Telford TF7 4PW
Company number 2476398
(2) Consortium Member:
The Organisation whose details are set out in the Membership Application Form.
(A) RTITB has, following extensive consultation with the road freight and logistics industry, undertaken to form a consortium (the Consortium).
(B) RTITB has been granted approval by the Joint Approvals Unit for Periodic Training (JAUPT).
(C) The Consortium’s objective is to provide high quality periodic driver training as required by EU Directive 2003/59, in a manner in which is cost effective, consistent, reliable and robust and which is delivered using uniform training materials and systems at its core, to which training “with particular emphasis on specific operating environments” can be added in meeting the training objectives agreed and approved by the JAUPT.
(D) RTITB has, and will continue, to develop training materials and an infrastructure which will provide a database to record details of training which can be accessed by members of the Consortium to inform and update them of driver training and will put in place the Master Driver Registration System.
(E) The Consortium Member wishes to become a member of the RTITB Master Driver CPC Consortium and hereby agrees to the terms and conditions as set out below.
1.1 The definition and rules of interpretation in this clause apply to this agreement;
Agreement: means this Schedule 1 together with Schedule 2 and the Annexes to those Schedules together with the Membership Application Form.
Annual Consortium Membership Fee: means the annual fee payable by the Consortium Member to RTITB in accordance with clause 6, as set out in the Membership Application Form.
Approved Training Centre Status: means training organisations approved to deliver periodic training by JAUPT.
Approved Training Course: means a training course approved by JAUPT.
Course Materials: means all materials provided by RTITB to the Consortium Member to enable the Consortium Member to exercise its rights under this agreement, including but not limited to all materials relating to the RTITB Master Driver CPC training courses and the MDRS.
DVSA: means the Driving Vehicle Standards Agency.
Fees: means the Annual Consortium Membership Fee, the MDRS System Fees, and such other agreed sums payable from time to time by the Consortium Member to RTITB.
Intellectual Property: means all intellectual property rights including, but not limited to, patents, trade secrets, trade marks, service marks, copyrights and other rights in works of authorship (including rights in computer software), moral and artists’ rights, design rights, trade or business names, domain names, know-how and database rights and whether any of the foregoing are registered or unregistered and all rights or forms of protection of a similar nature in any country of RTITB.
JAUPT: means the Joint Approvals Unit for Periodic Training.
MDRS: means the Master Driver Registration System being a database record of driver training and certification of attendance and/or achievement which will provide receipt of training attendance and/or certificates of achievement.
MDRS System Fees: means the fees payable by the Consortium Member in relation to the provision by RTITB of the MDRS, as set out in the Membership Application Form.
Membership Application Form: means the form to be completed by both parties which sets out the courses chosen, fees and other information.
Membership Year: means the period of 12 months commencing on the date membership is added to the RTITB system.
Party: means either party to this agreement.
RTITB Master Driver CPC: means training courses, including Course Materials and assessments, which are developed by RTITB, approved by JAUPT, and which the Consortium Member is authorised to deliver under clause 3.1 in accordance with the terms of this agreement.
Term: means the term of this agreement as defined in clause 2.
1.2 Words in the singular include the plural and in the plural include the singular and reference to any gender includes the other genders.
2.1 This agreement shall commence on the date that this agreement is signed by both parties and, subject to either party’s right to terminate pursuant to clause 8, shall continue for an initial period until the 9th September following the date of signature (“Initial Period”) and shall continue in force thereafter (automatically renewing at the start of each Membership Year).
3. GRANT OF RIGHTS
3.1 RTITB appoints the Consortium Member as a non-exclusive provider of the RTITB Master Driver CPC training courses to organisations within the United Kingdom on the terms of this agreement.
3.2 The grant of rights set out in clause 3.1 above, and membership to the Consortium, is personal to the Consortium Member and is conditional upon the Consortium Member demonstrating that they meet and will in the future continue to meet both RTITB’s and JAUPT’s reasonable requirements from time to time and in particular that they comply with the obligations set out in clause 5.
