ERDF User Manual
Chapter 3: Funding Agreements Template - ERDF Only
DATE OF FUNDING AGREEMENT :
200[ ]
[NB. THE DATE WILL BE THE DATE OF THE ACKNOWLEDGEMENT]
To [Name of Grant Recipient]
THE EUROPEAN REGIONAL DEVELOPMENT FUND (ERDF)
Dear [
]
[Region] Operational Programme 2007-13
Relevant Priority Axis :
Project Name and reference :
1
2
I am pleased to inform you that [Agency] (“the Agency”) as Intermediate Body for the
Operational Programme has approved your Application for a Grant from ERDF. We now
offer [the name of the organisation] ("the Grant Recipient") a Grant of £[
]
towards Eligible Expenditure for the Project on the terms set out in this offer letter.
The Grant is offered on the terms of:
(a) this offer letter including its Schedules 1,2, 3 and 4 annexed to it; ("the Offer Letter");
and
(b) the attached Standard Conditions of Grant including Annexures [A] to [ * ] [specify
which apply] (“the Standard Conditions”); and
(c) the Project Specific Conditions of Grant contained in Schedule 1 to this Offer Letter
("the Project Specific Conditions"); and
(d) any Project Specific Eligible Expenditure contained in Schedule 2 to this Offer Letter
("the Project Specific Eligible Expenditure").
3
The Project consists of:
(a)
the carrying out of the Project Activities which can be briefly described as
[
];
(b) the subsequent use of any Assets for the Approved Use during their Useful Economic
Life; and
(c) the achievement of the Targets contained in Schedule 3 to this Offer Letter, which will
further the objectives of the relevant Priority Axis of the Operational Programme.
4
The Application includes full details of your arrangements for Match Funding and
confirmation of Match Funding is to be annexed to your Acknowledgment.
Offer Letter
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ERDF User Manual
Chapter 3: Funding Agreements Template - ERDF Only
5
The amount of the Grant to be paid has been determined as follows:
(a)
[
]% (being the Capital Contribution Rate) of the Eligible Capital
Expenditure up to the Capital Maximum Sum of £[
];
(b)
[
]% (being the Revenue Contribution Rate) of the Eligible Revenue
Expenditure up to the Revenue Maximum Sum of £[
].
Payment of Grant will be in accordance with the Expenditure Profile contained in
Schedule 4 to this Offer Letter and also in accordance with the Standard Conditions.
6
The Key Milestone Dates of the Grant are:
Milestone
Date
a)
The Start Date being the earliest date that expenditure
incurred by you in relation to the Project can be Eligible
Expenditure.
b)
The Anticipated Completion Date being the date by which you
anticipate that you will have achieved Completion.
c)
The date of the submission of the final Grant Claim.
d)
Final Audit to be made within three months of submitting the
final Grant Claim.
e)
The Final Payment Date being the final date upon which the
Agency shall make any payment of Grant to you.
f)
[Key Milestone Dates for the Project.]
7
For the purposes of clause 5.4 of the Standard Conditions the Instalment Period will be
[quarterly] [ending on 31 March, 30 June, 30 September and 31 December] [monthly]
[ending on 31 January, 28 February, 31 March, 30 April, 31 May, 30 June, 31 July, 31
August, 30 September, 31 October, 30 November and 31 December]. The first Instalment
Period will start on the date on which you sign and return the Acknowledgement.
8 The principal contact for this Project in the Agency is [ Name and telephone number ]. In any
correspondence please quote the Project reference number [Number ].
9 If you wish to receive Grant for the support of the Project, which will be paid to you subject to
compliance with the Standard Conditions and the Project Specific Conditions, please
[sign][execute] the Acknowledgement on both the original and duplicate of this Offer Letter
and return one copy to the principal contact named in paragraph 8 above. Please do not
detach the Acknowledgement from the Offer Letter and keep both attached to the
Schedules, the Standard Conditions and any amending or supplementary documents
enclosed with this letter.
Offer Letter
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ERDF User Manual
Chapter 3: Funding Agreements Template - ERDF Only
10. This offer of Grant will remain open for acknowledgment for 30 days from the date of this
Offer Letter and will automatically lapse if the signed and completed Acknowledgement is
not received by the Agency on or before that date.
Yours sincerely
____________________
Authorised signatory of the Agency
____________________ (Print name)
Date of Offer Letter:
THE COMMON SEAL of
[
] was affixed to this deed
which is delivered when dated in the
presence of :
……………………….
Authorised Signatory
Offer Letter
Page 3
3 September 2009
Project Name and reference: [
]
Acknowledgment of offer of Grant
Date: [
]
1. We acknowledge receipt of the Offer Letter and confirm that we wish to receive
Grant for support of the Project, which is conditional on the following terms:
a. The Offer Letter;
b. The Standard Conditions; and
c. The Project Specific Conditions.
all of which are annexed to this Acknowledgment.
2. Details of the bank account or other account into which Grant is to be paid upon
approval of our Grant Claims are as follows [please specify]:
Name of Bank:
Sort Code:
Account Name:
Account Number:
3. We have signed both the original and the duplicate of this Acknowledgment of the
Offer Letter in the space indicated below and return the original to the Agency
together with a copy of any agreements entered into under the approved
arrangements for Match Funding. We also confirm that we have all funding
required to pay for expenditure which is not Eligible Expenditure but is needed to
enable us to complete the Project and achieve the Targets.
4. We have signed this Acknowledgment in confirmation that we have read and
understood the Offer Letter and the Standard Conditions and the Project Specific
Conditions of this Grant and agree to be bound by and to comply with, all such
terms and conditions.
Acknowledgement
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3 September 2009
SIGNED for and on behalf of [GRANT RECIPIENT]
or
[EXECUTED as a deed by [
]
acting by two directors or by one director and
the secretary:
Director
Signature
Name
:
:
Director/Secretary
Signature
Name
:
:
]
[EXECUTED as a deed by [GUARANTOR]
acting by two directors or by one director and
the secretary:
Director
Signature
Name
Director/Secretary
Signature
Name
Acknowledgement
:
:
:
:
]
Page 5
3 September 2009
Offer Letter and Acknowledgment - Schedule 1
Project Specific Conditions
Schedule 1
Page 6
3 September 2009
Offer Letter and Acknowledgment – Schedule 2
Project Specific Eligible Expenditure
Part A – Eligible Revenue Expenditure
Part B – Eligible Capital Expenditure
Schedule 2
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3 September 2009
Offer Letter and Acknowledgment – Schedule 3
The Targets
Schedule 3
Page 8
3 September 2009
Offer Letter and Acknowledgment – Schedule 4
Expenditure Profile
Schedule 4
Page 9
3 September 2009
STANDARD CONDITIONS OF THE EUROPEAN
REGIONAL DEVELOPMENT FUND (ERDF) GRANT
Standard Conditions
Page 10
3 September 2009
CONTENTS
1
DEFINITIONS ...................................................................................................................... 3
2
INTERPRETATION ........................................................................................................... 11
3
ELIGIBLE EXPENDITURE ................................................................................................ 12
4
THE APPLICATION........................................................................................................... 12
5
GRANT CLAIMS ................................................................................................................ 12
6
THE EXPENDITURE PROFILE ........................................................................................ 14
7
DECOMMITMENT OF ERDF RESOURCES .................................................................... 15
8
PROVISIONS RELATING TO ANY ASSETS ................................................................... 15
9
MATERIAL CHANGES TO THE PROJECT ..................................................................... 17
10
LEGISLATION ................................................................................................................... 17
11
PUBLICITY ........................................................................................................................ 17
12
EVENTS OF DEFAULT AND RIGHTS RESERVED FOR BREACH OF THE FUNDING
AGREEMENT .................................................................................................................... 18
13
ASSIGNMENT OR CHARGING OF THE FUNDING AGREEMENT ................................ 21
14
MONITORING PROGRESS, TENDERING AND NOTIFICATION ................................... 21
15
AUDIT REQUIREMENTS .................................................................................................. 23
16
INTELLECTUAL PROPERTY RIGHTS ............................................................................ 24
17
CONFIDENTIALITY........................................................................................................... 25
18
FREEDOM OF INFORMATION ........................................................................................ 27
19
AGENCY DATA ................................................................................................................. 28
20
DATA PROTECTION ........................................................................................................ 28
21
SECURITY REQUIREMENTS .......................................................................................... 30
22
GRANT RECIPIENT WARRANTIES ................................................................................ 30
23
NOTICES ........................................................................................................................... 31
24
VALUE ADDED TAX ......................................................................................................... 31
25
GOOD FAITH AND COOPERATION ................................................................................ 31
Standard Conditions
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3 September 2009
26
INSURANCE...................................................................................................................... 32
27
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 ............................................... 32
28
JURISDICTION ................................................................................................................. 32
29
MISCELLANEOUS ............................................................................................................ 32
ANNEXURE A THE APPLICATION ............................................................................................. 34
ANNEXURE B DEFINITIONS AND PROVISIONS RELATING TO FIXED ASSETS ONLY
............................................................................... ERROR! BOOKMARK NOT DEFINED.
ANNEXURE C PROJECT SPECIFICATIONS [IF ANNEXURE B APPLIES] .................... ERROR!
BOOKMARK NOT DEFINED.
ANNEXURE D THE PLAN [IF ANNEXURE B APPLIES]. ERROR! BOOKMARK NOT DEFINED.
Standard Conditions
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3 September 2009
INTRODUCTION
A
The Commission of the European Communities ("The Commission") has adopted a
development strategy for [Region] for the period 2007 – 13 to be carried out with the aid
of the European Regional Development Fund with the aim of strengthening the Regional
competitiveness and employment objective of the Structural Funds for the [Region] (the
“Operational Programme”). The Operational Programme was adopted by the
Commission in December 2007.
B
In the Operational Programme the UK Government has designated the Secretary of
State for Communities and Local Government as the 'managing authority' for the
Operational Programme pursuant to Article 59.1 of Regulation 1083. The Agency has
been designated by the Statutory Instrument as the 'intermediate body' for the
Operational Programme, pursuant to Article 59.2 of Regulation 1083. The Agency is
thereby authorised to carry out functions of the managing authority (as set out in Article
60 of Regulation 1083) in relation to the management and implementation of the
Operational Programme.
C
The Agency has decided to support the Project because the appraisal of the Application
indicates that the Project will further the regional objectives of the Operational
Programme and the Agency's 'Regional Economic Strategy'. The achievement of the
Targets is dependent on securing the continuous use of any Assets for the purposes of
the Project throughout their Useful Economic Life.
D
The Funding Agreement governs, among other things, the payment of Grant for the
support of the Project, the use of Grant for meeting Eligible Expenditure, and the ongoing obligations and liabilities of the Grant Recipient relating to the use and disposal of
any Assets, the auditing of Eligible Expenditure and the Agency’s contingent right to
recover Grant.
E
Conditions [
Agreement.
F
The Agency is of the opinion that the Grant is compliant with State Aid Rules and falls
within [state the basis of the opinion eg. an exemption]. The Grant Recipient is to
satisfy itself that the Grant is compliant with State Aid Rules, as no assurance is given by
the Agency.
] of these Standard Conditions do not apply to this Funding
IT IS AGREED THAT:
1
DEFINITIONS
1.1
In the agreement the following words and phrases shall have the following meanings:
"Acknowledgment" means the acknowledgment of the Offer Letter.
"the Agency" means the Regional Development Agency named in the Offer Letter and
includes its statutory successors.
"Agency’s Confidential Information" means all Personal Data and any information,
however it is conveyed, that relates to the business, affairs, developments, trade secrets,
know-how, personnel, and suppliers of the Agency, including all IPRs, together with all
information derived from any of the above, and any other information clearly designated
Standard Conditions
Page 3
3 September 2009
as being confidential (whether or not it is marked "confidential") or which ought
reasonably be considered to be confidential.
"Agency Data" means:
(a)
the data, text, drawings, diagrams, images or sounds (together with any database
made up of any of these) which are embodied in any electronic, magnetic, optical
or tangible media, and which are: (i) supplied to the Grant Recipient by or on
behalf of the Agency; or (ii) which the Grant Recipient is required to generate,
process, store or transmit pursuant to this Funding Agreement; or
(b)
any Personal Data for which the Agency is the Data Controller.
“Agency System” means the Agency's computing environment (consisting of hardware,
software and/or telecommunications networks or equipment) used by the Agency or the
Grant Recipient in connection with this Funding Agreement which is owned by or
licensed to the Agency by a third party and which interfaces with the Grant Recipient
System or which is necessary for the Agency to comply with the terms of this Funding
Agreement.
"Agency Website" means the website of the Agency [link].
"Annexure" means an Annexure to the Standard Conditions;
"Anticipated Completion Date" means the date specified as such in paragraph 6 of the
Offer Letter.
"Application" means the application for Grant and all supporting papers submitted to the
Agency, including the details of Project Activities, the Business Plan (if there is one) and
any amendments to any of these documents approved by the Agency in writing prior to
the date of the Offer Letter, a copy of which is contained or referred to in Annexure A.
"Approved Use" means use of an Asset as set out in the Application and/or the Project
Specific Conditions for its Useful Economic Life.
"Asset" means an asset which may be either a Fixed Asset or a Major Asset as
appropriate in the relevant context and "Assets" shall be construed accordingly.
"Business Plan" means any document that contains the estimates, forecasts, timetable
or other particulars relating to the Project, including the execution of the Project Activities,
the intended use of the Assets and the achievement of the Targets.
"Capital Contribution Rate" means the percentage rate in respect of Eligible Capital
Expenditure and is specified in Paragraph 5(a) of the Offer Letter.
"Capital Maximum Sum" means the maximum amount of Grant payable in respect of
Eligible Capital Expenditure and is specified in Paragraph 5(a) of the Offer Letter.
"Change" means in relation to the Project as defined in the Application any of the
following:(a)
a change in the ownership, control or final beneficiary of the Project;
Standard Conditions
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3 September 2009
(b)
a change in the nature or purpose of the Project;
(c)
any change affecting the Eligible Expenditure;
(d)
any change affecting the Expenditure Profile;
(e)
any change to any of the Key Milestone Dates;
(f)
any change to any of the Targets; and
(g)
Virement of Eligible Expenditure between specific elements of the Project.
"Completion" means completion of the Project Activities to the satisfaction of the
Agency.
"Conditions" means together all of the conditions of Grant contained in all or any of any
of the documents making up the Offer Letter and the Standard Conditions and includes
any variations agreed in writing by the Agency and the Grant Recipient.
"Confidential Information" means the Agency's Confidential Information and/or the
Grant Recipient's Confidential Information.
"Contracting Authority" means any contracting authority as defined in Regulation 5(2)
of the Public Contracts (Works, Services and Supply) (Amendment) Regulations 2000
other than the Agency.
"Contribution Rate" means the percentage rate of Eligible Expenditure at which Grant
is paid as contained in the Offer Letter and may be Capital Contribution Rate and/or
Revenue Contribution Rate.
“Council Regulations” means together Regulation 1080 and Regulation 1083.
“Crown Body” means any department, office or agency of the Crown.
"Data Controller" shall have the same meaning as set out in the Data Protection Act
1998.
"Data Processor" shall have the same meaning as set out in the Data Protection Act
1998.
"Data Protection Legislation" means the Data Protection Act 1998, the EU Data
Protection Directive 95/46/EC, the Regulation of Investigatory Powers Act 2000, the
Telecommunications (Lawful Business Practice) (Interception of Communications)
Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection
Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive)
Regulations 2003 and all applicable laws and regulations relating to processing of
personal data and privacy, including where applicable the guidance and codes of practice
issued by the Information Commissioner.
"Data Subject" shall have the same meaning as set out in the Data Protection Act 1998.
["Deed of Guarantee" means the Deed of Guarantee contained in Annexure [ ].]
Standard Conditions
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"Disposal" means the disposal, sale, transfer or the grant of any estate or interest in any
Asset and (save where reference is made in this Funding Agreement to the completion of
a disposal or disposals) includes any contract for a disposal and "Dispose" shall be
construed accordingly.
"Eligibility Rules" means the rules governing eligibility of expenditure for payment of
ERDF contained in:
(a)
Articles 55 and 56 of Regulation 1083;
(b)
The National Eligibility Rules for England; and
(c)
Articles 48 to 53 of Regulation 1828;
but subject to the list of ineligible expenditure contained in Article 7 of Regulation 1080.
"Eligible Capital Expenditure" means the expenditure set out in Part B of Schedule 2 of
the Offer Letter.
"Eligible Expenditure" means expenditure in relation to this Project within the Eligibility
Rules and in relation to this Project also the Project Specific Eligible Expenditure and
Eligible Expenditure may be either "Eligible Capital Expenditure" or "Eligible Revenue
Expenditure" (as appropriate in the context).
"Eligible Revenue Expenditure" means the expenditure set out in Part A of Schedule 2
of the Offer Letter.
"Environmental Information Regulations" means the Environmental Information
Regulations 2004 (SI No 2004/3391) together with any guidance and/or codes of practice
issued by the ‘Information Commissioner’ (as referred to therein) or relevant Government
Department in relation to such regulations.
"ERDF" means the European Regional Development Fund.
"EU Procurement Requirements" includes, but is not restricted to the Public Contracts
Regulations 2006 (SI No 5/2006), the Utilities Contracts Regulations 2006 (SI No
6/2006), the Public Contracts and Utilities Contracts (Amendment) Regulations 2007 (SI
No 2007/3542) the EU Commission Interpretive Communication (2006/C 179/02) and the
principles of transparency, non discrimination, equality of treatment, proportionality and
mutual recognition in the EC Treaty.
"Expenditure Profile" means the programme for carrying out of Project Activities and
payment of Grant including the Start Date and the Anticipated Completion Date and the
Final Payment Date, and which in respect of ERDF is contained in Schedule 4 in respect
of the Offer Letter.
"Final Payment Date" means the final date upon which the Agency shall make any
payment of Grant to the Grant Recipient and the date is specified in paragraph 6 of the
Offer Letter.
"Financial Year" means the calendar year.
Standard Conditions
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3 September 2009
"Fixed Asset" means any Asset which consists of land and/or buildings, plant,
machinery or other thing that is, or is to be, fixed to any land and which is to be acquired,
developed, enhanced, constructed and/or installed as part of the Project.
“FOIA” means 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 issued by the Information Commissioner or relevant Government Department in
relation to such legislation.
"Funding Agreement" means the agreement dated the date upon which the
Acknowledgement is signed and is constituted by the Offer Letter (including the
Schedules and any amending or supplementary documents attached to the Offer Letter),
these Standard Conditions (including the Annexures) and the completed
Acknowledgement of the Offer Letter.
"Grant" means the grant of ERDF.
"Grant Claim" means a claim for Grant to be made using the claim form which is
available on the Agency Website.
"Grant Recipient" means the party named as such in the Offer Letter.
"Grant Recipient's Background IPRs" means:
(a)
IPRs owned by the Grant Recipient before the
subsisting in the Grant Recipient's standard
components or standard code used in computer
electronic media containing the Grant Recipient's
methodologies; and/or
Start Date, for example those
development tools, program
programming or in physical or
Know-How or generic business
(b)
IPRs created by the Grant Recipient independently of this Funding Agreement, but
excluding IPRs owned by the Grant Recipient subsisting in the Grant Recipient
Software.
"Grant Recipient's Confidential Information" means any information, however it is
conveyed, that relates to the business, affairs, developments, trade secrets, know-how,
personnel and suppliers of the Grant Recipient, including IPRs, together with all
information derived from the above, and any other information clearly designated as
being confidential (whether or not it is marked as "confidential") or which ought
reasonably to be considered to be confidential.
“Grant Recipient Equipment” means the hardware, computer and telecoms devices
and equipment made available by the Grant Recipient or its sub-contractors (but not
hired, leased or loaned from the Agency) for the provision of the Project Activities.
“Grant Recipient Personnel” means all employees, agents, consultants and
contractors of the Grant Recipient and/or of any sub-contractor.
“Grant Recipient Software” means software which is proprietary to the Grant
Recipient, including software which is or will be used by the Grant Recipient for the
purposes of complying with its obligations pursuant to this Funding Agreement.
Standard Conditions
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3 September 2009
“Grant Recipient System” means the information and communications technology
system used by the Grant Recipient in performing its obligations under this Funding
Agreement including the Grant Recipient Software, Grant Recipient Equipment and
related cabling (but excluding the Agency System).
"ICT" means information and communications technology.
"ICT Environment" means the Agency System and the Grant Recipient System.
"Information" has the meaning given under section 84 of the Freedom of Information
Act 2000.
“Information Commissioner” has the meaning given under section 18 of the Freedom
of Information Act 2000.
"Instalment Period" means the period referred to in paragraph 7 of the Offer Letter.
"Intellectual Property Rights/IPRs" means all patents, know-how, registered trade
marks, registered designs, utility models, applications and rights to apply for any of the
foregoing unregistered design rights, unregistered trade marks, rights to prevent passing
off for unfair competition and copyright, database rights, topography rights and any other
rights in any invention discovery or process in each case in the United Kingdom and all
other countries in the world and together with all renewals and extensions
"Key Milestone Dates" means those milestones to achieve the Project which are
contained in paragraph 6 of the Offer Letter.
“Law” means any applicable law, statute, bye-law, regulation, order, regulatory policy,
guidance or industry code, rule of court or directives or requirements of any Regulatory
Body, delegated or subordinate legislation or notice of any Regulatory Body.
"Major Asset" means an Asset which is not a Fixed Asset but has a value as at the date
of this Funding Agreement (or date of acquisition if the acquisition is funded by this
Grant) of at least £5,000.00.
"Malicious Software" means any software program or code intended to destroy,
interfere with, corrupt, or cause undesired effects on program files, data or other
information, executable code or application software macros, whether or not its operation
is immediate or delayed, and whether the malicious software is introduced wilfully,
negligently or without knowledge of its existence.
"Match Funding" means the arrangements approved by the Agency for securing
contributions to the Project to meet the balance of Eligible Expenditure not supported by
Grant and the Match Funding details are contained in the Project Specific Conditions.
"Material Breach" means a breach of this Funding Agreement which in the opinion of
the Agency is deemed to be material.
"Material Change" means either:
(c)
any Change which involves a variance of 10% or more; or
(d)
in the opinion of the Agency, the Change is deemed to be material.
Standard Conditions
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3 September 2009
"Maximum Sum" means the maximum amount of Grant to be provided by the Agency
for the support of the Project and includes the Capital Maximum Sum and the Revenue
Maximum Sum.
"Offer Letter" means the letter and its Schedules, to which these Standard Conditions
are annexed, and by which the Agency offers Grant for the support of the Project on
specified terms and conditions, and includes any variations agreed in writing by the
Agency and the Grant Recipient.
"Official Journal" means the Official Journal of the European Union.
"Ownership, Control and Nature of Business" shall be construed in accordance with s
840 the Income and Corporation Taxes Act 1988 and s 1162 Companies Act 2006 and
for the avoidance of doubt shall include an evaluation of dominant influence and shadow
directorships in the Grant Recipient from time to time.
"Parties" means the Agency and the Grant Recipient.
"Personal Data" shall have the same meaning as set out in the Data Protection Act
1998.
"Process" has the meaning given to it under the Data Protection Legislation but, for the
purposes of this Funding Agreement, it shall include both manual and automatic
processing.
"Project" means the project fully described in the Application and briefly described in
paragraph 3 of the Offer Letter.
"Project Activities" means all the activities to be carried out and implemented in the
Project and described in the Application.
"Project Specific Conditions" means those Conditions which are specific to the Project
and are contained in Schedule 1 to the Offer Letter.
"Project Specific Eligible Expenditure" means Eligible Expenditure which is specific to
this Project and is contained in Schedule 2 to the Offer Letter.
"Public Sector Financial Assistance" includes all funding received or receivable by the
Grant Recipient from public sector bodies including for this purpose funding from the
European Commission, government bodies (whether national or local) or bodies in
receipt of lottery funds from the National Lottery Distribution Fund pursuant to the
National Lotteries Acts 1993 and 1998.
"Regulation 1080" means Regulation (EC) No 1080/2006 of 5 July 2006 of the
European Parliament and of the Council, which sets out specific provisions about the
types of activity that may be financed by ERDF.
"Regulation 1083" means Council Regulation (EC) No 1083/2006 of 11 July 2006,
which sets out general provisions about the Structural Funds.
"Regulation 1828" means Commission Regulation (EC) No 1828/2006 of 8 December
2006, which sets out rules for the implementation of the Council Regulations.
Standard Conditions
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3 September 2009
"Regulatory Bodies" means those government departments and regulatory, statutory
and other entities, committees and bodies which, whether under statute, rules,
regulations, codes of practice or otherwise, are entitled to regulate, investigate, or
influence the matters dealt with in this Funding Agreement or any other affairs of the
Agency and "Regulatory Body" shall be construed accordingly.
"Request for Information" means any request for Information or an apparent request
under the 'Code of Practice of Access to Government Information' FOIA or the
Environmental Information Regulations, as appropriate.
"Revenue Contribution Rate" means the percentage rate in respect of Eligible
Revenue Expenditure as is specified in Paragraph 5(b) of the Offer Letter.
"Revenue Maximum Sum" means the maximum amount of Grant payable in respect of
Eligible Revenue Expenditure as is specified in Paragraph 5(b) of the Offer Letter.
“SME” means a small to medium sized enterprise as set out in the ‘General Block
Exemption Regulation’ (Commission Regulation (EC) No. 800/2008 OJ L 214
09/08/2008 p 0003 – 0047).
“State Aid Rules” means those rules embodied in Articles 107 -109 of Section 2, Title
VII, of the ‘Common Rules on Competition, Taxation and Approximation of LawsConsolidated versions of the Treaty on European Union and the Treaty on the
Functioning of the European Union’ (2008/C 115/01).
"Start Date" is the date specified as such in paragraph 6 of the Offer Letter.
"Statutory Instrument"
(Reference/Date).
means
[the
relevant
RDA
Statutory
Instrument]
"Structural Funds" means together the European Regional Development Fund (ERDF),
Cohesion Funds and the European Social Fund (ESF).
"Structural Funds Regulations" means Regulation 1080, Regulation 1083 and
Regulation 1828.
"Targets" means the targets identified and detailed in Schedule 3 to the Offer Letter
which are the anticipated outputs, results and impacts of the Project.
“Term” means the period commencing on the Start Date and ending on the Final
Payment Date or on earlier termination of this Funding Agreement.
"Third Party Software" means software which is proprietary to any third party which is
or will be used by the Grant Recipient for the purposes of this Funding Agreement.
“Transaction List” means the transaction checklist appended to the Grant Claim form
available on the Agency Website.
"Useful Economic Life" means in respect of any Asset the earlier of:
(a)
the expiry of the economic life of the Asset having regard to the nature of the
Asset and its depreciation; or
Standard Conditions
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3 September 2009
(b)
the period commencing on the Final Payment Date; and
(i)
in the case of a Fixed Asset expiring on the twentieth anniversary of the
Final Payment Date; or
(ii)
in the case of a Major Asset expiring on the fifth anniversary of the Final
Payment Date.
"Working Day" means any day from Monday to Friday (inclusive) which is not Christmas
Day, Good Friday or a statutory bank holiday in England.
