Agreement for supply of services
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Dated [
date]
[
name of Council]
— and —
[
name of Service Provider]
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Contents
1
Definitions and interpretation ................................................................................................................... 1
2
Services ...................................................................................................................................................... 2
3
Performance of the Services ..................................................................................................................... 2
4
Council’s employees and agents ............................................................................................................... 2
5
Insurance ................................................................................................................................................... 3
6
Fee and payment ....................................................................................................................................... 3
7
The Council’s obligations ........................................................................................................................... 3
8
Reporting requirements ............................................................................................................................ 4
9
Protection of confidential information ...................................................................................................... 4
10
Data Protection ......................................................................................................................................... 4
11
Warranties ................................................................................................................................................. 8
12
Liability and indemnities ............................................................................................................................ 8
13
Termination ............................................................................................................................................... 8
14
General ...................................................................................................................................................... 9
The Schedule Specification Document ................................................................................................................. 12
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THIS AGREEMENT is made on [
date]
PARTIES
(1)
[
name of Council] having its principle office at [
address] (the
Council) and
(2)
[
name of company] a company incorporated in Northern Ireland under company number [
number]
and whose registered office is at [
address] (the
Service Provider)
BACKGROUND
(A)
The Council wishes to receive
[describe the service to be provided
].
(B)
The Service Provider has the skills, background and experience in providing
[describe the service to be
provided
].
(C)
The Service Provider is willing to provide the Services (as defined below) and the Council is receive the
Services, all subject to the provisions of this Agreement.
THE PARTIES AGREE:
1
Definitions and interpretation
1.1
Definitions
In this Agreement:
Best Practice
has the meaning given in claus
e 11.2;
Services
means
[[
specify type of services to be provided eg:] providing advice and
preparing a report of recommendations
] to the Council by the Service Provider;
Completion
means [
date] or such other date as the Parties may agree;
Date
Fee
means the sums specified in the Specification Document;
Named
means [
names of individual consultants who are to provide the Services];
Consultants
Outcomes
means
[the desired outcome of performing the Services in accordance with the
Specification Document
];
Payment Date
means [
date];
Reports
means all reports, documentation, presentations, software or drawings in
whatever format the Service Provider shall or may create or deliver to the
Council as part of the Services provided by the Service Provider; and
Specification
has the meanings given in claus
e 2.2 and the documents attached to this
Document
Agreement as
the schedule.
1.2
Interpretation
In this Agreement unless the context otherwise requires:
1.2.1
words importing any gender include every gender;
1.2.2
words importing the singular number include the plural number and vice versa;
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1.2.3
words importing persons include firms, companies and corporations and vice versa;
1.2.4
references to numbered clauses and schedules are references to the relevant clause in or
schedule to this Agreement;
1.2.5
reference in any schedule to this Agreement to numbered paragraphs relate to the
numbered paragraphs of that schedule;
1.2.6
any obligation on any Party not to do or omit to do anything is to include an obligation not to
allow that thing to be done or omitted to be done;
1.2.7
the headings to the clauses, schedules and paragraphs of this Agreement are not to affect
the interpretation;
1.2.8
any reference to an enactment includes reference to that enactment as amended or
replaced from time to time and to any subordinate legislation or byelaw made under that
enactment; and
1.2.9
where the word
including is used in this Agreement, it shall be understood as meaning
including without limitation.
2
Services
2.1
The Service Provider shall provide the Services to the Council for the Fee to produce the Outcomes,
subject to the provisions of this Agreement.
2.2
The Service Provider will perform the Service in accordance with Council’s instructions and
information for tenderers, conditions of contract, specification, pricing schedule, appendices, tender
clarifications and correspondences and the Service Provider’s form of tender which was submitted in
this regard (the
Specification Document). In the case of conflict, the specification shall take
precedence over any other documentation save where agreed to by the Council in writing.
2.3
The Specification Document may be varied, or added to, from time to time, in writing and signed by
both Parties. The changes shall be clearly identified, together with the additional or different level of
fees to be paid by the Council.
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Performance of the Services
3.1
The Parties shall agree the time and place (if not specified in the Specification Document) for
performance of the Services, subject to the availability of the Service Provider’s staff and agents.
3.2
The Service Provider shall complete the Services by the Completion Date or meet such other dates as
agreed by the Parties.
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Council’s employees and agents
4.1
[The Services shall be carried out by the Named Consultants.
]
4.2
The Service Provider shall not make changes to the Named Consultants except with the prior written
approval of the Council which shall not be unreasonably refused.
4.3
If the Service Provider wishes to change any of the Named Consultants the Service Provider shall
supply such details as the Council may reasonably require (including, but not limited to, full details of
the professional and other qualifications, experience and work history of the replacement).
4.4
If the Named Consultants are not available or become unavailable to provide the Services, and there
are not satisfactory replacements available in the reasonable opinion of the Council, then the
Agreement may be terminated by the Council.
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4.5
The Council, at its sole discretion, may require that any employee or agent of the Service Provider
have its involvement in the performance of the Services terminated. The Council shall provide written
notice of such requirement to the Service Provider, which shall take effect on the giving of the notice.
The Service Provider shall supply a replacement that is acceptable to the Council.
4.6
The Service Provider shall ensure, and instruct their employees and agents accordingly, that the
Service Provider’s employees and agents shall take all reasonable steps to safeguard their safety and
the safety of other persons who may be affected by their actions or omissions. The Service Provider
agrees to indemnify and keep indemnified the Council from all and any liabilities, obligations, costs
and expenses whatsoever arising from any loss, damage or injury caused to the Council or any third
party by the Service Provider’s employees and agents in this regard.
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Insurance
5.1
The Service Provider shall have in place one or more insurance policies:
5.1.1
to cover the liabilities that may arise from the Service Provider, Named Consultants its
employees or agents performing the Services; or
5.1.2
as may be required by the Council from time-to-time,
and the insurance policies shall remain in force during the period this Agreement is in force.
5.2
At the request of the Council, the Service Provider shall supply a copy of the insurance policies to the
Council and ensure that the Council shall be entitled to the benefit of such insurances.
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Fee and payment
6.1
Payment of the Fee for the Services shall be made
[on the Payment Date OR within 30 days of the
date of invoice OR as specified in the Specification Document
].
6.2
All amounts stated are exclusive of VAT and/or any other applicable taxes or levy, which shall be
charged in addition at the rate in force at the date any payment is required from the Council.
6.3
The Council shall not be liable for any expenses, charges, costs, fees other than the Fees as specified
in the Specification Document or as expressly agreed in writing by the Parties.
6.4
If payment of the Fee is not received by any due date, the Service Provider may charge interest on the
outstanding amount at the rate of 2% a year above the Bank of England base rate accruing daily.
6.5
If any of the Services in the Specification Document have not been performed
[in accordance with
the timings given or provided OR by the Completion Date
] then the Council shall be entitled not to
make any outstanding or due payments until such Services are performed.
6.6
All payments shall quote the Service Provider’s invoice number and other reference numbers.
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The Council’s obligations
The Council acknowledges and agrees that for the Supplier to be able to provide the Services the
Council shall:
7.1
co-operate with the Service Provider as the Service Provider reasonably requires;
7.2
provide to the Service Provider such information and documentation as the Service Provider
reasonably requires;
7.3
make available to the Service Provider the facilities, resources, working space and staff as specified in
the Specification Document and/or as the Service Provider reasonably requires from time-to-time;
and
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7.4
instruct the Council’s staff and agents to co-operate and assist the Service Provider.
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Reporting requirements
8.1
The Specification Document shall specify the Reports that are to be produced during or on completion
of the Services.
8.2
The Service Provider shall provide regular progress reports (including reports of time taken against
the timings given in the Specification Document) at the frequency and in the format requested by the
Council.
8.3
Where required in the Specification Document to provide Reports, the Service Provider shall supply
such numbers of copies of the Reports to the Council as the Council reasonably requires without
additional charge.
