Scottish Enterprise standard grant terms and conditions for applications to funds

Version dated 26 January 2021

1. About our terms

1.1     These terms apply if you have received a grant award from Scottish Enterprise which is subject to our standard grant terms and conditions. In these terms, your grant award is referred to as the Award Email. When your complete Application is confirmed as successful, you are entering into a contract with us which is made up of the  Award Email and these terms. This contract is referred to in these terms as the Agreement.

In these terms…

  • we, us, our and SE means Scottish Enterprise, established under the Enterprise and New Towns (Scotland) Act 1990.
  • you means the entity awarded a Grant, described as the Grant Recipient in the Offer. Where more than one entity is described in the Offer, “you” includes all of those entities. Each of those entities will be liable on a joint and several basis for the matters set out in this Agreement. “You” includes your parent company for the purposes of Conditions 5.1.8, 5.1.9, 5.1.10, 5.1.11, and 5.1.13.
  • De Minimis Subsidy means a Subsidy exempt from the TCA pursuant to Article 3.2.4 of Title XI of the TCA and/or exempt under the European Commission Regulation (EU) No 1407/2013.
    Application means the online application for financial support under the Fund, completed and submitted by you, and any other information submitted by you to us in support of your application.
  • Grant is as described in the Award Email.
  • Award Email means the correspondence from us confirming your completed Application has been successful setting out the details of the Grant. The Award Email refers to these terms and sets out any other conditions which apply.
  • Fund means the Scottish Wedding Industry Fund.
  • IPR means patents, inventions, trade marks, service marks, logos, get-up, trade names, goodwill, internet domain names, rights in designs, copyright and related rights (including rights in computer software), moral rights, topography rights, database rights, rights in know-how, trade secrets and other intellectual property rights, in each case whether registered or unregistered and including renewals, extensions, applications for registration, rights to apply and rights of action in relation to the foregoing, and all rights or forms of protection having equivalent or similar effect anywhere in the world.
  • NI Protocol means the Northern Ireland Protocol to the UK-EU Withdrawal Agreement agreed on 17 October 2019 (as implemented by section 7A of the European Union (Withdrawal) Act 2018).
    Party or Parties means SE and you.
  • Regulatory Body or Bodies means all competent national and supra-national government and regulatory authorities or bodies including without limitation Scottish Government, UK Government, Auditor General, Accounts Commission and to the extent applicable, European Commission and/or European Court of Auditors.
  • Subsidy means funding constituting a subsidy within the meaning of Chapter 3 of Title XI of the TCA or aid that is applied by Article 10 of the NI Protocol and/or, for awards of funding that include contributions from EU Structural Funds, aid within the scope of Article 138 of the UK-EU Withdrawal Agreement agreed on 17 October 2019 (as implemented by section 7A of the European Union (Withdrawal) Act 2018).
  • TCA means the UK-EU Trade and Cooperation Agreement signed on 30 December 2020 (as implemented by section 29 of the European Union (Future Relationship) Act 2020.
  • Subsidy Schemes means the funding schemes adopted from time to time by us and available at: https://www.scottish-enterprise.com/state-aid-schemes

2. Your confirmations

2.1    By submitting your application, you confirm and undertake to us that:

2.1.1          the information you submitted to us (including financial details) in support of your application for grant funding was and remains true and accurate;

2.1.2          you have the capacity and authority to enter into the Agreement;

2.1.3          you will comply with and/or discharge your obligations under the Agreement;

2.1.4          you hold and will maintain all necessary consents, licences, permits and/or authorisations required to meet your obligations under the Agreement; 

2.1.5          you will use the Grant only in accordance with the Fund and your Application;

2.1.6          you own or have the right to use any and all rights in and to any IPR required to enable you to meet your obligations under the Agreement;

2.1.7          any assets which will be wholly or partly funded by the Grant are and will continue to be free from liens, claims, taxes and encumbrances of any kind and nature;

2.1.8          you will own or have the right to use all IPR generated by you or by any third party (including subcontractors or consultants) engaged by you in order to allow you to meet your obligations under this Agreement;

2.1.9          you are not in receipt of any financial assistance or Subsidy that has been granted in breach of any applicable statutory provisions or regulations or any decisions adopted by any Regulatory Body; and

2.1.10        you are not subject to any outstanding recovery order or other proceedings in respect of any Subsidy or other form of public sector financial assistance.

3. Your obligations

3.1    You will:

3.1.1          comply with the Agreement and the information submitted by you and approved by us, and ensure that any party acting on your behalf does the same;

3.1.2          comply with the law and ensure that any party acting on your behalf does the same;

3.1.3          only use the Grant in accordance with the Fund and in accordance with this Agreement;

3.1.4          act with all the skill and care which can reasonably be expected from a business, organisation or institution with your skill and experience in your use of the Grant;

3.1.5          undertake your business and/or your undertaking in a manner which does not in our reasonable opinion (i) detract from or damage the image and reputation of SE and/or Scottish Government and/or (ii) unreasonably impede, prevent or increase the cost to us of discharging our obligations, duties, and statutory functions;

3.1.6          maintain (and make sure that any contractors and consultants you appoint maintain) adequate insurance in respect of work funded by the Grant and if we require, ensure that our interest is noted and/or endorsed on all relevant insurance policies;

3.1.7          ensure that consultants, contractors and/or suppliers engaged by you are paid on time where their fees are to be met by the Grant;

3.1.8          provide us with any other information and documentation relating to the Grant as we may request from time to time;

3.1.9          maintain well-ordered, complete and up-to-date records in connection with spend of the Grant until 31 December 2030 or 10 years after  such expenditure, whichever is later;

3.1.10          give us and our auditors and representatives access to your business premises and to all records and books of account relating to spend of the Grant during normal business hours on 2 days’ written notice and you will give all reasonable assistance to anyone exercising this right of access.

3.2    You must not issue any press release or make any announcement or statement regarding the Grant without our prior written consent.

3.3    We may publish details of the Grant, including information set out in the Award Email, on our website and in public records and other documents.

3.4      You must not move your business or any plant, equipment or other assets acquired in connection with the Project and/or funded by the Grant out of the SE area of operation and/or change the Project Location without our prior written consent.

3.5     You must not change the nature of the business being supported by the Grant in such a way as it would no longer fall within the eligibility criteria of the Fund, without our prior written consent. You must keep us informed of any possible changes to the nature of your business and, if we request, meet with us to consider the extent to which any changes may affect your eligibility for support from us under the Fund.

4. Payment

4.1    We are not obliged to pay Grant where, as at the due date for payment, an event allowing us to stop paying or seek repayment of the Grant as set out at Conditions 5.1.1 to 5.1.16 (inclusive) or any event which, with the giving of notice or lapse of time or other condition may constitute an event allowing us to stop paying or seek repayment of the Grant as set out at Conditions 5.1.1 to 5.1.16 (inclusive), has occurred.

4.2     No payment of Grant will include any element of VAT unless agreed by us.

4.3     We are entitled to offset any amount you owe us which has fallen due and payable against any amount due to you under this Agreement.

5. When we can stop paying or seek repayment

5.1     We may withhold payment of, or reclaim (together with interest), all or any part of the Grant:

5.1.1        if we are required to do so by any Regulatory Body;

5.1.2        to the extent necessary to ensure that the Grant, either on its own or when taken together with other financial assistance given or likely to be given in respect of the Project, is within the applicable rules on Subsidy as laid down by any Regulatory Body from time to time;

5.1.3        if you breach any of the terms of this Agreement or any other agreement we have with you;

5.1.4        you cease or substantially reduce the scale of your operations in Scotland;

5.1.5        if you apply for or receive notice of entitlement to or an offer of any other contribution in connection with the Fund, either in cash or in kind, from any public sector body (excluding SE);

5.1.6        if at any time, including during completion of your Application, you provide us with information which is fraudulent, misleading or incorrect;

5.1.7        If, in our opinion, you bring SE, Scottish Government and/or Scottish Ministers into disrepute;

5.1.8        if you become unable or admit inability to pay your debts as they fall due, you suspend making payment of any of your debts as they fall due, or you commence negotiation with one or more creditors with a view to rescheduling any of your indebtedness;

5.1.9        if you become insolvent or make any arrangement with your creditors or are liquidated or wound up, or take any steps preparatory to liquidation or winding up or to the appointment of a liquidator, receiver or administrator, or you commit or suffer any act comparable to the foregoing in any jurisdiction; 

5.1.10        if you have a change of ownership or control, or the nature of your business, as carried out at the date of this Agreement, changes (in our opinion) to a material extent;

5.1.11      if you wholly or substantially cease to, or threaten to cease to, carry on business;

5.1.12      if the nature of the business changes such that it is no longer eligible for Subsidy, whether under the provisions of the relevant Subsidy Scheme (if any) and/or Fund stated in the Award Email, or otherwise;

5.1.13      if you confirm to us in writing that you no longer wish to proceed with your business;

5.1.14      if there are any changes which we consider to be material or detrimental to the financing or resourcing of the business;

5.1.15      if we consider that the future of the business is in jeopardy; or

5.1.16      if any guarantee and/or other form or instrument of security provided by you or your parent company or institution as referred to in the Award Email becomes ineffective.

5.2     You must tell us as soon as any of these things happen, or as soon as you become aware that any of them are likely to happen.

5.3     If one or more of the events and/or circumstances listed at Conditions 5.1.1 to 5.1.16 (inclusive) occurs, we may by written notice to you at any time:

5.3.1        vary or withhold any or all remaining payments of Grant;

5.3.2        where it is remediable, require you to remedy the event within whatever time period we consider to be reasonable;

5.3.3        terminate this Agreement on whatever date we decide;

5.3.4        declare that all sums previously paid by way of Grant are immediately due and repayable to us and our notice shall operate as a demand for repayment of all such sums; and/or

5.3.5        take any action available to us at law and/or under common law,

and our right to take the steps set out in Conditions 5.3.4 and/or 5.3.5 will continue for 10 years from the last date of payment of any instalment of Grant, irrespective of whether this Agreement has already terminated. 

5.4     You agree that, save in the event of manifest error, a certificate signed by any duly authorised officer of SE will be sufficient to ascertain conclusively and fix all sums due resting and owing by you to us including any amount of Grant paid  to you and repayable to us by virtue of this Agreement.

5.5     Any amount due to us under this Agreement shall be repaid by you within thirty (30) days (or such other time period as we may specify) of receipt of our written notice.

6. Bringing this Agreement to an end

6.1     This Agreement may be terminated at any time by agreement between us.

6.2     Termination of this Agreement will be without prejudice to any accrued rights and obligations under this Agreement as at the date of termination.

6.3     Termination of this Agreement shall not affect the following Conditions: 5.3.4, 5.3.5, 5.4, 5.5, 7, 8 and 9.

7. Confidentiality

7.1    In this part…

  • Confidential Information means any information disclosed by one Party to the other under or pursuant to this Agreement, whether verbally or written (including in electronic format) which is designated as confidential or which should be reasonably regarded as confidential.
  • FOISA means the Freedom of Information (Scotland) Act 2002 and/or the Environmental Information (Scotland) Regulations 2004 and any amendment, update or replacement.

7.2     You and we agree not to use Confidential Information for any purpose other than the the Fund and the performance of this Agreement.

7.3     You and we agree not to disclose Confidential Information to any third party (which does not include our employees, officers, contractors, agents, representatives or public partners) without obtaining the prior written consent of the other Party.

7.4     Conditions 7.2 and 7.3 do not apply:

7.4.1        to the extent confidential information is public knowledge or already known to the third party at the time of disclosure, other than by breach of this Agreement, or where required to be disclosed by law or applicable regulatory requirement or code, including FOISA and you will provide such assistance as we may reasonably require in relation to such disclosure. If FOISA applies to you, we will provide such assistance as you may reasonably require in relation to such disclosure;

7.4.2        to the publication or disclosure by us of details of the Grant. You waive all rights to prevent or restrict publication or disclosure on the grounds of commercial confidentiality or otherwise;

7.4.3        to the disclosure of Confidential Information or information relating to this Agreement and the Project to Regulatory Bodies.

7.5     You will cooperate with and assist us by providing such information as we or such Regulatory Body requires. You may identify information you consider commercially confidential and provide us with an explanation as to why you consider it commercially confidential. We will consider your representations and both you and we will act reasonably in seeking to agree the extent to which such information may be shared.

8. Data Protection

8.1    In this part…

  • Personal Data means the personal data (as such term is defined in Data Protection Law) being processed by either you or us pursuant to the terms of this Agreement.
  • Controller, Process and Processing have the same meanings as they do in Data Protection Law.
  • Data Protection Law means any applicable law relating to data protection and the processing of personal data from time to time under this Agreement, including:
    1. the Data Protection Act 2018;
    2. the UK GDPR;
    3. the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as may be amended by the proposed Regulation on Privacy and Electronic Communications); and
    4. any legislation that, in respect of the United Kingdom, replaces, or enacts into United Kingdom domestic law, the proposed Regulation on Privacy and Electronic Communications or any other law relating to data protection, the processing of personal data and privacy as a consequence of the United Kingdom leaving the European Union.
  • UK GDPR means the terms of the General Data Protection Regulation (EU) 2016/679 as transposed into UK law as a consequence of the United Kingdom leaving the European Union.

8.2     You and we agree that any transfer of Personal Data between you and SE is on a Controller to Controller basis. You and we shall each comply with our respective obligations under all Data Protection Law and shall provide each other with any information reasonably requested and necessary to enable that other party to meet the requirements of Data Protection Law.

8.3      You agree that where you disclose Personal Data to us in relation to the terms of this Agreement, such disclosure must be fair, transparent and lawful and not contravene Data Protection Law:

8.3.1          we will Process that Personal Data as a Controller in accordance with our published privacy notice from time to time. This privacy notice is at https://swif.scottish-enterprise.com/privacy; and

 

9. Subsidy

9.1     Following the expiry of the Brexit transition period on 31 December 2020, the UK is no longer subject to EU State aid rules. The only exceptions to this are for aid that is caught by the NI Protocol and for awards of funding that include contributions from EU Structural Funds. 

9.2     Until such time as the UK adopts a domestic subsidy control regime, SE is required to comply with the provisions on subsidy control as provided for in Chapter 3 of Title XI of the TCA and/or the NI Protocol (as relevant).

9.3     If your Award  Email says the Grant is made under the terms of one of our Subsidy Schemes, we consider it to have been made on terms consistent with the principles of Article 3.4 of Title XI of the TCA and/or the NI Protocol  and/or Article 138 of the UK-EU Withdrawal Agreement agreed on 17 October 2019 in respect of EU Structural Funds (as implemented by section 7A of the European Union (Withdrawal) Act 2018) (as relevant).

9.4     If your Award Email refers to one of our Subsidy Schemes, the Grant is not made as a De Minimis Subsidy.

9.5     If your Award Email says the Grant is made as a De Minimis Subsidy pursuant to Article 3.2.4 of Title XI of the TCA there is a ceiling of 325,000 Special Drawing Rights to any single economic actor over any period of three fiscal years. The Grant will be relevant if you or any other entity or entities which form a single economic actor with you wish or wishes to apply, or have or has applied, for any other De Minimis Subsidy from a public body or other source of public funds in the UK. For these purposes, you must retain details of the Grant for at least 10 years from the date on which you receive the last instalment of the Grant and produce it on request by any Regulatory Body. 

9.6     If your Award Email says the Grant is made as a De Minimis Subsidy pursuant to the European Commission Regulation (EU) No 1407/2013 there is a ceiling of €200,000 for all de minimis aid provided to a single economic undertaking over a 3-year period. The Grant will be relevant if you or any other entity or entities which form a single economic undertaking with you wish or wishes to apply, or have or has applied, for any other De Minimis Subsidy from a public body or other source of public funds in the UK. For these purposes, you must retain details of the Grant for at least 10 years from the date on which you receive the last instalment of the Grant and produce it on request by any Regulatory Body. 

10. Other important information

10.1      If there is any inconsistency between the Award Email and these terms, the Award Email shall prevail.

10.2      The laws of Scotland apply to these terms and our Agreement and any non-contractual obligations arising from or in connection with them. The Scottish courts will have exclusive jurisdiction over any dispute arising out of or connected with this Agreement.

10.3      If we do not enforce one of more of our rights or remedies straight away, this does not mean that we will not do so in future. We will give up our right to enforce the Agreement only if we tell you in writing.

10.4      You cannot transfer, subcontract or sublet any of your rights and/or obligations under the Agreement to anyone else.

10.5      The Agreement does not confer a right on any other person to enforce any term of this Agreement under the Contract (Third Party Rights) (Scotland) Act 2017 or otherwise.

10.6      If any provision of the Agreement is or becomes illegal or invalid it will not affect the legality or validity of any other part of this Agreement.

10.7      We will not be responsible for the quality of any work being funded wholly or partly by the Grant or for any professional advice or services funded wholly or partly by the Grant. 

10.8         This Agreement takes effect from delivery of the Award Email as evidenced by the date of that correspondence.