Terms and conditions · Web viewContract Conditions 08/09 Last modified by GARLAND, Karen Company Packard Bell NEC, Inc

ESFA APPRENTICESHIP AGREEMENTFOR TRAINING PROVIDERS

for the Provision of Apprenticeship Training

1 May 2017

ESFA Apprenticeship Agreement for Training ProvidersVersion 4, 9 January 2020

Education & Skills Funding Agencyhttps://www.gov.uk/government/organisations/education-and-skills-funding-agency

https://www.gov.uk/government/organisations/education-and-skills-funding-agency

Terms and Conditions

BACKGROUND

1. DEFINITIONS AND INTERPRETATION

2. PURPOSE AND USE OF FUNDING

3. COMMENCEMENT AND DURATION

4. FUNDING AND PAYMENT

5. REQUIREMENTS

6. SUBMISSION OF APPRENTICE DATA

7. TRAINING PROVISION

8. CHANGE IN NAME AND CHANGE IN OWNERSHIP

9. SUBCONTRACTING

10. END-POINT ASSESSMENT

11. WITHHOLDING, SUSPENSION AND REPAYMENT OF FUNDING

12. FUNDING LIMITS

13. INFORMATION, AUDIT AND REPORTING

14. INTELLECTUAL PROPERTY RIGHTS

15. CONFIDENTIALITY

16. FREEDOM OF INFORMATION

17. DATA PROTECTION

18. ANTI-DISCRIMINATION

19. LIMITATION OF LIABILITY

20. WARRANTIES

21. TERMINATION

22. FORCE MAJEURE

23. ASSIGNMENT

24. VARIATION




25. WAIVER

26. NOTICES

27. DISPUTE RESOLUTION

28. NO PARTNERSHIP OR AGENCY

29. JOINT AND SEVERAL LIABILITY

30. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999

31. ENTIRE AGREEMENT

32. GOVERNING LAW




Terms and Conditions

This Agreement is made this 1st Day of May 2017 between:

[provider name][legal address]

Company No: (if applicable)

[UKPRN] AND

THE SECRETARY OF STATE FOR EDUCATION ACTING THROUGH THE EDUCATION & SKILLS FUNDING AGENCYAN EXECUTIVE AGENCY OF THE DEPARTMENT FOR EDUCATION CHEYLESMORE HOUSEQUINTON ROADCOVENTRYCV1 2WT

Hereinafter calledThe Training Provider

Hereinafter calledThe ESFA

Background

This Agreement sets out the terms for use of the Apprenticeship Service by the Training Provider and the obligations by which the Training Provider agrees to be bound.

AGREED TERMS

1. Definitions and Interpretation

1.1. In this Agreement the following terms shall have the following meanings:

Apprentice: a person who works under an Apprenticeship Agreement.




Apprenticeship: the training and (where applicable) end-point assessment for an employee as part of a job with an accompanying skills development programme.

Apprenticeship Agreement: (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 Details: the details of the Apprentice and their Apprenticeship that need to be inputted into the Apprenticeship Service Account, including but not limited to the Apprenticeship Standard; the agreed cost of the Training and End-Point Assessment; the Apprentice’s name, date of birth and Unique Learner Number and the Apprenticeship start date.

Apprenticeships Logo: the logo consisting of the word “Apprenticeships” in plain black type face with a semi-circle of orange brush strokes to the left hand side of the letter A, the Intellectual Property Rights in which are owned by the Crown.

Apprenticeship Service: the digital service provided by the ESFA to manage and fund Apprenticeship Training approved by Employers through the service and delivered by Training Providers listed on the Register of Apprenticeship Training Organisations using government funds.

Apprenticeship Standard: the apprenticeship standards designed by employers that have had both the standard and associated assessment plan approved by the Institute for Apprenticeships and Technical Education, and are published on the Institute for Apprenticeships and Technical Education website alongside their allocated funding band.

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.

Change of Control: has the meaning given in section 1124 of the Corporation Tax Act 2010.

Commencement Date: the date on which this Agreement was executed by both Parties.

Connected Employer: any entity (being a distinct legal entity from an Employer) which is connected with an Employer within the meaning of Schedule 1 Parts 1 and 2 of the National Insurance Contributions Act 2014, and which, not being a contracting party to an agreement with the ESFA, carries out activities on behalf of an Employer in relation to the Apprenticeship Service or employs an Apprentice whose Training is Funded in whole or in part from the Employer’s Apprenticeship Service Account.




https://www.instituteforapprenticeships.org/

Course Directory Provider Portal: the online portal where Training Providers provide information on what Training courses they offer for Apprentices.

Data Protection Laws: means (i) the General Data Protection Regulation (Regulation (EU) 2016/679), the Data Protection Act 2018, including Part 3 which implements the Law Enforcement Directive (Directive (EU) 2016/680) and any applicable national implementing Laws as amended from time to time.

Employer: the employer which enters into a contract with a Training Provider to commission Training (a) for its own Apprentices and / or (b) on behalf of a Connected Employer for the Connected Employer’s Apprentices, to be funded through the Employer’s Apprenticeship Service Account.

Employer’s Apprenticeship Service Account: the part of the Apprenticeship Service where the Employer can add Apprenticeship Details and see information about Funding and Apprentices they have previously added to their account.

Employer-Provider: a Training Provider which is also an Employer of Apprentices and which delivers Training to its own Apprentices under this Agreement.

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

End-Point Assessment Organisation: any organisation on the Register of End-Point Assessment Organisations which is selected by an Employer and contracted by a Training Provider to carry out End-Point Assessment.

