Focus Assist Group Limited incorporated and registered in The United Kingdom with company number 13212113 whose registered office is at Bilberry Accountants Ltd, Kingsgate, 62 High Street, Redhill, United Kingdom, RH1 1SG (Supplier).

• [FULL CUSTOMER COMPANY NAME] incorporated and registered in XXXXXXX with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (Customer).

Background

The Customer has requirements for XXX services.  The Supplier is a company specialist in the services required and related matters and is willing and able to provide its services on the terms of this agreement and as specified in the attached Statement of Works (SOW).

Agreed terms

1.                   Interpretation

The following definitions and rules of interpretation apply in this agreement.

1.1                Definitions

Customer’s Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.

Customer’s Manager: the Customer’s manager for the Project or the Services, appointed in accordance with clause 5.1.

Deliverables: all Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to a SOW or the Services in any form, including computer programs, data, reports and specifications (including drafts) including any deliverables specified in the SOW.

Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

In-put Material: all Documents, information and materials provided by the Customer relating to the Services, including computer programs, data, reports and specifications including any in-put materials specified in the SOW.

Intellectual Property Rights: patents, rights to inventions, copyright and and related rights, moral rights, trademarks and service marks, business names and domain names, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Mandatory Policies: The Customer’s business policies in Schedule 1 as amended by notification to the Supplier from time to time.

Pre-existing Materials: all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of this agreement, including computer programs, data, reports and specifications including the pre-existing materials specified in the SOW.

Project: the project as described in the SOW.

Project Milestones: a date by which a part of the Project is estimated to be completed, as set out in the SOW.

Statement of Works (SOW):  the detailed plan describing the Project and setting out the estimated timetable (including Project Milestones) and responsibilities for the provision of the Services agreed in accordance with clause 3.

Services: the services to be provided by the Supplier under this agreement as set out in the SOW together with any other services which the Supplier provides or agrees to provide to the Customer.

Supplier Background IPR: Intellectual Property Rights owned by or licensed to the Supplier prior to the commencement of a Project.

Supplier’s Equipment:  any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer.

Supplier’s Manager: the Supplier’s manager for the Services and the Project appointed under clause 4.3.

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

1.2                Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3                A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4                The Schedules and SOW form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules and SOW.

1.5                Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6                Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7                This agreement shall be binding on, and to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.

1.8                A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.9                A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.10             A reference to writing or written includes fax and email.

1.11             References to clauses, SOW and Schedules are to the clauses, SOW and Schedules of this agreement.

2.                   Commencement and duration

2.1                The Supplier shall provide the Services to the Customer on the terms and conditions of this agreement.

2.2                The Supplier shall provide the Services to the Customer from the date specified in the SOW.

2.3                The Services supplied under this agreement shall continue to be supplied until the Project is completed in accordance with the SOW unless this agreement is terminated by one of the parties giving to the other not less than 30 days notice, or at any time in accordance with clause 12.

3.                   SOW

3.1                The SOW[s] shall be agreed in the following manner:

(a)            the Customer shall provide the Supplier with a request for a SOW, setting out the requirements and specifications of the services which it is requesting from the Supplier, including a description of what work is to be done, dates by which each stage of the work is requested to be started and finished, Deliverables, In-put Materials and such other information as the Supplier may request to allow the Supplier to prepare a draft SOW;

(b)            the Supplier shall, as soon as reasonably practicable, provide the Customer with a draft SOW; and

(c)            the Supplier and the Customer shall discuss and agree the draft SOW and when it has been agreed, they shall both sign a copy of it and it shall become a Schedule to and subject to this agreement.

3.2                Once the SOW has been agreed and signed in accordance with clause 3.1(c), no amendment shall be made to it except in accordance with clause 6.

4.                   Supplier’s obligations

4.1                The Supplier shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Customer, in accordance with the SOW in all material respects.

4.2                The Supplier shall use reasonable endeavours to meet Project Milestones specified in the SOW, but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement.

4.3                The Supplier shall appoint the Supplier’s Manager who shall have authority contractually to bind the Supplier on all matters relating to the Project. The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier’s Manager throughout the term of this agreement but may replace him from time to time where reasonably necessary in the interests of the Supplier’s business.

