Terms & Conditions
These Terms and Conditions form a Service Agreement document which is forwarded to all new clients before starting work.
Please contact Laura Norton to receive your Service Agreement.
Service Agreement
DATE: [………] 2024
PARTIES:
“Supplier”: Professional Administration Ltd whose office is at 8 School Cottages, Hargrave, Suffolk, IP29 5HR
(Tel: 07917 441027 & 01284 852597)
“Customer”: [………………………..]
(Tel: [……………….])
Recitals:
The Supplier carries on business in the provision of services consisting primarily of audio typing which is charged at a per audio minute rate. Secretarial services and any other admin tasks as required by the customer are also available and are charged at an hourly rate.
The Customer wishes to engage the Supplier to provide such services in relation to the business of the Customer, and the Supplier is willing to provide such services to the Supplier, on the terms of this agreement.
Operative Provisions:
Interpretation
1.1 In this agreement unless the content otherwise requires:
“Affiliate” means, in relation to either party, any company or other entity which at the relevant time is a subsidiary or holding company (as defined in section 736 of the Companies Act 1985) of that party, or a subsidiary of any such holding company;
“Applicable Laws” means all laws, rules and regulations which impose legal, regulatory or other requirements in respect of any of the activities which the Supplier undertakes as part of the ‘Services’;
“Best Industry Practice” means the highest standards which could reasonably be expected to be exercised by a skilled and experienced person in the same type of business as that of the Supplier;
“Commencement Date” means the date on which this agreement comes into force in accordance with clause 18, or any other date agreed between the parties in writing;
“Confidential Information” means, in relation to either party, any information (whether or not stated to be confidential or marked as such) which that party discloses to the other, or which the other party obtains from any information disclosed to it by that party, either orally or in writing or by any other means, under or in connection with this agreement;
“Customer’s Business” means the business of the Customer referred to in Recital (B);
“Customer’s Contract Manager” means the employee of the Customer with responsibility for overseeing the provision of the ‘Services’ and with authority to make decisions concerning this agreement on behalf of the Customer;
“Customer’s Personnel” means the Customer’s employees who are involved in the management of the ‘Customer’s Business’;
“Customer’s Premises” means the Customer’s premises
“Customer Resources” means any resources, facilities, accommodation, software, data, databases and/or materials which are to be provided by the Customer in order to enable the Supplier to provide the ‘Services’;
“Deliverables” means the deliverables (if any) required as an output of the ‘Services’,
“Document” means anything in which information of any description is recorded, and a copy of a document means anything onto which information recorded in the document has been copied by any means, whether directly or indirectly;
“Employer Liabilities” means remuneration, salaries, wages, holiday pay, relocation expenses, redundancy payments, compensation (including compensation for unfair dismissal), damages, claims, awards, fines, costs, losses, expenses and all other liabilities of whatsoever nature relating to or in respect of the employment of any person;
“Force Majeure” means, in relation to either party, any circumstances beyond the reasonable control of that party (including any strike, lock-out or other industrial action);
“Intellectual Property Rights” means any patent, copyright, registered or unregistered design right, database right, registered or unregistered trade mark, rights in relation to confidential information or any other intellectual property rights in any part of the world;
“Key Personnel” means the ‘Supplier’s Personnel’ whose names are given in Appendix 1 Part 2 or, if any of them is incapacitated or otherwise becomes unavailable for work for the purposes of this agreement, such other suitably qualified and trained member of the Supplier’s Personnel as the Supplier may substitute for the individual in question;
“Licences” means any licence, consent, permission or approval necessary for the provision of the ‘Services’;
“Normal Working Hours” means the hours of 9.00 am to 5.00 pm (inclusive) on any ‘Working Day’
“Personal Data” means any personal data as defined in the ‘DPA’ which is disclosed by the Customer to the Supplier or otherwise obtained by the Supplier in connection with this agreement;
“Records” has the meaning given in clause 5;