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Protection of confidential information
9.1
Each Party (
Receiving Party) shall keep the confidential information of the other Party (
Supplying
Party) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving
Party shall only use the confidential information of the Supplying Party for the Purpose and for
performing the Receiving Party’s obligations under the Agreement. The Receiving Party shall inform
its officers, employees and agents of the Receiving Party’s obligations under the provisions of this
claus
e 9, and ensure that the Receiving Party’s officers, employees and agents meet the obligations.
9.2
The obligations of claus
e 9.1 shall not apply to any information which:
9.2.1
was known or in the possession of the Receiving Party before it was provided to the
Receiving Party by the Supplying Party;
9.2.2
is, or becomes, publicly available through no fault of the Receiving Party;
9.2.3
is provided to the Receiving Party without restriction or disclosure by a third party, who did
not breach any confidentiality obligations by making such a disclosure;
9.2.4
was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or
knowledge of the confidential information supplied by the Supplying Party; or
9.2.5
is required to be disclosed by order of a court of competent jurisdiction.
9.2.6
Is required to be provided by virtue of any enactment including but not limited to the
Freedom of Information Act 2000, The Environmental Information Regulations 2004 and the
Data Protection Act 1998.
9.3
This clause
9 shall survive termination of this Agreement for a period of 2 years.
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Data Protection
10.1
The following definitions shall apply to this clause 10.
10.1.1
Data Protection Legislation: (i) the GDPR, the LED and any applicable national implementing
Laws as amended from time to time (ii) the DPA 2018 [subject to Royal Assent] to the extent
that it relates to processing of personal data and privacy; (iii) all applicable Law about the
processing of personal data and privacy.
10.1.2
Data Protection Impact Assessment: an assessment by the Controller of the impact of the
envisaged processing on the protection of Personal Data.
10.1.3 Controller, Processor, Data Subject, Personal Data, Personal Data Breach, Data Protection
Officer take the meaning given in the GDPR.
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10.1.4
Data Loss Event: any event that results, or may result, in unauthorised access to Personal
Data held by the Service Provider under this Agreement, and/or actual or potential loss
and/or destruction of Personal Data in breach of this Agreement, including any Personal Data
Breach.
10.1.5
Data Subject Access Request: a request made by, or on behalf of, a Data Subject in
accordance with rights granted pursuant to the Data Protection Legislation to access their
Personal Data.
10.1.6
DPA 2018: Data Protection Act 2018
10.1.7
GDPR: the General Data Protection Regulation
(Regulation (EU) 2016/679)
10.1.8
LED: Law Enforcement Directive
(Directive (EU) 2016/680)
10.1.9
Protective Measures: appropriate technical and organisational measures which may include:
pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability
and resilience of 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 such measures adopted by it.
10.1.10
Sub-processor: any third Party appointed to process Personal Data on behalf of the Service
Provider related to this Agreement.
10.2
DATA PROTECTION
10.2.1 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Council
is the Controller and the Service Provider is the Processor.
10.2.2 The Service Provider shall notify the Council immediately if it considers that any of the
Council's instructions infringe the Data Protection Legislation.
10.2.3 The Service Provider shall provide all reasonable assistance to the Council in the preparation
of any Data Protection Impact Assessment prior to commencing any processing. Such
assistance may, at the discretion of the Council, include:
(a)
a systematic description of the envisaged processing operations and the purpose of
the processing;
(b)
an assessment of the necessity and proportionality of the processing operations in
relation to the Services;
(c)
an assessment of the risks to the rights and freedoms of Data Subjects; and
(d)
the measures envisaged to address the risks, including safeguards, security
measures and mechanisms to ensure the protection of Personal Data.
10.2.4 The Service Provider shall, in relation to any Personal Data processed in connection with its
obligations under this Agreement:
(a)
process that Personal Data only in accordance with Privacy Notice unless the Service
Provider is required to do otherwise by Law. required the Service Provider shall
promptly notify the Council before processing the Personal Data unless prohibited
by Law;
(b)
ensure that it has in place Protective Measures, which have been reviewed
and approved by the Council as appropriate to protect against a Data Loss Event
having taken account of the:
(i)
nature of the data to be protected;
(ii)
harm that might result from a Data Loss Event;
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(iii)
state of technological development; and
(iv)
cost of implementing any measures;
(c)
ensure that:
(i)
the Service Provider Personnel do not process Personal Data except in
accordance with this Agreement (and in particular Schedule X);
(ii)
it takes all reasonable steps to ensure the reliability and integrity of any
Service Provider Personnel who have access to the Personal Data and
ensure that they:
(A)
are aware of and comply with the Service Provider’s duties under this
clause;
(B)
are subject to appropriate confidentiality undertakings with the Service
Provider or any Sub-processor;
(C)
are informed of the confidential nature of the Personal Data and do not
publish, disclose or divulge any of the Personal Data to any third Party
unless directed in writing to do so by the Council or as otherwise permitted
by this Agreement; and
(D)
have undergone adequate training in the use, care, protection and
handling of Personal Data;
(d)
not transfer Personal Data outside of the EU unless the prior written consent of
the Council has been obtained and the following conditions are fulfilled:
(i)
the Council or the Service Provider has provided appropriate safeguards in
relation to the transfer (whether in accordance with GDPR Article 46 or LED
Article 37) as determined by the Council;
(ii)
the Data Subject has enforceable rights and effective legal remedies;
(iii)
the Service Provider complies with its obligations under the Data
Protection Legislation by providing an adequate level of protection to any
Personal Data that is transferred (or, if it is not so bound, uses its best
endeavours to assist the Council in meeting its obligations); and
(iv)
the Service Provider complies with any reasonable instructions notified to
it in advance by the Council with respect to the processing of the Personal
Data;
(e)
at the written direction of the Council, delete or return Personal Data (and any
copies of it) to the Council on termination of the Agreement unless the Service
Provider is required by Law to retain the Personal Data.
10.3
Subject to clause 10.4, the Service Provider shall notify the Council immediately if it:
(a)
receives a Data Subject Access Request (or purported Data Subject Access Request);
(b)
receives a request to rectify, block or erase any Personal Data;
(c)
receives any other request, complaint or communication relating to either Party's
obligations under the Data Protection Legislation;
(d)
receives any communication from the Information Commissioner or any other
regulatory authority in connection with Personal Data processed under this
Agreement;
(e)
receives a request from any third Party for disclosure of Personal Data where
compliance with such request is required or purported to be required by Law; or
(f)
becomes aware of a Data Loss Event.
10.4
The Service Provider’s obligation to notify under clause 10.3 shall include the provision of further
information to the Council in phases, as details become available.
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10.5
Taking into account the nature of the processing, the Service Provider shall provide the Council with
full assistance in relation to either Party's obligations under Data Protection Legislation and any
complaint, communication or request made under clause 10.3 (and insofar as possible within the
timescales reasonably required by the Council) including by promptly providing:
10.5.1 the Council with full details and copies of the complaint, communication or request;
10.5.2 such assistance as is reasonably requested by the Council to enable the Council to comply
with a Data Subject Access Request within the relevant timescales set out in the Data
Protection Legislation;
10.5.3 the Council, at its request, with any Personal Data it holds in relation to a Data Subject;
10.5.4 assistance as requested by the Council following any Data Loss Event;
10.5.5 assistance as requested by the Council with respect to any request from the Information
Commissioner’s Office, or any consultation by the Council with the Information
Commissioner's Office.
10.6
The Service Provider shall maintain complete and accurate records and information to demonstrate
its compliance with this clause. This requirement does not apply where the Service Provider employs
fewer than 250 staff, unless:
10.6.1 the Council determines that the processing is not occasional;
10.6.2 the Council determines the processing includes special categories of data as referred to in
Article 9(1) of the GDPR or Personal Data relating to criminal convictions and offences
referred to in Article 10 of the GDPR; and
10.6.3 the Council determines that the processing is likely to result in a risk to the rights and
freedoms of Data Subjects.
