SQE Services Agreement

101 Pages·2017·1.17 MB·English

Date: ………………………… 2017.

The Law Society of England & Wales (acting through the
Solicitors Regulation Authority)

[…………………………]

Tender to Deliver the Solicitors Qualifying
Examination
Invitation to Submit an Outline Solution
15 June 2017
Annex 2
Draft SQE Services Agreement
Contents
No. Heading Page
1. Definitions and Interpretation 5
2. Commencement and Duration 18
3. Due Diligence 18
4. Services 19
5. General Undertakings 19
6. Assessment Supplier Undertakings 20
7. Phases 20
8. Pre-Implementation Phase 21
9. [Funding of the Pre-Implementation Phase] 21
10. Implementation Phase 21
11. Acceptance of Deliverables 22
12. Approval of Documents (other than Deliverables) 22
13. Milestones 23
14. Service Levels 24
15. Examiners 24
16. Key Persons 24
17. Transfer of Employees 25
18. Failure to comply with Examination Timetable 25
19. Training and Preparatory Courses 25
20. Complaints 27
21. Appeals by Candidates 27
22. Third Party Cooperation 28
23. Engagement Obligations 28
24. Governance 28
25. Continuous Improvement 28
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26. Change Control Procedure 29
27. Security 29
28. Back-up of Data 30
29. Data Protection 30
30. Business Continuity Plan/Disaster Recovery 32
31. Fees 32
32. Threshold Profit Margin 33
33. Re-Investment Fund 33
34. Open Book Accounts 34
35. Audits 34
36. Spot Checks 35
37. Reporting 36
38. Assessment Supplier's Record Keeping Obligations 36
39. FOI 37
40. Intellectual Property 38
41. Branding 39
42. Confidentiality 40
43. Indemnities 40
44. Liability 42
45. Insurance 43
46. Financial Standing of Assessment Supplier 44
47. Change of Control 44
48. Parent Company Guarantee 44
49. Assessment Supplier's Compliance with Laws / Changes in Law 44
50. Equality and Diversity 45
51. Anti-Bribery 46
52. Modern Slavery and Human Trafficking 46
53. Fraud 47
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54. Step-In 48
55. SRA's Right to Terminate for Cause 49
56. Assessment Supplier's Right to Terminate for Cause 50
57. Termination Without Cause 50
58. Partial Termination 51
59. Consequences of Termination 51
60. Exit Management 51
61. Force Majeure 51
62. Subcontracting and Assignment 52
63. Disputes 52
64. Notices 53
65. Publicity 54
66. Waiver 54
67. Illegality/Severance 54
68. Amendments 54
69. Counterparts 54
70. Further Assurance 54
71. Rights of Third Parties 55
72. Relationship Between the Parties 55
73. Costs 55
74. Entire Agreement 55
75. Governing Law and Jurisdiction 55
Schedule 1 – Assessment Specification 56
Schedule 2 – Statement of Requirements 57
Schedule 3 – Deliverables 58
Schedule 4 - Milestone Plan 59
Schedule 5 – Standards and Policies 60
Schedule 6 – Service Levels 61
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Schedule 7 – Remedial Plan Process 64
Schedule 8 - Key Persons 66
Schedule 9 - Employment and Pensions 67
Schedule 10 - Governance 71
Schedule 11 – Change Control Procedure 73
Schedule 12 – Data Protection 78
Schedule 13 – Business Continuity Plan 81
Schedule 14 – Candidate Fees 82
Schedule 15 – Intellectual Property 83
Schedule 16 - Trade Marks 84
Schedule 17 - Parent Company Guarantee 85
Schedule 18 – Exit Management 92
Schedule 19 - Termination Payment 98
Schedule 20 - Approved Subcontractors 99

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THIS AGREEMENT is made this [ ● ] day of [ ● ] 2017
BETWEEN:
(1) The Law Society of England & Wales, a Society incorporated by Royal Charter, number
RC000304, with registered office address: 113 Chancery Lane, London, England WC2A 1PL
("TLS"); and
(2) [ ● ] [LIMITED][PLC] a company registered in [England] (company registration number
[ ● ]) whose registered office is at [ ● ] (the "Assessment Supplier").
BACKGROUND:
(A) TLS is the independent professional body for solicitors in England and Wales. The Solicitors
Regulation Authority ("SRA") is the regulatory body of TLS.
(B) TLS, acting through the SRA, held a competitive tender in order to identify a supplier to develop,
test and deliver the Solicitors Qualifying Examination ("SQE") in accordance with the SRA's
requirements and to work collaboratively with the SRA in ensuring the integrity and success of
the SQE.
(C) The Assessment Supplier was selected by the SRA as the successful tenderer.
(D) The Assessment Supplier is willing and able to develop, test and deliver the SQE for the SRA
and to work collaboratively with the SRA in accordance with this Agreement.
IT IS AGREED AS FOLLOWS:
1. Definitions and Interpretation
1.1 In this Agreement the following terms shall have the following meanings:
"Acceptance" means acceptance of a Deliverable by the SRA in accordance with the process
set out in Clause 11 and "Accept" and "Accepted" should be construed accordingly;
"Applicable Data Protection Law" shall mean: (i) prior to 25 May 2018, the UK Data Protection
Act 1998; and (ii) on and after 25 May 2018, Regulation 2016/679 of the European Parliament
and of the Council on the protection of natural persons with regard to the processing of personal
data and on the free movement of such data, and repealing Directive 95/46/EC (General Data
Protection Regulation) together with any successor data protection and privacy law(s) to which
the SRA is subject within its country of establishment;
"Annual Report" has the meaning given in Clause 37.1;
"Annual Review" means the annual review meeting to be held in accordance with Schedule 10
(Governance);
"Assessment" means a way of quantifying the competence of a Candidate who wishes to
qualify as a solicitor in England and Wales as set out in the [Assessment
Specification/Statement of Requirements];
"Assessment Centre" means any site occupied by the Assessment Supplier or a Subcontractor
for the purpose of delivering the Assessments;
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"Assessment Data" means the data generated by the completion of an Assessment by a
Candidate;
"Assessment Specification" means the specification set out at Schedule 1 (Assessment
Specification) as amended by the SRA from time to time by written notice to the Assessment
Supplier;
"Assessment Supplier Background IPR" means all Intellectual Property Rights or other
proprietary rights owned by the Assessment Supplier, its Subcontractors or any third party, the
use of which is necessary for or incidental to:
(a) the provision of the Services;
(b) the receipt of the full benefit of the Services by the SRA; and/or
(c) the receipt of the full benefit of this Agreement by the SRA,
but excluding Foreground IPR;
"Assessment Supplier Change Notice" has the meaning given in Paragraph 3.1 of Schedule
11 (Change Control Procedure);
"Assessment Supplier Chief Representative" means the person appointed by the Assessment
Supplier under Paragraph 1 of Schedule 10 (Governance) to act as its duly authorised
representative for all purposes relating to this Agreement;
"Assessment Supplier Lead Operational Representative" means the person appointed by the
Assessment Supplier as the Assessment Supplier Lead Operational Representative under
Paragraph 6 of Schedule 10 (Governance);
"Assessment Supplier Operational Representative" means any person appointed by the
Assessment Supplier as an Assessment Supplier Operational Representative under Paragraph
6 of Schedule 10 (Governance);
"Assessment Supplier Policies" has the meaning given in Clause 45.1;
"Assets" means the Equipment and the Third Party Contracts;
"Assets Register" means a comprehensive register of Assets, which contains such information
as is reasonably required by the SRA;
"Baseline Credit Rating" has the meaning given in Clause 46.1;
"Brand Guidelines" means [insert] as amended from time to time by written notice to the
Assessment Supplier by the SRA;
"Business Continuity Plan" means the disaster recovery and business continuity plan prepared
by the Assessment Supplier and approved by the SRA in accordance with Clause 30;
"Business Day" means a day other than Saturday, Sunday or a public holiday in England and
Wales;
"Business Interruption" means any of the circumstances specified in the Business Continuity
Plan as constituting a business interruption;
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"Candidate" means a person who has registered to take the SQE;
"Candidate Fees" has the meaning given in Clause 31.2;
"Change" means any change to the Services;
"Change Authorisation Note" means a form setting out an agreed Change which shall be
substantially in the form of Appendix B to Schedule 11 (Change Control Procedure);
"Change Control Procedure" means the procedure relating to any Change set out in Schedule
11 (Change Control Procedure);
"Change of Control" means a change in the identity of the person who has Control;
"Change in Law" means the coming into effect, repeal, issue, amendment or variation of any
Law after the Effective Date;
"Chief Representatives" means the Assessment Supplier Chief Representative and the SRA
Chief Representative;
"Claims" means any actions, costs (including reasonable and properly incurred legal fees and
disbursements), claims, demands, awards, expenses and losses;
"Complaints Register" has the meaning given in Clause 20.6;
"Confidential Information" of a party means:
(a) all information disclosed to the other party by or on behalf of that party in connection
with this Agreement and which relates to the provisions of this Agreement, the
negotiations relating to this Agreement or the subject matter of this Agreement;
(b) know-how, secret processes and inventions disclosed to the other party by or on behalf
of that party in connection with this Agreement; and
(c) all other information disclosed to the other party by or on behalf of that party (whether
before or after the date of this Agreement) which is marked as or has been otherwise
indicated to be confidential or which derives value to that party from being confidential
or which would be regarded as confidential by a reasonable business person.
The "Confidential Information" of the SRA shall include:
(a) the existence and terms of this Agreement;
(b) the Deliverables (excluding, in relation to Candidates [and Examiners] only, relevant
Assessment materials, together with any other Deliverables agreed between the parties
in writing from time to time);
(c) the SRA Data; and
(d) the Reports;
"Configuration Report" means a document setting out in detail the technical infrastructure
through which the Assessment Supplier provides the Services;
"Control" has the same meaning as given in Section 1124 Corporation Tax Act 2010;
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"Costs" means the costs reasonably and properly incurred by the Assessment Supplier in
providing the Services, excluding overheads, financing or similar costs, maintenance and
support costs to the extent that these relate to maintenance or support services provided beyond
the Term, taxation costs, fines and penalties, Service Credits and non-cash items (such as
depreciation and amortisation);
"Credit Rating" has the meaning given in Clause 46.1;
"Critical Service Level" means a Service Level which has been identified as such in Appendix
A to Schedule 6 (Service Levels);
"Critical Service Level Failure" means a failure by the Assessment Supplier to achieve a
Critical Service Level;
"Data" has the meaning given in Clause 29.2;
"Deliverable" means the deliverables required to be developed by the Assessment Supplier for
use with the SQE, as described in Schedule 3 (Deliverables);
"Delivery Commencement Date" has the meaning given in Clause 10.1;
"Dispute" means any dispute, controversy or claim of whatever nature arising under, out of or in
connection with this Agreement including any question of the breach, interpretation, validity,
effect, performance or termination of this Agreement and any claim for set-off or counterclaim;
"Dispute Resolution Procedure" means the procedure described in Clause 63;
"Draft Migration Plan" has the meaning given in Paragraph 2.1 of Schedule 18 (Exit
Management);
"E-Assessment Platform" means the online software platform used by the Assessment
Supplier to provide the Services;
"Effective Date" means the date of execution of this Agreement;
"Employee Information" means:
(a) a unique identifier or role; employer's name; place(s) of work; age; length of service; job
title and/or grade;
(b) salary (including the interval at which paid) and other remuneration and benefits,
including entitlement to pension, death in service benefits, holidays, public holidays and
holiday pay and enhanced redundancy terms;
(c) all other terms and conditions of employment written particulars of which would have to
be supplied to employees in accordance with the Employment Rights Act 1996,
including hours of work, notice periods and terms relating to sick pay or other leave-
related entitlements; and
(d) details of all applicable collective bargaining agreements, recognition agreements,
partnership agreements or workforce agreements with a trade union, staff association
or similar organisation.

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"Equipment" means all plant, machinery, cabling, networks, equipment, computer hardware and
software used from time to time in the performance of the Services;
"Examination Timetable" means the timetable setting out the dates on which the Assessment
Supplier shall deliver the Assessment as agreed between the parties in accordance with
Paragraph [X] of the Statement of Requirements;
"Examiner" means a person who writes, conducts or scores part or all of an Assessment or who
is involved in the standardisation of an Assessment or the standards-setting procedure;
"Exit Employees" means, in relation to the full or partial termination of this Agreement, those
employees of the Assessment Supplier or any Subcontractor who are assigned to the Services
being terminated, immediately before the Termination Date or the Partial Termination Date as
the case may be, who are therefore in-scope to transfer under the Transfer Regulations and who
are identified as such by the Assessment Supplier or any Subcontractor in accordance with the
terms of this Agreement and in the employment liability information supplied by the Assessment
Supplier or any Subcontractor to the Replacement Supplier prior to any transfer in accordance
with the requirements of regulation 11 of the Transfer Regulations;
"Exit Information" means:
(a) a detailed explanation of the nature of the Services and the procedures and operations
used to provide the Services;
(b) [Source Code Materials in respect of the Bespoke Software]; and
(c) such other information as the SRA, acting reasonably, requests and considers
reasonably necessary to ensure a seamless Service Migration;
"Expected Delivery Commencement Date" means the date on which the Implementation
Phase is scheduled to commence, as set out in the Milestone Plan;
"Financial Report" has the meaning given in Clause 37.3;
"FOIA" means the Freedom of Information Act 2000 and any subordinate legislation made under
the Act from time to time together with any guidance and/or codes of practice issued by the UK
Information Commissioner in relation to such legislation;
"FOIA Request for Information" means a request for Information or an apparent request under
the FOIA received by the SRA, the Assessment Supplier, the Subcontractors or another relevant
regulatory authority or public body (as defined by the FOIA) which relates to this Agreement or
the Services;
"Force Majeure" means the occurrence of any cause or event that is beyond the reasonable
control of the affected party, provided that the affected party is without fault in causing or failing
to prevent such occurrence; and the effect of such occurrence on the affected party could not
have been circumvented by reasonable precautions or by the use of commercially reasonable
alternative sources, workaround plans or other reasonable means. Force Majeure may include:
(a) war, riot, civil commotion or terrorist attack;
(b) fire, flood, or storm; or
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