“Regulatory Authority” means any UK or EU governmental or other regulatory body having jurisdiction over the subject matter of this agreement;
“Service Charges” means the charges specified in Appendix 1 Part 3 for the provision of the ‘Services’;
“Service Levels” means the service levels, standards or performance targets applicable to the ‘Services’;
“Services” means the services to be supplied by the Supplier to the Customer pursuant to this agreement;
“Specification” means the specification for the Services set out in Appendix 1 Part 1 or as otherwise agreed between the parties
“Supplier’s Contract Manager” means the Supplier’s employee with authority to make decisions concerning this agreement on behalf of the Supplier;
“Supplier’s Personnel” means all employees, contractors, subcontractors or agents of the Supplier who are involved in the supply of the ‘Services’ to the Customer;
“Supplier’s Premises” means the Supplier’s premises or such other premises as may be notified in writing to the Customer from time to time;
“Term” means the period during which this agreement continues in force;
“Working Day” means a day other than Saturday or Sunday or a public holiday; and
1.2 In this agreement a reference to:
1.2.1 a clause or a paragraph is a reference to a clause of this agreement (other than the Schedules) or a paragraph of the relevant Schedule;
1.2.2 either party or the parties includes its or their respective successors in title and permitted assignees;
1.2.3 a person includes a body corporate, unincorporated association, partnership or other legal entity; and
1.2.4 a statute or a provision of a statute is a reference to that statute or provision as amended, re-enacted or extended at the relevant time, and includes any corresponding statute or provision of a statute replacing that statute or provision.
1.3 In this agreement:
1.3.1 the singular includes the plural and vice versa;
1.3.2 words importing any gender include any other gender;
1.3.3 “writing”, and any similar expression, includes a reference to any communication effected by fax or similar means, but not electronic mail or text messages;
1.3.4 “this agreement” means this agreement and each of the Schedules, as amended or supplemented at the relevant time; and
1.3.5 where an expression is qualified by one or more examples preceded by the word “including”, it shall not limit the general scope of that expression.
1.4 The headings in this agreement are for convenience only and shall not affect its interpretation.
Provision of the services
2.1 During the ‘Term’ the Supplier shall provide the Customer with the ‘Services’ in relation to the Business at the Supplier’s home office using the Supplier’s own computer and software.
2.2 The Customer shall acquire the Services from the Supplier on a non-exclusive basis and accordingly nothing in this agreement shall prevent the Customer from arranging for any other person to provide for the Customer services which are the same as or similar to the Services, or from providing such services for itself.
2.3 The Services shall be provided by the Supplier either
2.3.1 on an ongoing basis; or
2.3.2 in response to each request from the Customer.
2.4 Where clause 2.3.2 applies:
2.4.1 the Customer shall in each instance confirm its request for the Services in question by means of sending an email or phoning the Supplier.
2.4.2 the Supplier shall ensure that, on receipt of the Customer’s request for any of the Services to be carried out, and its confirmation in accordance with clause 2.4.1, the ‘Supplier’s Personnel’ commence the work as soon as is reasonably practicable and diligently continue the work during ‘Normal Working Hours’ or such other times as may be mutually agreed until the work is accepted by the Customer as completed to its satisfaction; and
2.5 The Supplier shall:
2.5.1 obtain and continue to hold all such ‘Licences’ as are necessary in order to provide the Services;
2.5.2 prepare and file all applications, reports, statements, and other documents or information necessary for the Supplier to continue to qualify for or otherwise maintain such Licences;
2.5.3 ensure that there are no factors which may prejudice the obtaining, continuance or renewal of any of such Licences; and
2.5.4 promptly inform the Supplier if any of such Licences is not obtained or renewed or is withdrawn.
2.6 The Customer shall:
2.6.1 provide the Supplier with such information as the Supplier may reasonably request in order to enable the Supplier to provide the Services.
Supplier’s personnel
3.1 The ‘Services’ shall be provided by the ‘Key Personnel’ and such other of the ‘Supplier’s Personnel’
3.2 The Supplier shall ensure that a sufficient number of the Supplier’s Personnel is available in order to provide the Services in accordance with this agreement.
