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INSURANCE-BASED TENANCY DEPOSIT SCHEME
OJEU Reference: 05/S 149 – 149114/EN
Service Concession Agreement
(Contract and Schedules)
Dated NOVEMBER 2006
(1) The Secretary of State for COMMUNITIES AND LOCAL GOVERNMENT
and
(2) THE DISPUTE SERVICE LIMITED
___________________________________
service CONCESSION agreement
RELATING TO THE implementation and administration
of an INSURANCE-BAsed
TENANCY DEPOSIT SCHEME
___________________________________
TABLE OF CONTENTS
1 DEFINITIONS AND INTERPRETATION 1
2 TERM 1
3 DUE DILIGENCE 1
4 IMPLEMENTATION 1
5 THE SERVICES 1
6 SERVICE STANDARDS AND SERVICE LEVELS 1
7 DISCRIMINATION 1
9 CONTRACT MANAGEMENT 1
10 DISPUTE RESOLUTION 1
11 CONFIDENTIALITY 1
12 DATA 1
13 FREEDOM OF INFORMATION 1
14 INTELLECTUAL PROPERTY 1
15 GENERAL WARRANTIES 1
16 GENERAL INDEMNITIES 1
17 CONTROL OF CLAIMS COVERED BY AN INDEMNITY 1
18 LIMITATION OF LIABILITY 1
19 INSURANCE AND TREATMENT OF RISK 1
20 TERMINATION 1
21 EXIT MANAGEMENT AND EMPLOYEES 1
22 FORCE MAJEURE 1
23 RIGHTS OF AUDIT AND ACCESS AND RECORD KEEPING 1
24 ASSIGNMENT, NOVATION AND OTHER DISPOSALS 1
25 APPROVAL OF SUB-CONTRACTORS 1
26 CORRUPT GIFTS AND PAYMENTS OF COMMISSION 1
27 CONFLICT OF INTEREST 1
28 COMPLIANCE WITH LAW / DATA STANDARDS 1
29 CHANGES IN LAW / DATA STANDARDS 1
30 WAIVER 1
31 REMEDIES 1
32 THIRD PARTY RIGHTS 1
33 ANNOUNCEMENTS 1
34 FURTHER ASSURANCE 1
35 COSTS 1
36 ENTIRE AGREEMENT 1
37 SEVERANCE 1
38 NOTICES 1
39 NO PARTNERSHIP OR AGENCY 1
40 COUNTERPARTS 1
41 GOVERNING LAW AND JURISDICTION 1
SCHEDULE 1 - DEFINITIONS 1
SCHEDULE 2 - THE SERVICES 1
SCHEDULE 3 - AUDIT AND ACCESS 1
SCHEDULE 4 - CHANGE CONTROL PROCEDURE 1
SCHEDULE 5 - FINANCING OF THE SCHEME 1
SCHEDULE 6 - DISASTER RECOVERY 1
SCHEDULE 7 - EMPLOYEES 1
SCHEDULE 8 - MANAGED EXIT 1
SCHEDULE 9 - CONTRACT MANAGEMENT 1
SCHEDULE 10 - PERFORMANCE MANAGEMENT 1
SCHEDULE 11 - SECURITY 1
SCHEDULE 12 - SUB-CONTRACTORS 1
SCHEDULE 13 - COMMERCIALLY SENSITIVE INFORMATION 1
SCHEDULE 14 - SERVICE PROVIDER METHOD STATEMENT 1
SCHEDULE 15 - NOT USED 1
SCHEDULE 16 - DISPUTE RESOLUTION 1
SCHEDULE 17 – NOT USED 1
SCHEDULE 18 - IMPLEMENTATION PLAN 1
SCHEDULE 19 - SHARED SERVICES 1
SCHEDULE 20 - PAYMENTS ON TERMINATION 1
SCHEDULE 21 - PARENT COMPANY GUARANTEE 1
SCHEDULE 22 - SCHEME INSURANCE 1
THIS AGREEMENT is made the day of November 2006
BETWEEN:
1. The Secretary of State for COMMUNITIES AND LOCAL GOVERNMENT ACTING THROUGH THE DEPARTMENT FOR COMMUNITIES AND LOCAL GOVERNMENT of Eland House, Bressenden Place, London SW1E 5DU (the "Authority"); and
2. THE DISPUTE SERVICE LIMITED (registered in England and Wales under number 04851694) whose registered office is at 7-8 Eghams Court, Boston Drive, Bourne End, Buckinghamshire, SL8 5YS (the “Service Provider”).
RECITALS:
WHEREAS
A. On 4 August 2005 the Authority published a notice (the "Procurement Notice") in the Official Journal of the European Union in relation to its requirements for the Tenancy Deposit Scheme.
B. On 19 August 2005 the Authority issued a pre qualification questionnaire (the "PQQ") to parties responding to the Procurement Notice.
C. On 21 December 2005 the Authority issued its Invitation to Submit Outline Proposals ("ISOP") to Service Providers who had pre-qualified through the PQQ process.
D. Following negotiations with the Service Provider and other recipients of the ISOP, on 15 September 2006 the Authority issued an Invitation to Submit Best and Final Offers ("BAFO") to the Service Provider and other potential service providers.
E. Following conclusion of the negotiations and in reliance on representations made by the potential service providers during the negotiations, on 27 October 2006 the Authority selected the Service Provider as its preferred service provider in respect of the Services on the terms set out in this Agreement.
IT IS AGREED as follows:
1. 1 DEFINITIONS AND INTERPRETATION"\l 1 DEFINITIONS AND INTERPRETATION
1. In this Agreement the terms and expressions set out in Schedule 1 (Definitions) shall have the meanings ascribed therein.
2. In this Agreement:
1. the Clause headings are included for convenience only and will not affect the construction or interpretation of this Agreement;
2. the Clauses, Schedules, Annexes and Appendices form part of this Agreement and will have effect as if set out in full in the body of this Agreement and any reference to this Agreement shall include the Clauses, Schedules, Annexes and Appendices;
3. any reference to a Recital, Clause, Paragraph, Schedule, Annex or Appendix is to the relevant recital to, clause of, paragraph of, schedule to, annex to or appendix to this Agreement (as the case may be);
4. use of the singular includes the plural and vice versa;
5. words importing a particular gender do not exclude other genders;
6. any reference to a statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under it as from time to time amended, consolidated or re-enacted;
7. any phrase introduced by the terms "including", "include", "in particular" or any similar expression will be construed as illustrative and the words following any of those terms will not limit the sense of the words preceding those terms;
8. any reference to "persons" includes natural persons, firms, partnerships, corporations, associations, organisations, governments, government bodies, states, foundations and trusts (in each case whether or not having separate legal personality);
9. the words "in writing" and "written" shall be interpreted to include any document which is recorded in manuscript, typescript and any electronic communication (as defined in Section 15 of the Electronic Communications Act 2000);
10. the words "day" and "month" mean calendar day and calendar month unless otherwise stated;
11. all references to the Parties include their permitted successors and permitted assigns;
12. any reference to a public organisation, body or representative shall be deemed to include reference to any successor(s) to such public organisation, body or representative or any organisation, body, entity, or representative which (whether in whole or part) has or (as appropriate) have taken over any of the functions, services or responsibilities of such public organisation, body or representative, either entirely or in part (including any other part of HM Government, any NDPB or private body);
13. any obligation on the Service Provider to comply with standards, specifications or procedures shall be deemed also to include an obligation on the Service Provider to comply with the standards, specifications and procedures issued by the Authority or any other statutory, regulatory or other properly interested body with which the Service Provider is either legally required to comply or with which the Service Provider reasonably could be expected to comply in order to conform to Good Industry Standards; and
14. subject to the contrary being stated expressly in the Agreement, all communication between the Parties shall be in writing or shall be confirmed in writing within one (1) Business Day of being made, or else shall be of no effect.
3. In the case of and to the extent of any conflict, inconsistency or ambiguity between;
1. these Clauses and Schedule 1 (Definitions); and
2. any other Schedules,
the Clauses and Schedule 1 (Definitions) shall prevail;
3. Schedule 2 (the Services); and
4. Schedule 14 (Service Provider Method Statement),
Schedule 2 (The Services) shall prevail,
and
5. this Agreement; and
6. any documents referenced or referred to herein (other than those within the scope of Clause 1.2.6) or to be approved by the Authority in accordance with the terms of this Agreement (and which do not form part of the Agreement),
the provisions of this Agreement shall prevail.
4. Except as otherwise expressly provided in this Agreement, all remedies available to the Service Provider or to the Authority for Default (of any nature or severity) under this Agreement are cumulative and may be exercised concurrently or separately and the exercise of any one remedy shall not exclude the exercise of any other remedy.
2. 2 TERM"\l 1 TERM
1. Commencement: this Agreement shall commence on the Effective Date and, subject to earlier termination in accordance with this Agreement, shall continue in force until the later of:
1. the end of the day preceding the third (3rd) anniversary of the Service Commencement Date ("Original Expiry Date"); and
2. the end of the final day of any period or periods of extension in accordance with Clauses 2.2 and 2.3 below,
at which point it shall expire automatically without notice.
2. Extension: where:-
1. at the Assessment Date the Service Provider satisfies the Performance Threshold in accordance with the requirements of Schedule 10 (Performance Management); or
2. the Authority serves written notice on the Service Provider not less than twelve (12) months prior to the Original Expiry Date notifying the Service Provider that it wishes to extend the Agreement,
this Agreement shall be extended automatically for an additional period of two (2) years from the Original Expiry Date and shall continue in force until the end of the day preceding the second (2nd) anniversary of the Original Expiry Date ("New Expiry Date").
3. Minor extension: in addition, or as an alternative, to its rights under Clause 2.2, the Authority may, by serving written notice on the Service Provider not less than six (6) months prior to the later of:
1. the Original Expiry Date; and
2. the New Expiry Date, if it applies,
extend this Agreement for, as applicable, a period of up to twelve (12) months beyond such date, the period of any such extension to run from and include, as applicable:
3. the Original Expiry Date; or
4. the New Expiry Date.
The period of extension set by the exercise of the option under this Clause 2.3 shall be the "Minor Extension Period". The Minor Extension Period may be brought to an end by not less than three (3) months' written notice from the Authority to the Service Provider, such notice specifying the final day of the Minor Extension Period.
3. 3 DUE DILIGENCE"\l 1 Due Diligence
1. The Service Provider acknowledges that the Authority has delivered or made available all information and documents that the Service Provider deems necessary and/or relevant for performance of its obligations under this Agreement and consequently the Service Provider shall be deemed to have understood the nature and extent of the Services and that it has satisfied itself that it will be able to provide the Services in full compliance with its obligations under this Agreement.
2. Prior to sign-off by the Service Provider of any CCN, the Service Provider shall ensure that it has obtained all such information necessary to ensure that the acknowledgements set out in this Clause 3 shall apply in relation to each CCN prior to its implementation.
3. The Service Provider acknowledges that there shall not be any due diligence or joint verification after the Effective Date.
4. No warranty or undertaking is given by the Authority as to the accuracy, completeness, adequacy or fitness for purpose of any information disclosed to or made available to the Service Provider (whether directly or indirectly) in the course of any due diligence in accordance with this Agreement, or that such information constitutes all of the information relevant or material to the Services. The Service Provider acknowledges that it has and (as the case may be) shall make its own enquiries to satisfy itself as to the accuracy of the information supplied to it in connection with this Agreement. Accordingly, provided always that the Authority shall have acted in good faith and notified the Service Provider as soon as reasonably practicable of any material inaccuracies, errors or omissions in any information (other than where such information was indicative or for information only) provided by the Authority of which the Authority becomes aware, all liability on the part of the Authority in connection with:
1. any information, documents or data provided to or made available to the Service Provider (whether directly or indirectly); and
2. any representations or statements made by or on behalf of the Authority,
in connection with such due diligence is, to the extent permitted by Law, hereby excluded.
5. Where the information supplied by or on behalf of the Authority is incorrect or insufficient the Service Provider acknowledges that it shall not:
1. be relieved of any of its obligations under this Agreement; or
2. be entitled to claim against the Authority,
except to the extent of any fraudulent misrepresentation made by or with the actual knowledge of the Authority.
4. 4 IMPLEMENTATION"\l 1 implementation
1. During the Implementation Period, the Service Provider shall undertake all activities required to comply with the Implementation Plan and to enable the Service Provider to provide a fully operational Scheme with effect from the Service Commencement Date.
2. The Service Provider shall be solely responsible for ensuring, during the Implementation Period, that the Implementation Plan, information technology, processes and systems utilised by the Service Provider are sufficient to enable the Service Provider to provide the Services in accordance with this Agreement with effect from the Service Commencement Date.
3. The Service Provider shall immediately notify the Authority of any delay which it reasonably believes may impact on its ability to provide the Services with effect from the Service Commencement Date. In addition, the Service Provider shall, during the Implementation Period, ensure that the Authority is kept appraised of the Service Provider's progress against the Implementation Plan as part of the contract management meetings set out in Paragraph 4.4 of Schedule 9 (Contract Management).
5. 5 THE SERVICES"\l 1 THE SERVICES
1. The Services:
1. With effect from the Service Commencement Date, the Service Provider shall supply, to and for the benefit of the Authority and in accordance with the terms of this Agreement, the Services.
2. The Service Provider shall, subject to Clause 1.3, provide the Services in accordance with the Service Provider's Method Statement as amended from time to time in accordance with the terms of this Agreement.
2. Exclusivity:
1. The Service Provider acknowledges that it is not the exclusive supplier to the Authority of the Services.
2. The Authority warrants that, in addition to this Agreement, it will authorise no more than one other service provider to deliver a Scheme at any time during the period from the Effective Date to the third (3rd) anniversary of such date. For the avoidance of doubt, the Custodial Scheme shall not be deemed to be a Scheme for the purposes of this Clause 5.2.2.
3. Scheme Insurance Requirements: with effect from the Service Commencement Date, the Service Provider shall comply with the provisions of Schedule 22 (Scheme Insurance) in relation to the insurance backing of the Scheme.
4. Shared Services:
1. The Authority shall ensure that the Custodial SP shall, for a period of one (1) year from and including the Service Commencement Date (the "Offer Period"), make available Shared Services to the Service Provider should the Service Provider wish to contract with the Custodial SP for the provision of any or all Shared Services. Following the Offer Period, the Authority shall be under no obligation to ensure that the Custodial SP makes available the Shared Services to the Service Provider but the Custodial SP may do so in its absolute discretion.
2. The provisions relating to the offer and supply of the Shared Services shall be as set out in Schedule 19 (Shared Services).
5. Disaster Recovery Services: the Service Provider shall provide the Disaster Recovery Services in accordance with Schedule 6 (Disaster Recovery) throughout the Term.
6. Security: the Service Provider shall comply with the terms of Schedule 11 (Security) throughout the Term.
7. General obligation of the Service Provider: the Service Provider shall promptly warn the Authority whenever the Service Provider has reasonable grounds to believe that any failure on the part of the Authority or any third party to carry out its obligations and responsibilities under or associated with this Agreement, or the manner in which they are carried out, will have, or threatens to have, a detrimental effect on the quality of the Services or the efficiency or cost of their supply or the performance of any other obligations of the Service Provider under this Agreement.
8. Training and Qualification: the Service Provider agrees that the Service Provider Personnel shall at all times be appropriately and adequately qualified and have the skills necessary for the Services and be trained and suitable to perform the Services in accordance with this Agreement, and the Service Provider agrees to provide such information relating to the skills, qualifications, organisation, management and supervision of Service Provider Personnel as the Authority may reasonably require. In the event that the Authority reasonably considers that any Service Provider Personnel are not appropriately and/or adequately qualified or do not have the skills or appropriate training to perform or support delivery of the Services, the Authority:-
1. may request that the Service Provider ensures that such Service Provider Personnel undertake such additional or further training as may be reasonably necessary; and
2. where (the Service Provider Personnel having undertaken such training) the Authority's concerns as to the relevant Service Provider Personnel remain the Authority reserves the right to require the Service Provider by notice in writing to cease using such personnel to provide the Services and to implement such plan or make alternative arrangements to ensure that the Services continue to be provided (other than by such personnel) without any disruption or interruption to the administration of the Scheme.
6. 6 SERVICE STANDARDS AND SERVICE LEVELS"\l 1 service standards AND service levels
1. Service Standards
1. The Service Provider will perform its obligations under this Agreement:
a) in accordance and in compliance with:
i) the terms of this Agreement;
ii) Governmental policies which impact on the Services (as notified by the Authority to the Service Provider from time to time);
iii) (subject to Clause 29) any applicable Law;
iv) the Data Standards; and
v) Good Industry Standards;
b) allocating sufficient resources at all times to provide the Services in accordance with this Agreement;
c) having due regard to the Authority's requirement that the Service Provider uses all resources in an efficient and cost effective manner; and
d) ensuring that no act or omission of the Service Provider, Sub-Contractors, Service Provider, Personnel or other persons used in connection with the Services brings or could bring the Authority into disrepute.
2. In the event of any conflict between any of the requirements referred to in Clause 6.1.1, the Service Provider will draw such conflict to the attention of the Authority and the Authority shall determine (in its sole discretion acting reasonably) which requirement shall have precedence.
3. The Service Provider shall procure, maintain and observe all Approvals required to provide the Services. Failure to procure, maintain and/or observe all such Approvals shall constitute a Deemed Material Default and shall entitle the Authority to terminate this Agreement in accordance with Clause 20.
2. Performance and Service Levels: the Service Provider will provide each Service for which a Service Level has been agreed to that Service Level.
3. Monitoring of Service Levels and Reporting Obligations: the Service Provider shall provide records of, and reports summarising, the performance of the Services achieved by the Service Provider against the Service Levels in accordance with the requirements of Schedule 10 (Performance Management). Such recording and monitoring shall be subject to rights of audit in accordance with the provisions of Schedule 3 (Audit and Access) and other relevant terms of this Agreement.
4. Performance Management: the Service Provider shall comply with the obligations of Schedule 10 (Performance Management) throughout the Term in connection with the operation and delivery of the Services. If the Service Provider’s performance of a Service fails to achieve the relevant Service Level due to the act or omission of the Service Provider, the provisions of Schedule 10 (Performance Management) shall apply.
7. 7 DISCRIMINATION"\l 1 Discrimination
1. The Service Provider shall:
1. not unlawfully discriminate within the meaning and scope of any Law relating to discrimination; and
2. maintain and comply with appropriate equal opportunities and diversity policies to ensure compliance with Law.
2. The Service Provider shall ensure the observation of the provisions of Clause 7.1 by all Service Provider Personnel and all Sub-Contractors.
3. The Service Provider shall ensure that when seeking to appoint or in awarding a contract to a Sub-Contractor it does not discriminate on the grounds:-
1. of nationality; or
2. that the goods to be supplied under the contract originate in another state.
8. Finance
1. Financing of the Scheme: the Service Provider shall comply with the provisions relating to the financing of the Scheme shall be as set out in Schedule 5 (Financing of the Scheme).
2. Rights of Set-off: the Authority may set off any sum of money which is payable by the Service Provider to the Authority, recoverable from the Service Provider by the Authority or otherwise against any sum then due, or which at any later time may become due, to the Service Provider under or in relation to this Agreement or any other agreement with the Authority or any other department, office or agency of the Crown.
3. Recovery of Overpayments: any overpayment by the Authority to the Service Provider under this Agreement (which has been notified to the Service Provider) (including in relation to any VAT but excluding any overpayment for which the Authority has received the appropriate credit in accordance with this Agreement) shall be a sum of money recoverable from the Service Provider.
9. 9 CONTRACT MANAGEMENT"\l 1 Contract AND CHANGE Management
1. Contract Management: the Parties shall comply with the provisions of Schedule 9 (Contract Management) in relation to the processes for management of this Agreement.
2. Change Management: all Changes shall be dealt with in accordance with the relevant process set out in Schedule 4 (Change Control Procedure).
10. 10 DISPUTE RESOLUTION"\l 1 DISPUTE RESOLUTION
1. Escalation Procedure: any question or difference which may arise concerning the construction, meaning or effect of this Agreement, or any matter arising out of or in connection with this Agreement unless otherwise expressly stated in this Agreement to be a matter which shall be resolved by the Authority (a “Dispute”), will in the first instance be referred for resolution under the Escalation Procedure. Neither Party may initiate any legal action until the process has been completed, unless such Party reasonably believes that it has reasonable cause to do so to avoid damage to its business, or affairs (which shall, for the avoidance of doubt, include its reputation) or to the Scheme or to protect or preserve any right of action it may have.
2. Exhaustion of Escalation Procedure: if a Dispute is referred to the representatives at the most senior level of the Escalation Procedure in accordance with Paragraph 1 of Schedule 16 (Dispute Resolution) and those representatives fail to resolve the Dispute within the maximum period referred to in that Schedule, then the Escalation Procedure will be deemed exhausted in respect of the Dispute in question.
3. Expert Determination: in the event of exhaustion of the Escalation Procedure, the provisions of Paragraph 2 of Schedule 16 (Dispute Resolution) may apply.
11. 11 CONFIDENTIALITY"\l 1 CONFIDENTIALITY
1. The Service Provider acknowledges that in respect of any Confidential Information obtained by the Service Provider from, or relating to, the Authority, the Crown or their respective servants or agents or any Crown Servant, including in the course of tendering for this Agreement, a duty of confidentiality is owed to the Authority and the Crown.
2. Each Party agrees, for itself and in the case of the Authority the Authority Personnel and, in the case of the Service Provider, the Service Provider Personnel to keep confidential and not to disclose to any person (save as hereinafter provided in this Clause 11 and Clause 13) and to safeguard any Confidential Information provided to it, or arising or acquired by it in relation to the terms or performance of this Agreement.
3. The Service Provider shall not and shall procure that Service Provider Personnel shall not disclose any Confidential Information to any third party without the prior written consent of the Authority.
4. The following circumstances shall not constitute a breach of the obligations of confidentiality contained in this Clause 11:
1. disclosure of Confidential Information by the Service Provider to the Sub-Contractor and Service Provider Personnel but only to the extent necessary to enable the Service Provider to perform (or to cause to be performed) or to enforce any of its rights or obligations under this Agreement;
2. disclosure of Confidential Information by either Party when required to do so by Law;
3. disclosure of Confidential Information by the Authority to its employees, officers, agents or representatives to the extent necessary to enable the Authority to perform (or to cause to be performed) or to enforce any of its rights or obligations under this Agreement;
4. disclosure to any consultant, sub-contractor or other person engaged by the Party in connection herewith (including any New Service Provider), who needs to know the information, to the extent necessary to enable that Party to perform (or cause to be performed) or to enforce any of its rights under this Agreement, provided that that Party shall have first obtained from the consultant, sub-contractor or other person (as the case may be) obligations of confidentiality to protect disclosure of such information no less onerous to those set out in this Clause 11;
5. disclosure of Confidential Information by either Party where and to the extent that the Confidential Information has, except as a result of breach of confidentiality by or on behalf of that Party, become publicly available or generally known to the public at the time of such disclosure;
6. disclosure of Confidential Information by either Party where and to the extent that the Confidential Information is already lawfully in the possession of a recipient or lawfully known to it prior to such disclosure;
7. possession of Confidential Information by either Party where it has been acquired from a third party who is not in breach of Law or any obligation of confidence in providing that Confidential Information;
and in the case of the Authority any disclosure of Confidential Information:
8. to the extent required for the purpose of the continued fulfilment of the Services in the event of termination of this Agreement;
9. in relation to the procurement process for the Services as may be required to be published in the Official Journal of the European Union or under other procurement related requirements;
10. to any body to whom the Authority is required to disclose such Confidential Information to fulfil its statutory and/or public functions, any NDPB, Statutory Corporation, other department, office or agency of the Government (including, for the avoidance of doubt, the National Audit Office, the Auditor General for Wales and the Wales Audit Office) or other Crown Body or entity and/or (in any such case) their servants or agents, where required for its proper departmental, parliamentary, governmental, statutory or judicial purposes and the Service Provider hereby permits further disclosure by such NDPBs, Statutory Corporations, Crown Bodies or entities to other Crown Bodies;
11. as may be required in accordance with Clause 13;
12. in connection with the exercise of the audit rights in accordance with Schedule 3 (Audit and Access); and
13. to any person conducting an Office of Government Commerce 'gateway review'.
5. Save in the circumstances set out in Clauses 11.4.1, 11.4.3 and 11.4.5-11.4.7, in relation to any disclosure of Confidential Information under this Agreement by the Service Provider, the Service Provider shall use its best endeavours to give the Authority prompt advance written notice of this disclosure and, where relevant, to consult and give the Authority reasonable opportunity to comment on the nature and extent of disclosure and take account of any reasonable comment made by the Authority.
6. The Service Provider shall, with respect to any Confidential Information it receives from the Authority or in connection with the Services:
1. use, and shall ensure that all Sub-Contractors and Service Provider Personnel use, the Confidential Information solely for the purposes of this Agreement;
2. take, and shall ensure that all Sub-Contractors and Service Provider Personnel take, all necessary precautions to ensure that all Confidential Information is held in confidence;
3. comply, and shall ensure that all Sub-Contractors and Service Provider Personnel comply, with all instructions and/or guidelines produced by the Authority from time to time for the handling and storage of Confidential Information generally or for specific items;
4. obtain from all employees of the Service Provider (whether under the employees' standard terms and conditions or otherwise) obligations of non-disclosure on terms no less onerous than contained in this Clause 11; and
5. obtain from all Sub-Contractors, consultants or other parties to whom disclosure is permitted under this Clause 11 (other than employees to whom Clause 11.6.4 shall apply) prior to their commencing work on the Services or receiving any Confidential Information, a signed non-disclosure undertaking providing obligations of confidentiality no less onerous than those contained in this Clause 11.
7. Without prejudice to any other rights and remedies that the other Party would have, each Party agrees that damages may not be an adequate remedy for any breach of this Clause 11 and that the other Party shall be entitled to seek the remedies of injunction, specific performance and/or other equitable relief for any threatened or actual breach of this Clause 11.
8. The Service Provider shall not, either itself or by any Service Provider Personnel, consultant or other third party, use the Authority's Confidential Information other than for the purposes of this Agreement, including without limitation:
1. soliciting further business from the Authority, from any other part of the Crown or any Contracting Authority; or
2. seeking or obtaining any commercial or pecuniary advantage other than in connection with the performance of the Services.
9. The obligations with respect to Confidential Information disclosed under this Agreement shall survive termination or expiry of this Agreement and shall continue for a period of 7 (seven) years from the date of expiry or termination of this Agreement.
10. Save as specified in Clause 11.11, upon the Authority’s written request, and in any event on termination or expiry of this Agreement and/or any Services, the Service Provider shall promptly return:
1. all or any specified part of the Authority Data and any Authority’s Confidential Information which it received while providing the relevant Services;
2. all (or any specified part of any) physical and written records containing any Authority Data or Authority’s Confidential Information related to the relevant Services; and
3. all (or any specified part of any) documentation relating to any other Confidential Information related to the relevant Services,
to the Authority or, if requested by the Authority, destroy or delete the same in a manner specified by the Authority and promptly certify to the Authority that it has done the same.
11. Clause 11.10 shall not apply to any copies of Confidential Information necessary for the continued maintenance, operation and development work forming part of any Exit Assistance, until its completion.
12. The Service Provider shall maintain a list in writing of the non-disclosure undertakings completed in accordance with this Clause 11. Where requested by the Authority in writing the Service Provider shall provide the Authority with a copy of the list and, subsequently upon request by the Authority in writing, copies of such of the listed non-disclosure undertakings as required by the Authority.
12. 12 DATA"\l 1 Data
General provisions
1. Subject to Clause 12.4 below, the Service Provider shall not acquire any right in (save as required to perform its obligations hereunder), or title to, any part of the Authority Data whether existing prior to the Effective Date, or created after such date. Title in the Authority Data shall remain with the Authority at all times.
2. The Service Provider shall ensure that all Authority Data can be extracted from the Service Provider's systems and is transferable to the Authority.
3. The Service Provider shall not:
1. disclose, use, modify or adapt the Authority Data;
2. merge or combine the Authority Data with other data;
3. store, copy, disclose or use the Authority Data; or
4. reproduce the Authority Data in whole or in part in any form
except as provided by Clause 12.4 below and as may be expressly required by, or necessary for, performance by the Service Provider of its obligations under this Agreement.
4. The Authority hereby grants to the Service Provider a non-exclusive, non-transferable licence to use Authority Data for the purposes of its business including without limitation management reporting, trend analysis and statistical purposes but excluding Authority Personal Data and always provided that such Authority Data is in an anonymised form and is not capable of constituting Personal Data in its own right or in conjunction with any other information in the possession of or likely to come into the possession of the Service Provider.
5. The Service Provider shall be responsible for maintaining, in accordance with Good Industry Standards and all express requirements of this Agreement, secure and up-to-date back ups of all the Authority Data in the possession or control of the Service Provider and its Sub-Contractors. The Service Provider shall be responsible for preserving the integrity of Authority Data and preventing unauthorised disclosure, misuse, interception, theft, corruption or loss. Any such Authority Data that is lost, degraded or damaged shall, where copies of such data exist (in any form), be reinstated and/or reconstituted by the Service Provider as soon as reasonably practicable, at its own cost where the loss, degradation or damage is due to any Default of the Service Provider (including but not limited to any Default of a Sub-Contractor). If the Service Provider fails to do so within two (2) Business Days from and including the date of loss, degradation or damage, then the Authority may by itself or by appointment of a third party undertake the reinstatement and/or reconstitution of such Authority Data at the Service Provider’s cost and the Service Provider shall procure that its Sub-Contractors co-operate fully in such process.
6. The Service Provider shall ensure that the back ups of Authority Data held by the Service Provider, or on its behalf by Material Sub-Contractors, are made available to the Authority at all reasonable times upon reasonable request.
7. If at any time the Service Provider suspects or has reason to believe that Authority Data has or may become corrupted in any way, the Service Provider shall promptly take all necessary remedial action.
8. Save to the extent otherwise permitted by the Authority in writing (whether in this Agreement or otherwise) the Service Provider shall not (and shall ensure that its Sub-Contractors shall not):
1. process or take any Authority Data outside the EEA (or cause or permit the same to happen);
2. (other than in allowing End Users web-based access to the Scheme) due to the manner in which it delivers (or requires to be delivered) the Services, cause or permit Authority Data to be accessed from outside the EEA; or
3. undertake (or cause to be undertaken) application development outside the EEA.
Personal Data
9. The Parties agree that the Authority is the Data Controller for Authority Personal Data and the Authority hereby appoints the Service Provider as Data Processor in relation to the Authority Personal Data and, subject to Clause 25, authorises the Service Provider to appoint Sub-Contractors as further Data Processors on behalf of the Authority, provided that such further Data Processors are engaged on terms providing equivalent rights to the Authority against the further Data Processors and equivalent protections in relation to the Authority Personal Data to those set out in this Agreement.
10. The Service Provider shall:
1. process the Authority Personal Data only on behalf of the Authority in compliance with the Authority’s instructions and this Agreement. If for whatever reason the Service Provider cannot provide such compliance, it agrees to inform the Authority promptly of its inability to comply, and the Authority is entitled to suspend the Processing of Authority Personal Data;
2. without prejudice to the generality of Clause 7.1, ensure that those of its employees who are used to Process Authority Personal Data under this Agreement have first been trained in the law of data protection and in the care and handling of Personal Data and that no other personnel of the Data Processor are allowed access to the Authority Personal Data;
3. process the Authority Personal Data in accordance with the laws of the United Kingdom;
4. ensure that it provides to all Data Subjects the Data Protection Information and cooperates fully with the Authority in relation to the drafting, amendment and provision of the Data Protection Information;
5. promptly notify the Authority about:
a) any legally binding request for disclosure of the Authority Personal Data by a law enforcement department prior to any such disclosure unless otherwise prohibited;
b) any accidental or unauthorised access which may affect the Authority Personal Data;
6. respond to any Data Subject Request in accordance with Clause 12.11 below, unless it has been otherwise instructed not to do so by the Authority;
7. deal promptly and properly with all inquiries from the Authority and the Information Commissioner relating to the Service Provider’s Processing of the Authority Personal Data;
8. not disclose the Authority Personal Data to a third party in any circumstances other than at the specific request of or as specifically permitted by the Authority in writing, or where obliged to do so under any Law;
9. not transfer the Authority Personal Data outside the EEA without the prior written consent of the Authority;
10. upon reasonable request from the Authority, submit its data processing facilities, procedures and documentation relating to Authority Personal Data, and those of its sub-processors, to scrutiny by the Authority or the Audit Agents of the Authority in order to ascertain compliance with relevant Law and the terms of this Agreement; and
11. on request by the Authority, promptly provide information which the Authority requires in order to comply with:
a) Data Subject Requests; and
b) requests from the Information Commissioner.
11. On receipt of a request from the Authority to deal with a Data Subject Request that the Authority has received and passed onto the Service Provider, the Service Provider will promptly, and in any event within any applicable statutory response periods, respond to such Data Subject Request on behalf of the Authority and in compliance with the DPA and shall then carry out any and all necessary subsequent correspondence whether with the Data Subject or otherwise in order to deal with such Data Subject Request on behalf of the Authority. The Service Provider shall keep records of all Data Subject Requests and responses and shall make these available to the Authority on request. The contents of any such Data Subject Request shall constitute the Authority's Confidential Information and any response thereto forms part of Authority Data.
12. The Service Provider warrants that it has appropriate operational and technological processes and procedures in place to safeguard against any unauthorised or unlawful access, loss, destruction, theft, use or disclosure of the Authority Personal Data.
Indemnity
13. The Service Provider shall indemnify and shall keep indemnified the Authority against all liabilities, losses, demands, damages, costs, claims, expenses and interest suffered by the Authority, including payment of compensation to a third party and the Authority's expenses in settling such third party claim, as a result of any failure by the Service Provider to comply with its obligations in accordance with any part of this Clause 12.
13. 13 FREEDOM OF INFORMATION"\l 1 FREEDOM OF INFORMATION
1. The Service Provider acknowledges that the Authority is subject to the requirements of FOIA and the Environmental Information Regulations and shall assist and cooperate with the Authority to enable the Authority to comply with its Information disclosure obligations. The Authority shall reimburse the Service Provider's reasonable costs incurred in providing such assistance save where the information required by the Authority is required to be provided in any event as part of the Service Provider's obligation to provide the Statistical Data to the Authority.
2. The Service Provider shall and shall procure that its Sub-Contractors shall:
1. provide the Authority with a copy of all Information in its possession which the Authority itself does not hold, or power that and in the form that the Authority requires within five (5) Business Days (or such other period as the Authority may specify from and including the date of the Authority's request). The Service Provider may request that the Authority grants it a longer period where reasonably required by the Service Provider including where hard copy Information is located in off-site archive facilities and the Authority shall act reasonably when considering whether to approve or reject such request; and
2. provide all assistance as may be requested by the Authority to enable the Authority to respond to a Request for Information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the Environmental Information Regulations (as the case may be).
3. The Authority shall be responsible for determining in its absolute discretion whether the Commercially Sensitive Information and/or any other Information is exempt from disclosure in accordance with the provisions of FOIA or the Environmental Information Regulations save that the Authority shall use reasonable endeavours to consult with the Service Provider as soon as reasonably practicable regarding the disclosure, but the Authority's decision as to whether such information shall be disclosed shall be final and binding.
4. In no event shall the Service Provider respond directly to a Request for Information unless expressly authorised to do so by the Authority.
5. The Service Provider acknowledges that the Authority may be obliged to disclose Information without consulting or obtaining consent from the Service Provider, or despite having taken the Service Providers' views into account.
6. The Service Provider acknowledges that all Information shall constitute records to be retained in accordance with Clause 23. The Service Provider shall permit the Authority to inspect such records as requested from time to time.
7. The Service Provider acknowledges that the Commercially Sensitive Information listed in Schedule 13 (Commercially Sensitive Information) is of indicative value only and that the Authority may be obliged to disclose it in accordance with Clause 13.5.
14. 14 INTELLECTUAL PROPERTY"\l 1 INTELLECTUAL PROPERTY
1. General
1. The Authority wishes to take a licence to Use all IP that is required by the Authority to operate and ensure the continued viability of the Scheme during the Term and, for the purposes of a Managed Exit, the Exit Period.
2. Where the Service Provider is required to grant and/or to secure and/or to procure the grant of a licence of any IPR to the Authority under this Agreement, the Service Provider shall forthwith enter into such escrow arrangements to safeguard the Authority's rights as the Authority may reasonably require.
2. Bespoke IP:- the Service Provider hereby grants (and shall procure that any Sub-Contractor grants) to the Authority an Extended Licence to Use the Bespoke IP.
