Schedule 4: Standard Terms and Conditions – Community Broadband Grant
Including – Meaning of words index
1. The Application
1.1 In appraising the Project and determining the merits of providing Grant support for it, the Council has relied on the Application. No disclaimer or other statement that precludes the right of any person to rely upon the Application or any other document that forms part of the Application, or has a similar effect, shall apply with respect to the Council or affect the Council’s right to enforce any provision of the Grant Funding Agreement.
1.2 For the avoidance of doubt, Clause 1.1 is intended to ensure that:
(a) no disclaimer of liability for the contents of the Application affects the Council’s right to recover any sum under this Grant Funding Agreement; and
(b) there is reserved to the Council any rights of action or remedies for any mistake, misrepresentation or error of judgment made in the Application upon which the Council has relied in providing the Grant to the Provider as the result of an instruction by the Grant Recipient.
1.3 The Council accepts no liability for any consequences, whether direct or indirect, that may come about from the Provider’s delivery or non-delivery of the Project; the use of the Grant; or from the suspension, withdrawal or a demand for repayment of the Grant.
1.4 Subject to Clause 1.3 above, the Council’s liability under this Grant Funding Agreement is limited to the payment of the Grant.
2. Grant instructions
2.1 The Council will only release the Grant to the Provider following an instruction to do so by the Grant Recipient along with confirmation that the Project Activities have been completed and the Completion Date met.
2.2 The Grant Recipient should fully assure themselves that the Project has been delivered to their satisfaction before providing an instruction of payment to the Council.
2.3 When the Grant Recipient is satisfied that the Gigabit Capable Broadband has been delivered, they should log into the portal and follow the instructions undertaking a speed test to confirm this and thereafter formally instructing the Council to pay the Provider on their behalf.
2.4 The instruction must be received by the Completion Date or if this has lapsed a change request must be made to the Council. The Council may, in its absolute discretion, agree to vary the Completion Date.
3. Material changes to the project
3.1 In the event a Material Change is required to the Project or any aspect of the Project Activities or the Completion Date, the Grant Recipient shall notify the Council and request a variation to this Grant Funding Agreement.
3.2 The Council may, acting in its absolute discretion, agree to a Material Change.
4. Events of default and breach of the grant funding agreement
4.1 Events of Default
An Event of Default is the occurrence of any of the following:
(a) the Grant Recipient fails to comply with any of the Standard Conditions;
(b) completion of the Project Activities has not been achieved by the Completion Date;
(c) the Grant Recipient commits a Prohibited Act;
(d) a Material Change is made to the Project without the prior written approval of the Council including, but not limited to, a substantial change in the nature, scale, costs, ownership or timing of the Project;
(e) any information given or representation made in the Application or in any correspondence, report or other document submitted to the Council under this Grant Funding Agreement is found to be incorrect or incomplete to an extent which the Council considers to be material; and
(f) the Grant Recipient is in Material Breach of this Grant Funding Agreement.
4.2 Rights reserved for the Council in relation to an Event of Default
Where an Event of Default has occurred the Council may, by written notice to the Grant Recipient, take any one or more of the following steps:
(a) suspend the offer of Grant for such period as the Council shall determine;
(b) reduce the Grant offer with the variation notified to the Grant Recipient; and/or
(c) terminate this Grant Funding Agreement.
4.3 Opportunity for the Grant Recipient to remedy an Event of Default
(a) If the Council gives written notice to the Grant Recipient pursuant to Clause 4.2, such notice shall specify the relevant Event of Default and give the Grant Recipient an opportunity to rectify the relevant Event of Default within such period as the Council shall determine to be reasonable and as shall be set out in such written notice (or such extended period as the Council shall thereafter determine in its discretion).
(b) The Council shall not by reason of the occurrence of an Event of Default which is, in the opinion of the Council, capable of remedy, exercise its rights under Clause 4.2 unless the Grant Recipient has failed to rectify the default pursuant to Clause 4.2 within such period referred to in Clause 4.3 (a) to the satisfaction of the Council.
4.4 Cessation of entitlement to Grant
If the Council exercises its right under Clause 4.2 the Council shall give written notice to the Grant Recipient that the Council is ceasing to make payment of Grant and from the date of such notice the Council shall cease to be under any obligation to pay any amount of Grant to the Provider on behalf of the Grant Recipient under the Grant Funding Agreement.
5. Assignment or charging of the Grant Funding Agreement
5.1 The Grant Recipient must not assign its rights under this Grant Funding Agreement; use its right as security for any benefit, or novate the Grant Funding Agreement to a third party without the Council’s prior written consent.
6.1 The Council reserves the right to visit the Project at any time during its construction, including on completion.
6.2 The Grant Recipient will support the Council should it seek to evaluate the Project.
6.3 The Grant Recipient agrees to:
(a) Provide the Council or its agents with whatever information it requires for this purpose, both during the Project and after its completion;
(b) Use all reasonable endeavours to obtain informed consent from beneficiaries to participate in any evaluation exercise with external consultants as well as consent that their personal information held by the Project can be used for evaluation purposes.