4. OBLIGATIONS OF RTITB
4.1 In consideration of the payment of the Fees by the Consortium Member to RTITB, RTITB agrees with the Consortium Member as follows:
4.1.1 To use its best endeavours to maintain (at its cost) Approved Training Centre Status with the JAUPT during the Term, provided that in the event that RTITB loses its status as an approved training centre, the terms of clause 8.2.5 shall apply;
4.1.2 To maintain (at its cost) RTITB Master Driver CPC as an Approved Training Course with JAUPT for the Term;
4.1.3 To develop (at its cost) and have RTITB Master Driver CPC approved by JAUPT for up to 45 course combinations;
4.1.4 To develop (at its cost) MDRS to allow training information to be entered and accessed on-line to provide data and to include (subject to the DVSA database development and the appropriate fee being paid by the Consortium Member.
4.1.5 To require that the Consortium Members at all times meet the requirements of the JAUPT, DVSA and the “RTITB Master Driver CPC Members Guidance”.
4.1.6 To monitor the training provided by the consortium member by means of gathering initial membership information and thereafter by inspection and visits as required to ensure quality standards are maintained;
4.1.7 To provide appropriately qualified and experienced trainers registered with RTITB for the provision of training with a one day briefing for the modules they are eligible to deliver. RTITB will not charge a fee for any such briefings conducted at its premises in Telford;
4.1.8 To provide marketing information regarding the Consortium Member and their training activities via a web site and electronic news letter;
4.1.9 To provide a dedicated administration system to ensure that records and information are up to date at all times;
4.1.10 To establish Consortium consultation groups to inform on future developments, quality assurance, liaison with JAUPT, GoSkills, Skills for logistics and other government agencies.
4.2 RTITB warrants it is the owner of all rights in RTITB Master Driver CPC and MDRS.
4.3 RTITB reserves the right at all times to audit Consortium Member’s performance of and compliance with this Agreement, by visiting Consortium Member’s premises (including but not limited to visiting to audit records or to perform mystery shopper checks), by telephoning drivers trained by Consortium Member, or otherwise, and Consortium Member consents to this and will obtain consent from the drivers trained by Consortium Member for this purpose.
5. OBLIGATIONS OF THE CONSORTIUM MEMBER
5.1 In consideration of the rights provided under clause 3 in this agreement the Consortium Member undertakes as follows:
5.1.1 to ensure that periodic driver training is delivered in accordance with the requirements of the JAUPT, DVSA and the “RTITB Master Driver CPC Members Guidance”;
5.1.2 to provide suitable (as determined by RTITB and/or JAUPT) premises for the delivery of training, secure storage of training records and evidence of premises used and quality assurance records (for a period of at least six years) and suitable administration;
5.1.3 to provide sufficient resources for training, teaching aids, materials and equipment including ‘O’ licence compliant systems of maintenance;
5.1.4 to provide and maintain, insure, and ensure MOTs are in place for, appropriate vehicles for delivering in-cab training (where relevant);
5.1.5 to maintain policies for quality assurance, equal opportunities, Health and Safety, trainer standards/development and data protection which are appropriate for RTITB and/or JAUPT from time to time;
5.1.6 to maintain suitable administration staff who are accountable for completing procedures for periodic training, procedures and IT systems;
5.1.7 to provide appropriate procedures for dealing with complaints and refunds;
5.1.8 to engage appropriately qualified and experienced trainers registered with RTITB for the provision of training and maintain up to date records of instructors ensuring that training is only provided by instructors approved by RTITB and who have attended, successfully, appropriate module briefings prior to providing any training and have appropriate knowledge of the subject and industry and experience of delivering training;
5.1.9 to maintain appropriate insurance as reasonably required from time to time by RTITB;
5.1.10 to allow RTITB and /or the competent authority or his/her representative the right to visit at any reasonable time without prior notice. As part of any quality visit the representative shall be entitled to participate in any RTITB Master Driver CPC training course which the Consortium Member is permitted to deliver under the terms of this agreement;
5.1.11 to take any necessary actions as reasonably notified by RTITB following a monitoring visit within the time scales indicated on any resultant action plan;
