Schools Agreement – Terms and Conditions

1. SMS shall:

• perform the Services with reasonable skill, care and diligence, and in accordance with these Agreed orders from the school
• SMS shall use reasonable endeavours to meet any performance dates but any such dates shall be estimates only and time for performance by SMS shall not be of the essence of this agreement.
• SMS shall appoint a manager for the Services to be performed, and this person shall have authority to contractually bind SMS on all matters relating to the relevant Services (including approving any Change Orders);
  • observe all health and safety rules and regulations, safeguarding and security requirements and any other applicable policies or requirements specified by the school;
  • report to the school on the progress of the Services, as specified in order form that has been agreed.

2. The school shall:

• not do anything to damage the reputation or operations of SMS. In particular, the school acknowledges SMS’s status as a registered charity and shall not do or omit to do anything or cause anything to happen that compromises, or, in the reasonable opinion of SMS, might compromise, the reputation of SMS or its relationship with its donors;
• appoint a manager for the Services to be performed as agreed, and this person shall have authority to contractually bind the school on all matters relating to the relevant Services (including approving any Change Orders);
• complete the Arts Council Annual Schools Data Return;
• be responsible for the safekeeping of any musical instruments which are delivered by SMS to the school’s premises in order for SMS to carry out the Services (the “Musical Instruments”),
• ensure that all Musical Instruments are returned to SMS at the completion of the Services, notify SMS promptly in the event of any loss or damage to any of the Musical Instruments, while they are held on the school’s premises,
• comply with the terms of the Agreement and any additional responsibilities of the schools as set out in the agreed services.

3. Charges and Due Dates for Payment:

• In consideration of the provision of the Services by SMS, the Purchaser shall pay the charges specified in the relevant Statement of Service (the “Charges”).
• SMS shall set out the Charges in the Statement of Service.
• SMS shall invoice the Purchaser for the Charges at the intervals specified in the Statement of Service. If no intervals are so specified, SMS shall invoice the Purchaser at the end of each month for Services performed during that month.
• The Purchaser shall pay each invoice submitted to it by SMS within 30 days of receipt to a bank account nominated in writing by SMS from time to time.
• Without prejudice to any other right or remedy that it may have, if the Purchaser fails to pay SMS any sum due under this Agreement on the due date:

• • the Purchaser shall pay interest on the overdue sum from the due date until payment of the overdue sum. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
  • SMS may suspend part or all of the Services, under any Statement of Service, until the Purchaser has paid any sums which have become due under this Agreement in full.
  • All sums payable to SMS under this agreement are exclusive of VAT, and the Purchaser shall in addition pay an amount equal to any VAT chargeable on those sums on receipt of a VAT invoices.

4. Change to the Statement of Services

• Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
  • the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
  • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
  • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
  • an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company)
  • a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
  • the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
  • SMS may terminate this Agreement immediately by written notice:
  • if the school behaves in a way which brings SMS into disrepute;
  • if the school fails to pay any amount under the agreement of services on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.
  • Upon termination taking effect, as set out above:
  • The school shall pay SMS in full any outstanding charges for any Services which have been performed by SMS. Such charges shall include any amounts which SMS has irrevocably agreed to pay to its tutors  for services or goods to be provided in the future.
  • SMS shall following termination of this Agreed services, promptly provide an invoice for any outstanding fees for any Services carried out but not invoiced at the time of termination.
  • SMS shall, if so requested by the school, provide all assistance reasonably required by the school to facilitate the smooth transition of the Services to the school or any replacement supplier appointed by it.
  • Termination or expiry of the Agreed services shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreed services which existed at or before the date of termination or expiry.

5. Relationship of the Parties

• The Parties agree that the Services performed by SMS, its employees, agents or sub-contractors shall be as an independent contractor and that nothing in this Agreed services shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the Parties, and neither shall have any authority to bind the other Party in any way.

6. Confidentiality Force Majeure

• Force Majeure Event means any circumstance not within a party’s reasonable control, including, without limitation:
  • Acts of God, flood, drought, earthquake or other natural disaster;
  • Epidemic or pandemic, such as the COVID-19 outbreak;
  • terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
  • any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
  • collapse of buildings, fire, explosion or accident; and
  • any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause).
• SMS:
  • If SMS is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event, SMS shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations.

If such delay or failure continues for 30 days or more, then either Party shall be entitled to terminate this agreement by notice in writing to the other.

• Any failure or delay on SMS’s part  does not alter the school’s obligations under this Agreed services, and in particular its obligation to make payment of the Charges specified for the Services, until the agreement is terminated.

• The school:
  • If the school is prevented, hindered or delayed in or from performing any of its obligations under this agreed services by a Force Majeure Event, and if such delay or failure continues for 7 days or more, then SMS shall be entitled to terminate this agreement.

7. Miscellaneous

• A waiver of any right or remedy under the Agreed services or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy; and, the failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
• If any part, term or provision of this Agreed services is held to be illegal or unenforceable neither the validity nor enforceability of the remainder of the Agreement shall be affected.
• This Agreed services may not be amended for any other reason without the prior written agreement of both Parties.
• The Agreement constitutes the entire understanding between the Parties relating to the subject matter hereof unless any representation or warranty made about the Agreed services was made fraudulently and, save as may be expressly referred to or referenced herein, supersedes all prior representations, writings, negotiations or understandings with respect hereto.
• These T&Cs does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
• The provision of clauses within this Agreement shall survive any termination or expiry of this Agreement.
• The Agreement is governed by the law of England and Wales which shall govern all claims, disputes or difference between the Parties arising out of or in connection with this Agreement. Any dispute under this Agreement shall, unless otherwise agreed by the Parties, be subject to the exclusive jurisdiction of the courts of England and Wales.