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Terms of funding for the Flexible fund

This is a supporting legal document which you should read before completing an application form.

Between:

(1) The Construction Industry Training Board (Registered charity number 264289 and SC044875) whose principal place of business is at Bircham Newton, King’s Lynn, Norfolk, PE31 6RH (‘CITB or we’);

and

(2) The recipient (‘you’)

(A) We have reviewed your proposal (‘the Project’) and grant funds* (‘the Funds’) to assist in carrying out the Project.

(B) This Agreement sets out the terms and conditions on which the Funds are granted to you.

(C) The terms and conditions are intended to ensure that the Funds are used for the purpose for which it is awarded.

*in the sum communicated to you separately in the covering letter to this Agreement.

 

1. Funding and tax

1.1 CITB grants the Funds to the Project (inclusive of VAT) subject to clause 1.4 and 12 and in observance of the Agreement and the criteria attached in Annex 2.

1.2 The Funds will be used only by you and only for the Project.

1.3 The amount of the Funds shall not be increased in the event of any overspend by you in the delivery of the Project.

1.4 You shall promptly repay to CITB any money incorrectly paid to you either as a result of an administrative error or otherwise. This includes (without limitation) situations where either an incorrect sum of money has been paid or where Funds have been paid in error before all conditions attaching to the Funds have been complied with by you.

1.5 You acknowledge the Funds are not a taxable supply for VAT purposes by you to us. You understand our obligation does not extend to paying you any amounts in respect of VAT in addition to the Funds and that the Funds we give are inclusive of VAT.

1.6 Payment will be by the number of instalments in the sums, on the dates and according to the criteria set out in Annex 2 the payment schedule  so long as we are satisfied that such payment will or has been used for the proper expenditure of the Project.

1.7 Eligibility for payment will be measured in terms of the progress of the fulfilment of the Project in accordance with the profile outlined in the approved application form.

1.8 You shall not use the Funds to:

a) exclusively fund employees, directors or trustees;

b) purchase buildings or land;

c) fund any capital expenditure.

2. Duration

2.1 Except where otherwise specified, the terms of this Agreement shall apply from the date of this Agreement until the anniversary of expiry of the final period/date within the criteria attached in Annex 2).

2.2 Any obligations under this Agreement that remain unfulfilled following the expiry or termination of the Agreement shall survive such expiry or termination and continue in full force and effect until they have been fulfilled.

3.Evaluation and evidence

3.1 You will comply with all requests we make with regards to monitoring and evaluation including regular evaluation of evidence of the performance of the Project against the profile outlined in the approved application form.

3.2 Evidence will be submitted to CITB in accordance with the ‘Schedule for Evidence-based Staged Payments’ contained within Annex 2 of this Agreement in order to trigger staged payments throughout the duration of the Project. In relation to submitting the evidence time shall be of the essence. 

4. Intellectual Property Rights, marketing and promotion

4.1 For the purpose of this Agreement, the following definitions apply:

‘Intellectual Property Rights’ (‘IPR’) means any confidential information, patents, registered and unregistered trademarks, registered designs and unregistered design rights, copyright, know-how, trade secrets and all other creative content in the world. For the avoidance of doubt, data shall fall outside this category and shall be handled as set out in the data protection clause. 

‘Background IPR’ shall mean IPR owned by you or a third party not created under this Agreement but needed for the performance of the Agreement or for use and exploitation of Foreground IPR. 

‘Foreground IPR’ means IPR created by you or a subcontractor for the Project.

4.2 Any advertising, presentation or media coverage by you and training materials or products connected to the Project shall acknowledge CITB’s funding in accordance with the advice that shall be communicated to you separately.

4.3 Except as expressly set out in this Agreement you are not authorized to use any of CITB’s logo and/or trademarks without our prior written approval.

4.4 Nothing in this Agreement entitles you to state, either expressly or impliedly, that you are endorsed by, approved by, affiliated with or have any corporate association with CITB.

4.5 We may publicise funding the Project and we may use your logo/trademark to do so.

4.6 Nothing in this Agreement shall affect your ownership of the Background IPR. The Foreground IPR shall belong to CITB.

4.7 You grant us (and will ensure third parties do the same) a perpetual, royalty-free, non-exclusive worldwide licence to use the Background IPR so we can use the Foreground IPR.