10.7
The Service Provider shall allow for audits of its Data Processing activity by the Council or the
Council’s designated auditor.
10.8
The Service Provider shall designate a data protection officer if required by the Data Protection
Legislation.
10.9
Before allowing any Sub-processor to process any Personal Data related to this Agreement, the
Service Provider must:
10.9.1 notify the Council in writing of the intended Sub-processor and processing;
10.9.2 obtain the written consent of the Council;
10.9.3 enter into a written agreement with the Sub-processor which give effect to the terms set out
in this clause 10 such that they apply to the Sub-processor; and
10.9.4 provide the Council with such information regarding the Sub-processor as the Council may
reasonably require.
10.10
The Service Provider shall remain fully liable for all acts or omissions of any Sub-processor.
10.11
The Council may, at any time on not less than 30 Working Days’ notice, revise this clause by replacing
it with any applicable controller to processor standard clauses or similar terms forming part of an
applicable certification scheme (which shall apply when incorporated by attachment to this
Agreement).
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10.12
The Parties agree to take account of any guidance issued by the Information Commissioner’s Office.
The Council may on not less than 30 Working Days’ notice to the Service Provider amend this
agreement to ensure that it complies with any guidance issued by the Information Commissioner.
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Warranties
The Service Provider warrants, represents and undertakes that:
11.1
it will carry out the work by the Completion Date;
11.2
it will carry out the Services with all due skill and diligence and in a good and workmanlike manner,
and in accordance with the best practice within the industry of the Service Provider (
Best Practice);
11.3
it will use its best endeavours to achieve the Outcomes and that the Outcomes will be in accordance
in all material respects with the Specification Document;
11.4
the Service Provider’s employees and agents will have the necessary skills, professional qualifications
and experience to perform the Services in accordance with the Specification Document and Best
Practice (the Service Provider shall be responsible for all costs, fees, expenses and charges for training
necessary or required for the Service Provider’s employee and agents to perform the Services);
11.5
the Services, Reports and Specification Document shall not infringe any third-party intellectual
property rights;
11.6
it has full capacity and authority to enter into this Agreement; and
11.7
it has obtained all necessary and required licences, consents and permits to perform the Services.
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Liability and indemnities
12.1
If any part of the Services is performed negligently or in breach of the provisions of this Agreement
then, at the request of the Council (if the request is given within 6 months of the Completion Date),
the Service Provider will re-perform the relevant part of the Services, always subject to clause
s 12.2
an
d 12.3 below.
12.2
Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty
or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered
by that other Party of an indirect or consequential nature including without limitation any economic
loss or other loss of turnover, profits, business or goodwill.
12.3
Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance
on any representation, warranty or other provision except as expressly provided in this Agreement,
and any conditions, warranties or other terms implied by statute or common law are excluded from
this Agreement to the fullest extent permitted by law.
13
Termination
13.1
Either Party may terminate this Agreement by giving written notice to the other Party if the Named
Consultant becomes unavailable to carry out the Services and the Parties after discussion cannot
agree on a mutually agreeable replacement.
13.2
Without prejudice to other remedies or rights, either Party may terminate this Agreement at any time
by written notice to the other Party (the
Other Party), the notice taking effect as specified in the
notice:
13.2.1 if the Other Party is in breach of its obligations under this Agreement, and where a breach is
capable of remedy within 14 days, the breach is not remedied within 14 days by the Other
Party receiving notice which specifies the breach and requiring the breach to be remedied; or
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13.2.2 if the Other Party becomes insolvent or if an order is made or a resolution is passed for the
winding up of the Other Party (other than voluntarily for the purpose of solvent
amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is
appointed in respect of the whole or any part of the Other Party’s assets or business, or if the
Other Party makes any composition with its creditors or takes or suffers any similar or
analogous action in consequence of debt.