3. Authority IP
1. Subject to Clause 14.3.3, if the Service Provider can demonstrate to the satisfaction of the Authority that it is necessary to the provision of the Services to be licensed to use any Authority IP the Authority shall grant the Service Provider a Licence to use the Authority IP.
2. Subject to Clause 14.3.1 neither the Service Provider nor any of its Sub-Contractors or Service Provider Personnel shall acquire any rights, title or interest in or to any Authority IP.
3. The Service Provider shall not have any right to use any of the Authority's names, logos or trade marks on any of its products or services, without the Authority's prior written consent, and where permitted, use will be subject to such terms as the Authority may require.
4. Commercially Available Software: the Service Provider shall use its reasonable endeavours to use Commercially Available Software in the performance of its obligations under this Agreement and shall, in respect of any Commercially Available Software used by the Service Provider provide the Authority with all assistance reasonably required to procure licences to use the Commercially Available Software during the Exit Period for the purposes of a Managed Exit.
5. Service Provider IP
1. Subject to Clause 14.5.2 and save as provided to the contrary elsewhere in this Agreement:-
a) the Service Provider shall retain all rights, title and interest in and to all Service Provider IP; and
b) the relevant third party shall retain all rights, title and interest in and to all Service Provider Third Party IP.
2. The Service Provider:-
a) hereby grants to the Authority an Extended Licence to Use the Service Provider IP; and
b) shall procure from each relevant third party the grant to the Authority of an Extended Licence to Use any Service Provider Third Party IP,
for the Exit Period for the purposes of:
c) a Managed Exit; and
d) Using the Bespoke IP.
6. The Brand
1. The Service Provider acknowledges that the branding for tenancy deposit protection (the "Brand") and any goodwill accruing to or from such Brand, shall belong to the Authority. The final form of the Brand, including any logo, is subject to the prior written approval of the Authority. The Service Provider is licensed by the Authority to use the Brand solely for the purposes of providing the Scheme during the Term and in accordance with any guidelines or written instructions issued by the Authority from time to time.
2. The Service Provider shall not be entitled to include its logos or branding on any literature associated with the Scheme without the prior written consent of the Authority and the Authority shall not unreasonably delay notification of its consent or refusal thereof.
3. The Service Provider shall provide, at the Authority's cost and expense, such assistance as the Authority may reasonably require should it wish at any time to register the Brand as a trade mark. Any such trade mark shall be registered in the name of the Secretary of State or such other person as the Authority shall specify.
7. Intellectual Property Warranties
1. The Service Provider warrants and represents for itself that:
a) it owns or has the right to use or otherwise exploit all the necessary IPR to provide the Services;
b) it shall not infringe the IPR of any third party in supplying the Services;
c) it owns, or is licensed to use, or will (at the time when the IP in question is used by the Service Provider and/or any Sub-Contractor) be entitled to use, all the Service Provider IP and the Service Provider Third Party IP which the Service Provider requires in order to perform its obligations under this Agreement and the Service Provider is fully entitled to grant the licences referred to in this Agreement; and
d) in performing its obligations under this Agreement, all Software used by or on behalf of the Service Provider shall:
i) be, unless agreed otherwise by the Parties, currently supported versions of that Software; and
ii) perform in all material respects with its specification.
8. Intellectual Property Indemnities: the Service Provider hereby indemnifies the Authority and shall hold the Authority harmless against all liabilities, losses, demands, damages, costs, claims, expenses and interest suffered by the Authority as a result of:
1. any Service Provider IP or Service Provider Third Party IP either:
a) used by the Service Provider in the provision of the Services;
b) used by the Authority, in either case in accordance with or pursuant to the terms of this Agreement; or
2. any Authority IP used by the Service Provider or Service Provider Personnel or any Sub-Contractor in breach of the licence terms set out in or granted pursuant to this Agreement,
infringing any Third Party IP or breaching any of the IP warranties set out in Clause 14.7.
9. Infringement of Intellectual Property
1. Without prejudice to the indemnities in Clause 14.8, the Service Provider shall at its own expense either:
a) replace or change any part or component of any infringing (or allegedly infringing) IP or any IP which the Service Provider or the Authority considers may in the future be subject to any claim for infringement so as to avoid infringement (or alleged infringement) of any IPR and to require the Authority to accept such replaced or changed IP provided that the IP as modified provides substantially similar functionality, performance and quality as that replaced or changed provided that nothing in this provision shall require the Service Provider to modify the whole or any part of the Authority IP; or
b) procure a licence to enable the Service Provider to deliver the Services lawfully without being liable for any infringement or alleged infringement by use of IP in connection with the Services.
2. Without prejudice to the indemnities in Clause 14.8 the Authority shall have the right to replace or change (or procure the replacement or change of) any part or component of the infringing (or allegedly infringing) IP, at its own expense, so as to avoid infringement (or alleged infringement) of any IPR, and to require the Service Provider to accept such replaced or changed IP provided that the IP as modified provides substantially similar functionality, performance and quality as that replaced or changed.
3. In the event that:
a) the Service Provider is in Default of its obligations under Clause 14.9.1; and/or
b) the options set out in Clause 14.9.1, and, if the Authority exercises such right, Clause 14.9.2, do not avoid the infringement in the IPR in question,
the infringement shall be classed as a Deemed Material Default.
15. 15 GENERAL WARRANTIES"\l 1 GENERAL Warranties
1. The Service Provider warrants and represents to the Authority for the benefit of the Authority that:
1. it has full capacity power and authority to enter into and perform its obligations under this Agreement and has no conflicting obligations to any third party (whether contractual or otherwise);
2. all Sub-Contractors have full capacity power and authority to perform their obligations in connection with this Agreement and have no conflicting obligations to any third party (whether contractual or otherwise);
3. this Agreement is executed by a duly authorised representative of the Service Provider;
4. it has not, and will not (and shall procure that each Material Sub-Contractor has not and shall not) enter into any fixed or floating charge or other encumbrance which would take priority to the assignments or vesting of IP in the Authority referred to in Clause 14.2;
5. there is no proceeding pending or, to the knowledge of the Service Provider, threatened which may have a material adverse affect on this Agreement or on the ability of the Service Provider to carry out its obligations under this Agreement;
6. the Service Provider and its Sub-Contractors have not and will not violate any applicable Laws or Data Standards;
7. the Services shall comply with all legal requirements applicable to the euro in the United Kingdom including but without limitation the rules on conversion and rounding set out in the EC Regulation number 1103/97;
8. all statements and representations in pre-contractual proposals in the Service Provider’s response to the PQQ, SOR and BAFO when made by the Service Provider to the Authority were, in the context they were given at the time, true, complete and accurate in all material respects, and that the Service Provider has advised the Authority of any fact, matter or circumstance of which it has become aware since making such proposals which would render any such statement or representation false or misleading;
9. the Service Provider's information technology is and will continue to be able to allow the Service Provider to properly comply with its obligations hereunder and is appropriate to meet the Authority's service requirements; and
10. the Service Provider Method Statement complies with and shall comply with and meet the Authority's service requirements contained in this Agreement throughout the Term.
Each of the above warranties shall be construed as a separate warranty and representation by the Service Provider and shall not be limited or restricted by reference to, or inference from, the terms of any other warranty or representation or any other terms of this Agreement.
2. Except as provided in this Agreement, there are no express warranties, representations, undertakings or conditions (statutory or otherwise) made by either Party and all warranties, representations, undertakings and conditions (statutory or otherwise) implied to be made by either Party, including implied warranties as to satisfactory quality and fitness for a particular purpose, are hereby excluded to the maximum extent permitted by Law.
16. 16 GENERAL INDEMNITIES"\l 1 general indemnities
1. The Service Provider shall indemnify and shall keep indemnified the Authority against all liabilities, losses, demands, damages, costs, claims, expenses and interest suffered by the Authority as a result of:
1. compensation paid to a third party due to a Default by the Service Provider, including the Authority's expenses in settling such third party claim; and
2. any Default of the Service Provider,
save where and to the extent that such liabilities, losses, demands, damages, costs, claims, expenses and interest are caused by or contributed to by a Default of the Authority.
17. 17 CONTROL OF CLAIMS COVERED BY AN INDEMNITY"\l 1 CONTROL OF CLAIMS COVERED BY AN INDEMNITY
If the Authority becomes aware of a matter which may give rise to a claim under an indemnity given by the Service Provider in this Agreement:
1. the Authority shall notify the Service Provider as soon as is reasonably practicable and in any event within fifteen (15) Business Days (from and including the date of receipt of notice) of the matter (stating in reasonable detail the nature of the matter and, if practicable, the amount claimed) and consult with the Service Provider with respect to the matter. If the matter has become the subject of proceedings, where reasonably practicable the Authority shall notify the Service Provider within sufficient time to enable the Service Provider to prepare any statement of case;
2. the Authority shall provide the Service Provider and its advisers reasonable access to premises and personnel and to all relevant assets, documents and records that it possesses or controls for the purposes of investigating the matter and enabling the Service Provider to take the steps referred to in Clause 17.1;
3. the Service Provider shall provide to the Authority reasonable access to information and personnel that it possesses or controls for the purposes of understanding the nature and status of the action being taken under Clause 17.1 and shall consult with and take due account of the views of the Authority in relation to the proposed actions to be taken prior to settlement or compromise of the claim. The Service Provider shall not use the Authority's name without the Authority's prior written consent (such consent not to be unreasonably withheld or delayed);
4. the Service Provider (at its cost) may take copies of the relevant documents or records, and photograph the premises or assets as reasonably required, save any documents or records in respect of which the Authority claims privilege;
5. each Party shall, and shall procure that its relevant employees and professional advisers shall, use the documentation and information obtained pursuant to this Clause 17 solely for the purposes described and shall otherwise keep the documentation and information confidential in accordance with Clause 11 where such information constitutes Confidential Information. When a claim subject to an indemnity is concluded, documentation provided by either Party to the other for the purposes of the claim shall be returned; and
6. the Parties may agree that the Service Provider has the exclusive conduct of the proceedings and if so the Service Provider indemnifies the Authority for all costs incurred as a result of a request or choice by the Service Provider to conduct such proceedings.
18. 18 LIMITATION OF LIABILITY"\l 1 limitation of liability
1. Exclusion of certain categories of loss
1. Neither Party shall have any liability to the other for any claim to the extent that the same is or can be characterised as a claim for (or arising from):
a) (save as included in any termination payment payable pursuant to Schedule 23 (Payments on Termination)) loss of revenue or profits;
b) loss of goodwill;
c) loss of business opportunity; or
d) indirect, consequential or special loss or damages,
regardless of the form of action, whether in contract, strict liability or tort (including negligence), and regardless of whether the first named Party knew or had reason to know of the possibility of the loss, injury, or damage in question.
2. The provisions of Clause 18.1.1 shall not limit the Authority's right to recover from the Service Provider:
1. for additional administrative and operational costs and expenses incurred by the Authority resulting from the Default of the Service Provider;
2. for wasted expenditure or charges rendered unnecessary and incurred by the Authority arising from the Default of the Service Provider; and
3. the costs incurred by the Authority in any procurement process deemed necessary by the Authority due to the termination of this Agreement for the Default of the Service Provider.
3. Cap on the Service Provider’s liability
1. The Service Provider's liability to the Authority (including under indemnities but excluding claims to which Clauses 18.4.1 or 18.5 apply) in respect of all losses, damages, costs, claims or expenses suffered by the Authority arising out of or in connection with:
a) any and all Defaults by the Service Provider (including but not limited to, claims arising in respect of a breach of warranty);
b) any and all torts or breaches of statutory duty committed by the Service Provider (or any Sub-Contractor or Service Provider Personnel) in connection with the performance or purported performance of the Service Provider’s obligations under this Agreement, and
c) otherwise arising out of or in connection with this Agreement,
occurring in a Year (excluding claims to which Clauses 18.4.1 or 18.5 apply) will be limited to and will in no circumstances whatsoever exceed in aggregate the sum of five hundred thousand pounds (£500,000).
4. Claims and Remedies not subject to Limitation
1. Nothing contained in this Agreement will restrict either Party's liability for death or personal injury resulting from any act, omission or negligence of that Party or its officers, agents or employees.
5. Nothing contained in this Clause will limit the Service Provider’s liability for:
1. fraud or fraudulent misrepresentation committed by the Service Provider or the Service Provider Personnel;
2. any claim under Schedule 7 (Employees);
3. losses of Deposits; or
4. liabilities to pay Deposits where such liabilities are or should be covered by a policy of insurance held by the Service Provider (including pursuant to Schedule 22 (Scheme Insurance)).
19. 19 INSURANCE AND TREATMENT OF RISK"\l 1 INSURANCE AND TREATMENT OF RISK
1. The Service Provider shall maintain for the duration of the Term and (in relation to Professional errors and omission insurance only) a period of three (3) years thereafter the following policies of insurance with insurers of good repute acceptable to the Authority:
1. public liability insurance providing minimum cover of two million pounds (£2,000,000) any one occurrence the number of occurrences being unlimited;
2. professional errors and omissions insurance appropriate to the business undertaken by the Service Provider, providing minimum cover of one million pounds (£1,000,000) any one occurrence, cover to include claims made by reason of:
a) misappropriation of funds;
b) dishonesty of individual partners, directors, employees or self employed persons contracted to and under the supervision of the Service Provider.
3. crime (fidelity guarantee) insurance providing minimum cover of one million pounds (£1,000,000) per event or series of connected events in respect of fraudulent acts including internal and external collusion;
4. insurances required to comply with all statutory insurance requirements, including but not limited to, employer’s liability insurance, and
5. computer “All Risks” insurance to include:
a) “All Risks” of physical loss or damage to computer and/or ancillary equipment, including reinstatement of data costs following loss of information on fixed discs;
b) damage to computer records and reinstatement of data costs following loss of information on computer records;
c) Additional Cost of Working expenditure necessarily and reasonably incurred in order to prevent or minimise the interruption of the computer equipment; and
d) cover to include loss or damage caused by breakdown.
6. all such insurances must be effective in each case not later than the date on which the relevant risk commences under this Agreement;
7. the insurances shall be maintained from time to time on terms no less favourable than those generally available to a prudent Service Provider operating to Good Industry Standards in respect of risk insured in the international insurance market from time to time.
2. The Service Provider shall promptly pay all premiums payable and other sums due in respect of the insurance policies referred to in Clause 19.1 and not do anything which may cause the policies to be vitiated in whole or in part.
3. The insurance policies referred to in Clause 19.1 shall extend to cover all employees, agents and representatives of the Service Provider where appropriate to the activities they undertake on behalf of the Service Provider. The Service Provider shall ensure that all Sub-Contractors are covered by insurance appropriate to the activities they undertake and which is otherwise in accordance with Good Industry Standards.
4. In respect of the insurance policies referred to in Clauses 19.1.1 and 19.1.4, the Service Provider shall ensure that they contain:
1. an ‘indemnity to principals' clause in favour of the Authority,
2. a clause waiving the insurers’ subrogation rights against the Authority and Authority Personnel.
5. The Service Provider shall on the reasonable written request of the Authority from time to time produce details of the policies to the Authority together with evidence of payment of all premiums due.
6. The Service Provider shall notify the Authority twenty (20) working days prior to the cancellation or non-renewal of any of the insurances listed in Clause 19.1.
7. Neither Party shall do anything or fail to take any reasonable action or permit anything within its power to occur which would entitle any insurer to refuse to pay any claim under any of the policies referred to in Clause 19.1.
8. The Service Provider shall give the Authority notification within 30 days after any claim in excess of twenty percent (20%) on any of the insurance policies referred to in this Clause accompanied by full details of the incident giving rise to the claim.
9. Neither failure to comply or full compliance with the insurance provisions of this Agreement shall relieve the Service Provider of its liabilities and obligations under this Agreement.
20. 20 TERMINATION"\l 1 termination
1. Termination of Agreement by the Authority 'for cause': this Agreement may be terminated by the Authority at any time by written notice (such notice to be effective on the date stated in that notice) if:
1. the Service Provider is in:
a) material; or
b) continuing; or
c) persistent; or
d) repeated,
Default in respect of its obligations under this Agreement and:
e) fails within thirty (30) Business Days of receipt of written notice (from and including the day on which notice is deemed to be received) of the Default from the Authority to remedy the Default; or
f) the Default is not capable of being remedied;
2. a Deemed Material Default occurs;
3. there is a change in the Control of the Service Provider or any of its holding companies (as defined in sections 736 and 736A of the Companies Act 1985) which the Authority considers may: (i) have an adverse impact on the Services and/or (ii) adversely affect its reputation, provided that such notice is given to the Service Provider within six (6) months from and including the date on which the Authority is notified by the Service Provider of such change in Control. The Service Provider shall promptly notify the Authority in writing in the event of any change in Control to which this Clause 20.1.3 applies where such notification is not prohibited by Law;
4. the occurrence of an Insolvency Event and/or
5. the Service Provider is in Default and as a result the Authority incurs costs, losses or damages that exceed seventy five per cent (75%) of the aggregate value of the relevant liability cap set out in Clause 18.3.1.
2. Termination of Agreement without cause: the Authority shall be entitled to terminate this Agreement for convenience by serving not less than six (6) months' written notice from and including the date notice is served, to expire at any time.
3. Termination of this Agreement for continuing Force Majeure Event: the Authority may during the continuance of any Force Majeure Event terminate this Agreement by written notice if a Force Majeure Event occurs which continues for more than ninety (90) Business Days from and including the date of the Force Majeure Event.
4. Termination for Authority Default: this Agreement may be terminated by the Service Provider if the Authority is in material Default in respect of its obligations under this Agreement and fails within thirty (30) Business Days of receipt of written notice (from and including the day on which notice is deemed to be received) of the Default from the Service Provider to remedy the Default.
5. Service Provider Break Option: where the Service Provider can reasonably demonstrate to the Authority that:-
1. the Scheme is not financially viable due to the number of members and/or Deposits protected being materially less than the Volume Assumptions; and
2. this situation cannot reasonably be remedied by alteration to the Scheme pricing structure,
the Service Provider may terminate this Agreement by giving not less than twelve (12) months notice in writing to the Authority, such notice to be given no earlier than the first (1st) anniversary of the Service Commencement Date.
6. Consequences of expiry or termination
1. Notwithstanding the expiry or termination of this Agreement for any reason, it shall continue in force to the extent necessary to give effect to those of its provisions which expressly or by implication have effect after termination.
2. Termination of this Agreement and/or any Service shall not affect the rights of either Party accruing or accrued prior to its termination.
7. Payment on Termination: the provisions of Schedule 20 (Payments on Termination) shall apply in the event of termination of this Agreement in accordance with Clauses 20.1, 20.2 or 20.4 or otherwise where the Agreement is not extended after the third (3rd) Contract Year pursuant to Clause 2.2. No payment on termination shall be due to the Service Provider where the Service Provider exercises its option pursuant to Clause 20.5.
21. 21 EXIT MANAGEMENT AND EMPLOYEES"\l 1 EXIT MANAGEMENT and employees
1. The provisions of Schedule 8 (Managed Exit) shall apply in respect of the exit arrangements to be implemented in contemplation of and to effect termination or expiry of this Agreement.
2. The provisions of Schedule 7 (Employees) shall apply to govern the Parties' obligations in respect of the Employees.
22. 22 FORCE MAJEURE"\l 1 force majeure
1. Effect of Force Majeure
1. Subject to the remaining provisions of this Clause 22, to the extent that either Party is prevented from performing its obligations under this Agreement for reasons beyond the Party in question's reasonable power to control (a “Force Majeure Event”) then that Party's duty to perform its obligations under this Agreement will (during the continuation of the Force Majeure Event) be read and construed as an obligation to perform such obligations to the best level achievable in the circumstances of the Force Majeure Event and that Party shall be relieved from liability under this Agreement where and to the extent that by reason of the Force Majeure Event it is not able to perform its obligations under this Agreement.
2. Notwithstanding Clause 22.1.1, the following shall not be deemed to constitute a Force Majeure Event for the purposes of this Agreement:
a) industrial action, strikes or lock-outs by employees of either Party or its sub-contractors;
b) deliberate sabotage of, or malicious or reckless damage to, equipment or data where the sabotage is attributable to the relevant Party, its employees or Sub-Contractors or the employees of the Sub-Contractors;
c) in relation to the Service Provider only, any event which a prudent services provider, operating to Good Industry Standards, could reasonably have foreseen and prevented or avoided (for example, including without limitation a virus attack which could have been prevented by use of anti-virus software or failure to obtain supplies of goods or services for use within the Services where those supplies are available);
d) change in Law; and
e) an event which is attributable to a Party’s wilful act, neglect or failure to take reasonable precautions against the Force Majeure Event.
2. Effect of suspension of a Service: to the extent that any Force Majeure Event results in the whole or any part of the Services being suspended (which includes the whole or any part of Services being delivered to a level where it is of no practical benefit), then the Authority may, at its sole discretion, require the application of one of the following options (and may change the option from time to time by written notice in accordance with the terms of this Clause):
1. the Service Provider shall procure the provision of the part(s) or (as relevant) those parts of the Services that have been suspended ("Suspended Services") from an alternative supplier until cessation of the suspension or may procure the provision of the Suspended Services direct from an alternative supplier; or
2. the Service Provider shall provide such alternative services (during the period of the suspension) as will be calculated to minimise the disruption as a result of the suspension.
3. Conditions on claiming Force Majeure: the Party seeking relief from its obligations due to a Force Majeure Event (the "Affected Party") will not be entitled to invoke the provisions of Clause 22.1 unless it fully performs the following obligations:
1. on becoming aware of any Force Majeure Event which gives rise, or which is likely to give rise, to any failure in the performance of its obligations under this Agreement, it notifies the other Party as soon as reasonably practicable after becoming aware of such event, giving details of the Force Majeure Event, the obligations on its part which are or are likely to be affected and its reasonable estimate of the period for which such failure will continue or is likely to take place; and
2. it provides written confirmation and reasonable evidence of such Force Majeure Event within three (3) Business Days of notification (from and including the day on which notice is received) under Clause 22.3.1.
4. Mitigation and cessation of Force Majeure
1. As soon as reasonably practicable following notification under Clause 22.3.2, the Parties shall consult with each other in good faith and use all reasonable endeavours to agree appropriate terms to mitigate the effects of the Force Majeure Event and to facilitate the continued performance of the Services. Without prejudice to Clause 22.1.1, where the Service Provider is the Affected Party it shall take steps in accordance with Good Industry Standards to overcome or minimise the consequences of the Force Majeure Event.
2. The Affected Party shall notify the other Party as soon as reasonably practicable after the Force Majeure Event ceases or no longer causes the Affected Party to be unable to comply with its obligations under this Agreement. Following such notification this Agreement shall continue to be performed on the terms existing immediately before the occurrence of the Force Majeure Event.
5. Termination of this Agreement for prolonged Force Majeure: the provisions of Clause 20.3 shall apply in relation to termination of this Agreement due to prolonged occurrence of a Force Majeure Event.
23. 23 RIGHTS OF AUDIT AND ACCESS AND RECORD KEEPING"\l 1 Rights of audit and access and record keeping
1. The Service Provider shall comply with the provisions of Schedule 3 (Audit and Access).
2. The Service Provider shall, for a period of at least seven (7) years from and including whichever shall be the later date of:
1. the date of expiry or termination of this Agreement;
2. the date on which the Service Provider and any relevant Sub-Contractors complete all required Exit Assistance to the reasonable satisfaction of the Authority; or
3. such longer period as may be required to comply with its obligations under this Agreement,
maintain and shall procure that for such period all Sub-Contractors maintain, the following items:
4. any Records or information required expressly or impliedly in connection with the rights granted to the Authority and/or any of its agents under the terms of Schedule 3 (Audit and Access); and
5. such other records, information and documentation as required elsewhere under this Agreement.
3. Notwithstanding the provisions of Clause 23.2, Personal Data shall be retained only for as long as is necessary for the effective operation and run-off of the Scheme and regulatory compliance and always subject to Principle 5 of the DPA. The Service Provider shall ensure that its governance procedures for the operation of the Scheme specify its procedures and associated time periods for the retention of Personal Data.
24. 24 ASSIGNMENT, NOVATION AND OTHER DISPOSALS"\l 1 Assignment, NOVATION AND OTHER DISPOSALS
1. The Service Provider agrees that the Authority may assign, novate, sub-contract or otherwise dispose of, and be released from, any or all of its rights and/or obligations under this Agreement:
1. to any Contracting Authority (not being another Crown Body from whom the Authority is legally indivisible); or
2. to any successor to the Authority or to any other body (including any private sector body) which substantially performs any of the functions that previously had been performed by the Authority; or
3. any of the entities referred to or described in Clause 1.2.12; or
4. (only with the prior written consent of the Service Provider (which shall not be unreasonably withheld or delayed)) to any other person,
provided that the Authority’s assignee or successor in title undertakes in writing to the Service Provider to be bound by the obligations of the Authority under this Agreement.
2. Subject to Clause 25, this Agreement is personal to the Service Provider. The Service Provider shall not assign, novate or otherwise transfer or dispose of any of its rights, obligations or liabilities under this Agreement without the prior written consent of the Authority, which may be withheld in the Authority’s discretion, and any attempt by the Service Provider to assign, novate or otherwise transfer or dispose of its rights or obligations in violation hereof shall be null and void as between the Parties.
25. 25 APPROVAL OF SUB-CONTRACTORS"\l 1 Approval of Sub-Contractors
1. The Service Provider shall not subcontract any of its obligations hereunder to any Sub-Contractor without the prior written approval of the Authority which shall not be unreasonably withheld or delayed. Where the Authority has failed to notify the Service Provider that:-
1. the proposed Sub-Contractor is approved;
2. the proposed Sub-Contractor is not approved or the Authority requires further information or time in order to consider its approval,
within twenty (20) Business Days from and including the date of receipt of the Service Provider's request for approval, the proposed Sub-Contractor shall be deemed approved. For the avoidance of doubt, the Sub-Contractors named in Schedule 12 (Sub-Contractors) shall be deemed to have been approved by the Authority as at the Effective Date.
2. The Authority may withhold or delay its approval where it considers that:-
1. the appointment of a proposed Sub-Contractor may bring the Authority into disrepute or otherwise to affect adversely the reputation or commercial standing of the Authority or a Crown Body; and/or
2. the appointment of a proposed Sub-Contractor may be a threat to the health, safety and/or security of any of the bodies referred to in Clause 25.2.1 or any of their personnel; and/or
3. the appointment of a proposed Sub-Contractor may prejudice the provision of the Services or may be contrary to the interests of the Authority; and/or
4. the proposed Sub-Contractor is considered to be unreliable and/or has not provided reasonable services to its other customers.
3. The Service Provider shall ensure that the terms of this Agreement are properly and reasonably reflected in the terms of any contract with each such Sub-Contractor and that each one of them shall at all times be bound by the obligations of the Service Provider under this Agreement. The Service Provider shall ensure that its Sub-Contractors perform the obligations of the Service Provider delegated to them in all respects as if they were a Party to this Agreement owing to the Authority all those obligations and duties of the Authority as provided in this Agreement. The Service Provider shall procure that all Sub-Contractors procure, maintain and observe all Approvals required to perform any obligations of the Service Provider under this Agreement sub-contracted to it by the Service Provider.
4. The Service Provider shall ensure that its arrangements with Sub-Contractors do not contain:-
1. payment terms that will not unfairly prejudice the Authority in relation to payments on termination (for example, by back-loading payment terms); and
2. a prohibition or restriction on the Sub-Contractor entering into any contract directly with the Authority.
5. In making a request for approval pursuant to Clause 25.1 the Service Provider shall provide the Authority with the following information about the proposed Sub-Contractor:-
1. its name and address;
2. a copy of the proposed Sub-contract;
3. (to the extent that it is not apparent from the proposed Sub-Contract or the proposed Sub-Contract is not available or finalised) the purposes for which the proposed Sub-contractor will be employed, including the scope of any services to be provided by the proposed Sub-Contractor;
4. where the proposed Sub-Contractor is also a member of the same group of companies as the Service Provider or under common control, evidence that demonstrates to the reasonable satisfaction of the Authority that the proposed Sub-Contract has been agreed on "arms-length" terms; and
5. any further information reasonably requested by the Authority.
6. Sub-contracting its obligations under this Agreement shall not relieve the Service Provider of any liability for the Service Provider's performance and the actions and omissions of Sub-Contractors (including those of their officers, employees and/or agents and their agents' officers and employees) shall be deemed to be the actions and omissions of the Service Provider.
7. The Service Provider shall notify the Authority of any change affecting a Material Sub-Contractor which may have a material impact on the provision of the Services, together with all reasonable information to enable the Authority to consider the likely impact of the change, and the Parties shall discuss and seek to agree ways in which any adverse impact may be minimised.
26. 26 CORRUPT GIFTS AND PAYMENTS OF COMMISSION"\l 1 corrupt gifts and payments of commission
1. The Service Provider shall notify the Authority immediately upon becoming aware that any Prohibited Act addressed in this Clause has or may have been committed.
2. Subject to the provisions of this Clause 26, if the Service Provider or anyone employed by the Service Provider commits any Prohibited Act, then it shall be a Deemed Material Default.
3. If a Prohibited Act is committed by an employee of the Service Provider acting independently of the Service Provider, then the Authority may give notice to the Service Provider of termination and this Agreement will terminate, unless within thirty (30) Business Days from and including the date of receipt of such notice the Service Provider terminates the employee’s employment and (if necessary) procures the performance of such part of the Services by another person.
4. If a Prohibited Act is committed by a Sub-Contractor or by an employee of that Sub-Contractor not acting independently of that Sub-Contractor, then the Authority may give notice to the Service Provider of termination and this Agreement (as specified in the notice of termination) will terminate, unless within thirty (30) Business Days from and including the date of receipt of such notice the Service Provider terminates the relevant subcontract and procures the performance of such part of the Services by another person which other person shall for the avoidance of doubt be subject to approval by the Authority in accordance with the Clause 25.
5. If a Prohibited Act is committed by an employee of a Material Sub-Contractor acting independently of that Sub-Contractor, then the Authority may give notice to the Service Provider of termination and this Agreement (as specified in the notice of termination) will terminate, unless within thirty (30) Business Days from and including the date of receipt of such notice the Service Provider procures that the employee is removed permanently from performance of any of the Services or duties connected with this Agreement and procures the performance of such part of the Services by another person.
6. If a Prohibited Act is committed by any other person not specified in Clauses 26.1 or referred to in Clauses 26.3 to 26.5, then the Authority may give notice to the Service Provider of termination and this Agreement (as specified in the notice of termination) will terminate unless within thirty (30) Business Days from and including the date of receipt of such notice, the Service Provider procures that such person is removed permanently from the performance of any of the Services or duties connected with this Agreement and procures the performance of such part of the Services by another person.
7. Any notice of termination under this Clause 26 shall specify:
1. the nature of the Prohibited Act;
2. the identity of the person whom the Authority believes has committed the Prohibited Act (if known); and
3. whether the Authority wishes to terminate this Agreement.
8. The decision of the Authority shall be final and conclusive in any dispute, difference or question arising in respect of:
1. the interpretation of this Clause; and
2. the right of the Authority under this Clause 26 to terminate this Agreement.
27. 27 CONFLICT OF INTEREST"\l 1 Conflict of Interest
1. In providing the Services, the Service Provider shall not do anything, or knowingly or negligently permit a situation to arise, whereby a conflict may be created between the interests of the Authority and the Service Provider or which may be likely to prejudice its independence and objectivity in providing the Services. The Service Provider shall not accept bribes, improper commissions or other improper financial inducements from any suppliers or Sub-Contractors in relation to the Services.
2. Where the provision or planning of Services involves the selection of, or advice upon the selection of, alternative courses of action (including refraining from a particular course of action) or the acquisition, or advice upon the acquisition of goods, services and rights, the Service Provider shall make such selection or acquisition or give such advice in an impartial, independent and unbiased manner and in the best interests of the Authority.
3. In the event of the Service Provider becoming aware of any conflict of interest (whether such existed on or before the Effective Date or has come to exist thereafter) it shall immediately notify the Authority of such in writing providing full particulars of such together with any additional information which the Authority may require in connection with such matter.
4. If the Authority considers that the conflict of interest notified to it under Clause 27.3 is capable of being avoided or removed, the Authority may require the Service Provider to take such steps as are necessary to avoid or, as the case may be, remove such conflict of interest.
5. In the event that:
1. the Service Provider fails to avoid or remove such conflict as required in Clause 27.4 or such conflict cannot in the view of the Authority be avoided or removed; or
2. the Authority considers that a conflict of interest existed at or prior to the Effective Date which could have been discovered by the Service Provider's due diligence and which should have been disclosed in writing by the Service Provider prior to the Effective Date,
such matter shall be deemed to constitute a Deemed Material Default.
6. Any dispute in respect of this Clause shall be determined through the Dispute Resolution Procedure.
28. 28 COMPLIANCE WITH LAW / DATA STANDARDS"\l 1 compliance with law / DATA standards
1. Compliance with Law: the Service Provider shall perform its obligations under this Agreement in a manner that complies with all applicable Laws in relation to, or otherwise relevant to, its obligations under this Agreement, and shall promptly notify the Authority if it receives an oral or written allegation of non-compliance with any such Law.
2. Compliance with Data Standards: without prejudice to any of its other obligations under this Agreement, the Service Provider shall perform its obligations under this Agreement in a manner that complies with the Data Standards.
29. 29 CHANGES IN LAW / DATA STANDARDS"\l 1 changes in law / Data standards
1. Subject to Clause 29.2, the Service Provider shall bear the cost of ensuring that the Services and this Agreement comply with:
1. all changes in Law; and
2. all changes in Data Standards,
except for Authority Specific Changes in Law and Authority Specific Changes in Data Standards.
2. In the case of an Authority Specific Change in Law and/or an Authority Specific Change in Data Standards, the Service Provider shall be entitled to recover any agreed additional costs required to implement an Authority Specific Change in Law and/or an Authority Specific Change in Data Standards subject to:-
1. the Service Provider using all reasonable endeavours to mitigate the effects of any Authority Specific Changes in Law and any Authority Specific Changes in Data Standards and to reduce any cost increases it may incur as a result;
2. any such capital expenditure being adjusted to take into account the obligation of the Service Provider to mitigate the effects of such Authority Specific Changes in Law or Authority Specific Changes in Data Standards (as the case may be);
3. a reduction to reflect any savings in costs achieved by the Service Provider as a result of the Authority Specific Change in Law or Authority Specific Change in Data Standards (as the case may be); and
4. an obligation on the Service Provider to seek to recover the additional costs through the fees it charges Landlords as part of the Scheme wherever commercially viable. Any recovery shall be taken as mitigation and Clause 29.2.1 shall apply.
30. 30 WAIVER"\l 1 WAIVER
1. Any failure to exercise or any delay in exercising a right or remedy provided by this Agreement or at Law will not constitute a waiver of the right or remedy or a waiver of any other rights or remedies. A waiver of any breach, right or remedy in relation to this Agreement will only be effective if made in writing and signed by or by an authorised representative on behalf of the Party expressly waiving such breach, right or remedy.
2. A waiver of a breach, right or remedy in relation to this Agreement will not constitute a waiver of any other breach, right or remedy and will not affect the other terms of this Agreement.
31. 31 REMEDIES"\l 1 REMEDIES
Neither Party shall be entitled to recover from the other more than once to the extent and in respect of the same liability of the other Party.
32. 32 THIRD PARTY RIGHTS"\l 1 third party rights
A person (including Sub-Contractors, Service Provider Personnel and Authority Personnel) who is not a Party to the Agreement shall have no right to enforce any term of the Agreement, which expressly or by implication, confers a benefit on him without the prior agreement in writing of both Parties, which agreement should specifically refer to this Clause. This Clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act, and does not apply to the Crown.
33. 33 ANNOUNCEMENTS"\l 1 ANNOUNCEMENTS
1. Save as specified in this Clause 33 or with the written consent of the other Party, neither Party shall make any public announcement concerning this Agreement in any way.
2. Both Parties shall take all reasonable steps to ensure the observance of the provisions of this Clause by all their employees, agents, consultants and sub-contractors.
3. The Authority shall be entitled to publicise this Agreement:
1. in accordance with any legal obligation upon the Authority, including any examination of this Agreement by the National Audit Office pursuant to the National Audit Act 1983 or otherwise;
2. in the circumstances specified in Clauses 11 and 13; and
3. in accordance with proper parliamentary or Governmental procedures or practice (including but not limited to obligations to report to Parliament and in accordance with Parliamentary orders).
4. Where reasonably possible, the Authority shall give the Service Provider prior written notice of any publication pursuant to this Clause.