4.8 We grant you a perpetual, royalty-free, non-exclusive worldwide licence to use the Foreground IPR.

4.9 You will have agreements with third parties equivalent to these IPR provisions and will provide us copies upon request.

4.10 We own all the new creative content in the Project and may share this across the industry.

5. Payment

5.1 Payment of the Funds will be made subject to

a) the submission of satisfactory evidence that the Project is proceeding according to the schedule outlined in Annex 2; and

b) receipt by us of a properly rendered drawdown invoice quoting the relevant purchase order number.

5.2 Subject to clause 5.1 we shall make payment within a reasonable period of receipt of the drawdown invoice.

5.3 For CITB, the project manager shall be the programme manager, or such other person appointed in their place, they shall provide guidance and assistance on policy matters. The CITB project manager’s decision in relation to the submission of evidence and the fulfilment of the Project in respect of clause 5.1 shall be final.

5.4 There are considerable pressures on the fund available, failure to discuss problems/issues concerned with evidence-based staged payments, and/or the fulfilment of the Project with us may result in funds being redistributed back into the fund. CITB reserves the right not to make the relevant staged payment to you in such circumstances.

5.5 We may ask you to co-operate and participate in research and to arrange for our researchers to have access to the beneficiaries of your project.

6. Indemnity

6.1 You shall indemnify, save and hold harmless CITB, its employees, agents, officers and subcontractors from and against any and all third party actions, claims, loss, damage, costs and expenses (including reasonable legal fees), or other labilities arising from the Project or incurred by reason of the actions and/or omissions (including without limitation infringement of IPR rights) of you in relation to the Project, nonfulfillment of obligations of you under this Agreement or your obligations to third parties.

7. Insurance

7.1 You will effect and maintain adequate insurance, as detailed in the Application Declaration Form and, if requested, you shall supply us with the relevant insurance documentation and evidence that the relevant premiums have been paid.

8. Discrimination

8.1 You 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) against anyone.

8.2 You shall take reasonable steps to secure observance of this clause by all servants, employees or agents engaged by you and all suppliers and subcontractors engaged on the Project.

9. Safeguarding

9.1 If the Project involves work with children, young people or vulnerable adults (vulnerable people), you will take all reasonable steps to ensure their safety.

9.2 You will obtain written agreement from the legal carer or guardian before any direct contact with vulnerable people and have policies and procedures to safeguard them, obtaining appropriate disclosure checks for anyone in contact with them.

10. Data Protection

10.1 For the purpose of this Agreement, the following definitions apply:

‘Data Protection Legislation’ means all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including (i) the Data Protection Act 2018 and any successor UK legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).

‘Personal Data’ and ‘Data Controller’ have the meaning ascribed to them in the Data Protection Legislation

10.2 The Parties acknowledge that they are each individually subject to the requirements of the Data Protection Legislation and each Party shall offer such prompt and reasonable assistance to the other party to assist it in complying with the applicable obligations under the Data Protection Legislation. 

10.3 Each Party is individually a Data Controller in respect of any Personal Data processed by it and each agrees to comply with its obligations under the Data Protection Legislation.

10.4 Both Parties shall share the Personal Data collected under this Agreement to the extent necessary for the performance of the Agreement. 

10.4.1  Where Personal Data is to be processed by the one party on behalf of the other, the parties shall enter into a separate data processing agreement in terms compliant with the Data Protection Legislation.

10.4.2 Where the Parties agree it would be beneficial and reasonably practicable, the Parties may anonymise or aggregate such information to the degree that it does not identify any individual. The Parties may agree additional terms or conditions upon which such data is to be shared.

10.4.3 A material failure by either Party to comply with this clause 10 shall be deemed a material/serious breach which shall entitle either Party to immediately terminate the agreement without consequence or any liability under this agreement;

10.5  The Parties shall and shall procure that any of their staff and agents involved in the provision of this agreement and any sub-contractor shall comply with their obligations under Data Protection Legislation and shall enter into appropriate arrangements with third parties.

10.6  Historical personal data shall be retained by the Parties in accordance with legal retention requirements. Personal Data which cannot be lawfully retained shall be securely deleted in accordance with Data Protection Legislation.

10.7   Each Party (the indemnifying Party) agrees to fully indemnify and keep indemnified and defend at its own expense the other Party (the indemnified Party) against all costs, claims, damages or reasonable expenses incurred by the other Party due to any failure by the indemnifying Party or its employees or agents to comply with their obligations under this Clause 10 provided that the indemnified Party takes reasonable steps to mitigate its losses, gives to the indemnifying Party prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it. The liability of the indemnifying Party under this clause shall be limited to £100,000.

11. Freedom of Information

11.1 You acknowledge that CITB is subject to the requirements of the Freedom of Information Act 2001(FOIA).

11.2 You undertake to:

(a) provide all necessary assistance and co-operation as reasonably requested by CITB and enable CITB to comply with its obligations under FOIA;

(b) transfer to CITB all requests for information relating to this Agreement that you receive as soon as practicable and in any event within two (2) working days of receipt;

(c) provide CITB with a copy of all information belonging to CITB requested in the request for information which is in your possession or control in the form that CITB requires within five (5) working days (or such other period as CITB may reasonably specify) of CITB’s request for such information; and(d) not respond directly to a request for information unless authorized in writing to do so by CITB.

11.3 You acknowledge that CITB may be required under the FOIA to disclose information without consulting or obtaining consent from you. CITB shall take reasonable steps to notify you of a request for information to the extent that is permissible and reasonably practical for it to do so but (notwithstanding any other provision in this Agreement) CITB shall be responsible for determining in its absolute discretion whether any information is exempt from disclosure in accordance with the FOIA.

12. Withholding, Suspending and Repayment of Funding

12.1 You shall use the Funds for this Project and no other purpose. We may ask you to show how the Funds were used by completing forms and such other documents as we require. You shall return these documents within ten (10) working days of any such request.

12.2 CITB’s intention is that the Funds will be paid to you in full. However, without prejudice to CITB’s other rights and remedies, we may at our discretion withhold or suspend payment of the Funds and/or require repayment of all or part of the Funds if:

a) the Funds have not been used for the purpose of the Project or for which they were awarded; 

b) you do not tell us of changes to the Project we deem substantial; 

c) the future of the Project is in jeopardy; 

d) your bid contained or you provided inaccurate, false or misleading information or acted dishonestly or disreputably; 

e) progress towards completion of the Project is unsatisfactory; 

f) you are, in the reasonable opinion of CITB, delivering the Project in a negligent manner; 

g) there is a serious delay or delivery fails in some other way; 

h) we discover that the Project has been funded or part funded by another third party; or

i) at the end of the Project you have failed to deliver all of the activities stipulated in the application.

12.3 If we make an overpayment, you will repay that to CITB on demand.

13. Accounts and records

13.1 The Funds shall be shown in your accounts as restricted funds and shall not be included under general funds.

13.2 You shall keep separate, accurate and up-to-date accounts and records of the receipt and expenditure of the Funds, which we may see upon reasonable request.

13.3 You shall keep all invoices, receipts, and accounts and any other relevant documents relating to the expenditure of the Funds for at least seven years following receipt of any of the Funds to which they relate. We shall have the right to review, at our reasonable request, your accounts and records that relate to the expenditure of the Funds and shall have the right to take copies of such accounts and records.

13.4 You shall have your accounts externally audited and shall provide us with a copy of the audited annual accounts within six months (or lesser period as CITB may reasonably require) of the end of the relevant financial year in respect of the year in which the Funds were paid.

13.5 You shall comply and facilitate CITB’s compliance with all applicable statutory requirements as regards accounts, audit or examination of accounts, annual reports and annual returns.

14. Limitation of Liability

14.1 CITB accepts no liability for any consequences, whether direct or indirect, that may come about from you running the Project, the use of the Funds or from withdrawal of the Funds.