13.3
Upon termination of this Agreement the Service Provider shall deliver, and require that its employees
and agents deliver, to the Council:
13.3.1 all Reports and the Specification Document;
13.3.2 all materials, documents, papers, information, data and disks (in whatever form or medium
or format) (
Materials), wherever such Material is located or stored, and all copies of the
Materials;
13.3.3 any other property of the Council,
which are in the possession or control of the Service Provider or the Service Provider’s employees or
agents at the date of termination.
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General
14.1
Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any
delays or failures in performance of this Agreement which result from circumstances beyond the
reasonable control of that Party. The Party affected by such circumstances shall promptly notify the
other Party in writing when such circumstances cause a delay or failure in performance and when
they cease to do so. If such circumstances continue for a continuous period of more than 6 months,
either Party may terminate this Agreement by written notice to the other Party.
14.2
Amendments
This Agreement may only be amended in writing signed by duly authorised representatives of the
Parties.
14.3
Assignment
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge
or otherwise transfer any or all of its rights and obligations under this Agreement without the prior
written agreement of the other Party. A Party may, however, assign and transfer all its rights and
obligations under this Agreement to any person to which it transfers all of its business, provided that
the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor
under this Agreement.
14.4
Entire agreement
This Agreement contains the whole agreement between the parties in respect of the supply of the
Services and supersedes and replaces any prior written or oral agreements, representations or
understandings between them relating to the supply of the Services. The parties confirm that they
have not entered into this Agreement on the basis of any representation that is not expressly
incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
14.5
Waiver
No failure or delay by the Council in exercising any right, power or privilege under this Agreement
shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any
right, power or privilege preclude any further exercise of the same or the exercise of any other right,
9
power or privilege. The rights and remedies provided in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
14.6
Agency, partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary
relationship or other relationship between the Parties other than the contractual relationship
expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any
authority to make any commitments on the other Party’s behalf.
14.7
Further assurance
Each Party to this Agreement shall at the request and expense of the other or any of them execute
and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement
or to make it easier to enforce.
14.8
Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or
unenforceable, the provision shall, to the extent required, be severed from this Agreement and
rendered ineffective as far as possible without modifying the remaining provisions of this Agreement,
and shall not in any way affect any other circumstances of or the validity or enforcement of this
Agreement.
14.9
Announcements
No Party shall issue or make any public announcement or disclose any information regarding this
Agreement unless prior to such public announcement or disclosure it furnishes all the Parties with a
copy of such announcement or information and obtains the approval of such persons to its terms.
However, no Party shall be prohibited from issuing or making any such public announcement or
disclosing such information if it is necessary to do so to comply with any applicable law or the
regulations of a recognised stock exchange.
14.10
Notices
14.10.1 Any notice to be given under this Agreement shall be in writing and shall be sent by first class
mail or air mail, or email (confirmed by first class mail or air mail), to the address of the
relevant Party set out at the head of this Agreement, or to the relevant email address set out
below, or such other address or email address as that Party may from time to time notify to
the other Party in accordance with this clause. The email addresses of the Parties are as
follows:
(a)
Council [email address]
(b)
Service Provider [email address].
14.10.2 Notices sent as above shall be deemed to have been received 3 working days after the day of
posting (in the case of inland first class mail), or 7 working days after the date of posting (in
the case of air mail), or on the next working day after transmission
14.10.3 To prove notice was given it shall be sufficient to prove that the notice was left, or that the
envelope containing the notice was properly addressed and posted, or that the applicable
means of telecommunication was addressed and despatched and despatch of the
transmission was confirmed and/or acknowledged as the case may be.
14.11
Law and jurisdiction
The validity, construction and performance of this Agreement shall be governed by Northern Ireland
law and shall be subject to the exclusive jurisdiction of the Northern Ireland courts to which the
Parties submit.
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14.12
Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other
provision of this Agreement this Agreement is not intended to, and does not, give any person who is
not a party to it any right to enforce any of its provisions.
AGREED by the Parties etc
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THE SCHEDULE
SPECIFICATION DOCUMENT
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