4.4                The Supplier shall use reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises and that have been communicated to it under clause 5.1(d), provided that it shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this agreement.

4.5                The Supplier shall utilise the services on the individual(s) set out in the SOW and is entitled to replace such individuals with other suitably qualified and experienced individuals upon notifying the Client.

5.                   Customer’s obligations

5.1                The Customer shall:

(a)            co-operate with the Supplier in all matters relating to the Services and appoint the Customer’s Manager in relation to the Project, who shall have the authority contractually to bind the Customer on matters relating to the Project;

(b)            provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier;

(c)            provide, in a timely manner, such In-put Material and other information as the Supplier may reasonably require, and ensure that it is accurate in all material respects;

(d)            inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises;

(e)            obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Supplier’s Equipment, the use of In-put Material and the use of the Customer’s Equipment in relation to the Supplier’s Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the Services are to start;

(f)              be responsible for the overall direction of consultants (where necessary) assigned in the provision of the Services set out more specifically under the SOW.

5.2                If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.

5.3                The Customer shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of six months after the last date of supply of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.

5.4                Any consent given by the Supplier in accordance with clause 5.3 shall be subject to the Customer paying to the Supplier a sum equivalent to XX% of the then current annualised remuneration of the Supplier’s employee, consultant or subcontractor.

6.                   Change control

6.1                The Customer’s Manager and the Supplier’s Manager shall meet as agreed to discuss matters relating to the Project. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.

6.2                If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:

(a)            the likely time required to implement the change;

(b)            any necessary variations to the Supplier’s charges arising from the change;

(c)            the likely effect of the change on the SOW; and

(d)            any other impact of the change on this agreement.

6.3                If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services, the relevant SOW and any other relevant terms of this agreement to take account of the change and this agreement has been varied in accordance with clause 16.

7.                   Charges

7.1                In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in the SOW which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both. Clause 7.2 shall apply if the Supplier provides Services on a time and materials basis and clause 7.3 shall apply if the Supplier provides Services for a fixed price. The remainder of this clause 7 shall apply in either case.

7.2                Where Services are provided on a time and materials basis:

(a)            the charges payable for the Services shall be calculated in accordance with the Supplier’s standard daily fee rates as set out in the SOW;

(b)            the Supplier’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between 8.00 am and 6..00 pm on weekdays (excluding public holidays);

(c)            all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate;

(d)            the Supplier shall ensure that every individual whom it engages on the Services completes time sheets recording time spent on the Project, and the Supplier shall use such time sheets to calculate the charges covered by each monthly invoice referred to in clause 7.2(e); and

(e)            the Supplier shall invoice the Customer monthly in arrear for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 7.2 and clause 7.4. Each invoice shall set out the time spent by each individual whom it engages on the Services and provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.

7.3                Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the SOW. The Customer shall pay the total price to the Supplier (without deduction or set-off) in instalments, as set out in the SOW [on the Supplier achieving the corresponding Project Milestone. On achieving a Project Milestone or at the end of a period specified in the SOW in respect of which an instalment is due, the Supplier shall invoice the Customer for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in clause 7.4.

7.4                Any fixed price [and daily rate] contained in the SOW excludes:

(a)            the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier [at cost]; and

(b)            VAT, which the Supplier shall add to its invoices at the appropriate rate.

7.5                The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of receipt to a bank account nominated in writing by the Supplier.

7.6                Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date:

(a)            the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and

(b)            the Supplier may suspend all Services until payment has been made in full.

7.7                All sums payable to the Supplier under this agreement shall become due immediately on its termination, despite any other provision. This clause 7.7 is without prejudice to any right to claim for interest under the law, or any such right under this agreement.

7.8                All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7.9                The Supplier shall be responsible for the payment of all taxation required under applicable law in respect of payments received by the Supplier from the Client.

8.                   Intellectual property rights

8.1                The Supplier warrants that all Intellectual Property Rights in the Deliverables shall vest in and belong to the Client and/or the end client.  The Supplier irrevocably assigns to the Customer and/or the end customer all present and future rights with full title guarantee throughout the world, free from all encumbrances.  The Supplier shall execute and do all acts as are necessary to enable the Customer and/or end customer to apply for and obtain protection in any and all countries.

