THIS AGREEMENT is made with effect from the date of the application declaration
You ("the Customer") and BHSF Employee Benefits Limited ("we", "our", "us", “BHSF”) registered at 2 Darnley Road, Birmingham, B16 8TE registered number 03897857.
Whereby it is agreed as follows:
A. This Agreement applies to the provision by BHSF to the Customer of the services ("Services"), as laid out in Schedule 2, from the Commencement Date for the Term, in consideration of the payment by the Customer to BHSF of the Fees as laid out in Schedule 3.
B. BHSF is authorised and regulated by the Financial Conduct Authority.
1.1 In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:
“Agreement” means this agreement (as amended from time to time);
“Applicable Law” means any and all applicable United Kingdom:
(i) legislation (including statute, statutory instrument, treaty, regulation, order, directive, by-law, decree) and common law; and
(ii) judgments, resolutions, decisions, guidance, orders, notices or demands of a competent court, tribunal, regulatory body or governmental authority;
“Commencement Date” means the date of this Agreement;
“Confidential Information” means all information disclosed or made available by either Party in connection with this Agreement including any Personal Data disclosed to one Party by the other Party;
“Controller, Personal Data, Processing and appropriate technical and organisational measures” have the meanings set out in the Data Protection Legislation in force at the time and cognate terms shall be interpreted accordingly;
“Contract Year” means the 12 month period commencing on the Commencement Date and each successive 12 month period;
“Customer Materials” means all documents, products, specifications and data supplied by the Customer to BHSF;
“Data” means any Personal Data Processed by a Party in connection with the performance of this Agreement;
“Data Protection Legislation”
(i) the European Privacy and Electronic Communications Directive (Directive 2002/58/EC) or, on and from the date on which it becomes effective, the proposed Regulation on Privacy and Electronic Communications; and
(ii) the General Data Protection Regulation (EU) 2016/679 and any national implementing laws, regulation(s) and secondary legislation (“GDPR”), and/or such law(s), regulation(s) and secondary legislation as may transpose the General Data Protection Regulation into the domestic law of all or any part of the United Kingdom (including but not limited to the Data Protection Act 2018), in each case as such law(s) may be replaced, supplemented, substituted or amended from time to time;
“Fees” means the employees of the Customer with access to the Services or benefit of the Services provided by BHSF;
means the fees to be charged by BHSF as set out in Schedule 3;
“Force Majeure Event” means an event or sequence of events beyond the relevant Party's reasonable control preventing or delaying it from performing its obligations under this Agreement.
“Group Company” means in relation to either Party, its subsidiaries, its holding companies and their subsidiaries from time to time and ‘holding company’ and ‘subsidiary’ shall have the meanings given to them by section 1159 Companies Act 2006;
“Initial Term” means the period of 12 months from the Commencement Date;
“Intellectual Property Rights” all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Losses” means all and any losses, claims, damages, fees, costs (including legal costs) and expenses, whether direct, indirect, consequential, special or foreseeable or not;
“Permitted Recipients” means a party to this Agreement;
means the parties to this Agreement, the employees of each party, and any third parties engaged to perform obligations in connection with this Agreement.
“Shared Personal Data” means the services to be provided by BHSF as set out in Schedule 2;
means the Personal Data to be shared between the Parties under this Agreement.
“Term” means the term of this Agreement;
“TUPE” means the Transfer of Undertakings (Protection of Employment) Regulations 2016.
1.2 Any reference in this Agreement to any provision of a statute or statutory provision, order or any regulation or similar instrument shall be construed as a reference to that statute or statutory provision, order or regulation or similar instrument as from time to time amended or extended.
1.3 In the event of any conflict or inconsistency between any provision in this Agreement and any provision in the Schedules, the terms in this Agreement will prevail but only to resolve that conflict or inconsistency.
1.4 Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
This Agreement shall enter into force on the Commencement Date and shall (subject to clauses 3.4, 8 and 11) continue for the Initial Term. The Parties may agree in writing to extend the Term of this Agreement and shall enter into good faith negotiations prior to the anniversary of the Commencement Date.
3.1 The Customer shall pay the Fees to BHSF in respect of the Services at the rates set out in Schedule 3.
3.2 The Fees are exclusive of VAT and the Customer shall in addition pay an amount equal to any VAT chargeable on the Fees.