2
INTERPRETATION
In this Funding Agreement:
2.1
reference to any statute or any section thereof or legislation shall include any statutory
extension or modification, amendment or re-enactment of such statutes and include all
instruments, orders, bye-laws and regulations for the time being made, issued or given
thereunder or deriving validity therefrom, and all other legislation of the European Union
that is directly applicable to the United Kingdom;
2.2
reference to any clause, sub-clause, paragraph, sub-paragraph or schedule without
further designation shall be construed as a reference to the clause, sub- clause,
paragraph, sub-paragraph or schedule to this Funding Agreement so numbered;
2.3
reference to 'this Funding Agreement' includes any variations hereto made from time to
time and any agreement expressed to be supplemental hereto;
2.4
reference to “including” shall be construed so as not to limit the generality of any words or
expressions in connection with which it is used;
2.5
where the consent approval or agreement of the Agency required pursuant to the terms
of this Funding Agreement, it shall not be construed as having been given unless
provided in writing;
2.6
words importing one gender shall include both genders and the singular shall include the
plural and vice versa;
2.7
a person being connected with the Grant Recipient (if applicable) shall be construed in
accordance with the like provisions as are contained in Section 839 of the Income and
Corporation Taxes Act 1988;
2.8
the Schedules to the Offer Letter and the Annexures annexed to these Standard
Conditions have the same force and effect as if expressly set out in the body of this
Funding Agreement;
2.9
any definitions which are contained in the Offer Letter are to have the same meaning in
these Standard Conditions, and any definitions in these Standard Conditions will have
the same meaning in the Offer Letter;
2.10
the headings in this Funding Agreement will not affect its interpretation;
Standard Conditions
Page 11
3 September 2009
2.11
where there are two or more persons included in the expression “the Grant Recipient” the
obligations and warranties expressed to be entered into or given by the Grant Recipient
shall be deemed to be entered into or given by such persons jointly and severally; and
2.12
at the absolute discretion of the Agency any of the forms annexed to this Funding
Agreement may change from time to time.
3
ELIGIBLE EXPENDITURE
3.1
Grant will only be paid in respect of Eligible Expenditure.
3.2
Eligible Expenditure excludes:
(a)
payments made by the Grant Recipient that are ineligible by virtue of any
provision in the Eligibility Rules; and
(b)
any payment made by the Grant Recipient before the Start Date or after 30 June
2015, unless specifically agreed otherwise in writing by the Agency.
4
THE APPLICATION
4.1
In appraising the Project and determining the merits of providing Grant support for it, the
Agency has relied on the Application. No disclaimer or other statement that precludes the
right of any person to rely upon the Application and/or the contents of the Business Plan
or any other document that forms part of the Application, or has a similar effect, shall
apply with respect to the Agency or affect the Agency’s right to enforce any provision of
the Funding Agreement.
4.2
For the avoidance of doubt, clause 4.1 is intended to ensure that:
(a)
no disclaimer of liability for the contents of the Application affects the Agency’s
right to recover any sum under this Funding Agreement; and
(b)
there is reserved to the Agency any rights of action or remedies for any mistake,
misrepresentation or error of judgment made in the Application upon which the
Agency has relied in agreeing to provide Grant to the Grant Recipient.
5
GRANT CLAIMS
5.1
Amount of Grant payable
(a)
The total amount of Grant payable in respect of Eligible Capital Expenditure will
be either the Capital Maximum Sum, or an amount calculated by applying the
Capital Contribution Rate to the actual Eligible Capital Expenditure, whichever is
the lower.
(b)
The total amount of Grant payable in respect of Eligible Revenue Expenditure will
be either the Revenue Maximum Sum, or an amount calculated by applying the
Revenue Contribution Rate to the actual Eligible Revenue Expenditure,
whichever is the lower.
(c)
The total amount of Grant paid to the Grant Recipient cannot exceed the
Maximum Sum.
Standard Conditions
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3 September 2009
5.2
5.3
Match Funding Arrangements
(a)
The payment of Grant is conditional upon the receipt by the Grant Recipient of
other contributions (if any have been approved by the Agency) to meet the
balance of Eligible Expenditure not supported by the Grant. The Agency has
approved particulars of any financial contributions and contributions in kind
proposed by way of additional Match Funding.
(b)
In appraising the Project and determining the merits of providing Grant support
for it, the Agency has relied upon the particulars which the Grant Recipient has
provided of the Match Funding in the Application and has also relied upon all
statements regarding the payment or availability of the Match Funding.
(c)
The Grant Recipient must notify the Agency immediately of any failure by the
Grant Recipient or a third party to make a contribution due under the Match
Funding, or any circumstance that affects or might affect the payment or
availability of Match Funding.
Grant Claim Conditions
The Agency will not make the first payment of Grant or any subsequent payment of Grant
unless all of the following preconditions have been complied with:
5.4
(a)
the Grant Recipient has satisfied the Agency that the Grant Recipient has
sufficient Match Funding to complete the Project by the Anticipated Completion
Date;
(b)
the Grant Recipient has satisfied the Agency that the Grant Recipient has all
funding needed to pay for expenditure in relation to the Project which is not
Eligible Expenditure (if applicable);
(c)
that Eligible Expenditure has been defrayed (that is that Eligible Expenditure has
been incurred and that payment has been made by the Grant Recipient) in
respect of any Eligible Expenditure to which a Grant Claim relates;
(d)
no regulatory investigation by any UK or EU authorities has been commenced or
is pending in respect of the Project or the Grant Recipient, or if there has been a
regulatory investigation, it has been concluded to the satisfaction of the Agency;
(e)
if the Agency has notified the Grant Recipient that a Guarantor is required, the
Deed of Guarantee has been executed simultaneously with this Funding
Agreement; and
(f)
these Standard Conditions and the Project Specific Conditions have been
complied with and/or implemented and/or achieved (as appropriate at the
relevant time of the Grant Claim).
Grant Claims Procedure
(a)
The Grant Recipient is entitled to claim payment of Grant in arrears, for each
Instalment Period. Except for the final Grant Claim, each Grant Claim is to be
submitted within 20 Working Days of the end of the Instalment Period for which
the Grant Claim is made.
Standard Conditions
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3 September 2009
(b)
The first Grant Claim made at the end of the First Instalment Period shall relate to
all Eligible Expenditure incurred and paid by the Grant Recipient from the Start
Date.
(c)
The last date for payment by the Agency in respect of any Grant Claim is the
Final Payment Date.
(d)
In relation to the Operational Programme, for the avoidance of any doubt, no
expenditure incurred by the Grant Recipient after 30 June 2015 is eligible for
Grant support and the latest date for a Grant Claim to be submitted to the Agency
is 31 August 2015.
(e)
The Grant Claim shall include receipted invoices and accounting documents of
equivalent verifiable value (which shall include the Transaction List) in such
format and detail as may be acceptable to the Agency relating to the amount
claimed in such Grant Claim.
(f)
Each Grant Claim is to be submitted to the principal contact in the Agency who is
named at the end of the Offer Letter.
(g)
The Agency will normally meet a Grant Claim within 40 Working Days of receipt,
but this is subject to the Grant Recipient satisfactorily meeting any request for
further particulars about the Eligible Expenditure specified in the Grant Claim or
any other details provided for in the Grant Claim.
(h)
The Grant Recipient must notify the Agency promptly if at any time it becomes
aware that it is unable to make a Grant Claim in accordance with the Expenditure
Profile.
(i)
A progress report in respect of the Project must be submitted with each Grant
Claim, and at such other times as the Agency may notify to the Grant Recipient.
[Delete 5.5 if particular RDA, as Intermediate Body, does not use retention]
5.5
Retention of Grant
(a)
The Agency will pay up to 90% of the Grant in respect of Grant Claims submitted
pursuant to clause 5.4. The Agency will retain 10% of the Grant.
(b)
The 10% retention will be released when the Agency has received, and is
satisfied with, the final audit report, pursuant to clause 15.3.
6
THE EXPENDITURE PROFILE
6.1
If in any financial year (“the relevant year”) there is a shortfall in the amount of Eligible
Expenditure by reference to the amount planned in the Expenditure Profile, the Agency
will be under no obligation to pay Grant for any additional Eligible Expenditure in the
following year or any later financial year.
6.2
If in any financial year (the "relevant year") there is an overspend in the amount of
Eligible Expenditure by reference to the amount planned in the Expenditure Profile, the
Agency will be under no obligation to pay Grant in the following year or any later financial
year which was overspent in any relevant year.
Standard Conditions
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3 September 2009
6.3
The Agency may in its absolute discretion vary the Expenditure Profile.
7
DECOMMITMENT OF ERDF RESOURCES
7.1
The Grant Recipient acknowledges that the financial consequences that flow from a
departure from the Expenditure Profile in any financial year could include the loss of
ERDF resources allocated for the Operational Programme (if in that year there is underspending for the Operational Programme as a whole).
7.2
Unexpended ERDF resources not required to meet Eligible Expenditure will be
decommitted (that is, will no longer be available for payment by the Agency).
7.3
In order to avoid decommitment, if during any financial year of the Operational
Programme the Agency is reasonably satisfied that there will be a shortfall in Eligible
Expenditure and that the Grant Recipient will be unable to make up that shortfall then,
the Agency may reduce the Grant allocated for the Project and use the amount of the
reduction for any other purpose of the Operational Programme. The amount to be reallocated under these circumstances is determinable at the absolute discretion of the
Agency, but may not exceed the amount of the anticipated shortfall in Eligible
Expenditure.
7.4
Where the right reserved in clause 7.3 arises under circumstances that entitle the Agency
to exercise the rights reserved in clause 12, the right reserved to it in clause 7.3 is
exercisable in addition and without prejudice to the exercise of the rights reserved to it in
clause 12.
8
PROVISIONS RELATING TO ANY ASSETS
8.1
Inventory of the Assets
The Grant Recipient must establish and maintain an inventory of all of the Assets. For
each of the Assets the inventory must show the following particulars:
(a)
date of acquisition;
(b)
description of each Asset;
(c)
price paid net of recoverable VAT;
(d)
location of the Asset;
(e)
serial or identification numbers;
(f)
location of the title deeds or ownership records (where relevant);
(g)
date and proceeds (net of VAT) of any Disposal; and
(h)
the name and address of any person to whom a Disposal is made.
The provisions of clause 14.6 shall apply to all Assets.
8.2
Change of use of any Asset
Standard Conditions
Page 15
3 September 2009
8.3
8.4
(a)
The Grant Recipient covenants with the Agency that it will not use any Asset for
any purpose other than the Approved Use throughout the Useful Economic Life of
the Asset.
(b)
During the Useful Economic Life of each Asset, the Grant Recipient shall not
cease to use the Fixed Asset or the Major Asset, or any part of the Asset for the
Approved Use without the prior written consent of the Agency. If consent is given,
it may be subject to any conditions which the Agency may wish to impose. Such
conditions may include repayment by the Grant Recipient to the Agency of all or
part of the Grant paid to the Grant Recipient under this Funding Agreement.
(c)
If the Grant Recipient wishes to obtain the Agency’s consent to a change of the
use of any Asset, for any purpose other than the Approved Use, the Grant
Recipient must submit particulars of the new proposed use to the Agency and
explain in writing how the change of use will not prejudice the achievement of the
Targets or how the new proposed use will achieve objectives of equal value for
the implementation of the Operational Programme.
Disposal of any Asset
(a)
The Grant Recipient must not Dispose of any interest in any Asset without the
prior written consent of the Agency. If the Agency grants consent to a Disposal,
such consent may be subject to satisfaction of certain conditions, to be specified
by the Agency.
(b)
All Disposals must be for a consideration which is the best that can reasonably
be obtained in the open market, on an arms length basis, on normal market
terms, at the time of such Disposal.
(c)
Where the Grant Recipient Disposes of any interest in any Asset without the prior
written consent of the Agency, then the proceeds of the Disposal (limited to the
total amount paid by the Agency to the Grant Recipient under this Funding
Agreement) shall be immediately payable to the Agency and may be recovered
as a contractual debt if not paid within 20 Working Days of the date on which the
proceeds of the Disposal are received.
(d)
The liability under clause 8.3(c) is separate from the liability to comply with any
decision of the Agency under clause 12 to require repayment of the whole or any
part of the amount paid of the Grant, to the Grant Recipient (but subject to clause
29.12 below).
(e)
The Grant Recipient shall provide to the Agency as part of the progress report
referred to in clause 5.4(i) information in relation to any Disposals which it either
intends to make or has made with the prior written consent of the Agency at the
date of such progress report.
Charging of any Asset
During the Useful Economic Life of each Asset the Grant Recipient shall not create any
charge, legal mortgage, debenture, or lien over any Asset without the prior written
consent of the Agency.
Standard Conditions
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3 September 2009
9
MATERIAL CHANGES TO THE PROJECT
9.1
All Changes must be notified to the Agency prior to the relevant Change being
implemented.
9.2
The Agency will notify the Grant Recipient in writing if the relevant Change is material,
within 10 Working Days of receipt of the notification of the relevant Change.
9.3
Any Material Change to the Project or any aspect of the Project Activities will require the
written approval of the Agency.
9.4
Clause 5.1 of these Standard Conditions and paragraph 5 of the Offer Letter fixes the
maximum amount which the Agency will pay to the Grant Recipient for the support of the
Project regardless of any increase in Eligible Expenditure. No approval to a Material
Change to the Project or the Project Activities may be taken to approve the payment of
an additional amount of Grant or imply any intention to consider paying an additional
amount of Grant, unless it expressly makes provision to that effect.
9.5
If the Agency grants approval to any Material Change to the Project or the Project
Activities subject to a requirement to repay the whole or any part of the amount paid of
Grant, then the Grant Recipient shall repay such amount as the Agency may in its
absolute discretion request, and the liability under this clause 9.5 is separate from the
liability to comply with any decision of the Agency under clause 12 to require repayment
of Grant, but subject to clause 29.12.
10
LEGISLATION
10.1
The Grant Recipient must comply and secure compliance with the following legislation,
insofar as relevant to the Project:
(a)
the Structural Fund Regulations;
(b)
EU Procurement Requirements and State Aid Rules;
(c)
All equal opportunities legislation current during the Term.
11
PUBLICITY
11.1
The Grant Recipient shall at all times comply with:
(a)
Articles 8 and 9 of Regulation 1828; and
(b)
the publicity requirements and the branding guidelines for ERDF which are
available on the Agency Website.
11.2
The Grant Recipient shall not make or permit any of its employees, agents or advisors to
make any press or any public announcement in relation to the Project unless the
appropriate details have been notified in advance to the Agency.
11.3
The obligations in this clause shall continue after this Funding Agreement is terminated.
Standard Conditions
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3 September 2009
12
EVENTS OF DEFAULT AND RIGHTS RESERVED FOR BREACH OF THE FUNDING
AGREEMENT
12.1
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 or the
Project Specific Conditions;
(b)
the Project Activities are not commenced by the date which is 3 months after the
Start Date;
(c)
Completion of the Project Activities has not been achieved by the Anticipated
Completion Date;
(d)
the Grant Recipient in breach of clause 8.3 makes a Disposal of any Asset
without the prior written consent of the Agency;
(e)
a Material Change is made to the Project without the prior written approval of the
Agency, as required by Clause 9;
(f)
the Approved Use of any Asset has ceased before the expiry of its Useful
Economic Life;
(g)
the Grant Recipient no longer has the financial resource to carry out and
complete the Project;
(h)
a lack of progress towards achieving the Targets provides reasonable grounds
for the Agency to question the future benefits to be derived from the Project or to
doubt whether the Project will be (or will continue to be) effective for the
implementation of the Operational Programme or good value for money;
(i)
by reason of other Public Sector Financial Assistance or other funding obtained
by the Grant Recipient the Agency is satisfied that the Grant offered for the
Project is no longer required;
(j)
the Commission or the European Court of Justice or the European Court of first
instance requires any Grant paid to be recovered by reason of a breach of State
Aid Rules;
(k)
any financial irregularities or any fraud has been suspected or identified in
connection with the Project or the Commission otherwise requires the Agency to
recover any of Grant paid under the Funding Agreement
(l)
any information given or representation made in the Application or in any
correspondence, report or other document submitted to the Agency relating to
this Project or under this Funding Agreement is found to be incorrect or
incomplete to an extent which the Agency considers to be material;
(m)
any report or certificate made by the Grant Recipient’s auditor or reporting
accountant is unsatisfactory (where, for example, the report or certificate refers to
a fundamental uncertainty or disagreement, or contains a material qualification,
Standard Conditions
Page 18
3 September 2009
or states that the auditor or accountant is unable to form an opinion about any
item, or reports that any amount is not correctly stated in the accounts or records
examined);
12.2
(n)
the Grant Recipient owes any sum to the Agency under an agreement for the
financial support of any other project or activities;
(o)
there is a Material Change in the Ownership, Control and Nature of Business of
the Grant Recipient;
(p)
if the Grant Recipient is an SME, but it ceases to be an SME, and it is a
requirement arising out of State Aid Rules that the Grant Recipient remains as an
SME;
(q)
an encumbrancer takes possession or a receiver or administrative receiver or
manager or sequestrator is appointed of the whole or any part of the undertaking
assets rights or revenues of the Grant Recipient or a distress or other process is
levied or enforced upon any of the assets rights or revenues of the Grant
Recipient and any such action is not lifted or discharged within 10 Working Days;
(r)
a petition is presented (other than a petition which, in the opinion of the Agency,
is frivolous or vexatious and which is withdrawn or stayed within 10 Working
Days) to, or any order is made by, any competent court for the appointment of an
administrator in relation to the Grant Recipient;
(s)
the Grant Recipient is, or is adjudicated or found to be, insolvent or stops or
suspends payment of its debts or is (or is deemed to be) unable to or admits
inability to pay its debts as they fall due or proposes or enters into any
composition or other arrangement for the benefit of its creditors generally or
proceedings are commenced in relation to the Grant Recipient under any law
regulation or procedure relating to reconstruction or adjustment of debts;
(t)
any petition is presented by any person (other than a petition which, in the
opinion of the Agency, is frivolous or vexatious and which is withdrawn or stayed
within 10 Working Days) or any order is made by any competent court or any
resolution is passed by the Grant Recipient for its winding-up or dissolution or for
the appointment of a liquidator of the Grant Recipient; or
(u)
the Grant Recipient is in Material Breach of this Funding Agreement, other than
as contained in (a) – (t) above.
Rights reserved for the Agency in relation to an Event of Default
Where, in the absolute discretion of the Agency, the Agency decides that an Event of
Default has occurred, the Agency may by written notice to the Grant Recipient take any
one or more of the following actions:
(a)
suspend the payment of Grant for such period as the Agency shall determine;
and/or
(b)
vary the Maximum Sum in which case the payment of Grant shall thereafter be
made in accordance with the variation notified to the Grant Recipient; and/or
Standard Conditions
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3 September 2009
12.3
12.4
(c)
cease to make payments of Grant to the Grant Recipient under this Funding
Agreement and (in addition) require the Grant Recipient to repay to the Agency
the whole or any part of the amount of Grant previously paid to the Grant
Recipient; and/or
(d)
terminate this Funding Agreement.
Opportunity for the Grant Recipient to remedy an Event of Default
(a)
If the Agency gives written notice to the Grant Recipient pursuant to clause
12.2(a) to suspend payment of Grant, 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 Agency shall determine to be
reasonable and as shall be set out in such written notice (or such extended
period as the Agency shall thereafter determine in is discretion).
(b)
The Agency shall not by reason of the occurrence of an Event of Default which is,
in the opinion of the Agency, capable of remedy, exercise its rights under either
clause 12.2(c) or clause 12.2(d) unless the Grant Recipient has failed to rectify
the default pursuant to clause 12.3(a) within such period referred to in clause
12.3(a) to the satisfaction of the Agency.
Continued rights of actions or remedies of the Agency
The exercise by the Agency of its rights under clause 12.2 shall be without prejudice to
any other right of action or remedy of the Agency in respect of any breach by the Grant
Recipient of the provisions of the Funding Agreement.
12.5
Cessation of entitlement to Grant
If the Agency exercises its right under clause 12.2(c) the Agency shall give written notice
to the Grant Recipient that the Agency is ceasing to make payment of Grant and from the
date of such notice the Agency shall cease to be under any obligation to pay any amount
of Grant to the Grant Recipient under the Funding Agreement.
12.6
Liability to meet demand for repayment of Grant
(a)
Where the Agency requires the Grant Recipient to repay any amount of Grant,
the Grant Recipient shall repay the amount concerned within 20 Working Days of
receiving the demand for repayment. The liability to meet such a demand shall be
enforceable as a contractual debt.
(b)
Where the Agency makes a determination to recover any amount of Grant, it may
recover the amount concerned by withholding or deducting the amount from any
sum due from the Agency to the Grant Recipient under a funding agreement for
the support of any other project or activities by the ERDF, or under a different
agreement with the Agency relating to Single Programme funding or otherwise.
(c)
The Agency may require interest to be paid on any amount repayable by the
Grant Recipient in accordance with the rates published in the Official Journal
from time to time.
Standard Conditions
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3 September 2009
13
ASSIGNMENT OR CHARGING OF THE FUNDING AGREEMENT
13.1
Assignment or charging of the Funding Agreement
(a)
The Grant Recipient may not, without the prior written consent of the Agency,
assign its rights under the Funding Agreement or charge the benefit of the
Funding Agreement or novate the rights and liabilities of the Funding Agreement
to a third party.
(b)
If the Grant Recipient wishes to assign, charge or novate its rights and liabilities
under the Funding Agreement, it will give as much notice as possible of its
proposals to the Agency and will provide a full account of relevant circumstances
and such further particulars as the Agency shall request concerning the party to
which the Funding Agreement is to be assigned, novated or charged.
(c)
The Agency shall have absolute discretion as to its decision as to whether to give
consent to an assignment or novation or charging of the Funding Agreement or
as to any conditions to be imposed.
(d)
If the Agency consents to an assignment, charge or novation, then the Agency
may notify the Grant Recipient that the documentation giving effect to the
assignment, charge or novation is to be approved by the Agency and copies of all
completed documents supplied to the Agency upon completion of the same.
14
MONITORING PROGRESS, TENDERING AND NOTIFICATION
14.1
Submission of progress reports
14.2
(a)
The Grant Recipient must send to the Agency, at such intervals as the Agency
shall notify in writing to the Grant Recipient, a report on progress made towards
the achievement of the Targets. Without prejudice to any provision of any of
these Standard Conditions conferring a remedy for failure to achieve any of the
Targets, this obligation shall subsist until the Targets have been achieved or, if
earlier, until the end of the Useful Economic Life of the Assets.
(b)
The Grant Recipient must provide such additional information in such format as
the Agency may at any time require. This includes information about the progress
of the Project Activities, the achievement of the Targets and any other information
required to enable the Agency or UK Government to meet its reporting
obligations and other obligations under State Aid Rules and the Structural Funds
Regulations.
Value for money and procurement requirements
(a)
The Grant Recipient warrants that it has complied with EU Procurement
Requirements to date in relation to the Project.
(b)
The Grant Recipient shall comply with current EU Procurement Requirements at
all times in relation to the Project.
(c)
The Agency shall be entitled to request information to verify that there has been
compliance with EU Procurement Requirements in relation to the Project.
Standard Conditions
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3 September 2009
14.3
14.4
Tendering
(a)
The Agency's tendering procedure requirements are available on the Agency
Website and the Grant Recipient shall at all times comply with those tendering
requirements in relation to the Project.
(b)
The Grant Recipient must, if required by the Agency, provide an account in
writing or by providing relevant documents of the procurement practices adopted
for the Project Activities, and of how tenders have been assessed and tenderers
have been selected.
Notification by the Grant Recipient
The Grant Recipient shall notify the Agency in writing:
14.5
(a)
as soon as practicable thereafter firstly 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 and secondly of any event which materially
affects the continued accuracy of such information;
(b)
as soon as practicable thereafter, in the event of the receipt of any other Public
Sector Financial Assistance or guarantees of other Public Sector Financial
Assistance or other funding obtained by the Grant Recipient in relation to the
Project, 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);
(c)
as soon as practicable thereafter, of any event which might adversely affect the
carrying out and/or completion of the Project Activities or any part of them;
(d)
prior to any proposed Disposal or any charging of any Asset during its Useful
Economic Life;
(e)
prior to any change of use of any Asset from the Approved Use during its Useful
Economic Life;
(f)
as soon as practicable thereafter, of any event which might adversely affect the
delivery of the Project by the Anticipated Completion Date;
(g)
within 5 Working Days of any Disposal, details of that Disposal of the whole or
any part of the Assets up to that date, together with details and evidence of the
consideration obtained and (if required by the Agency) together with copies of all
relevant documentation; and
(h)
forthwith, on the occurrence of an Event of Default.
Records
(a)
The Grant Recipient shall provide the Agency with such information and
documentation as the Agency may require in connection with the Project from the
date of the Funding Agreement to the date on which the Grant Recipient has
fulfilled all its obligations under this Funding Agreement.
Standard Conditions
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3 September 2009
14.6
14.7
(b)
The Grant Recipient must keep a record of all Eligible Expenditure, all quotes,
tenders and procurement practices, all financial contributions made towards the
Project and all income generated by the Project.
(c)
The Grant Recipient will provide to the Agency such information as is available as
to the number of persons employed in connection with the Project and such other
information as may be requested by the Agency as to the benefits derived from
the provision of funding for the Project.
(d)
The Grant Recipient must comply with the requirements of the Agency regarding
the keeping of records available on the Agency Website.
Retention of documents
(a)
The Grant Recipient will ensure that all original documents relating to the Project
and its implementation and financing are retained until 31 December 2025.
(b)
The Grant Recipient will make available the original documents or verified true
copies of the documents relating to the Project and its implementation and
financing if and when required to do so by the Agency, the Department of
Communities and Local Government, the European Court of Auditors, the
European Commission auditors, the National Audit Office or Government Office
(and also their respective auditors).
Conflicts of interest and financial irregularities
(a)
The Grant Recipient and all officers, employees 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.
(b)
If the Grant Recipient has any grounds for suspecting any financial irregularity in
the use of any amount paid under the Funding Agreement, it must notify the
Agency immediately, explain what steps are being taken to investigate the
suspicion, and keep the Agency 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 failure to comply with
requirements in the Structural Funds Regulations relating to the control and
propriety of project expenditure.
(c)
The Agency shall be entitled to interview employees of the Grant Recipient if
fraud or other financial irregularity is suspected by the Agency on the part of the
Grant Recipient, its employees or agents in connection with the Project.
15
AUDIT REQUIREMENTS
15.1
Inspection and audit facilities
(a)
The Grant Recipient shall maintain full and accurate accounts and documentary
evidence for the Project on an open book basis and the Grant Recipient shall
permit the Agency and persons authorised by the Agency to inspect audit and
Standard Conditions
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3 September 2009
take copies of all reports books accounting records and vouchers which the
Agency properly considers relevant to the Project. If the Grant Recipient is a local
authority then the audit may be carried out by an auditor appointed by the Audit
Commission.
15.2
15.3
(b)
Grant recipients and other bodies involved in the implementation of
operations must maintain either a separate accounting system or an
adequate accounting code for all transactions relating to the operation without
prejudice to national accounting rules.
(c)
The Grant Recipient shall comply with Agency's audit monitoring and reporting
requirements for grant recipients which are available on the Agency Website.
(d)
The Grant Recipient shall provide the Agency with such other information as the
Agency may require in connection with the Project and the Project Activities.
Final and annual audits
(a)
Annual and final audits are optional. If an Agency, as the Intermediate Body,
decides not to deploy an annual and/or final audit clause 15.2 and/or 15.3
should be disapplied in Paragraph E in the introduction to the Standard
Conditions.
(b)
Where 15.3 is retained the 10% retention will not be released until the final audit
has taken place and is found by the Agency, as the Intermediate Body, to be
satisfactory.
(c)
In the case of Local Authority, any auditor will be appointed by the Audit
Commission.
Final audit report
(a)
Where applicable the Grant Recipient must submit the final audit report in the
form available on the Agency Website no later than 3 months after submitting the
final Grant Claim.
(b)
On receipt of a final audit report satisfactory to the Agency, the Agency will pay
any amount of Grant which is outstanding (including the retention pursuant to
clause 5.5). Alternatively, if the statement or report shows that there has been an
overpayment of Grant, the Grant Recipient must repay the amount concerned
within 20 Working Days of being requested to do so.
16
INTELLECTUAL PROPERTY RIGHTS
16.1
The Intellectual Property Rights created by the Grant Recipient under the Project remain
the property of the Grant Recipient, but subject always to the following provisions of this
clause 16.
16.2
The Grant Recipient acknowledges that it is a condition of the Agency’s funding of the
Project that the Agency shall be entitled to make information and know-how relating to or
derived from the Project (Project Related Know-how") publicly available. The Agency will
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3 September 2009
regard this Project Related Know-how as “best practice” notwithstanding that this Project
Related Know-how may constitute Intellectual Property Rights belonging to the Grant
Recipient or a third party and that such best practice will as a result enter the public
domain.
16.3
The Grant Recipient agrees to provide to the Agency upon request with complete copies
(where relevant) and access to full details and information of Project Related Know-how,
(including the methods by which the Project was conducted) and the Grant Recipient's
Intellectual Property Rights. The Grant Recipient shall provide whatever assistance and
explanation is required by the Agency to enable it effectively to exercise the right referred
to in clause 16.2.
16.4
When exercising the right referred to in clause 16.2, the Agency shall not be obliged to
identify the Grant Recipient or anybody who has contributed to the Project, unless the
Agency publishes work belonging to the Grant Recipient or a material part thereof without
amendment in which case due credit shall be given.
16.5
The Agency’s decision as to what constitutes best practice shall be final. The Agency
shall have the right to amend the Project Related Know-how or to combine information
and know-how from two or more projects as it thinks fit to when compiling and publishing
what it regards as best practice in exercise of the right referred to in clause 16.2.
16.6
The Grant Recipient warrants to the Agency that neither the Intellectual Property Rights
nor any publication by the Agency of the Project Related Know-how will infringe, in whole
or in part, any Intellectual Property Right of any other person and agrees to indemnify
and hold the Agency harmless against any and all claims, demands and proceedings
arising directly or indirectly out of the Agency’s publication or use of the Project Related
Know-how where this gives rise to or is alleged to give rise to an infringement of third
party Intellectual Property Rights.
16.7
The Agency reserves the right to request an irrevocable, perpetual, transferable royalty
free licence in respect of Intellectual Property Rights without payment of any
consideration to the Grant Recipient.
17
CONFIDENTIALITY
17.1
Except to the extent set out in this clause 17 or where disclosure is expressly permitted
elsewhere in this Funding Agreement, each party shall:
17.2
(a)
treat the other party's Confidential Information as confidential and safeguard it
accordingly; and
(b)
not disclose the other party's Confidential Information to any other person without
the owner's prior written consent.
Clause 17.1 shall not apply to the extent that:
(a)
such disclosure is a requirement of Law placed upon the party making the
disclosure, including any requirements for disclosure under the FOIA, ‘Code of
Practice on Access to Government Information’ or the Environmental Information
Regulations pursuant to clause 18 (Freedom of Information);
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3 September 2009
(b)
such information was in the possession of the party making the disclosure without
obligation of confidentiality prior to its disclosure by the information owner;
(c)
such information was obtained from a third party without obligation of
confidentiality;
(d)
such information was already in the public domain at the time of disclosure
otherwise than by a breach of this Funding Agreement; or
(e)
it is independently developed without access to the other party's Confidential
Information.
17.3
The Grant Recipient may only disclose the Agency's Confidential Information to the Grant
Recipient Personnel who are directly involved in the Project and who need to know the
information, and shall ensure that such Grant Recipient Personnel are aware of and shall
comply with these obligations as to confidentiality.
17.4
The Grant Recipient shall not, and shall procure that the Grant Recipient Personnel do
not, use any of the Agency's Confidential Information received otherwise than for the
purposes of this Funding Agreement.
17.5
Nothing in this Funding Agreement shall prevent the Agency from disclosing the Grant
Recipient's Confidential Information:
(a)
to any Crown body or any other Contracting Authority. All Crown Bodies or
Contracting Authorities receiving such Confidential Information shall be entitled to
further disclose the Confidential Information to other Crown Bodies or other
Contracting Authorities on the basis that the information is confidential and is not
to be disclosed to a third party which is not part of any Crown body or any
Contracting Authority;
(b)
to any consultant, contractor or other person engaged by the Agency or any
person conducting an Office of Government Commerce gateway review;
(c)
to enable the Agency or UK Government to meet its reporting obligations and
other obligations under State Aid Rules and the Structural Funds Regulations for
the purpose of clause 14.1 (b) of this Funding Agreement;
(d)
for the purpose of any audit pursuant to clause 15 of this Funding Agreement;
(e)
for the purpose of the examination and certification of the Agency's accounts; or
(f)
for any examination pursuant to Section 6(1) of the National Audit Act 1983 of the
economy, efficiency and effectiveness with which the Agency has used its
resources.
17.6
The Agency shall use all reasonable endeavours to ensure that any Crown Body,
government department, Contracting Authority, external auditor, employee, third party or
Sub-contractor to whom the Grant Recipient's Confidential Information is disclosed
pursuant to clause 17.6 is made aware of the Agency's obligations of confidentiality.
17.7
Nothing in this clause 17 shall prevent either party from using any techniques, ideas or
know-how gained during the performance of the Project Activities and/or Funding
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3 September 2009
Agreement in the course of its normal business to the extent that this use does not result
in a disclosure of the other party's Confidential Information or an infringement of IPR.
18
FREEDOM OF INFORMATION
18.1
The Grant Recipient acknowledges that the Agency is subject to the requirements of the
‘Code of Practice on Access to Government Information’, FOIA and the Environmental
Information Regulations and shall assist and cooperate with the Agency to enable the
Agency to comply with its Information disclosure obligations.
18.2
The Grant Recipient shall and shall procure that its sub-contractors shall:
(a)
transfer to the Agency all Requests for Information that it receives as soon as
practicable and in any event within two Working Days of receiving a Request for
Information;
(b)
provide the Agency with a copy of all Information in its possession, or power in
the form that the Agency requires within five Working Days (or such other period
as the Agency may specify) of the Agency's request; and
(c)
provide all necessary assistance as reasonably requested by the Agency to
enable the Agency to respond to the Request for Information within the time for
compliance set out in section 10 of the FOIA or regulation 5 of the Environmental
Information Regulations.
18.3
The Agency shall be responsible for determining in its absolute discretion and
notwithstanding any other provision in this Funding Agreement or any other agreement
whether any Information is exempt from disclosure in accordance with the provisions of
the Code of Practice on Government Information, FOIA or the Environmental Information
Regulations.
18.4
In no event shall the Grant Recipient respond directly to a Request for Information unless
expressly authorised to do so by the Agency.
18.5
The Grant Recipient acknowledges that (notwithstanding the provisions of this clause 18)
the Agency may, acting in accordance with the Department of Constitutional Affairs’
Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of
FOIA (“the Code”), be obliged under the FOIA, or the Environmental Information
Regulations to disclose information concerning the Grant Recipient or the Project
Activities:
(a)
in certain circumstances without consulting the Grant Recipient; or
(b)
following consultation with the Grant Recipient and having taken their views into
account;
provided always that where 18.5(a) applies the Agency shall, in accordance with any
recommendations of the Code, take reasonable steps, where appropriate, to give the
Grant Recipient advanced notice, or failing that, to draw the disclosure to the Grant
Recipient’s attention after any such disclosure.
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3 September 2009
19
AGENCY DATA
19.1
The Grant Recipient shall not delete or remove any proprietary notices contained within
or relating to the Agency Data.
19.2
The Grant Recipient shall not store, copy, disclose, or use the Agency Data except as
necessary for the performance by the Grant Recipient of its obligations under this
Funding Agreement or as otherwise expressly authorised in writing by the Agency.
19.3
The Grant Recipient shall take responsibility for preserving the integrity of Agency Data
and preventing the corruption or loss of Agency Data.
19.4
If at any time the Grant Recipient suspects or has reason to believe that Agency Data
has or may become corrupted, lost or sufficiently degraded in any way for any reason,
then the Grant Recipient shall notify the Agency immediately and inform the Agency of
the remedial action the Grant Recipient proposes to take.
20
DATA PROTECTION
20.1
With respect to the parties' rights and obligations under this Funding Agreement, the
parties agree that the Agency is the Data Controller and that the Grant Recipient is the
Data Processor.
20.2
The Grant Recipient shall:
(a)
Process the Personal Data only in accordance with instructions from the Agency
(which may be specific instructions or instructions of a general nature as set out
in this Funding Agreement or as otherwise notified by the Agency to the Grant
Recipient during the Term);
(b)
Process the Personal Data only to the extent, and in such manner, as is
necessary for the provision of the Project Activities or as is required by Law or
any Regulatory Body;
(c)
implement appropriate technical and organisational measures to protect the
Personal Data against unauthorised or unlawful processing and against
accidental loss, destruction, damage, alteration or disclosure. These measures
shall be appropriate to the harm which might result from any unauthorised or
unlawful Processing, accidental loss, destruction or damage to the Personal Data
and having regard to the nature of the Personal Data which is to be protected;
(d)
take reasonable steps to ensure the reliability of any Grant Recipient Personnel
who have access to the Personal Data;
(e)
obtain prior written consent from the Agency in order to transfer the Personal
Data to any contractors or affiliates for the provision of the Project Activities;
(f)
ensure that all Grant Recipient Personnel required to access the Personal Data
are informed of the confidential nature of the Personal Data and comply with the
obligations set out in this clause 20;
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3 September 2009
(g)
ensure that none of Grant Recipient Personnel publish, disclose or divulge any of
the Personal Data to any third party unless directed in writing to do so by the
Agency;
(h)
notify the Agency (within five Working Days) if it receives:
(i)
(i)
a request from a Data Subject to have access to that person's
Personal Data; or
(ii)
a complaint or request relating to the Agency's obligations under
the Data Protection Legislation;
provide the Agency with full cooperation and assistance in relation to any
complaint or request made, including by:
(i)
providing the Agency with full details of the complaint or request;
(ii)
complying with a data access request within the relevant
timescales set out in the Data Protection Legislation and in
accordance with the Agency's instructions;
(iii)
providing the Agency with any personal data it holds in relation to
a Data Subject (within the timescales required by the Agency);
and
(iv)
providing the Agency with any information requested by the
Agency;
(j)
permit the Agency or a representative of the Agency (including, but not limited to,
the Audit Commission), to inspect and audit (subject to reasonable and
appropriate confidentiality undertakings), in accordance with clause 15 (Audit
Requirements), the Grant Recipient's Data Processing activities (and/or those of
its agents, subsidiaries and contractors) and comply with all reasonable requests
or directions by the Agency to enable the Agency to verify and/or procure that the
Grant Recipient is in full compliance with its obligations under this Funding
Agreement;
(k)
provide a written description of the technical and organisational methods
employed by the Grant Recipient for processing Personal Data (within the
timescales required by the Agency); and
(l)
not Process Personal Data outside the European Economic Area without the
prior written consent of the Agency and, where the Agency consents to a transfer,
to comply with:
(i)
the obligations of a Data Controller under the Eighth Data Protection
Principle set out in Schedule 1 of the Data Protection Act 1998 by
providing an adequate level of protection to any Personal Data that is
transferred; and
(ii)
any reasonable instructions notified to it by the Agency.
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3 September 2009
20.3
The Grant Recipient shall comply at all times with the Data Protection Legislation and
shall not perform its obligations under this Funding Agreement in such a way as to cause
the Agency to breach any of its applicable obligations under the Data Protection
Legislation.
21
SECURITY REQUIREMENTS
Malicious Software
21.1
The Grant Recipient shall, as an enduring obligation throughout the Term, use the latest
versions of anti-virus definitions available from an industry accepted anti-virus software
vendor to check for and delete Malicious Software from the ICT Environment.
21.2
Notwithstanding clause 21.1, if Malicious Software is found, the parties shall co-operate
to reduce the effect of the Malicious Software and, particularly if Malicious Software
causes loss of operational efficiency or loss or corruption of Agency Data, assist each
other to mitigate any losses and to restore the Project Activities to their desired operating
efficiency.
21.3
Any cost arising out of the actions of the parties taken in compliance with the provisions
of clause 21.2 shall be borne by the parties as follows:
(a)
by the Grant Recipient where the Malicious Software originates from the Grant
Recipient Software, the Third Party Software or the Agency Data (whilst the
Agency Data was under the control of the Grant Recipient); and
(b)
by the Agency if the Malicious Software originates from the Agency Software or
the Agency Data (whilst the Agency Data was under the control of the Agency).
22
GRANT RECIPIENT WARRANTIES
22.1
The Grant Recipient warrants, represents and undertakes for the duration of the Term
that:
(a)
it has and will continue to hold all necessary (if any) regulatory approvals from the
Regulatory Bodies necessary to perform the Grant Recipient's obligations under
this Funding Agreement;
(b)
it has and will continue to have all necessary rights in and to the Grant Recipient
Software or any Third Party Software and/or the Grant Recipient's Background
IPRs, or any other materials made available by the Grant Recipient and/or the
sub-contractors to the Agency necessary to perform the Grant Recipient's
obligations under this Funding Agreement;
(c)
in performing its obligations under this Funding Agreement, all Software used by
or on behalf of the Grant Recipient will:
(d)
(i)
be currently supported versions of that Software; and
(ii)
perform in all material respects in accordance with its specification,
as at the Start Date all statements and representations in the Grant Recipient's
Application are to the best of its knowledge, information and belief, true and
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3 September 2009
accurate and that it will advise the Agency of any fact, matter or circumstance of
which it may become aware which would render any such statement,
representation to be false or misleading; and
(e)
it shall at all times comply with Law in carrying out its obligations under this
Funding Agreement.
23
NOTICES
23.1
Any notice demand or communication to be given or served under this Funding
Agreement shall be in writing.
23.2
Any notice demand or communication to be given or served under this Funding
Agreement shall be given or served:
(a)
in the case of notice to be served upon the Agency, by personal delivery or by
sending it by pre-paid recorded postal delivery to the address specified in the
Funding Agreement for the attention of the Director of the European Programme
or to such other address as may from time to time be notified by the Agency; and
(b)
in the case of notice to be served upon the Grant Recipient, by personal delivery
or by sending it by pre-paid recorded postal delivery to the address specified in
this Funding Agreement or such other address as may from time to time be
notified by the Grant Recipient to the Agency.
23.3
Any such notice shall (where sent by post) be deemed to have been served and received
on the second working day following the day of posting and where delivered personally
be deemed to have been given when delivery is made.
23.4
If the Grant Recipient shall comprise more than one person the service of any notice
demand request or other communication on any one of such persons shall constitute
good service on all of them.
24
VALUE ADDED TAX
24.1
The payment of the Grant by the Agency under the Funding Agreement is believed to be
outside the scope of Value Added Tax but if any Value Added Tax shall become
chargeable all payments shall be deemed to be inclusive of all Value Added Tax and the
Agency shall not be obliged to pay any additional amount by way of Value Added Tax.
24.2
All sums or other consideration payable to or provided by the Grant Recipient to the
Agency at any time shall be deemed to be exclusive of all Value Added Tax payable and
where any such sums become payable or due or other consideration is provided the
Grant Recipient shall at the same time or as the case may be on demand by the Agency
in addition to such sums or other consideration pay to the Agency all the Value Added
Tax so payable upon the receipt of a valid Value Added Tax invoice.
25
GOOD FAITH AND COOPERATION
25.1
The Grant Recipient covenants with the Agency that:
(a)
it shall at all times act with the utmost good faith towards the Agency and will at
all times co-operate fully with the Agency;
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3 September 2009
26
(b)
it will comply with all the Agency's reasonable requirements in relation to the
Project from time to time; and
(c)
it will not do anything which will put the Agency in breach of any of its obligations
in relation to the Operational Programme.
INSURANCE
The Grant Recipient covenants with the Agency that it will ensure that it maintains at all
times adequate insurance cover with an insurer of good repute to cover all claims and
liabilities under this Funding Agreement or any other claims or demands which may be
brought or made against it by any person suffering any injury damage or loss in
connection with the Project.
27
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not party to this Funding Agreement is not intended to have any right
under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Funding Agreement.
28
JURISDICTION
This Funding Agreement shall be governed by and construed in accordance with the law
of England and each party submits to the exclusive jurisdiction of the English Courts.
29
MISCELLANEOUS
29.1
Nothing in this Funding Agreement shall constitute a partnership or joint venture between
the parties to this Funding Agreement or constitute the Grant Recipient as the agent of
the Agency for any purpose whatsoever.
29.2
A certificate by the Agency as to any sum payable under this Funding Agreement to the
Grant Recipient shall be conclusive save in the case of manifest error.
29.3
This Funding Agreement may only be amended by a deed duly executed by the Agency
and the Grant Recipient.
29.4
If at any time any of the provisions of this Funding Agreement become illegal, invalid or
unenforceable in any respect under any law or regulation of any jurisdiction, neither the
legality validity nor enforceability of the remaining provisions of this Funding Agreement
shall be in any way affected or impaired as a result.
29.5
No failure or delay on the part of the Agency in exercising any right or power and no
course of dealing between the parties to this Funding Agreement shall operate as a
waiver nor shall any single or partial exercise of any right power or remedy of the Agency
prevent any other or further or other exercise of it or the exercise of any other right power
or remedy of the Agency. The rights and remedies available to the Agency under this
Funding Agreement are cumulative and are in addition to and not in substitution for any
other rights or remedies which the Agency would otherwise have, however arising.
29.6
Nothing contained in or done under this Funding Agreement and no consents given by
the Agency shall prejudice the Agency’s rights, powers or duties and/or obligations in the
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3 September 2009
exercise of its functions or under any statutes, bye-laws, instruments orders or
regulations.
29.7
Nothing in this Funding Agreement nor any other document shall impose any obligation
or liability on the Agency with respect to any actions of or obligations or liabilities
assumed or incurred by the Grant Recipient or its agents, contractors or employees
whether under contract, statute or otherwise.
29.8
Any approval by the Agency or any person on behalf of the Agency pursuant to this
Funding Agreement of any matter submitted by the Grant Recipient for approval shall not
be deemed to be an Acknowledgment by the Agency of the correctness or suitability of
the contents of the subject of the approval or consent.
29.9
The fact that the Agency or its representatives have supplied or received any documents
or information or attended any meeting shall not in itself imply approval of any matters
raised in any such document, information or meeting or relieve the Grant Recipient of any
obligation or liability in respect of the Project Activities or otherwise.
29.10 Nothing in this Funding Agreement shall affect the coming into force or the continuance
in force of any provision of this Funding Agreement which is expressly or by implication to
come into force or continue in force upon termination or expiry of this Funding
Agreement.
29.11 This Funding Agreement contains all the terms which the Agency has agreed in relation
to the subject matter of this Funding Agreement and supersedes any prior written or oral
agreements representations or understandings between the Agency and the Grant
Recipient.
29.12 Notwithstanding any other provisions of this Funding Agreement, the Agency shall not be
entitled to be reimbursed or to recover any monies that it has paid under this Funding
Agreement to the extent that it has already been compensated or reimbursed in respect
of that same amount pursuant to this Funding Agreement.
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ANNEXURE A
The Application
Annexure A
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3 September 2009