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

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 Rules for Main Providers 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

Insolvency Event: means any of the following circumstances:




https://www.gov.uk/guidance/apprenticeship-funding-rules

a. a party suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or is deemed unable to pay its debts within the meaning of any relevant provision of the Insolvency Act 1986;

b. a 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 any of its creditors (other than for the sole purpose of a bona fide reconstruction or amalgamation);

c. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the relevant party (other than for the sole purpose of a bona fide reconstruction or amalgamation);

d. a receiver, administrative receiver or similar officer is appointed over the whole or any part of the relevant party’s business or assets;

e. an application order is made either for the appointment of an administrator or for an administration order, an administrator is appointed, or notice of intention to appoint an administrator is given;

f. any event occurs, or proceeding is taken, with respect to the relevant party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in a-e (inclusive); or

g. the relevant party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

Intellectual Property Rights: all patents, trademarks, logos (including the Apprenticeships Logo), copyrights and design rights (whether registered or not) and all applications for any of the foregoing and all rights of confidence and Know-How however arising for their full term and any renewals and extensions.

Know-How: information, data, know-how or experience whether patentable or not and including but not limited to any technical and commercial information relating to research, design, development, manufacture, use or sale.

Office for Students: Office for Students means the Office for Students established under section 1 of the Higher Education and Research Act 2017.

Parties: means the ESFA acting on behalf of the Crown, and the Training Provider.

Prohibited Act: means:




a. offering, giving or agreeing to give to any servant of the Crown any gift or consideration of any kind as an inducement or reward for:

i. doing or not doing (or for having done or not having done) any act in relation to the obtaining or performance of this Agreement or any other contract with the Crown; or

ii. showing or not showing favour or disfavour to any person in relation to this Agreement or any other contract with the Crown;

b. entering into this Agreement or any other contract with the Crown where a commission has been paid or has been agreed to be paid by the Training Provider or on its behalf, or to its knowledge, unless before the relevant contract is entered into particulars of any such commission and of the terms and conditions of any such contract for the payment thereof have been disclosed in writing to the ESFA;

c. committing any offence:

i. under the Bribery Act;

ii. under legislation creating offences in respect of fraudulent acts; or

iii. at common law in respect of fraudulent acts in relation to this Agreement or any other contract with the Crown; or

d. defrauding or attempting to defraud or conspiring to defraud the Crown.

Register of End-Point Assessment Organisations: the online register of End-Point Assessment Organisations from which the Employer may select an organisation to carry out End-Point Assessment of Apprentices.

Register of Apprenticeship Training Providers: means the register maintained by the ESFA of organisations qualified to receive Funding from the ESFA to deliver Apprenticeships.

Safeguarding: action taken to protect vulnerable groups including children and young people from any type of harm from adults or other children.

Spend Controls: the controls applied to manage the availability of Funding through the Apprenticeship Service as set out in the Funding Rules.

Subcontractor: a person or organisation selected by the Employer and the Training Provider to deliver part of the Training on behalf of the Training Provider under this Agreement.

Technical Funding Guide: the Education & Skills Funding Agency’s Apprenticeship Technical Funding Guide as revised and amended from time to time and available at https://www.gov.uk/government/publications/apprenticeship-technical-funding-guide.




Term: the period between the Commencement Date and the Termination Date during which this Agreement is in force.

Termination Date: means any date on which this Agreement terminates in accordance with Clause 21.

Training: the delivery of training and on-programme assessment and where relevant End-Point Assessment by the Training Provider and where relevant the End-Point Assessment Organisation to one or more Apprentices.

Training Provider: an organisation listed on the Register of Apprenticeship Training Providers which has a contract with the Employer to provide Training to one or more Apprentices.

Working Day: a day (other than a Saturday or Sunday) on which banks are open for domestic business in the City of London.




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

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

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

1.5. A reference to a person or body includes a reference to its successor.

1.6. 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.

2. Purpose and Use of Funding

2.1. The Parties acknowledge and agree that the purpose of this Agreement is to set out the conditions on which the ESFA will provide Funding to the Training Provider through the Apprenticeship Service for the Training.

2.2. The Training Provider acknowledges that the ESFA cannot guarantee that any Funding will be made available under this Agreement.

2.3. If the ESFA makes Funding available to the Training Provider under this Agreement, the Training Provider acknowledges that at the ESFA’s discretion such Funding may be subject to Spend Controls.

2.4. The Training Provider agrees that any Funding paid to it in accordance with this Agreement is solely to support the Training and End-Point Assessment of Apprentices in accordance with this Agreement and the Funding Rules.

3. Commencement and Duration

3.1. Except where otherwise specified, the terms of this Agreement shall apply from 1st May 2017 or the date of the Training Provider’s electronic acceptance of these terms and conditions on the ESFA’s contracting and financing portal for Training Providers on www.gov.uk (whichever is later) and shall continue in force until it is terminated in accordance with clause 21 of this Agreement.

3.2. By electronically accepting these terms and conditions, the Training Provider agrees to be legally bound by this Agreement.




4. Funding and Payment

4.1. The Training Provider undertakes to the ESFA that it will ensure that the Training Provider’s contract for services with the Employer will contain provisions governing the roles and responsibilities of the Training Provider and Employer in providing the relevant accurate information that is required in order for the ESFA to make payments as referred to in this Clause 4.

4.2. The availability of Funding is subject to budget availability and any applicable Spend Controls.

4.3. The Employer and Training Provider must agree the Apprenticeship Details before the Apprenticeship begins and this information must be recorded on the Apprenticeship Service.

4.4. In order for the ESFA to pay the Training Provider, the Employer or the Training Provider, on behalf of the Employer, must keep the Apprenticeship Details up to date on the Apprenticeship Service and the Employer must use the Apprenticeship Service to approve the Apprenticeship Details.

4.5. The ESFA will check the Apprenticeship Details submitted by the Training Provider in accordance with Clause 6 against the information on the Apprenticeship Service. If the Apprenticeship Details do not match, or the Employer has not approved the Apprenticeship Details on the Apprenticeship Service, the ESFA will as appropriate, not make or will suspend payment of Funds until the discrepancy in the data has been reconciled.

4.6. The Training Provider accepts that payment of Funding is made on the basis of the details entered into and the management by the Employer of the Employer’s Apprenticeship Service Account. The ESFA is not responsible for nor will the ESFA remedy any shortfall in Funding that arises as a result the Employer’s management of the Apprenticeship Service Account including but not limited to any suspension or cessation of Funding.

4.7. In accordance with the Technical Funding Guide, the ESFA will calculate on a monthly basis the payment due that month to the Training Provider for delivering the Training.

4.8. The ESFA acting reasonably reserves the right to change or discontinue all or any part of the Apprenticeship Service at any time. This includes on giving reasonable notice the right to cease funding for any new Apprenticeships from the date specified in the notice. The ESFA will not be liable to make payments in respect of any Apprentices with a start date on or after the date specified in the notice.




4.9. Payment by the ESFA shall be without prejudice to any claims or rights, which the ESFA may have against the Training Provider and shall not constitute any admission by the ESFA as to the performance by the Training Provider of its obligations under this Agreement. Prior to any such payment, the ESFA shall be entitled to make deductions or deferments in respect of any disputes or claims whatsoever with or against the Training Provider, arising from this Agreement or any other Agreement between the Training Provider and the ESFA.

4.10. Where the ESFA carries out a review, investigation or audit of a sample of the data which the Training Provider is required to provide under the Agreement to support the payments made by the ESFA and identifies errors in that data which it deems are material, the ESFA reserves the right at its absolute discretion to require the Training Provider at the Training Provider’s cost to carry out 100% audit of all or part of the Training by a deadline specified by the ESFA and / or to recover from the Training Provider Funding equivalent to an amount based on the error rate identified and the total value of the Funding under this Agreement.

4.11. Without prejudice to any other provisions in this Agreement, such amounts may be recovered by making adjustments to data submitted by the Training Provider under the Agreement, or by raising an invoice for payment by the Training Provider, or making deductions from future payments due to the Training Provider under the Agreement. Failure to settle such amounts by the Training Provider will constitute a material breach under Clause 11 of the Agreement. The decision of the ESFA as to the amount of recovery under this Clause is final.

4.12. All payments by the ESFA will be made via BACS.

4.13. Under the provision of Item 5A to Group 6 of Schedule 9 of the VAT Act 1994, the supply of education or vocational training funded by the ESFA and the supply by the person providing that education or vocational training, of any goods or services essential to that provision, is considered to be an exempt supply for VAT purposes.

5. Requirements

5.1. In order to receive payments from the ESFA, the Training Provider agrees to:

a. register and maintain its registration with both the Register of Apprenticeship Training Providers and the UK Register of Learning Providers;

b. ensure that any information it enters on the Apprenticeship Service including information entered on the Employer’s behalf is accurate;

c. comply at all times with the Funding Rules;




d. have procedures in place to identify and deal with conflicts of interest in relation to the Apprenticeship Training;

e. have procedures and processes in place to deal with the prevention of fraud and/or administrative malfunction;

f. enter into a contract for services with each Employer for whom it is delivering Training;

g. ensure all financial and other information disclosed to the ESFA is true and accurate;

h. ensure that any data errors are corrected within two months of being identified;

i. ensure that it has the appropriate registrations with the Information Commissioner’s Office for controlling and / or processing data and that it maintains them for the duration of this Agreement;

j. cooperate with all reasonable requests by the ESFA in relation to the performance of its obligations under this Agreement;

k. have appropriate pre-employment and employment vetting processes in place including Disclosure and Barring Service checks (as applicable);

l. notify the ESFA of any events or circumstances arising in connection with the delivery of its obligations under this Agreement which could give rise to any legal liability, have an adverse effect on the reputation of the ESFA or call into question the Training Provider’s suitability to deliver Training to Apprentices, including (but not limited to):

i. any events or circumstances leading to the death or serious injury of any Apprentice;

ii. the commission of any serious criminal offence by a senior individual in the Training Provider’s organisation or any individual involved in the delivery of Training;

m. notify the ESFA as soon as possible if it is subject to any actual or potential Insolvency Event or Change of Control or any other financial circumstances which could have an impact on its ability to comply with its obligations under this Agreement;

n. adhere to the Computer Misuse Act 1990; and

o. not commit a Prohibited Act.




6. Submission of Apprentice Data

6.1. The Training Provider must supply the ESFA with data on each individual Apprentice, in accordance with the data collections framework set out in the ILR Specification, Validation Rules and Appendices and the ILR Guides and Templates as amended and updated from time to time and which are published on the ESFA’s website via https://www.gov.uk/government/collections/individualised-learner-record-ilr.

6.2. The Training Provider must supply the ESFA with data in accordance with the following:

6.2.1. in line with audit arrangements as set out in this Agreement;

6.2.2. in adherence with the Data Protection Laws;

6.2.3. to support payments to be made;

6.2.4. to enable reconciliation to take place; and

6.2.5. to support programme management.

6.3. Data collected must be transmitted to the ESFA through the ESFA’s Submit Learner Data Service https://submitlearnerdatabeta.fasst.org.uk. Access to the ESFA’s web portal is restricted and the Training Provider agrees to comply with the conditions of use regarding the supply of data to the ESFA set out in this Clause 6 and in the ILR Specification, Validation Rules and Appendices and the ILR Guides and Templates as amended and updated available from time to time, via https://www.gov.uk/government/collections/individualised-learner-record-ilr.

6.4. Where the ESFA has concerns about the data, including but not limited to the completeness or accuracy of the data provided by the Training Provider under this Agreement or any other Agreement between the Training Provider and the ESFA, the ESFA may require the Training Provider to supply data more frequently for such a period as the ESFA shall require.

6.5. The ESFA reserves the right to require the Training Provider, at its own cost, to carry out such work as the ESFA deems necessary to improve the quality of data.

6.6. Where the Training Provider is delivering Training to Apprentices claiming state benefits, it must provide data to the Secretary of State with responsibility for unemployment or their nominated representative in accordance with the requirements notified to the Training Provider.

6.7. The Training Provider must update the course information funded by the ESFA at www.coursedirectoryproviderportal.org.uk in accordance with the course directory data requirements which can be found at https://coursedirectoryproviderportal.org.uk/Help.







7. Training Provision




7.1. The Training Provider shall deliver the Training funded under this Agreement in accordance with the Funding Rules which for the avoidance of doubt form part of the terms and conditions of this Agreement.

7.2. The Training Provider shall enter into a contract for services with each Employer for whom it is delivering the Training which shall provide the contractual route through which the Employer commissions the delivery of the Training from the Training Provider. The Training Provider will ensure that the contract for services is fully consistent with the provisions of this Agreement and the Funding Rules.

7.3. The Training Provider shall at all times comply with all relevant Law in the performance of its obligations under this Agreement, including (but not limited to) any legislation relating to employment, health and safety, equality and discrimination, human rights, immigration, taxation and prevention of terrorism.

7.4. The Training Provider shall have and maintain a clear feedback and complaints policy for all Employers and Apprentices using its services.

7.5. The Training Provider shall assist and cooperate with both the Employer and the ESFA in relation to the delivery of Training to Apprentices.

7.6. In the circumstances permitted by the Funding Rules for when an Apprentice is made redundant, the Training Provider may continue to deliver Training.

7.7. In respect of changes made to this Agreement, the Training Provider will consider the extent to which they impact on the contract for services between the Employer and the Training Provider. If the Training Provider considers that there is an impact, it will liaise with the Employer accordingly and agree appropriate amendments.

8. Change in Name and Change in Ownership

8.1. The Training Provider shall not without the prior written consent of the ESFA assign, novate or otherwise dispose of or deal in any other manner with (including by means of a change in ownership of the Training Provider) any or all of its rights, obligations or liabilities under this Agreement.

8.2. The Training Provider will inform the ESFA in writing if there is a change in its name at least one month prior to the change taking effect unless to do would put the Training Provider in breach of the Law. If that is the case the Training Provider will inform the ESFA of the change in name within 10 Working Days of it becoming lawful to do so.




8.3. The Training Provider will inform the ESFA as soon as reasonably practicable and, in any event 12 weeks before, any change in ownership of the Training Provider takes effect unless to do would put the Training Provider in breach of the Law. If that is the case the Training Provider will inform the ESFA of the change in ownership within 10 Working Days of it becoming lawful to do so.

8.4. The ESFA reserves the right to take whatever action it deems necessary, including but not limited to terminating the Agreement if it considers in its absolute discretion that any, or any proposed, assignment, novation, disposal or other dealing, including any change in ownership and / or of name of the Training Provider, may or would:

8.4.1. put public funds at risk,

8.4.2. put at risk the delivery of Training to Apprentices, and / or

8.4.3. The ESFA has any other material concerns about the proposed assignment, novation, disposal or other dealing.

8.5. In deciding what action to take in accordance with Clause 8.4 the ESFA shall act in accordance with the criteria set out in the Funding Higher-risk Organisations and Sub-Contractors document (or any updated or revised versions) which is published on the ESFA’s website: https://www.gov.uk/government/publications/sfa-financial-assurance-higher-risk-providers-and-subcontractors.

9. Subcontracting

9.1. The Training Provider and the Employer may agree between them that part of the Training may be delivered by a Subcontractor. The Training Provider and the Employer shall ensure that the arrangements for the delivery of Training by the Subcontractor shall be set out in the contract for services between the Training Provider and the Employer. (The provisions of this clause do not apply to Employer-Providers engaging a Subcontractor to deliver Training exclusively to their own Apprentices.)

9.2. The Training Provider shall comply with the requirements set out in the Funding Rules with regard to the use of Subcontractors.

9.3. The Training Provider must not enter into a subcontract where:

a. the proposed Subcontractor or any of its directors or any other individual exercising a significant degree of control over the proposed Subcontractor has committed any criminal offence relating to taxation, corruption, fraud, bribery, money laundering, terrorism, asylum and immigration, human trafficking, drug trafficking or any other offence listed in Article 57(1) of the Public Sector Directive 2015;




b. any of the proposed Subcontractor’s directors or any other individual exercising a significant degree of control over the proposed Subcontractor has been found guilty of gross misconduct; or

c. there is any ongoing or threatened Insolvency Event affecting the proposed Subcontractor.

9.4. The Training Provider is responsible for carrying out its own due diligence in respect of any proposed Subcontractor.

9.5. The Training Provider shall report to the ESFA on its use of Subcontractors in accordance with the Funding Rules (including a nil return if it does not use any Subcontractors).

9.6. The Training Provider shall have a legally binding subcontract with any Subcontractor which meets the requirements set out in the Funding Rules and which ensures that any relevant obligations arising under this Agreement are passed on to the Subcontractor.

9.7. The Training Provider acknowledges and accepts that it is responsible for the acts and omissions of any Subcontractor delivering Training in connection with this Agreement and that the existence of any subcontracting arrangement shall not relieve the Training Provider of any of its obligations under this Agreement.

9.8. The ESFA reserves the right to require the Training Provider to terminate any subcontract where it has concerns about the Subcontractor’s suitability to deliver Training. In such circumstances the ESFA shall notify the Training Provider in writing that it requires the subcontract to be terminated, stating the reason for the decision and the date by which the subcontract must be terminated.

10.End-Point Assessment

10.1. Where the Training Provider is delivering Training for an Apprenticeship Standard, the Training Provider shall make arrangements for the independent End-Point Assessment of Apprentices to be carried out by the End-Point Assessment Organisation selected by the Employer.

10.2. The Employer shall select an End-Point Assessment Organisation which is on the Register of End-Point Assessment Organisations and approved against the relevant Apprenticeship Standard to carry out the End-Point Assessment. The Training Provider shall enter into a written agreement with the End-Point Assessment Organisation which complies with the requirements set out in the Funding Rules.




10.3. Where the Training Provider is an Employer-Provider engaging an End-Point Assessment Organisation to carry out End-Point Assessment of its own Apprentices, it shall select its own End-Point Assessment Organisation and enter into a written agreement with the End-Point Assessment Organisation which complies with the requirements set out in the Funding Rules.

10.4. Where the Training Provider is delivering Training for an Apprenticeship Framework or an Apprenticeship Standard which is classified as an “integrated standard”, the Training Provider is not required to engage an End-Point Assessment Organisation to carry out independent End-Point Assessment.

10.5. The Training Provider shall terminate any agreement with an End-Point Assessment Organisation:

a upon request by an Employer if the Employer wishes to use a different End-Point Assessment Organisation; or

b upon request by the ESFA if the End-Point Assessment Organisation is removed from the Register of End-Point Assessment Organisations.

11.Withholding, Suspension and Repayment of Funding

11.1. Without prejudice to the ESFA's other rights and remedies, the ESFA may at its discretion withhold or suspend payment of Funding to the Training Provider if:

a. the Training Provider materially breaches any of the terms or conditions set out in this Agreement;

b. the ESFA, acting reasonably, has concerns about the standard of Training that the Training Provider is delivering;

c. the ESFA becomes aware of any fraud, financial irregularity, dishonesty, negligence or practice by any of the Training Provider, its officers, employees or Subcontractors;

d. the ESFA has concerns about the accuracy of the data submitted by the Training Provider in relation this Agreement or any other contract with the ESFA;

e. the ESFA has Safeguarding concerns in relation to the Training Provider;

f. any employee or other individual carrying out activities on behalf of the Training Provider has taken actions which, in the reasonable opinion of the ESFA, bring or are likely to bring the ESFA's name, brand or reputation or the Apprenticeships brand into disrepute;

g. the Training Provider was not entitled to Funding under the Funding Rules in relation to one or more Apprenticeship;




h. there occurs, in respect of the Training Provider, any Insolvency Event or Change of Control which, in the reasonable opinion of the ESFA, may affect the Training Provider’s ability to comply with its obligations under this Agreement; or

i. the Training Provider fails to comply with any of the terms and conditions set out in this Agreement (including requirements in the Funding Rules) and fails to rectify any such failure within 30 days of receiving written notice detailing the failure and requiring it to rectify the failure.

11.2. The ESFA reserves the right to recover from the Training Provider any Funding paid to the Training Provider where the payment of Funding or any arrangement between the Employer and the Training Provider breaches the Funding Rules or the entitlement to Funding was based on wrong, inaccurate or misleading information.

11.3. If the ESFA becomes aware of a significant number of errors in any data or information provided by the Training Provider, the ESFA shall give the Training Provider the option to either correct the errors and resubmit the data or information, or accept a reduction in the amount of Funding payable.

11.4. The ESFA may retain or set off any sums owed to it by the Training Provider which have fallen due and payable against any sums due to the Training Provider under this Agreement or any other agreement pursuant to which the Training Provider provides goods or services to the ESFA.

11.5. The Training Provider shall make any payments due to the ESFA without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.

11.6. Should the Training Provider be subject to financial or other difficulties which are capable of having a material impact on its ability to comply with its obligations under this Agreement it will notify the ESFA as soon as possible so that, if possible, and without creating any legal obligation, the ESFA will have an opportunity to provide assistance in resolving the problem or to take action to protect the ESFA and any Funding paid to the Training Provider.

12.Funding Limits

12.1. The ESFA reserves the right to impose a limit on the number of Apprentices receiving Training from the Training Provider at any given time if any of the following circumstances apply:

a. the ESFA considers that the number of Apprentices receiving Training from the Training Provider exceeds that which could be easily accommodated by other Training Providers if the Training Provider ceases to provide Training under this Agreement;

b. that the number of Apprentices receiving Training from the Training Provider has increased to the point where the ESFA has concerns




about the Training Provider’s ability to deliver the increased amount of Training; or

c. the ESFA believes, based on the Training Provider’s accounts or any other financial or performance information it has at its disposal, that the acceptance of new Apprentices by the Training Provider would give rise to an unacceptable level of operational risk.

12.2. If the ESFA decides to impose a limit on the number of Apprentices receiving Training from the Training Provider, it shall notify the Training Provider in writing, giving its reasons for imposing such a limit. After receiving such notification, the Training Provider shall be prohibited from accepting any new Apprentices until such time as the ESFA informs the Training Provider in writing that the limit no longer applies.

13. Information, Audit and Reporting

13.1. The Training Provider shall comply with any request to supply information or data to the ESFA in connection with any Training delivered to Apprentices under this Agreement.

13.2. The Training Provider shall keep all documents, information, data, reports, accounts, records or written or verbal explanations relating to this Agreement or the Apprenticeship Service for a minimum of 6 years after the end of the financial year in which the final payment of Funding is made and shall upon request supply copies of the same to the ESFA, its authorised representatives or auditors or such any third party as the ESFA shall specify.

13.3. The Training Provider shall assist and cooperate with the ESFA in relation to any audit or investigation and shall grant the ESFA or its authorised representatives or auditors access to its premises at any reasonable time, with or without notice, to examine, remove and / or copy any relevant documents and records (including electronic records) and to interview the Training Provider’s employees, agents and / or Subcontractors carrying out activities in connection with this Agreement or any Apprentice receiving Training under this Agreement.

13.4. The Training Provider shall assist and cooperate with the ESFA in relation to the identification of any Apprentices who may be unlawfully claiming benefits. The ESFA may from time to time require the Training Provider to supply information relating to individual Apprentices and give such assistance as is reasonably required for the purposes of any investigation.

14. Intellectual Property Rights

14.1. The ESFA and the Training Provider agree that all rights, title and interest in or to any information, data, reports, documents, procedures, forecasts, technology, Know-How and any other Intellectual Property Rights whatsoever owned by either the ESFA or the Training Provider before the Commencement Date or developed by either Party during the term of this




Agreement, shall remain the property of that Party.

14.2. Subject to clause 14.3 below, the Training Provider may not use any Intellectual Property Rights belonging to the ESFA or the Crown without prior written consent from the ESFA.

14.3. The Training Provider may use the Apprenticeships Logo for the purposes of advertising and marketing its Apprenticeship Training without obtaining prior consent from the ESFA.

14.4. Where the ESFA has allowed the Training Provider to use any of its Intellectual Property Rights in connection with this Agreement, the Training Provider shall immediately cease to use such Intellectual Property Rights upon request or upon on termination of this Agreement, and shall either return or destroy such Intellectual Property Rights as requested by the ESFA.

15.Confidentiality

15.1. Subject to clause 16 (Freedom of Information), each Party shall during the Term of this Agreement and thereafter keep secret and confidential all Intellectual Property Rights or Know-How or other business, technical or commercial information disclosed to it as a result of the Agreement and shall not disclose the same to any person save to the extent necessary to perform its obligations in accordance with the terms of this Agreement or save as expressly authorised in writing by the other Party.

15.2. The obligation of confidentiality contained in this clause shall not apply or shall cease to apply to any Intellectual Property Rights, Know-How or other business, technical or commercial information which:

a. at the time of its disclosure by the disclosing party is already in the public domain or which subsequently enters the public domain other than by breach of the terms of this Agreement by the receiving party;

b. is already known to the receiving party as evidenced by written records at the time of its disclosure by the disclosing party and was not otherwise acquired by the receiving party from the disclosing party under any obligations of confidence; or

c. is at any time after the date of this Agreement acquired by the receiving party from a third party having the right to disclose the same to the receiving party without breach of the obligations owed by that party to the disclosing party.

15.3. Notwithstanding the provisions of this Clause 15, the ESFA may disclose confidential information obtained from the Training Provider:

a. to any other Central Government Body, Non-Departmental or Quasi Government Body or agency, central or local;




b. to Parliament and Parliamentary Committees or if required by any Parliamentary reporting requirement; or

c. to any professional adviser, consultant, contractor or other person engaged by the ESFA directly in connection with this Agreement, provided that such information is treated as confidential by the receiving party.

15.4. The Training Provider shall, where relevant, procure that any Subcontractor complies with the provisions of this Clause 15 as though it were a party to this Agreement.

16.Freedom of Information

16.1. The Training Provider acknowledges that the ESFA is subject to the requirements of the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIRs).

16.2. The Training Provider shall:

a. provide all necessary assistance and cooperation as reasonably requested by the ESFA to enable the ESFA to comply with its obligations under the FOIA and EIRs;

b. transfer to the ESFA all requests for information relating to this agreement that it receives as soon as practicable and in any event within 2 Working Days of receipt;

c. provide the ESFA with a copy of all information belonging to the ESFA requested in the request for information which is in its possession or control in the form that the ESFA requires within 5 Working Days (or such other period as the ESFA may reasonably specify) of the ESFA's request for such information; and

d. not respond directly to a request for information unless authorised in writing to do so by the ESFA.

16.3. The Training Provider acknowledges that the ESFA may be required under the FOIA and EIRs to disclose information without consulting or obtaining consent from the Training Provider. The ESFA shall take reasonable steps to notify the Training Provider of a request for information (in accordance with the Secretary of State's section 45 Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the FOIA) to the extent that it is permissible and reasonably practical for it to do so but (notwithstanding any other provision in this agreement) the ESFA shall be responsible for determining in its absolute discretion whether any information is exempt from disclosure in accordance with the FOIA and / or the EIRs.

16.4. Where the Training Provider is also subject to the requirements of FOIA and the EIRs, the ESFA agrees to assist and cooperate with the Training Provider in relation to any request for information, in the same manner described in clauses 16.1 to 16.3 above





17.Data Protection

17.1. Both Parties will duly observe all their obligations under the Data Protection Laws, which arise in connection with the Agreement.

17.2. The Training Provider shall, where relevant, procure that any Subcontractor complies with the provisions of this Clause 17 as though it were a Party to this Agreement.

18.Anti-Discrimination

18.1. The Training Provider shall not unlawfully discriminate within the meaning and scope of any law, enactment, order, or regulation relating to discrimination (whether in race, gender, religion, disability, sexual orientation, age or otherwise) in employment.

18.2. The Training Provider shall take all reasonable steps to secure the observance of Clause 18.1 by all servants, employees or agents of the Training Provider and all suppliers and Subcontractors involved in delivering Training to its Apprentice(s).


19.Limitation of Liability

19.1. The ESFA accepts no liability for any consequences, whether direct or indirect, that may come about from the Training Provider or a Subcontractor being involved in the delivery of any Training or End-Point Assessment. The Training Provider shall indemnify and hold harmless the ESFA, its employees, agents, officers or Subcontractors with respect to all claims, demands, actions, costs, expenses, losses, damages and all other liabilities arising from or incurred by reason of the actions and/or omissions of the Training Provider or a Subcontractor in relation to this Agreement, or the non-fulfilment of obligations of the Training Provider or a Subcontractor under this Agreement or its obligations to third parties.

19.2. Neither party seeks to limit or exclude its own liability for death or personal injury caused by its own negligence, fraud, fraudulent misrepresentation or any other liability which cannot be limited or excluded by law.

19.3. Subject to Clauses 19.1 and 19.2 above, the ESFA's liability under this Agreement is limited to the amount of the Funding for the Training of Apprentices.




20.Warranties

20.1. The Training Provider warrants, undertakes and agrees that:

a. it has all necessary resources and expertise to deliver Training to Apprentices and use the Apprenticeship Service as envisaged in this Agreement and the Funding Rules;

b. where it is using a Subcontractor to deliver any part of the Training, it shall procure that the Subcontractor complies with any relevant provisions of this Agreement and the Funding Rules;

c. it has not committed, nor shall it commit, any Prohibited Act;

d. it shall at all times comply with all relevant legislation and all applicable codes of practice and other similar codes or recommendations when carrying out activities in connection with this Agreement, and shall notify the ESFA immediately of any significant departure from such legislation, codes or recommendations;

e. it shall comply with the requirements of the Health and Safety at Work etc. Act 1974 and any other acts, orders, regulations and codes of practice relating to health and safety, which may apply to Apprentices and any other employees or persons carrying out activities in connection with the Training of Apprentices;

f. it has and shall keep in place adequate procedures for dealing with any conflicts of interest;

g. it has and shall keep in place systems to deal with the prevention of fraud and / or administrative malfunction;

h. all financial and other information concerning the Training Provider which has been disclosed to the ESFA is to the best of its knowledge and belief, true and accurate;

i. it is not subject to any contractual or other restriction imposed by its own or any other organisation's rules or regulations or otherwise which may prevent or materially impede it from meeting its obligations under this Agreement; and

j. as of the date on which it enters into this Agreement there has been no material change in its financial position or prospects since the date of its last accounts.

21.Termination

21.1. The Training Provider shall notify the ESFA in writing immediately upon the occurrence of any of the following events:




21.1.1. where the Training Provider is an individual and if a petition is presented for the Training Provider’s bankruptcy or a criminal bankruptcy order is made against the Training Provider, or it makes any composition or arrangements with or for the benefit of creditors, or makes any conveyance or assignment for the benefit of creditors, or if an administrator is appointed to manage their affairs; or

21.1.2. where the Training Provider is not an individual but is a firm; or a number of persons acting together in any capacity;

21.1.3. if any event in Clauses 21.1.1 or 21.1.2 of this condition occurs in respect of any partner in the firm or any of those persons or a petition is presented for the Training Provider to be wound up as an unregistered company; or

21.1.4. where the Training Provider is a company, if the company passes a resolution for winding-up or the court makes an administration order or a winding-up order, or the company makes a composition or management with its creditors, or an administrator, receiver or manager is appointed by the company, a creditor or by the court, or possession is taken of any of its property under the terms of a floating charge.

21.2. The ESFA may terminate the Agreement without liability to the Training Provider by giving to the Training Provider, or where relevant their representatives, written notice, having effect immediately or after such periods as the ESFA may determine as follows:

21.2.1. where the Training Provider is an individual, if he shall die or be adjudged incapable of managing his affairs within the meaning of Part VII of the Mental Health Act 1983;

21.2.2. in the event that that ESFA is of the reasonable opinion that the conduct of the Training Provider amounts to a material breach of this Agreement and / or any other contract with the ESFA;

21.2.3. the Training Provider or a Subcontractor commits a breach of this Agreement which is irremediable or which it fails to remedy before the deadline specified in a written request from the ESFA requiring the breach to be remedied;

21.2.4. the Training Provider or a Subcontractor 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;




21.2.5. the ESFA becomes aware of any fraud or financial irregularity by the Training Provider in connection with this Agreement;

21.2.6. the ESFA has reasonable grounds to have Safeguarding concerns in relation to the Training Provider;

21.2.7. where the Training Provider ceases to be on the Register of Apprenticeship Training Providers or the UK Register of Learning Providers;

21.2.8. the Training Provider or any of its employees have committed a Prohibited Act;

21.2.9. the Training Provider has been awarded a grade 4 by Ofsted for apprenticeships or, where a separate apprenticeship grade has not been awarded, a grade 4 for overall effectiveness;

21.2.10. the ESFA receives a recommendation from the Office for Students to suspend or terminate this Agreement based on their assessment of the quality of Training delivered by the Training Provider; or

21.2.11. there occurs, in respect of the Training Provider, any Insolvency Event or Change of Control which, in the reasonable opinion of the ESFA, may affect the Training Provider’s ability to comply with its obligations under this Agreement;

21.2.12. on the occurrence of the statutory provisions contained in Regulation 73(1)(a) to (c) of the Public Contracts Regulation 2015;

21.3. In addition to the rights of termination under any other Clauses of this Agreement, the Parties shall be entitled to terminate this Agreement in full or part by giving to the other Party not less than 30 days’ written notice to that effect.

21.4. If the ESFA considers in its absolute discretion that on receipt of a notice pursuant to Clause 8 (Change in Name and Change in Ownership) that the proposed changed in name and / or ownership would prejudice the Training Provider’s ability to deliver the Training, the ESFA shall be entitled to terminate this Agreement on notice in writing.

21.5. Where the ESFA terminates the Agreement under any of Clauses 21.2 to 21.4 it shall do so by serving a written notice on the Training Provider specifying the Termination Date.

21.6. Termination under this Clause 21 shall not prejudice or affect any right of action or remedy, which shall have accrued or shall thereupon accrue to the Parties under this Agreement.




21.7. Where the Training Provider goes into administration or liquidation, the ESFA must be deemed to be a creditor of the Training Provider. The Training Provider must take steps to ensure that the ESFA is provided with details of the administrator or liquidator and receives notification of any creditors meetings. The ESFA will confirm whether in fact it is a creditor within 8 weeks of being notified that the Training Provider is in administration or liquidation.

21.8. Where the Training Provider fails to maintain its registration on the Register of Apprenticeship Training Providers contrary to Clause 5.1 (a) and there are Exceptional Circumstances, the ESFA reserves the right to decide not to terminate this Agreement in which case it will, from the date of that decision, only be under an obligation to provide Funding to the Training Provider for Training delivered to Apprentices that have already commenced their Training with the Training Provider.

21.9. A decision made by the ESFA under Clause 21.8 shall continue in force until either the termination or expiry of this Agreement or the Training Provider is successful in a re-application to the Register of Apprenticeship Training Providers, whichever is the earlier.

21.10. “Exceptional circumstances” referred to in Clause 21.8 include, but are not limited to;

a. The proximity of the planned end dates for Training delivered to Apprentices is such that moving the affected Apprentices to alternative provision would cause significant disadvantage to them;

b. The size or complexity of the Training Provider’s Apprenticeship programme would require additional time (in excess of three months) to transfer the existing Apprentices to other providers;

c. A suitable alternative provider is not available due to the niche nature of the Training or the delivery location.

21.11. The Training Provider must upon notice of termination of the Agreement make available to the ESFA all Apprentice files (including but not limited to e-portfolios), correspondence, documents, specification papers and other property belonging to the ESFA, which may be in its possession or under its control.

21.12. Notice of Termination of this Agreement under this Clause 21 shall result in the Training Provider being removed from the Register of Apprenticeship Training Providers maintained by the ESFA.

21.13. The Training Provider must not start any new Apprentices or Apprenticeships after notice of termination of the Agreement has been given. The ESFA will not be liable to make payments in respect of any Apprentices with a start date on or after the date notice of termination was served.

21.14. Following the termination of this Agreement, the following Clauses shall remain in full force and effect: 1 (Definitions and Interpretation); 2 (Purpose




and Use of Funding); 4 (Payment of Funding); 11 (Withholding, Suspension and Repayment of Funding); 13 (Information, Audit and Reporting), 14 (Intellectual Property Rights), 16 (Freedom of Information), 17 (Data Protection), 19 (Limitation of Liability), 26 (Notices), 27 (Dispute Resolution), 29 (Joint and Several Liability), 30 (Contracts (Rights of Third Parties) Act 1999) and 32 (Governing Law).

22. 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 result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.

23.Assignment

The Training Provider may not, without the prior written consent of the ESFA, assign, transfer, or in any other way make over to any third party the benefit and / or the burden of this Agreement.

24.Variation

The ESFA reserves the right to vary the terms of this Agreement at its absolute discretion. The Training Provider will receive an electronic notification of the change when it accesses the ESFA’s Manage Your Education and Skills Funding Service for Training Providers on www.gov.uk and will be asked to confirm its acceptance of the new terms and conditions.

25.Waiver

No failure or delay by either party to exercise any right or remedy under this Agreement shall be construed as a waiver of any other right or remedy.

26.Notices

All notices and other communications in relation to this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered, e-mailed, or mailed (first class postage prepaid) to the address of the relevant party, as referred to above or otherwise notified in writing. If personally delivered or if e-mailed all such communications shall be deemed to have been given when received (except that if received on a non-Working Day or after 5.00 pm on any Working Day they shall be deemed received on the next Working Day) and if mailed all such communications shall be deemed to have been given and received on the second Working Day following such mailing.




27.Dispute Resolution

Any complaint or dispute arising in relation to this Agreement shall be resolved in accordance with ESFA’s official complaints procedure.

28.No Partnership or Agency

This Agreement shall not create any partnership or joint venture between the ESFA and the Training Provider, nor any relationship of principal and agent, nor authorise any party to make or enter into any commitments for or on behalf of the other party.

29.Joint and Several Liability

Where the Training Provider is not a company nor an incorporated entity with a distinct legal personality of its own, the individuals who enter into and sign this Agreement on behalf of the Training Provider shall be jointly and severally liable for the Training Provider’s obligations and liabilities arising under this Agreement.

30.Contracts (Rights of Third Parties) Act 1999

This Agreement does not and is not intended to confer any contractual benefit on any person pursuant to the terms of the Contracts (Rights of Third Parties) Act 1999.

31.Entire Agreement

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.

32.Governing Law

This Agreement shall be governed by and construed in accordance with the law of England and Wales and the Parties irrevocably submit to the exclusive jurisdiction of the English and Welsh courts.




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Terms and conditions · Web viewContract Conditions 08/09 Last modified by GARLAND, Karen Company Packard Bell NEC, Inc