3.3 Payment of the Fees and any applicable VAT to BHSF will be due within 30 days of the date of invoice issued by BHSF to the Customer.
3.4 Without prejudice to any other remedy which BHSF may have, in the event that any sum due under this Agreement is not received by BHSF in cleared funds by the due date referred to in clause 3.3, BHSF may (at its sole discretion):
(a) charge interest on the overdue amount at the rate of 2% per annum above the base rate of Barclays Bank Plc (or if Barclays Bank Plc is no longer in existence then such other equivalent banking institution trading in the UK) for the time being from the due date until the date of actual payment;
(b) suspend the provision of the Services (in whole or in part) to the Customer until the Customer has met all its outstanding liabilities, being any sum due to BHSF under this Agreement, to BHSF; and/or
(c) terminate this Agreement immediately by giving written notice to this effect to the Customer.
3.5 All amounts due under this Agreement from the Customer to BHSF shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
3.6 The Customer acknowledges that the Pricing Schedule and Pricing Information in Schedule 3 may be subject to change on each anniversary of the Commencement Date with the agreement of both Parties in the event of renewal of this Agreement at that time. The Parties agree to negotiate in good faith to agree the revised Pricing Schedule and Pricing Information at annual renewal.
4.1 BHSF warrants that it shall perform the Services: (i) with due diligence, care and skill (including but not limited to good industry practice); (ii) in accordance with Applicable Law, and (iii) in accordance with the reasonable, lawful and good faith instructions from the Customer;
4.2 BHSF warrants that it has the full capacity, authority and necessary consents to enter into and perform its obligations under this Agreement (and in entering into the Agreement it has not committed any fraud and has not committed any offence under the Bribery Act 2010 or the Modern Slavery Act 2015).
5. Customer’s Obligations
5.1 The Customer shall:
(a) co-operate with BHSF in all matters relating to the Services;
(b) declare all Eligible Employees;
(c) provide, in a timely manner, all documentation, data, information and other materials as BHSF may reasonably require to enable it to provide the Services, and ensure that they are accurate and complete in all material respects.
5.2 If BHSF’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, BHSF shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Fees despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses BHSF sustains or incurs that arise directly or indirectly from such prevention or delay.
6. Intellectual Property Rights
6.1 It is acknowledged that when performing the Services, BHSF may create, adapt or modify documents, reports, studies, processes, designs, know-how or other materials (“Deliverables”).
6.2 BHSF and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
6.3 BHSF grants the Customer, or shall procure the direct grant to the Customer of, a worldwide, non-exclusive, non-transferable, royalty-free, licence to use the Intellectual Property Rights in the Deliverables for the Term solely for the purpose of receiving and using the Services and the Deliverables in the Customer’s business.
6.4 The Customer grants BHSF a worldwide, non-exclusive, royalty-free licence to use, copy and modify the Customer Materials for the purpose of providing the Services to the Customer in accordance with this Agreement.
6.5 The Customer warrants that the receipt and use of the Customer Materials in the performance of this Agreement by BHSF, its agents, subcontractors or consultants shall not infringe the rights, including the Intellectual Property Rights, of any third party. The Customer shall indemnify BHSF in full against all Losses suffered or incurred by BHSF arising out of or in connection with any claim brought against BHSF, its agents, subcontractors or consultants for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt, use, copying or modifying of the Customer Materials by BHSF or its agents, subcontractors or consultants.
6.6 Nothing in this Agreement shall assign or transfer to either Party any of the Intellectual Property Rights owned by the other Party.
7.1 Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation.
7.2 Subject to clauses 7.1 and 7.3, BHSF’s total liability to the Customer in respect of all breaches occurring within any Contract Year arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed the total amount of the Fees paid by the Customer to BHSF in that Contract Year [or the sum of £1,000,000 (one million pounds), whichever is the lower].
7.3 Subject to clause 7.1, neither Party shall be liable to the other Party in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; or
(g) indirect, consequential or special loss.
8.1 Either Party shall be entitled to terminate this Agreement at any time by giving not less than three calendar months’ notice of termination in writing to the other.
8.2 Without prejudice to any other remedy which it may have, either party may terminate this Agreement immediately by giving written notice of termination to the other party in the event that:
(a) the other party commits any material breach of this Agreement and (if capable of remedy) fails to remedy such breach within 30 days after being given written notice to do so; or
(b) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
(c) the other party makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (other than for the purposes of amalgamation or reconstruction) or an encumbrancer takes possession, or a receiver is appointed, over any of its property or assets.
8.3 In the event that the Agreement is terminated in accordance with this clause 8 or clause 3.4(c) or clause 11 all Fees outstanding at the date of termination shall immediately become due and payable notwithstanding any previous agreement or arrangement to the contrary.
8.4 Termination or expiry of this Agreement shall not affect any of the rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
8.5 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect notwithstanding such termination or expiry.
9.1 Either Party (“Receiving Party”) must keep secure and confidential, and must not disclose or permit to be disclosed to any person Confidential Information obtained from the other Party (“Disclosing Party”) as a result of or in connection with this Agreement, except to the extent:
(a) necessary for the purposes of performing its obligations under this Agreement (including, inter alia, the provision of information to its legal and financial advisors when necessary and subject to such advisors complying with obligations in this clause 9);
(b) authorised in writing to do so by the Disclosing Party; or
(c) ordered to do so by a court of competent jurisdiction (provided that the Receiving Party shall immediately notify the Disclosing Party in writing on becoming so required to disclose the Confidential Information unless not legally permitted to do so); or
(d) required to do so by law (provided that the Receiving Party shall immediately notify the Disclosing Party in writing on becoming so required to disclose the Confidential Information unless not legally permitted to do so); or
(e) that such Confidential Information is already in the public domain or subsequently comes into the public domain through no fault of the Receiving Party; or
(f) that such Confidential Information was already known to the Receiving Party free from restrictions.
9.2 Without prejudice to the generality of clause 9, the Receiving Party shall:
(a) only use the Confidential Information of the Disclosing Party for the limited purpose of and to the extent necessary for the purposes of this Agreement;
(b) keep all documentation and other materials incorporating the Confidential Information of the Disclosing Party (whether in electronic format or otherwise) in a safe and secure place; and
(c) exercise a degree of care in preventing the unauthorised disclosure of the Confidential Information of the Disclosing Party at least equal to the degree of care to that which the Receiving Party would exercise in respect of its own confidential information.
9.3 The provisions of this clause 9 shall remain in full force and effect notwithstanding termination or expiry of this Agreement howsoever caused.
10. Data Protection
Each Party shall at all times comply with Schedule 1.
11. Force Majeure
Neither Party shall be liable for any delay in performing or failure to perform any of its obligations under this Agreement due to a Force Majeure Event. If either Party is unable to fulfil its obligations in this Agreement for a period of more than 60 days due to the occurrence of a Force Majeure Event, then either Party may terminate this Agreement immediately by serving written notice of termination on the other Party.
12. Dispute Resolution
12.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (“Dispute”) then the Parties shall follow the procedures set out in this clause:
(a) either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the Parties shall attempt in good faith to resolve the Dispute;
(b) if the Parties are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the senior management of each of the Parties, who shall attempt in good faith to resolve it; and
(c) if the senior management of each of the Parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the Parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed by the Parties, the mediator shall be nominated by CEDR. To initiate the mediation, a Party must serve notice in writing (“ADR notice”) to the other Party requesting a mediation, and send a copy of the ADR notice to CEDR. The mediation will start not later than 30 days after the service of the ADR notice.
12.2 The commencement of mediation shall not prevent the Parties commencing or continuing court proceedings in relation to the Dispute under clause 17, which clause shall apply at all times.
12.3 If the Dispute is not resolved within 90 days after service of the ADR notice, or either Party fails to participate or to continue to participate in the mediation before the expiration of the said period of 90 days, or the mediation terminates before the expiration of the said period of 90 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 17.
In the event that the contracts of employment of any employees of the Customer or any supplier of services to the Customer transfer to BHSF, any Group Company of BHSF or any subcontractor of BHSF upon commencement of this Agreement pursuant to TUPE, the Customer shall indemnify BHSF fully (and pay to BHSF such sums as would, if paid to a Group Company of BHSF or a subcontractor of BHSF, keep that person indemnified fully) against all costs, liabilities, claims, damages and expenses incurred directly or indirectly in relation to any such transfer (including in relation to the termination of any transferring contract of employment).
14. Assignment and Sub-contracting
14.1 This Agreement is personal to the Customer, and the Customer shall not assign, transfer or subcontract any its rights and obligations under this Agreement.
14.2 BHSF may at any time assign, transfer or deal in any manner with its rights under this Agreement.
14.3 BHSF may subcontract any or all of its rights and obligations under this Agreement to a third party, including a Group Company of BHSF.
15.1 Any notice required or permitted to be given by either Party to the other under this Agreement shall be in writing addressed to the other Party at its registered office or principal place of business.
15.2 Any notice to be served on either of the Parties by the other shall be sent by pre-paid recorded delivery or registered first class post and shall be deemed to have been received by the addressee within 72 hours of posting.
15.3 No delay or failure on the part of any Party in enforcing a provision of this Agreement shall be deemed to be a waiver or to create a precedent or in any way prejudice any party's rights under this Agreement. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.
15.4 If any provision shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
15.5 This Agreement constitutes the entire agreement and understanding between the Parties with respect to its subject matter and the terms of this Agreement shall supersede any previous agreements, arrangements and understandings between the Parties relating to its subject matter.
15.6 Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on and shall have no remedy in respect of any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether a party to this Agreement or not) other than as may be expressly set out in this Agreement.
15.7 This Agreement may not be modified except in writing signed by both Parties.
15.8 This Agreement may be executed in any number of counterparts, which shall together constitute one agreement. Either Party may enter into this Agreement by signing such counterpart.
15.9 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute one Party the agent of the other Party, or authorise one Party to make or enter into any commitments for or on behalf of the other Party.
15.10 All agreements on the part of either of the Parties which comprise more than one person or entity shall be joint and several.
16. Third Party Rights
This Agreement is not intended to confer a benefit on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, and no third party shall have any right to enforce any of the provisions of this Agreement.
17. Applicable Law and Jurisdiction
17.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes) shall be governed by and construed in accordance with the law of England and Wales.
17.2 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
SCHEDULE 1 - DATA PROTECTION
1.0 DATA PROTECTION PROVISIONS
1.1 The Parties recognise that each Party may receive Personal Data that comes into its possession as a result of or in connection with its performance of its obligations under this Agreement and that such must be in accordance with all applicable Data Protection Legislation.
1.2 This Schedule 1 sets out the framework for the sharing of Personal Data between the Parties as data Controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party Personal Data collected by the Data Discloser for the Purpose of the Services.
1.3 Each Party shall comply with all the obligations imposed on a Controller under the Data Protection Legislation and this Agreement. In particular each Party agrees to (as appropriate):
(a) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Data for the purpose of the Services;
(b) process the Data only for the purpose of the Services;
(c) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Data and against accidental loss or destruction of, or damage to the Data;
(d) ensure that all persons engaged by that Party to Process the Data are subject to written contractual obligations concerning the Data (including obligations of confidentiality);
(e) not transfer any or all of the Data received from the other Party outside the EEA unless the Party purporting to make the transfer:
(i) complies with the provisions of Article 26 of the GDPR (in the event the third party is a joint controller); and
(ii) ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
1.4 Each Party shall assist the other Party in complying with all applicable requirements of the Data Protection Legislation. In particular, each Party shall:
1.4.1 to the extent reasonable necessary to do so, and where the parties agree in writing, consult the other Party about any notices given to data subjects in relation to the Shared Personal Data;
1.4.2 provide the other Party with reasonable assistance in complying with any data subject access request;
1.4.3 assist the other Party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
1.4.4 notify the other Party without undue delay on becoming aware of any breach of the Data Protection Legislation to the extent that such breach relates to the provision of the Services;
1.4.5 at the written direction of the other Party, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this Agreement unless required by law to store the Personal Data; and
1.4.6 maintain complete and accurate records and information to demonstrate its compliance with this Schedule 1 and allow for audits by the other Party or the other Party's designated auditor.
SCHEDULE 2 – SERVICES
SCHEDULE 3 - PRICING AND PAYMENT
• Based on the declaration of Eligible Employees, the annual agreed cost for the service is confirmed as per the online apply and buy quotation.
• Additional lives will be a chargeable cost, calculated as required.
• Our payment terms are 30 days from invoice date.