Caburn Hope Limited Terms of Business
DEFINITIONS
In these Terms of Business, unless the context requires otherwise, certain terms used shall be regarded as having the following definitions:
“Account Manager” means the individual notified to the Client by Caburn from time to time, whether in the Engagement Letter, or otherwise.
“Authorised Person” means a duly authorised officer or representative of the Client as notified to Caburn whether in the Engagement Letter, or otherwise.
“Affiliate” in relation to any body corporate: (i) a parent undertaking of that body corporate; or (ii) any subsidiary undertaking of that body corporate or of any such parent undertaking (and “parent undertaking” and “subsidiary undertaking” shall have the same meaning as in the Companies Act 2006).
“AWE” means the “average weekly earnings” indicator that is calculated by the Office of National Statistics.
“Buck Group” means any of Buck Consultants Limited, Buck Global LLC or Buck Canada HR Services Limited.
“Caburn” means Caburn Hope Limited a company registered in England and Wales with company number 02788390 with registered address at 20 Wood Street, London, EC2V 7AF;
“Caburn Information” means Caburn Material and all other Caburn information whether conveyed orally, in writing, in machine readable form or otherwise which relates to negotiations relating to these Terms of Business, the subject matter, provisions and/or performance of these Terms of Business including, without limitation, to Caburn’s business, products, developments, trade secrets, Intellectual Property Rights, know-how, processes, methodologies, personnel, suppliers and customers.
“Caburn Material” means records, studies, diagrams, charts, plans, methodologies, specifications, systems, process, procedures, working papers, reports, analytics, data, documents, databases, papers, know-how, processes, methodologies, suppliers and customers list and other materials howsoever conveyed to the Client which relates to performance of the Services (but excluding any deliverables forming part of the Services).
“Client” means the client identified as such in the Engagement Letter.
“Client Material” means information, Personal Data, documentation and any other material provided by or on behalf of the Client to Caburn in order to provide the Services.
“Client Personal Data” means Personal Data provided or made available to Caburn for the purposes of carrying out the terms of these Terms of Business and any activities ancillary thereto, whether such Personal Data is provided by or on behalf of the Client or by a third party.
“Control”, “Change of Control” in relation to a body corporate, the power of a person to secure that the affairs of the body corporate are conducted in accordance with the wishes of that person:(a) by means of the holding of shares, or the possession of voting power, in or in relation to that or any other body corporate; or (b) as a result of any powers conferred by the articles of association or any other document regulating that or any other body corporate, and a Change of Control occurs if a person who controls any body corporate ceases to do so or if another person acquires Control of it.
“Data Protection Legislation” means any law, enactment, regulation, regulatory policy, by law, ordinance or subordinate legislation relating to the Processing, privacy, and use of Personal Data, as applicable to the Parties and/or the Services, including: (a) the UK Data Protection Act 2018; (b) the laws or regulations implementing EU Council Directive 2002/58/EC (ePrivacy Directive); (c) Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (the “GDPR”)(d) the GDPR as amended and incorporated into English law under the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019;(e)any judicial or administrative interpretation of any of the above, and any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority, in each case, as in force and applicable, and as may be amended, supplemented or replaced from time to time.
“EEA” means the Member States of the European Union from time to time, plus Switzerland, Norway, Iceland and Liechtenstein.
“Effective Date” means the date specified in the Engagement Letter as the effective date and if no such date is specified the date on which the Engagement Letter is signed by the last Party.
“Engagement Letter” means the letter of engagement to which these Terms of Business are attached.
“Fees” means the fees and charges payable by the Client to Caburn in accordance with these Terms of Business.
“Fixed Term” shall be a fixed period as set out in the Engagement Letter and this fixed period shall commence on the Effective Date unless the Engagement Letter states otherwise.
“ICO Guidance” means mandatory guidance or codes of practice of the UK Information Commissioner’s Office, or any other relevant Supervisory Authority, or its or their successors from time to time.
“Intellectual Property Rights” means patents, trademarks, service marks, design rights (whether registrable or otherwise), applications for any of those rights, copyright (including all rights in software and any database rights), know-how, confidential information, trade or business names and any similar rights or obligations whether registrable or not in any country (including but not limited to the United Kingdom).
“Law” “Laws” means, all applicable laws, statutes, rules, regulations, directive, edicts, bye laws and codes of conduct and mandatory guidelines which have legal effect, whether local, national, international or otherwise existing from time to time.
“Party” means each of Caburn and the Client.
“Parties” means both Caburn and the Client.
“Scheme” means the pension scheme (if any) referred to in the Engagement Letter.
“Services” means the specific services detailed in the Engagement Letter and any additional services agreed in a subsequent written agreement between Caburn and the Client.
“Service Standard” means the exercise of skill, diligence and prudence as would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of undertaking and under the same or similar circumstances and conditions as that in which the relevant matter arises.
“Supervisory Authority” means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Legislation.
“Terms of Business” means these Terms of Business, the Engagement Letter, any subsequent written agreement for additional Services and any appendix or other document intended by the Parties to form part of the Terms of Business.
“VAT” shall mean Value Added Tax.
The following terms shall have the definitions given to them in the Data Protection Legislation: “Data”, “Data Controller” (or controller), “Data Processor” (or processor), “Data Subject”, “Personal Data”, “Processing” (and “Process”, “Processes” and “Processed” shall be construed accordingly), and “Special Categories of Personal Data”.
A statute or statutory provision includes any consolidation, re-enactment, modification or replacement of the same, and any subordinate legislation in force under any of the same from time to time. References to persons include firms, bodies corporate and unincorporated associations in relation to any obligation imposed on any Party. References to “writing” or cognate expressions includes a reference to email, or comparable means of communication, words importing the singular shall be treated as importing the plural and vice-versa.
1. CABURN SERVICES
1.1. The Client appoints Caburn to provide the Services on the terms and subject to the conditions of the Terms of Business, with effect on and from the Effective Date and Caburn hereby accepts such appointments.
1.2. The Services to be provided will be those specified in the Engagement Letter and as varied in accordance with Clauses 6 or 15.
1.3. Caburn shall use reasonable endeavours to provide the Services in accordance with the Service Standard.
2. FEES
2.1. Caburn’s fees, costs and charges in respect of the Services provided to the Client are set out, in the Engagement Letter.
2.2. Any of the Services provided to the Client which are not specified in writing by Caburn to be provided on a fixed fee basis, shall be provided on a time cost basis in accordance with the then current fee scale of Caburn, and the Client shall pay a Fee based on the time spent by employees of Caburn in providing such Services. The Client shall pay all expenses and disbursements properly incurred by Caburn in the provision of the Services unless the fixed fee already includes such expenses and disbursements.
2.3. Unless otherwise agreed in writing the fixed fee basis monetary rates of charges referred to above will be increased each year on the anniversary of the Effective Date, by reference to the annual movement in AWE measured over the 12 month period ending three months prior to the relevant date, or by such other amount as will be alternatively agreed in writing between Caburn and the Client.
2.4. Where appropriate, Fees payable in respect of Services rendered together with expenses and disbursements incurred will be subject to VAT or its successor tax, at the prevailing rate from time to time. All Fees are stated net of VAT.
2.5. Invoices rendered are payable within 30 days of the invoice date. Payments that are not received when due will be considered overdue and will remain payable by the Client together with interest for late payment. Such interest shall accrue and be calculated on a daily basis, both before and after any judgement at a rate of 2% per month for the period beginning with the due date and ending with the date preceding that on which the payment is actually made. It shall be payable on demand. Fee accounts will be sent to the Client at the relevant address notified to Caburn for these purposes. Caburn will provide at the reasonable request of the Client from time to time an analysis of Fees invoiced.
3. TERM
3.1. The Terms of Business shall commence on the Effective Date.
3.2. These Terms of Business shall continue, subject to Clause 16, for a Fixed Term. If these Terms of Business has not otherwise been terminated pursuant to Clause 16 at or before the last day of the Fixed Term, or if there is no Fixed Term for the purpose of these Terms of Business, these Terms of Business shall continue in effect until terminated pursuant to Clause 16.
4. WHO MAY INSTRUCT CABURN
4.1. Caburn may accept instructions under the Terms of Business on behalf of the Client from an Authorised Person.
5. PROVISION OF INFORMATION
5.1. The Client undertakes to supply any information reasonably required by Caburn in order to provide the Services or in order to comply with any applicable Laws.
6. COMMUNICATIONS AND RELIANCE
6.1. All communications (including all instructions and notices) relating to the Terms of Business, shall be in writing and in the English language. Written communications shall be sent by letter or email and delivered by hand or sent by pre-paid first class post or email to the Party concerned at, in the case of the Client, the relevant address or email address for any Authorised Person as notified to Caburn, and, in the case of Caburn, the relevant address or email address shown in Clause 32 (and marked for the attention of the Compliance Manager) or to the Account Manager at his relevant address or email address. All communication between the Parties must be in English.
6.2. Any such communication shall take effect if delivered by hand, upon delivery; if delivered by pre-paid first class post, 48 hours after posting; if emailed, immediately.
6.3. For each Party, details of the postal address, email address of the Account Manager or Authorised Person (as appropriate) may be varied from time to time by notice in writing by, in the case of the Client, an Authorised Person and, in the case of Caburn, the Account Manager (or a director of Caburn) to the other Party.
6.4. Caburn may rely and act on any written communication relating to the Services to be performed or the Fees payable including but not limited to a proposed variation of the Services or the Fees, which purports to have been given by or on behalf of the Client or an Authorised Person. This shall apply whether or not the authority of any such person shall have been terminated, unless Caburn has received notice to the contrary from the Client.
7. CONFIDENTIALITY
7.1. Caburn will keep Client Material confidential (whether or not designated as “confidential information” by the Client together with all information derived from the above and all information designated confidential or which ought reasonably to be considered confidential) and will not disclose Client Material to another person except as set out Clause 7.3.
7.2. The Client will keep Caburn Information confidential (whether or not designated as “confidential information” by Caburn together with all information derived from the above and all information designated confidential or which ought reasonably to be considered confidential) and will not disclose Caburn Information to another person except as set out in Clause 7.3.
7.3. Client Material and Caburn Information may be disclosed (a) in the proper performance of the Terms of Business (b) as required by law or competent authority, (c) to the extent agreed in writing with the Client, or Caburn (as applicable) or (d) to the extent that the Client Material or Caburn Information (as applicable) is already in the public domain or already known to the recipient of the Client Material or Caburn Information (as applicable).
8. LIABILITY
8.1. Except to the extent that such loss or damage arises from the material and unremedied breach of the Terms of Business following the negligence, bad faith or wilful default of Caburn (or of any of their agents or employees), Caburn shall not be liable, to the extent permitted by applicable Laws, to the Client for any loss or damage suffered or arising directly or indirectly out of any matter or thing done or omitted to be done by Caburn under or in connection with the Terms of Business, howsoever any such loss or damage may have occurred. Nothing in the Terms of Business shall be deemed to limit or exclude the liability of Caburn for death or personal injury caused by its negligence.
8.2. The Client shall use all reasonable endeavours to mitigate any such loss or damage incurred by them as soon as they become aware of any act or omission which may give rise to liability on the part of Caburn under the Terms of Business.
8.3. Caburn shall not in any circumstances be liable, in relation to any such matter or thing done or omitted to be done, for any claim, whether arising in contract, tort (including negligence) or otherwise, for loss of profit, for consequential, special or other indirect loss, whether or not reasonably foreseeable and whether or not arising out of any liability of the Client to any other person.
8.4. In any event, the aggregate liability of Caburn to the Client, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall not exceed the total of Fees paid or payable in the 12 months prior to the date on which a claim is made (and if no fees were paid or payable during that period the total Fees paid or payable in the 12 months prior to the date of the event giving rise to the claim.
8.5. The Parties agree that the limit referred to in Clause 8.4 shall apply irrespective of the levels of insurance that Caburn has in place at any time.
8.6. Caburn shall not be liable to the Client in respect of any loss, damage or delay to the extent it is fairly attributable to a third party, including for instance:
8.6.1. any act, omission, instructions or information done, given or provided by or on behalf of the Client;
8.6.2. any failure by or on behalf of the Client to give or provide relevant and timely instructions or information; or
8.6.3. any act or omission by any person before the Effective Date as may relate to any of the Services.
8.7. Save where provided otherwise, the liability of each of the Parties in respect of their obligations under the Terms of Business is several and no Party shall be liable for the obligations of any other Party under the Terms of Business.
9. ASSIGNMENT AND SUBCONTRACTING
9.1. The Client shall not assign, transfer, mortgage, charge, sub-contract, declare a trust over or deal in any other manner with any of its rights and obligations under the Terms of Business without the prior written consent of Caburn (such consent not to be unreasonably withheld or delayed).
9.2. Subject to the rest of this Clause 9 and Clause 19.2 Caburn shall not assign, transfer, mortgage, charge, sub-contract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Terms of Business without the prior written consent of the Client (such consent not to be unreasonably withheld or delayed).
9.3. Caburn may assign, transfer or subcontract any or all of its rights and obligations under the Terms of Business to Buck Group or any Affiliate of Buck Group, provided that:
9.3.1. in respect of any assignment or transfer under this Clause 9, Caburn shall give notice in writing to the Client of the assignment or transfer, including the name of the party to whom the assignment or transfer is made;
9.4. Caburn may assign any or all of their rights and obligations under these Terms of Business where there is (i) a Change of Control of Caburn and/or Buck Group (ii) all or part of any company or business in Caburn and/or Buck Group is transferred to a third party (iii) a merger, acquisition, divestiture, corporate reorganization, or sale of all or substantially all Caburn assets
9.5. Notwithstanding Clause 7 and the obligations in Clause 17 to 23, Caburn may disclose to the proposed assignee, transferee or subcontractor any information in its possession relating to the Terms of Business and the Services that is necessary to disclose for the purpose of the assignment, transfer or subcontracting.
10. RECORDS AND AUDIT ACCESS
10.1. Caburn shall keep or cause to be kept records and information relating to the provision of the Services in accordance with applicable Laws.
10.2. The Client has a right to inspect certain records relating to the Client Personal Data which is held by Caburn (whether kept manually or electronically). Should the Client wish to make such an inspection the Client should initially forward a request to the Compliance Manager at the address in Clause 32. Caburn reserves the right to make a reasonable charge in relation to the costs of arranging this inspection.
10.3. Caburn shall in addition to any such audit requirements, on reasonable notice and subject to such arrangements dealing with confidentiality as Caburn may reasonably require, allow Client and their appointed auditors such access to the records and any related documents kept or maintained by Caburn in connection with the provision of the Services, and to take such copies of them, as may be required for the purpose of the examination and certification of Client’s accounts or, in accordance with applicable Laws, for any other reasonable purpose relating to the provision of the Services.
11. PROFESSIONAL INDEMNITY INSURANCE
11.1. Caburn shall maintain professional indemnity insurance for all their staff at a level regarded by Caburn as adequate to cover its liabilities, and this shall be kept under regular review.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. All rights, title and interest in and to all Intellectual Property Rights used by Caburn to provide the Services: (i) relating to any computer software package, portals, systems or any other part of the computer systems used or created by Caburn in connection with the provision of the Services, (ii) in Caburn Material, (iii) any works created or otherwise arising in connection with the provision of the Services by Caburn, its Affiliates, its licensors and/or its suppliers and its or their personnel, whether submitted or suggested by the Client or created by Caburn, shall be and remain the exclusive property of Caburn and/or its licensors (“Caburn IPR”).
12.2. Except for the rights specifically granted under these Terms of Business, nothing in these Terms of Business shall be construed as transferring any right of ownership over any such Caburn IPR to the Client and all rights in Caburn IPR not specifically granted in these Terms of Business are reserved by Caburn.
12.3. Caburn grants to the Client a non-exclusive, non-transferrable, worldwide licence for the term of these Terms of Business to use Caburn IPR to the extent required by the Client to perform their obligations, receive the Services and exercise their rights pursuant to these Terms of Business.
12.4. All rights, title and interest in and to all Intellectual Property Rights in the Client Material shall remain the exclusive property of the Client and/or their licensors (which licensors, for the avoidance of doubt, may include Caburn or a Caburn Affiliate where Caburn or that Caburn Affiliate has provided information or other content forming a part of the Client Material under a separate agreement to these Terms of Business) (“Client IPR”).
12.5. The Client grants to Caburn and its subcontractors a royalty-free, sub-licensable, worldwide licence to use, copy, modify, adapt and reconfigure the Client IPR and all Intellectual Property Rights therein to the extent required to perform its obligations and exercise its rights pursuant to these Terms of Business.
12.6. Subject to the rights expressly granted under these Terms of Business, if at any time any right, title or interest in or to any:
12.6.1. Caburn IPR vests in, or is acquired by, the Client, and/or any Client personnel by operation of law, the Client hereby irrevocably assign (and shall procure that its relevant personnel irrevocably assign) such right, title or interest in or to Caburn IPR to Caburn (or to the relevant Caburn personnel, as applicable);
12.6.2. Client IPR vests in, or is acquired by, Caburn and/or any Caburn personnel by operation of law, Caburn hereby irrevocably assign (and shall procure that its relevant Caburn personnel irrevocably assign) such right, title or interest in or to the Client IPR to the Client (or to the relevant Client personnel, as applicable).
12.7. If the assignment of any Intellectual Property Rights does not take immediate effect, the party required to assign or procure the assignment (“Assignor Party”) undertakes to hold (or to procure that its personnel hold) all such Intellectual Property Rights on trust for the assignee party (“Assignee Party”) and on request, the Assignor Party, at its own expense, shall execute or procure from any relevant third party the execution of any formal assignment or other document required to give effect to this Clause 12 and must, at its own expense, provide all assistance requested by the Assignee Party to perfect, protect, defend or assert the Assignee Party’s interests in such Intellectual Property Rights.
12.8. Upon termination of these Terms of Business, the Client shall return to Caburn all copies of Caburn’s IPR in its possession. Caburn shall return to the Client all copies of Client Material in its possession, provided that (i) it may keep one copy solely for the purpose of defending any claim against Caburn by the Client in respect of these Terms of Business and (ii) this does not include Client Material that forms part of an electronic back-up system which is not immediately retrievable as part of day-to-day business.
12.9. Subject always to the observance by the Client of their obligations under this Clause 12, Caburn shall indemnify and keep indemnified the Client against all liabilities, damages, costs, losses, claims, expenses, demands and proceedings arising from or incurred by reason of any infringement or alleged infringement in the United Kingdom of any Intellectual Property Rights of a third party in connection with the provision of the Services by Caburn.
12.10. Caburn shall promptly notify the Client if any claim or demand is made or threatened or action brought against it or them for infringement or alleged infringement of any Intellectual Property Rights of a third party, which may affect the provision of the Services.
12.11. The Client shall promptly notify Caburn if any claim or demand is made or threatened or action brought against them to which this Clause 12 may apply. Caburn shall at their own expense conduct any litigation arising in connection with any such infringement or alleged infringement and all negotiations in connection with any such litigation.
12.12. The indemnity in this Clause 12 is subject to the Client notifying Caburn promptly of any claim, demand or action referred to above, not making any admissions or settlements or agreeing any compromises in respect of any such matter without the prior written consent of Caburn and granting Caburn sole conduct and control of all discussions, negotiations and proceedings relating to such matter.
12.13. The Client shall give Caburn all reasonable assistance and co-operation in connection with any claim, action or demand and their defence.
13. REPORTS TO THE PENSIONS REGULATOR (“WHISTLE BLOWING”)
13.1. In the case of pension related services, Caburn will follow statutory and professional guidelines should there be a need to submit a report to the Pensions Regulator and wherever possible will produce a joint report with Client, as appropriate. Caburn’s normal approach would be to channel any concerns through the Scheme Actuary or Scheme Auditor (as appropriate).
14. FORCE MAJEURE
14.1. No Party shall be in breach of the Terms of Business, or in any way liable to the other Party, for any failure or delay in performing its obligations (other than an obligation to make payment) caused by any event or circumstance beyond its control, or beyond the control of any person to whom Caburn may have sub-contracted any of its obligations in accordance with Clause 9 including but not limited to war, civil disorder, terrorism, flood, fire, strike, lockout, industrial dispute or act of government, provided that the other Party shall be entitled to terminate these Terms of Business forthwith by notice under Clause 16 if such non-performance continues for more than 30 days.
15. VARIATIONS
15.1. These Terms of Business may be varied by agreement in writing signed on behalf of each Party.
16. TERMINATION
16.1. Subject to Clause 16.2 the Terms of Business shall continue in force until terminated by any Party by giving not less than three months’ notice in writing (and where there is a Fixed Term such notice shall not expire before the last day of the Fixed Term).
16.2. Any Party (the “Terminating Party”) may terminate the Terms of Business with immediate effect by giving notice to the other Party on or at any time after the occurrence of any of the events specified below in relation to Caburn (in the case of termination by the Client) or in relation to the Client (in the case of termination by Caburn) (the “Defaulting Party”):
16.2.1. a breach is committed by the Defaulting Party of any of its obligations under the Terms of Business which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 30 days after the receipt of a notice in writing from the Terminating Party requiring the Defaulting Party to do so;
16.2.2. a provisional liquidator is appointed to the Defaulting Party or the Defaulting Party goes into liquidation either compulsorily or (except for the purpose of reconstruction or amalgamation) voluntarily;
16.2.3. a receiver is appointed in respect of the whole or any part of the assets of the Defaulting Party;
16.2.4. an administration order is made in respect of the Defaulting Party;
16.2.5. Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors;
16.2.6. the Defaulting Party is prevented from complying with its obligations for more than 30 days in accordance with Clause 14 (force majeure);
16.3. On termination by either Party, Caburn:
16.3.1. shall be entitled to receive from the Client all Fees, costs and expenses accrued or incurred under the Terms of Business up to the date of termination including any additional expenses, or losses necessarily incurred in settling outstanding obligations or terminating the Terms of Business whether they occur before or after the date of termination; and
16.3.2. shall, subject to Clause 16.3.1, refund any Fees paid in advance by the Client.
16.4. Notwithstanding termination, any transactions already initiated shall be completed by Caburn, subject to payment of its Fees, costs and expenses as provided for under Clause 16.3. Termination shall not prejudice any right of action or remedy which shall have accrued or which shall thereafter accrue to any of the Parties.
17. DATA PROTECTION
17.1. The Parties shall comply with the obligations imposed on them by the Data Protection Legislation to the extent that those obligations are pertinent to performing the obligations under the Terms of Business, including the obligations set out in Clauses 18 to 23.
18. GENERAL RESPONSIBILITIES
18.1. In relation to all Client Personal Data provided or made available to Caburn the Client shall ensure that:
18.1.1. the provision, making available and disclosure of Client Personal Data (including all Special Categories of Personal Data) to Caburn and all Processing of such Client Personal Data by or on behalf of the Client in accordance with, or as referred to in, these Terms of Business, is fair and lawful and in accordance with the Data Protection Legislation, including by ensuring that all necessary fair processing information has been provided in writing to, and all necessary consents obtained from, the Scheme members, Client employees, the Client (where the Client are individuals), the directors, employees and other officers of the Client (where the Client is a body corporate), any individuals working for the Client who are identified as contacts of Caburn for the purposes of carrying out the terms of these Terms of Business, and any other individuals whose Personal Data may be Processed by Caburn under or in connection with these Terms of Business;
18.1.2. where any Personal Data has not been explicitly requested by Caburn that the provision, making available or disclosure of it to Caburn is necessary in order for Caburn, to carry out the Services or perform their obligations under Laws, and is otherwise in accordance with the Data Protection Legislation;
18.1.3. all Client Personal Data is:
(a) at the time it is provided or made available to Caburn; and
(b) at all times thereafter maintained,
accurate and up-to-date in accordance with the Data Protection Legislation, and shall notify Caburn promptly, and in any event within five (5) Business Days, if a relevant Data Subject requests that his or her details be updated. Caburn shall only change or update Client Personal Data pursuant to instructions from an Authorised Person.
18.2. Subject to Clause 18.3 and 19.2, if Caburn shall deem it necessary to transfer as a Data Controller any Client Personal Data which is being Processed by them under the terms of these Terms of Business to any country outside the EEA and UK, it shall:
18.2.1. notify the Client in advance of such transfer; and
18.2.2. be responsible for ensuring that an adequate level of protection for the rights and freedoms of Data Subjects in relation to the Processing of that Client Personal Data is ensured in that country, or that another provision of the Data Protection Legislation would permit such a transfer.
This provision shall not apply where Caburn is instructed by the Client to transfer Client Personal Data overseas.
18.3. For the purposes of Clause 18.2.1, the Client acknowledges that:
18.3.1. Caburn may transfer Client Personal Data to, and store Client Personal Data in, the USA and Canada as part of the back up to e-mail servers that are managed and hosted by Atos IT Outsourcing Limited and/or Microsoft Corporation (each a “Server Provider”) and/or Buck Group,
18.3.2. Buck Group and Buck Group Affiliates may Process Client Personal Data outside of the EEA and UK in order to prepare invoices for the Services and manage payment of Fees and all matters connected thereto,
provided that Caburn shall ensure that each such transfer and Processing by each such Server Provider, Buck Group and Buck Group Affiliates is at all times pursuant to such legally enforceable mechanism(s) for transfers and Processing of Personal Data as may be permitted under the Data Protection Legislation from time to time.
19. CABURN GENERAL RESPONSIBILITIES AS DATA PROCESSOR
19.1. Where Caburn acts as a Data Processor for the Client in respect of the Client Personal Data it shall:
19.1.1. only Process that Client Personal Data for the purpose of providing the Services and in accordance with the written instructions of the Client, unless required to do so by Laws, in which case, unless prohibited by Laws, Caburn shall inform the Client of such requirement before Processing. Caburn is instructed by the Client to Process Client Personal Data as Data Processors on behalf of the Client in any of the ways contemplated in, and for the purposes of carrying out any of the terms of, these Terms of Business and any purposes ancillary thereto;
19.1.2. inform the Client of any legal requirement under Laws that would require Caburn to Process the Client Personal Data otherwise than only on the written instructions of the Client, or if any instruction of the Client infringes the Data Protection Legislation;
19.1.3. before disclosing any Client Personal Data to any of its personnel who are authorised to Process the Client Personal Data for the purposes of these Terms of Business, ensure that the relevant personnel have committed themselves to confidentiality obligations equivalent to those in Clause 7;
19.1.4. not transfer any Client Personal Data to any country outside the EEA and UK or to any international organisation (an “International Recipient”) without the Client’s prior written consent (unless required to do so by Laws, in which case, unless prohibited by Laws, Caburn shall inform the Client of such requirement before such transfer) and, if the Client consents to the transfer of Client Personal Data to an International Recipient, Caburn shall ensure that such transfer (and any onward transfer):
(a) is pursuant to a written contract including provisions relating to security and confidentiality of the Client Personal Data;
(b) is effected by way of a legally enforceable mechanism for transfers of Personal Data as may be permitted under the Data Protection Legislation from time to time (the form and content of which shall be subject to the Client’s written approval); and
(c) otherwise complies with the Data Protection Legislation.
Where any mechanism for cross-border transfers of Client Personal Data is found by a Supervisory Authority, court of competent jurisdiction or other governmental authority to be an invalid means of complying with the restrictions on transferring Client Personal Data to an International Recipient as set out in the Data Protection Legislation, the Parties shall act in good faith to agree the implementation of an alternative solution to enable all Parties to comply with the provisions of relevant Data Protection Legislation in respect of any such transfer.
19.1.5. For the purposes of this Clause 19.1.5, the Client consents to Caburn transferring Client Personal Data to each such Server Provider, Buck Group and Buck Group Affiliates in the manner contemplated in Clause 18.2 and 18.3 provided that Caburn complies with the requirements of Clause 18.2 in respect of the transfer to and Processing of Client Personal Data by each such Server Provider, Buck Group and Buck Group Affiliate;
19.1.6. implement and maintain appropriate technical and organisational measures for the fulfilment of the Client's obligation to respond to requests by Data Subjects to exercise their rights under the Data Protection Legislation;
19.1.7. comply with its obligations under Clause 20.3;
19.1.8. assist the Client with undertaking an assessment of the impact of Processing of the Client Personal Data, and with any prior consultations with a Supervisory Authority in relation to high risk Processing, if and to the extent an assessment or prior consultation is required to be carried out under the Data Protection Legislation;
19.1.9. promptly delete or return (at the Client's election) all Client Personal Data (but excluding any Personal Data that forms part of an electronic back-up system which is not immediately retrievable as part of day-to-day business) when it no longer needs to retain it for the purposes set out in Clause 19.1.1, provided that Caburn may as Data Controller retain a copy of Client Personal Data where required to do so by Laws or for its legitimate record keeping purposes relating to its performance of these Terms of Business (including to defend itself against possible future claims); and
19.1.10. upon the Client's reasonable written request, make available to the Client all information necessary to demonstrate compliance with its obligations under Clause 18 to 23 and allow the Client or an auditor mandated by the Client to carry out audits relating to the Processing of Client Personal Data by Caburn or any approved Buck Group Affiliate, third party or approved subcontractor, to verify compliance with this Clause 19, subject to the Client giving Caburn reasonable prior written notice of such audit and ensuring that any auditor is subject to binding obligations of confidentiality in terms reasonably satisfactory to Caburn.
19.2. Caburn shall not, when acting as Data Processor for the Client, sub-contract any Processing of Client Personal Data, without the Client’s prior written consent (such consent not to be unreasonably withheld or delayed). If such consent is given, Caburn shall ensure that a written agreement is concluded between it and the sub-contractor which contains, to the extent appropriate, no less onerous obligations on the sub-contractor to those on Caburn under these Terms of Business in relation to the Processing of Client Personal Data and in particular and where required by the Data Protection Legislation providing sufficient guarantees to implement appropriate technical and organisational security measures in such a manner that the Processing will meet the requirements of the Data Protection Legislation.
19.3. Appendix A sets out the details of the processing carried out under these Terms of Business.
20. SECURITY
20.1. In relation to Client Personal Data Caburn shall:
20.1.1. implement and maintain appropriate technical and organisational measures in relation to the Processing of Client Personal Data by or on behalf of the Client:
(a) such that the Processing will meet the requirements of the Data Protection Legislation and ensure the protection of the rights of Data Subjects; and
(b) so as to ensure a level of security in respect of Client Personal Data Processed by it is appropriate to the risks that are presented by the Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Client Personal Data transmitted, stored or otherwise Processed; and
20.1.2. without prejudice to the generality of Clause 20.1.1, if and to the extent that it:
(a) stores, downloads or Processes Client Personal Data on or to any mobile device or other portable or removable device or medium (including any memory stick or card, DVD, removable hard drive or other mobile storage device, laptop, tablet or smart phone); or
(b) transfers Client Personal Data to another Party or any third party, or receives Client Personal Data from such persons,
ensure that the Client Personal Data on the device on which it is held, and the Data transferred, is encrypted using the encryption technologies agreed between the Parties from time to time or, if no encryption technologies are so agreed, an encryption technology appropriate to the sensitivity of the Client Personal Data concerned (both within the meaning of the Data Protection Legislation and in accordance with good industry practice), and that the Client Personal Data is stored separately from any Data which may be used to decrypt it; and
20.1.3. monitor good industry Data security practice and keep compliance with Data protection requirements regularly under review, particularly in relation to the technical and legal developments and relevant new or changed security threats, and at its own cost implement any further steps that are necessary adequately to comply with the obligations which are imposed on it pursuant to the Data Protection Legislation.
20.2. Each Party shall co-operate with the other Parties in the provision of such information as may be reasonably necessary in order for them to satisfy themselves as to their respective compliance with their obligations under Clause 20.1.1, subject in the case of Caburn the need to maintain confidentiality in respect of information relating to other clients and to any other duties or considerations of confidentiality imposed on Caburn whether by contract, operation of law or otherwise.
20.3. Each Party shall notify the other(s) promptly, and in any event within two (2) Business Days after becoming aware, of any loss or unauthorised or non-compliant access to or other Processing of Client Personal Data (a “Breach”) and provide reasonable assistance to the other Parties in order to address such Breach. If the Breach was not directly caused by an act or omission of Caburn in breach of these Terms of Business they shall be entitled to charge for any time or work they spend or undertake (on the terms set out in these Terms of Business), and to recover from the Client any expenses they incur, in connection with such a matter.
21. DATA SUBJECT REQUESTS
21.1. Each Party acknowledges that Data Subject(s) will have the right at any time to exercise their rights applicable from time to time under the Data Protection Legislation (each a “Data Subject Request”). If a Data Subject Request is received by Caburn in relation to any Client Personal Data Caburn shall not respond to the Data Subject Request, but shall, to the extent permitted by Laws, immediately pass the Data Subject Request to the Client. The Client shall handle the Data Subject Request so as to comply with the Data Protection Legislation and, subject to Clause 21.2, Caburn shall provide such reasonable assistance to the Client as they may request from time to time in connection with the Data Subject Request.
21.2. Caburn shall be entitled to charge the Client for any time or work they spend or undertake (on the terms set out in these Terms of Business), and to recover from the Client any expenses they incur, in connection with responding to a Data Subject Request. The provision of any information by Caburn to the Client in connection with a Data Subject Request, or a request made in connection with a Data Subject Request, shall be subject to any duties of confidentiality owed by Caburn to any other person whether arising under contract, operation of law or otherwise.
22. ENQUIRIES, INVESTIGATIONS AND ASSESSMENTS BY SUPERVISORY AUTHORITIES
22.1. If a Party (the “Receiving Party”) receives any enquiry, notice, investigation or assessment by or on behalf of a Supervisory Authority which relates directly or indirectly to any other Party's: (i) Processing of Client Personal Data; or (ii) a potential failure to comply with the Data Protection Legislation, the Receiving Party shall promptly forward the enquiry, notice, investigation or assessment to that other Party and provide that other Party with reasonable cooperation and assistance in relation to the same provided that it can legally do so.
22.2. The provision of any information, co-operation or assistance by Caburn to the Client in connection with Clause 22.1 shall be subject to any duties of confidentiality owed by Caburn to any other person whether arising under contract, operation of law or otherwise.
22.3. Caburn shall be entitled to charge the Client for any time or work they spend or undertake as described in Clause 22.1 (on the terms set out in these Terms of Business), and to recover from the Client any expenses they incur, in connection with such a matter.
23. CLIENT PERSONAL DATA
23.1. Caburn shall be entitled to hold and Process Personal Data about the directors and other officers of the Client and about any individuals working for the Client who are identified as contacts of Caburn for the purposes of carrying out the terms of these Terms of Business. Caburn may Process such Personal Data for the following purposes:
23.1.1. managing, and making decisions about, these Terms of Business with the Client and any matters (such as invoicing and Fee arrangements) arising in connection with these Terms of Business;
23.1.2. communicating with such individuals in relation to matters arising under or in connection with these Terms of Business; and
23.1.3. conducting, monitoring, analysing, valuing, disposing of or acquiring additions to their businesses or any aspect of them.
23.2. Caburn may disclose such Personal Data to:
23.2.1. any person working for them or for an Affiliate of Buck Group for any of the purposes identified above;
23.2.2. any insurer, adviser, auditor, bank or other financial institution, debt collection agency, marketing or public relations consultant, advertiser, management consultant or other provider of services to Caburn (or any person working for any of them);
23.2.3. any person to whom Caburn is, with the agreement of the Client, to transfer any of its responsibilities under these Terms of Business on termination or expiry of these Terms of Business or otherwise;
23.2.4. any other adviser to the Client (unless instructed not to do so);
23.2.5. any actual or potential purchaser of Caburn, an Affiliate of Buck Group, or the whole or a part of their operations, and any actual or potential seller to Caburn or an Affiliate of Buck Group of any company or business;
23.2.6. comply with any Laws applicable to Caburn or an Affiliate of Buck Group; or
23.2.7. anyone to whom the Client authorises such disclosure.
24. GENERAL PORTAL TERMS AND CONDITIONS
24.1. These Clauses 24 to 29 apply where the Services described in the Engagement Letter include provision of a Portal. The following additional definitions apply:
“Caburn Portal Material” means (i) information, documentation and other material created by Caburn for use on any Portal including the Documentation and any information, documentation and other material made available by Caburn to any Authorised User via a Portal or in the cases of the website the public, but excluding Client Portal Material and (ii) all methods, methodologies, products, processes, tools, techniques, databases, know how, software or other materials owned or licensed by Caburn (whether conceived, reduced to practice or developed outside the scope of this Agreement prior to the Effective Date and/or during the term of this Agreement which) are utilised by or on behalf of Caburn in the provision of access to a Portal.
“Caburn Systems” the information and/or communications technology systems, networks, computers, servers and other hardware devices and software applications and code operated by or on behalf of Caburn or Buck Group and used in the provision of the Services.
“Client Portal Material” means:
(a) all information and data relating to the Client and/or any Authorised User that is collected or obtained by the Client, any Authorised User or Caburn on the Client behalf and entered into any Portal for the purpose of using or facilitating the provision, use or receipt of any Portal;
(b) all information and data relating to the Client and/or any Authorised User that is generated through the use of any Portal;
(c) the information content, images, and branding for any Portal and other content provided to Caburn by or on behalf of the Client and/or any Authorised User from time to time for incorporation in or to be made accessible through any Portal or otherwise for use in connection with any Portal;
(d) materials forming part of the deliverables for the performance of any Services by Caburn that relates to any Portal;
(e) information from third party sources that Client require to be displayed on any Portal.
“Portal” shall mean a scheme website displaying information about the Scheme or any other portal or website displaying information agreed as part of the Portal Services.
“Portal Database” means any data held on a Portal;
“Portal Go Live Date” means such date agreed between the Parties for when the applicable Portal goes live;
“Portal Services” means those services relating to the scheme website or any other type of website or portal to be provided by Caburn to the Client, as described in the Engagement Letter and forming part of the Services;
“Terms of Use” means the applicable terms of use of the applicable Portal that apply to all users of the Portal, as amended and updated by Caburn in its sole and absolute discretion, from time to time.
24.2. Caburn shall:
24.2.1. host each Portal on a server within the Caburn Systems;
24.2.2. use commercially reasonable endeavours to make each Portal available from the applicable Portal Go Live Date;
24.2.3. manage the content of each Portal in accordance with Clause 27.
24.2.4. The Client acknowledges that Caburn’s ability to provide each Portal and keep it updated is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of any information and data the Client provides to Caburn. Accordingly, the Client shall provide Caburn with access to, and use of, all information, data and documentation reasonably required by Caburn for the performance by Caburn of the Portal Services.
24.2.5. Caburn shall provide access to each Portal subject to the applicable Terms of Use.
25. CLIENT PORTAL RESPONSIBILITIES
25.1. In relation to Authorised Users the Client shall:
25.1.1. only permit Authorised Users to access the Portal for which they are an Authorised User;
25.1.2. require all Authorised Users to comply with the Terms of Use that apply to the Portal for which they are an Authorised User;
25.1.3. maintain a list of current Authorised Users of each Portal (unless Caburn maintains that list as part of the Services) which list shall be provided to Caburn by the Client from time to time as necessary to ensure that Caburn has an up to date list of current Authorised Users of each Portal;
25.1.4. notify Caburn immediately if any person ceases to be, or is removed as, an Authorised User of the Portal for which they are an Authorised User (unless Caburn maintains that list as part of the Services);
25.1.5. make reasonable endeavours to require each Authorised User of each Portal for which they are an Authorised User to keep secure and confidential the password provided for use of each such Portal.
25.2. The Client shall use all reasonable endeavours to:
25.2.1. ensure the legality and accuracy of Client Portal Material (but excluding information from any third party sources) including but not limited to Authorised Users;
25.2.2. ensure that the Client Portal Material that it provides to Caburn does not contain any infringing content (but excluding information from third party sources over which the Client have no control);
25.2.3. not (and shall procure that no Authorised User shall) access, store, distribute or transmit any viruses, during the course of use of any Portal or the provision of any Client Portal Material that is infringing content.
25.3. The Client shall not (except as may be allowed by Law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under these Terms of Business):
25.3.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of any Portal and/or the Caburn documentation on the Portal (as applicable) in any form or media or by any means;
25.3.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of any Portal;
25.3.3. access or permit any Authorised User to access all or any part of any Portal and/or the Documentation in order to build a product or service which competes with any Portal and/or the Documentation
25.3.4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make any Portal, any Portal Database and/or the Documentation available to any third party except any Authorised User of that Portal; or
25.3.5. attempt to obtain, or assist third parties in obtaining, access to, any Portal, any Portal Database and/or Documentation, other than as expressly permitted under this Agreement.
25.4. The Client shall, and shall ensure that its personnel shall:
25.4.1. co-operate with Caburn in relation to the performance by Caburn of its obligations to provide the Portal Services including by providing or procuring the provision of the Client Portal Material in a timely manner;
25.4.2. provide or arrange for Caburn to be provided with such information, assistance and documents as Caburn may reasonably require for the proper performance of Caburn’s obligations under these Terms of Business to provide the Portal Services or in order to comply with any applicable Laws which apply to these Terms of Business.
25.5. It shall be the responsibility of the Client to ensure that they have a suitable internet service and that they have the hardware, telecommunications services and software necessary to access any Portal over the internet as recommended by Caburn from time to time. Caburn takes no responsibility for the performance of any such hardware, telecommunications services, software or internet service, or for the performance or availability of the internet itself.
25.6. The Client and Caburn shall notify each other if they become aware of any allegation that any content comprised in any Portal or the Client Portal Material constitutes infringing content.
26. OPERATION OF PORTAL
26.1. Caburn reserves the right, without liability to the Client to disable the Client or any Authorised User’s access or any third party access to any Portal or parts thereof if:
26.1.1. any Client Portal Material breaches the requirements of these Terms of Business;
26.1.2. if passwords have been provided to individuals who are not an Authorised User of that Portal or that any or all passwords used are not being kept secure or confidential,
26.1.3. any Portal or parts thereof, used by the Client and/or any Authorised User of that Portal in breach of the Terms of Use that apply to that Portal and/or these Terms of Business
26.1.4. for technical, legal or operational reasons.
26.2. The Client acknowledges and agrees that Caburn:
26.2.1. employees may, where necessary, access any Portal and the Client Portal Material for the purpose of system management, maintenance, monitoring, and backups;
26.2.2. may audit use of any Portal to establish the name and password for each Authorised User of that Portal;
26.2.3. reserves the right to remove content from any Portal, Portal Databases, or Client Portal Material where it reasonably suspects such content is infringing content.
26.3. Caburn may, for technical, legal or operational reasons, change the specification of any Portal (but not so as to materially adversely affect the performance of any Portal) or temporarily suspend access to any Portal. Before changing or suspending any part of any Portal, Caburn will give the Client as much notice as is reasonably possible in the circumstances. Caburn shall not be liable to the Client or any third party for any such change or suspension of any Portal.
26.4. Caburn does not guarantee the accuracy of the document search facility function of any Portal. Any search findings and results provided by such search facility should be verified by person running such search against fixed non-searchable versions of the relevant original documents.
26.5. Except as expressly and specifically provided in these Terms of Business the Client assumes sole responsibility for results obtained from the use of any Portal by the Client or its Authorised Users.
27. PORTAL CONTENT
27.1. Caburn shall from time to time update each applicable Portal with the Client Portal Material provided for inclusion on the applicable Portal.
27.2. Caburn shall not be responsible for any loss, destruction, alteration or disclosure of Caburn Portal Material and/or Client Portal Material caused by any third party (except those third parties subcontracted by Caburn for the purposes of the Services).
28. SERVICE LEVELS
28.1. Access to each Portal shall be given in accordance with the terms and conditions of these Terms of Business and applicable Terms of Use.
28.2. Subject to paragraph 28.3, with effect from the applicable Portal Go Live Date, Caburn shall use commercially reasonable endeavours to make each Portal available at least 99% of the time on a 24 hours a day, seven days a week basis when measured over the course of 12 months (the first such 12 months commencing on the applicable Portal Go Live Date).
28.3. Caburn shall not be required to make any Portal available during:
28.3.1. scheduled maintenance that meets the conditions in paragraph 28.4;
28.3.2. unscheduled maintenance that meets the conditions in paragraphs 28.4 and 28.5;
28.3.3. any down time caused by acts or omissions of the Client or any user;
28.3.4. periods of suspension pursuant to paragraph 26;
28.3.5. any down time due to a force majeure event;
28.4. Caburn shall use its reasonable endeavours to perform any required maintenance of any Portal (whether scheduled or unscheduled) outside of normal business hours and will where possible give at least five business days’ notice for scheduled maintenance.
28.5. Caburn shall carry out unscheduled maintenance on any Portal that is required, in Caburn’s reasonable opinion:
28.5.1. to prevent and/or address a problem that is causing or is reasonably likely to cause the Portal and/or any Caburn Systems to fail to operate substantially in accordance with applicable Law or these Terms of Business;
28.5.2. to ensure the proper provision of the applicable Portal Services;
28.5.3. to address any matter that Caburn consider to be abuse, illegal or fraudulent use of the Services or a security risk to the Portal and/or any Caburn Systems.
29. BACK-UPS
29.1. Caburn shall follow its backup procedures. In the event of any loss of or damage to Caburn Portal Material or Client Portal Material, the Client’s sole and exclusive remedy shall be for Caburn to use reasonable commercial endeavours to restore from the latest back-up maintained by Buck.
30. INTELLECTUAL PROPERTY RIGHTS
30.1. The definition of “Caburn IPR” in Clause 12.1 shall be amended so that the following are added to the definition:
“The Portal, Caburn Portal Material, the Documentation and the Performance Data, in any additions, modifications or enhancements to the Portal, Caburn Portal Material and Documentation from time to time, whether submitted or suggested by a Client Party, any Authorised User or created by Caburn or otherwise.”
30.2. Caburn grants to the Authorised Users, in accordance with this Agreement a non-exclusive, non-transferrable, non-sub-licensable, royalty-free licence for the term of the Agreement to access and use the Portal and Caburn Portal Material strictly for the purposes of enabling the Authorised Users to have the benefit of the functionality included the Portal.
30.3. The definition of “Client IPR” in Clause 12.4 shall also include “Client Portal Material”.
31. WARRANTIES
31.1. Except as otherwise expressly set forth herein, Caburn makes no representations or warranties or conditions to the Clients or any third party for any Portal (including any software, databases, equipment, user manuals, documentation and any information contained therein or generated thereby) or any related services, express or implied, by statute, custom, law or usage including without limitation any implied representations, warranties or conditions of merchantability (or merchantable quality) and fitness for a particular purpose and representations, warranties and conditions arising from course of dealing or trade usage; all such implied representations, warranties and conditions are expressly and specifically excluded and disclaimed to the fullest extent permitted by Law.
31.2. If any Portal does not so perform, the Client’s sole remedy shall be to require Caburn, at no additional charge, to carry out work reasonably necessary in order to ensure that the Portal substantially complies with the applicable Portal Services description.
32. COMPLAINTS
32.1. If the Client has any complaint about the advice or service, then the Client should write in the first instance to the Compliance Manager at the following address:
The Compliance Manager, Buck, 20 Wood Street, London, EC2V 7AF or Telephone: 020 7429 1000.
33. CONFLICTS OF INTEREST
33.1. The Client acknowledges that the services provided by Caburn are not exclusive and that circumstances may arise where the interests of Caburn or their officers and employees conflict with the interests of the Client or where the interests of one of the customers of Caburn may conflict with the interests of the Client.
33.2. Caburn is by applicable Laws required to take all appropriate steps to identify, prevent or manage conflicts of interest that may arise in relation to certain Services. Caburn has a conflicts of interest policy in place which describes the organisational and administrative arrangements that Caburn has in place to identify, prevent or manage such conflicts. Caburn shall disclose such conflicts of interest to the Client which cannot be prevented or managed effectively. A copy of the conflicts of interest policy is available on request sent to the Compliance Manager at the address set out in Clause 32.
34. WAIVER
34.1. No delay in exercising or failure to exercise by any Party of any of its rights under or in connection with the Terms of Business shall operate as a waiver or release of that right. Rather, any such waiver or release must be specifically granted in writing signed by the Party granting it.
35. SERVICES NOT EXCLUSIVE
35.1. The services of Caburn pursuant to the Terms of Business shall not be deemed to be exclusive, and Caburn shall be free to render similar services to other persons and to act in any capacity whatsoever for any other person.
36. BUSINESS CONTINUANCE
36.1. Caburn shall, at all times, have in place reasonable measures to ensure that, in the event that they cannot provide the Services in the normal manner by reason of any such event or circumstance, they can continue to provide the Services in some other manner with as little disruption or interruption as practicable.
37. SEVERABILITY
37.1. If any provision or part of any provision of the Terms of Business shall be held by a court of competent jurisdiction to be invalid or unenforceable, then the provision or part shall be severed and the remainder of the provision and all other provisions of the Terms of Business shall remain valid and in full force.
38. NON SOLICIT
38.1. The Client shall not during the term of these Terms of Business and for a period of 12 months after expiry of the Terms of Business, directly or indirectly, solicit or entice away (or attempt to solicit or entice away), any employee of Caburn.
39. PUBLICITY
39.1. The Client agrees that Caburn may disclose to third parties the existence of these Terms of Business and the nature of the Services provided.
40. STATUS OF PARTIES
40.1. Nothing in the Terms of Business shall be construed as establishing or implying a partnership between the Parties and no Party shall hold itself out as acting on behalf of the other nor pledge the credit of the other.
41. ENTIRE AGREEMENT
41.1. The Terms of Business represents the entire agreement between the Parties in relation to the subject matter of the Terms of Business and supersedes any previous agreement whether written or oral between all or any of the Parties in relation to that subject matter.
41.2. The Parties agree that any documents, information and answers provided as part of responses to any tender for the Services shall not form part of these Terms of Business.
41.3. Accordingly, all other conditions, representations and warranties which would otherwise be implied (by law or otherwise) shall not form part of these Terms of Business.
42. RIGHTS OF THIRD PARTIES
42.1. Except as otherwise expressly provided in these Terms of Business, none of the terms and conditions of these Terms of Business shall be enforceable by any person who is not a party to it, and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply in relation to the Terms of Business.
43. LAW AND JURISDICTION
43.1. These Terms of Business shall be governed by and construed to take effect in accordance with English law and each of the Parties submit to the exclusive jurisdiction of the English courts.
44. COUNTERPARTS
44.1. These Terms of Business may be executed (i) in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument and (ii) by electronic signature. Transmission by email (in PDF, JPEG or other agreed format) of the executed signature page of a counterpart of the Engagement Letter to which these Terms of Business are attached shall take effect as delivery of an executed counterpart of these Terms of Business.
APPENDIX A: DETAILS OF PROCESSING
This Appendix sets out the data processing particulars that are required to be set out in a contract between a Data Controller and a Data Processor under Article 28 of the GDPR.
1. Subject-matter, nature and purpose of the processing
- provision of services set out in the Engagement Letter
2. Duration of the processing
- term of agreement
3. Type of Personal Data
a. Personal data:
- Date of birth, name, address, national insurance number, Marital status, Gender, Maiden Name, Dependant’s details, Employee ID, Divorce Orders
b. Special categories of personal data:
- ill health information, marital status (sexual orientation)
4. Categories of Data Subjects
- Scheme members, Employees, Employees’/Scheme members partners and dependants