7. Notification by the Grant recipient
7.1 The Grant Recipient shall notify the Council in writing, as soon as is practicable:
(a) in the event of any Material Change in the information on costs (whether actual or estimated) of carrying out the Project Activities contained in the Application;
(b) of any event which materially affects the continued accuracy of the information in the sub-clause above;
(c) of any changes that may potentially affect the eligibility of the Project;
(d) in the event of the receipt of any other public sector financial assistance or guarantees of other public sector financial assistance, or an offer of the same, in respect of any aspect of the Project or the Project Activities (or any part of it or them);
(e) of any event which might adversely affect the carrying out and/or completion of the Project Activities or any part of them;
(f) of any event which might adversely affect the delivery of the Project by the Completion Date; and
(g) on the occurrence of an Event of Default.
8.1 The Grant Recipient shall provide the Council with such information and documentation as the Council may require in connection with the Project from the date of the Grant Funding Agreement to the date on which the Grant Recipient has fulfilled all its obligations under this Grant Funding Agreement.
9. Conflict of interest and financial irregularities
9.1 The Grant Recipient and other persons engaged or consulted by the Grant Recipient in connection with the Project must be careful to avoid conflicts of interest. The Grant Recipient is required to have formal procedures obliging all such persons to declare any actual or potential personal or financial interest in any matter concerning the Project, and to be excluded from any discussion or decision-making relating to the matter concerned.
9.2 If the Grant Recipient has any grounds for suspecting any financial irregularity in the use of any amount paid under this Grant Funding Agreement, it must notify the Council immediately, explain what steps are being taken to investigate the suspicion, and keep the Council informed about the progress of the investigation. For these purposes “financial irregularity” includes fraud or other impropriety; mismanagement; use of Grant for improper purposes and if requested you must co-operate fully with any Council investigation.
9.3 The Council or its representatives shall be entitled to investigate if fraud or other financial irregularity is suspected by the Council on the part of the Grant Recipient.
10.1 This Grant Funding Agreement and all documents and information provided by the Council to the Grant Recipient, and by the Grant Recipient to the Council, under or in connection with the performance of this Grant Funding Agreement or during its negotiation is deemed to be Confidential Information. Subject to the duties of the Council pursuant to the Freedom of Information Act (“FOIA”), the Confidential Information shall not be used by either party except for the purpose for which it was made available. The Confidential Information shall not be disclosed by either party to any other person without the prior written consent of the other party. Each party shall use all reasonable endeavours to ensure that its employees, agents, professional and other advisors, managers and sub-contractors engaged in relation to this Project are under a similar obligation of confidentiality in respect of the Confidential Information. The above restriction shall not apply to the Confidential Information which:
(a) is already in the public domain; or
(b) is disclosed to the Grant Recipient or to the Council (as appropriate), without any obligation of confidence, by a third party who has not derived it directly or indirectly from the Council or the Grant Recipient; or
(c) is trivial or cannot reasonably be considered to be confidential.
10.2 The obligations of confidentiality contained in this Clause 10 shall continue after expiry or termination of this Grant Funding Agreement howsoever occasioned.
11. Freedom of information
11.1 Nothing in this Grant Funding Agreement shall prevent HM Government and the Council from disclosing any information whether or not relating to the Project which HM Government and the Council in its absolute discretion considers it is required to disclose in order to comply with the Freedom of Information Act 2000 and/or the Environmental Information Regulations 2004 and any other statutory requirements whether or not existing at the date of this Grant Funding Agreement.
12. Data Protection
12.1 The Application, this Grant Funding Agreement and Grant claims contain information that may be personal data for the purposes of the Data Protection Act 2018 (“DPA”), and the parties confirm that they will each comply with the DPA to the extent relevant to the Grant Funding Agreement and the Project Activities. This includes taking such steps as to make data subjects aware of how their personal data will be processed including the sharing of any information with the Council.
12.2 The Grant Recipient acknowledges that it must only process personal data in accordance with the DPA, and must implement appropriate technical and organisational measures to protect the data against unauthorised or unlawful processing and accidental loss, destruction or disclosure.
12.3 The Grant Recipient will notify the Council immediately if it becomes aware of a data loss event, a request exercising the rights of individuals, a request from any third party for disclosure, any communication from the Information Commissioner’s Office and any other request, complaint or communication involving information that the Council is the data controller for.
12.4 The Council will notify the Grant Recipient immediately if it becomes aware of a data loss event, a request exercising the rights of individuals, a request from any third party for disclosure, any communication from the Information Commissioner’s Office and any other request, complaint or communication involving information that the Grant Recipient is the data controller for.
12.5 The Council confirms that it will not give personal data about the Grant Recipient to anyone else, or use information about it for other purposes, unless the law allows it to do so. The Council is the data controller for the purposes of the Data Protection Act. If the Grant Recipient wishes to know more about what personal information the Council has about it, or the way it uses that information, it should contact the Data Protection Officer, Information Access Team Herefordshire Council, County Offices, Plough Lane, Hereford HR4 0LE.
13. Termination of contract
13.1 Where Clause 4.2 applies, the Council may terminate this agreement immediately on giving written notice without paying compensation.
13.2 Where the Grant Funding Agreement is terminated on notice, the Council may require full or partial repayment of the Grant already paid under this Agreement. The Grant Recipient shall repay such sums within (20) Business Days of receiving a request from the Council.
14.1 This Grant Funding Agreement shall not create any partnership or joint venture between the Council and the Grant Recipient, nor any relationship of principal and agent, nor authorise any party to make or enter into any commitments for or on behalf of the other party.
14.2 No variation or amendment of this Grant Funding Agreement or oral promise or commitment related to it shall be valid unless committed to writing and signed by or on behalf of both the Council and the Grant Recipient.
14.3 The rights and remedies provided by this Grant Funding Agreement may be waived only in writing by duly authorised representatives of each party in a manner that expressly states that it is a waiver and such waiver shall only be operative with regard to the specific circumstances referred to.
14.4 Subject to Clause 14.4, any failure to exercise or any delay in exercising a right or remedy by either party shall not constitute a waiver of that right or remedy or of any other rights or remedies.
14.5 This Grant Funding Agreement does not and is not intended to confer any contractual benefit on any person pursuant to the terms of the Contracts (Rights of Third Parties) Act 1999.
14.6 This Grant Funding Agreement shall be governed by and construed in accordance with the law of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts.
Meaning of words index
In the agreement the following words and phrases shall have the following meanings:
“Application” means the application for Grant and all supporting papers submitted to the Council through the Fastershire Community Grant Portal, including the details of Project Activities and any amendments to any of these documents approved by the Council in writing prior to the date of this Grant Funding Agreement.
“Business Days” means any day other than a Saturday, Sunday or public holiday in England.
“Completion” means completion of the Project Activities to the satisfaction of the Council.
“Completion Date” means the date by which the instruction to pay the Provider for the completed Project will be received from the Grant Recipient by the Council as set out in the Application.
“Conditions” means together all of the conditions of Grant contained in this Grant Funding Agreement.
“Confidential Information” means any information which has been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed and/or on whatever media it is stored) including but not limited to information which relates to the business, affairs, properties, assets, trading and other practices, goods, services, developments, trade secrets, Intellectual Property Rights, know-how, personnel, actual or potential clients, customers, suppliers or other third parties with whom either party deals or contracts, all personal data and sensitive personal data within the meaning of the DPA.
“Council” means Herefordshire Council.
“DPA” means the Data Protection Act 2018.
“Eligible Costs” means the following costs only:
(a) investment costs for the deployment of a passive broadband infrastructure;
(b) investment costs of broadband-related civil engineering works;
(c) investment costs for the deployment of basic broadband networks; and
(d) investment costs for the deployment of NGA networks.
“Gigabit Capable Broadband” means the provision of broadband which, as a minimum:
(a) consist of optical fibre elements to the distribution point or capable of similar network performance as an optical network in terms of bandwidth, resilience, error-related parameters, and latency during the busy hour;
(b) have a minimum capability of 100Mbps for residential and 1GBPS for businesses for each subscriber under usual peak-time loads; and
(c) require some, but not significant , additional investment in the distribution or access network and/or a change to the customers physical set-up in order to regrade customers to 1GBPS.
“Grant” means the funding contribution to be paid to the Provider on the Grant Recipients behalf for the provision of the Project Activities up to the Maximum Sum.
“Grant Funding Agreement” means the agreement issued by the Authority to the Grant Recipient identifying the value of funding and associated terms and conditions that haves been approved to enable their property with Gigabit Capable Broadband;
“Grant Recipient” means the individual to whom the Provider is providing the Services as named in the Referral Form;.
“Information Commissioner’s Office” means the United Kingdom’s independent authority set up to uphold information rights in the public interest and data privacy for individuals;
“Material Breach” means a breach of this Grant Funding Agreement which in the opinion of the Council is deemed to be material.
“Material Change” means a change which is in the opinion of the Council is deemed to be material including, but not limited to, the receipt by or on behalf of the Grant Recipient of any other public funding.
“Maximum Sum” means the maximum amount of Grant to be provided by the Council for the support of the Project which must be provided for Eligible Costs only.
“Parties” means the Council and the Grant Recipient.
“Prohibited Act” means:
(a) offering, giving or agreeing to give to any servant of the Council any gift or consideration of any kind as an inducement or reward for:
(i) doing or not doing (or for having done or not having done) any act in relation to the obtaining or performance of this Grant Funding Agreement or any other contract with the Council; or
(ii) showing or not showing favour or disfavour to any person in relation to this Grant Funding Agreement or any other contract with the Council;
(b) committing any offence:
(i) under the Bribery Act 2010;
(ii) under legislation creating offences in respect of fraudulent acts; or
(iii) at common law in respect of fraudulent acts in relation to this Grant Funding Agreement or any other contract with the Council; or
(iv) defrauding or attempting to defraud or conspiring to defraud the Council.
“Project” means, your Stage 5 Grant Community group name
“Project Activities” means all the activities to be carried out and implemented in the Project and described in the Application form.
“Referral Contract” means the contract between the Grant Recipient and the Provider for the provision of the Project Activities.
“Standard Conditions” means the terms and conditions set out at Schedule 4.