14.2 Subject to clause 14.1 CITB’s liability under this Agreement is limited to the payment of the Funds.

15. Warranties

15.1 You warrant, undertake and agree that:

(a) you have all necessary resources and expertise to deliver the Project (assuming due receipt of the Funds);

(b) you shall at all times comply with all relevant legislation and all applicable codes of practice and other similar codes or recommendations, and shall notify CITB immediately of any significant departure from such legislation, codes or recommendations;

(c) you shall comply with the requirements of Health and Safety at Work etc. Act 1974 and any other acts, order, regulations and codes of practice relating to health and safety, which may apply to employees and other persons working on the Project;

(d) you have and shall keep in place adequate procedures for dealing with any conflicts of interest;

(e) you have and shall keep in place systems to deal with the prevention of fraud and/or administrative malfunction;

(f) all financial and other information concerning you which has been disclosed to CITB is to the best of your knowledge and belief true and accurate;

(g) you are not aware of anything in your own affairs, which has not been disclosed to CITB, which might reasonably have influenced the decision of CITB to grant the Funds on the terms contained in this Agreement; and

(h) since the date of your last accounts there has been no material change in your financial position or prospects and for the avoidance or doubt CITB retains the right to carry out a credit check during the term of this Agreement.

16. Assignments/sub-contracting

16.1 You may not assign or sub-contract the Project or Funds without our prior written approval.

16.2 Any assignment or sub-contract shall be on terms no worse than these and shall

(a) require payment by you no more than 30 days from receipt of a valid invoice and

(b) your prompt approval of each subcontractor invoice. A subcontractor must include in a subcontract equivalent terms.

16.3 No assignment or sub-contract removes an obligation or liability. You are liable for acts and omissions of assignees or subcontractors and their employees as if your own.

17. Termination

17.1 CITB may in writing terminate this Agreement immediately without compensation:

a) If you, being an individual, or where a firm, any partner in that firm, shall become bankrupt or equivalent;

b) If you, being a company, pass a resolution of winding up, or equivalent;

c) If you, being a charity/public body, have an analogous event to those in (a) or (b);

d) If you seriously breach this Agreement and do not remedy it or, following a notice, do not within thirty (30) calendar days remedy it to CITB’s satisfaction; or

e) If your acts or omissions bring us into disrepute or attract adverse publicity.

17.2 We may terminate this Agreement without reason on 30 calendar days’ written notice.

18. Dispute resolution

18.1 In the event of any complaint or dispute (which does not relate to CITB’s right to withhold Funds or terminate) arising between the parties to this Agreement in relation to this Agreement the parties shall meet promptly to resolve matters.

18.2 If we cannot resolve the dispute within ten (10) working days of a meeting, the parties may, by mutual consent, refer the matter to the Centre for Effective Dispute Resolution to nominate a mediator.

19. Notices

19.1 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 or mailed (first class postage prepaid) to the address of the relevant party. If personally delivered all such communications shall be deemed to have been given when received (except that if it is received on a non-working day or after 4 pm on any working day they shall be deemed received on the next working day) and if mailed such communications shall be deemed to have been given and received on the second working day following such mailing.

20. Third party rights

20.1 The parties do not intend the Agreement to be enforceable, under the Contracts (Rights of Third Parties) Act 1999, by any person not a party to it.

21. Joint and Several Liability

21.1 Where you are not a company or incorporated entity with a distinct legal personality, the individuals who enter into and sign this Agreement shall be jointly and severally liable for your obligations and liabilities arising under this Agreement.

22. Set off

22.1 We may set off any liability of you to us against any liability of us to you without prejudicing our other rights or remedies.

23. Entire Agreement

23.1 Neither party is induced into this Agreement by a statement or promise, unless fraudulent. This Agreement may be varied only in writing, by both Parties.

24. No partnership or joint venture

24.1 Nothing in this Agreement shall create a partnership or joint venture between us, 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.

25. Variation

25.1 The terms of this Agreement may only be varied in writing and by agreement between both parties.

26. Law and jurisdiction

26.1 The law of England and Wales, and the exclusive jurisdiction of the English and Welsh courts shall apply. 

Annex 1:   AGREEMENT OR VARIATION


The terms of this Agreement may only be varied by agreement in writing between both parties.

Authorised to sign for and on behalf of the Recipient.

Signature:                                            Name in capitals:                                        
Position in organisation:       
Address:

 

 

 

 

Postcode:   Date:  

Authorised to sign for and on behalf of CITB

Signature:

                                               Name in capitals:                                     
Position in Organisation:  
 Address:  
 Postcode:
 Date:  
Project code:  
Brief project description:
 
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