5.1.12 to abide by the sanctions reasonably imposed by RTITB should a significant quality issue be identified, sanctions may include suspension of training, suspension of Consortium membership or removal of Consortium membership and the forfeiture of fees;
5.1.13 to use the RTITB Master Driver CPC only as provided in this Agreement and to accurately record driver training and certification of attendance and/or achievement via MDRS (without falsification), to have computer systems capable of recording training and transmitting such details of driver training as may reasonably be required by RTITB onto a central database, and to transfer such details to MRDS within three working days of the end of the training course;
5.1.14 to return all Course Materials to RTITB in the event of cessation or removal of Consortium membership and/or termination of this agreement;
5.1.15 to notify RTITB in writing of all course details (including details of the relevant trainer) no less than 72 hours in advance of such courses taking place, and if a course is cancelled, to notify RTITB of such cancellation no less than 72 hours before such course was due to take place. RTITB reserves the right in its absolute discretion to accept late registration or cancellation of courses;
5.1.16 to commit to ongoing review and improvement as required from time to time and to ensure that all trainer information is accurately maintained and kept up to date at all times and that any changes are promptly notified to RTITB;
5.1.17 To co-operate fully with RTITB including RTITB’s right to audit Consortium Member’s compliance with this Agreement under clause 4.3 and to provide such information and assistance as may be required by RTITB to comply with a request or audit by JAUPT including (without limitation) evidence of identity pursuant to 5.1.18 below;
5.1.18 To carry out and record identity and eligibility checks in respect of each participant on a course, prior to commencement of the course, such checks to include a check of photo ID (such as a photocard and passport) and to ensure that any participants whose training will involve use of a vehicle have a driving licence that is appropriate to that vehicle and to obtain consent from each participant on a course to hold their personal data and to pass such personal data on to RTITB and such other third parties as may be necessary in order for the participant to participate in the course, to receive confirmation of that participant’s completion of the course, and to retain the participant’s details after the participant completes the course for the purpose of future monitoring and/or training;
5.1.19 To provide RTITB which such information as RTITB reasonably requires to enable RTITB to issue participants that attended a given course with a record of attendance issued;
5.1.20 To ensure that course participants complete a driver feedback form at the end of the course, to upload driver feedback scores to MDRS, and on RTITB’s request to provide copies of such feedback forms to RTITB; and
5.1.21 To maintain for a period of at least 6 years all original Driver Registration Forms, Attendance Forms, Driver Feedback Forms, and all assessment paperwork, and to provide such training records to RTITB and/or to JAUPT/DVSA on request.
5.2 The Consortium Member shall not be entitled to exploit or enter into any commercial or other agreement to exploit any of the commercial rights other than contained within this agreement without the express written agreement of RTITB.
5.3 The Consortium Member shall not:
5.3.1 represent itself as an agent of RTITB for any purpose;
5.3.2 pledge RTITB’s credit;
5.3.3 give any condition, warranty or representation on RTITB’s behalf;
5.3.4 commit RTITB to any contracts; or
5.3.5 use the Course Materials or any Intellectual Property of RTITB for any purpose other than as expressly agreed with RTITB.
5.4 The Consortium Member shall not sub-license the rights granted to it under this Agreement to any third party. For the avoidance of doubt, the Consortium Member may deliver RTITB Master Driver CPC training courses to employees and/or contractors of organisations for the sole purpose of allowing those employees and/or contractors to operate the equipment to which the training relates for the relevant organisation that engages them but shall not deliver RTITB Master Driver CPC training courses, or provide Course Materials, to any person for the purposes of enabling that person to deliver training to third parties, nor shall it permit those who take up RTITB Master Driver CPC training courses to use the Course Materials to train third parties.
5.5 The Consortium Member shall not, without RTITB’s prior written consent, make any promises or guarantees about the RTITB Master Driver CPC training courses beyond those contained in the material supplied to the Consortium Member by RTITB.
5.6 In exercising its rights under clause 3.1 above, the Consortium Member shall:
5.6.1 Exercise its obligations with best care, skill and diligence in accordance with best practice in the Consortium Member’s industry, profession or trade;
5.6.2 Obtain and at all times maintain all necessary licences and consents and have the JAUPT/DVSA terms and conditions and guidance from the JAUPT “Guide to Periodic Training”, and comply with all applicable laws and regulations (including, without limitation the Vehicle Drivers (Certificates of Professional Competence) Regulations 2007 and Data Protection Act 1998);
5.6.3 Observe all health and safety rules and regulations and any other health and safety requirements that may apply in respect of its exercise of the rights granted in clause 3.1;
5.6.4 Not do or omit to do anything which may cause RTITB to lose any licence, authority, approval, consent or permission on which it relies for the purposes of conducting its business (including but not limited to its JAUPT approved consortium Status) or which might otherwise harm the reputation of RTITB, or of other Consortium Members.
5.6.5 Ensure that the provisions of this Agreement are complied with at all of its Training Centres and shall ensure that it has adequate procedures to monitor and securely manage user names and passwords of its employees or others with access to its systems.
5.7 The Consortium Member acknowledges that any breach of the above provisions can lead to the suspension or removal of the Consortium Member and could lead to the withdrawal of approval for the Consortium (and other Consortium Members).
6.1 The Consortium Member hereby undertakes to pay to RTITB the Fees as set out in the Membership Application Form in accordance with RTITB published payment terms from time to time. These shall include the following:-
6.1.1 The Annual Consortium Membership Fee;
6.1.2 MDRS System Fees;
6.1.3 Follow up visit fees (if required); and
6.1.4 Any other fees which the parties may from time to time agree in writing.
6.2 All Fees shall be exclusive of VAT, which the RTITB shall add to its invoices at the appropriate rate.
6.3 Subject to clause 6.4 below, the parties agree that RTITB may review and increase its Fees from time to time. RTITB shall give the Consortium Member written notice of any such increase 2 months before they begin. If such increase is not acceptable to the Consortium Member, it may, prior to the end of the then current Membership Year, terminate this Agreement with effect from the end of that Membership Year by giving notice to RTITB in writing.
6.4 The Annual Consortium Membership Fee set out in Part A of Schedule 1 shall remain fixed until 9 September 2014. For the avoidance of doubt, RTITB shall be free to increase the Annual Consortium Membership Fee in accordance with clause 6.3 above for the Membership Year commencing on 10 September 2014, and in each Membership Year thereafter.
6.5 Unless otherwise agreed between the parties in writing, the Consortium Member shall pay each invoice submitted to it by RTITB, in full and in cleared funds, within 30 days of receipt to a bank account nominated in writing by RTITB.
6.6 Without prejudice to any other right or remedy that it may have, if the Consortium Member fails to pay RTITB on the due date, RTITB may:
6.6.1 charge interest on such sum from the due date for payment at the annual rate of 8% above the official bank rate of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Consortium Member shall pay the interest immediately on demand; and
6.6.2 suspend the Consortium Member’s membership until payment has been made in full.
6.7 All sums payable to RTITB under this agreement shall become due immediately on its termination, despite any other provision. This clause 6.7 is without prejudice to any right to claim for interest under the law, or any such right under this agreement.
7. FORCE MAJEURE
7.1 Neither Party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to any circumstances beyond the reasonable control of that Party (“Event of Force Majeure”) of which it has notified the other Party in writing and the time for performance of that obligation shall be extended accordingly.
7.2 If an Event of Force Majeure continues for more than sixty (60) days in a manner which prohibits performance by a Party of its obligations under this Agreement, the other Party may terminate the Agreement immediately by written notice to the Party affected by the Event of Force Majeure, and, in such event, neither Party shall have any further obligations under this Agreement.
8.1 Either Party may terminate this Agreement at any time on not less than 3 (three) months notice.
8.2 RTITB may terminate this Agreement forthwith in the event of the following:
8.2.1 Non-payment of Fees;
8.2.2 Any breach of the terms of this Agreement by the Consortium Member;
8.2.3 The Consortium Member becomes, or is reasonably likely to become, insolvent or bankrupt;
8.2.4 The Consortium Member’s business ceasing to trade or appearing likely to cease to trade;
8.2.5 RTITB loses its Approved Training Centre Status.
8.3 The Consortium Member agrees and acknowledges that in the event of termination (for whatever reason) of this Agreement no Fees will be refunded.
