer shall and shall ensure that the Employer’s employees, contractors and agents:
14.2.1 to clearly identify a member of staff as key contact in the workplace for Prevent and safeguarding
14.2.2 comply with the requirements of the Prevent Duty as set out in Section 26 of the Counter-Terrorism and Security Act 2015. to the extent that they apply to the Employer; and
14.2.3 confidentially report to the Training Provider’s designated senior post holder i.e. the Deputy Principal, or the apprentices’ student tutor, any concerns relating to an Apprentice or other learner enrolled with the Training Provider, employee, agent or contractor of the Training Provider.
14.2 The Employer shall by signing this agreement, be deemed to have read the Training Provider’s policy and guidance relating to Prevent and will comply with its contents at all times.

15. Health and Safety

15.1 The parties shall perform their obligations under this agreement (including those in relation to the Services) in accordance with:
15.1.1 all applicable Law regarding health and safety; and
15.1.2 the health and safety policy of the other party whilst at the other party’s premises (to the extent it has been made known by one party to the other party).
15.2 Each Party shall notify the other as soon as practicable of any health and safety incidents or material health and safety hazards at either party’s premises of which it becomes aware and which relate to or arise in connection with the performance of this agreement. Each party shall adopt any necessary associated safety measures in order to manage any such material health and safety hazards.

16. Confidentiality

16.1 Subject to Clause 15.2, the parties shall keep confidential all matters relating to this agreement and shall use all reasonable endeavours to prevent their employees, contractors, agents and other personnel from making any disclosure to any person of any matters relating it.
16.2 Clause 16.1 shall not apply to any disclosure of information:
16.2.1 required by any applicable law, provided that Clause 17 shall apply to any disclosures required under the FOIA or the EIRs;
16.2.2 that is reasonably required by persons engaged by a party in the performance of such party’s obligations under this agreement;
16.2.3 where a party can demonstrate that such information is already generally available and in the public domain otherwise than as a result of a breach of Clause 15.1;
16.2.4 of any document which the parties to this agreement have agreed contains no commercially sensitive information;
16.2.5 which is already lawfully in the possession of the receiving party, prior to its disclosure by the disclosing party; and
16.2.6 by the Training Provider to any other department, office or agency of the Government.

17. Intellectual Property

17.1 Each party shall retain ownership of all Intellectual Property Rights in any materials created by that party and used for the delivery of an Apprenticeship Programme (the Project Materials).
17.2 Each party shall make available to the other free of charge and hereby grants to the other party a non-exclusive, non-transferable, royalty free licence to use their Project Materials for the duration of the relevant Apprenticeship Programme.
17.3 Each party shall indemnify the other against all claims, demands, actions, costs, expenses (including legal costs and disbursements on a solicitor and client basis), losses and damages arising from or incurred by reason of any infringement or alleged infringement (including the defence of such alleged infringement) of any Intellectual Property Right in the performance of a party’s obligations under this agreement, except to the extent that they have been caused by or contributed to by the indemnified party’s acts or omissions.

18. Publicity

Neither party shall without the written consent of the other (the giving of which consent shall be at the sole discretion of that party) advertise, publicly announce or provide to any other person information relating to the existence or details of the Contract or use the other party’s name in any format for any promotion, publicity, marketing or advertising purpose.

19. Data Protection and Freedom of Information

19.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 19 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
19.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Training Provider is the data processor.
19.3 Without prejudice to the generality of clause 19.1, the Employer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Training Provider for the duration and purposes of this agreement.
19.4 Without prejudice to the generality of clause 19.1, the Training Provider shall, in relation to any personal data processed in connection with the performance of the Training Provider of its obligations under this agreement:
19.4.1 process that personal data only on the written instructions of the Employer unless the Training Provider is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Training Provider to process personal data (Applicable Laws). Where the Training Provider is relying on laws of a member of the European Union or European Union law as the basis for processing personal data, the Training Provider shall promptly notify the Employer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Training Provider from so notifying the Employer;
19.4.2 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
19.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
19.4.4 not transfer any personal data outside of the European Economic Area unless the prior written consent of the Employer has been obtained and the following conditions are fulfilled:
19.4.4.1 the Employer or the Training Provider has provided appropriate safeguards in relation to the transfer;
19.4.4.2 the data subject has enforceable rights and effective legal remedies;
19.4.4.3 the Training Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred;
19.4.4.4 the Training Provider complies with reasonable instructions notified to it in advance by the Employer with respect to the processing of the personal data;
19.4.5 assist the Employer, at the Employer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
19.4.6 notify the Employer without undue delay on becoming aware of a personal data breach;
19.4.7 at the written direction of the Employer, delete or return personal data (and any copies) to the Employer on termination of the agreement unless required by Applicable Law to store the personal data; and
19.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 19 and allow for audits by the Employer or the Employer’s designated auditor.
19.5 The Training Provider may not appoint any third-party processor of personal data under this agreement without obtaining the prior written consent of the Employer and, where such consent is provided, the Training Provider shall enter into a written agreement with such third-party processor incorporating terms which are substantially the same as those set out in this clause 19. As between the Employer and the Training Provider, the Training Provider shall remain fully liable for all acts and omissions of any third-party processor appointed by it pursuant to this clause 19.5.
19.6 Either party may, at any time on not less than thirty (30) days’ notice, revise this clause 19 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certificate scheme (which shall apply when replaced by attachment to this agreement).
19.7 The Employer acknowledges that the Training Provider is subject to the requirements of the Data Protection Act 1998, the Freedom of Information Act 2000, the Environmental Information Regulations 2004 and, from 25 May 2018, the General Data Protection Regulation (Regulation (EU) 2016/679), all as amended from time to time. The Training Provider acknowledges that the Employer is subject to the requirements of the Data Protection Act 1998 and, from 25 May 2018, the General Data Protection Regulation (Regulation (EU) 2016/679), as amended from time to time.
19.8 The Employer shall offer such prompt and reasonable assistance to the Training Provider as the Training Provider may request from time to time, to assist it in complying with its information disclosure obligations under the legislation set out at Clause 19.7.
19.9 Where the Training Provider or the Employer handle any personal or special categories of personal data (within the meaning of the Data Protection Act 1998 and/or the General Data Protection Regulation (Regulation (EU) 2016/679)), including in relation to the Apprentices or Apprentices, they undertake to comply with their respective obligations under that legislation.
19.10 Where the Employer receives a request for information under the Freedom of Information Act 2000 or the Environmental Information Regulations 2004 relating to the operation of this agreement, the Employer shall promptly pass the request to the Training Provider and shall not respond directly to any such request without the Training Provider’s prior written consent.
19.11 The Training Provider is required to keep records in accordance with the funding requirements and the funding contract for a minimum of 6 years after the Funder’s financial year in which the last payment is made or 31 December 2030, for ESIF co-financed funding, whichever is the latter.

20 Equality Legislation

20.1 Each party shall (and shall procure that its employees, contractors, agents and other personnel shall):
20.1.1 perform its obligations under this agreement (including those in relation to the Services) in accordance with all applicable equality law (whether in relation to race, sex, gender reassignment, age, disability, sexual orientation, religion or belief, pregnancy, maternity or otherwise);
20.1.2 at all times comply with the provisions of the Human Rights Act 1998 in the performance of this agreement.

21. Contract Variation

21.1 No variation to this agreement other than pursuant to clause 21.3 shall have effect unless agreed in writing and signed by both parties pursuant to clause 21.2.
21.2 Change Protocol
21.2.1 In the event either party (acting reasonably) requires a Change to this agreement, the parties shall discuss any such Change proposed by the other and such discussion shall result in a written request for a Change being submitted by the requesting party to the other party.
21.2.2 The parties shall work together in good faith to assist the requesting party in preparing a written recommendation for a Change which shall set out:
(a) the title of the Change;
(b) the originator and the date of the request;
(c) the reason for the Change;
(d) the full details of the Change, including any specification or service standards;
(e) the price, if any, of or associated with the Change;
(f) a timetable for implementation;
(g) the impact, if any, of the Change on other aspects of this agreement, including contractual documentation and resources;
(h) provision for signature of the request by all parties to signal acceptance of the Change; and
(i) any other relevant information reasonably requested by any party.
21.2.3 If approved, each party shall sign the written recommendation. The signing of the written recommendation shall signify acceptance of a Change by the parties.
21.2.4 Once signed by both parties, the Change shall be immediately effective and the parties shall perform their respective obligations on the basis of the agreed amendment.
21.3 Where in the reasonable opinion of the Training Provider a change to one or more of the Apprenticeship Programmes is required in order to comply with ESFA rules, guidance or instructions issued from time to time (an ESFA Change), the Training Provider shall notify the Employer in writing of the ESFA Change and the ESFA Change shall have effect from such date as may be stated in such notice. Any additional costs reasonably incurred by the Training Provider arising from the ESFA Change shall be payable by the Employer and shall be deemed to be incorporated into the Charges.

22. General

22.1 Assignment
No party shall otherwise novate, assign or transfer its rights or obligations under this agreement without the prior written consent of the other party.
22.2 Provisions to Remain in Force
If any term, condition or provision of this agreement shall be held to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall not affect the validity, legality and enforceability of the other provisions of or any other documents referred to in this agreement.
22.3 Entire Agreement
This agreement and the documents referred to in this agreement contain all the terms which the parties have agreed in relation to the subject matter of this agreement.
22.4 Waiver
No term or provision of this agreement shall be considered as waived by a party to this agreement unless a waiver is given in writing by that party. No waiver shall be a waiver of a past or future default or breach, nor shall it amend, delete or add to the terms, conditions or provisions of this agreement unless (and only to the extent) expressly stated in that waiver.
22.5 Counterparts
This agreement may be executed and delivered in any number of counterparts, each of which so executed will be an original, but together will constitute one and the same instrument.
22.6 No Agency
Nothing in this agreement shall be construed as creating a partnership or as a contract of employment between the parties and neither party shall be, or be deemed to be, an agent of the other party and neither party shall hold itself out as having authority or power to bind the other in any way.
22.7 No Double Recovery
Notwithstanding any other provisions of this agreement, no party shall be entitled to recover compensation or to make a claim under this agreement in respect of any loss that it has incurred to the extent that it has already been compensated in respect of that loss pursuant to this agreement or otherwise.
22.8 Further Assurance
Each party shall do all things and execute all further documents necessary to give full effect to this agreement.
22.9 Severability
If any provision of this agreement shall be declared invalid, unenforceable or illegal by the courts of any jurisdiction to which it is subject, such provision may be severed and such invalidity, unenforceability or illegality shall not prejudice or affect the validity, enforceability or legality of the remaining provisions of this agreement.
22.10 Governing Law
This agreement and any non-contractual obligation arising out of it is subject to the laws of England and the parties agree that any disputes between the parties shall be subject to the exclusive jurisdiction of the courts of England.
22.11 Third Party Rights
No term of this agreement is intended to give any entitlement as against any party to any person who is not a party to this agreement and no term of this agreement may be enforced by any person other than a party to this agreement under the Contracts (Rights of Third Parties) Act 1999.