5. The Parties acknowledge that the National Audit Office has the right to publish details of this Agreement (including Commercially Sensitive Information) in its reports produced pursuant to the National Audit Act 1983 (whether to Parliament or otherwise).
34. 34 FURTHER ASSURANCE"\l 1 FURTHER ASSURANCE
Each Party will at its own cost and expense do or procure to be done all such further acts and things and execute or procure the execution of all such documents as may from time to time be necessary for the purpose of giving effect to the provisions of, and the benefits and rights granted pursuant to, this Agreement.
35. 35 COSTS"\l 1 COSTS
Each Party will pay its own costs and expenses relating to the negotiation, preparation, execution and implementation of this Agreement and of each document referred to in it unless this Agreement expressly provides otherwise.
36. 36 ENTIRE AGREEMENT"\l 1 ENTIRE AGREEMENT
1. This Agreement constitutes the entire agreement and understanding between the Parties in respect of the matters dealt with in it and supersedes any previous agreement between the Parties relating to such matters notwithstanding the terms of any previous agreement or arrangement expressed to survive termination or expiry.
2. Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether a Party to this Agreement or not) other than as expressly set out in this Agreement or referred to in Clause 15.1.8.
37. 37 SEVERANCE"\l 1 SEVERANCE
1. If a provision of this Agreement is reasonably capable of an interpretation which would make that provision valid and enforceable and an alternative interpretation that would make it void, illegal, invalid or otherwise unenforceable, then that provision shall be interpreted, so far as is possible, to be limited and read down to the extent necessary to make it valid and enforceable.
2. Subject to Clause 37.1, if any provision of this Agreement is prohibited by Law or found by a court or Authority of competent jurisdiction to be void, illegal, invalid or otherwise unenforceable, such provision shall be severed and the remainder of this Agreement shall continue in full force and effect to the fullest extent permitted by Law, as if this Agreement had been executed with the void, illegal, invalid or unenforceable provision eliminated. The Parties agree to negotiate in good faith in order to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves, to the greatest extent possible, the economic, legal and commercial objectives of the invalid or unenforceable provision.
38. 38 NOTICES"\l 1 NOTICES
1. Any notice given under or in relation to this Agreement will be in writing and signed by or on behalf of the Party giving it and may be served by:
1. delivering it personally or by sending it by pre-paid first class post, or recorded delivery or registered post;
2. by facsimile transmission; and/or
3. by e-mail provided that the requirement for a notice to be signed will not apply to e-mail notices,
(without prejudice to any such other modes of service as may from time to time be permitted by the Civil Procedure Rules 1999 and any Practice Directions applying thereto or any amendment or re-issue thereof) to the address and for the attention of the relevant Party set out in Clause 38.3 or in the event that another address has been notified by a Party hereunder in accordance with and making specific reference to this Clause 38 then to that other address.
2. Any such notice will be deemed to have been received:
1. if delivered personally, at the time of delivery;
2. in the case of pre-paid first class post or recorded delivery or registered post, forty eight (48) hours from and including the date of posting if from and to an address in the United Kingdom and five (5) Business Days from and including the date of posting if from and to an address elsewhere;
3. in the case of registered airmail, five (5) Business Days from and including the date of posting;
4. in the case of facsimile transmission twelve (12) hours after the time of transmission provided an error free transmission has been received by the sender and provided further that within twenty four (24) hours of transmission a copy of the facsimile is sent to the recipient by hard-copy post in accordance with Clause 38.1; and
5. in the case of e-mail at the time the e-mail enters the recipient's Designated Information System provided that no error message indicating failure to deliver has been received by the sender and provided further that within twenty-four (24) hours of transmission a copy of the email signed by the person giving it is sent to the recipient by hard-copy post in accordance with Clause 38.1,
provided that if deemed receipt occurs before 9am on a Business Day the notice will be deemed to have been received at 9am on that day, and if deemed receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice will be deemed to have been received at 9am on the next Business Day.
3. For the purposes of this Clause 38 the addresses, fax numbers and e-mail addresses of the Parties are:
The Authority:
|Address: |Department for Communities & Local Government |Fax No: |020 7944 3408 |
| |Eland House, Bressenden Place | | |
| |London SW1E 5DU | | |
|FAO |Deputy Director, Housing Strategy and Support Directorate (as at the date hereof Simon Llewellyn) |
|Copy to |Director, Housing Strategy and Support Directorate (as at the date hereof, Terrie Alafat) |
The Service Provider:
|Address: |The Dispute Service Ltd |Fax No: |01494 431 123 |
| |PO Box 541 | | |
| |Amersham | | |
| |Bucks HP6 6ZR | | |
|FAO |Name: |Lawrence Greenberg |
| |Email |xxxxxxxx@xxx.xx.xxx |
| | |xxxxxxxx@xxxxxxx.xxx |
|Copy to |Name: |Malcolm Lindo |
| |Email |xxxxxxx@xxx.xx.xxx |
| | |xxxxxx@xxx.xxx |
4. In proving such service it will be sufficient to prove that the envelope containing such notice was addressed to the address of the relevant Party set out in Clause 38.3 (or as otherwise notified by that Party hereunder) and delivered either to that address or into the custody of the postal department as a pre-paid recorded delivery, registered post or airmail letter or that the notice was transmitted by fax to the fax number of the relevant Party set out in Clause 38.3 or that notice was transmitted by e-mail to the Designated Information System of the relevant Party set out in Clause 38.3 and no error message indicating failure to deliver has been received by the sender.
39. 39 NO PARTNERSHIP OR AGENCY"\l 1 no partnership or agencY
Nothing in this Agreement, including references to “partner”, “partnering” or "partnership", is intended to create a partnership or joint venture of any kind between the Parties, or to authorise either Party to act as agent for the other. Save where expressly so stated in this Agreement, neither Party will have authority to act in the name or on behalf of or otherwise to bind the other. Accordingly nothing in this Agreement shall impose any liability on the Authority in respect of any liability incurred by the Service Provider to any third party.
40. 40 COUNTERPARTS"\l 1 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, will be an original, and all the counterparts together will constitute one and the same instrument.
41. 41 GOVERNING LAW AND JURISDICTION"\l 1 GOVERNING LAW AND JURISDICTION
1. This Agreement shall be subject to the laws of England and Wales save that, in relation to any matter on which laws of England and Wales conflict, it shall be governed by the laws of England only. Subject to the provisions of Clause 10 (Dispute Resolution) and Clause 41.2 below, both Parties agree that the courts of England and Wales shall have exclusive jurisdiction to hear and settle any action, suit, proceeding or dispute arising out of or in connection with this Agreement and irrevocably submit to the jurisdiction of those courts.
2. If the Supreme Court of England and Wales ceases to exist, references in this Agreement to such court shall be construed as being references to the equivalent successor body relating to England (regardless of whether that body additionally has responsibilities in relation to any other territory).
SCHEDULE 1 - DEFINITIONS"\L 4 DEFINITIONS
|Act |Housing Act 2004 (c.34); |
|Agreement |the body of this document together with its Recitals, Schedules, Annexes and Appendices; |
|Approvals |regulatory and governmental licences, consents, clearances, approvals, authorisations and |
| |permissions necessary for provision of the Services; |
|Approved Insurer |the meaning ascribed to it in Schedule 22 (Scheme Insurance); |
|Assessment Date |the meaning ascribed to it in Schedule 10 (Performance Management); |
|Associated Company |any subsidiary or holding company of a Party or a Sub-Contractor, or a subsidiary or a |
| |holding company of any such holding company; |
|Audit |an audit carried out by the Authority and/or its Audit Agents in accordance with Schedule 3 |
| |(Audit and Access); |
|Audit Agents |(a) any internal and external auditors of the Authority; |
| |(b) statutory or regulatory auditors of the Authority; |
| |(c) the Comptroller and Auditor General, his staff and/or any appointed representatives of |
| |the National Audit Office; |
| |(d) the Auditor General of Wales, his staff and/or any appointed representatives of the Wales|
| |Audit Office; and |
| |(e) authorised successors to any of the above; |
|Authority Data |any information:- |
| |(a) collected and held by the Service Provider in the course of providing the Services and/or|
| |operating the Scheme; |
| |(b) in whatever form; |
| |(c) which concerns End-Users or the operation the Scheme; and |
| |(d) which is held by or on, entered into, generated or processed by or retrievable from the |
| |systems (or any part thereof), established by the Service Provider to administer the Scheme |
| |with or without modification; |
|Authority IP |IP which is wholly owned by the Authority; |
|Authority Personal Data |Personal Data Processed by the Service Provider on behalf of the Authority; |
|Authority Personnel |employees, officers, consultants, contractors, agents and representatives of the Authority; |
|Authority RFC |a RFC issued by the Authority; |
|Authority Specific Changes In Data |Changes in Data Standards which:- |
|Standards |(a) exclusively relate to or exclusively affect the Authority and the Services; and |
| |(b) have a material impact on the Services; and |
| |(c) materially increases the costs incurred by the Service Provider in providing the Services|
| |and those increased costs cannot for reasonable commercial reasons be recovered through fees |
| |charged to Landlords under the Scheme; |
|Authority Specific Changes In Law |Changes in Law which:- |
| |(a) exclusively relate to or exclusively affect the Authority and the Services; and |
| |(b) have a material impact on the Services; and |
| |(c) materially increase the costs incurred by the Service Provider in providing the Services |
| |and those increased costs cannot for reasonable commercial reasons be recovered through fees |
| |charged to Landlords under the Scheme; |
|BAFO |the meaning ascribed to it in Recital D; |
|Bespoke IP |IP created by the Service Provider (or a Sub-Contractor or any third party on behalf of the |
| |Service Provider) pursuant to or in relation to this Agreement including delivering, |
| |establishing and running the Scheme (whether before or after the Effective Date) and in any |
| |updates, modifications, enhancements and new releases; |
|Business Continuity Plan or BCP |plans which describe the arrangements required to:- |
| |(a) ensure continuity of the Scheme; and |
| |(b) minimise the adverse impact of a Disaster on the Authority and/or the End Users and/or |
| |the Scheme; |
|Business Day |Monday to Friday inclusive, but exclusive of Bank Holidays and Public Holidays; |
|CCN |a change control notice issued by the Authority to the Service Provider confirming acceptance|
| |of the Change Response (as agreed or determined pursuant to the Dispute Resolution Procedure)|
| |or the Service Provider's RFC (as modified) as the case may be; |
|Change |(a) a change to this Agreement (excluding Schedule 14 (Service Provider's Method Statement));|
| |or |
| |(b) a material change to the Service Provider's Method Statement |
|Change Control Procedure |the processes for proposing and agreeing Changes which are set out in Schedule 4 (Change |
| |Control Procedure); |
|Change Implementation Plan |a plan for the implementation of a Change produced by the Service Provider and which as a |
| |minimum shall include:- |
| |(a) the activities necessary to implement the proposed Change; |
| |(b) appropriate allocations of responsibility; |
| |(c) project plan including timelines and key dates, milestones and deadlines; and |
| |(d) the activities required to address issues identified in the Impact Assessment; and |
| |(e) the activities required to implement the Financial Proposal. |
|Change Response |the Service Provider's response to an Authority RFC which shall consist of:- |
| |(a) an Impact Assessment; |
| |(b) a Change Implementation Plan; and |
| |(c) a Financial Proposal; |
|Commercially Available Software |Software which is generally available for licensing to any person on terms (including price) |
| |that would reasonably be regarded by the Authority as industry standard terms; |
|Commercially Sensitive Information |the information listed in Schedule 13 (Commercially Sensitive Information), comprising |
| |information of a commercially sensitive nature relating to the Service Provider, Service |
| |Provider IP or its business which, if disclosed, would cause the Service Provider significant|
| |commercial disadvantage or material financial loss; |
|Confidential Information |all information in any form (including without limitation all Personal Data) which is |
| |confidential in nature or which may reasonably be regarded as such: |
| |(a) whether or not that information is marked or designated as confidential or proprietary; |
| |(b) whether or not disclosed by one Party to the other Party; |
| |(c) whether arising prior to or during the Term; and |
| |(d) whether commercial, financial, technical or otherwise, |
| |including all trade secrets, processes, plans, intentions, product information, financial and|
| |other books, records, accounts, forecasts, and analyses, technical data, know how, models, |
| |reports, drawings, designs, specifications and schedules whether or not relating to the |
| |Services together with all developments, modifications, additions, alterations and amendments|
| |thereto, information relating to market opportunities, transactions, business undertaken or |
| |to be undertaken by the disclosing Party, information concerning that Party's customers, |
| |clients, suppliers, holding companies and/or subsidiaries, made by either Party in the course|
| |of performance of this Agreement together with the terms of this Agreement and the content of|
| |negotiations which preceded the entering into of this Agreement; |
|Contract Manager |as at the Effective Date, the Service Provider's Contract Manager shall be Malcolm Lindo and |
| |thereafter may only be changed with the Authority's prior written approval in writing (such |
| |approval not to be unreasonably withheld or delayed); |
|Contract Year |a period of twelve (12) months from and including the Service Commencement Date or any |
| |anniversary thereof; |
|Contracting Authority |a contracting authority as defined in Regulation 3(1) of the Public Contracts Regulations |
| |2006; |
|Control |(a) in relation to any business entity, the power of a person to secure (i) by means of the |
| |holding of shares or the possession of voting power in or in relation to that or any other |
| |entity; or (ii) by virtue of any powers conferred by the articles of association or other |
| |document regulating that or any other business entity, that the affairs of the |
| |first-mentioned business entity are conducted in accordance with that person’s wishes; but |
| |(b) in relation to a partnership means the right to a share of more than one half of the |
| |assets or income of the partnership, |
| |(and “Controls” and “Controlled” shall be construed accordingly); |
|Crown Body |any department, office or agency of the Crown; |
|Crown Servant |the meaning set out in section 12 of the Official Secrets Act 1989; |
|Custodial Scheme |the Custodial Tenancy Deposit Scheme implemented by the Authority pursuant to the "Custodial |
| |SP" shall mean the contractor appointed by the Authority to provide the Custodial Scheme; |
|Data Protection Information |the information to be provided to Data Subjects by the Service Provider on behalf of the |
| |Authority as specified by the Authority from time to time; |
|Data Standards |(a) data standards complying with the UK Government Data Standards Catalogue within the eGIF |
| |Interoperability framework (). In particular, for property data: |
| |; |
| |(b) for property data that has not yet been defined and published, the Authority is a member |
| |of PISCES (see pisces.co.uk) which is in the process of developing the eCommerce standard|
| |for real estate. In order to enable the electronic transfer of information directly from one|
| |system to another, the Authority will be working towards defining and publishing data |
| |standards that the Scheme will be expected to use; |
| |(c) any business conducted through the internet should follow the ebXML standard; |
|Deemed Material Default |a Default so designated in this Agreement which entitles the Authority to terminate this |
| |Agreement or any of the Services in accordance with Clause 20.1.2 including at:- |
| |(a) Clauses 6.1.3, 14.9.3, 26.1 and 27.5; |
| |(b) Paragraph 7 of Schedule 6 (Disaster Recovery); |
| |(c) Paragraphs 6 and 7 of Schedule 10 (Performance Management); and |
| |(d) Paragraph 1.2 of Schedule 11 (Security); |
|Default |any breach of a Party’s obligations under this Agreement or any act or omission, negligence |
| |or statement of either Party, its employees, agents or sub-contractors or its |
| |sub-contractors' employees or agents in connection with or in relation to this Agreement and |
| |in respect of which such Party is liable to the other; |
|Deposit |each deposit (or part thereof) relating to a property received by the Service Provider from a|
| |Landlord pursuant to the Scheme; |
|Deposit Holder |a financial institution holding the disputed Deposits on behalf of the Service Provider; |
|Disaster |means an event having a serious impact on the provision of the Services and/or the Scheme, |
| |which is either: |
| |(a) agreed to be such by the Parties from time to time (such agreement not to be unreasonably|
| |withheld); or |
| |(b) identified as such in the Disaster Recovery Plan; |
|Disaster Recovery Plan |the plan prepared by the Service Provider setting out how it would respond to and recover |
| |from a Disaster and which as a minimum shall cover:- |
| |(a) the type of event to which the plan applies; |
| |(b) a risk and impact assessment for each potential type of Disaster situation; |
| |(c) the processes and plans for managing each potential type Disaster and for enabling system|
| |and data recovery as well as subsequent re-instatement of business processes; |
| |(d) provision and maintenance of appropriate disaster recovery infrastructure; |
| |(e) actions required and timeframes for the reinstatement of full normal Services; |
| |(f) details of the human resources required to implement the Disaster Recovery Services; |
| |(g) identification of the key roles, responsibilities and decision-making authority of |
| |relevant individuals; |
| |(h) identification of third parties who will need to be informed (and kept informed) and the |
| |events that will trigger such contact; |
| |(i) identification of third parties (including Sub-Contractors) whose services will be |
| |required or impacted in the event of each potential type of Disaster; |
| |(j) all other services to be provided by the Service Provider in respect of a Disaster; |
|Disaster Recovery Services |the group of Services to be provided by the Service Provider in accordance with the Disaster |
| |Recovery Plan and Schedule 6 (Disaster Recovery) which may involve the provision of relevant |
| |Services by alternative means and any other services required to restore the Services to |
| |normal running; |
|Dispute |the meaning ascribed to it in Clause 10.1; |
|Dispute Resolution Procedure |the escalation and dispute resolution procedure set out in Clause 26; |
|Documentation |descriptions of the Services, published technical specifications and procedures and plans all|
| |as required to provide the Services from time to time during this Agreement; |
|DPA |the Data Protection Act 1998 and "Data Controller", "Data Processor", "Personal Data" and |
| |"Data Subject" shall have the meaning set out in section 1(1) of the DPA, "Subject Access |
| |Request" shall mean a request by a Data Subject under section 7 of the DPA, "Data Subject |
| |Request" shall mean a Subject Access Request or other request or objection received from a |
| |Data Subject under the DPA and "Processing" shall have the meaning set out in section 1(1) of|
| |the DPA and "Process" and "Processes" shall be construed accordingly; |
|EEA |the European Economic Area; |
|Effective Date |the date of this Agreement; |
|Emergency Audit |an Audit carried out where:- |
| |(a) such Audit is required by the Authority for reasons of actual or suspected impropriety or|
| |fraud; |
| |(b) the Authority has reasonable grounds to suspect that the Service Provider may be in |
| |material breach of its obligations under this Agreement; |
| |(c) the Authority has reasonable grounds to suspect that a security breach has occurred which|
| |is detrimental to the provision of Services under this Agreement; |
| |(d) if the Authority wishes to carry out occasional unannounced security testing to establish|
| |compliance with the provisions of the Schedule 11 (Security); and/or |
| |(e) if other circumstances have arisen, or are believed to have arisen, which would give the |
| |Authority the right to terminate this Agreement |
| |and, insofar as it is able and is practicable in the circumstances, the Authority shall |
| |provide details of the grounds upon which it is relying. |
|End User |a user of the Scheme whether Landlord or tenant or authorised representatives thereof; |
|Environmental Information Regulations |the Environmental Information Regulations 2004 (as amended); |
|Escalation Procedure |the escalation process set out in Schedule 16 (Dispute Resolution); |
|Exit Assistance |the relevant Services to be provided by the Service Provider under Schedule 8 (Managed Exit);|
|Exit Assistance Date |the effective dates from and including which the Service Provider shall be required to |
| |provide the Exit Assistance being either:- |
| |(a) the date of any valid notice to terminate this Agreement; |
| |(b) the date which is six (6) months prior to the expiry or termination of this Agreement |
| |whichever is later; |
|Exit Period |the period commencing on the Exit Assistance Date and ending on the date following expiry or |
| |termination when the Authority reasonably determines that:- |
| |(a) a reasonable period of time has elapsed to allow Landlord members of the Scheme to join |
| |another Scheme or the Custodial Scheme; and |
| |(b) all necessary run-off activities in relation to the Scheme have been performed by the |
| |Service Provider. |
|Exit Plan |a detailed written plan prepared by the Service Provider to permit a Managed Exit on |
| |termination or expiry of this Agreement. As a minimum the plan shall provide the following |
| |information:- |
| |(a) a detailed description of the tasks to be performed in order to achieve an orderly |
| |transfer of the Services; |
| |(b) detailed estimates of the Service Provider resources required to perform the tasks and an|
| |indication of any Authority resources that may be required; |
| |(c) detailed estimates of the timescales necessary for the orderly execution of the Exit |
| |Plan; |
| |(d) a process for disclosure of details of all processes and procedures used in respect of |
| |the Services, including all underlying processes necessary to effect the Services during the |
| |Exit Period; |
| |(e) a process for disclosure of an inventory of any Authority Data that is under the control |
| |of the Service Provider and details of the data structures in which the Authority Data is |
| |stored; |
| |(f) proposals for the transfer of any Authority Data then in the Service Provider's |
| |possession from the Service Provider to the Authority |
| |(g) proposals for the supply of any other information or assistance reasonably required by |
| |the Authority in order to effect an orderly Managed Exit; |
|Expert |the meaning ascribed to it in Schedule 16 (Dispute Resolution); |
|Extended Licence |in relation to the IP terms which permit such IP to be Used worldwide by: |
| |(a) the Authority; and |
| |(b) any third party where such use or other dealing is sanctioned by the Authority, |
| |royalty-free for the Term and the Exit Period; |
|Financial Proposal |a proposal prepared by the Service Provider detailing the financial impact of the proposed |
| |Change and which as a minimum shall address:- |
| |(a) the estimated capital expenditure (if any), including any capital replacement costs, |
| |arising from or required to implement the Change; |
| |(b) the estimated increase in operating expenditure relating to the provision of the |
| |Services, with an analysis showing the costs of staff, consumables, sub-contracted and |
| |bought-in services, after the Change is implemented; and |
| |(c) details of any estimated overhead recoveries and long term cost savings that are |
| |anticipated after the Change is implemented; |
|FOIA |the Freedom of Information Act 2000 and any subordinate legislation made under this Act from |
| |time to time together with any guidance and/or codes of practice; |
|Force Majeure Event |the meaning ascribed to it in Clause 22.1; |
|Good Industry Standards |such levels of performance, skill, care, diligence, efficiency, prudence and foresight which |
| |would reasonably and ordinarily be expected from a leading company within the services |
| |industry worldwide for equivalent or comparable services (including without limitation data |
| |handling and processing) with sufficient resources (financial and otherwise) to enable it to |
| |perform its obligations under this Agreement; |
|Impact Assessment |an assessment carried out by the Service Provider of the impact on the Services following the|
| |submission of an RFC and which as a minimum shall address:- |
| |(a) any impact on the provision of the Services and/or on the Service Provider’s ability to |
| |meet its obligations under this Agreement and/or on any third parties including End Users |
| |and/or upon security including an assessment of the impact of the change on: |
| |(i) existing technical security arrangements; |
| |(ii) the then current versions of the security policies and documentation required in |
| |accordance with Schedule 11 (Security); and |
| |(iii) physical/administrative/personnel security arrangements required; |
| |(b) any amendment required to this Agreement and/or any related document as a result of the |
| |Change; |
| |(c) details of how the proposed Change will ensure compliance with any applicable Change in |
| |Law; and |
| |(d) such other information as the Authority may reasonably request in (or in response to) a |
| |RFC; |
|Implementation Period |the period between the Effective Date and the Service Commencement Date during which the |
| |Service Provider will comply with the Implementation Plan so as to be able to provide the |
| |Services from the Service Commencement Date; |
|Implementation Plan |the plan for the implementation of the Services set out in Schedule 18 (Implementation Plan);|
|Information |all Authority Data held or controlled by the Service Provider or its Sub-Contractors that |
| |falls within the definition of information set out in section 84 of FOIA; |
|Insolvency Event |the occurrence of any of the following events (or any event analogous to any of the following|
| |occurs in a jurisdiction other than England and Wales) in respect of the Service Provider or |
| |any of its holding companies (as defined in section 736 and 736A of the Companies Act 1985): |
| |(a) a proposal is made for a voluntary arrangement within Part I of Insolvency Act 1986 or of|
| |any other composition scheme or arrangement with, or assignment for the benefit of, its |
| |creditors; |
| |(b) a shareholder’s meeting is convened for the purpose of considering a resolution that it |
| |be wound up or a resolution for its winding-up is passed (other than in either case as part |
| |of, and exclusively for the purpose of, a bona fide reconstruction or amalgamation not |
| |involving a reduction of capital); |
| |(c) a petition is presented for its winding up or for the making of an administration order, |
| |or an application is made for the appointment of a provisional liquidator (in each case which|
| |is not dismissed within fourteen (14) Business Days from and including the date of its |
| |service) or a creditor’s meeting is convened pursuant to section 98 of Insolvency Act 1986; |
| |(d) a receiver, administrative receiver or similar officer is appointed over the whole or any|
| |part of its business or assets; |
| |(e) it is or becomes insolvent within the meaning of section 123 Insolvency Act 1986; |
|Intellectual Property or IP |intellectual property of whatever nature (including patents, trademarks, trade names, service|
| |marks, domain names, design rights, topography rights, database rights, present and future |
| |copyright, moral rights, know-how and any similar or analogous rights) existing anywhere in |
| |the world (whether registered or unregistered); |
|Intellectual Property Rights or IPR |any right, title and/or interest in IP and, where the context so admits, includes |
| |applications for such rights; |
|ISOP |the meaning ascribed to it in Recital C; |
|Landlord |the meaning ascribed in section 212(9)(a) of the Housing Act 2004 and any authorised |
| |representative thereof; |
|Law |(a) any statute, enactment, order, regulation and other similar instrument, by-law, |
| |obligation of the European Community, ordinance or subordinate legislation in force from time|
| |to time to which a Party is subject; |
| |(b) the common law and the law of equity as applicable to the Parties from time to time; |
| |(c) any binding court order, judgment, decree or requirement; |
| |(d) any applicable industry code, policy or standard enforceable by law; or |
| |(e) any applicable direction, guidance, policy, principle, rule or order that is binding on a|
| |Party and that is made or given by any regulatory body (including without limitation the |
| |Financial Services Authority) having jurisdiction over a Party or any of that Party’s assets,|
| |resources or business, including but not limited to any local or supranational agency, |
| |inspectorate, minister, ministry, official or public or statutory person of the government of|
| |the United Kingdom or of the National Assembly of Wales, |
| |in any jurisdiction that is applicable to this Agreement; |
|Licence |in relation to the IP, a licence on the following terms (save as provided to the contrary |
| |elsewhere in this Agreement):- |
| |(a) royalty free |
| |(b) non-exclusive |
| |(c) non-transferable |
| |(d) for the duration of the Term and the Exit Period; |
| |(e) a right to grant sub-licences during the Term to Sub-Contractors (provided the |
| |Sub-Contractor has entered into an appropriate confidentiality undertaking in accordance with|
| |Clause 11.6.5 where the relevant information constitutes Confidential Information); and |
| |(f) the right to use such IP solely for the purpose of fulfilling the Service Provider's |
| |obligations under this Agreement and only to the extent necessary for that purpose; |
|Malicious Software |(a) any program code, programming instructions intentionally constructed with the ability to |
| |damage, interfere with or otherwise adversely affect computer programs, data files, equipment|
| |or operations; or |
| |(b) any other code typically designated to be a virus, worm, time or logic bomb, disabling |
| |code or routine, backdoor or similar; |
|Managed Exit |the winding-up of the Scheme in such a manner as to allow a managed transition of Landlords |
| |to another tenancy deposit scheme as further detailed in Schedule 8 (Managed Exit); |
|Material Sub-Contractor |a Sub-Contractor whose obligations under a contract with the Service Provider are valued in |
| |excess of [fifty thousand pounds (£50,000)] per annum or which include the Processing of |
| |Personal Data or whose services would be required in the event of a Disaster. An existing |
| |Sub-Contractor who, at the time that it entered into an agreement with the Service Provider |
| |during the Term did not qualify as a Material Sub-Contractor shall be treated as such when it|
| |satisfies the criteria set out above; |
|Monthly Service Statement |the meaning ascribed to it in Paragraph 4.2 of Schedule 11 (Performance Management); |
|NDPB |Non-Departmental Public Body; |
|Offer Period |the meaning ascribed to it in Clause 5.4.1; |
|Original Expiry Date |the meaning ascribed to it in Clause 2.1.1; |
|Parent Company Guarantee or PCG |means a parent company guarantee in the form set out in Schedule 21 (Parent Company |
| |Guarantee); |
|Parties |the parties to this Agreement which as at the Effective Date shall mean the Authority and the|
| |Service Provider; |
|Performance Point |the meaning ascribed to it in Schedule 10 (Performance Management); |
|Performance Threshold |the meaning ascribed to it in Schedule 10 (Performance Management); |
|Permitted Charges |the meaning ascribed to it in paragraph 5 of Schedule 5 (Financing of the Scheme); |
|PQQ |the meaning ascribed to it in Recital B; |
|Prohibited Act |(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: |
| |(i) for 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) for showing or not showing favour or disfavour to any person in relation to this |
| |Agreement or any other contract with the Crown; or |
| |(b) entering into this Agreement or any other contract with the Crown in connection with |
| |which commission has been paid or has been agreed to be paid by the Service Provider or on |
| |its behalf, or to its knowledge, to or for the direct or indirect benefit of any servant of |
| |the Crown unless, before the relevant contract is entered into, the particulars of any such |
| |commission and of the terms and conditions of any such contract for the payment of such |
| |commission have been disclosed in writing to the Authority; or |
| |(c) committing any offence: |
| |(i) under the Prevention of Corruption Acts 1889 - 1916; |
| |(ii) under Laws creating offences in respect of fraudulent acts that have an impact on the |
| |provision of the Services; or |
| |(d) defrauding or attempting to defraud or conspiring to defraud the Crown or any Contracting|
| |Authority; |
|Records |the meaning ascribed to it in Paragraph 3.1 of Schedule 3 (Audit and Access); |
|Regulations |the Transfer of Undertakings (Protection of Employment) Regulations 2006 and/or any other |
| |regulations enacted for the purpose of implementing the Acquired Rights Directive (Council |
| |Directive 23/2001/EEC) into English law; |
|Remediation Plan |the meaning ascribed to it in Schedule 10 (Performance Management); |
|Request for Information |a request for information or an apparent request for information under FOIA and/or the |
| |Environmental Information Regulations; |
|RFC |a request for a Change served by either Party in accordance with Schedule 4 (Change Control |
| |Procedure); |
|Scheme |a "tenancy deposit scheme" which is an "insurance scheme" each as defined in the Act and |
| |implemented by the Authority in accordance with the Act; |
|Scheme Insurance |the insurance that the Service Provider must hold in respect of the Scheme to satisfy the |
| |requirements of the Act and Schedule 22 |
|Scheme Manager |as at the Effective Date, the Service Provider's Scheme Manager shall be Lawrence Greenberg |
| |and thereafter may only be changed with the Authority's prior written approval in writing |
| |(such approval not to be unreasonably withheld or delayed); |
|Security Test Plan |the plan and strategy prepared by the Service Provider to ensure that the Services and Scheme|
| |are provided in a secure manner including as a minimum:- |
| |(a) the testing and acceptance process and proposals for the test/reference systems; |
| |(b) responsibilities for security testing; |
| |(c) the types of testing (including functional testing, configuration vulnerability analysis,|
| |penetration testing) that shall be applied to each category of Service Provider Systems; |
| |(d) success criteria for each type of test; |
|Service Commencement Date |06 April 2007; |
|Service Levels |the service levels required by the Authority and agreed by the Service Provider as set out in|
| |Schedule 10 (Performance Management) or as otherwise agreed in accordance with the Change |
| |Control Procedure; |
|Service Manager |the Authority's Service Manager appointed in accordance with Paragraph 4.3 of Schedule 4 |
| |(Contract Management); |
|Service Provider Group |the Service Provider and its Associated Companies; |
|Service Provider IP |IP which is wholly owned by any company within the Service Provider Group not being Bespoke |
| |IP; |
|Service Provider Method Statement |the method statement prepared by the Service Provider and set out at Schedule 14 (Service |
| |Provider Method Statement) |
|Service Provider Personnel |employees, officers, consultants, contractors and agents of the Service Provider and of its |
| |Sub-Contractors assigned to deliver the Services (or any part thereof); |
|Service Provider RFC |a RFC issued by the Service Provider; |
|Service Provider Systems |all Software, hardware, plant, machinery, media, cabling and other equipment which is used by|
| |the Service Provider or its Sub-Contractors in providing the Services and/or in connection |
| |with this Agreement; |
|Service Provider Third Party IP |Third Party IP used within the Services that is licensed to the Service Provider, a |
| |Sub-Contractor and/or any Associated Company of the Service Provider or any Sub-Contractor, |
| |excluding Commercially Available Software; |
|Services |the services to be provided by the Service Provider to meet the Authority's requirements as |
| |described in Schedule 2 (The Services) and elsewhere in this Agreement, as the same may |
| |evolve or be updated, supplemented, replaced and amended from time to time in accordance with|
| |this Agreement; |
|Shared Services |the meaning ascribed to it in Schedule 19 (Shared Services); |
|Software |any computer program (including source code and object code), program interfaces and any |
| |tools or object libraries embedded in that Software, used in the provision of the Services; |
|SOR |the meaning ascribed to it in Recital C; |
|Statistical Data |the data to be provided by the Service Provider as part of the Services as set out in |
| |Appendix 1 to Schedule 2 (The Services); |
|Sub-Contractor |a third party directly or indirectly contracted to Service Provider (including any Material |
| |Sub-Contractor) whose services and/or goods are used by the Service Provider within the |
| |Services; |
|Term |the period from the Effective Date to the date on which this Agreement (as such may be |
| |extended) expires or terminates for any reason; |
|Third Party IP |IP which is not Authority IP or Service Provider IP; |
|Third Party Software |Software owned by a third party which is used within the Services and that is licensed to the|
| |Authority, the Service Provider or any Sub-Contractor excluding Commercially Available |
| |Software; |
|Use |use, load, transmit, store, display, execute, operate, modify, enhance, use to create |
| |derivative works, copy (for all such purposes hereby permitted) and (in the case of Software)|
| |merge with other Software and (to the extent permitted by Law) make a reasonable number of |
| |back-up and archive copies, decompile or otherwise translate the Software to achieve |
| |interoperability (with the right to sub-license all such rights of use); |
|Value Added Tax |value added tax charged in the United Kingdom in accordance with the Value Added Tax Act 1994|
| |(as amended) and all rules and regulations made under that Act or its equivalent charged in |
| |other jurisdictions and "VAT" shall be construed accordingly; |
|Volume Assumptions |those assumptions of:- |
| |(a) the number of members of the Scheme; and/or |
| |(b) the number of Deposits protected by the Scheme, |
| |utilised by the Service Provider for the purposes of its financial projections. From the |
| |Effective Date these assumptions will be those set out in the Authority's preliminary |
| |information memorandum issued at the PQQ stage and thereafter shall be those updated |
| |assumptions utilised by the Service Provider provided that the Service Provider can |
| |demonstrate that such assumptions form the basis for then current financial projections and |
| |are reasonable given the Service Provider's experience of operating the Scheme up to that |
| |time; |
|Year |a period of twelve months from and including the Effective Date or any anniversary thereof. |
SCHEDULE 2 - THE SERVICES"\L 4 THE SERVICES
1. Introduction
3. The Service Provider shall deliver the Scheme.
4. This Schedule 2 sets out the Authority's requirements for the Scheme.
5. For the avoidance of doubt, Paragraph 2 (Purpose) – Paragraph 4 (Legislative Background) (inclusive) are provided for information purposes only and are included solely to aid the Service Provider's understanding of the statement of requirements set out in paragraph 5 of this Schedule.
42. Purpose
1. This Schedule sets out the Services to be provided by the Service Provider of an insurance based tenancy deposit scheme.
2. As set out in section 212(2) of the Act, a tenancy deposit scheme is a scheme which (i) is made for the purpose of safeguarding tenancy deposits paid in connection with shorthold tenancies and facilitating the resolution of disputes arising in connecting with such deposits, and (ii) complies with the requirements of Schedule 10 of the Act.
3. The provisions of the Act place the appropriate national authority under a duty to ensure that at least one tenancy deposit scheme is established. Schemes permitted under the Act are:
1. custodial schemes, where, upon receipt of the Deposit from the tenant, the Landlord pays the Deposit into a designated bank account held by the scheme administrator. At the end of the tenancy the Deposit is returned to either wholly to one of the parties, or split between the parties, either following agreement of the parties or after a court has decided how it should be paid to them; and
2. insurance schemes, where the Landlord retains the Deposit and the scheme ensures the availability of funds to replace the Deposit in the event of misappropriation by the Landlord.