9. CONFIDENTIALITY AND RTITB’s PROPERTY
9.1 The Consortium Member shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Consortium Member by RTITB, its employees, agents, consultants or subcontractors and any other confidential information concerning RTITB’s business or its products which the Consortium Member may obtain.
9.2 The Consortium Member may disclose such information as may be required by law, court order or any governmental or regulatory authority.
9.3 The Consortium Member shall not use any such information for any purpose other than to enable it to perform the rights granted to it under clause 3 of this agreement.
9.4 The Consortium Member acknowledges and agrees that all Intellectual Property in the RTITB Master Driver CPC training courses, MRDS, and Course Materials, is owned (as between the Consortium Member and RTITB) by RTITB. The Consortium Member shall only use such Intellectual Property to the extent necessary to enable it to exercise the rights granted to it under clause 3.1 above.
10.1 The Consortium Member shall keep RTITB indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by RTITB as a result of or in connection with:
10.1.1 any claim made against, or loss suffered by RTITB arising out of, or in connection with, a breach of this agreement or the negligent exercise by the Consortium Member (including its employees, agents or subcontractors) of its rights under this agreement; and
10.1.2 RTITB losing its Approved Training Centre Status as a result of the breach of this agreement or the negligent exercise by the Consortium Member (including its employees, agents or subcontractors) of its rights under this agreement.
11. WARRANTIES AND LIABILITY
11.1 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
11.2 Nothing in this agreement limits or excludes the liability of either Party:
11.2.1 for death or personal injury resulting from negligence; or
11.2.2 for fraud or fraudulent misrepresentation; or
11.2.3 for any liability incurred as a result of any breach of the clause as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
11.3 Subject to clause 11.2:
11.3.1 RTITB shall not under any circumstances whatever be liable for:
126.96.36.199 loss of profits; or
188.8.131.52 loss of business; or
184.108.40.206 depletion of goodwill and/or similar losses; or
220.127.116.11 loss of anticipated savings; or
18.104.22.168 loss of goods; or
22.214.171.124 loss of contract; or
126.96.36.199 loss of use; or
188.8.131.52 loss of corruption of data or information; or
184.108.40.206 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
11.3.2 In each Membership Year or part of a Membership Year, RTITB’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this agreement shall in all circumstances be limited to the Membership Fee received by RTITB in respect of that Membership Year.
12. ANTI-BRIBERY COMPLIANCE
12.1 The Consortium Member shall:
12.1.1 comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
12.1.2 have and shall maintain in place throughout the term of this agreement its own policies and procedures to ensure compliance with the Relevant Requirements, and will enforce them where appropriate;
12.1.3 promptly report to RTITB any request or demand for any undue financial or other advantage of any kind received by the Consortium Member in connection with the performance of this agreement; and
12.1.4 immediately notify RTITB (in writing) if a foreign public official becomes an officer or employee of the Consortium Member or acquires a direct or indirect interest in the Consortium Member (and the Consortium Member warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this agreement).
12.2 The Consortium Member shall ensure that all of its suppliers, agents and subcontractors who perform services or provide goods in connection with this agreement do so only on the basis of a written contract which imposes on and secures from such persons terms equivalent to those imposed on the Consortium Member in this clause 12 (Relevant Terms). The Consortium Member shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to RTITB for any breach by such persons of any of the Relevant Terms.
13.1 No variation of this agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
14.1 A waiver of any right or remedy under this agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a Party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
14.2 No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
15. CUMULATIVE REMEDIES
15.1 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
16.1 If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the agreement, and the validity and enforceability of the other provisions of the agreement shall not be affected.
16.2 If a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17. ENTIRE AGREEMENT
17.1 This agreement and any documents referred to in it constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this agreement.
17.2 Each Party acknowledges that, in entering into this agreement, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this agreement. Each Party agrees that its only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.
17.3 Nothing in this clause shall limit or exclude any liability for fraud.
18.1 The Consortium Member shall not, without the prior written consent of RTITB, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.
18.2 RTITB may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.
18.3 Each Party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.
19. RIGHTS OF THIRD PARTIES
19.1 A person who is not a party to this agreement shall not have any rights under or in connection with it.
20. GOVERNING LAW AND JURISDICTION
20.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
20.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).