8.2                The Customer acknowledges that, where the Supplier does not own any of the Pre-existing Materials, the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer. Where any Deliverables and any other materials which are otherwise created by or on behalf of the Supplier as a result of the performance of a Project are supplied with or have embedded in them Supplier Background IPR then the Supplier shall retain ownership of such Supplier Background IPR, but hereby grants to the Customer a non-exclusive, perpetual (unless agreed otherwise in the relevant Project), irrevocable, royalty-free licence to use such Supplier Background IPR in any way whatsoever to facilitate and/or enable full use of the Deliverables or other materials and, for this purpose, to sub-license such Supplier Background IPR to third parties.

8.3                The Supplier warrants that they have the right to use all software and materials utilised in connection with the Deliverables, that all necessary licences in connection with the use of all software and materials have been purchased and that the Deliverables do not infringe any third-party rights.

9.                   Compliance with laws and policies

In performing its obligations under this agreement, the Supplier shall comply with:

(a)            all applicable laws, statutes, regulations from time to time in force; and

(b)            the Mandatory Policies.

10.                Confidentiality and the Supplier’s property

10.1             The parties undertake that they shall not at any time during this agreement, and for a period of one year after termination of this agreement, disclose to any person technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed one party to the other, their employees, agents, consultants or subcontractors or of any member of the group of companies to which the party belongs, and any other confidential information concerning the party’s business or its products which the other party may obtain, except as permitted by clause 10.2.

10.2             One party may disclose the other’s confidential information:

(a)            to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and

(b)            as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

10.3             Neither party shall use the other’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

10.4             All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including Pre-existing Materials and the Supplier’s Equipment) shall, at all times, be and remain [as between the Supplier and the Customer] the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.

11.                Limitation of liability –

11.1             Nothing in this agreement limits or excludes the Supplier’s liability for:

(a)            death or personal injury caused by its negligence;

(b)            fraud or fraudulent misrepresentation.

11.2             Subject to clause 11.1, 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:

(a)            loss of profits;

(b)            loss of sales or business;

(c)            loss of agreements or contracts;

(d)            loss of anticipated savings;

(e)            loss of or damage to goodwill;

(f)             loss of use or corruption of software, data or information;

(g)            any indirect or consequential loss.

11.3             Subject to clause 11.1 and clause 11.2, the Supplier’s 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 the amount of the charges paid by the Client under the SOW which is the subject of complaint. The Supplier total aggregate liability under this Agreement shall be limited to £1 million.

12.                Termination

12.1             Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a)            the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

(b)            the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(c)            the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or [(being a company or limited liability partnership) is deemed unable to pay its debts;

(d)            the other party goes into liquidation or receivership, has a receiver appointed over a significant part of its assets, or takes or suffers any similar action as a result of debt or anything analogous occurs under the law of any jurisdiction in relation to it; or

(e)            the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

12.2             For the purposes of clause 12.1(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of this agreement over the term of this agreement.  In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.

13.                Consequences of termination

13.1             On termination or expiry of this agreement:

(a)            the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;

(b)            the Customer shall, return all of the Supplier’s Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping;

(c)            the following clauses shall continue in force: clause 8 (Intellectual property rights), clause 10 (Confidentiality and the Supplier’s property), clause 11 (Limitation of liability), clause 13.1, clause 24 (Notices), clause 26 (Governing law and jurisdiction).

13.2             Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

14.                Force majeure

14.1             Either party may terminate this Agreement in accordance with this clause, due to a Force Majeure event or otherwise. Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:

(a)            acts of God, flood, drought, earthquake or other natural disaster;

(b)            epidemic or pandemic;

(c)            terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

(d)            nuclear, chemical or biological contamination or sonic boom;

(e)            any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;

(f)             collapse of buildings, fire, explosion or accident;

(g)            interruption or failure of utility service.

14.2             Provided it has complied with clause 14.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

14.3             The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

14.4             The Affected Party shall:

(a)            as soon as reasonably practicable after the start of the Force Majeure Event but no later than 14 days from its start notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and

(b)            use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

14.5             If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than one month the party not affected by the Force Majeure Event may terminate this agreement by giving 28 days’ written notice to the Affected Party.

14.6             If the Force Majeure Event prevails for a continuous period of more than one month, either party may terminate this agreement by giving 28 days’ written notice to all the other party. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.

15.                Data protection and bribery and corruption

15.1             The parties shall observe the provisions of General Data Protection Regulations (EU 2016/679 (“Regulations”).

15.2       The Customer provides express and valid consent to the Supplier or its subcontractors processing its personal data for purposes connected to the performance of this agreement. the Supplier shall process the personal data only on the instructions of the Customer in order to perform Supplier’s obligations under this Agreement; provide such appropriate technical and organisational measures as specified by the Customer; not process Data outside of the European Economic Area without the prior written consent of the Customer and comply with the Regulations in all respects

15.3      Both parties shall comply with all applicable laws, statutes, regulations, codes and guidance relating to anti-bribery and anti-corruption laws.

16.                variation and waiver

16.1             No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.2        Subject to clause 3 and clause 6, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives)

17.                Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

18.                Severance

18.1             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.

18.2             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.

19.                Entire agreement

19.1             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.

19.2             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.

19.3             Nothing in this clause shall limit or exclude any liability for fraud.

20.                Conflict

If there is an inconsistency between any of the provisions in the main body of this agreement, the SOW and the Schedules, the provisions in the SOW shall prevail.

21.                Assignment and other dealings

21.1             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 without the consent of the Supplier, not to be unreasonably withheld.

21.2             The Supplier may at any time assign, 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.

22.                No partnership or agency

22.1             Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

22.2             Each party confirms it is acting on its own behalf and not for the benefit of any other person.

23.                Third party rights

No one other than a party to this agreement their successors and permitted assignees, shall have any right to enforce any of its terms.

24.                Governing law

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.

25.                Jurisdiction

Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

This agreement has been entered into on the date stated at the beginning of it.

SCHEDULE
1

MANDATORY
POLICIES

DATA PROTECTION ADDENDUM

This Data Protection Addendum (“Addendum”) is entered into as of the XXXXXXX 2021 (“Effective Date”) by and between WD ASSIST, located in United Kingdon (“WD ASSIST”); and, XXXXXXX, located in XXXXX (“Vendor” hereinafter together referred to as the “Parties” and each individually, a “Party”).

Background

1. The Parties entered into those certain terms dated 15^th April 2021; and
2. This Addendum will apply in connection with any services performed by Vendor for WD Assist under SOW coming forth out of the main terms, which involve processing of personal data (each as defined below).