3.3 The Supplier shall ensure that the Supplier’s Personnel:
3.3.1 have the necessary skill, qualifications, training and expertise to provide the Services in accordance with this agreement;
3.3.2 are properly supervised;
3.3.3 are familiar with the ‘Customer’s Business’ to the extent necessary for them to provide the Services in accordance with this agreement; and
3.4 The Supplier shall ensure that the Supplier’s Personnel comply with all health and safety, security and other regulations in force.
Specification and service levels
4.1 The Supplier shall provide the ‘Services’:
4.1.1 in accordance with the ‘Specification’, the ‘Service Levels’ and any timescales for performance of the Services specified or, where applicable and where no specific timescales are specified, within a reasonable time after the Customer makes a request for the Services to be provided by the Customer; and
4.1.2 with reasonable skill, care and diligence, in accordance with ‘Best Industry Practice’ and in compliance with all ‘Applicable Laws’.
4.2 The Supplier shall:
4.2.1 at all times deal with the Customer dutifully and in good faith in relation to the provision of the Services; and
4.2.2 not undertake any activities which may conflict with the Services or which may in any way harm the ‘Customer’s Business’ or its repute.
4.3 The Supplier shall promptly notify the Customer of:
4.3.1 any delays or problems from time to time in the provision of the Services of which the Supplier becomes aware;
4.3.2 any circumstances from time to time which may prevent the Supplier from providing the Services in accordance with this agreement together with (where practicable) recommendations as to how such circumstances can be avoided; and
4.3.3 any complaint (whether written or not) or other matter which comes to its attention and which it reasonably believes may give rise to any loss by or claim against the Customer or which may result in any adverse publicity for the Customer.
4.4 The Customer shall, without limiting any right or remedy of the Customer, promptly report to the Supplier any defects in the Supplier’s performance of the Services as soon as reasonably practicable after any such defect comes to the attention of the Customer.
4.5 Where any defect in the provision of the Services is reported to the Supplier by the Customer or otherwise comes to the attention of the Supplier:
4.5.1 the Supplier shall, without limiting any other right or remedy of the Customer, use its reasonable endeavours to provide such further services as are necessary in order to rectify the default as soon as is reasonably practicable; and
4.6 If the Supplier persistently fails to perform any aspect of the Services in accordance with this agreement:
4.6.1 the Customer may give the Supplier a written notice (“First Notice”) specifying a reasonable period of time (being not less than 7 Working Days from the date on which the First Notice is given) within which the Supplier is to remedy the failure;
4.6.2 if the failure has not been remedied to the Customer’s reasonable satisfaction within the period specified by the First Notice, the Customer may give the Supplier a further written notice (“Second Notice”) specifying a further reasonable period of time (being not less than 7 Working Days from the date on which the Second Notice is given) within which the Supplier will have a final opportunity to remedy the failure; and
4.6.3 if the Supplier fails within the time specified by the Second Notice to raise the standard of the Services to a sufficient level to remedy the failure, the Customer may terminate this agreement with immediate effect by giving written notice to the Supplier.
Records and inspections
5.1 The Supplier shall keep complete, accurate and up-to-date records of all activities carried out by it in relation to and for the purposes of providing the ‘Services’ and as required for compliance by the Customer or the Supplier with all ‘Applicable Laws’ or the requirements of any ‘Regulatory Authority’ (‘Records’).
5.2 The Supplier shall supply the Customer with copies of all Records in a form reasonably required by the Customer within 14 Working Days of the Customer’s written request for a copy of such Records.
5.3 The Supplier shall at the request of the Customer and upon reasonable notice allow duly authorised representatives of the Customer, any Regulatory Authority, or the Customer’s external auditors to inspect, copy and/or audit the Records and/or the manner of provision of the Services and to enter upon the ‘Supplier’s Premises’ for these purposes during ‘Normal Working Hours’ under the supervision of the Supplier for the purpose of confirming compliance with this agreement. The Supplier shall provide the Customer, the Regulatory Authority in question or the Customer’s external auditors with such further assistance as they may reasonably require, provided that it does not materially affect the Supplier’s ability to provide the Services in the normal course.
5.4 If the inspection identifies areas where the Supplier is not complying with this agreement, the Supplier shall forthwith rectify the failure and take the necessary steps to ensure its future compliance with this agreement.
Ownership of intellectual property rights
6.1 All databases, designs, Documents, drawings, notebooks, photographs and ‘Records’ which are made by the Supplier or any of the ‘Supplier’s Personnel’ in the course of the provision of the ‘Services’, any media containing or recording any part of any of the foregoing items, and any ‘Intellectual Property Rights’ in respect of any of those items, shall belong exclusively to the Customer, and accordingly the Supplier hereby assigns to the Customer (where appropriate, by way of present assignment of future copyright) or (in any other case) agrees to assign to the Customer absolutely on demand, with full title guarantee and for no further consideration, all Intellectual Property Rights in respect of those items.
6.2 The Supplier shall, both during the ‘Term’ and after the termination of this agreement at the request of the Customer but for no further consideration, do all such things as may be necessary or desirable to vest in the Customer or its nominee the full benefit of the items and Intellectual Property Rights referred to in clause 6.1, and shall (except to the extent that the Supplier needs to retain the same for the purposes of providing the Services) forthwith deliver up to the Customer all such items as are referred to in clause 6.1 which come into its possession during the Term and which relate to the Services, both on request by the Customer at any time during the Term and after the termination of this agreement.
6.3 The Supplier shall ensure that the Supplier’s Personnel are employed or engaged on terms which are consistent with the provisions of clause 6.1, and that the Supplier’s Personnel waive all moral rights in respect of the items referred to in that clause.
6.4 If and to the extent that it is not reasonably practicable for the Supplier to provide the Services without the use of any Intellectual Property Rights of the Customer, the Customer hereby grants to the Supplier a non-exclusive, irrevocable, non-transferable and royalty-free licence during the Term to use such Intellectual Property Rights of the Customer as the Supplier may require for that purpose.
6.5 If and to the extent that it is not reasonably practicable for the Customer to exercise its rights under this agreement or to make full use of the Services without the use of any Intellectual Property Rights of the Supplier, other than those referred to in clause 6.1, the Supplier hereby grants to the Customer a non-exclusive, irrevocable, non-transferable and royalty-free licence during the Term to use such Intellectual Property of the Supplier as the Customer may require for that purpose.
6.6 Except as expressly provided in this agreement, each party shall retain exclusive rights in respect of all Intellectual Property Rights to which it is entitled, and nothing in this agreement shall be construed as granting any right, title, interest or licence to or in respect of the Intellectual Property Rights of either party.
Financial provisions
7.1 As consideration for the provision of the ‘Services’, the Customer shall pay to the Supplier the ‘Service Charges’, in each case subject to receipt of a proper invoice and such supporting documentation as the Customer may reasonably require.
7.2 The Supplier shall invoice the Customer at the end of each month in respect of the Services provided during that month.
7.3 The Service Charges are fixed and shall not be varied without the prior written consent of the Customer.
7.4 The Supplier shall, and shall ensure that any of the Supplier’s Personnel who are self-employed shall, account to HM Revenue & Customs for all taxes payable on any Service Charges or other amounts payable under this agreement and for any national insurance and other statutory contributions, and shall indemnify the Customer against all claims, penalties, surcharges and expenses in respect of the Service Charges or such other amounts or contributions.
7.5 The Customer shall not be liable to make any payment to any of the Supplier’s Personnel in respect of any rights or property acquired by the Customer pursuant to this agreement.
7.6 The Service Charges and any other amounts payable by the Customer to the Supplier pursuant to this agreement will be subject to value added tax at the rate chargeable at the time of invoicing.
7.7 If the Customer fails to pay in full on the due date for payment any amount which is payable to the Supplier pursuant to this agreement then, without limiting the rights of the Supplier under clause 10.3:
7.7.1 the Supplier shall be entitled to suspend in whole or in part the provision of the Services; and
7.7.2 the amount outstanding shall bear interest, both before and after any judgment.
Confidentiality
8.1 Except as provided by clause 8.2 or as authorised in writing by the other party, each party shall at all times during the ‘Term’
8.1.1 keep secure all ‘Confidential Information’ of the other party;
8.1.2 not disclose any Confidential Information of the other party to any other person;
8.1.3 not use any Confidential Information of the other party for any purpose other than as contemplated by and subject to the terms of this agreement;
8.1.4 not make any copies of, record in any way or part with possession of any ‘Document’ containing or recording any Confidential Information of the other party; and
8.1.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that party, would be a breach of the provisions of this clause 8.1.
8.2 Either party may:
8.2.1 disclose any Confidential Information of the other party to:
- a ‘Regulatory Authority’ to which it is required to disclose the Confidential Information in question; or
- any employee or officer of that party or any of the persons mentioned in (a) above; to the extent only that the disclosure is necessary for the purposes of performing its obligations or exercising or enforcing its rights under this agreement, and in each case subject to that party first informing the person in question that the Confidential Information is confidential and (except where the disclosure is to a Regulatory Authority or any employee or officer of any such body) obtaining and submitting to the other party a written undertaking from the person in question, as nearly as practicable in the terms of this clause, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made;
8.2.2 disclose any Confidential Information to the extent that the party in question is required by law to do so; and
8.2.3 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that:
- it is at the date of this agreement, or at any time after that date through no fault of that party becomes, public knowledge; or
- it was, before being disclosed to or obtained by that party, known to that party; or
- it is, after being disclosed to or obtained by that party, disclosed to that party by a third party otherwise than in breach of an obligation of confidentiality.
8.3 Upon the termination of this agreement for any reason, each party shall (except to the extent referred to in clauses 8.2.2 and 8.2.3) cease to use, and shall forthwith deliver up to the other party or destroy, any Document in its possession or control containing or recording any Confidential Information in respect of which that party has any continuing obligation under clause 8.1.
8.4 The provisions of this clause 8 shall continue in force, notwithstanding the termination of this agreement for any reason.
9 Data protection
Processing of personal data
Definitions
9.1 In this clause 9:
9.1.1 Controller, Data Subject, Personal Data, Processor and processing shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly) and international organisation and Personal Data Breach shall have the respective meanings given to them in the GDPR;
9.1.2 Data Protection Laws means, as applicable to either party or the Services, the GDPR together with any implementing or related legislation or regulations
9.1.3 GDPR means the General Data Protection Regulation (EU) 2016/679;
9.1.4 Protected Data means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under this Agreement; and
9.1.5 Sub-Processor means any agent, subcontractor or other third party (excluding its employees) engaged by the Supplier for carrying out any processing activities on behalf of the Customer in respect of the Protected Data.
Compliance with Data Protection Laws
9.2 The parties agree that the Customer is a Controller and that the Supplier is a Processor for the purposes of processing Protected Data pursuant to this Agreement. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Laws.
9.3 The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.
Instructions
9.5 The Supplier shall:
9.5.1 only process (and shall ensure Supplier Personnel only process) the Protected Data in accordance with Part A of the Data Protection Schedule and this Agreement (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
9.5.2 if the Supplier believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
Security
9.6 Taking into account the state of technical development and the nature of processing, the Supplier shall implement and maintain the technical and organisational measures set out in Part B of The Data Protection Schedule protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
Sub-processing and personnel
9.7 By way of general authorisation the Customer authorises the use of further processors as Sub – Processors by way of the appointment of the typists listed in Appendix A part 2 and the use of the software/Systems set out in the Company’s Privacy Policy. If there is an addition to these Sub-Processors and the Customer reasonably objects then the Company will give you an opportunity to pay for the Services without the use of such Sub-Processor where possible or terminate the provision of the Services
9.8 The Supplier shall:
9.8.1 except for pursuant to clause 9.7not permit any processing of Protected Data by any agent, subcontractor or other third party without the written authorisation of the Customer;
9.8.2 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 0 that is enforceable by the Supplier and ensure each such Sub-Processor complies with all such obligations;
9.8.3 remain fully liable to the Customer under this Agreement for all the acts and omissions of each Sub-Processor as if they were its own; and
9.8.4 ensure that all persons authorised by the Supplier or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
International transfers
9.9 The Customer agrees to and authorises the use of Sub-Processors operating from New Zealand which the Company shall do pursuant to Articles 44 – 49 of the GDPR as may be necessary for the performance of the Services. The Supplier shall not otherwise process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the EEA without the prior consent of the Customer and then in pursuant to Articles 44 – 49 of the GDPR.
Audits and processing
9.10 The Supplier shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under this clause 9.10 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause).
Breach
9.11 The Supplier shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
Deletion/return
9.12 On the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, the Supplier shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Supplier to store such Protected Data. This clause 9 shall survive termination or expiry of this Agreement.
Duration of agreement
10.1 This agreement shall commence on […………..] and, subject to the following provisions, shall continue until either party terminates the agreement.
10.2 The Customer may forthwith terminate this agreement by giving written notice to the Supplier if the Supplier:
10.2.1 commits a material breach of this agreement and, if the breach is capable of being remedied, fails to remedy it within 30 days after receipt of a written notice specifying the breach and requiring it to be remedied; or
10.2.2 goes into liquidation or administration, has a receiver appointed over any of its assets or makes a voluntary arrangement or composition with its creditors (in each case, within the meaning of the Insolvency Act 1986).
10.3 The Supplier may forthwith terminate this agreement by giving written notice to the Customer if the Customer:
10.3.1 fails to pay any sum payable by it under this agreement within 7 days of the due date for payment;
10.3.2 commits a material breach of this agreement (other than one to which clause 10.3.1 applies) and, if the breach is capable of remedy, fails to remedy it within 30 days after receipt of a written notice specifying the breach and requiring it to be remedied; or
10.3.3 goes into liquidation or administration, has a receiver appointed over any of its assets or makes a voluntary arrangement or composition with its creditors (in each case, within the meaning of the Insolvency Act 1986).
10.4 For the purposes of clauses 10.2.1 and 10.3.2 a breach of any provision of this agreement shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that the time of performance is not of the essence).
10.5 No time or indulgence granted by either party shall be considered a waiver of any provision by that party, and no waiver by either party of a breach of this agreement shall be considered a waiver of any subsequent breach of the same or any other provision.
10.6 The termination of this agreement for any reason shall not affect any accrued right or liability of either party arising under this agreement and shall not affect any other right or remedy of either party.
Consequences of termination
11.1 On the termination of this agreement for any reason the Supplier shall:
11.1.1 promptly provide all information concerning the Services which may reasonable be requested by the Customer for the purposes of adequately understanding the manner in which the Services have been provided or for the purpose of allowing the Customer or any new supplier of similar services to conduct due diligence.
11.2 The expiry of this agreement shall not affect:
11.2.1 any payment which is owing by either party to the other;
11.2.2 any other accrued rights of either party; or
11.2.3 any provision of this agreement which is expressed to come into force or continue in force on or after termination.
Warranties, Indemnities and Limitation of Liability
12.1 Each party warrants to the other that:
12.1.1 it has the necessary authority to enter into this agreement;
12.1.2 the signatory to this agreement for and on behalf of that party is authorised and fully empowered to execute this agreement on that party’s behalf;
12.1.3 the entry into and performance of this agreement by that party will not breach any contractual or other obligation owed by that party to any other person, any rights of any other person or any other legal provision; and
12.1.4 the entry into and performance of this agreement by that party require no governmental or other approvals or, if any such approval is required, it has been obtained.
12.2 The Supplier shall, subject to the Customer complying with clause 12.3, indemnify the Customer against:
12.2.1 any claim by any other person that the provision of the ‘Services’ to the Customer in accordance with this agreement infringes any ‘Intellectual Property Rights’ of that other person; and
12.2.2 any claim by any person in respect of death or personal injury or the loss or destruction of or damage to any property resulting from the negligence or wilful default of any employee or agent of the Supplier or the breach by the Supplier of any of its obligations under this agreement.
12.3 Where the Supplier is required to indemnify the Customer under any provision of this agreement:
12.3.1 the Supplier shall be given full control of any proceedings or negotiations in connection with any such claim and shall be exclusively entitled to appoint and instruct legal advisers and counsel in connection with any such proceedings or negotiations and to determine the forum for any such proceedings, provided that the Supplier takes over conduct of the proceedings or negotiations within a reasonable time after being notified of the claim in question;
12.3.2 the Customer shall give the Supplier all reasonable assistance for the purpose of any such proceedings or negotiations;
12.3.3 except pursuant to a final award, the Customer shall not pay or accept any such claim, or compromise any such proceedings or negotiations, without the consent of the Supplier (which shall not be unreasonably withheld);
12.3.4 the Customer shall do nothing to invalidate or prejudice any policy of insurance or insurance cover which the Customer may have in relation to any such claim, and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);
12.3.5 the Supplier shall be entitled to require the Customer to take such steps as the Supplier may reasonably require to mitigate or reduce any loss of the Customer.
12.4 Nothing in this agreement shall limit or exclude the Supplier’s liability for fraud or fraudulent misrepresentation or any other liability which cannot be limited or excluded by applicable law.
12.5 Subject to clause 12.4, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
12.5.1 loss of profits;
12.5.2 loss of sales or business;
12.5.3 loss of agreements or contracts;
12.5.4 loss of or damage to goodwill;
12.5.5 loss of use or corruption of software, data or information; and
12.5.6 any indirect or consequential loss.
12.6 Subject to clause 12.4, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to one hundred per cent (100%) of the average annual charges (calculated by reference to the charges in successive 12 month periods from the date of this agreement) paid by the Customer under this agreement.
Force majeure
13.1 If any ‘Force Majeure’ occurs in relation to either party which affects or may affect the performance of any of its obligations under this agreement (other than, in the case of the Customer, its obligation to pay the ‘Service Charges’), it shall forthwith notify the other party as to the nature and extent of the circumstances in question.
13.2 A party affected by Force Majeure of which it has notified the other party pursuant to clause 13.1 shall not be deemed to be in breach of this agreement, or otherwise be liable to the other, by reason of any delay in performance, or the non-performance, of any of its obligations under this agreement, to the extent that the delay or non-performance is due to Force Majeure, and the time for performance of that obligation shall be extended accordingly.
13.3 If the performance by either party of any of its obligations under this agreement is prevented or delayed by Force Majeure for a continuous period in excess of 3 months, the parties shall negotiate in good faith and use their best endeavours to agree upon such amendments to this agreement or alternative arrangements as may be fair and reasonable with a view to alleviating its effects, but if they do not agree upon such amendments or arrangements within a further period of 60 days, the other party shall be entitled to terminate this agreement by giving written notice to the party affected by Force Majeure.
Restrictions
14.1 The Supplier shall not without the Customer’s prior written consent:
14.1.1 during the ‘Term’ provide services similar to the ‘Services’ to any competitor of the Customer, provided that the Customer shall not unreasonably withhold or delay its consent if the Supplier is able to demonstrate to the Customer’s satisfaction that providing such services to the Customer’s competitors will not adversely affect the ‘Customer’s Business’; or
14.1.2 during the Term or for a period of 12 months following the termination of this agreement, solicit or endeavour to entice away from the Customer any of the ‘Customer’s Personnel’ with whom the Supplier has had direct contact in the course of providing the Services.
14.2 The Customer shall not without the Supplier’s prior written consent, either during the Term or for a period of 12 months following the termination of this agreement, solicit or endeavour to entice away from the Supplier any of the ‘Supplier’s Personnel’ involved in the provision of the Services.
Assignment and other dealings
15.1 This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
15.2 The Supplier may at any time assign, sub-contract, outsource, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that the Supplier gives prior written notice of such dealing to the Customer.
Waiver
16.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
16.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Severance
17.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
17.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
Nature of agreement
18.1 Nothing in this agreement shall constitute or create or be deemed to constitute or create a partnership or the relationship of principal and agent or employer and employee between the Customer and the Supplier or any of the ‘Supplier’s Personnel’.
18.2 This agreement contains the entire agreement between the parties with respect to its subject matter and may not be varied except by a written agreement between the parties.
Notices
19.1 A notice relating to this agreement will be validly given only if it is in writing and delivered personally or by courier, or sent by first class post (or air mail if overseas), recorded delivery or fax, to the party in question (marked for the attention of ‘The Company Secretary’, or such other officer of that party as is notified to the other party in writing for this purpose). A notice shall not be valid if sent by email.
19.2 In the absence of evidence of earlier receipt, a notice is deemed given:
19.2.1 if delivered personally or by courier, when left at the relevant address;
19.2.2 if sent by post, two days after posting it or if sent by air mail, six days after posting it; and
19.2.3 if sent by fax, on completion of transmission, provided that the transmitting fax machine prints out a successful transmission report.
19.3 If a notice is deemed under clause 19.2 to have been given on a day other than a ‘Working Day’, or if the notice is given by fax and transmission is completed after 5.30 pm on a Working Day, it shall instead be deemed to be given on the next Working Day.
19.4 Each party shall immediately give notice to the other of a change in its address.
Entire Agreement
20.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
20.3 This agreement may be executed in more than one copy and shall come into force once each party has executed such a copy in identical form and exchanged it with the other party.
20.4 No one other than a party to this agreement shall have any right to enforce any of its terms.
Governing Law and Jurisdiction
21.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
21.2 Each party irrevocably agrees that the courts of England and Wales shall have [jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
Signed by the Customer:
Signed: ……………………………… Print name: ………………………..
Customer: [………………] Date: ………………………………
Signed by the Supplier:
Signed: ……………………………… Print name: Mrs Laura Norton
Company: Professional Administration Ltd Date: […………..]
APPENDIX A
Part 1 – The Services
- Audio typing
- Secretarial services
Part 2 – Key Personnel […………….]
Part 3 – Service Charges
Audio typing rate is £1.10 per audio minute / €1.40 per audio minute
Urgent audio typing rate (audio files under 20 minutes in length, returned within 4 hours of confirmation of receipt of the work being received) is £1.40 per audio minute / €1.70 per audio minute
Hourly rate is £20 per hour / €23 per hour.
VAT charged to UK clients at the standard rate as at time of invoicing.
Payment terms
Monthly invoice with payment due within 7 days by BACs.
Data Protection Schedule
- Data processing details
Processing of the Protected Data by the Supplier under this Agreement shall be for the subject-matter, duration, nature and purposes and involve the types of personal data and categories of Data Subjects set out in this Part A.
- Subject-matter of processing:
Customer representative (contact) data and data included within documents/audio files provided by Customer
- Duration of the processing:
In the case of Customer representative (contact) data for the term of the Agreement.
In the case of data included within documents/audio files provided by Customer – three months or immediate deletion following completion of any task upon request by the Customer depending on the Customer’s instructions
- Nature and purpose of the processing:
To fulfil the Company’s obligations to provide the Services pursuant to this Agreement
- Type of Personal Data:
To include: Name, email address, postal address, telephone number, financial information, medical records, employment history, tax information and National Insurance number.
- Categories of Data Subjects:
Individuals that are representatives of the Customer or clients of the Customer
- Specific processing instructions:
Typing/administration as part of the Services
- Technical and organisational security measures
- The Supplier shall implement and maintain the following technical and organisational security measures to protect the Protected Data:
In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with this Agreement, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, the Supplier shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(1)(a) to 32(1)(d) (inclusive) of the GDPR