Terms and Conditions

Background:

  1. The Customer is a School that is looking to procure certain Products at Discounted Catalogue Prices.

  2. DPS has a network of Panel Members who are willing to offer the Products to the School at a Discounted Catalogue Price provided that the School use the Panel for the purchase of the Products and enter into a Relevant Order.

  3. Subject to the terms of this agreement, DPS is willing to give the Customer access to the Panel.

Agreed terms:

  1. Interpretation

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

  1. Definitions:

Academic Purchasing Year

means a twelve (12) month period commencing on 1 September and ending on 31 August.

Applicable Laws

means any and all legislation (including statute, statutory instrument, treaty, regulation, order, directive, by-law, decree) and common law; regulatory rules, guidance and licence conditions issued by an applicable regulator; judgments, resolutions, decisions, orders, notices or demands of a competent court, tribunal, regulatory body or governmental authority in each case having the force of binding law or by which either party is bound; and industry guidelines or codes of conduct which in each case are mandatory or which are industry best practice.

Business Day

a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Catalogue

means a Panel Member’s catalogue of products available for purchase as updated in each Academic Purchasing Year.

Catalogue Price

means the standard price for Products in a Catalogue, prior to the application of any Discount.

Customer Representative

means the person designated as such in the Agreement Coversheet, or such other person as the Customer may from time to time designate as the Customer Representative and notify to DPS, provided that such Customer Representative is duly authorised to represent the Customer in all matters connected with this agreement.

Discount

means the reduction in price when the Catalogue Price and the Discounted Catalogue Price are compared, expressed as a percentage of the Catalogue Price.

Discounted Catalogue Price

means the discounted price for Products offered by the Panel Member to the Customer as notified to the School at the beginning of each Academic Purchasing Year in accordance with clause 3.1.2.

Excess

means any savings in excess of the Minimum Discount Percentage.

Gainshare Payment

means the payment due and payable by the Customer to DPS which shall be calculated and paid in accordance with clause 0.

Gainshare Percentage

means the percentage of the Excess that DPS is entitled to, as such percentage is expressed for the benefit of the Customer in the Agreement Coversheet.

Minimum Discount Percentage

has the meaning given to that term in the Agreement Coversheet.

Panel

means the framework of Panel Members offering Products at a Discounted Catalogue Price to the Customer.

Panel Access Services

the access to Panel Members and Discounted Catalogue Prices provided by DPS to the Customer under this Panel Access Agreement;

Panel Appointment Agreement

means any agreement entered into by DPS and Panel Member pursuant to which the Panel Member agrees to offer the Customer certain Products at a Discounted Catalogue Price.

Panel Member

means a supplier of goods or services who, pursuant to a Panel Appointment Agreement, has agreed to offer the Customer certain Products at a Discounted Catalogue Price.

Product Lots

means the categories of Products that the Customer may purchase from the Panel Members at the Discounted Catalogue Price as specified as being available to the Customer in the Agreement Coversheet.

Products

any products that fall within a Product Lot and are made available to the Customer by the Panel Member in accordance with the terms of a Panel Appointment Agreement.

Relevant Order

means an order for the supply of Products at the Discounted Catalogue Price entered into on the Panel Member's standard terms and conditions during the Term between the Panel Member and the Customer.

Requirements

means the requirements of a Customer for Products in each Academic Purchasing Year.

Schools

means any learning establishment offering education to children in England and Wales including (without limitation) community schools, foundation schools, academies, framer schools, special schools, faith schools or private schools, who have entered into a panel access agreement with DPS [and where appropriate any Local Authority acting on behalf of such School].

Term

means the term of this Agreement as set out in clause 2.1.

Term One End Date

has the meaning given to that term in the Agreement Coversheet.

VAT

value added tax chargeable in the UK.

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

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

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

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

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

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

  7. This agreement shall be binding on, and endure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.

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

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

  10. A reference to writing or written includes fax but not email.

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

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

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

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. Commencement and duration

    1. This agreement shall commence on the date specified in the Agreement Coversheet (“the Commencement Date”) and shall continue, unless terminated earlier in accordance with clause 13 (Termination), until the last day of the second complete Academic Purchasing Year following the Commencement Date when it shall terminate automatically without notice.

  2. DPS obligations

    1. DPS shall:

      1. within five Business Days of the Commencement Date notify all Panel Members that the Customer has entered into this agreement, and is therefore entitled to make Relevant Orders for Products at the Discounted Catalogue Price;

      2. notify to the Customer in writing:

        1. on or around the Commencement Date and for each Product Lot, which Products will be made available to the Customer, the Panel Member offering such Products and the Discounted Catalogue Price for such Products in the period commencing on the Commencement Date and expiring on the last day of the Academic Purchasing Year in which the Commencement Date falls; and

        2. not less than [5 Business Days] prior to the commencement of any subsequent Academic Purchasing Year and for each Product Lot,  which Products will be made available to the Customer, the Panel Member offering such Products and the Discounted Catalogue Price for such Products during such Academic Purchasing Year.

      3. in its management of the Panel and provision of the Panel Access Services act in good faith;

      4. use reasonable endeavours to conduct due diligence on each Panel Member and the Products prior to their appointment to the Panel;

      5. use reasonable endeavours to maintain the Panel for the Term;

      6. promptly notify the Customer of any changes to any Panel Member or Product from time to time.

    2. DPS is merely offering access to the Panel on the Panel Members’ behalf and DPS shall have no authority, and shall not hold itself out, or permit any person to hold itself out, or otherwise create the impression that it is authorised to bind the Customer in any way and shall not do any act which might reasonably create the impression that DPS is so authorised.

    3. DPS shall not make or enter into any contracts or commitments or incur any liability for or on behalf of the Customer including for the provision of the Products and shall not negotiate any terms for the provision of the Products (save that DPS has agreed with the Panel Members that Products shall be offered at the Discounted Catalogue Price to the Customer).

  3. Customer's obligations

    1. The Customer shall:

      1. co-operate with DPS in all matters relating to the Panel Access Services;

      2. enter into a Relevant Order when purchasing Products from a Panel Member;

      3. submit all complaints regarding the quality, fitness or description of any Product directly to the Panel Member;

      4. notify, as soon as is reasonably possible, DPS of any complaint it submits to a Panel Member, in sufficient detail to allow DPS to understand the substance of the complaint. For the avoidance of doubt, DPS shall have no liability or responsibility whatsoever in respect of any such complaint.  

      5. provide to DPS in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) reasonably required by DPS in connection with the Panel Access Services and any Gainshare Payment and ensure that they are accurate and complete;

      6. obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable DPS to provide the Panel Access Services, in all cases before the date on which the Panel Access Services are to start; and

      7. comply with all Applicable Laws.

  4. Customer Representative

    1. Where any term or condition of this agreement requires or allows instructions, information or requests to be given, made, or acted upon on receipt by the Customer, insofar as is reasonably practicable, the instruction, information or request shall be given, made, or acted upon by the Customer Representative or such other duly authorised person or persons nominated by the Customer Representative.

    2. The Customer shall procure that the Customer Representative shall make himself available for meetings with DPS as reasonably requested by DPS upon reasonable notice to discuss the operation of this agreement and/or the resolution of any issues arising under or in relation to this agreement; and maintain direct and regular contact with DPS on all matters relating to this agreement.

  5. Audit

    1. The Customer shall allow DPS or DPS' authorised representatives or agents to have access to the Customer's premises, personnel and records during working hours on any Business Day in order to access or take copies of any of the Customer's books, accounts and records insofar as they relate to this agreement or any Relevant Order as may be reasonably required to ensure that DPS can:

      1. fulfil any legally enforceable request by any regulatory body;

      2. verify the Customer’s compliance with clause 5; and

      3. verify the Customer's compliance with any other terms and conditions of this agreement.

    2. DPS shall provide at least 7 Business Days' notice of its intention to conduct an audit unless such audit is conducted in respect of a suspected fraud, in which event no notice is required. DPS will not exercise its right of audit more than once in any given calendar year unless such audit is conducted in respect of a suspected fraud.

    3. DPS shall comply with any reasonable security requirements of the Customer in conducting any audit under this clause 7.

  6. Gainshare Payment

    1. The parties agree and acknowledge that, provided that the Customer places Relevant Orders with Panel Members in accordance with Clause 5, the Customer is expected to achieve, in respect of each separate Product Lot, a Discount of at least the applicable Minimum Discount Percentage that applies to each Product Lot (as specified in the Agreement Coversheet).

    2. In consideration of the provision of the Panel Access Services by DPS, the Customer shall pay to DPS a Gainshare Payment which shall be a sum equal to the Gainshare Percentage  and which shall be calculated as follows:

Gainshare Payment = (Total Savings minus Minimum Savings) x the Gainshare Percentage

Where:

Total Savings is a sum equal to the Total Catalogue RO Value less Actual RO Value;

Total Catalogue RO Value is the total value of all Relevant Orders placed during an Academic Purchasing Year at the Catalogue Price;

Actual RO Value is the total value of all Relevant Orders placed during an Academic Purchasing Year at the Discounted Catalogue Price;

Minimum Savings is Total Catalogue RO Value multiplied by the Minimum Discount Percentage.

  1. DPS shall determine Gainshare Payment in accordance with clause 8.2 above at the end of each Academic Purchasing Year, and shall invoice the Customer for the Gainshare Payment within [7 Business Days] of the Term One End Date.

  2. The Customer shall retain records of all Relevant Orders placed with Panel Members in any Academic Purchasing Year, and shall provide access to any such records on request by DPS for the purposes of calculating or verifying the Gainshare Payment.

  3. The Customer shall pay each invoice submitted to it by DPS within 30 days of receipt to a bank account nominated in writing by DPS from time to time.

  4. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay DPS any sum due under this agreement on the due date:

    1. the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.6.1 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%;

    2. DPS may suspend the Customer’s access to the Panel, by notifying Panel Members that they should not accept Relevant Orders from the Customer until such sums are paid in full.

  5. All sums payable to DPS under this agreement:

    1. are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and

    2. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

  1. Intellectual property rights

    1. The Customer hereby grants to DPS a perpetual, royalty-free, non-exclusive, irrevocable, non-exclusive and non-transferable licence to use its name, logo, and trademarks, solely for the purpose of and to the extent necessary for DPS to supply the Panel Access Services and to promote the Panel to Schools and potential panel members.

  2. Confidentiality

    1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 10.2.

    2. Each party may disclose the other party's confidential information:

      1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 10; and

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

    3. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

    4. DPS acknowledges that, the Customer is subject to the Freedom of Information Act 2000 (FOIA) and the Environment Information Regulations 2004 (EIR). The Customer shall take reasonable steps to notify DPS of a request for information to the extent that it is permissible to do so and shall not disclose any information that is exempt in accordance with the FOIA or the EIR.

  3. Anti-bribery

    1. Compliance with Bribery Act 2010.  The parties shall comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010.

    2. Reporting obligation. The parties shall promptly report to the other any request or demand for any undue financial or other advantage of any kind received by the party in connection with the performance of this agreement.

  4. Limitation of liability

    1. The restrictions on liability in this clause 12 apply to every liability arising under or in connection with this agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

    2. Nothing in this agreement limits any liability which cannot legally be limited, including liability for:

      1. death or personal injury caused by negligence; and

      2. fraud or fraudulent misrepresentation.

    3. Subject to clause 12.2, in no event shall DPS be liable to the Customer for any loss of revenue, loss of anticipated savings, wasted expenditure, loss of data, loss or damage to goodwill or any indirect and consequential losses suffered by the Customer.

    4. Subject to clause 12.2, the total aggregate liability of DPS in respect of all other loss or damage arising under or in connection with this agreement, shall in no circumstances exceed a sum equal to the total Gainshare Payments for the entire Term.

The parties agree and acknowledge that DPS are not a party to any Relevant Order, and shall have no liability whatsoever (in contract, tort, negligence or breach of statutory duty or otherwise) for any loss suffered by the Customer in relation to a Relevant Order, including without limitation, for any breach, negligence or other act or omission of any Panel Member arising out of or in connection with any Relevant Order.

  1. Termination

    1. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

      1. the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;

      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;

      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 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

      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 any of its creditors other than (being a company) 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;

      5. 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 that other party (being a company);

      6. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);

      7. the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

      8. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;

      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 the other party's assets and such attachment or process is not discharged within 14 days;

      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 13.1.3 to clause 13.1.1 (inclusive);

      11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business or activities; or

      12. DPS’ performance of the Panel Access Services ceases to be in accordance with Applicable Law.

    2. Without affecting any other right or remedy available to it, DPS may terminate this agreement  (in whole or in respect of any Product Lot) with immediate effect by giving written notice to the Customer if:

      1. the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 10 days after being notified to make such payment; or

      2. the Customer fails to comply with its obligations under clause 6.1.

    3. Without affecting any other right or remedy available to it, the Customer may terminate this agreement at the end of an Academic Purchasing Year by giving not less than 30 days’ written notice to DPS in the event that the Customer fails to achieve a Discount of not less than the Minimum Discount Percentage in that Academic Purchasing Year.

    4. Without affecting any other right or remedy that DPS may have (whether under this agreement or otherwise), DPS shall be entitled (in its sole discretion) to terminate this agreement at any time in whole or in respect of any Product Lot by giving the Customer not less than 30 days’ written notice in writing.

  2. Consequences of termination

    1. On termination or expiry of this agreement:

      1. DPS shall calculate any Gainshare Payment due and payable in respect of any Academic Purchasing Year (or any part of an Academic Purchasing Year on a pro-rata basis) and may invoice the Customer for any such outstanding Gainshare Payment; and

      2. the Customer shall immediately pay to DPS all of DPS's outstanding unpaid invoices and interest;

      3. the Customer shall immediately cease to place Relevant Orders;

      4. termination of this agreement shall not affect the validity or continuity of any Relevant Orders entered into prior to the effective date of termination; and

      5. the following clauses shall continue in force: clause 1 (Interpretation), clause 9 (Intellectual property rights), clause 10 (Confidentiality), clause 12 (Limitation of liability), clause 14 (Consequences of termination), clause 17 (Waiver), clause 19 (Severance), clause 21 (Conflict), clause 26 (Governing law) and clause 27 (Jurisdiction).

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

  3. Assignment and other dealings

    1. This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

    2. DPS may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that DPS gives prior written notice of such dealing to the Customer.

  4. Variation

    1. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  5. Waiver

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

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

  6. Rights and remedies

    1. The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

  7. Severance

    1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

    2. If any provision or part-provision of this agreement is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

  8. Entire agreement

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

    2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

    3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

  9. Conflict

    1. If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.

  10. No partnership or agency

    1. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

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

  11. Third party rights

    1. This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

  12. Notices

    1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be:

      1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).

    2. Any notice shall be deemed to have been received:

      1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or

      2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

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

    4. A notice given under this agreement is not valid if sent by email.

  13. Counterparts

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

  14. Governing law

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

  15. Jurisdiction

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

This agreement has been entered into on the date stated at the beginning of it.