Terms and Conditions

1. Data Protection
   • Definitions: In this Clause, the following terms shall have the following meanings:
     • “controller“, “processor“, “data subject“, “personal data” and “processing” (and “process“): the meanings given in Applicable Data Protection Law; and
     • “Applicable Data Protection Law“: Regulation 2016/679 General Data Protection Regulation (GDPR) 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 any applicable rules, regulations, directives, or laws adopted under or in furtherance thereof. If the main terms or this Addendum involves the processing of personal data of a data subject in a jurisdiction which has data privacy or data protection laws and regulations which are more protective of the data subject’s rights than the GDPR then such additional laws and regulations shall be considered as part of the Applicable Data Protection Law under this Addendum.
   • Relationship of the parties: WD Assist is acting under the instructions of a controller, specified in the SOW. WD Assist has been appointed by the controller as a processor and administrator of all other vendors; and WD Assist appoints (at the instruction and/or approval of the controller, Vendor as a sub processor to process the personal data described in Annex A (the “Data“). Each party shall comply with the obligations that apply to it under Applicable Data Protection Law.
   • Purpose limitation: Vendor shall process the Data as a processor solely for the purposes described in Annex A of this Addendum and strictly in accordance with the documented instructions of WD Assist (the “Permitted Purpose“), except where otherwise required by Applicable Data Protection Law.  In no event shall Vendor process the Data for its own purposes or those of any third party.
   • • International transfers: Vendor shall not transfer the Data (nor permit the Data to be transferred) to any jurisdiction other than those to which transfers are permitted under the Applicable Data Protection Law unless (i) it has first obtained WD Assist’ prior written consent; and (ii) it takes such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. Such measures may include (without limitation) transferring the Data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient that has achieved binding corporate rules authorisation in accordance with Applicable Data Protection Law, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission.
     • Obligations under Standard Contractual Clauses: WD Assist, as Data Processor of EU Data, receives Data from data exporters or exports EU data in accordance with the standard clauses for the transfer of Personal Data to Processors established in third countries approved by the European Commission in the European Commission’s Decision 2010/87/EU of 5 February 2010 (“Controller to Processor Standard Clauses“).  As required by clause 11 of the Controller to Processor Standard Clauses (and also Article 28 (4) GDPR)), the parties agree that the terms set out in Annex C to this DPA (Flow-Down Obligations to Sub Processors under Controller to Processor Standard Contractual Clauses), as they flow-down to a sub-processor, shall apply and Vendor agrees and warrants that it shall comply with the terms of Annex C. In case of a conflict between the Standard Contractual Clauses under Annex C and the clauses in this DPA, the Standard Contractual Clauses shall prevail.
   • Confidentiality of processing: Vendor shall ensure that any person that it authorises to process the Data (including Vendor’s staff, agents and subcontractors) (an “Authorised Person“) shall be subject to a strict duty of confidentiality (whether a contractual duty or a statutory duty), and shall not permit any person to process the Data who is not under such a duty of confidentiality. Vendor shall ensure that all Authorised Persons process the Data only as necessary for the Permitted Purpose.
   • Security: The processor shall implement appropriate technical and organisational measures to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data (a “Security Incident“).  Such measures shall include, as appropriate:
     • the pseudonymisation and encryption of personal data;
     • the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
     • the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
     • a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

At a minimum, such measures shall include the measures identified in Annex B. WD Assist may modify or add to the requirements of Annex B by delivering written notice to Vendor. If a modification or addition is reasonably required to comply with Applicable Data Protection Law then Vendor shall comply with such modified or additional requirement at its cost. If Vendor refuses to comply with any modification or addition reasonably required by Applicable Data Protection Law then WD Assist may terminate the SOW without penalty by delivering written notice to Vendor. 

• Subcontracting: Vendor shall not subcontract any processing of the Data to a third-party subcontractor without the prior written consent of WD Assist.  If WD Assist refuses to consent to Vendor’s appointment of a third-party subcontractor on reasonable grounds relating to the protection of the Data, then either Vendor will not appoint the subcontractor or WD Assist may elect to suspend or terminate the SOW without penalty. If WD Assist approves a subcontractor, Vendor shall impose all of Vendor’s obligations under this Addendum on the subcontractor.  The subcontractors specified in Annex A are approved by WD Assist.
• Cooperation and data subjects’ rights: Vendor shall provide all reasonable and timely assistance to WD Assist at Vendor’s own expense to enable WD Assist to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data. In the event that any such request, correspondence, enquiry or complaint is made directly to Vendor, Vendor shall promptly (and in no event not more than 24 hours after receipt) inform WD Assist providing full details of the same. Vendor shall promptly provide all reasonable assistance required to permit WD Assist to comply with any obligation to communicate with a data subject regarding a breach with regard to such data subject’s personal data.
• Data Protection Impact Assessment: If Vendor believes or becomes aware that its processing of the Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall promptly inform WD Assist and provide WD Assist with all such reasonable and timely assistance as WD Assist may require in order to conduct a data protection impact assessment and, if necessary, consult with its relevant data protection authority.
• Security incidents: When Vendor becomes aware of an actual or potential Security Incident, Vendor shall inform WD Assist as soon as possible and in no event not more than 24 hours after the actual or potential Security Incident. Vendor shall provide all information and cooperation as WD Assist may require in order for WD Assist to fulfil its data breach reporting obligations under (and in accordance with the timescales required by) Applicable Data Protection Law.  Vendor shall further take all such measures and actions as are necessary to remedy or mitigate the effects of the Security Incident and shall keep WD Assist up to date about all developments in connection with the Security Incident. Vendor shall make such notification telephonically to any of the following as expeditiously as possible: to the usual WD Assist account operational contact during business hours if direct contact can be established; to a Data Protection Officer (DPO) point of contact if provided for in the main terms; or to WD Assist or such other contacts or numbers provided by WD Assist. The telephonic contact shall be immediately followed by a written explanation that describes the Security Incident and its timeline, the suspected cause of the Security Incident, guidelines that are recommended for mitigating the effects of the Security Incident by Vendor, make recommendations for best practices to avoid future such circumstances.
• Deletion or return of Data: Upon termination or expiration of the main terms (or a statement of work under the main terms) or in the event of insolvency or bankruptcy of Vendor, Vendor shall communicate with WD Assist concerning the disposition of the data. At WD Assist’ election, Vendor shall destroy or return to WD Assist all Data (including all copies of the Data) in its possession or control (including any Data subcontracted to a third party for processing). This requirement shall not apply to the extent that Vendor is required by any EU, or any EU Member State, or other country law to retain some or all of the Data, in which event Vendor shall isolate and protect the Data from any further processing except to the extent required by such law.
• Bankruptcy: Vendor shall agree a third-party beneficiary clause with the sub-processor where – in the event of bankruptcy of the data processor – the WD Assist shall be a third-party beneficiary to the sub-processor agreement and shall have the right to enforce the agreement against the sub-processor engaged by Vendor, e.g., enabling WD Assist to instruct the sub-processor to delete or return the personal data.
• Audit: Vendor shall permit WD Assist (or its appointed third-party auditors) to audit Vendor’s compliance with this Addendum or Applicable Data Protection Law, and shall make available to WD Assist all information, systems and staff necessary for WD Assist (or its third party auditors) to conduct such audit. Vendor acknowledges that WD Assist (or its third-party auditors) may enter its premises for the purposes of conducting this audit, provided that WD Assist gives it reasonable prior notice of its intention to audit, conducts its audit during normal business hours, and takes all reasonable measures to prevent unnecessary disruption to Vendor’s operations.  WD Assist may not exercise its audit rights more than once in any twelve (12) calendar month period, except (i) if and when required by instruction of a competent data protection authority; or (ii) WD Assist believes a further audit is necessary due to a Security Incident suffered by Vendor.
• Representations: Vendor represents that there are no proceedings previously filed or pending violations of any Applicable Data Protection Law against Vendor and /or their sub-Vendors acting either as a controller or a processor. “Violation” shall be defined as a case currently on file before a court of law or a data protection authority office or decided case brought before the courts or the data protection regulatory body of the country where Vendor has an establishment or the member state where the aggrieved data subject(s) has made their habitual home.
• Notifications: If (a) any fact represented as being true under the previous section is no longer true or (b) Vendor is no longer able to satisfy any of its obligations under this Addendum then Vendor shall immediately notify WD Assist and stop processing any personal data.
• Indemnity: Each party (the “Indemnifying Party“) shall indemnify the other (the “Indemnified Party“) from and against all loss, cost, harm, expense (including reasonable legal fees), liabilities or damage (“Damage“) suffered or incurred by the Indemnified Party as a result of the Indemnifying Party’s breach of this Addendum. The Indemnified Party shall take reasonable steps and actions to mitigate any ongoing Damage it may suffer as a consequence of the Indemnifying Party’s breach. This indemnity obligation is without regard to any limitation of liability that may be stated in the main terms.
• Insurance: In addition to any insurance requirements stated in the main terms, Processor shall maintain Cyber Liability/Network Security/Data Breach or similar privacy liability insurance with a limit not less than One Million Dollars ($1,000,000) each claim, and in the aggregate. Such insurance shall provide coverage on a worldwide basis, and policy shall remain in effect for a minimum of three years after completion of services.

2. Priority of Documents

In case of any conflict between the main terms and this Addendum, the terms of this Addendum shall control.

The parties hereto have caused this Addendum to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.

WD Assist LIMITED                                                      CLIENT

By:                                                                                  By:

Name:                                                                            Name:   

Title:                                                                              Title: