Standard Service Agreement with Deliverables (TUPE on Entry Option) (B2B)

When providing services on a business-to-business basis, it is important to have a proper service agreement (also known as a service contract) in place. A service agreement ensures that both parties know exactly what is expected of them, what their obligations are, what their rights are, what procedures to follow if something goes wrong, and how the transaction is to proceed.

This document has been recently updated with an improved liability clause that has been restructured to make it easier to understand and interpret.

This Standard Service Agreement with Deliverables is designed for use by service providers offering their services to business clients (a “business-to-business” or “B2B” contract). An alternative version is available for use with consumer clients (a “business-to-consumer” or “B2C” contract).

This version of the Service Agreement with Deliverables is designed for use in a variety of situations (ranging from one-off services to long-term arrangements) in which the provision of the services will also entail the creation of some form of deliverables in which IP rights will typically subsist. The particulars of the services and deliverables to be provided should be set out in detail in the appropriate schedule.

This document has been added as an alternative to the original Standard Service Agreement with Deliverables, now called “(TUPE on Exit Option)”. It has optional TUPE on Entry provisions which benefit the service provider as opposed to TUPE on Exit provisions which benefit the client.

The agreement sets out key information including:

• the obligations of the parties; 
• representatives and personnel (with optional provisions for key personnel who the service provider must use when providing the services); 
• optional provisions governing change control;
• fees, payment, and record-keeping;
• IP rights, providing options for the ownership of IP in deliverables – two choices of licence, or assignment;
• IP indemnity;
• Confidentiality
• compliance with applicable laws and mandatory policies (to be specified and/or attached in the appropriate schedule);
• data protection and processing, allowing for situations in which the services to include the processing of personal data;
• Optional TUPE on Entry provisions to cover situations in which employees are transferred from the client to the service provider on the commencement of the agreement;
• Insurance; and
• Liability provisions which aim to strike a reasonable balance between the parties while ensuring that liability is limited on both sides (subject to exceptions).

Optional phrases and provisions are marked with square brackets throughout the document. Some indicate alternatives, others indicate information or provisions which are optional but not required.

Separate provisions requiring key personnel and allowing the service provider to sub-contract are optional. When selecting these options (which are in different clauses), care must be taken to ensure that they are compatible with one another. For example, if the service provider is permitted only to use key personnel in the provision of the services, allowing them to sub-contract their performance obligations is likely to conflict.

Optional provisions are included under both the service provider’s obligations and the client’s obligations with regard to obtaining necessary licences and consents. Only one of these should be used, and the other removed, depending upon the balance agreed by the parties.

The IP ownership options noted above are contained within two optional clauses, but represent three choices. The first option provides for a licence to be granted to the client. This licence may be either limited to the term of the agreement, or it can be a perpetual (and irrevocable) one. The second option presents only one choice – assignment to the client. Later in the document, under the Effects of Termination clause, there are two options which relate to the IP ownership clause: one requires the service provider to deliver all deliverables to the client on termination or expiry of the agreement, whereas the other requires the client to return them to the service provider. It is important to ensure that the appropriate choice is made in the Effects of Termination Clause based upon your choice in the Intellectual Property Rights clause.

Further options are included to allow for a degree of adjustment in the document to meet the particular requirements of the transaction. These should be read carefully and selected so as to be compatible with one another. Unused options should be removed from the document.

Note that clause numbering will change automatically as clauses are added or removed. Please note, however, that cross references to other clauses in the text will not change. To assist in navigation and updating, each cross reference also includes the name or a description of the provision to which it refers.

This Standard Service Agreement includes the following clauses:

1. Definitions and Interpretation
2. Commencement and Duration
3. Provision of the Services and Service Provider’s Obligations
4. Service Provider’s Representative and Personnel
5. Client’s Obligations
6. Client’s Representative
7. [Change Orders]
8. Fees and Payment
9. Records and Audit
10. Intellectual Property Rights
11. Confidentiality
12. Law and Policies
13. Data Protection
14. [Data Processing]
15. [TUPE on Entry]
16. Insurance
17. Liability
18. Force Majeure
19. Termination
20. Effects of Termination
21. Inadequacy of Damages
22. Rights and Remedies
23. No Waiver
24. Variation
25. Entire Agreement
26. Counterparts
27. Severance
28. Conflict
29. Further Assurance
30. Costs
31. Assignment and Sub-Contracting
32. Relationship of the Parties
33. Time
34. Non-Solicitation
35. Third Party Rights
36. Notices
37. Dispute Resolution
38. Law and Jurisdiction

and the following schedules:

1. The Services
2. Fees and Payment
3. Mandatory Policies
4. [TUPE on Entry]
5. [Key Personnel]
6. [Service Provider’s Privacy Notice]
7. [Personal Data Processing]

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