4. The Service Specification in this Schedule refers to the provision of the Services to provide an insurance scheme.
43. Background to the Requirements
Overview
1. The Government is committed to ensuring that where a tenant pays a Deposit to his/her Landlord in good faith it will be returned at the end of the tenancy provided that the tenant has not caused any damage to, or theft from, the property and has no rent arrears. Where private sector Landlords require tenancy deposits, they should be safeguarded by a tenancy deposit scheme.
2. Provisions were introduced into the Housing Bill during its passage through the House of Lords to ensure tenancy deposit protection for the majority of private sector tenancies. These provisions aim to remove the risk of misappropriation of tenants’ Deposits by Landlords.
3. The provisions had strong cross-party support in both Houses of Parliament. They have as their key objective the safeguarding of Deposits - making sure that, in the event of a dispute, following either the successful conclusion of ADR or a final court judgment, the Deposit (in whole in or part, depending upon the agreement, decision or order) is paid over to the relevant party or parties within 10 days beginning with the date of notification of such outcome. Many tenants currently lose their money through not being able to enforce court judgments - especially in the case of Landlords operating from tax havens.
4. If a Landlord takes a Deposit otherwise than in accordance with the requirements of a scheme, then the Landlord will not be able to regain possession of the property under the 'notice only' grounds[1] until the Deposit is safeguarded by a scheme. If the Landlord is ordered by a court to pay deposit money into a Scheme the court must also order him to pay back to the tenant an amount equivalent to three times the original Deposit amount. This should act as a strong disincentive for Landlords to try to act outside the new system.
5. A key component of the proposed tenancy deposit schemes is that they will be required to offer ADR procedures as an alternative to court action to determine disputes. The availability of ADR and the protection of the scheme would mean that the tenant would not have to face the expense, and often-impossible task, of enforcing a court judgment against the (sometimes-absentee) Landlord. However, the use of ADR will not be compulsory for either Landlords or tenants and the option of going to court to resolve any dispute would still be available to both parties.
44. Legislative Background
Primary Legislation
1. The Act contains provisions to give protection to tenancy deposits for assured shorthold tenancies. These provisions are aimed at removing the risk of misappropriation of tenants’ Deposits by Landlords and letting agents. The Act places the appropriate national authority under a duty to make arrangements for securing one or more tenancy deposit schemes to safeguard all new Deposits paid in connection with assured shorthold tenancies.
2. This section summarises the key provisions relating to tenancy deposit schemes. These are found in Sections 212 to 215 and Schedule 10 of the Act. This section is not intended to be a comprehensive review of the relevant sections of the Act and the Authority accepts no responsibility for any errors or inaccuracies contained herein.
3. Section 212
Section 212 (tenancy deposit schemes) provides for:
1. The appropriate national authority to make arrangements to ensure that one or more tenancy deposit schemes (custodial and/or insurance based schemes) are available for the purpose of safeguarding tenancy deposits paid in connection with shorthold tenancies. and to facilitate the resolution of disputes arising in connection with such Deposits;
2. Power for the appropriate national authority, to provide financial assistance to scheme administrators and/or guarantee the discharge of any financial obligation incurred by the scheme administrator in connection with the scheme arrangements.. However, the appropriate national authority is under no obligation to make any financial contribution towards the operation or setting up of Schemes and the Schemes are expected to be self-financing.
3. the appropriate national authority to make regulations giving powers to, or conferring duties upon, scheme administrators in connection with the schemes. The scheme arrangements may require the scheme administrator to give the appropriate national authority any information and facilities for obtaining information it may require.
4. Section 213
Section 213 (requirements relating to tenancy deposits) provides for a landlord or agent (irrespective of whether a Deposit is paid prior to commencement of a tenancy) to ensure that any Deposit taken is safeguarded by a tenancy deposit scheme within 14 days beginning on the day on which it is received, and that the Landlord provides the tenant with information prescribed by the appropriate national authority as to the scheme which is safeguarding the Deposit and the details of the relevant legislative protection afforded. The Landlord is prohibited from taking a Deposit which consists of property other than money.
5. Section 214
Section 214 (proceedings relating to non-compliance) provides for a tenant to apply to court where a Landlord has not complied with the requirement to safeguard the Deposit or provided the prescribed information within 14 days of receiving it, or where confirmation from the relevant scheme administrator that the Deposit is being held in accordance with the scheme is not forthcoming. In either of these circumstances, where the court is satisfied that the Landlord has not complied with initial requirements, the court must order the person who appears to be holding the Deposit to repay it to the tenant or pay the Deposit into the custodial scheme within 14 days. In addition, the court must order an amount equivalent to three times the Deposit to be paid to the tenant by the Landlord within 14 days beginning with the date of the making of that order.
6. Section 215
Section 215 (sanctions for non-compliance) provides that where a Landlord has taken a Deposit and has not complied with the relevant requirements, a Landlord may not serve notice under section 21 of the Act (allowing 2 months' notice to bring the tenancy to an end with no need to prove fault on behalf of the tenant).
7. Schedule 10
Schedule 10 (provisions relating to tenancy deposit schemes) provides:
1. under the custodial scheme for the tenant to pay the Deposit to a Landlord or agent who is then required to pay the Deposit into a designated account held by the Scheme administrator. The designated account must only contain Deposits (and any interest accruing on the Deposit amounts). Where both parties agree at the end of the tenancy (either between them or following ADR) that the Deposit amount should be paid wholly to one of them, or partly to one and partly to the other, or in the event of a dispute, where notification is received following a final court judgment, the Deposit (in whole in or part, depending upon the agreement, decision or order) is paid over to the relevant party or parties within 10 days beginning with the date of notification of such outcome); Interest under the custodial scheme may be retained to fund administration with a portion of interest returned with the Deposit.
2. under the insurance scheme, for the Landlord to retain the Deposit against an undertaking to the scheme administrator to pay relevant sums to the scheme administrator at its direction. The scheme may make provision for the Landlord to pay to the scheme administrator fees in respect of the cost of administration of the scheme, including a contribution in respect of insurance costs. Where there is a dispute as to how the Deposit should be dealt with following the end of a tenancy any part of the Deposit that is in dispute must be transferred by the Landlord to the designated account held by the scheme administrator within 10 days of being directed by the scheme administrator. Upon the scheme administrator receiving notification following either the successful conclusion of ADR or other agreement between the parties, or a final court judgment, it must pay the Deposit over to the relevant party or parties in the proportions agreed within 10 days beginning with the date of notification of such outcome or order.. Where the scheme administrator has paid out to the tenant without receiving the disputed amount from the Landlord the scheme administrator must then direct the Landlord to pay the difference to the scheme administrator;
3. for both a custodial scheme and insurance scheme to respond as soon as practicable to a request from a tenant seeking confirmation that the relevant Deposit is being held in accordance with that Scheme;
4. under an insurance scheme, where a Landlord fails to pay the scheme as directed by the scheme administrator, that the scheme may terminate the Landlord’s membership of that scheme;
5. under the insurance scheme, for the scheme to make provision to prevent the tenant from recovering twice in respect of the whole or part of Deposits i.e. from both the scheme and the Landlord; and
6. for all schemes to provide facilities for ADR.
Secondary Legislation
8. Secondary Legislation will consist of three Statutory Instruments (SI) which are scheduled to come into force in April 2007.
Prescribed Information SI
The Act requires Landlords to give the tenant ‘prescribed information’ within 14 days of receiving the Deposit. This information must relate to the tenancy deposit scheme safeguarding the Deposit, the compliance of the Landlord with the initial requirements of the scheme and the operation of the provisions of the Act. The purpose of the prescribed information is to inform the tenant that his Deposit is protected by an authorised tenancy deposit scheme and enables the Landlord to demonstrate he or she is aware of their responsibilities under the Act.
A consultation paper Tenancy Deposit Protection: Consultation on Secondary Legislation was published by DCLG (then ODPM) and NAW on 30th November 2005. The consultation paper set out how the powers in the Act would operate and how these would be implemented. The paper sought views on the prescribed information that a Landlord provides to the tenant at the beginning of a tenancy to be set out in secondary legislation. The consultation period ended on 1 February 2006, and the prescribed information is set out in the table below.
|Generic Information (which scheme must supply to Landlord) |Tenancy-specific Information (to be completed by Landlord and |
| |tenant) |
|Name, address and contact details of the scheme administrator |The value of the Deposit and the address to which it relates |
|that is safeguarding the Deposit. | |
|Name, address and contact details of the ADR service offered |Landlord’s contact details, |
|by the scheme. | |
|Information on the procedures applying for the release of the |Tenant(s) names (or the name(s) of the person(s) paying the |
|Deposit from protection (including in the event of a dispute).|Deposit if they are not the same person(s)); |
|Information on single claims (custodial scheme only) - when |Alternative contact address(es) for the tenant(s) (if there is|
|and how to make a single claim including the prescribed form |one). |
|on which to make a single claim. | |
|Standard information leaflet explaining how the deposit is |Information explaining the purpose of the Deposit. |
|protected by the Housing Act 2004 provisions. This leaflet | |
|must be provided to landlords by scheme administrators. | |
| |Signature of Landlord |
| |Signature of tenant(s) |
Amendments are also being made to Schedule 10 in relation to the use of ADR in the insurance-based scheme. DCLG has considered the ways to improve the tenants’ access to their deposits in cases where a landlord is being explicitly uncooperative in responding to requests from the scheme administrator to confirm whether he would like to use ADR or court in the event of a dispute. Schedule 10 is now being amended for the insurance-based scheme in the particular circumstance where the landlord is contactable by the scheme but is refusing to cooperate with the scheme in terms of indicating whether they choose ADR or the courts. In this scenario, Schedule 10 is being amended to make it mandatory for the case to be referred to the scheme for resolution through its ADR service.
45. Statement of requirements
The Service Provider shall deliver a Scheme which meets the following requirements:
Scheme processes
|1 |The proposed structure must deliver all elements of the Scheme, including administration and information management, IT |
| |systems and data storage, ADR services, banking of disputed Deposits and insurance in respect of a Landlord's failure to|
| |pay monies into the Scheme when directed. The Scheme must be delivered in accordance with all applicable Law. |
|2 |The Scheme must be accessible to all Landlords with properties in England and Wales, subject to Scheme membership |
| |criteria. Scheme membership must not be exclusively dependent on membership of any trade association, professional body |
| |or accreditation scheme (although membership to such a body can be used as verification of the Landlord meeting some or |
| |all of the membership criteria). The Scheme must clearly publish and/or otherwise make known to prospective members of |
| |the Scheme its membership criteria and any factors it will consider in assessing credit risk. The Scheme must apply |
| |such criteria and consider such factors in a consistent and non-discriminatory manner. |
|3 |The Scheme must enable Landlords to register with the Scheme prior to protecting any Deposits. Registration can begin |
| |prior to April 6, 2007, however no fees should be collected, and no Deposits protected, until April 6, 2007. |
|4 |The Scheme must collect and maintain appropriate data on each Deposit that it protects. The Scheme must establish |
| |processes to enable the following information to be gathered from Landlords, including through paper-based processes if |
| |necessary: |
| |Names of all tenants party to the tenancy agreement; |
| |Contact details of tenant(s); |
| |Name and address of Landlord; |
| |Property address to which the Deposit relates; |
| |Total value of the deposit; |
| |Date on which deposit is paid to the Landlord (and date on which tenancy begins if different); |
| |The Scheme may collect such other information as it sees fit provided that it is necessary for the purposes of the |
| |Scheme. |
|5 |The Scheme must provide for changes to the names of the parties to a tenancy agreement which may take place throughout |
| |the life of a tenancy agreement. This includes changing the names of any tenant(s) and Landlord(s) during the life of |
| |the tenancy agreement (for example in the case of sub-letting, assignment or sale of the property whereby the Deposit |
| |remains protected). |
|6 |The Scheme must provide information to Landlords to enable them to comply with the Act in relation to the prescribed |
| |information that they must provide to tenants within fourteen (14) days of taking a Deposit (as to be set out in a |
| |Statutory Instrument). This information is divided into two types: tenancy-specific and generic. The Scheme will be |
| |required to provide Landlords with the generic information. This includes: |
| |Name, address and contact details of the Service Provider |
| |Name, address and contact details of the ADR service offered by the Scheme; |
| |Information on the procedures for releasing the Deposit from protection, and procedures to follow in the event of a |
| |dispute; |
| |Standard information leaflet explaining how the Deposit is protected by the Act provisions; and |
| |Data Protection Notice explaining the use and ownership of data. |
|7 |The Scheme must provide confirmation of protection of Deposit and responses to queries regarding the status of their |
| |Deposit protection to tenant(s). This includes responding to queries from all tenants in a household who are party to |
| |the tenancy agreement. |
|8 |The Scheme must provide a facility to deal with day-to-day enquiries from Landlords and tenants and any other interested|
| |parties that might arise in connection with a specific Deposit, or general enquiries in relation to use of their Scheme.|
|9 |The Scheme must make available a complaints procedure for all End Users of the scheme. |
|10 |The Scheme must provide a facility to enable Landlord and tenant(s) to inform the Scheme that a tenancy has ended and |
| |the Deposit no longer needs protection. In households with multiple tenants, as a minimum, the Scheme may accept such |
| |confirmation from one tenant, provided that consent has been given by all tenants at the point of ‘unprotection’, or at |
| |the outset of the tenancy. |
|11 |Where there is a dispute between the tenant(s) and Landlord at the end of the tenancy, the Scheme must direct the |
| |Landlord to forward the amount in dispute to the Scheme for safeguarding within 10 days of being requested to do so by |
| |the Scheme. The Scheme must provide safe, secure and reliable systems and methods to allow Landlords or a representative|
| |of the Landlord to pay the disputed Deposits into the Scheme’s designated account, and must ensure it has adequate |
| |banking arrangements to hold the disputed Deposit amounts in accordance with the requirements of the Act. The Scheme |
| |must at least enable this mechanism to include cash payments, cheques and electronic bank transfers. |
| |Disputed Deposit amounts must be held in a designated account and must not contain anything other than amounts paid into|
| |it in relation to the disputed amounts, and any interest accruing on them. The Scheme must not appropriate the disputed |
| |Deposit amounts for itself. The Service Provider may keep the interest on the disputed Deposit amounts. |
The ADR Service
|12 |The Scheme must provide an Alternative Dispute Resolution facility to all End Users to be available for enabling |
| |disputes relating to tenancy Deposits to be resolved without recourse to litigation. The use of the ADR Service |
| |must not be made compulsory to any End User. The ADR Service must be an impartial procedure for the resolution of |
| |disputes, with an evidence-based decision making process. The ADR Service must be proportionate to the relatively |
| |small sums of money which are likely to be in dispute. Use of the ADR Service must be free to all End Users. |
|13 |The Scheme must ensure that both Landlord and tenant(s) are informed that any ADR decision will be binding. The |
| |Scheme must provide a clear process by which it receives agreement from the Landlord and tenant(s) to go to ADR. |
| |In households with multiple tenants, the Scheme may at a minimum accept consent to use ADR from one tenant, |
| |provided that consent to that tenant acting on behalf of all others has been given by all tenants at the point of |
| |the dispute, or at the outset of the tenancy. Schemes are not expected to deal with more than one ADR dispute per|
| |tenancy agreement. |
|14 |The Scheme must as a minimum collect and maintain the following data for each dispute: |
| |name and contact details of tenant(s) |
| |property address to which the deposit relates |
| |name and address of the Landlord |
| |total value of the Deposit |
| |total value of the Deposit in dispute |
| |nature of the dispute |
| |outcome of the dispute |
| |The Scheme may collect such other information as it sees fit provided that it is necessary for the purposes of the|
| |ADR Service. |
|15 |The Scheme must provide the ADR Service or the courts with any information required to inform the outcome of the |
| |dispute. The Scheme must not wait for the Landlord to forward the disputed Deposit amount before providing |
| |information to resolve a dispute. |
|16 |The ADR Service must be able to identify and exchange information with other elements of the Scheme, including the|
| |provision of, notification of, or verification of, outcomes arising from use of the ADR service to other elements |
| |of the Scheme so as to facilitate proper release of the disputed Deposit monies. |
|17 |The Scheme must promptly inform the appropriate parties of a final decision of the ADR service (including |
| |providing a record of the outcome to the parties). |
|18 |Any disputed Deposit amount must be returned to the appropriate parties within ten (10) days of the Service |
| |Provider receiving notification in accordance with Schedule 10 of the Act (i.e. agreement, ADR or court). The |
| |Scheme must pay out the disputed Deposit amount, irrespective of whether the Landlord has transferred the disputed|
| |amount to the Scheme. In households with multiple tenants, as a minimum, the Scheme may return the relevant |
| |disputed Deposit amount to one tenant in one lump sum provided that consent has been given by all tenants at the |
| |point of return, or at the outset of the tenancy. |
|19 |Where a Landlord fails to pay in a disputed Deposit amount further to having been directed to do so by the Scheme,|
| |it is the Scheme’s responsibility to pursue the Landlord to recover the amount paid. Where the Scheme has been |
| |required to make a payment to the tenant(s) and it is less than the amount that the Landlord transferred to the |
| |Scheme, the Scheme must return the remainder of the disputed Deposit monies to the Landlord. |
|20 |Any disputed Deposit monies which are transferred to the Scheme can only be released by the Scheme to the |
| |tenant(s) and/or Landlord in accordance with the provisions of the Act. Any unclaimed disputed Deposits must |
| |remain in a Designated Scheme Account indefinitely (as per HA 2004), unless there is receipt of a notification in |
| |accordance with paragraph 4(3) of Schedule 10 of the Act. The Service Provider may keep the interest on the |
| |deposit amounts. |
IT, data and security
|21 |The Scheme must utilise a technical solution that is capable of providing the services required by the Scheme, |
| |including registration and Deposit protection, handling of disputed Deposits and enquiries required by the |
| |Scheme’s activities. The technical solution must be scalable to meet higher than expected demands, if required. |
|22 |The Scheme’s technical solution must remain capable of providing the Scheme throughout the Term including to the |
| |standards set out in Schedule 10 (Performance Management) of the Agreement. Online customer facing facilities must|
| |be available 24 hours a day, 7 days a week, excluding scheduled downtime; telephone customer facing facilities |
| |must be available from 08:00-18:00 on Business Days. |
|23 |The Scheme must ensure that all data held in relation to the Scheme, including any personal and financial |
| |information held by the Scheme and any records of disputes, is securely held and is not lost or degraded in any |
| |way. |
| |The Scheme must maintain appropriate records of all disputes and other records of all transactions for 7 years |
| |subject to requirements under the DPA. This data must be stored securely and destroyed once the time period has |
| |ended or at an earlier time upon instructions from the Authority. |
|24 |The Scheme must provide to the Authority, or provide the Authority with access to the Service Provider’s systems |
| |to allow the Authority to retrieve, the Statistical Data in order to enable the Authority to monitor the operation|
| |of the policy. The Statistical Data shall be provided in accordance with Statistical Data Appendix (Appendix 1 to |
| |Schedule 2 of the Services Agreement). |
|25 |The Scheme must ensure the security of personal and financial information held by the Scheme in whatever format |
| |and by whichever party involved in the Scheme. |
|26 |The Scheme must have and implement appropriate internal controls to minimise the scope for fraud. |
Implementation
|27 |The Service Provider must ensure all implementation activities are undertaken to allow the Scheme to be fully |
| |operational as of the Service Commencement Date. |
Communications and publicity
|28 |The Scheme must promote itself to all potential End Users of the Scheme, including Landlords and tenants and any |
| |other authorised representatives of such parties. The Scheme must endeavour to ensure that publicity enables End |
| |Users to understand the policy behind the Scheme. |
|29 |The Scheme must ensure that all written information relating to Scheme registration, Deposit registration, |
| |information for tenants, the ADR Service and general enquiries is available upon request in English, Braille (or |
| |on audiotape), Welsh, Spanish, Urdu, Punjabi, Gujarati, Bengali, Hindi, Mandarin, Cantonese, Arabic, Polish and |
| |Russian. |
STATISTICAL DATA
1. Background
1. The Authority requires point data which can be auto-generated from the tenancy deposit schemes' administrative systems and used to monitor the progress and impact of the legislation. Aggregated statistical reports will be produced monthly as the basis for progress reports to ministers and to inform review of the legislation.
2. Aggregated statistics on the geographical location of the rented properties which are subject to a deposit will also be of broader strategic value to Authority.
3. The basis for data collection will be in the first place the rented property that is subject to a rent deposit requirement and then the history of events relating to the processing of each deposit.
4. The following fields represent the Authority's view at BAFO of the data required to enable it to produce the necessary statistics. These fields, their descriptions and categories will be finalised in consultation with contractors following the award of contract.
5. The aim is that the generation of statistics will not be onerous. Once the data extract has been designed and installed its operation should be automatic.
6. The data must be provided in XML format and be supplied by automatic upload to the Authority's statistical database using the Authority's web based online datacapture system INTERFORM. Uploads should take place overnight.
7. The data should be uploaded routinely every month and should consist of the change data only. There should however be a facility to provide ad hoc uploads of the change data for any specified period.
46. System Reference Fields
1. Deposit Scheme Contractor
2. Type of Scheme: a) Custodial b) Insurance based
3. Deposit Scheme Software supplier
4. Deposit Scheme Software product
5. Deposit Scheme Software Version
6. XML Schema version
7. Report name
8. Report date
9. Date that the data relates to
47. Property Reference Fields
Experience shows property referencing to be prone to error. The Authority policy is to collect a number of different references for each property. These can then be used in combination to minimise the incidence of record matching error.
1. Unique property identifier: The number the Scheme uses on its own systems to identify the property; and
2. Address of property, using only the useful “5-line” format which forms part of the BS7666 standard; and
3. Post Office Address File (PAF) reference
48. Tenancy attributes
1. Full amount of deposit under protection
2. Number of tenants
3. Date that tenancy begins (as set out in tenancy agreement)
49. Tenancy deposit protection events
1. Date of protection of deposit: date that the scheme begins deposit protection
2. Date that protection ends: Date that scheme ends protection after receiving notice according to HA 2004 (agreement, ADR or court)
3. Events leading to unprotection: tick-box: a) notification from landlord and tenant; b) ADR used; or c) court used (if the scheme is aware of court being used)
50. ADR events (not court)
1. Amount of deposit in ADR dispute: Amount of deposit which goes into dispute.
2. Nature of dispute: a) rent arrears; b) damages; c) unreasonable landlord withholding; and/or d) other. Indicate all that apply.
3. Length of time to complete ADR process: measured in calendar days from date of agreement being received to use ADR to date the scheme informs tenant/Landlord of final decision.
4. Amount of deposit returned to tenant, including any amounts settled through ADR or court.
SCHEDULE 3 - AUDIT AND ACCESS"\L 4 AUDIT AND ACCESS
1. General Principles
5. This Schedule describes the record-keeping requirements and audit access rights which, pursuant to Clause 23 of this Agreement, are applicable to the Service Provider.
6. The Service Provider shall procure that its:-
1. Sub-Contractors; and
2. Service Provider Personnel
comply with the provisions of this Schedule. In particular, the Service Provider shall ensure that any and all of its Sub-Contractors keep Records in such a way and to such an extent that is consistent with the Service Provider's obligations under this Audit and Access Schedule. All rights of audit and access to such Records granted to the Authority's Audit Agents under this Agreement shall apply equally to Records held by any and all Sub-Contractors.
7. For the avoidance of doubt, any examination or inspection by the Authority's Audit Agents pursuant to this Schedule shall not constitute a waiver or exclusion of any of the Service Provider's obligations or the Authority's rights under this Agreement.
51. Costs
1. The Service Provider shall bear the costs of complying with the provisions of this Schedule in relation to:-
1. Emergency Audits;
2. the first Audit conducted by the Authority or an Audit Agent in any Year.
2. The Authority shall pay agreed costs reasonably incurred by the Service Provider that exclusively relate to the preparation for and assistance with any Audit conducted by the Authority or an Authority Agent other than those set out in Paragraph 2.1 subject to:-
1. the Service Provider providing the Authority in advance of the Audit with a detailed estimate of the costs it will incur;
2. the Authority's obligation to pay being capped at the amount set out in the estimate unless otherwise agreed by the Authority;
3. the Service Provider using all reasonable endeavours to mitigate, minimise or avoid the costs it incurs; and
4. the Authority being obliged to pay only those costs that the Service Provider can reasonably demonstrate were incurred fully in accordance with this Paragraph.
52. RECORD KEEPING
1. The records ("Records") to be maintained pursuant to the Service Provider's obligations in this Schedule for the time period set out in Clause 23.2 shall be full and accurate records relating to the Services (including those relating to those matters set out in Paragraph 3.4) sufficient for the Service Provider to comply with its obligations under Clause 23 and this Schedule 3.
2. The audit trail shall be comprehensive and shall accurately reflect what processes and activities have taken place in relation to the subject matter of the Record. The standard of documents and papers included in the audit trail, their method of storage and the timeframe in which they can be retrieved shall be such as to readily facilitate easy and effective access for verification.
3. A sample of all Records will be reviewed by the Service Provider periodically (no less than annually) for completeness and accuracy. The Service Provider shall ensure that all reasonable and appropriate corrective action for any incomplete and/or inaccurate Records is carried out in a timely manner. The Service Provider shall permit the Authority and/or the Audit Agents to perform quality Audits of the maintenance of the Records from time to time to assess the Service Provider's due diligence with regard to Record-keeping.
4. Without limitation to the generality of Paragraph 3.1, the Records shall include documentation, papers and records in respect of:-
1. performance against the Service Levels, including performance metrics, supporting information and calculations, measurement and monitoring tools and procedures implemented in accordance with Schedule 10 (Performance Management); and
2. the processes and procedures implemented by the Service Provider in relation to the integrity, security and confidentiality of the Authority Data and /or Personal Data.
53. AUDIT ACCESS
1. For the purposes of this Schedule, 'access' shall include the grant of the following to the Authority's Audit Agents when reasonably required by the Authority's Audit Agents:
1. access upon reasonable notice, without additional charge or payment, to all Service Provider premises from which the Services are delivered (including access to and reasonable use of any facilities);
2. access to hard and (if available) soft copies of all Records;
3. access to and the reasonable co-operation of all Service Provider Personnel;
4. the right to install and run audit software on the Service Provider Premises for use in conjunction with any Software and/or Service Provider Systems (subject to prior notification and compliance with the Service Provider's information technology security procedures notified to the Audit Agent prior to the relevant Audit); and
5. the right to take and remove from the Service Provider Premises copies of all Records applicable to the Services and/or the Service Levels.
2. The Authority shall use its reasonable endeavours to ensure that the exercise of any of the Audit rights under this Agreement shall be conducted so as not to interfere unreasonably with the Service Provider's business and its ability to perform its obligations under this Agreement or other agreements for the provision of services to third parties.
3. The Service Provider shall provide reasonable assistance during normal business hours on a Business Day during the period specified for retention of Records in Clause 23 for the purposes of permitting the exercise of the rights granted under this Schedule and to allow the Authority to obtain such information as is necessary to fulfill the Authority's obligations to supply information for parliamentary, ministerial, judicial or administrative purposes.
4. The Service Provider shall provide the Authority's Audit Agents with all reasonable assistance including temporary on-site accommodation, photocopying facilities and telecommunications for the purposes of carrying out any Audit and/or exercising any Audit rights exercisable under this Agreement referred to in Clause 23 and/or this Schedule.
5. The Authority shall require the Authority's Audit Agents, whilst on the Service Provider Premises, to comply with such of the Service Provider's reasonable site, health, safety and security requirements as the Service Provider may notify to the Authority's Audit Agents directly on notification of an Audit.
54. NOTIFICATION OF AUDIT
1. Save in the case of an Emergency Audit, the Authority will provide at least twenty (20) Business Days notice from and including the date of notice of any Audit it intends to carry out.
2. On notification of an Audit the Service Provider shall, on or before the date of expiry of such notification, provide the Authority's Audit Agents with reasonable audit access.
3. The Service Provider shall provide immediate audit access to the Authority's Audit Agents in the event of an Emergency Audit
4. In the event of an Emergency Audit or an investigation into suspected fraudulent activity or other impropriety by the Service Provider, any third party in connection with this Agreement and/or the Authority’s own employees, the Authority reserves for itself and the Authority's Audit Agents the right of immediate access to the Records and/or any Service Provider Personnel. The Service Provider agrees to render all necessary assistance to the conduct of such investigation at all times during the continuation of this Agreement or at any time after its expiry or termination. The Service Provider shall ensure that all those Service Provider Personnel involved in such investigations treat the investigation and all information disclosed in connection with the investigation as Confidential Information.
5. Nothing in this Agreement shall prevent or restrict the rights of the Comptroller and Auditor General and Auditor General for Wales and their representatives from carrying out an audit, examination or investigation of the Service Provider for the purposes of and pursuant to the National Audit Act 1983, the Government Resources and Accounts Act 2000, the Government of Wales Acts 1998 and 2006 and the Exchequer and Audit Act 1921 (as well as any orders and regulations pursuant to such Acts).
55. RESPONSE TO AUDITS
1. As a result of any Audits, the Authority's Audit Agents may produce reports to the Authority indicating areas of non-compliance with this Agreement or any other reports they deem appropriate. The Authority's Audit Agents may also make recommendations for changes or improvements.
2. Following each Audit, the Authority shall provide to the Service Provider, within a reasonable time, a report in writing which is approved by the relevant Authority's Audit Agents indicating:
1. any areas of non-compliance with the Agreement which the Service Provider is required to rectify; and
2. any reasonable Audit recommendation which the Authority requires the Service Provider to implement in order to comply with the terms of this Agreement.
3. The Authority shall give the Service Provider no less than ten (10) Business Days and a maximum of twenty (20) Business Days from and including the date of receipt of the Audit Reports by the Service Provider to review the factual issues relevant to the Service Provider which are raised by the Audit Reports and to comment upon the recommendations.
4. If the Service Provider disputes the findings of any Audit or Audit Report, the Service Provider shall provide details of the basis for any such disputes together with such documentation as is necessary to support the Service Provider's conclusions. Any such disputes shall be treated as a Dispute and the matter shall be dealt with in accordance with the Escalation Procedure involving (by agreement of both Parties) such bodies or groups as may be involved in development and/or regulation of the standards in question.
SCHEDULE 4 - CHANGE CONTROL PROCEDURE"\L 4 CHANGE CONTROL PROCEDURE
1. PURPOSE
5. This Schedule sets out the procedures to be used by the Parties in connection with proposed Changes.
6. For the purposes of this Schedule, Service Provider shall be deemed to include the Service Provider, its Sub-Contractors and Service Provider Personnel.
56. PRINCIPLES
1. Implementation of changes for which there is an agreed mechanism (excluding this Change Control Procedure) set out or referred to in this Agreement shall not constitute Changes to which this Change Control Procedure applies.
2. The Parties shall conduct discussions relating to proposed Changes in good faith. Any discussions, negotiations or other communications which may take place between the Parties prior to the issue of a CCN (including the submission of any written communications) shall be without prejudice to the rights of either Party.
3. Until such time as a CCN has been signed by the Authority Representative and the Service Provider Representative (or their nominated representative), the Service Provider shall continue to supply the Services in accordance with the Agreement. Any work undertaken by the Service Provider, its sub-contractors or agents which has not been authorised in advance by the Authority and which has not been otherwise agreed in accordance with this Change Control Procedure shall be undertaken entirely at the expense and liability of the Service Provider.
57. Minor Changes
1. The Parties acknowledge that minor changes to the Service Provider's Method Statement may be necessary to reflect operational and/or administrative issues during the Term. The Parties further acknowledge that the Service Provider shall be free to make such changes as it sees fit so long as it continues to comply with the terms of this Agreement.
2. A material change to the Service Provider Method Statement shall be a Change for the purposes of this Agreement. The Service Provider may seek the Authority's view as to whether a proposed change to the Service Provider's Method Statement is material by notifying the Authority of the proposed change in enough detail for the Authority to take an informed view. Where:-
1. the Authority notifies that the proposed change is not material this Change Control Procedure shall not apply;
2. the Authority, acting reasonably, considers that the proposed change is material, it shall notify the Service Provider that the proposed change falls within the definition of a Change and shall be subject to the Change Control Procedure; and
3. the Authority fails to notify the Service Provider under Paragraphs 3.2.1 or 3.2.2 within fifteen (15) Business Days from but excluding the day of receipt of the Service Provider's notification of the proposed change, such proposed change shall be deemed to be minor and the Change Control Procedure shall not apply.
3. For the avoidance of doubt, the Authority's sole opinion as to whether or not a change represents a minor or a major change shall be final.
58. Requests for Change (RFC)
1. The Authority shall be entitled to:-
1. request any Change to the Services; and
2. require a Change to the Services from time to time to reflect any Change in Law.
2. The Service Provider shall be entitled to require a Change to the Services from time to time to reflect any Change in Law that directly impacts upon the Service Provider's provision of the Services.
3. The Service Provider shall be entitled to request a Change to the Services only if such Change:-
1. enhances the Service Provider's operational effectiveness in providing the Services or takes advantage of technological developments so as to improve the provision of the Services; or
2. would in the Service Provider's reasonable opinion improve the provision of the Services; or
3. improves operational efficiency in providing the Services so as to reduce the cost of providing the Services and/or operating the Scheme; and
4. will not have a detrimental effect on the overall quality of the Services.
4. The Authority may at its absolute discretion reject any request for a Change to the Services or to the Service Provider's Method Statement proposed by the Service Provider.
5. The Authority shall not be entitled to reject a Change required pursuant to Paragraph 4.2.
59. Authority RFC
1. If the Authority wishes to request or requires a Change, it must serve an Authority RFC on the Service Provider.
2. The Authority RFC shall:
1. set out the Change required in sufficient detail to enable the Service Provider to provide the Change Response; and
2. specify the deadline by which the Service Provider shall provide to the Authority a Change Response (being not less than twenty-one (21) Business Days from and including the date of receipt of the Authority RFC) ("Response Deadline").
3. As soon as practicable, and in any event by the Response Deadline, the Service Provider shall deliver to the Authority the Change Response.
4. As soon as practicable after the Authority receives the Change Response, the Parties shall discuss and agree the issues set out in the Change Response. In such discussions:
1. the Authority may modify the Authority RFC, in which case the Service Provider shall, as soon as practicable and in any event within fourteen (14) Business Days from and including the date of receipt of such modification, notify the Authority of any consequential changes to the Change Response; and
2. where the Authority reasonably request, the Service Provider shall provide such additional information as the Authority reasonably request in order to evaluate the Change Response fully.
5. The Service Provider shall not refuse an Authority RFC unless such Change:-
1. would materially and adversely affect the risks to health and safety of any person;
2. would require the Services to be performed in any way that infringes a Law; and/or
3. is demonstrated by the Service Provider to:
a) be technically impossible to implement (where neither the Service Provider's Method Statement or the Services description states that the Service Provider has the technical capacity and flexibility required to implement the proposed Change); or
b) represent a material risk to the Services; or
c) be such that the Service Provider would no longer be able to provide the Services in a technically or financially viable manner.
4. is predicted to have a material impact on the ability of the Service Provider to meet any Service Level where as a result of the Change the Service Level is not modified accordingly.
6. If the Parties cannot agree on the contents of the Change Response then the dispute will be determined in accordance with the Dispute Resolution Procedure.
7. As soon as practicable after the contents of the Change Response have been agreed or otherwise determined pursuant to the Dispute Resolution Procedure, the Authority shall either:
1. issue a CCN; or
2. withdraw the Authority RFC.
8. If the Authority does not issue a CCN within thirty (30) Business Days from and including the date of the contents of the Change Response having been agreed or determined, then the Authority RFC shall be deemed to have been withdrawn.
9. In the event that the Authority issues a CCN then:-
1. the Service Provider shall implement the Change in accordance with the Change Implementation Plan; and
2. the Parties shall enter into any documents necessary to amend this Agreement or any relevant related document which are necessary to give effect to the Change.
60. Service Provider RFC
1. If the Service Provider wishes to request a Change, it must serve a Service Provider RFC on the Authority.
2. The Service Provider RFC must:
1. set out the proposed Change in sufficient detail to enable the Authority to evaluate it in full;
2. specify the Service Provider's reasons for proposing the change in the Services;
3. include an Impact Assessment, a Change Implementation Plan and a Financial Proposal; and
4. indicate if there are any dates by which a decision by the Authority is critical.
3. The Authority shall evaluate the Service Provider's proposed change in the Services in good faith, taking into account all relevant issues, including whether:
1. there would be a change to the financial arrangements;
2. the change affects the quality of the Services or the likelihood of successful delivery of the Services;
3. the change will interfere with the relationship of the Authority or the Service Provider with third parties;
4. the financial strength of the Service Provider is insufficient to perform the changed Services; or
5. the change materially affects the risks or costs to which the Authority are exposed; or
6. the change would, if implemented, result in a change in the nature of the Services.
4. As soon as practicable after receiving the Service Provider RFC, the Parties shall meet and discuss the matter referred to in it. During their discussions the Authority may propose modifications or accept or (save where the Service Provider RFC is pursuant to Paragraph 4.2) reject the Service Provider RFC.
5. If the Authority accepts the Service Provider RFC (with or without modification), the Authority shall issue a CCN.
6. In the event that the Authority issues a CCN then:-
1. the Service Provider shall implement the Change in accordance with the Change Implementation Plan; and
2. the Parties shall enter into any documents necessary to amend this Agreement or any relevant related document which are necessary to give effect to the Change.
7. If the Authority rejects the Service Provider RFC, it shall advise the Service Provider of the criteria set out in Paragraph 6.3 upon which its decision for such a rejection is based.
APPENDIX 1
TEMPLATE CHANGE CONTROL NOTE
|Change Control Note |CCN Number: |
|Part A: Request for Change | |
|Title: | |
| | |
|Originator: | |Contact Number: | |
| |
|Details of Proposed Change |
|To include reason for change and appropriate details/specifications. (Where relevant) Attach the Impact Assessment, the Change |
|Implementation Plan and the Financial Proposal. |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
|Initiated by [ ] |Date: |
|Name: | |
|Signature: | |
|Received by [ ] |Date: |
|Name: | |
|Signature: | |
|Change Control Note |CCN Number : |
| |Purchase Order Number: |
|Part B : Authority to Proceed | |
|Implementation of this CCN as submitted in Part A is: | |
|(tick as appropriate) | |
|Approved |Comments (if any) |
| | |
|Rejected | |
| | |
|Requires Further Information (as follows, as Attachment 1, | |
|etc.) | |
| | |
| | |
| | |
| | |
| | |
| | |
| | |
| | |
|Attach final agreed versions of the Impact Assessment, Change Implementation Plan and Financial Proposal |
|For Authority |For Service Provider |
| | |
|Name: |Name: |
|Title: |Title: |
|Signature: |Signature: |
|Date: |Date: |
SCHEDULE 5 - FINANCING OF THE SCHEME"\L 4 FINANCING OF THE SCHEME
1. Financing of the scheme
8. It is expected that the Scheme will be self-financing over the Term. Subject to Clause 20.7, the Authority will not provide any funding or guarantees to the Service Provider.
9. The Service Provider may charge fees (whether administrative or ‘membership’) to Landlords using the Scheme once it becomes operational. The Scheme must not charge fees or any other monies to tenants for protecting their Deposit other than the Permitted Charges. The Scheme must not charge fees or any other monies for ADR services.
61. Designated Scheme Account
1. The Service Provider shall hold disputed Deposit amounts in one or more accounts for sterling cash deposits with banks and building societies with a solid investment grade, as defined by a minimum credit rating of single A as defined by Standard and Poor’s, or equivalent by a recognised credit rating agency such as Moody’s Investor Services Ltd and Fitch Ratings Ltd.
2. Following the end of the Term or the Exit Period (as the case may be), the Service Provider shall comply with such direction as the Authority (in its discretion) may make in relation to any unclaimed disputed Deposit amounts held by the Service Provider.
62. Interest on disputed deposits
Any accrued interest on disputed Deposits may be retained by the Service Provider.
63. Liquidity
The Service Provider is responsible for ensuring sufficient liquidity to enable the repayment of disputed Deposit amounts within the specified time period.
64. Permitted Charges
For the purposes of this Schedule 5, Permitted Charges shall comprise the following:-
1. normal charges that are incurred by the Service Provider for receipt of disputed Deposits other than by cash, cheque or electronic transfers. These may include, for example, charges for credit card deposit payments and bounced cheques; and
2. normal bank charges that are incurred by the Service Provider for all transactions other than the standard 3-day transfer of disputed Deposit monies within the United Kingdom. These may, for example, include charges for overseas SWIFT remittances and same-day CHAPS transfers.
SCHEDULE 6 - DISASTER RECOVERY"\L 4 DISASTER RECOVERY
1. PRINCIPLES
3. The Service Provider shall develop and maintain a BCP and a Disaster Recovery Plan in respect of the Services and the Scheme.
4. The Service Provider shall be responsible for providing Disaster Recovery Services in accordance with this Schedule, the BCP and the Disaster Recovery Plan.
65. Business Continuity Plan and Disaster RecoverY Plan
1. The Service Provider shall within thirty (30) Business Days from and including the Service Commencement Date prepare:-
1. a BCP; and
2. a Disaster Recovery Plan.
2. The Service Provider shall take account of all reasonable representations of the Authority in preparing or updating the BCP and/or the Disaster Recovery Plan.
3. The Service Provider shall submit the BCP and/or the Disaster Recovery Plan to the Authority no later than five (5) Business Days following a written request by the Authority. The Authority may provide representations and/or comments on the BCP and/or the Disaster Recovery Plan. The Service Provider shall take reasonable account of all comments and/or representations made by the Authority and shall where necessary update the BCP and/or the Disaster Recovery Plan.
4. The Service Provider shall maintain and, as necessary including to comply with any principles or provisions set out in a Business Continuity Plan, update the Disaster Recovery Plan throughout the Term.
5. The BCP and the Disaster Recovery Plan developed and maintained by the Service Provider must be aligned with and take into account:
1. in the case of the Disaster Recovery Plan, the BCP; and
2. in the case of the BCP, the Disaster Recovery Plan; and
3. Good Industry Standards; and
be sufficiently flexible to allow for changes in business priorities at or before the time of invocation.
6. The Service Provider shall review the BCP and Disaster Recovery Plan:
1. on a periodic basis as set out in the relevant plan; and
2. as required by Paragraph 2.7.
7. In the event that changes are made or proposed to be made:
1. to the BCP or the Disaster Recovery Plan (as the case may be); and/or
2. to the Agreement and/or to the Services (including a Change agreed or to be agreed in accordance with the Change Control Procedure);
3. and such changes impact or may impact on the operation of the BCP or Disaster Recovery Plan or otherwise reasonably require the extension, variation or review of the BCP or Disaster Recovery Plan, the Service Provider shall as soon as reasonably practicable prepare and maintain an updated Disaster Recovery Plan and/or BCP.
66. DISASTER RECOVERY SERVICES
1. The Service Provider shall use its best endeavours to minimise the impact of any Disaster on the Scheme.
2. The Service Provider shall ensure that the Services are available following the declaration of a Disaster in accordance with Paragraph 4 within those timescales specified in the BCP and/or Disaster Recovery Plan or, where no timescale is specified for the relevant Services or part thereof, within forty-eight (48) hours.
3. The Service Provider shall provide and maintain (at appropriate levels of standby readiness) such infrastructure, equipment, hardware, software (including appropriate licences), documents, personnel and any other goods and services as may be necessary to fulfil its obligations under this Schedule and provide the Disaster Recovery Services (including, for the avoidance of doubt, to ensure it is able to comply with its obligations in the Disaster Recovery Plan in the event of a Disaster).
4. The Service Provider shall ensure that any third parties whose services would be required in the event of a Disaster are approved by the Authority as Material Sub-Contractors in accordance with Clause 25 and, unless otherwise agreed by the Authority, are contracted to provide the relevant services (if required) throughout the Term of this Agreement.
67. OCCURRENCE OF A DISASTER
1. Where a Party becomes aware that a Disaster has occurred or that its occurrence can reasonably be expected to take place imminently, that Party shall declare a Disaster by informing (by the most rapid method of communication reasonably practicable) the other Party and the Service Provider shall formally declare a Disaster and invoke the relevant Disaster Recovery Plan.
2. In the event of a Disaster being declared the Service Provider shall:
1. carry out the activities and procedures described in the Disaster Recovery Plan and otherwise comply with all obligations in the Disaster Recovery Plan in order to restore provision of the Services and minimise impact on End Users and the Scheme;
2. ensure that the Authority Service Manager as the prime contact receives appropriate levels of communication regarding the Disaster, actions taken, recovery status and recovery times through communications channels as agreed in the Disaster Recovery Plan;
3. provide reasonable input and assistance in the event that the Authority wishes to issues press releases in relation to the Disaster or its consequences;
4. use all reasonable endeavours to resolve any Disaster-related issues not adequately provided for in the Disaster Recovery Plan or which are not resolved by the implementation of those plans;
5. take such further steps as may reasonably be expected of the Service Provider acting in accordance with Good Industry Standards (including mitigation of and risk minimisation in respect of all impacts of the Disaster and alerting the Authority in respect of any related issues or concerns which should reasonably be brought to the Authority's attention);
6. be relieved from the accrual of Performance Points in the event it fails to achieve a Service Level, to the extent that:
a) the Service Provider has not caused or contributed to the Disaster;
b) the Service Provider can demonstrate to the Authority that the Disaster directly caused the failure to meet the relevant Service Level; and
c) such failure takes place during the period that the Service Provider is required to implement the Disaster Recovery Plan in accordance with this Agreement.
68. RETURN TO BUSINESS AS USUAL
1. The Service Provider shall ensure that all Services are reinstated to normal operation in accordance with the Disaster Recovery Plan but in any event, as soon as is reasonably practicable in the circumstances.
2. Once all Services affected by the Disaster have returned to normal operation in that the Services are being provided in the same manner as the relevant Services were being provided on the Business Day prior to the declaration of the Disaster, the Service Provider shall issue to the Authority a notice indicating that the Services have returned to normal operation (a "Business As Usual Notice").
69. POST-DISASTER REVIEW
Within a reasonable period (being, in any event, no longer than twenty (20) Business Days from and including the date of issue of the Business As Usual Notice) after a Business As Usual Notice has been issued in accordance with Paragraph 5.2, the Service Provider shall carry out a review (a “Post-Disaster Review") of the causes of the Disaster, the operation and effectiveness of Disaster Recovery Plan and any necessary modifications to the Disaster Recovery Plan. The Service Provider shall provide the Authority with a draft copy of its Post-Disaster Review findings and offer the Authority the opportunity to provide its comments on the findings and any recommendations associated therewith. The Service Provider shall have due regard to the Authority's comments and shall issue a Post-Disaster Review report to the Authority. The Service Provider shall update the Disaster Recovery Plan by incorporating such modifications within twenty (20) Business Days from and including the date of the issue of such Post-Disaster Review report.
70. FAILURE TO IMPLEMENT THE Disaster Recovery PLAN
In the event that the Service Provider fails to successfully implement the Disaster Recovery Plan, such failure shall constitute a Deemed Material Default.
71. Disaster Recovery testing
1. The Service Provider shall execute a Disaster Recovery test as soon as reasonably practical within nine (9) months of the Effective Date and annually thereafter to assess and demonstrate the proper operation and effectiveness of the Disaster Recovery Plan and the Disaster Recovery Services through such combination of desk reviews, simulation and live testing as set out in the Disaster Recovery Plan.
2. The Service Provider shall provide a report on the results of the Disaster Recovery testing conducted in accordance with this Paragraph 8 within ten (10) Business Days from and including the date of completion of any such testing.
3. The Service Provider shall update the Disaster Recovery Plan to incorporate any modifications demonstrated to be necessary by the Disaster Recovery testing within thirty (30) Business Days of the completion of Disaster Recovery testing.
SCHEDULE 7 - EMPLOYEES"\L 4 EMPLOYEES
DEFINITIONS USED IN THIS SCHEDULE
In this Schedule, the following words and phrases shall have the meanings set out below:-
|Relevant Third Party |means any third party appointed (or to be appointed) by the Authority to provide:- |
| |(a) the Services (or their equivalent); and/or |
| |(b) a Scheme or the Custodial Scheme |
| |following the expiry or termination of this Agreement; |
|Relevant Date |means the date of expiry or termination of this Agreement (including any Exit Period) (as the |
| |case may be). |
1. Employee provisions on expiry or termination
4. In the event that the Service Provider shall cease (for whatever reason) and whether directly or indirectly to provide the Services or any part of the Services, it is not the intention of the parties that any past or present employees of the Service Provider be employed by the Authority or a Relevant Third Party following the Relevant Date.
5. If, following the Relevant Date, as a result of the application of the Regulations, any past or present employee of the Service Provider, where that employee has been engaged in any capacity in the provision of the Services during the Term shall become, or otherwise be deemed to be, or shall claim or is alleged to have become, an employee of the Authority or Relevant Third Party :-
1. the Authority or Relevant Third Party shall notify the Service Provider of that fact or allegation as soon as reasonably practicable after becoming aware of it;
2. in consultation with the Authority, the Service Provider shall within seven (7) days of becoming aware of that fact or allegation make that person a written offer of employment to commence immediately on the same terms and conditions as that person was employed immediately prior to the transfer (actual or alleged), and under which the Service Provider agrees to recognise that person's prior service with the Service Provider;
3. upon the offer being made as referred to in Paragraph 1.2.2 (or at any time after the expiry of the seven (7) days if the offer is not made as requested), the Authority or Relevant Third Party may dismiss that person concerned with immediate effect;
4. the Service Provider shall indemnify the Authority for itself or as trustee for the Relevant Third Party against all costs, claims, liabilities and expenses (including legal expenses on an indemnity basis) in connection with or as a result of:
a) any claim or demand by that person (whether in contract, tort, under statute, pursuant to European law or otherwise) including, without limitation, any claim for unfair dismissal, wrongful dismissal, a redundancy payment, breach of contract, unlawful deduction from wages, discrimination on the grounds of sex, race or disability, sexual orientation, religion or religious belief, a protective award or a claim or demand of any other nature and whether arising before, on or after the Relevant Date;
b) any failure by the Service Provider to comply with its obligations under Regulations 13 and 14 of the Regulations, or any award of compensation under Regulation 15 of the Regulations;
c) any claim (including any individual employee entitlement under or consequent on such a claim) by any trade union or other body or person arising from or connected with any failure by the Service Provider to comply with any legal obligation to such trade union, body or person whether any such claim arises before, on or after the Relevant Date; and
5. Where the Authority is entitled to an indemnity from the Service Provider pursuant to this clause, the Authority may in its absolute discretion defend, settle or compromise any claim referred to within the said indemnity and the Service Provider will on demand indemnify the Authority for itself or as trustee for the Relevant Third Party against all costs, claims, liabilities and expenses (including legal expenses on an indemnity basis) arising out of, or in connection with the Authority or Relevant Third Party so doing.
SCHEDULE 8 - MANAGED EXIT"\L 4 MANAGED EXIT
1. PURPOSE
This Schedule specifies the arrangements that shall be made by the Service Provider and the steps to be taken by the Authority to ensure a managed transition of Landlords to an alternative tenancy deposit scheme in the event of the termination or expiry of this Agreement.
72. Exit Strategy
1. Within six (6) months from and including the Service Commencement Date the Service Provider shall deliver to the Authority an Exit Plan.
2. The Authority may respond with comments on the Exit Plan. The Service Provider shall produce a revised Exit Plan where appropriate to take account of any reasonable comments of the Authority. Failure to agree the Exit Plan shall be dealt with in accordance with the Dispute Resolution Procedure.
3. The Service Provider shall review and update the Exit Plan from time to time as necessary including to take account of any agreed changes to the Services. The revised Exit Plan shall be provided to the Authority and the Authority may respond with comments on the revised Exit Plan. The Service Provider shall produce a revised Exit Plan where appropriate to take account of any reasonable comments of the Authority. Failure to agree amendments to the Exit Plan shall be dealt with in accordance with the Dispute Resolution Procedure.
4. At least six (6) months prior to expiry of this Agreement or termination of this Agreement the Service Provider shall review and update the Exit Plan as necessary including to take account of any agreed changes to the Services. The revised Exit Plan shall be provided to the Authority and the Authority may respond with comments on the revised Exit Plan. The Service Provider shall produce a revised Exit Plan where appropriate to take account of any reasonable comments of the Authority. Failure to agree any such revisions shall be dealt with in accordance with the Dispute Resolution Procedure.
73. Assistance during the Exit Period
1. The Service Provider shall provide Exit Assistance from the Exit Assistance Date for the duration of the Exit Period.
2. At the commencement of each Exit Period the Service Provider shall appoint a representative to oversee the implementation of the Exit Assistance.
3. The Service Provider's costs and expenses incurred in developing and implementing the Exit Plan shall be as agreed between the Parties.
4. The Service Provider shall ensure that provision of Exit Assistance shall not have any adverse effect on provision of the rest of the Services and/or the Service Levels during the relevant Exit Period.
5. During each Exit Period the Service Provider shall co-operate fully and in good faith with the Authority and provide all reasonable Exit Assistance including answering promptly and fully within a reasonable timescale all reasonable questions about the Services which may be asked by the Authority.
6. During each Exit Period, the Service Provider shall provide progress reports to the Authority (at frequencies agreed and set out in the Exit Plan) detailing progress (or any lack of progress) towards completion of all required Exit Assistance obligations by reference to any agreed timescales and/or milestones.
SCHEDULE 9 - CONTRACT MANAGEMENT"\L 4 CONTRACT MANAGEMENT
1. PARTNERSHIP WORKING
The Authority and the Service Provider acknowledge the benefits accruing to each of them if this Agreement is performed in a spirit of co-operation and partnership. Accordingly, the Authority and the Service Provider shall each seek to work closely together in a spirit of trust and co-operation to facilitate effective performance by the Service Provider of the provision of the Services.
74. Co-Operation and Liaison
1. The Service Provider acknowledges that the successful provision of the Services requires the Service Provider to co-operate and liaise with other partners and stakeholders.
2. The Service Provider shall be under a general obligation to facilitate the development of the Scheme by co-operating with the Authority, its partners and stakeholders, including (without limitation):-
1. attending liaison meetings where appropriate; and
2. providing to other partners and stakeholders relevant information regarding the Services provided that such information is not Commercially Sensitive Information.
75. Project Board
The Authority may implement a Project Board as a forum for communication and discussion between the parties at a senior level of strategic and other fundamental issues relating to the provision of the Services and this Agreement generally. Where implemented, the Project Board shall meet at the Authority's premises (unless otherwise agreed) at a frequency to be determined by the Authority. The Service Provider’s Scheme Manager will attend meetings of the Project Board. In the event that the Service Provider’s Scheme Manager is unavailable, the Service Provider may nominate, with the consent of the Authority an alternative appropriate person (who shall be a relevant senior manager of the Service Provider) to attend meetings of the Project Board.
76. Contract Management
1. The Service Provider shall appoint a Contract Manager who shall be responsible for the day-to-day delivery of the Services. The Service Provider shall ensure that the Contract Manager has the authority to take all day-to-day operational decisions in relation to the provision of the Services. The Contract Manager shall not have the authority to make or agree amendments to this Agreement.
2. The Service Provider’s Scheme Manager shall have overall responsibility for delivery of the Services to the Authority. The Service Provider's Scheme Manager shall be authorised by the Service Provider, subject to any internal approval requirements of the Service Provider as set out in its constitution or an agreement between its shareholders, to deal with strategic matters relating to the Services and the Scheme and to make or agree amendments to this Agreement (such amendments to be made in accordance with the Change Control Procedure).
3. The Authority shall appoint a Service Manager who shall have overall responsibility for managing all issues arising out of the provision of the Services or otherwise arising out of this Agreement. The identity of the Authority's Service Manager and his/her replacement from time to time will be notified to the Service Provider in writing.
4. The Authority's Service Manager and Service Provider's Contract Manager shall meet not less than once per quarter and during the Implementation Period not less than once per month. The venue for the meeting shall, unless otherwise agreed be at the Authority's premises. Either Party may request more frequent meetings if reasonably considered necessary. The meetings shall seek to:-
1. ensure that the other Party is fully briefed on relevant information material to this Agreement and to the provision of the Services including during the implementation Period, the Service Provider's progress against the Implementation Plan;
2. ensure the successful and efficient operation of this Agreement and provision of the Services;
3. consider operational issues with a view to improving the provision of the Services;
4. settle at an early stage any potential areas of dispute without the need of a formal referral to the Dispute Resolution Procedure; and
5. escalate areas of dispute within the Dispute Resolution Procedure.
77. Annual Review
1. No later than thirty (30) Business Days from and including each anniversary of the Service Commencement Date, the Authority and the Service Provider shall review the overall operation of this Agreement to assess:-
1. the Service Provider's performance under the Agreement;
2. whether the Services continue to meet the Authority's requirements; and
3. whether the parties are working effectively together and to identify areas for improvement. Any changes to the Services that the parties agree to make as a result of such review shall be implemented in accordance with the Change Control Procedure.
4.
SCHEDULE 10 - PERFORMANCE MANAGEMENT"\l 4 PERFORMANCE MANAGEMENT
In this Schedule, the following words and phrases shall have the meanings set out below:-
|Assessment Date |the second (2nd) anniversary of the Service Commencement Date; |
|Assessment Period |the period between the Service Commencement Date and the |
| |Assessment Date; |
|Grace Period |the first six (6) months following the Service Commencement |
| |Date; |
|Performance Point |a performance point incurred by the Service Provider in |
| |accordance with Appendix 1 of this Schedule 10; |
|Performance Threshold |the level of Service Provider performance required to trigger an|
| |extension of this Agreement as set out in Paragraph 8 below; |
|Remediation Plan |a brief summary prepared by the Service Provider and included in|
| |the Monthly Service Statement setting out (in respect of each |
| |failure to meet a Service Level in the relevant month):- |
| |(a) the scale of the problem; |
| |(b) an outline of the steps that the Service Provider proposes |
| |to take (or has taken) to rectify or improve its performance in |
| |respect of that Service Level; and |
| |(c) a statement as to the timescales within which the steps set |
| |out in (b) will be implemented; |
1. PURPOSE
1. This Schedule describes the performance management regime which is to be adopted by the Parties in relation to this Agreement. The performance management regime is to be used to measure the Service Provider's compliance with its obligations under this Agreement, including in the delivery of the Services.
2. In addition to the measurements set out in this Performance Management Schedule, other processes shall be used by the Authority for measuring the Service Provider's performance including exercise of audit rights in accordance with Clause 23 and Schedule 3 (Audit and Access).
1. COMPLIANCE WITH SERVICE LEVELS
1. During the Term, the Service Provider shall meet or exceed the Service Levels set out in Appendix 1 and take corrective action in the event of any failure to do so.
2. Where the Service Provider fails to meet a Service Level due to an act or omission of the Service Provider, the Service Provider shall accrue Performance Points in accordance with Appendix 1. The Service Provider's failure to meet a Service Level shall not incur Performance Points where and to the extent that the Service Provider can reasonably demonstrate to the Authority that such failure:-
1. was caused by a Force Majeure Event;
2. is excused pursuant to Paragraph 4.2.6 of Schedule 6; or
3. was caused by a Default of the Authority.
3. Service Level 6 contained in Appendix 1 awards performance credits. Any credits gained in a given month can be set off against the Performance Points accrued in that month only.
4. The Authority acknowledges that whilst the Service Provider must provide a fully operational Scheme from the Service Commencement Date, following the Effective Date there may be a ramp-up period during which the Service Provider refines its delivery of the Services. Accordingly, in the Grace Period, the Service Provider shall use all reasonable endeavours to meet the Service Levels but:-
1. shall not be obliged (but shall use reasonable endeavours) to comply with:-
a) Paragraph 2.1; or
b) Paragraph 5; and
2. shall not incur Performance Points in accordance with Paragraph 2.2 and Appendix 1 save in respect of the calculation of the Performance Threshold in accordance with Paragraph 8 below.
2. RE-PERFORMANCE
If any part of the Services is not performed in accordance with this Agreement then the Service Provider shall promptly re-perform or replace (where appropriate) the relevant part of the Services without additional charge to the Authority.
3. REPORTING OBLIGATIONS
1. The Service Provider shall ensure that it has appropriate systems and procedures in place to capture and report on compliance with Service Levels as required by this Schedule.
2. The Service Provider shall deliver a monthly performance management report to the Authority within five (5) Business Days from and including the first day of each month in respect of the previous month detailing performance in respect of each Service Level and against the Performance Threshold ("Monthly Service Statement"). Each such report shall identify any failures to meet the particular Service Level during the relevant month. The format of the monthly performance management report shall be agreed between the Parties during the Implementation Period.
3. Within five (5) Business Days from but excluding the Assessment Date, the Service Provider shall provide a report to the Authority (in such form and providing such information as the Authority may reasonably require) detailing performance against the Performance Threshold over the previous two (2) Contract Years to enable the Authority to determine whether or not the Performance Threshold has been met.
4. Breach of Individual Service Levels
1. Where the Service Provider accrues Performance Points in respect of any Service Level, the Service Provider shall provide a Remediation Plan with the Monthly Service Statement.
2. The Authority may provide representations and/or comments on the Remediation Plan. The Service Provider shall take reasonable account of all comments and/or representations made by the Authority.
3. The Service Provider shall fully implement the Remediation Plan in accordance with its terms (including the timescales set out in the Remediation Plan).
5. Default Notices and Repeated Breaches of Service Levels
1. Without prejudice to the generality of Paragraph 3 above, where the Service Provider is, in the reasonable opinion of the Authority, in material breach of its obligations under this Agreement or that the overall level of performance is materially deficient then, without prejudice to any other remedy available to the Authority, the Authority may serve upon the Service Provider a notice ("Default Notice") and the provisions of this Paragraph shall apply.
2. Where:-
1. the Authority serves a Default Notice; or
2. the aggregate number of Performance Points accrued in a month exceeds Redacted; or
3. the aggregate number of Performance Points accrued each month over any six (6) consecutive month period exceeds Redacted
the Service Provider shall, unless notified otherwise by the Authority, prepare a written rectification plan (“Service Rectification Plan”). The Service Rectification Plan shall be issued to the Authority by the Service Provider's Scheme Manager and shall provide the following information:-
4. identification of the scale of the problem; and
5. the steps that the Service Provider proposes to take to rectify or improve its performance including all failures to meet Service Levels; and
6. a statement as to how success in implementing the Service Rectification Plan will be measured; and
7. a statement as to the timescales within which the Service Rectification Plan will be implemented; and
8. such other information as may be reasonably required by the Authority.
The Service Rectification Plan shall be submitted by 5pm on the fifth (5th) Business Day following but excluding the day of submission of the Monthly Service Statement in which the Performance Points are accrued to reach the thresholds set out above or by 5pm on the tenth (10th) Business Day following the day of receipt of the Default Notice by the Service Provider. The Service Provider shall make such amendments to the Service Rectification Plan as may reasonably be requested by the Authority.
3. The Authority shall approve the Service Rectification Plan as soon as reasonably practicable but in any event within ten (10) Business Days from and including the date of its submission to the Authority.
4. As soon as the Authority has approved the Service Rectification Plan, the Service Provider shall fully implement the Service Rectification Plan in accordance with its terms (including the timescales set out in the Service Rectification Plan).
5. If the Service Provider fails fully to implement the Service Rectification Plan in accordance with its terms (including timescales) then the Authority may treat such failure as a Deemed Material Default.
6. Serious underperformance
1. Should the Service Provider:-
1. incur aggregate Performance Points each month in excess of Redacted for three (3) or more consecutive months or for more than six (6) months in any Contract Year; or
2. be issued with two (2) or more Default Notices in any period of twelve (12) consecutive months;
then the Authority shall have the right to terminate the Agreement without incurring any termination fee.
7. Performance Threshold
1. The Performance Threshold shall be deemed to be satisfied if the total number of Performance Points accrued by the Service Provider during the Assessment Period does not exceed Redacted. For the avoidance of doubt, Performance Points incurred during the Grace Period shall count for the purposes of the Performance Threshold.
1. CUSTOMER SATISFACTION SURVEYS
2. The Authority may from time to time request through the Change Control Procedure that the Service Provider undertake an agreed programme of customer satisfaction surveys. The Service Provider's costs in undertaking such surveys once agreed shall, unless agreed otherwise when agreeing the Change, be at the Authority's expense.
APPENDIX
SERVICE LEVELS
|PERFORMANCE AREA |NO. |Performance |Performance Target |Performance Points |Notes |Reporting Format |
| | |(quantitative means of measuring | |(where x is the performance achieved for | | |
| | |the Service Level) | |the relevant KPI) | | |
| |2 |System availability: Availability |99% |Redacted |Measured as a percentage- the |Monthly figure on the percentage |
| | |of web access to the system for | | |total time available against the|of non-scheduled downtime |
| | |end users; Provision of a web / | | |total time scheduled to be |(against scheduled time). If the |
| | |online interface available, 24 | | |available (i.e. exclusive of |figure is below 99%, a |
| | |hours a day, seven days a week, | | |scheduled downtime for |Remediation Plan should be |
| | |exclusive of scheduled downtime. | | |maintenance, updates etc). |provided in accordance with |
| | | | | | |Paragraph 5.1 of Schedule 10. |
|Responses to enquiries and |3 |Time needed for a substantive |4 Business Days |Redacted |Measured as monthly average |Figure on the monthly average |
|complaints in a timely manner | |response to written, email and | | |number of Business Days taken to|number of Business Days required,|
| | |web-based enquiries and complaints| | |respond to enquiries and |and unit breakdown behind the |
| | |(including to provide confirmation| | |complaints. |average for each response. If the|
| | |of deposit protection to tenants):| | |For example, an enquiry is |figure is above 4 business days, |
| | |Responses to written enquiries | | |received on Monday. The number |a Remediation Plan should be |
| | |(including fax) despatched within | | |of Business Days is four (4) if |provided in accordance with |
| | |four (4) Business Days (excluding | | |the reply is sent on Friday. |Paragraph 5.1 of Schedule 10. |
| | |the day of receipt). | | | | |
|Process management |4 |Confirmation dispatched to |3 Business Days |Redacted |Measured as the monthly average |Figure for monthly average |
|(registration and provision of| |Landlord of deposit protection and| | |number of Business Days between |required. If figure is above 3 |
|information in a timely | |provision of required tenancy | | |the Deposit being protected and |days, provide individual unit |
|manner) | |information within three (3) | | |required information being sent |details and a Remediation Plan |
| | |Business Days of the tenancy being| | |to Landlord. |should be provided in accordance |
| | |placed on protection with the | | |For example, the Scheme begins |with Paragraph 5.1 of |
| | |Scheme (where applicable, being | | |protection of the Deposit |Schedule 10. |
| | |the date that any fee payable in | | |(clearing the fee, if | |
| | |respect of that tenancy is | | |applicable) on Monday. The | |
| | |received in cleared funds). | | |number of Business Days is three| |
| | |Note: required tenancy information| | |(3) if the confirmation and | |
| | |relates to the information to | | |relevant information is | |
| | |Landlord / Agent to enable them to| | |despatched to the Landlord on | |
| | |comply with the HA 2004 (providing| | |Thursday. | |
| | |confirmation to tenants of deposit| | | | |
| | |protection and scheme information | | | | |
| | |within 14 days of receiving the | | | | |
| | |deposit). | | | | |
|Statuto|5 |Disputed |
|ry | |Deposit |
|Require| |amount |
|ment: | |returned to |
|return | |the |
|of | |appropriate |
|dispute| |recipient(s) |
|d | |within ten |
|Deposit| |(10) days |
|s | |from the day |
| | |that the |
| | |Service |
| | |Provider |
| | |receives |
| | |confirmation |
| | |of its |
| | |release (i.e.|
| | |after |
| | |agreement, |
| | |ADR decision |
| | |notification,|
| | |court |
| | |decision), |
| | |(including |
| | |day of |
| | |receipt of |
| | |notification)|
| | |. (Note: |
| | |Return of |
| | |deposits |
| | |within this |
| | |timescale is |
| | |a Statutory |
| | |requirement |
| | |and should be|
| | |viewed as a |
| | |maximum). |
| | |
| |DEFINITIONS | |
| | |
| |RULES OF MEMBERSHIP | |
| | |
| |Eligibility | |
| |Cost of membership | |
| |Provision of information to landlords and tenants | |
| |Holding the deposit | |
| |Clauses for inclusion in Tenancy Agreements and Terms of Business | |
| |Status of tenancies for inclusion in IBTDS | |
| |At the end of the tenancy | |
| |Timescales for resolving a dispute | |
| |Non-compliance/Non-co-operation with The Dispute Service by a Member Firm | |
| |The role of the Independent Case Examiner | |
| |Withdrawal from IBTDS by a Member Firm | |
| |Removal of a Member Firm from IBTDS | |
| |Changes of ownership or management | |
| |Data Protection Act – Provision of Information | |
| |Amendments | |
| |
| |APPENDIX | |
| | |
| |Terms and conditions of insurance | |
| |Landlords/agents – client bank accounts | |
| |Documents and forms available from The Dispute Service | |
INTRODUCTION: What is the Insurance-based Tenancy Deposit Scheme?
← In the private sector many tenants give their landlords a deposit against possible non-payment of rent or damage to property. When a tenancy comes to an end, there is usually no disagreement about the return of the deposit. But sometimes there is, and this can cause much hardship, delay and inconvenience to landlords, tenants and member firms.
← The Insurance-based Tenancy Deposit Scheme (IBTDS) has been introduced by the Housing Act 2004 to ensure that tenancy deposits are securely held and that disputes about their return are resolved quickly, cheaply and fairly. It is based on the pilot Tenancy Deposit Scheme run by Independent Housing ICE Limited on behalf of the Office of the Deputy Prime Minister from 2000 – 2003; and the Tenancy Deposit Scheme for Regulated Agents, which it replaces.
← IBTDS is managed by The Dispute Service, a company limited-by-guarantee. Deposits held by scheme members and covered by IBTDS are protected during the tenancy so that they are available to be returned to the tenants if they have met the terms of the tenancy agreement. Where there is no dispute at the end of the tenancy, the deposit will be returned promptly. Where there is a dispute about the allocation of the deposit and it cannot be resolved after negotiation, it will be referred to the Independent Case Examiner (ICE) to be dealt with fairly, quickly and impartially. The Member Firm will transfer the deposit and submit appropriate documentation to The Dispute Service, who will apportion and pay it to the parties on the basis of the ICE’s subsequent adjudication.
← IBTDS has a cash reserve so that if the member firm does not transfer the deposit within the prescribed timescale, the ICE will still adjudicate the dispute and will draw on the reserve to pay out the deposit. It is also backed by an insurance policy with Norwich Union and Royal Sun Alliance Assurance Fund to replenish the cash reserve. The company will pursue the Member Firm concerned, taking legal action if necessary. Ultimately there may be a claim under the relevant Client Money Protection Scheme, a County Court judgement and a charge on the property.
← This document sets out the Member Firm's obligations under the rules and procedures of IBTDS.
DEFINITIONS
"Agent" means an individual or company who lets or manages property on behalf of its owner.
"the Board" means the board of directors of the Company;
“Bonding” or “bonded” means that the member firm has arranged and maintains, usually through a professional body, Client Money Protection Insurance which will reimburse the public in the event of fraudulent or dishonest misappropriation of clients’ money and that the extent of cover meets the minimum criteria set from time to time by the Board of The Dispute Service.
“Client Account” means an account set up in a bank, building society or other financial institution specifically to hold money held on behalf of clients.
“Department” means the Department of Communities and Local Government (DCLG), or any other Government Department which becomes responsible for the oversight of tenancy deposit schemes.
"Deposit" means any sum collected from the tenant at the start of the tenancy, as prescribed in the tenancy agreement and held by the member firm on behalf of the tenant as security against performance of obligations under the tenancy agreement, any damage to the property etc., and/or non-payment of rent during the tenancy period;
"IBTDS" means the Insurance-based Tenancy Deposit Scheme run by the Company for the resolution of disputes between landlords, agents and tenants as to the return of deposits at the end of tenancies;
"the ICE" means the Independent Case Examiner;
"Landlord" means an individual or company who lets property.
“Member Firm” means an agent or landlord who has joined IBTDS
“Office(s)” means a branch or branches operated by a Member Firm which is registered with the Professional Body as providing Lettings and/or Management services.
“Professional Body” means an organisation, trade or professional body which acts in some form to regulate or supervise the activities of its members;
“The Dispute Service, TDS Ltd or the Company” means The Dispute Service a company limited by guarantee registered in England and Wales with registered number; 4851694
“Tenant” means an individual or company who who holds or possesses property for a time in return for the payment of rent
RULES OF MEMBERSHIP
Eligibility
1. The Scheme is open to all landlords and agents in the PRS. They will be asked if they meet the following criteria and to provide supporting documentation, which will determine the insurers’ estimate of risk and hence their annual joining fee:
← Do they hold separate clients accounts for deposits and other client money?
← Are they covered by a Client Money Protection Scheme?
← Do they hold Professional Indemnity insurance?
← Do they adhere to a recognised Code of Practice?
← Are they members of an accreditation scheme?
← Are they members of a trade or professional body?
← Have they ever been refused a licence to operate an HMO under the mandatory requirements of the Housing Act 2004?
← Other criteria as appropriate
The Board may review these criteria from time to time and may alter them at its discretion (see section 15 Amendments).
2. The insurance arrangements are summarised in Appendix 1
3. Members of the Tenancy Deposit Scheme for Regulated Agents who have been in good standing for the three months prior to the implementation of IBTDS will automatically become members of IBTDS unless they signify in writing that they do not choose to do so.
4. Applicants will be excluded if:
← Their application statements proved false
← They refuse to agree to comply with the rules of the Scheme
← Fail to pay their initial subscription
← If the answers given to the information provided under 2.1.2 above meant that the insurers declined to provide cover under the policy.
5. The administrator of the scheme may reject applications to join IBTDS, at her/his discretion. Her/his decision is final.
Cost of Membership
6. Member Firms will pay a yearly subscription for the costs of operating IBTDS and resolving tenancy deposit disputes. The Board of The Dispute Service will fix the amount and method each year. Members will not gain access to any of the benefits of membership until their subscription has been paid.
7. Member Firms will also pay a one-off application fee which will be set by the Board from time to time
8. The extent to which a Member Firm meets the criteria set out in paragraph 1.1will determine its subscription
9. The Company may, at its discretion, reduce a Member’s first year subscription in proportion to the month in which their invoice falls due.
10. Where the Member Firm is an agent, it will be entitled, at its discretion, to recover the outlay of subscription costs from its landlord clients. It is a matter for Member Firms to determine how they do so, but it must not be charged directly to the tenants. The Dispute Service and the Professional Bodies would consider profiteering from such recharges to be unprofessional or undesirable conduct. It will be grounds for the removal of the firm from IBTDS and for disciplinary action by the Professional Body. Further advice is contained in IBTDS D “Operational procedures and advice for Member Firms”. Member Firms may also consult The Dispute Service.
11. The Dispute Service may carry out an audit at the Member Firm's expense if it reasonably considers that it is necessary to verify the accuracy of its returns for the purpose of calculating its subscription.
3 Where a Member Firm has not renewed its subscription within the prescribed period its membership of the Scheme will be suspended. It will have to pay the costs of resolving disputes which arise from a tenancy granted during its suspension as if it was a pre-existing tenancy (paragraph 11.2). During the period of suspension the Member Firm will be in breach of the Housing Act 2004 if it continues to take deposits. This will continue until the suspension is lifted or the Member Firm joins another scheme.
1. Provision of information
1. All documentation relating to IBTDS including these rules etc are available for public viewing or to be downloaded from the website tds..
2. Member Firms must provide tenants with the following information:
← The name, address and contact details of the person who receives the deposit
← The name & address of the tenant (and the person paying the deposit if different)
← An alternative contact address for the tenant
← The value of the deposit
← The name, address and contact details of the person who will conduct the ADR if there is a disputes about the return of the deposit at the end of the tenancy.
← Signature of the landlord
3. This information is to be included in the tenancy agreement, and the management agreement/terms of business where relevant, in the form prescribed in IBTDS G Clauses to be included in tenancy agreements and terms of business. It must also be presented to the tenant in a separate document, signed by the tenant and the Member Firm (IBTDS H). (see also Section 5)
4. Member Firms must enter data prescribed by the regulations (reference) into the IBTDS database within a period of time specified by the Board. Failure to do so may be considered a breach of the terms of IBTDS and could result in the Member Firm being removed from the Scheme.
2. Holding the deposit
1. For a tenancy to be covered by the IBTDS the deposit must be held, under the terms of the tenancy agreement, by the Member Firm.
2. If they are members of a Professional Body, Member Firms must hold the deposit during the tenancy in accordance with its relevant rules or byelaws concerning accounting and dealing with client money. If the Member Firm has Client Money Protection Bonding it must hold the deposit in accordance with the requirements of the providers of their Scheme. At the very least, the Member Firm must hold the deposit in a specified Client Account.
3. Member Firms must not release or make use of a disputed deposit held under the IBTDS until the ICE has made his adjudication. They should, however, pay out any part of the deposit over which there is no disagreement.
3. Clauses for inclusion in Tenancy Agreements and Terms of Business
1. Relevant clauses must be inserted in, or appended to, the tenancy agreements created on all properties where the Member Firm is to hold the deposit.
2. Similarly, relevant clauses must be inserted in, or appended to, the Terms of Business between Landlord and Agent where appropriate.
3. An example of the appropriate wording is provided in IBTDS G (op cit) which can be downloaded from the members-only section of the website, or is available from The Dispute Service.
4. Status of tenancies for inclusion under IBTDS
1. All new tenancies entered into from the date the member firm has paid their subscription, on which the Member Firm holds the deposit, are covered by the scheme.
2. As long as the subscription is paid within 28 days, any disputes arising from tenancies granted during that period where the agreement does not contain the relevant clauses will nevertheless be adjudicated without further charge. If payment is delayed beyond 28 days, any disputes arising from tenancies granted prior to payment will be subject to a charge the amount to be fixed each year by the Board of The Dispute Service.
3. Any pre-existing tenancies, where the member firm holds the deposit, which started no earlier than 1st July 2006 and up to the date the firm became a member of IBTDS, may be submitted to the ICE for adjudication subject to: -
← the written consent of the relevant parties at the time the dispute arises (Form IBTDS 4);
← the payment of an adjudication fee, the amount to be fixed from time to time by the Board of The Dispute Service;
← the discretion of the ICE.
4. Where pre-existing tenancies are formally extended or renewed after the member firm has joined IBTDS, the new tenancy agreement should – with the consent of the parties – include the relevant clauses. That tenancy will then be considered a new tenancy for the purposes of adjudication under the IBTDS.
5. At the end of the tenancy
1. If there is no dispute the member will keep or repay the deposit, according to their agreements with the landlord and the tenant.
2. In the event of a dispute arising Member Firms must try to resolve it in a timely manner (see paragraph 8 below). If they cannot do so they must draw the attention of the parties to IBTDS.
3. It is not compulsory for the parties to refer the dispute to the ICE. They may, if they choose, seek the decision of the Courts. However, this is likely to take longer and may be more expensive. Judges may, in the knowledge of IBTDS, refer them back to it. If the parties do agree that the dispute should be resolved by the ICE, they must accept his decision as final and binding.
4. If there is a dispute about who has better claim to the deposit at the end of the tenancy, raised by any of the parties (the agent/the landlord and/or the tenant), which remains unresolved, any of them can refer it to the ICE. The Member Firm must be able to show that they have tried to negotiate a resolution to the dispute before referring it to the ICE. Where the Member Firm is an Agent, they must always co-operate with the ICE if the tenant or the landlord makes the referral.
5. Either the member firm, landlord or tenant can instigate a dispute by completing the “Notification of Dispute” form (IBTDS.2) and submitting it to the ICE.
6. If this is done by the Member Firm they must send with the “Notification of Dispute” the full deposit, less any amounts already agreed by the parties and paid over to them. Where one of the other parties raises the dispute, the Member Firm must send the money with their response documents within 10 working days of being told that a dispute has been registered whether or not they want to contest it. Failure to do so will not delay the adjudication but the company will take appropriate action to recover the deposit and discipline the Member Firm.
7. Member Firms must co-operate with the ICE in his consideration of the dispute and follow his recommendations concerning the method of its resolution.
6. Timescales
1. If there is no dispute, the deposit should be repaid to the tenant within 10 working days of the end of the tenancy – unless a different period is specified in the tenancy agreement. Failure to return the deposit within the specified period will be grounds for the tenant to refer the matter directly to the ICE.
2. The tenants should make their best endeavours to inform the Member Firm if they wish to raise a dispute about the deposit within 20 working days after the lawful end of tenancy and vacation of the property – unless a different period is specified in the tenancy agreement. The ICE may, subject to paragraph 8.6, regard failure to do so as putting the dispute out of time and refuse to accept it if subsequently asked to resolve it.
3. Having been informed, the Member Firm has a maximum of 10 working days to resolve the dispute – unless a different period is specified in the tenancy agreement. If they cannot do so, or if either the landlord or the tenant remains dissatisfied, the dispute should be referred promptly to the ICE.
4. The dispute may be referred to the ICE before the end of the period if all the parties agree that they cannot resolve it.
5. The ICE will aim to resolve the dispute within 10 working days of receiving the final documentation.
6. The timescales specified in the tenancy agreement may be varied if the ICE considers it necessary to seek legal or other expert advice, or in exceptional circumstances at his discretion e.g. if one of the parties is in hospital.
7. Joint tenancies
1. The tenancy agreement should stipulate to whom the deposit should be paid at the end of the tenancy. If it does not, the ICE will allocate his award to the tenants equally to each of those named in the tenancy agreement. He will send each of them the appropriate amount separately, by cheque or bank transfer as requested.
2. The only exception to this will be where the joint tenants authorise a different allocation of the award, in writing and signed by all of them.
3. It is the responsibility of joint tenants to inform the agent if one of them moves out so that the agent can modify the tenancy agreement accordingly.
4. Where one or more of the joint tenants refuses to accept the landlord/agent's proposal for the return of the deposit, they will be able to submit a dispute – whether or not they are in the majority.
8. Non-compliance/Non-co-operation with The Dispute Service by a Member Firm
1. Member Firms who fail to comply with the rules of IBTDS may be excluded. They may also be subject to sanctions and or disciplinary action by their Professional Body, Trade Association or Client Money Protection Bonding Scheme where relevant. (See also IBTDS D, Operational procedures and advice for Member Firms)
9. Role of the Independent Case Examiner
1. The ICE will:
← deal with the dispute promptly, and within the timescales set by the Housing Act 2004 and others agreed with the Board of The Dispute Service
← make a decision about the fair allocation of the deposit within 10 working days of receiving the necessary information.
← instruct Scheme Administrator to make the necessary payments to the landlord and the tenant.
← deal with disputes even if the member has not sent the deposit.
2. The ICE will not deal with disputes:
← where one of the parties has registered their intention to take legal action for the resolution of the dispute;
← that have been resolved by a court. He will generally refuse to deal with new matters, which the parties had the opportunity to raise in court, and failed to do so. However, he may at his discretion deal with any outstanding aspects which were not dealt with by the court.
← where the amount of the deposit in dispute is £5,000 or more, although he may do so at his discretion if he considers it would be more appropriate to the facts of the case. In such circumstances he will discuss the appropriate method of resolution with the parties and seek their written consent to proceed.
3. The ICE may at his discretion award the disputed deposit to the tenant without adjudication where:
← The tenancy is not subject to a written tenancy agreement
← There is a written tenancy agreement but it does not contain suitable reference to the IBTDS as prescribed
← There is either no check-in or no check-out inventory
← In the opinion of the ICE the Member Firm has unreasonably sought to delay the repayment of the deposit or the referral of the dispute
← The information specified in 3.2 has not been given to the tenant.
4. The ICE may also reject disputes which are, in his opinion:
← being pursued in an unreasonable manner;
← frivolous;
← vexatious;
← or seek to raise again and unreasonably in his opinion, matters which he has already decided upon; which were previously decided by another similar dispute resolution process; or by the Courts.
4 The ICE will
← publish his procedures for reporting and disseminating information. He must seek approval for the transfer of personal details for the purposes of assisting his adjudication or the conduct of research or publicity for IBTDS
← make and publish arrangements for receiving and dealing with complaints from members, landlords and tenants about how a dispute was handled.
← bring to the Board’s attention, and take such action as he feels is reasonable, if he considers that a member is abusing or ignoring the rules of IBTDS, or operating it inappropriately. He may recommend to the Board the expulsion of participants who refuse to abide by these terms and conditions.
Withdrawal from IBTDS by a Member Firm
Any Member Firm may withdraw from IBTDS if it complies with the following conditions:
6 It must give at least 6 months’ notice in writing to the ICE, copied to its Professional Body, of its intention to withdraw and not to offer IBTDS to new or renewed tenancies. The balance of the subscription will not be returned.
7 The resigning Member Firm must also give a written undertaking, in a form to be decided by the Board that it will:
8 comply with the ICE’s decisions in respect of all outstanding disputes whether or not they are completed by the date of withdrawal;
9 pay any outstanding sums which the Company may certify as due in respect of its membership of IBTDS, whether or not such a certificate is given before membership ceases;
10 pay the costs of any disputes arising out of these tenancies after the Member Firm’s subscription has run out i.e. to pay a fee for the resolution of the dispute equivalent to that charged for disputes arising over tenancies commencing before a Member Firm joined the Scheme;
← not state or imply that it remains a member of IBTDS.
11 Where the firm withdraws by failing to renew its subscription the same terms will apply, except the Member Firm will not be required to give six months notice.
12 The Dispute Service will:
13 inform the other parties that the current tenancy will continue to be covered by IBTDS for a further six months, despite the member’s withdrawal;
14 inform the Department that the firm is no longer a member of the IBTDS;
15 alert the other tenancy deposit schemes to the possibility that the firm will be applying to join them.
Removal of Member Firm from IBTDS
17 The Board may end a firm’s membership if, in the Board's reasonable opinion, it:
18 has not complied with IBTDS or with undertakings given to the Company as a term of admission;
19 is considered to have acted unprofessionally or failed to co-operate with the ICE in the manner expected;
20 has failed to pay over any money due to The Dispute Service (whether subscription or otherwise) in a timely manner;
21 has changed the status on which its membership was based and/or failed to sustain its client account.
22 The Board must:
23 give notice to the member, and its Professional Body where relevant, that it proposes to end the membership and why;
24 allow the member to make representations within such a period (of at least 28 days) as the Board may decide;
25 consider any representations before reaching a decision on whether to end the membership.
26 If the Board maintains its decision to end the membership, it must give written notice to the member explaining its reasons and:
27 the ICE must not accept disputes concerning tenancies entered into after the date specified in the notice;
28 the member must undertake the actions specified in paragraph 11.2 as if it had itself given notice of withdrawal from IBTDS;
29 The Dispute Service will undertake the actions specified in paragraph 11.4 as if it had itself given notice of withdrawal from IBTDS;
30 If the Board decides to end a Member Firm's membership the ICE may publish the fact and circumstance of its removal from IBTDS, naming it in his annual report or otherwise as he thinks fit. The ICE may also notify the member’s trade association, accreditation scheme, local authority or any other relevant body or organisation of their removal from IBTDS.
10. Continuation of cover in the event of a cessation of membership
31 If an agent or landlord does not renew his/her membership of the Scheme, or the membership is cancelled mid-term, the protection afforded to deposits collected and registered under the scheme will continue:
32 for a period of 12 months from the initial commencement date of the tenancy or
33 for a period of 3 months from the date of cessation of membership
whichever is the later, but only until the landlord/agent has made alternative arrangements for the protection of any deposit.
35 On receipt of notification from the agent or landlord that they are not renewing their membership the Scheme will immediately write to all tenants to inform them of the date that their protection will cease and will seek confirmation from the agent or landlord of the alternative arrangements they are making to ensure ongoing compliance with the law including as necessary liaison with other scheme providers.
36 In the event that the Scheme wishes to terminate the membership of a landlord or agent as a result of a serious breach of the scheme rules, this termination will not prejudice the protection afforded to tenants whose deposits are registered with the scheme prior to date of cancellation of the membership.
37 The Scheme will, as a priority, seek to inform tenants of their rights under the scheme and to ensure they are able to recover sums due to them or to have the protection transferred to another scheme.
11. Changes of Ownership or Management
38 The terms and conditions of IBTDS continue to apply as long as the existing tenancy agreement remains in place, regardless of a change of ownership or management, as long as the subscription continues to be paid. If it is not, the provisions of paragraphs 11 or 12 will apply, as appropriate.
39 Member Firms must promptly inform the tenants of those properties covered by IBTDS that they are transferring them to another member firm (or manager) or otherwise are ceasing to manage or own their properties. They must also tell them who is now managing the property and confirm that the rules of IBTDS still apply.
40 The Member Firm must inform the selling landlord in writing of the need to tell the purchaser, or the new member firm, of their contractual obligations relating to the tenancy deposit under IBTDS.
12. Data Protection Act – Provision of Information
41 The Dispute Service is registered with the Information Commissioner under the Date Protection Act and is aware of its obligations relating to the obtaining, recording, holding or disclosing of personal data, and, has suitable systems and controls to comply with the eight general principles of the Act which say that such personal data must be: - fairly and lawfully processed; processed for limited purposes; adequate, relevant and not excessive; accurate; not kept longer than necessary; processed in accordance with the data subject’s rights; secure; not transferable to other countries without adequate protection.
42 Member Firms must provide The Dispute Service with such information, as it reasonably requires, both regularly and on a one-off basis, on the appropriate form, or by computer disc or e-mail. Forms are available direct from The Dispute Service or by downloading from the website: tds.
43 Member Firms must, without charge, provide copies of, or (at his request) allow him to examine, any records and documents that the ICE considers may be relevant to a dispute. Member Firms must provide such other reasonable help as the ICE may request from time to time.
44 Member Firms give The Dispute Service their consent to copy information they may supply concerning their membership of IBTDS and deposit disputes in which they are involved, to:
45 other parties and organisations who the ICE considers appropriate to the resolution of the dispute;
46 for use in confidential survey and research purposes;
47 to relevant Professional Bodies who have an interest and duty to maintain and sustain good practice and the integrity of IBTDS.
13. Amendments
48 These rules may be amended from time to time by resolution of the Board and all such amendments shall be deemed incorporated into these rules with effect from the date on which such changes are notified to Scheme members.
49 If in the reasonable opinion of the Board, any proposed changes to these rules are significant, it shall consult with Scheme members to the extent and in the manner it deems appropriate. If any changes incorporated into these rules are in the reasonable opinion of any Scheme member material and unreasonable, such member may notify The Dispute Service of its intention to withdraw from IBTDS in accordance with the provisions of paragraph 11. In that event, the rules in force immediately prior to such amendment shall continue to apply to the relevant tenancies of such member.
* for further information about IBTDS please visit tds. or contact:
TDS Ltd
PO Box 541
Amersham
HP6 9ZR
email: xxxxxxxx@xxx.xx.xxx
Appendix 1 TERMS AND CONDITIONS OF INSURANCE
A.SHORTENED VERSION
This is a summary of the terms and conditions of the Insurance-based Tenancy Deposit Scheme (IBTDS). A full copy is available from members of the Scheme or The Dispute Service. Definitions used in the full IBTDS Terms and Conditions also apply to this shortened version unless otherwise stated. In the event of any inconsistency between this summary and the full terms and conditions of the Scheme, the full terms and conditions will apply.
PURPOSE
The scheme guarantees prompt repayment of deposits legitimately due at the end of the tenancy. It ensures speedy resolution of disputes over their return.
OUTLINE
Two options are available to parties who join the Scheme: Custodial, where the deposit is held by a third party appointed by the Government; and Insurance-based.
Under the Insured Option, the landlord or his or her agent will take and hold a deposit whilst entering into special version insurance arrangements which will cover repayment of the deposit at the end of the tenancy. If there is no dispute at the end of the tenancy, the landlord/agent will return the deposit in full or in part to the tenant as agreed. If there is a dispute between the landlord/agent and tenant the disputed deposit will be remitted to The Dispute Service. The dispute will be quickly resolved by the Independent Case Examiner (ICE) who will apportion and pay out the deposit in accordance with his adjudication.
COST
There is no charge to the tenant, either for being covered by the scheme or in referring a dispute to The Dispute Service. The Member Firm will pay a subscription to the Company to cover, inter alia, the costs of dispute resolution.
PARTICIPATION
The Member Firm will include reference to the IBTDS (in an approved form) in the tenancy agreement, which both parties who wish to participate should sign. Where the Member Firm is an agent, there will also be a reference in the Terms of Business with the landlord. The agreement will specify what the deposit covers, provision for the tenant to be given a record of his or her rent payments (on request) and information on the operation of the IBTDS.
The terms and conditions of IBTDS will apply to each tenancy covered by the Scheme as long as the Member Firm continues to pay a subscription and for six (?) months after they cease to do so. It will continue even if the landlord sells the relevant property.
Member Firms must must agree to comply with an approved code of practice and to be bound by the ICE’s decisions. Tenants may check whether their landlord/agent is a member of the scheme by contacting The Dispute Service (details below).
RETURN OF DEPOSIT
At the end of the tenancy, [provided that the correct notice of its termination has been given], and the Member Firm and tenant can agree the amount of the deposit to be refunded, it will be paid to the tenant within ten working days of the end of the tenancy. If it is not, the tenant can refer the matter to the ICE.
DISPUTES
Where there is a dispute over the return of the deposit, either party can notify the ICE at any time after termination of the tenancy has been given, but no later than 20 working days after the end of the tenancy, other than in exceptional circumstances at the discretion of the ICE. They should send a statement of their case [to the address set out below] along with other documentation as specified or requested. If either party cannot supply any of the documentation they should explain why and the ICE will seek to obtain it from the other party. Either may, in addition, supply any photographs, letters or receipts in support of their claim.
The ICE will adjudicate within 10 working days of receiving all the necessary paperwork from both parties.
DOCUMENTATION
Landlords/agents covered by the Scheme will have copies of the full IBTDS terms and conditions and other documentation. In case of difficulty they may also be available from Citizens Advice Bureaux, local authorities, other housing advisers, or the ICE (as below).
CONTACT DETAILS
TDS Limited, PO Box 541, Amersham, HP6 9ZR
Tel: 01494 728 070
Fax: 01494 431 123
email: xxxxxxxx@xxx.xx.xxx
website: tds.
B. LIMITS OF INSURER’S LIABILITY
1. LIMITS OF INDEMNITY
a) The limits of indemnity under the TDS insured option will be:
i) £500,000 for any one claim or series of claims in respect of deposits held by a regulated agent who is a member of ARLA, RICS or is a bonded member of NAEA
ii) £500,000 for any one claim or series of claims in respect of deposits held by a landlord who is a member of an association affiliated to NFRL or who joins the TDS insured option as an individual applicant.
(iii) £5 million in aggregate during the period of the pilot.
or such other sums as may be determined by the Insurer and notified to the landlords/agents from time to time.
2. PREMIUMS
(a) Landlords joining the scheme via a Regulated Agent will be exempt from the payment of an initial premium.
(b) Landlords joining via an NFRL Association with an approved Deposit Protection Scheme may be exempt from the payment of an initial premium depending on any agreement in force between the Association and the Insurer.
(c) Individual private landlords will pay a premium for the pilot period of £3per unit subject to a minimum of £25 per landlord applicant.
(d) All landlords will be liable to pay a post-award premium of £20 in respect of each dispute where the IHO makes an award in favour of the tenant.
NB: All premiums are inclusive of Insurance Premium Tax at the current rate of 5% and may be revised by the Insurer and notified to the landlord/agent/landlords’ association from time to time.
3. CONDITIONS
(a) Regulated Agents as defined above[?], who wish to introduce landlords to the scheme, should hold deposits on a stakeholder basis (see Terms and Conditions paragraph X.X for definition.)
(b) Any landlord joining the scheme through a landlord association or as an individual applicant who holds deposits of at least £20,000 in total at any one time, must hold those deposits in an approved client bank account and operate the account in accordance with the rules of the scheme (see Appendix 2.2).
4. EXCLUSIONS
(a) Landlords who are resident outside the UK and do not use a Regulated Agent are not eligible to join the scheme under the Insured Option.
(b) Landlords who hold deposits of at least £500,000 in total (or such other amount as may be specified by the Insurer from time to time) at any one time are not eligible to join the scheme under the Insured Option. They will however be able to join the Custodial Option.
APPENDIX 2 LANDLORDS/AGENTS – CLIENT BANK ACCOUNTS
A. RULES OF OPERATION
1. Any landlords or agents wishing to apply for membership of the IBTDS who hold tenants’ deposits of at least £20,000 in total at any time, and who wish to continue to do so under the IBTDS must open and maintain an approved client bank account (as defined below).
2. When opening an approved client bank account, or making appropriate amendments to an existing account, the landlord or agent must write to the bank in the form prescribed in Appendix XX to the IBTDS Terms and Conditions and must receive a letter of acknowledgement from the bank as stated on the form.
3. Any money collected from tenants as a deposit under a tenancy agreement that is covered by the landlord's/agent's membership of IBTDS must be held in the approved client bank account at all times during such tenancies.
4. The landlord/agent must maintain proper records showing the names of tenants and the amount of the deposit held to the credit of each tenant at all times.
5. Money may only be withdrawn from the client bank account if it is:
a) interest earned on the account
b) money paid into the account in error
c) money being transferred to another approved client bank account
d) money due to the landlord for reasons prescribed in the tenancy agreement and as agreed by the tenant at the end of the tenancy term
e) money due to the tenant at the end of the tenancy term as agreed by both parties or as directed by the Independent Housing ICE following adjudication of a dispute.
B. LETTERS FOR OPENING A CLIENT ACCOUNT
Letter A: Existing Account
Form of letter to be written to the bank by the landlord/agent in respect of an existing account to be used as the ‘Client Account’ under the Scheme Insured Option. The instructions to the bank should be given upon the normal business notepaper of the Landlord[/Agent] and should enclose a copy of the form of acknowledgement required of the Bank (see letter C below).
Dear Sir,
Client Account – Account No. ("the Account")
In connection with the above Account with your Branch *(I am)(we are) now required to inform you in accordance with the Terms and Conditions of The Tenancy Deposit Scheme ("the Rules") [(a copy of which is enclosed for you information)].
(i) the Account shall be redesignated ‘Clients Account’ and the title of the Account shall contain *(my name)(this company’s name)(the names of the partners in the firm)(the name of the partnership);
(ii) until further notice the Account will be used to hold tenants' deposits in compliance with the provisions of the Rules; and
(iii) your bank shall not be entitled to any charge, encumbrance, lien, right of set-off, compensation, retention or other claim whatsoever against money standing to the credit of the Account.
Please make the necessary amendments to the Account in accordance with these instructions and write to acknowledge your acceptance of them in the form attached.
Yours faithfully,
*delete as appropriate
Letter B: New Account
Form of letter to be written to the bank by the landlord/agent in respect of a new bank account to be opened as the ‘Client Account’ under the Scheme Insured Option. The instructions to the bank should be given upon the normal business notepaper of the Landlord/Agent and should enclose a copy of the form of acknowledgement required of the Bank (see letter C below).
Dear Sir,
Opening of New Account in Connection with the Tenancy Deposit Scheme
*(I am)(we are) sending you under cover of a separate letter the necessary documents for the opening of a bank account with your branch("the Account"). The Account is being opened for the purposes of holding tenants' deposits in accordance with the Terms and Conditions of the Tenancy Deposit Scheme ("the Rules") [(a copy of which is enclosed for your information)]. (I am)(we are) required to inform you that:
(i) the Account shall be designated ‘Client Account’ and the title of the account shall contain *(my name)(this company’s name)(the names of the partners in the firm)(the name of the partnership);
(ii) the Account is being opened to comply with the provisions of the Rules; and
(iii) your bank shall not be entitled to any charge, encumbrance, lien, right of set-off, compensation or retention or other claim whatsoever against money standing to the credit of the Account.
Please would you open a bank account in accordance with these instructions and write to acknowledge your acceptance of them in the form attached.
Yours faithfully,
*delete as appropriate
Letter C: Acknowledgement
The bank should be asked to respond to letters ‘A’ and ‘B’ on the following terms:
Dear Sir(s),
[Client Account – Account No.] [Opening of New Account]
We acknowledge receipt of your letter of (date) in connection with [your existing Account Number (/the opening of a new account] ("the Account"). In accordance with your instructions the Account has been designated ‘Client Account’ and contains, in the title of the account, *(your name)(your company’s name)(the names of the partners in the firm)(the name of the partnership).
We acknowledge that the bank is not entitled to any charge, encumbrance, lien, right of set-off, compensation, retention or other claim whatsoever against money standing to the credit of the Account.
Yours faithfully,
*delete as appropriate
Appendix 3 DOCUMENTS AND FORMS AVAILABLE FROM THE DISPUTE SERVICE
Documents
|IBTDS A |Rules of Membership for Member firms |
|IBTDS B |Management and administration of the Insurance-based Tenancy Deposit Scheme |
|IBTDS C |The obligations of Professional Bodies |
|IBTDS D |Operational procedures and advice for Member Firms |
|IBTDS E |Consumer Leaflet “What is the Insurance-based Tenancy Deposit Scheme?” |
|IBTDS F |Procedure for complaining about the way the ICE handled your case |
|IBTDS G |Clauses to be included in tenancy agreements and terms of business |
Forms
|IBTDS 1 |Application for a regulated member firm to join IBTDS |
|IBTDS 2 |Notification/Referral of a deposit dispute |
|IBTDS 3 |Report of adjudication |
|IBTDS 4 |Consent to submit to adjudication disputes on tenancies which started before the member firm|
| |joined IBTDS |
|IBTDS 5 |Notification of an office opening/closure |
|IBTDS 6 |Response to dispute |
They may also be downloaded from the website
TDS Limited, PO Box 541, Amersham, HP6 9ZR
Tel: 01494 728 070
Fax: 01494 431 123
email: xxxxxxxx@xxx.xx.xxx
website: tds.
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COMPLAINTS PROCEDURE
DEALING WITH DISPUTES
This procedure can be used by tenants, landlords and agents.
The Dispute Service is committed to providing a good-quality service for dealing with complaints. We hope you are satisfied with the service we provide. However, as in any other organisation, things can go wrong. Either as the tenant, the landlord or the agent, you may feel that we did not handle the case as we should have done.
Can I complain against the Independent Case Examiner (ICE)?
YES, if you want to complain about how the case was handled by the staff of The Dispute Service.
NO, if you want the ICE to change a determination with which you don’t agree.
How do I complain?
If you think that the ICE's staff handled the complaint badly - by, for example, delaying it unreasonably, being rude to you or not keeping you properly informed - then please follow this formal procedure. It is in two stages. If you are not satisfied at the first stage, you can take your complaint to the next.
Please ask us if you need help with any stage of this procedure
Stage 1
If you are unhappy with the way the Scheme handled the complaint, it will be easier for us to handle if you write to or email the Deputy ICE stating your reasons. You can ask someone to help you put your case in writing if you wish. However, if that is difficult for you, please phone us. Please quote in your letter the complaint reference number you were given when the complaint was first made to us. The Deputy ICE will write to you within 5 working days to tell you that your complaint has been received. In his absence, another senior member of staff will write to you.
Your complaint will then be considered by the Deputy ICE. S/he will first look at the nature of your complaint. If he considers that you want to appeal against a determination of the ICE, he will reject your complaint. If the Deputy ICE considers that you are complaining about administrative errors or failures, he will investigate how
the case was handled. If the case had been dealt with by the Deputy ICE her/himself, this investigation will be undertaken by the ICE. You will be given a detailed response within 28 days of the receipt of your complaint.
Stage 2
If you are not happy with the response you received at Stage 1, please write to the Chair of the Board explaining why. The Board of The Dispute Service Limited plays no part in the handling of cases by the ICE or his staff. It has ten members - three reflecting the interests of tenants, two representing agents, three representing the professional bodies regulating agents, and two independent members representing the wider public interest. The Chair is always one of the independent members.
The Chair will write to you within 5 working days to tell you that your complaint has been received. In his absence, the Deputy ICE will acknowledge your letter.
The Chair will consider your complaint. He will only take it further if:
▪ it is clear that you are not trying to overturn a determination of the ICE, and
▪ you can provide new information, or fresh reasons to show that the detailed response given to you as a result of the Deputy ICE’s investigation (Stage 1) is wrong. It is not enough to state that you are unhappy with it or to restate the arguments you previously put forward.
If he is satisfied the Chair will arrange a meeting with two other Board members to consider your complaint. They will look at all the papers and review the decisions taken at the previous stage. The Chair will invite you to attend the meeting. Complainants may bring someone with them to help them present their case if they wish.
You will be given a final response within 28 days of that meeting.
When should I complain?
Please note that you cannot start this formal procedure until our consideration of your case is completed. But if you believe your complaint is being mishandled, please do not wait until then — tell us straight away.
You should make your complaint under Stage 1 of this procedure as soon as possible after your case is closed, and certainly within three months. Having done so, and if you are not happy with the response you receive at Stage 1, you should write to the Chair of the Board as soon as possible and certainly within three months. If your complaint is delayed beyond these time limits it may be rejected as being too late.
What will happen if my complaint is proved?
If the Deputy ICE or the directors conclude we mishandled your case, they will recommend such action as they consider is necessary to put matters right and review the Scheme’s procedures to ensure that it does not happen again.
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COMPLAINTS PROCEDURE
HANDLING DEPOSITS
This procedure can be used by tenants, landlords and agents.
The Scheme is committed to providing a good-quality service for protecting tenancy deposits and ensuring they are paid out promptly. We hope you are satisfied with the service we provide. However, as in any other organisation, things can go wrong. Either as the tenant, the landlord or the agent, you may feel that we did not handle your business as we should have done.
Can I complain against the Scheme Administrator?
YES, if you want to complain about:
▪ how the deposit was handled by the Scheme Administrator or her/his staff by, for example, delaying the pay-out unreasonably, being rude to you or not keeping you properly informed
▪ refusal of your application to join the insurance-based scheme
▪ expulsion as a landlord or agent from the insurance-based scheme
▪ your subscription was miscalculated
NO, if you want the Scheme Administrator to change the pay-out of a deposit made following the resolution of a dispute.
How do I complain?
If you think that the Scheme Administrator or her/his staff handled your business badly, please follow this formal procedure. It is in two stages. If you are not satisfied at the first stage, you can take your complaint to the next.
Please ask us if you need help with any stage of this procedure
Stage 1
It will be easier for us to handle if you write to or email the Company Secretary stating the reasons for your complaint. You can ask someone to help you put your case in writing if you wish. However, if that is difficult for you, please phone us. Please quote in your letter the deposit reference or membership number you were given when you were registered with the Scheme. The Company Secretary will write to you within 5 working days to tell you that your complaint has been received. In her/his absence, another senior member of staff will write to you.
Your complaint will then be considered by a Deputy Independent Case Examiner (DICE). S/he will first look at the nature of your complaint. If s/he considers that you want to appeal against the pay-out of a deposit made following the resolution of a dispute, s/he will reject your complaint. If the DICE considers that you are complaining about administrative errors or failures, s/he will investigate how the case was handled. You will be given a detailed response within 28 days of the receipt of your complaint.
Stage 2
If you are not happy with the response you received at Stage 1, please write and explain why to the Independent Case Examiner (ICE). He deals with disputes concerning the allocation of tenancy deposits and plays no part in the handling of deposits themselves or the detailed consideration of applications for membership.
The ICE will write to you within 5 working days to tell you that your complaint has been received. In his absence, a DICE will acknowledge your letter.
The ICE will consider your complaint. He will only take it further if:
▪ it is clear that you are not trying to appeal against the pay-out of a deposit made following the resolution of a dispute, and
▪ you can provide new information, or fresh reasons to show that the detailed response given to you as a result of the investigation at Stage 1 is wrong. It is not enough to state that you are unhappy with it or to restate the arguments you previously put forward.
If he is satisfied, the ICE will consider your case and provide you with a written reply. If he considers that would be justified he may arrange a meeting with two Board members of The Dispute Service Limited to consider your complaint. They will not, in their day-to-day work, be involved in the letting of property in the private rented sector. These three people will look at all the papers and review the decisions taken at the previous stage. The ICE will invite you to attend the meeting. Complainants may bring someone with them to help them present their case if they wish.
You will be given a final response within 28 days of that meeting.
When should I complain?
If your complaint is about the handling of your deposit, please note that you cannot start this formal procedure whilst we are still holding it. But if you believe your deposit is being mishandled, please do not wait to make a formal complaint – tell us straight away and we will try to fix anything that has gone wrong.
If your complaint is about your membership of the scheme, please not that you cannot start this formal procedure until the Scheme Administrator has given you his/her decision about it in writing.
You should make your complaint under Stage 1 of this procedure as soon as possible after your case is closed, and certainly within three months. Having done so, and if you are not happy with the response you receive at Stage 1, you should write to the ICE as soon as possible and certainly within three months. If your complaint is delayed beyond these time limits it may be rejected as being too late.
What will happen if my complaint is proved?
If DICE or the ICE conclude that we mishandled your deposit, they will recommend such action as they consider is necessary to put matters right and review the Scheme’s procedures to ensure that it does not happen again.
If DICE or the ICE conclude that we mishandled your membership, they will recommend your re-instatement to the Scheme or recalculate your subscription as appropriate. The Scheme Administrator will comply with their recommendation.
If DICE or the ICE conclude that the mishandling they have found caused you financial loss, they may award you compensation up to the amount they consider you to be out-of-pocket.
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| |[pic] |
| | |
|THE DISPUTE SERVICE LIMITED | |
JOB DESCRIPTION
|Job title: |Adjudicator |
| | |
|Accountable to: |Deputy Independent Case Examiner (DICE) |
| | |
|Accountable for: |Delivery of adjudications in disputes arising under: |
| | |
| |Tenancy Deposit Scheme for Regulated Agents |
| |Association of Residential Letting Agents complaints scheme |
| |National Association of Estate Agents complaints scheme |
| |in specified time limits |
| | |
| |Adjudications on othe complaints/disputes as agreed |
| | |
|Liaison with: |Administrator |
| |Company Secretary |
| |Parties to disputes |
| | |
|Job summary: |Consideration and adjudication of deposit and other disputes/complaints. |
No job description can cover every issue that might arise and the post holder is expected to carry out other duties from time to time, broadly consistent with those listed below.
PURPOSE
1. To adjudicate disputes on the instructions of the DICE.
2. To do so in the time limits specified.
3. To advise the DICE at her/his request, her/his staff and other adjudicators on matters pertaining to disputes with which the Company is dealing.
PRINCIPAL RESPONSIBILITIES
Adjudication of disputes/complaints
4. Consider the documentation provided
5. Discuss any unusual issues arising with the DICE
6. Seek additional information from the parties where necessary
7. Submit an adjudication in the required format in the time limits specified.
General
8. Attend training events as required.
9. Provide advice as requested (see paragraph 3 above)
10. Implement TDS Limited’s Equal Opportunities Policy, ensuring that all policies and procedures are in accordance with good equal opportunities practice.
PERSON SPECIFICATION
Essential characteristics
Job Knowledge
1. Must be able to demonstrate practical knowledge and experience of resolving disputes
2. Common sense and good judgement
3. Ability to work unsupervised and to time
4. Experience of Microsoft Word
Communication
5. Must be able to present basic information clearly and concisely, both orally and in writing.
6. Must possess good interpersonal skills, communicating effectively in order to gain information from, and inform, the parties to a dispute.
Equal Opportunities
Must be able to demonstrate a commitment to equal opportunities in relation to the work of TDS Ltd.
11. General
1. Must be able to identify with the aims and objectives of TDS Ltd
2. Must be willing and able to work remotely
3. A flexible attitude to work is essential.
Desirable characteristics
12. Experience of the private rented sector
13. Interest in housing issues
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IBTDS 1 INSURANCE-BASED TENANCY DEPOSIT SCHEME
APPLICATION FOR
MEMBERSHIP
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’ BELOW,
TYPE IN RESPONSE AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
I apply for membership of the IBTDS on behalf of the LETTING AGENT below
COMPANY/FIRM
HEAD OFFICE ADDRESS (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
CONTACT ADDRESS IF NOT AT HEAD OFFICE (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
PHONE FAX EMAIL
The company has a total of
branch offices in England and Wales primarily concerned with letting. (Please attach list).
The company arranges lettings p.a.
If a limited company, please give registered number
OR
I apply for membership of the IBTDS as/on behalf of the LANDLORD below
NAME
NAME OF BUSINESS
ADDRESS (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
PHONE FAX EMAIL
If a limited company, please give registered number
I own or manage a total of
Residential rented properties in England and Wales.
I/We are members of: (please tick as applicable)
ARLA Law Society NALS NAEA
NFRL NLA RLA RICS
Accreditation scheme (please specify)
Other (please specify)
I attach copies of membership certificates
I/We have the following insurance (please tick as applicable)
Name of Insurer
Client Money Protection Amount £
Professional Indemnity Amount £
I attach copies of insurance certificates
I/We hold tenancy deposits and other client money in a ring-fenced client account
(please tick as applicable)
YES NO
NAME OF BANK
NAME OF BRANCH SORT CODE
ADDRESS (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
NAME OF ACCOUNT
ACCOUNT NUMBER
I attach an audit certificate/ letter from my bank stating it is a properly designated clients’ account over which they hold no charge
I attach a copy of my/our latest audited accounts
I/we currently hold £ in tenancy deposits
I/we usually hold £ in tenancy deposits
Please provide the following bank details for payment to you following an adjudication:
NAME OF BRANCH SORT CODE
ADDRESS (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
NAME OF ACCOUNT
ACCOUNT NUMBER
Have you ever been refused a licence to operate an HMO under the
mandatory requirements of the Housing Act 2004? YES NO
Have you ever been a member of another Tenancy Deposit Scheme YES NO
If you have answered YES to either of the above questions, please provide information on a separate sheet:
I/We have a written complaints procedure (please tick as applicable) YES NO
I attach a cop of my/our complaints procedure
I/We will submit tenancy data (please tick as applicable) electronically on paper
I agree on behalf of myself the company/ firm and my/ our clients:
1. I/We will be bound by the rules of the Insurance-based Tenancy Deposit Scheme.
2. We will inform the Scheme Administrator promptly if I/we open/close and office/change address (form IBTDS 7).
3. We will inform the Scheme Administrator promptly if there are any changes of ownership or tenants during the course of the tenancy (form IBTDS 8).
4. We will co-operate with the Independent Case Examiner in his investigation and comply with his determination.
5. We give the Scheme Administrator and the Independent Case Examiner permission to copy this form, and other
information we may supply concerning our membership of IBTDS and deposit disputes in which we are involved, to:
5.1 other parties and organisations the Independent Case Examiner considers may assist in the resolution of disputes.
5.2 and for use in confidential survey and research purposes.
We accept that the Scheme Administrator can carry our an audit at my/our expense if they reasonably consider that it is necessary to verify the accuracy of my/our returns for the purpose of calculating my/our subscription.
TITLE (Mr, Mrs, Ms, Dr) NAME POSITION
SIGNED
DAY MONTH YEAR
For the Scheme Administrator’s use only Membership Ref No.
Decision on application for membership of IBTDS Accepted Rejected
DAY MONTH YEAR
IBTDS 2 INSURANCE-BASED TENANCY DEPOSIT SCHEME
NOTIFICATION OF
DEPOSIT DISPUTE
This form and the accompanying documentation will be sent to the other party(ies) for
their response. It will also be part of the report. If you do not want your contact details
revealed, please leave that section blank and write them on a separate piece of paper.
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’, TYPE IN RESPONSE
AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
Where applicable, please click on boxes to ‘check’ them.
ADDRESS OF PROPERTY (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
How much is the deposit? £
How much is the dispute? £
What is this for?
cleaning £
damage to property or contents £
redecoration £
gardening £
rent arrears £
other (please specify) £
Total £
How much of the balance has been paid?
to the landlord £
to the tenant £
Retained by the agent £
There is no reason for the landlord or agent to retain that part of the deposit about which there is NO dispute.
Failure to release it promptly could lead to a further dispute or the automatic award of the disputed deposit.
The Tenancy ended on:
DAY MONTH YEAR
I/we, am/are the:
Tenant(s) Landlord Agent of the property
My/our dispute is with the:
Tenant(s) Landlord Agent of the property
Please put the details of the LANDLORD below:
TITLE (Mr, Mrs, Ms, Dr) NAME
Correspondence address (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
If a company CONTACT NAME POSITION
PHONE FAX
EMAIL
Please put the details of the TENANT below:
TITLE (Mr, Mrs, Ms, Dr) NAME
Correspondence address (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
If a company CONTACT NAME POSITION
PHONE FAX
EMAIL
These questions should be completed by the TENANTS ONLY:
How many in your household were:
Adults (18 or over) Children Pets
Do you all agree that there is a dispute over the deposit YES NO
Please put the details of the AGENT below (if there is one):
TITLE (Mr, Mrs, Ms, Dr) NAME POSITION
Name of company
Correspondence address (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
PHONE FAX
EMAIL
Who holds the deposit?
Landlord? Agent Unique identifier (if known)
The reasons for the dispute are (please write a summary of the dispute, rather than just referring us to the
attached papers. If you do, the adjudication may be delayed. Please continue on extra paper if necessary)
What steps have been taken to resolve this matter so far?
CHECKLIST (please check boxes as appropriate to the documents you are sending)
If you have the following documents please send them. If possible send copies rather than the originals.
The tenancy agreement
Brief description of the property e.g. house/flat, number of bedrooms, if there is a garden or garage, etc
For Landlords/agents: Terms of business/ management agreement
For agents: Photographs of the property and its marketing details
Check-in report, together with a signed inventory and a signed schedule of condition
Vacating instructions
Check-out report, together with a signed inventory and a signed schedule of condition
photographs if available
A statement of the rent account. If it is not fully paid up, please set out the reasons why below
Decision concerning the payment of Housing Benefit, if appropriate
Copies of relevant correspondence, especially concerning the proposed settlement of the dispute
If you cannot send all the documents listed above please explain:
I confirm that:
I/we would like the Independent Case Examiner to resolve this dispute and I/we agree to co-operate
with the investigation and comply with the recommendations.
I/we agree that the decision of the Independent Case Examiner shall be final and binding.
I/we consent to the Independent Case Examiner copying this form and any supporting documents to the
other party(ies) in the dispute, to the appointed adjudicator and to anyone else involved in resolving it
Tenants only: I/we agree that TDS Ltd shall have the deposit until the ICE has made his adjudication
and for a reasonable time thereafter to allow for its payment in accordance with the determination.
Agents only (when holding the deposit): I/we enclose the full deposit less the amount agreed by the parties
and paid out to them.
Landlords only: only (when holding the deposit): I/we enclose the full deposit less the amount agreed with
the tenant(s) and paid to her/him/them.
Signed: Note: if the dispute is being submitted by the tenants, they do not all have to sign this form.
NAME(S) OF LANDLORD/AGENT/TENANT (please specify) SIGNATURE UNIQUE IDENTIFIER (if known) DATE
IBTDS 2 ANNEX IBTDS 2 ANNEX 1 INSURANCE-BASED TENANCY DEPOSIT SCHEME
PAYMENT OF DEPOSIT TO TENANTS
FOLLOWING ADJUDICATION
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’ BELOW,
TYPE IN RESPONSE AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
EACH TENANT SHOULD COMPLETE THEIR OWN COPY OF THIS FORM telling The Dispute Service Ltd how they want their share of the disputed deposit to be paid to them if the Independent Case Examiner makes an award in their favour. Failure to do so will delay payment.
The tenancy
ADDRESS OF PROPERTY (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
TENANCY NUMBER
YOUR NAME) MOBILE PHONE NUMBER EMAIL ADDRESS UNIQUE IDENTIFIER (if known)
NAMES OF OTHER TENANTS (if applicable)
I would like to be paid by (please complete only one)
Bank transfer to:
BANK BRANCH ACCOUNT SORT CODE
OR
Cheque to be sent to me at the following address:
ADDRESS (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
IBTDS 2 ANNEX 2 INSURANCE-BASED TENANCY DEPOSIT SCHEME
PAYMENT OF DEPOSIT TO LANDLORD
FOLLOWING ADJUDICATION
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’ BELOW,
TYPE IN RESPONSE AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
The LANDLORD should complete this form telling The Dispute Service Ltd how they want their share of the disputed deposit to be paid to them if the Independent Case Examiner makes an award in their favour. Failure to do so will delay payment.
The tenancy
ADDRESS OF PROPERTY (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
TENANCY NUMBER
YOUR NAME) MOBILE PHONE NUMBER EMAIL ADDRESS UNIQUE IDENTIFIER
I would like to be paid by (please complete only one)
Bank transfer to:
BANK BRANCH ACCOUNT SORT CODE
OR
Cheque to be sent to me at the following address:
ADDRESS (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
IBTDS 3 INSURANCE-BASED TENANCY DEPOSIT SCHEME
REPORT OF
ADJUDICATION
Case Number IBTDS
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’ BELOW, TYPE IN RESPONSE
AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
Where applicable, please click on boxes to ‘check’ them.
AGENT
LANDLORD
TENANT(s)
ADDRESS OF PROPERTY (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
From the deposit: £ A
The parties have AGREED about: £ B
of which the AGENT will receive/keep £ C
of which the LANDLORD will receive has received £ D
of which the TENANT will receive has received £ E
Leaving in dispute: £ F
From the sum in dispute/sought I award
the AGENT £ G
the LANDLORD £ H
PLUS the amount agreed but not yet paid to the LANDLORD £ D
giving the LANDLORD a total of: £ H+D
the TENANT £ J
PLUS the amount agreed but not yet paid to the TENANT £ E
giving the TENANT a total of: £ J+E
This adjudication should be read with the following:
ω Notification of Dispute (IBTDS 2)
ω Response to the Dispute (IBTDS 6)
ω Other documents you have seen or provided
Documentary and other evidence provided by the tenant/landlord/agent:
Was the tenancy agreement provided? YES NO N/A
Was the management agreement/terms of business provided? YES NO N/A
Were you given a copy of:
References YES NO N/A
Check-in inventory and schedule of condition YES NO N/A
Statement of the rent account YES NO N/A
Reports of routine property visits YES NO N/A
Check-out inventory and schedule of condition YES NO N/A
Letter from the Housing Benefit Department stating when payment YES NO N/A
of housing benefit will stop, or that it has stopped (where appropriate)
Copies of correspondence, including emails YES NO N/A
Photographs/video YES NO N/A
Receipts/invoices/estimates for work carried out YES NO N/A
Other (please specify) YES NO N/A
Notes
1)
2)
3)
MY FINDING OF FACTS
Relevant clause(s) from the management agreement/ terms of business
Relevant clause(s) from the tenancy agreement
Relevant clause(s) from the code of practice
ISSUE 1 Matter in dispute
Evidence
Comment
ISSUE 2 Matter in dispute
Evidence
Comment
ISSUE 3 Matter in dispute
Evidence
Comment
ISSUE 4 Matter in dispute
Evidence
Comment
ISSUE 5 Matter in dispute
Evidence
Comment
ISSUE 6 Matter in dispute
Evidence
Comment
MY COMMENTS ON PRACTICE IN THIS CASE
MY CONCLUSIONS AND REASONS FOR MY RECOMMENDATIONS
(please check box as appropriate)
I UPHOLD this complaint
I UPHOLD this complaint IN PART
I DO NOT UPHOLD this complaint
RECOMMENDED AWARD
I recommend that the AMOUNT IN DISPUTE of: £
should be divided amongst the parties as follows:
TENANT LANDLORD AGENT
ISSUE 1 £ £ £
ISSUE 2 £ £ £
ISSUE 3 £ £ £
ISSUE 4 £ £ £
ISSUE 5 £ £ £
ISSUE 6 £ £ £
TOTAL £ £ £
I carried out the adjudication as commissioned:
TITLE (Mr, Mrs, Ms, Dr) NAME
DATE
TO BE COMPLETED BY THE INDEPENDENT CASE EXAMINER
(please check box as appropriate)
I ACCEPT the recommendations of my adjudicator and have nothing to add
I ACCEPT the recommendations of my adjudicator but wish to add
Lawrence Greenberg
Independent Case Examiner
DATE
Case Number TDS
CONFIDENTIAL - FOR OFFICE USE ONLY
I had the following problems in resolving this dispute:
Other comments I didn’t want to make in the report:
IBTDS 4 INSURANCE-BASED TENANCY DEPOSIT SCHEME
CONSENT TO SUBMIT TO ADJUDICATION,
DISPUTES ON TENANCIES WHICH FALL OUTSIDE
THE PROVISIONS OF THE HOUSING ACT 2004
Case Number IBTDS
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’ BELOW, TYPE IN RESPONSE
AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
There is a dispute over the return of the deposit concerning the tenancy at:
ADDRESS OF PROPERTY (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
We would like the Independent Case Examiner to adjudicate it in accordance with the rules of the Tenancy Deposit Scheme that currently apply. We will co-operate with the investigation and adjudication, and comply with the determination.
The tenancy began on:
DAY MONTH YEAR
We enclose:
The FULL deposit, less the amount agreed by the parties and paid out to them £
Notification of Dispute Form (IBTDS 2) and supporting documents £
£250.00 (inc VAT) OR 10% of the FULL deposit, whichever is the larger £
Please make cheques payable to: TDS Ltd
TENANT signature(s)
SIGNED NAME & TITLE (Mr, Mrs, Ms, Dr etc) DATE
SIGNED NAME & TITLE (Mr, Mrs, Ms, Dr etc) DATE
SIGNED NAME & TITLE (Mr, Mrs, Ms, Dr etc) DATE
LANDLORD signature
SIGNED NAME & TITLE (Mr, Mrs, Ms, Dr etc) DATE
AGENT signature
SIGNED NAME & TITLE (Mr, Mrs, Ms, Dr etc) DATE
IBTDS 5 INSURANCE-BASED TENANCY DEPOSIT SCHEME
REGISTRATION OF
TENANCY
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’ BELOW,
TYPE IN RESPONSE AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
I would like to register the following tenancy on behalf of the company below:
SCHEME MEMBER MEMBERSHIP NUMBER
PHONE FAX EMAIL
ADDRESS OF PROPERTY (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
NAME(S) OF TENANT(S) MOBILE PHONE NUMBER EMAIL ADDRESS UNIQUE IDENTIFIER (if known)
Please supply the following information about the tenancy:
When did /will the tenancy start? DAY MONTH YEAR
When is the tenancy due to end? DAY MONTH YEAR
How much is the deposit? £
When was it/ will it be paid? DAY MONTH YEAR
I/we will inform the Scheme Administrator
1. If I/we dispose of the property/put it in the hands of a different firm of letting agents (form IBTDS 8)
2. The tenants change during the course of the tenancy (form IBTDS 8)
3. When the tenancy comes to an end (form IBTDS 9)
TITLE (Mr, Mrs, Ms, Dr) NAME POSITION
SIGNED
DAY MONTH YEAR
For TDS Ltd TENANCY NUMBER
IBTDS 6 INSURANCE-BASED TENANCY DEPOSIT SCHEME
RESPONSE TO DISPUTE
Case Number IBTDS
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’, TYPE IN RESPONSE
AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
ADDRESS OF PROPERTY (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
AGENT
LANDLORD
TENANT(s)
Please find attached papers concerning a dispute over the deposit for this property.
Do you want to put your side of the story? Please write to us or email us within 5 working days of the date of this form.
If you do want to put your side of the story, please let us have the following within 10 working days of the date of this form:
• Any documents you want us to see, including letters, emails, photographs, invoices etc.
• A summary of your side of the story, written in the space below.
(Please don’t just refer us to the documents you are sending. If you do, the adjudication may be delayed).
• Complete the rest of the form (overleaf), and sign it.
This is a summary of my side of the dispute over deposit on this property
Please continue overleaf or on another sheet of paper if necessary
Summary continued if required:
I confirm that:
I/we would like the Independent Case Examiner to resolve this dispute and I/we agree to co-operate
with the investigation and comply with the recommendations.
I/we agree that the decision of the Independent Case Examiner shall be final and binding.
I/we consent to the Independent Case Examiner copying this form and any supporting documents to the
other party(ies) in the dispute, to the appointed adjudicator and to anyone else involved in resolving it
Tenants only: I/we agree that TDS Ltd shall have the deposit until the ICE has made his adjudication
and for a reasonable time thereafter to allow for its payment in accordance with the determination.
Agents only (when holding the deposit): I/we enclose the full deposit less the amount agreed by the
parties and paid out to them.
Landlords only: only (when holding the deposit): I/we enclose the full deposit less the amount agreed
with the tenant and paid to them.
If the Independent Case Examiner finds in my favour, please send the cheque to:
TITLE (Mr, Mrs, Ms, Dr) NAME
Correspondence address (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
Signed: Note: if the dispute is being submitted by the tenants, they do not all have to sign this form.
NAME(S) OF LANDLORD/AGENT/TENANT (please specify) SIGNATURE UNIQUE IDENTIFIER (if known) DATE
IBTDS 6 ANNEX 1 INSURANCE-BASED TENANCY DEPOSIT SCHEME
PAYMENT OF DEPOSIT TO TENANTS
FOLLOWING ADJUDICATION
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’ BELOW,
TYPE IN RESPONSE AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
EACH TENANT SHOULD COMPLETE THEIR OWN COPY OF THIS FORM telling The Dispute Service Ltd how they want their share of the disputed deposit to be paid to them if the Independent Case Examiner makes an award in their favour. Failure to do so will delay payment.
The tenancy
ADDRESS OF PROPERTY (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
TENANCY NUMBER
YOUR NAME) MOBILE PHONE NUMBER EMAIL ADDRESS UNIQUE IDENTIFIER (if known)
NAMES OF OTHER TENANTS (if applicable)
I would like to be paid by (please complete only one)
Bank transfer to:
BANK BRANCH ACCOUNT SORT CODE
OR
Cheque to be sent to me at the following address:
ADDRESS (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
IBTDS 6 ANNEX 2 INSURANCE-BASED TENANCY DEPOSIT SCHEME
PAYMENT OF DEPOSIT TO LANDLORD
FOLLOWING ADJUDICATION
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’ BELOW,
TYPE IN RESPONSE AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
Each tenant should complete this form telling The Dispute Service Ltd how they want their share of the disputed deposit to be paid to them if the Independent Case Examiner makes an award in their favour. Failure to do so will delay payment.
The tenancy
ADDRESS OF PROPERTY (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
TENANCY NUMBER
YOUR NAME) MOBILE PHONE NUMBER EMAIL ADDRESS UNIQUE IDENTIFIER
I would like to be paid by (please complete only one)
Bank transfer to:
BANK BRANCH ACCOUNT SORT CODE
OR
Cheque to be sent to me at the following address:
ADDRESS (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
IBTDS 7 INSURANCE-BASED TENANCY DEPOSIT SCHEME
OFFICE OPENING OR
CLOSURE
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’ BELOW,
TYPE IN RESPONSE AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
NAME OF INDIVIDUAL/FIRM NAME OF CONTACT
ADDRESS (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
PHONE FAX EMAIL
IBTDS membership number
On behalf of the above company I wish to inform you that we are opening/closing the
following offices: (delete this section if not applicable)
PLEASE NOTE: Unless this form is completed and there is a dispute over the deposit, the Independent Case Examiner
will omly make an award to the tenants named on the tenancy agreement.
NAME if relevant ADDRES STATUS (tick as applicable)
OPEN CLOSED
OPEN CLOSED
OPEN CLOSED
OPEN CLOSED
OPEN CLOSED
OPEN CLOSED
OPEN CLOSED
OPEN CLOSED
OPEN CLOSED
OPEN CLOSED
OPEN CLOSED
TITLE (Mr, Mrs, Ms, Dr) NAME POSITION
SIGNED
DAY MONTH YEAR
IBTDS 8 INSURANCE-BASED TENANCY DEPOSIT SCHEME
CHANGES DURING THE
COURSE OF THE TENANCY
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’ BELOW,
TYPE IN RESPONSE AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
I would like to register the following changes that have happened during this tenancy:
TENANCY NUMBER SCHEME MEMBER MEMBERSHIP NUMBER
PHONE FAX EMAIL
ADDRESS OF PROPERTY (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
I/we have sold the property/transferred the management of the tenancy to:
NAME OF INDIVIDUAL/FIRM NAME OF CONTACT
ADDRESS (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
Are they members of this scheme? (please tick one box only) YES NO DON”TKNOW
What is their unique identifier? (if known)
I/we no longer have all the original tenants. The tenants now are: (delete this section if not applicable)
PLEASE NOTE: Unless this form is completed and there is a dispute over the deposit, the Independent Case Examiner will only make an award to the tenants named on the tenancy agreement.
NAME(S) OF TENANT(S) MOBILE PHONE NUMBER EMAIL ADDRESS UNIQUE IDENTIFIER (if known)
I/we have issued a new tenancy tenancy agreement? (please tick one box only) YES NO
I/we have carried out a fresh inventory? (please tick one box only) YES NO
TITLE (Mr, Mrs, Ms, Dr) NAME POSITION
SIGNED
DAY MONTH YEAR
IBTDS 9 INSURANCE-BASED TENANCY DEPOSIT SCHEME
END OF TENANCY
THIS FORM IS FOR COMPLETION ON COMPUTER. CLICK ON FIRST ‘FIELD’ BELOW,
TYPE IN RESPONSE AND THEN TAB FROM FIELD TO FIELD, COMPLETING THE FORM AS APPLICABLE.
I would like to register the end of following tenancy on behalf of the company below:
TENANCY NUMBER
SCHEME MEMBER
MEMBERSHIP NUMBER
PHONE FAX EMAIL
ADDRESS OF PROPERTY (PLEASE TYPE ADDRESS ON ONE LINE)
POSTCODE
The tenants at the end of the tenancy are/will be:
NAME(S) OF TENANT(S) MOBILE PHONE NUMBER EMAIL ADDRESS UNIQUE IDENTIFIER (if known)
Please supply the following information about the tenancy:
When did the tenancy end/is it due to end? DAY MONTH YEAR
How much is the deposit? £
Is there a dispute about the deposit?(please tick one box only) YES NO
If NO, when was it/ will it be repaid? DAY MONTH YEAR
TITLE (Mr, Mrs, Ms, Dr) NAME POSITION
SIGNED
DAY MONTH YEAR
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Scheme Structure and processes
Redacted
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THE DISPUTE SERVICE
INSURANCE-BASEDTENANCY DEPOSIT SCHEME
CLAUSES FOR INCLUSION IN TENANCY AGREEMENTS AND TERMS OF BUSINESS
A. Tenancy agreements where the Member Firm is an agent
The following clauses must be inserted in the relevant section of a Tenancy Agreement for a tenancy under the IBTDS: -
-----------------------------------------------------------------------------------------------------------------------------
Alternative Dispute Resolution for deposit disputes
I. This tenancy is included in the IBTDS. The landlord and/or tenant must endeavour to notify the Member Firm that there is a dispute over the deposit, as soon as possible and within 20 working days* of the lawful end of the tenancy and the vacation of the property (it is strongly recommended that such notification be given in writing). The Independent Case Examiner (ICE) reserves the right to decline to consider disputes which have arisen outside this timescale.
II. If, after 10 working days* following notification of a dispute and reasonable attempts in that time to resolve any differences of opinion, there remains an unresolved dispute between the landlord and the tenant over the allocation of the deposit it may with the written consent of both parties (subject to III below) be submitted to the ICE of The Dispute Service Ltd for expert, impartial, third party adjudication which will be final and binding on both parties or if consent is not given be submitted to the Small Claims Track of the County Court for resolution. All parties agree to co-operate with the investigation of the ICE if applicable.
III. Where the dispute concerns a tenancy which falls outside the provisions of the Housing Act 2004 the ICE may at his discretion, and with the written agreement of both parties, accept the dispute for adjudication. There will be an administration fee to be determined by the Board of The Dispute Service Ltd from time-to-time and published on its website.
IV. The statutory rights of either landlord or tenant to take legal action against the other if the parties do not consent to the ICE resolving the dispute remain unaffected.
V. The ICE is the Scheme Administrator for the IBTDS and promises to reimburse any Tenant who has agreed to a tenancy being administered by IBTDS through clauses in the Tenancy agreement if an award is made in favour of the Tenant and the Agent who is holding the Deposit does not pay the Deposit or any disputed sum to the Scheme Administrator within 10 days of written request.
* These time scales can be changed by agreement with the tenant in individual cases.
It is strongly recommended to an Agent that they ensure, as a matter of good practice and to help avoid difficulties subsequently, that the clauses within the tenancy agreement relating to the tenancy deposit include some reference to the following:
How the deposit is to be held by the Agent e.g. as “stakeholder [between the parties]” or “as agent for the landlord”. (It is recommended good practice that a tenancy deposit is held as Stakeholder).
Whether or not interest is to be paid on the deposit and/or who is entitled to it. (In the absence of any statement to the contrary the tenant is entitled to any interest which accrues on a deposit)
How soon after the end of the tenancy the deposit will be returned to the tenant if there is no dispute e.g. generally within 10 working days, but the timescale can be set by agreement with the tenant in each individual case.
What the deposit is being held against and thus what it may be allocated against after the end of the tenancy e.g.
← Any damage, or compensation for damage, to the premises its fixtures and fittings or for missing items for which the tenant may be liable, subject to an apportionment or allowance for reasonable fair wear and tear and for the age and condition of each and any such item at commencement of the tenancy.
← The fair costs incurred in compensating the landlord for, or for rectifying or remedying any meaningful breach by the tenant of his obligations under this agreement, including those relating to the cleaning of the premises, its fixtures and fittings.
← Any unpaid accounts for utilities or water charges or environmental services or other similar services or Council Tax incurred at the property for which the tenant is liable.
← Any rent or other money lawfully due or payable by the tenant under this agreement of which the tenant has been made aware and which remains unpaid after the end of the tenancy.
B. Tenancy agreements where the Member Firm is a landlord
The following clauses must be inserted in the relevant section of a Tenancy Agreement for a tenancy under the IBTDS: -
-----------------------------------------------------------------------------------------------------------------------------
Alternative Dispute Resolution for deposit disputes
I. This tenancy is included in the IBTDS. The tenant must endeavour to notify the landlord that there is a dispute over the deposit, as soon as possible and within 20 working days* of the lawful end of the tenancy and the vacation of the property (it is strongly recommended that such notification be given in writing). The Independent Case Examiner (ICE) reserves the right to decline to consider disputes which have arisen outside this timescale.
II. If, after 10 working days* following notification of a dispute and reasonable attempts in that time to resolve any differences of opinion, there remains an unresolved dispute between the landlord and the tenant over the allocation of the deposit it may with the written consent of both parties (subject to III below) be submitted to the ICE of The Dispute Service Ltd for expert, impartial, third party adjudication which will be final and binding on both parties or if consent is not given be submitted to the Small Claims Track of the County Court for resolution. All parties agree to co-operate with the investigation of the ICE if applicable.
III. Where the dispute concerns a tenancy which falls outside the provisions of the Housing Act 2004 the ICE may at his discretion, and with the written agreement of both parties, accept the dispute for adjudication. There will be an administration fee to be determined by the Board of The Dispute Service Ltd from time-to-time and published on its website.
IV. The statutory rights of either landlord or tenant to take legal action against the other if the parties do not consent to the ICE resolving the dispute remain unaffected.
V. The ICE is the Scheme Administrator for the IBTDS and promises to reimburse any Tenant who has agreed to a tenancy being administered by IBTDS through clauses in the Tenancy agreement if an award is made in favour of the Tenant and the Landlord who is holding the Deposit does not pay the Deposit or any disputed sum to the Scheme Administrator within 10 days of written request.
* These time scales can be changed by agreement with the tenant in individual cases.
It is strongly recommended to an Agent that they ensure, as a matter of good practice and to help avoid difficulties subsequently, that the clauses within the tenancy agreement relating to the tenancy deposit include some reference to the following:
VI. That the deposit is to be held in a specified client account from which it will only be withdrawn at the end of the tenancy and following agreement over its disposition. Or, if there is a dispute over its disposition, the sum which it is agreed should be disbursed to either party, the disputed amount to be remitted to the ICE for adjudication.
VII. Whether or not interest is to be paid on the deposit and/or who is entitled to it. (In the absence of any statement to the contrary the tenant is entitled to any interest which accrues on a deposit)
VIII. How soon after the end of the tenancy the deposit will be returned to the tenant if there is no dispute e.g. generally within 10 working days, but the timescale can be set by agreement with the tenant in each individual case.
IX. What the deposit is being held against and thus what it may be allocated against after the end of the tenancy e.g.
← Any damage, or compensation for damage, to the premises its fixtures and fittings or for missing items for which the tenant may be liable, subject to an apportionment or allowance for reasonable fair wear and tear and for the age and condition of each and any such item at commencement of the tenancy.
← The fair costs incurred in compensating the landlord for, or for rectifying or remedying any meaningful breach by the tenant of his obligations under this agreement, including those relating to the cleaning of the premises, its fixtures and fittings.
← Any unpaid accounts for utilities or water charges or environmental services or other similar services or Council Tax incurred at the property for which the tenant is liable.
← Any rent or other money lawfully due or payable by the tenant under this agreement of which the tenant has been made aware and which remains unpaid after the end of the tenancy.
C Terms of Business
The following clauses must be inserted in, or appended to, the Terms of Business between Agent and client landlord.
Alternative Dispute Resolution for deposit disputes
As a regulated and bonded Agent we endeavour to provide a fair and equitable tenancy agreement and service to both our landlords and tenants, with this in mind all our tenancy agreements, where we are to hold the deposit during the term of the tenancy, include the following clauses: -
I. This tenancy is included in the IBTDS. The landlord and the tenant must endeavour to notify the Member Firm that there is a dispute over the deposit, as soon as possible and within 20 working days of the lawful end of the tenancy and the vacation of the property (it is strongly recommended that such notice be given in writing), or such other period as agreed with the tenant in each individual case. The ICE reserves the right to decline to consider disputes which have arisen outside this timescale.
II. If, after 10 working days following notification of a dispute and reasonable attempts in that time to resolve any differences of opinion, or such other period as agreed with the tenant in each individual case, there remains an unresolved dispute between the landlord and the tenant over the allocation of the deposit it may with the written consent of both parties (subject to III below) be submitted to the Independent Case Examiner (ICE) of the Tenancy Deposit Scheme for Regulated Agents for expert, impartial, third party adjudication which will be final and binding on both parties or if consent is not given be submitted to the Small Claims Track of the County Court for resolution. The landlord and the tenant agree to co-operate with the investigation of the ICE if applicable.
III. Where the dispute concerns a tenancy which falls outside the provisions of the Housing Act 2004 the ICE may at his discretion, and with the written agreement of both parties, accept the dispute for adjudication. There will be an administration fee to be determined by the Board of The Dispute Service Ltd from time-to-time and published on its website.
IV. The statutory rights of either landlord or tenant to take legal action against the other if the parties do not consent to the ICE resolving the dispute remain unaffected.
V. If the Tenancy commences prior to April 1 2007 and a new fixed term tenancy is drawn up after April 1 2007 the Landlord agrees that he will give the Deposit to the Agent to hold or send the Deposit to the Administrator of another Tenancy Deposit Protection scheme approved under the Housing Act 2004 before any new fixed term contract is signed. If the Landlord fails to give the Deposit to the Agent or provide proof that the Deposit has been sent to another approved scheme the Tenancy will continue as a periodic Tenancy which can be ended by the Landlord giving the Tenant 2 months’ notice in writing by serving a Section 21 Notice or by the Tenant giving to the Landlord one month’s notice in writing.
Plus, either,
VI. We make a small administrative charge for access to this dispute resolution facility, which is no more than [£…p] per tenancy per year. There are no costs for an adjudication in the normal way. But any dispute that is submitted for adjudication and which falls outside the provisions of the Housing act 2004 (see III above) will incur to be determined by the Board of The Dispute Service Ltd from time-to-time and published on its website.
or,
VI. We do not make any charge for access to this dispute resolution facility. There are no costs for an adjudication in the normal way. But any dispute that is submitted for arbitration (see III above) will incur an administration charge of £235 shared equally between the landlord and the tenant, or such sum as may from time to time be determined by the ICE. The liability for any subsequent costs will be dependent upon the Award made by the arbitrator.
NOT USED
SCHEDULE 16 - DISPUTE RESOLUTION"\L 4 DISPUTE RESOLUTION
1. Escalation Procedure
3. This Escalation Procedure shall apply to any Dispute. A Party may not invoke the Dispute Resolution Procedure unless this Escalation Procedure has been properly exhausted.
4. Disputes arising between the Parties shall be handled in the following manner:
1. a Dispute shall, in the first instance be referred to the Level 1 representatives set out in the table below for resolution at a meeting to be arranged as soon as practicable after the matter in dispute arises, but in any event within two (2) Business Days from and including the date of referral;
2. if the Dispute cannot be resolved by the Level 1 representatives within three (3) Business Days from and including the date of such referral, or within any other period agreed by the Parties, after it has been referred to them, the Dispute shall be referred to the Level 2 representatives set out in the table below for resolution, who shall meet within two (2) Business Days from and including the date of such referral, or such other period as the Parties may agree, in order to attempt to resolve the Dispute;
3. if the Dispute cannot be resolved by the Level 2 representatives within three (3) Business Days from and including the date of such referral, or within any other period agreed by the Parties, after it has been referred to them, the Dispute shall be referred to the Level 3 representatives set out in the table below for resolution, who shall meet within two (2) Business Days from and including the date of such referral, or such other period as the Parties may agree, in order to attempt to resolve the Dispute;
4. if, after referral to the Level 3 representatives, the Dispute is not resolved by agreement in writing between the Parties within five (5) Business Days from and including the date of such referral, or within any other period agreed by the Parties, either Party may request expert determination and/or be free to issue legal proceedings.
5. At any level of the Escalation Procedure set out above, if the Parties agree that the Dispute is a matter materially affecting any aspect of this Agreement or the relationship between the Parties, the Parties may elect immediately to escalate the Dispute to the next level and upon such election the Dispute shall be escalated to the next level in accordance with Paragraph 1.2 above.
6. If any of the representatives of a Party named in the table below is unable to attend a meeting, the Party in question will ensure that a substitute with appropriate authority attends.
| |Authority |Service Provider |
|Level 1 |Service Manager |Malcolm Lindo, Contract Manager |
|Level 2 |Deputy Director, Housing Strategy and Support Directorate |Lawrence Greenberg, Scheme Manager |
| |(as at the date hereof Simon Llewellyn) | |
|Level 3 |Director, Housing Strategy and Support Directorate (as at |John Hornsey, Chair, The Dispute Service Ltd |
| |the date hereof, Terrie Alafat) | |
78. Expert Determination
1. Where in this agreement a matter of fact (as opposed to law or mixed fact and law) is to be agreed and/or is disputed, either Party may request to the other that a single expert (“Expert”) be appointed to determine or decide on the matter who shall be deemed to act as expert and not as arbitrator on the basis set out below.
2. If the matter disputed is not a matter of fact, then Expert determination shall not apply.
3. No Dispute shall be referred to Expert determination under this Dispute Resolution Procedure until the Escalation Procedure has been exhausted, provided that the Parties shall be free to seek injunctive relief without reference of the Dispute to the Dispute Resolution Procedure.
4. The Expert shall be selected by mutual agreement or, failing agreement within fifteen (15) Business Days after a request by either Party to the other, shall be chosen at the request of either Party by the President or other duly authorised officer for the time being of the Law Society of England and Wales who shall be requested to choose an impartial, suitably qualified and experienced expert for the Dispute in question.
5. Fifteen (15) Business Days after the Expert has accepted the appointment the Parties shall submit a written report on the Dispute to the Expert and to each other and five (5) Business Days thereafter shall submit any written replies they wish to make to the Expert and to each other.
6. Both Parties will then afford the Expert all necessary assistance which the Expert requires to consider the Dispute including but not limited to full access to any documentation or correspondence relating to the Services.
7. The Expert shall be instructed to deliver his determination to the Parties within fifteen (15) Business Days after the submission of written reports pursuant to Paragraph 2.5, or such other period as he may request and the Parties agree to.
8. Decisions of the Expert shall be final and binding and not subject to appeal, save in the case of manifest error or fraud.
9. The Expert shall have the same powers to require any Party to produce any documents or information to him and the other Party as an arbitrator and each Party shall in any event supply to him such information which it has and is material to the matter to be resolved and which it could be required to produce on disclosure in arbitration proceedings.
10. Each Party shall bear its own costs of the Expert determination save that the fees of the Expert shall be borne by the Parties in the proportion as shall be determined by the Expert having regard (amongst other things) to the outcome of the determination and the conduct of the Parties.
SCHEDULE 17 – NOT USED"\L 4 NOT USED
SCHEDULE 18 - IMPLEMENTATION PLAN"\l 4 Implementation Plan
THIS PAGE IS INTENTIONALLY BLANK
Implementaion Plan
Redacted
Schedule 19 - SHARED SERVICES"\l 1
SHARED SERVICES
1. Principles
11. The Authority shall procure that the Custodial SP shall make available Shared Services to the Service Provider during the Offer Period on terms to be agreed between the Service Provider and the Custodial SP. The Custodial SP, at its discretion, may make available Shared Services to the Service Provider following the Offer Period.
12. This Schedule outlines the framework within which the Shared Services shall be made available.
13. The provision of Shared Services shall be subject to a direct contractual relationship between the Service Provider and the Custodial SP and subject to the provisions of Clause 25 and Schedule 12. The Authority shall not be a party to nor be responsible in any way for the negotiation or performance of either party under any such contract.
79. Shared Services
1. For the purposes of this Schedule, the following services shall comprise the "Shared Services":
1. provision and management of database, information and administrative services:
a) storage and maintenance of the member, property and tenancy related data of the Scheme exclusive of any ADR and dispute related information which will be the responsibility of the Service Provider (unless separately agreed between the Custodial SP and the Service Provider). For the avoidance of doubt, ADR and dispute related information is not a Shared Service;
b) generation and maintenance of the management reports required by the Authority in its contract with the Service Provider and which relate to information held and processes performed by the Custodial SP;
c) updating of the database and information systems for situations such as tenancy lodgements, transfers, changes and termination, and generating confirmations to the tenants, landlords and agents regarding any of the documents or evidence submitted;
d) design, operation and maintenance of the IT systems that are required to provide the Shared Services;
2. management of customer interfaces:
a) management, maintenance and support to the Scheme for their web-based interfaces, including responding to any web-based general enquiries and correspondence. For the avoidance of doubt, the content to be published on the web interfaces and the business rules regarding handling of customer queries will remain the responsibility of the Service Provider and the publishing of such information shall not constitute a Shared Service;
b) provision and handling of the call centre facility for all general telephonic enquiries and correspondence;
3. payment processing:
a) collection and processing of membership fees;
b) collection, management and repayment of disputed deposit amounts;
c) all the provisions of secure methods of payment, namely cash, cheque, debit/ credit card, and electronic transfers such as BACS;
d) the ring fencing and/or separation of any monies collected and/or processed with respect to the Scheme from both the Custodial Scheme monies and the monies relating to any other insurance scheme.
2. The Shared Services will relate to activities that take place only after the registration of members by the Service Provider.
3. For the avoidance of doubt, the Service Provider will be responsible for the marketing of and the publicity relating to their own Scheme and such activities shall not form part of the Shared Services.
80. Custodial SP Obligations
1. The Authority shall require the Custodial SP upon a Service Provider wishing to take some or all of the Shared Services to enter into a formal written contract with the Service Provider for the provision of those Shared Services (a "Services Contract") subject to the Custodial SP and the Service Provider agreeing appropriate terms. In negotiating and entering into such a contract, the Custodial SP shall be obliged to act reasonably:-
1. having due regard to the Service Provider 's obligations under this Agreement; and
2. not to seek to impose service levels that are materially less than equivalent the Service Levels nor that are less than the service levels imposed on the Custodial SP by the Authority.
2. It is envisaged that the Service Provider acknowledges that any Services Contract shall include:-
1. a service specification clearly detailing those Shared Services being provided by the Custodial SP; and
2. appropriate service levels and key performance indicators relating to the Shared Services.
3. Without prejudice to the generality of Paragraphs 3.1 and 3.2 of this Schedule in relation to service specification and service levels/standards, in providing the Shared Services the Custodial SP shall be obliged as a minimum to comply with the following obligations:-
1. The Custodial SP shall ensure the integrity and protection of Scheme data: Where there is a common database for the Scheme, the Custodial Scheme and (where relevant) another insurance-based scheme, the Custodial SP shall sufficiently segment or ring-fence the Scheme data to prevent any misuse and unauthorised access.
2. The Custodial SP shall ensure that the Scheme data is secure and accessible
The IT and data systems used by the Custodial SP shall be secure, reliable and easily accessible for the Service Provider.
Any planned downtime should not interrupt the smooth operation of the Scheme.
The Custodial SP shall ensure appropriate business continuity/disaster recovery measures are in place in respect of the Shared Services.
3. The Custodial SP shall ensure technical compatibility: The systems developed to provide the Shared Services shall ensure the necessary secure and reliable interfaces between the Scheme systems and the Custodial SP systems.
4. The Custodial SP shall ensure neutrality in the provision of Shared Services
The Custodial SP shall provide the Shared Services in a fair and neutral manner and shall use all reasonable endeavours to avoid or otherwise manage any conflicts or potential conflict between the Custodial SP's role as operator of the Custodial Scheme and the provision of the Shared Services.
The Custodial SP shall not (without the express written agreement of the Service Provider) operate, manage, or seek to operate/manage the customer relationship elements from the Scheme.
5. The Custodial SP shall ensure fair and transparent pricing: The pricing for the Shared Services should be set in a manner that is fair and transparent to the Service Provider. The price should be commercially reasonable in all the circumstances.
81. Sub-contractual arrangements
The Authority will not be involved in defining or enforcing the terms of any sub-contract between a Service Provider and the Custodial SP save as set out in this Schedule or the Authority's contract with the Custodial SP.
SCHEDULE 20 - PAYMENTS ON TERMINATION"\L 4 PAYMENTS ON TERMINATION
DEFINITIONS USED IN THIS SCHEDULE
In this Schedule, the following words and phrases shall have the meanings set out below:-
|BC3 |the Breakage Costs incurred where the Agreement is not extended pursuant to Clause 2.2 which would not|
| |have been incurred were the Term to expire at the end of the fifth (5th) Contract Year; |
|Breakage Costs or BC |an amount equal to the provable costs committed to by the Service Provider prior to termination or |
| |incurred by the Service Provider as a result of such termination, provided that from the date of |
| |notice of such termination, the Service Provider shall not commit itself to any further unnecessary |
| |costs other than those genuinely incurred in order to fulfil its remaining obligations under the |
| |Agreement and in all other respects shall otherwise mitigate any losses, liabilities, costs and |
| |expenses; |
|Deemed Notice Period or DNP |Three hundred and sixty-five (365) days; |
|Fixed Costs (Fy) |the fixed costs (exclusive of any sum forming part of the Breakage Costs) incurred by the Service |
| |Provider in relation to Contract Year y, being those fixed costs that the Service Provider intends to |
| |recover over five (5) Contract Years divided by five (5) as set out in Paragraph 7 below; |
|N |the number of days from date of the notice of termination through to the actual date of termination; |
|R |the factor by which Uy for a given Contract Year shall be pro-rated where |
| |Formula redacted |
| |and d is the number of days in the period between the date of the expiry of the Term or the end of the|
| |Deemed Notice Period (whichever is applicable) to the final day of the Contract Year in which that |
| |date falls; |
|Termination Payment or TP |the payment due to the Service Provider from the Authority upon termination or expiry of this |
| |Agreement in the circumstances and calculated in the manner set out in this Schedule; |
|Un-recovered costs (Uy) |the un-recovered costs due to the Service Provider in relation to Contract Year y being a proportion |
| |of the fixed costs that the Service Provider is unable to mitigate within the Deemed Notice Period as |
| |set out in Paragraph 7 below; |
|UT |Uy for the period between:- |
| |the end of the Deemed Notice Period ; or |
| |the date of termination |
| |(whichever is the later) and the fifth (5th) anniversary of the Service Commencement Date. |
1. Principles
1. This Schedule sets out the Termination Payment (if any) due to the Service Provider on:
1. termination by the Service Provider for convenience (pursuant to Clause 20.5);
2. termination by the Authority due to Default by the Service Provider including pursuant to Clause 20.1 or due to a Continuing Force Majeure Event;
3. expiry of the Term at the Original Expiry Date or on expiry of the Minor Extension Period where the Agreement has not been extended pursuant to Clause 2.2; and
4. termination as a result of Authority Default (pursuant to Clause 20.4) or by the Authority for convenience (pursuant to Clause 20.2).
2. The Authority's sole liability to the Service Provider upon termination or expiry of this Agreement shall be the payment to the Service Provider of the Termination Payment as set out in this Schedule. The Service Provider shall have no right to any additional payment, damages or compensation whatsoever.
82. Payment Provisions
1. The Authority shall within sixty (60) days of the date of termination or expiry of this Agreement pay to the Service Provider the Termination Payment. The Authority may request that the Service Provider issue to the Authority a statement for the amount of the Termination Payment due and the Service Provider shall provide such a statement within five (5) Business Days of any such request. The time period for the Authority to make any payment due to the Service Provider shall be extended by one full day for each day or part day delay in the Service Provider providing the Authority with the requested statement.
2. If the Authority defaults in making any termination payment to the Service Provider by the due date, the Service Provider may charge interest on the balance of all amounts unpaid at the per annum base rate of Barclays Bank plc, such interest to accrue daily from the date of expiry of such due period until (but excluding) the date upon which the amount due is actually received by the Service Provider. For the avoidance of doubt this right to charge interest shall not apply to any sum the Authority is entitled to withhold under this Agreement.
83. Termination by Service Provider for convenience
In the event of termination by the Service Provider pursuant to Clause 20.5, no Termination Payment will be payable to the Service Provider by the Authority.
84. Termination for service provider default or as a result of continuing force majeure
In the event of termination by the Authority pursuant to Clause 20.1 or Clause 20.3, no Termination Payment will be payable to the Service Provider by the Authority.
85. Expiry of the term where Clause 2.2 Has not been applied
1. Where Clause 2.2 has not been applied, the Term will expire either:-
1. on the Original Expiry Date; or
2. the final day of the Minor Extension Period
and in both cases a Termination Payment shall be payable to the Service Provider by the Authority.
2. The Termination Payment payable to the Service Provider will be calculated as follows:-
Formula redacted
86. Termination at Authority Convenience or for Authority Default
1. The Termination Payment payable to the Service Provider in the event of termination for Authority Default (pursuant to Clause 20.4) or without cause (pursuant to Clause 20.2) varies according to the length of the notice period before termination.
2. Where n is less than the Deemed Notice Period, the Termination Payment payable to the Service Provider will be calculated as follows:-
Formula redacted
If the end of the Deemed Notice Period is not the final day of a Contract Year, the Un-recovered Costs due to the Service Provider in respect of that Contract Year will be pro-rated for the proportion of the Contract Year that is outstanding using the following formula:
Pro-rated Un-recovered costs for Contract Year y = Uy * R
3. Where n is greater than or equal to the Deemed Notice Period, the Termination Payment payable to the Service Provider will be calculated as follows:-
Formula redacted
If the actual termination date is not the final day of a Contract Year, the Un-recovered Costs due to the Service Provider in respect of that Contract Year will be pro-rated for the proportion of the year that is outstanding using the following formula:
Pro-rated Un-recovered costs for Contract Year y = Uy * R
87. Fixed and Unrecovered Costs
| |Year 1 |Year 2 |Year 3 |Year 4 |Year 5 |
| |04/07–03/08 |04/08 – 03/09 |04/09 – 03/10 |04/10 – 03/11 |04/11 – 03/'12 |
| | | | | | |
|Fixed costs (Fy) |Redacted | | | | |
|Unrecovered Costs | | | | | |
|(Uy) | | | | | |
Parent Company GUarantee
THIS PAGE IS INTENTIONALLY BLANK
DATED 2006
| |
|PARENT COMPANY GUARANTEE |
|in favour of |
|THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT |
|on account of |
|THE DISPUTE SERVICE LIMITED |
THIS PARENT COMPANY GUARANTEE (the "Guarantee") is made by:-
(1) ROYAL INSTITUTION OF CHARTERED SURVEYORS (a company incorporated by Royal Charter) whose registered office is at 12 Great George Street, Parliament Square, London SW1P 3AD (the "Guarantor")
in favour of:-
(2) The Secretary of State for COMMUNITIES AND LOCAL GOVERNMENT of Eland House, Bressenden Place, London SW1E 5DU (the "Beneficiary").
WHEREAS:
(A) THE DISPUTE SERVICE LIMITED (Company No. 4851694) whose registered office is at 7/8 Eghams Court, Boston Drive, Bourne End, Buckinghamshire, SL8 5YS (the "Company") and the Beneficiary are parties to the Agreement (as defined below) pursuant to which the Company agrees to provide the Services (as more particularly described therein).
(B) It is a condition precedent to the Beneficiary's performance under the Agreement that the Guarantor guarantees the obligations of the Company to the Beneficiary under the Agreement.
(C) The Company is a direct subsidiary of the Guarantor and the Guarantor will derive substantial indirect and direct benefits from the Company's performance under the Agreement (which benefits are hereby acknowledged by the Guarantor).
(D) Accordingly, to induce the Beneficiary to perform under the Agreement and in consideration thereof, the Guarantor hereby agrees as follows:-
1. Interpretation
1. In this Guarantee, the following words and phrases shall have the meanings set out below:-
|Agreement |a service concession agreement relating to the implementation and |
| |administration of the insurance tenancy deposit scheme pursuant to the |
| |Housing Act 2004 and dated on or around 22 November 2006; |
|Group |the Guarantor and all its subsidiaries including, inter alia, the Company |
|Guarantor Documents |this Guarantee and any and all other certificates, documents, agreements and |
| |instruments to be delivered by the Guarantor to the Beneficiary under or in |
| |connection with this Guarantee or the Agreement |
|Guaranteed Obligations |the meaning ascribed to it in Clause 2 |
2. All capitalised terms used in this Guarantee (including the recitals hereto) and not otherwise defined herein shall have the meanings assigned to them in the Agreement.
3. In this Guarantee:
1. the Clause headings are included for convenience only and will not affect the construction or interpretation of this Guarantee;
2. any reference to a Recital or Clause is to the relevant recital to or clause of this Guarantee (as the case may be);
3. use of the singular includes the plural and vice versa;
4. words importing a particular gender do not exclude other genders;
5. any reference to a statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under it as from time to time amended, consolidated or re-enacted;
6. any phrase introduced by the terms "including", "include", "in particular" or any similar expression will be construed as illustrative and the words following any of those terms will not limit the sense of the words preceding those terms;
7. any reference to "persons" includes natural persons, firms, partnerships, corporations, associations, organisations, governments, government bodies, states, foundations and trusts (in each case whether or not having separate legal personality);
8. the words "in writing" and "written" shall be interpreted to include any document which is recorded in manuscript, typescript and any electronic communication (as defined in Section 15 of the Electronic Communications Act 2000);
9. the words "day" and "month" mean calendar day and calendar month unless otherwise stated;
10. all references to the Parties include their permitted successors and permitted assigns.
88. Guarantee and Indemnity
1. The Guarantor irrevocably and unconditionally:-
1. guarantees to the Beneficiary the due and punctual payment of all sums validly due from the Company to the Beneficiary under the Agreement (subject always to the limitation of liability provisions set out at Clause 18.3 of the Agreement) and the due and punctual performance by the Company of all the Company's obligations, services, liabilities, duties and undertakings of the Company to the Beneficiary under or in connection with the Agreement;
2. undertakes with the Beneficiary that whenever the Company does not perform any of its obligations under the Agreement or does not pay any amount when validly due under or in connection with the Agreement or as a result of any breach thereof (including all cost and expenses, including legal fees and taxes, incurred by the Beneficiary in connection with the Beneficiary seeking to enforce any of the above), the Guarantor shall immediately on demand perform such obligations and/or pay such amounts as if it was the principal obligor; and
3. indemnifies the Beneficiary immediately on demand against any cost, loss, liability or damage suffered or incurred by the Beneficiary if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal or arising out of any failure by the Company to perform each and all the obligations, duties and undertakings of the Company when and if such obligations, duties and undertakings become due and payable and/or performable according to the terms of the Agreement.
The foregoing services, liabilities and other obligations of the Company under the Agreement shall hereinafter be collectively referred to as the "Guaranteed Obligations".
2. As an original and independent obligation under this Guarantee and without prejudice to any other provision of this Guarantee, the Guarantor agrees that any of the Guaranteed Obligations which may not be recoverable or enforceable on the footing of a guarantee whether by reason of any legal limitation or incapacity on or of the Company or by reason of any other fact or circumstance whatsoever (and whether any such fact or circumstance shall have been known to the Beneficiary or not) shall nevertheless be recoverable and/or enforceable as though the same had been incurred by the Guarantor as sole or principal obligor and shall be paid or performed by the Guarantor on demand.
89. liability of the guarantor
1. The liability of the Guarantor under the Guarantee shall be irrevocable, absolute, independent and unconditional, and shall not be affected by any other circumstance which might constitute a discharge of a surety or guarantor other than the performance in full of all Guaranteed Obligations.
2. This Guarantee is a continuing Guarantee and shall continue in effect, be binding upon the Guarantor and extend to all obligations of the Company pursuant to the Agreement until the termination of the Company's commitments under the Agreement and performance in full of the Guaranteed Obligations, regardless of any intermediate payment or discharge in whole or in part, and is in addition to and not in substitution for any other security which the Beneficiary may at any time hold for the performance of such obligations.
90. Releases and Retention of Security
1. Any release, settlement, discharge or arrangement between the Beneficiary and the Guarantor (a "Release") shall be subject to the condition that if any payment or satisfaction made or security or guarantee given in relation to the Guaranteed Liabilities by a person other than the Guarantor (a "Relevant Transaction") shall be avoided, reduced or invalidated by virtue of any applicable law or for any other reason whatsoever, then such Release shall be void and of no effect, and the Beneficiary may recover immediately the value or amount, or (as the case may be) the reduction in value or amount, thereof from the Guarantor as if such Release had not occurred.
2. Following a Relevant Transaction and notwithstanding any Release, the Beneficiary may retain any security from the Guarantor held by the Beneficiary in respect of the obligations of the Guarantor under this Deed ("Relevant Security") until the expiry of the Retention Period in respect of that Relevant Transaction. If at any time before the expiry of that Retention Period the dissolution of the person who has made or given the Relevant Transaction shall have commenced, the Beneficiary may continue to retain the Relevant Security as security for the obligations of the Guarantor under this Guarantee for such further period as the Beneficiary may determine.
3. For the purpose of Clause 4.2, "Retention Period" means, in relation to any Relevant Transaction, the period which commences on the date when that Relevant Transaction was made or given, and which ends on the date falling one month after the expiration of the maximum period within which that Relevant Transaction can be avoided, reduced or invalidated by virtue of any applicable law or for any other reason whatsoever.
91. Waiver of Defences
The obligations of the Guarantor under this Guarantee will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Guarantee (without limitation and whether or not known to it or the Beneficiary) including:-
1. any time, waiver, consent, release or indulgence granted to, or composition with, the Company or other person;
2. the release of the Company, the Guarantor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
3. the existence or non-existence, validity or invalidity taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, or remedy against the Company or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
4. any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Company, the Guarantor or any other person;
5. any amendment (however fundamental) or replacement of the Agreement or any other document or security;
6. any irregulatory, unenforceability, illegality or invalidity of any obligation of any person under the Agreement or any other document or security;
7. the winding up, dissolution, amalgamation, reconstruction, reorganisation, liquidation, bankruptcy, composition of creditors, moratorium or the appointment of an administrator or receiver of the Company, the Guarantor or any other person;
8. any change in the status, function, control or ownership of the Company, the Guarantor or other person;
9. any change in the relationship between the Company and the Guarantor; and/or
10. any other thing done or omitted or neglected to be done by the Beneficiary or any other person or any other dealing, fact, matter or thing (including, but without limitation, any circumstances whatsoever affecting or preventing recovery of amounts under the Agreement) which, but for this provision, might operate to exonerate or discharge the Guarantor from, or otherwise prejudice or affect, any of the Guarantor's obligations under this Guarantee.
92. Consents of the Guarantor
1. The Guarantor hereby unconditionally consents and agrees that, without notice to or further assent from the Guarantor, the time for the Company's performance of or compliance with any term, covenant or agreement on its part to be performed or observed under the Agreement may be extended, or such performance or compliance consented to, all in such manner and upon such terms as the Beneficiary may deem proper.
2. The Guarantor hereby authorises the Company and the Beneficiary to make any addendum or variation to the Agreement, the due and punctual performance of which addendum or variation shall be likewise guaranteed by the Guarantor in accordance with the terms of this Guarantee. The obligations of the Guarantor hereby shall in no way be affected by any variation or addendum to the Agreement.
93. Immediate Recourse
The Guarantor waives any right it may have of first requiring the Beneficiary (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Guarantor under this Guarantee. This waiver applies irrespective of any law or any provision of any other agreement to the contrary.
94. Appropriations
Any amount received by the Beneficiary in respect of all amounts which may be or become payable by the Company under or in connection with the Agreement shall first be applied in satisfaction of such amounts provided that nothing contained in this Clause 8 shall affect the continued obligations and liabilities of the Guarantor pursuant to this Guarantee until the termination of the Company's commitments under the Agreement and performance in full of all Guaranteed Obligations.
95. Set-off and taxes
1. All sums payable under this Guarantee shall be paid in full without set-off or counterclaim and free and clear of and without deduction of or withholding for or on account of any present or future taxes, duties and/or other charges. A certificate or determination by the Beneficiary of any amount owing hereunder shall, in the absence of manifest error, be conclusive evidence thereof.
2. The Guarantor hereby agrees to indemnify and to keep indemnified the Beneficiary from and against all and any claims in respect of income, registration, capital, issue, stamp, documentary, transfer, turnover or other tax duty or similar charge applicable or payable that may be made by or against the Beneficiary in relation to the negotiation, execution, issue or delivery of this Guarantee, any payment by the Guarantor under this Guarantee or the enforcement of this Guarantee against the Guarantor in any jurisdiction.
96. Deferral of Guarantor's Rights
Until all amounts which may be or become validly payable by the Company under or in connection with the Agreement have been irrevocably paid in full and unless the Beneficiary otherwise directs, the Guarantor will not exercise any rights which it may have by reason of performance by it of the Company's obligations under the Agreement:-
1. to be indemnified;
2. to claim or recover by the institution of proceedings or the threat of proceedings or otherwise any sum from the Company;
3. to claim any set-off or counterclaim against the Company;
4. to prove in connection with the Beneficiary to claim or have the benefit of any security which the Beneficiary holds or may hold for any moneys or liabilities due or incurred by the Company to the Beneficiary;
5. to claim any contribution from any other guarantor of the Company's obligations under the Agreement; and/or
6. to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Beneficiary under the Agreement or of any other guarantee or security taken pursuant to, or in connection with the Agreement by the Beneficiary.
97. Additional Security
This Guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by the Beneficiary provided that should there have been performance in full of all Guaranteed Obligations by a third party pursuant to any other guarantee or security so held by the Beneficiary, then the Beneficiary shall not be entitled to enforce the obligations of the Guarantor pursuant to this Guarantee.
98. Suspense accounts
For the purpose of enabling the Beneficiary to sue the Company, the Guarantor or any other surety or prove in the dissolution of the Company, the Guarantor or any other surety for the whole of the Guaranteed Liabilities, or to preserve intact the liability of any other party, the Beneficiary may, for as long as the Guaranteed Liabilities have not been discharged and satisfied in full, at its sole discretion, place and retain on a suspense account, for as long as it considers fit, any moneys received, recovered or realised under or in connection with this Guarantee or under any other guarantee and/or indemnity or any security without any obligation on the part of the Beneficiary to apply the same in or towards the discharge of the Guaranteed Liabilities and without any right on the part of the Guarantor to sue the Company, the Guarantor or any other surety or to prove in the dissolution of the Company, the Guarantor or any other surety in competition with or so as to diminish any dividend or other advantage that would or might come to the Beneficiary or to treat the liability of the Company, the Guarantor or any other surety as diminished.
99. Default interest
1. If the Guarantor fails to pay any sum payable by it under this Guarantee on the due date for payment, the Guarantor shall pay interest on such sum for the period from and including the due date up to the date of actual payment (both before and after any judgment) at the rate of two per cent per annum above the base rate of Barclays Bank PLC from time to time.
2. Interest under this Clause 13 (Default Interest) shall accrue from day to day, shall be compounded at quarterly rests and shall be paid by the Guarantor on demand.
100. Representations and warranties
The Guarantor represents and warrants to the Beneficiary that:-
1. each of the Guarantor and the Company is a corporation or partnership duly organised or formed, as the case may be, validly existing and in good standing under the laws of the jurisdiction of its incorporation, is qualified to do business and has all requisite power and authority to own its assets and carry on its business and, with respect to the Guarantor, to execute, deliver and perform its obligations under the Guarantor Documents;
2. the execution, delivery and performance by the Guarantor of this Guarantee and any other Guarantor Documents have been duly authorised by all necessary corporate action of the Guarantor, and do not and will not:
1. contravene the terms of the certificate or articles, as the case may be, of incorporation or constitutional documents and the bylaws of the Guarantor or result in a breach of or constitute a default under any indenture or Guaranteed Obligation or any other agreement, lease or instrument to which the Guarantor is a party or by which it or its properties may be bound or affected; or
2. violate any provision of any law, rule, regulation, order, writ, judgement, injunction, decree or the like binding on or affecting the Guarantor.
3. this Guarantee and the other Guarantor Documents constitute the legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their respective terms; and
4. no authorisation, approval, license, exemption of, or filing or registration with, any governmental authority, or approval or consent of any other person, is required for the due execution, delivery or performance by the Guarantor of Guarantor Documents.
101. Notices
1. All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including by facsimile) and shall be mailed, sent or delivered:
1. if to the Beneficiary, at or to either its address of facsimile number below or to its address and facsimile number specified for notices to the Beneficiary under the Agreement; and
2. if to the Guarantor, at or to its address or facsimile number set forth below, or at or to such other address or facsimile number as such party shall have designated in a written notice to the other party.
2. All such notices and communications shall be effective:
1. if delivered by hand, upon delivery;
2. if sent by mail, upon the earlier of the date of receipt or ten Business Days after deposit in the mail, first class, postage prepaid; and
3. if sent by facsimile, when sent.
3. The address and facsimile number of the Beneficiary are:-
|Address: |Dept for Communities & Local Government|Fax No: |020 7944 3408 |
| |Eland House, Bressenden Place | | |
| |London SW1E 5DU | | |
|FAO: |Deputy Director, Housing Strategy and Support Directorate (as at the date hereof Simon Llewellyn) |
|Copy to: |Director, Housing Strategy and Support Directorate (as at the date hereof, Terrie Alafat) |
4. The address and facsimile number of the Guarantor are:-
|Address: |12 Great George St |Fax No: |0207 222 5074 |
| |London SW1P 3AD | | |
|FAO: |Gillian Charlesworth |
|Copy to: |Eve Pienaar |
102. Benefits of Guarantee
This Guarantee is entered into for the sole protection and benefit of the Beneficiary and its successors and assigns, and no other person shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with, this Guarantee.
103. Binding Effect and Assignment
1. This Guarantee shall be binding upon the Guarantor and its successors and assigns, and inure to the benefit of and be enforceable by the Beneficiary and its successors, endorsees, transferees and assigns.
2. The Guarantor shall not have the right to assign or transfer its rights and obligations hereunder or under any other Guarantor Documents without the prior written consent of the Beneficiary such consent shall not to be unreasonably withheld.
104. Governing Law
This Guarantee shall be governed by, and construed in accordance with, the law of England and Wales and Guarantor hereby consents and submits itself to the jurisdiction of the courts of England and Wales in any actions arising out of or connected with this Guarantee.
105. Entire Agreement, Amendments and Waivers
1. This Guarantee and other Guarantor Documents constitute the entire agreement of the Guarantor with respect to the matters set forth herein and supersede any prior agreement, commitments, drafts, communications, discussions and understandings, oral or written, with respect thereto. There are no conditions to the full effectiveness of this Guarantee.
2. This Guarantee and the other Guarantor Documents may not be amended except by a writing signed by the Guarantor and the Beneficiary. No waiver of any rights of the Beneficiary under any provision of this Guarantee or consent to any departure by the Guarantor therefrom shall be effective unless in writing and signed by the Beneficiary. Any such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
106. Severability
Whenever possible, each provision of this Guarantee and the other Guarantor Documents shall be interpreted in such manner as to be effective and valid under all applicable laws and regulations. If, however, any provision of this Guarantee or any other Guarantor Document shall be prohibited by or invalid under any such law or regulation in any jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform to the minimum requirements of such law or regulation, or, if for any reason it is not deemed so modified, it shall be ineffective and invalid only to the extent of such prohibition or invalidity without affecting the remaining provisions of this Guarantee or such Guarantor Document, as the case may be, or the validity or effectiveness of such provision in any other jurisdiction.
EXECUTED AND DELIVERED AS A DEED
|EXECUTED (but not delivered |) |
|until the date hereof) AS A DEED |) |
|by |) |
|ROYAL INSTITUTION OF CHARTERED SURVEYORS |) |
| | |
| |Director |
| | |
| |Director/Secretary |
SCHEDULE 22 - SCHEME INSURANCE"\l 4 Scheme Insurance
DEFINITIONS USED IN THIS SCHEDULE
In this Schedule, the following words and phrases shall have the meanings set out below:-
|Approved Insurer |an insurer, approved by the Authority as a Sub-Contractor, providing the Service |
| |Provider with insurance in order to satisfy the Service Provider's obligations pursuant|
| |to Paragraph 1.1 below; |
|Insurance Policy |an insurance policy held by the Service Provider with an Approved Insurer that complies|
| |with the requirements of this Schedule. |
1. Obligation to Insure
1. The Service Provider shall take out and maintain, for the duration of the Term, an insurance policy to cover the Service Provider's liability to pay a Deposit to a tenant following failure by a Landlord to pay that Deposit when it falls due.
2. The Service Provider shall not:-
1. take any action;
2. fail to take any reasonable action; or
3. permit anything to occur,
which would entitle an Approved Insurer to refuse to pay any claim under an Insurance Policy.
107. Insurance Policy
1. Any Insurance Policy shall:-
1. cover any Deposit where the Service Provider has a liability to pay some or all of that Deposit to the tenant;
2. provide the Service Provider with cover for the full value of the Deposit;
3. provide the Service Provider with cover to a limit that is adequate in relation to the size of the Scheme;
4. oblige the Insurer to provide the Authority with not less than thirty (30) days prior written notice of cancellation of the Insurance Policy or changes in terms and conditions of the Insurance Policy; and
5. allow the Authority to take an assignment of the rights of the Service Provider under the Insurance Policy.
2. Where the Service Provider intends to take out a new Insurance Policy (for whatsoever reason), the Service Provider shall provide the Authority with a draft copy of the Insurance Policy for approval. The Service Provider shall take account of the comments and representations of the Authority on the draft Insurance Policy.
3. The Service Provider shall not take out a new Insurance Policy with an Approved Insurer without the prior written consent of the Authority (such consent not to be unreasonably withheld or delayed).
4. The Service Provider shall not take out an Insurance Policy with an insurer other than an Approved Insurer.
5. The Service Provider shall immediately notify the Authority where an Insurance Policy is cancelled by the Approved Insurer.
6. The Service Provider shall provide to the Authority on request:-
1. a copy of each Insurance Policy; and
2. evidence that premiums in respect of each Insurance Policy are paid up to date.
108. Notification of claims
The Service Provider shall notify the Authority where the value of claims under the Insurance Policy equals or exceeds forty percent (40%) of the limit of indemnity under the Insurance Policy whether through:-
1. a single claim; or
2. an accumulation of claims within a single Contract Year.
109. Review of Insurance Policies
1. The Authority shall be entitled at any time during the Term to review:-
1. the terms and conditions of any Insurance Policy; and/or
2. the financial limits of any Insurance Policy; and/or
3. the deductibles under any Insurance Policy
EXECUTED AND DELIVERED AS A DEED
|EXECUTED (but not delivered |) |
|until the date hereof) AS A DEED |) |
|on behalf of |) |
|THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT |) |
| | |
| |Director |
| | |
| |Director/Secretary |
|EXECUTED (but not delivered |) |
|until the date hereof) AS A DEED |) |
|by |) |
|THE DISPUTE SERVICE LIMITED |) |
| | |
| |Director |
| | |
| |Director/Secretary |
-----------------------
[1] Under section 21 of the Housing Act 1988 a landlord can obtain an order for possession of an assured shorthold tenancy ("AST") at any point after the first 6 months of the tenancy providing that any fixed term has expired and they give the tenant at least 2 months' notice. This is sometimes referred to as a 'notice only' ground for possession, as there is no need for the landlord to prove any fault on behalf of the tenant.
-----------------------
For office use only. Case No. IBTDS
Please return the completed form to:
TDS Ltd, PO Box 541, Amersham, Bucks HP6 6ZR
T 0845 226 7837 F 01494 431123 E xxxxxxxx@xxx.xx.xxx W tds.
Please return the completed form to:
TDS Ltd, PO Box 541, Amersham, Bucks HP6 6ZR
T 0845 226 7837 F 01494 431123 E xxxxxxxx@xxx.xx.xxx W tds.
The Dispute Service Limited, PO Box 541, Amersham, Bucks HP6 6ZR
T 0845 226 7837 F 01494 431123 E xxxxxxxx@xxx.xx.xxx W tds.
Please return the completed form to:
TDS Ltd, PO Box 541, Amersham, Bucks HP6 6ZR
T 0845 226 7837 F 01494 431123 E xxxxxxxx@xxx.xx.xxx W tds.
Please return the completed form to:
TDS Ltd, PO Box 541, Amersham, Bucks HP6 6ZR
T 0845 226 7837 F 01494 431123 E xxxxxxxx@xxx.xx.xxx W tds.
Please return the completed form to:
TDS Ltd, PO Box 541, Amersham, Bucks HP6 6ZR
T 0845 226 7837 F 01494 431123 E xxxxxxxx@xxx.xx.xxx W tds.
Please return the completed form to:
TDS Ltd, PO Box 541, Amersham, Bucks HP6 6ZR
T 0845 226 7837 F 01494 431123 E xxxxxxxx@xxx.xx.xxx W tds.
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