1.1 The following definitions and rules of interpretation apply in this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the sums payable for the Services, as set out in Schedule 1.
Confidential Information: means all confidential information (however recorded or preserved) disclosed directly or indirectly, by or on behalf of a party to the other party whether before or after the date of this Agreement in connection with the provision of the Services hereunder, including but not limited to the business, affairs, customers, clients, suppliers, plans , intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs), the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs) and any information that would be regarded as confidential by a reasonable business person.
Data Subject: an individual who is the subject of Personal Data.
DPA: the Data Protection Act 1998 and any subsequent new legislation such as the GDPR..
Effective Date: as per the Agreement made on date.
GDPR: the General Data Protection Regulation (Regulation (EU) 2016/679) that came into force on 25th May 2018.
Performance Standards: the performance standards set out in the service level agreement in Schedule 2.
Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 1998 and/or Article 4 of the GDPR, as applicable.
Processing and process: have the meaning ascribed to them in the DPA and/or GDPR as applicable.
Services: the services to be provided by SVL under this agreement to the Performance Standards, including services which are incidental or ancillary to such services.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
1.2 Clause, Schedule headings shall not affect the interpretation of this agreement. References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.7 A reference to writing or written includes email.
1.8 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.9 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 The Customer engages SVL to provide the Services and SVL agrees to, and shall, provide the Services, in accordance with the Performance Standards, and upon the terms and conditions set out in this agreement.
2.2 This agreement commences on the effective date and will remain in force for a fixed period of 2 years from then (subject to earlier termination pursuant to clause 10) (Initial Term), when it shall terminate automatically without notice unless, no later than 60 days before the end of the Initial Term, the parties agree in writing that the term shall be extended to one more year (Extended Term). Unless it is terminated earlier in accordance with clause 10, the agreement shall terminate automatically without notice at the end of the Extended Term.
3. SVL INSURANCE OBLIGATIONS
3.1 SVL shall at all times maintain with a reputable insurance company adequate employer’s liability and public liability insurance, and such other insurance policies as may be required properly to cover any and all liabilities arising out of the provision of the services. SVL agrees that it shall make the insurance cover referred to in this clause available for inspection and/or provide copies to the customer immediately upon request.
4. THE SERVICES
4.1 SVL will comply with all applicable laws, standards, regulations and/or other legal requirements concerning the provision of the Services and obtain and at all times, maintain during the term of this agreement, all necessary licences and consents to enable it to provide the Services.
4.2 In providing the Services, SVL shall at all times co-operate with the customer.
5.1 The Charges for the Services will be at the prices stated in Schedule 1 and, unless otherwise stated in Schedule 1, will be exclusive of VAT and any other similar duties, levies or taxes payable.
6.1 SVL may invoice the customer for the services on or within 30 days of performance. Each invoice must be a proper VAT invoice and quote the correct purchase order number if necessary for the services. Payment is due within thirty days of the end of the month in which the valid invoice is dated.
6.2 Without prejudice to any other right or remedy that it may have, if the customer fails to pay SVL any sum due under this agreement on the due date, then SVL may charge interest on the overdue amount at the rate of 1% per annum above Bank of England or other agreed UK based bank base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
6.3 If the customer disputes a payment in good faith, then the interest payable under clause 6.2 is only payable after the dispute is resolved, on sums found or agreed to be due.
6.4 The customer reserves the right to set off any payment due to SVL against sums in respect of which SVL may be in default to the customer.
7.1 The Services will be performed on the date agreed or within the period specified in Schedule 2.
8. CLIENT PROPERTY
All materials and equipment supplied by the customer to SVL, if any, will at all times:
8.1 Be and remain the exclusive property of the customer.
8.2 Be held by SVL in safe custody at its own risk.
8.3 Be recorded by SVL within an asset schedule, which shall be provided to the customer on request.
8.4 Be maintained and kept in good condition by SVL until returned to the customer.
9.1 SVL warrants, represents and undertakes to the customer that the Services:
9.1.1 Will correspond in every respect with the specification or requirements provided by the customer.
9.1.2 Will comply with all statutory requirements, regulations and voluntary codes of conduct relating to the Services and their performance.
9.1.3 Will be performed by appropriately qualified, trained and experienced personnel with a high standard of skill, care and diligence and in accordance with this agreement.
10.1 The customer may by written notice served on SVL terminate this agreement immediately if SVL:
10.1.1 Unreasonably delays or fails to provide the Services materially in accordance with the Performance Standards.
10.1.2 Is in breach of any of the terms of this agreement and, where the breach is capable of remedy, SVL fails to remedy such breach within 30 days’ service of a written notice from the customer, specifying the breach and requiring it to be remedied.
10.2 Either party may terminate this agreement by giving written notice to the other party:
10.2.1 Immediately if the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business (including for example where a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party or the other party convenes a meeting of or commences negotiations with all or any class of its creditors).
10.2.2 On three (3) months’ notice.
10.3 The termination of this agreement howsoever arising is without prejudice to the rights, duties and liabilities of either SVL or the customer accrued prior to termination and the conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
11. CONSEQUENCES OF TERMINATION
If either the customer or SVL terminates this agreement the following provisions will apply:
11.1 The parties will immediately return to each other any Confidential Information and or property of the other party that either party may have in its possession or under its control.
12.1 Each party shall keep the other party’s confidential information confidential and shall not use such Confidential Information except for the purpose of performing its obligations under this agreement or disclose such Confidential Information in whole or in part to any third party, except as permitted by clause 12.2.
12.2 Each party may disclose the other party’s Confidential Information:
12.2.1 To its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 12 and will be liable for any breach of this clause by such individuals; or
12.2.2 To the minimum extent required to be disclosed by law, an order of a court or other authority of competent jurisdiction or any governmental or regulatory authority provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.
12.3 The provisions of this clause shall not apply to any Confidential Information that is or becomes generally available to the public (other than as a result of its disclosure by the receiving party in breach of this clause).
13.1 Time for performance of all obligations under this agreement is not, and may not be made by notice, of the essence.
13.2 Nothing contained in this agreement, and no action taken by the parties pursuant to this agreement, will be deemed to constitute a relationship between the parties of partnership, joint venture, principal and agent or employer and employee. Neither party has, nor may it represent that it has, any authority to act or make any commitments, whatsoever, on the other party’s behalf.
13.3 Except for changes made pursuant to clause 15.8, this agreement may only be varied or amended in writing and signed by the parties or their authorised representatives specifically referring to this clause and stating that this agreement is varied in the manner specified.
13.4 Except as required by law, SVL shall not advertise or publicly announce the existence or details of this agreement, without the prior written consent of the customer.
14.1 Any notice, demand or communication in connection with this agreement will be in writing and may be delivered by hand or first class post (but not by e-mail, except for normal business communications) and addressed to either party at its registered office for the attention of the Managing Director of SVL on the one hand and the General Manager of the customer on the other hand (or such other executive of equivalent authority as may be nominated in writing by one party to the other).
14.2 Any notice or communication shall be deemed to have been received:
14.2.1 If delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
14.2.2 If sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
14.2.3 If sent by email, at 9.00am on the next Business Day after transmission.
14.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15. DATA PROTECTION
15.1 The parties shall each comply with their obligations under the DPA (Data Protection Act) the GDPR (General Data Protection Regulation) and any other applicable laws or regulations in respect of Personal Data.
15.2 The parties acknowledge that for the purposes of the DPA and the GDPR, the customer is the data controller and SVL is the data processor of any Personal Data in relation to the provision of the Services by SVL to the customer.
15.3 SVL shall:
15.3.1 Process the Personal Data only to the extent, and in such a manner, as is necessary for the purposes of providing the Services and in accordance with the customer’s instructions from time to time and shall not process the Personal Data for any other purpose. SVL will keep a record of any processing of personal data it carries out on behalf of the customer.
15.3.2 Promptly comply with any request from the customer requiring SVL to amend, transfer or delete the Personal Data.
15.3.3 Ensure that the functionality of any data Portal or equivalent is set up to enable the collection and inputting of Personal Data in accordance with the customer’s instructions.
15.3.4 Provide, at the customer’s request, a copy of all Personal Data held by it in the format and on the media reasonably specified by the customer.
15.3.5 Take appropriate technical and organisational measures against the unauthorised or unlawful processing of personal data and against the accidental loss or destruction of, or damage to, Personal Data.
15.3.6 Not transfer the Personal Data outside the European Economic Area without the prior written consent of the customer.
15.3.7 Promptly inform the customer if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable or immediately if it becomes aware of any unauthorised or unlawful processing.
15.4 SVL shall promptly notify the customer if it (a) receives any complaint, notice or communication which relates directly or indirectly to the processing of the personal data or to either party’s compliance with the DPA or other applicable laws and regulations and/or (b) a request from a Data Subject for access to that person’s personal data and fully co-operate with and provide assistance to the customer in relation to the foregoing.
15.5 SVL will, on request from the customer from time to time, confirm to the customer in writing the measures it has taken and is taking to comply with its obligations under this clause 15 and that it is meeting its obligations (for example by providing ISO compliance certification or independent audit reports) or permit the customer or its authorized representatives or agents to audit SVL’s data processing activities under this agreement for the purpose of confirming compliance.
15.6 SVL agrees to indemnify and keep indemnified and defend at its own expense the customer against all costs, claims, damages or expenses incurred by the customer or for which the customer may become liable due to any failure by SVL or its employees or agents to comply with any of its obligations under this clause 15.
15.7 SVL may not authorise any third party or sub-contractor to process the Personal Data unless it has obtained the customer’s prior written consent.
15.8 In the event that there is a change in the applicable data protection laws and regulations which require changes to this clause in order for this agreement to be compliant, the customer as Data Controller shall notify SVL of the required changes in writing and such changes shall be effective from the date the notice is deemed to have been received in accordance with clause 14.
16. DISPUTES AND LIABILITY
16.1 The parties shall meet and use their reasonable endeavours to resolve disputes in accordance with the dispute resolution procedure set out in this clause.
16.2 If the representatives of the parties are unable to resolve a dispute within 20 Business Days from the date when the matter was first submitted to the parties, the resolution of the dispute shall, at the request of either party in writing, be referred for resolution to the Managing Director of SVL on the one hand and the General Manager of the customer on the other hand (or such other executive of equivalent authority as may be nominated in writing by one party to the other) who shall attempt to resolve such issue. If the issue is not resolved, the parties may refer the issue to the English courts for resolution.
16.3 Nothing in this agreement:
16.3.1 Shall limit or exclude either party’s liability for:
(i) Death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors’
(ii) Fraud or fraudulent misrepresentation.
(iii) Any other liability which cannot be limited or excluded by applicable law.
16.3.2 Shall limit or exclude the SVL’s liability under clause 15.6 (Data processing indemnity).
16.4 Subject to clause 16.1 neither party to this agreement shall have any liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss arising under or in connection with this agreement and the customer’s total liability to SVL, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to the total Charges paid or payable by the customer under this agreement.
17. ASSIGNMENT AND SUBLETTING
17.1 SVL shall not assign, sublet or contract all or any part of the liability, obligation or benefit under this agreement or the services without the customer’s prior written consent.
18.1 The formation, existence, construction, performance, validity and all aspects whatsoever of this agreement or of any term of this agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it will be governed by English law. Provided that the right to issue proceedings is not prejudiced by a delay the parties will first attempt to resolve issues under clause 16. The English courts will have exclusive jurisdiction to settle any disputes or claims (including non-contractual disputes or claims) which may arise out of or in connection with this agreement or its subject matter or formation. The parties agree to submit to that jurisdiction.
AS WITNESS the hands of the duly authorised representatives of the parties on the date stated at the beginning of this agreement, this contract is agreed by: