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Your Agreement With MHR
Terms and Conditions Version 5
1. Definitions
1.1 In these Terms and Conditions the following words and expressions shall have the following meanings: -
“Agreement” shall mean these Terms and Conditions alongside the Signature Sheet and any Schedules appended thereto (including any applicable Service Definition), which once executed, shall form a binding contract for the provision of Services.
"Agreement Date" shall have the date prescribed in the Signature Sheet.
“Agreement Year” means a period of twelve months commencing on the Agreement Date or on any anniversary of the Agreement Date.
“Appointed Contact” The employee(s) that the Customer authorises to communicate with and give instructions to the Company in relation to the Services.
“Charges” means charges payable by the Customer for the Service(s) as indicated in Schedule 1.
“Charge Adjustment” represents the charge increase applicable once per Agreement Year commencing from the Agreement Date.
“Commencement Date” means the date from which the Services will be provided as stated in the Signature Sheet.
"Company" shall mean MHR International UK Limited, registered in England and Wales under number 1582206.
“Confidential Information” means all information shared by one party with the other including, but not limited to, its business, finances, customers, services, processes and products communicated or received in any way whatsoever including, but not limited to, orally, in writing, electronically or obtained through observation. All such information which is designated as confidential or which is otherwise clearly confidential in nature constitutes "Confidential Information";
"controller", "processor", “data subject”, "personal data", and "processing" in shall have the meanings given by the Data Protection Legislation in the context of which the term is being applied;
“CPI Change” shall mean the percentage change in the Consumer Prices Index between (a) the date on which the Company last made a Charge Adjustment or (if no such Charge Adjustment has been made) the Agreement Date, and (b) the date on which the Company intends to make the current Charge Adjustment.
"Customer" shall be as defined on the Signature Sheet.
“Customer Obligations” means the obligations attributed to the Customer in the relevant Service Definition and these Terms and Conditions.
“Data Protection Legislation” shall mean, (i) unless and until it is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the General Data Protection Regulation or the Data Protection Act 1998.
“Employee Maximum” means the total number of employees that the Services shall be provided to, as set out in the Signature Sheet.
“GDPR” means the General Data Protection Regulation ((EU) 2016/679).
“Initial Period” shall mean the minimum duration of the Agreement, as stated on the Signature Sheet.
“Intellectual Property Rights” means copyrights, rights in databases, patents, trademarks, business or trade names, domain names, registered designs, utility models, design rights, inventions, trade secrets, confidential information, know-how, get-up, and all other intellectual property and neighbouring rights and rights of a similar or corresponding character anywhere in the world (whether or not the same are registered or capable of registration) and all applications and rights to apply for or for the protection of any of the foregoing.
“Losses” means costs, expenses, liability, injuries, losses, damages, claims, demands and legal costs and judgements;
“Minimum Notice” the minimum period of notice required to be given to terminate this Agreement, as stated on the Signature Sheet.
“Payment Point” where the Payment Service applies, the frequency and time when payment should be made (for example, the third day of each month).
“Payment Service” the service described in the relevant Service Definition, if applicable.
“Product” (unless expressly stated as otherwise) shall mean the iTrent software product which is proprietary to the Company.
“Representative” means an officer, employee, sub-contractor or agent of the Company or the Customer, and in the case of the Company, any other person wording under the direction of the Company.
“Services” the service(s) provided by the Company, as further described in the Service Definition and Signature Sheet, all of which shall be subject to the Employee Maximum.
“Service Definition” an agreement entered into between the Company and the Customer which sets out the Service and the Customer’s Obligations in greater detail.
“Signature Sheet” the document provided to the Customer for signature outlining, inter alia, the Services to be provided, Commencement Date and Initial Period.
“Working Hours” means between the hours of 9.00 am and 5.00 pm but excluding English Bank Holidays and other public holidays.
“Working Day” means any day other than Saturdays, Sundays and English bank and other public holidays.
“Term” shall be as defined in clause 6.1.
“Transfer Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 and any successor legislation.
1.2 Both the Company and the Customer may be referred to as party or parties, where the context requires.
1.3 This Schedule is incorporated into the Contract by reference, but for the avoidance of doubt, may be signed by the parties as formal acceptance of the terms and conditions herein.
1.4 A reference to a statutory provision includes a reference to that provision as amended, consolidated or re-enacted (whether before or after the Agreement Date).
1.5 Words importing one gender include all genders, words importing the singular include the plural, and (in each case) vice versa.
1.6 References to a "person" will be construed so as to include bodies’ corporate, unincorporated associations and partnerships.
1.7 Any headings are for ease of reference only and shall not affect the construction of any provisions of this Schedule.
1.8 The words “include”, “includes”, “including” and “included” will be construed without limitation.
2. The Service
2.1 In consideration of the payment of the Charges, and provided that the Customer complies with the Customer’s Obligations, the Company will provide the Services to the Customer.
2.2 Where the Services includes access by the Customer to the Product (as outlined on the Signature Sheet), that access is granted on the licence terms set out in section 9 of these Terms and Conditions.
2.3 The Company will not be liable for any failure to provide the Services in whole or in part which are as a result of the Customer’s failure to comply with the Customer’s Obligations.
3. Customer Obligations
3.1 In consideration of the provision of the Services by the Company, the Customer will pay the Charges.
3.2 As a condition of the Services the Customer will also fulfil the Customer’s Obligations.
4. Confidentiality
4.1 Each party shall, in respect of Confidential Information it has received from the other:
4.1.1 Keep the Confidential Information strictly confidential and not disclose any part of it to any person except as permitted by or as required for the performance of the recipient’s obligations under this Agreement;
4.1.2 Take all reasonable steps to prevent unauthorised access to the Confidential Information;
4.1.3 Not use the Confidential Information other than for the purposes set out in this Agreement.
4.2 Each party may disclose the Confidential Information to, and allow its use in accordance with this Agreement by the following (as long as the conditions in clause 4.3 are met):
4.2.1 Employees and officers of the recipient who require it for the recipient to perform its obligations under this Agreement.
4.2.2 The recipient’s auditors and professional advisors solely for the purposes of providing professional advice.
4.3 As a condition of the rights set out in clause 4.2 the party wishing to exercise the rights must:
4.3.1 Ensure that any party to whom it discloses Confidential Information is under an obligation of confidentiality about such Confidential Information; and
4.3.2 Procure that such persons observe the restrictions in this clause 4.
4.4 The restrictions in clause 4.1 do not apply to any information to the extent that it:
4.4.1 Is or comes within the public domain other than through a breach of clause 4.1; or
4.4.2 Is in the recipient’s possession (with full right to disclose) before receiving it from the other party; or
4.4.3 Is lawfully received from a third party (with full right to disclose).
5. Charges
5.1 The Company shall invoice the Customer for the Charges at the frequency stated in the Signature Sheet, or if no frequency is stated, monthly. The Customer shall pay the Charges without deduction or set-off. All Charges are exclusive of VAT.
5.2 The Company may make a Charge Adjustment by an amount equal to the greater of five percent and the CPI Change.
5.3 The Company reserves the right to increase the Charges to implement a Legislative Change into the Product and/or Services.
5.4 The Company may at any time alter the Charges in accordance with any change in the Company’s prevailing rates from time to time. Subject to clause 5.5 these altered charges shall take effect fourteen days after notice has been given to the Customer.
5.5 If within fourteen days of receipt of a notice of revised charges described in clause 5.4, the Customer gives the Company twelve months written notice of termination of this Agreement (whether or not the Initial Period has expired), the Company will continue to provide the Service at the then current Charges through to the effective date of termination.
5.6 All sums due to the Company shall be paid by direct debit on the date specified on the relevant invoice (which shall not be less than seven days post the date of the invoice). It is the responsibility of the Customer to keep its direct debit mandate up to date. Failure of the Customer to make payments via direct debit shall render the Customer liable for a one hundred pound administrative charge. Such amount shall be payable by the Customer on demand and shall be chargeable up to four times in any Agreement Year. Time shall be considered of the essence in relation to this clause 5.6.
5.7 If Customer payments are not made on its due date the Company reserves the right to charge interest on the balance outstanding at the set out in the Late Payment of Commercial Debts (Interest) Act 1998, in which case the Customer shall pay such interest on demand.
5.8 The Company reserves the right to suspend the Services with seven days’ notice in the event that any direct debit
6. Duration & Termination
6.1 This Agreement shall take effect on the Agreement Date and, subject to the provisions relating to early termination, will continue for the Initial Period and thereafter until either party gives the Minimum Notice to the other to terminate it (the “Term”). In no event shall the Minimum Notice expire before the end of the Initial Period.
6.2 Either party may terminate the Agreement in the event of any of the following:
6.2.1 The other party going into liquidation, being dissolved or declared bankrupt or having a receiver, administrator or administrative receiver appointed over all or part of its assets, or entering into an arrangement with its creditors, or any similar situation;
6.2.2 Any material breach of this Agreement by the other party (which, if it is capable of being remedied, remains un-remedied thirty clear days after the day on which a written notice specifying the nature of the breach has been served on that other party).
6.3 Termination of this Agreement (howsoever arising) shall not affect any accrued rights of either party.
6.4 Subject to cause 10.4(h), upon termination of this Agreement the Company will, at the expense of the Customer and provided that the Customer has paid all due Charges, return to the Customer all information sent to the Company by the Customer which is still in the Company’s possession.
6.5 The following clauses shall survive termination (for whatever cause): Clauses 4, 6, 7 and 11.
7. Liability
7.1 Nothing in this Agreement excludes or limits the liability of either party for death or personal injury caused by that party’s negligence or for fraudulent misrepresentation.
7.2 The total aggregate liability of the Company for any Losses in respect of physical damage caused to the Customer’s property as a result of the Company’s negligence shall not exceed five million pounds (£5,000,000).
7.3 Subject to clause 7.1 and 7.4 the Company shall have no liability for any Losses which may be suffered by the Customer (or any other person having the benefit of this Agreement) whether arising in respect of any breach of this Agreement or any representation or tortious act or omission (including negligence and breach of statutory duty) or otherwise howsoever arising under or in connection with this Agreement, and which falls within any of the following categories.
7.3.1 indirect or consequential loss or damages, even if the Company was aware of the circumstances in which such special damage could arise;
7.3.2 loss of profits;
7.3.3 loss of revenue;
7.3.4 loss of anticipated savings;
7.3.5 loss of business opportunity;
7.3.6 loss of goodwill; or
7.3.7 loss or corruption of data;
7.4 Clause 7.3.7 shall not operate to prevent claims for direct financial loss arising out of a breach of the Data Protection Legislation.
7.5 Subject to clauses 7.1 through to 7.4, and clause 7.6, the total aggregate liability of the Company in respect of any Losses which may be suffered by the Customer and which arise out of or in connection with;
7.5.1 any and all breaches of the Agreement; and
7.5.2 any other act or omission of the Company (or its officers or employees) in connection with the Agreement;
Shall not exceed the total amount payable by the Customer by way of Charges during the Agreement Year in which the breach, act, or omission in question occurred.
7.6 The total aggregate liability of the Company in relation to the Data Protection Legislation (including for breach of clause 10) in respect of all Losses suffered or claimed by the Customer (or any person having benefit of an Agreement) during
8. Personnel
8.1 Each party shall take all reasonable precautions to ensure the health and safety of the other party’s Representatives while such Representatives are at its premises, and to ensure that its own Representatives observe the other party’s safety rules and procedures (as provided by each party to the other) while such Representatives are on the other party’s premises.
8.2 If the employment of any employee of the Customer or any third party is deemed to transfer to the Company by operation of the Transfer Regulations (a “Transferring Employee”), then the Customer shall be liable for and shall indemnify the Company from and against:
8.2.1 all wages, bonuses, benefits, holiday pay, employment benefit costs, redundancy costs and unfair dismissal or discrimination awards and costs in respect of the Transferring Employee and all Losses relating directly or indirectly to the terms and conditions of employment, pensions and life assurance arrangements, health, welfare or any other matters concerning the Transferring Employee or any other claims which the Transferring Employee may have against the Customer or any third party in respect of any period before the transfer of the employment of the Transferring Employee to the Company;
8.2.2 all claims arising out of any breach by the Customer, the Company or any third party of the Transfer Regulations in respect of any Transferring Employee; and
8.2.3 All payments (including redundancy and unfair dismissal or discrimination payments or awards) which the Company may be obliged to make to the Transferring Employee together with all costs (including legal costs) in the event of the dismissal by the Company of the Transferring Employee following the transfer of the employment of the Transferring Employee to the Company.
9. Product License Terms
9.1 In the event that use of the Product is included (as stated on the Signature Sheet) then the use of the Product by the Customer shall be subject to the conditions of this clause 9.
9.2 The licence to use the Product commences on the Commencement Date and shall continue until the earlier of: a) expiry of the Agreement; or b) early termination of the Agreement in accordance with its terms.
9.3 Except as expressly permitted by the Company, the Customer may only use the Product solely for its own internal business purposes in the United Kingdom and for no other purposes whatsoever (but this does not prohibit remote access to the Product from outside the United Kingdom).
9.4 The Customer shall not make, or attempt to make, copies of the Product nor shall it attempt to deal with the Product or have any supporting or other software or program written or developed for it based on any Confidential Information supplied to it by the Company or its Representative.
9.5 All Intellectual Property Rights in any Product and/or Services belong and shall continue to belong to the Company or its licensors, and the Customer shall have no rights in or to them other than the right to use them in accordance with the terms and conditions of the Agreement.
9.6 The use of, and access to, the Services and the Product is limited to the Customer acting through its direct employees. Any use of, or access to, the Services or Product by any contractor of the Customer or other third party is not permitted without the consent of the Company which may, as a condition of that consent, require the contractor or third party to enter into a licence and confidentiality agreement governing their use of or access to the Services or Product.
10. Data Protection
10.1 With respect to the parties’ rights and obligations under an Agreement, the parties acknowledge that, for the purposes of the Data Protection Legislation, the Company is the processor and the Customer is the controller in respect of any personal data processed by the Company pursuant to the Agreement. The Service Definition sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of personal data and categories of data subject.
10.2 Each party shall comply with all applicable requirements of the Data Protection Legislation in respect of personal data. These clauses are in addition to, and do not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
10.3 Without limiting the generality of the foregoing, the Company shall:
(a) Process the personal data only on behalf of the Customer, only for the purposes of performing an Agreement and only in accordance with the Customer’s documented instructions from time to time, including with regard to transfer of personal data to a third country or international organisation, unless required to do so by the law of the European Union or a member state to which the Company is subject, in which case it will inform the Customer of that legal requirement before processing, subject to the exception in Article 28(1) of the GDPR. The documented instructions include any tasks attributed to the Company in a Service Definition;
(b) inform the Customer if, in its opinion, an instruction infringes Article 28 of the GDPR or any other provision of the Data Protection Legislation;
(c) Ensure that all persons authorised by the Company to process the personal data have committed themselves to confidentiality or are under a statutory obligation of confidentiality;
(d) Take such measures in relation to the security of the personal data as are required of it by Article 32 of the GDPR;
(e) Observe the requirements of Articles 28(2) and Article 28(4) of the GDPR with regard to the engagement of sub-processors;
(f) taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer's obligation to respond to requests by data subjects to exercise their rights under Chapter III of the GDPR (including the right to transparency and information, the data subject access right, the right to rectification and erasure, the right to the restriction of processing, the right to data portability and the right to object to processing);
(g) Taking into account the nature of the processing under an Agreement and the information available to the Company, assist the Customer in carrying out its obligations under Articles 32 to 36 of the GDPR and any other Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(h) At the Customer's written direction, within a reasonable period delete or return all personal data to the Customer on the expiry or termination of the relevant Agreement, and delete existing copies unless required by law to store the personal data;
(i) Make available to the Customer information that demonstrates its compliance with Article 28(3) of the GDPR and its obligations in this Section 10;
(j) Permit the Customer or a third party authorised by it, to carry out audits and inspections of the processing of personal data by the Company, on reasonable notice in normal business hours. The Company may require a third party auditor to enter into a confidentiality agreement before permitting it to carry out an audit. The Company reserves the right to make a charge for the time of its personnel engaged in assisting with an audit; and
(k) Notify the Customer without undue delay after becoming aware of a personal data breach.
10.4 If the Company notifies the Customer that, in its opinion, an instruction infringes Article 28 of the GDPR or any other applicable Data Protection Legislation, or is of the opinion that an instruction to process personal data is for purposes other than the performance of the relevant Agreement, it will consult with the Customer as soon as reasonably possible. If the Company, after consultation is of the same opinion, it will not be obliged to follow that instruction.
10.5 Without limiting the generality of the foregoing, the Customer shall:
(a) ensure that it, and its Associated Companies, comply with the Data Protection Legislation and all applicable codes of practice in respect of the personal data from time to time, including in its role as a controller and in supplying or making available to the Company any personal data for Processing by the Company in performance of its obligations under an Agreement; and
(b) not instruct the Company to process personal data for purposes other than the performance of the relevant Agreement.
10.6 The Customer warrants to the Company that:
(a) it has all necessary appropriate consents and notices in place to enable the lawful transfer of personal data to the Company for the duration and purposes of an Agreement.
(b) all personal data provided to the Company pursuant to an Agreement will be, to the best of its knowledge, accurate and complete in all material respects, and that the Customer is entitled to provide the same to the Company without recourse to any third party; and
(c) the personal data does not and shall not, so far as it is aware, infringe the rights of any third party.
10.7 The Customer acknowledges that the Company is reliant on the Customer for direction as to the extent that the Company is entitled to use and process personal data and that such direction will be set out in a Service Definition.
10.8 The engagement of any sub-processor named in the Signature Sheet or Service Definition for the purposes there stated is authorised by the Customer and shall be a general written authorisation for the purposes of the Data Protection Legislation. Where a sub-processor ceases to trade, becomes insolvent or is in breach of the Data Protection Legislation, the Company may change that sub-processor without reference to the Customer provided that:
(a) it notifies the Customer as soon as practicable and provides a reasonable timeframe before any Data transfer to such replacement sub-processor, thus allowing the Customer opportunity to object to such replacement; and
(b) the replacement sub-processor is reputable and of such size and standing as to be able to fulfil its obligations to the Company without difficulty.
10.9 If the Customer objects to a change pursuant to clause
10.8 it may terminate the relevant Agreement (or where practicable, that part of it dealing with the relevant services) on the provision of six months’ notice and (unless it can show that the objection was objectively reasonable in the circumstances) subject to the payment, prior to the expiry of that notice, of all outstanding charges for the balance of the Agreement Year.
10.10 Provided that the Company only undertakes the following activities on an aggregated basis using anonymised data which cannot be linked back to the Customer or any individual, nothing in this Agreement shall restrict or prevent the Company from recording, retaining and using for monitoring, statistical analysis or marketing purposes:
(a) any information derived from the Customer or its Representatives access to and use of any Product or Services; or
(b) any information or data stored or processed using the Product or Services.
10.11 Subject always to clause 7.6, if either party breaches its obligations pursuant to this section 10 or the Data Protection Legislation it shall indemnify the other from and against any resulting Losses.
11. General
11.1 A person who is not a party to the Agreement for the provision of the Services has no right under the Contracts (Right of Third Parties) Act 1999 to enforce any term of the Agreement.
11.2 All notices to be given under the Agreement shall be in writing and shall be delivered by hand or sent by registered post to the party concerned at the address stated on the Signature Sheet (unless the address for notice is changed by giving notice in accordance with the Agreement). Any such notice shall be deemed to have been received by the other party: if delivered by hand, when delivered; if posted, on the second Working Day following the date of posting.
11.3 Nothing in this Agreement is intended to, or shall, operate to create a partnership or joint venture of any kind between the parties, authorise either party to act as agent for the other party, or authorise either party to act in the name or on behalf of, or otherwise to bind, the other party in any way.
11.4 This Agreement sets out all the terms agreed between the parties about the Product and/or Services. It hereby supersedes, cancels and fully takes the place of all previous agreements, negotiations, understandings and representations between the parties which relate to the Product and/or Services to be provided per the Signature Sheet.
11.5 No variation to this Agreement shall be binding upon the parties unless made in writing and signed by a duly authorised representative of each of the parties.
11.6 If any dispute arises in connection with this Agreement, the parties shall attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure at first instance. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. This clause 11.6 shall not prevent either party from seeking injunctive or interlocutory relief or remedy from the English courts in relation to any dispute.
11.7 As of the Agreement Date, the Agreement shall be governed by the laws of England and Wales and subject to clause 11.6, the parties agree to submit any disputes under or in connection with this Agreement to the exclusive jurisdiction of the English courts.
11.8 In the event that any or any part of any term of the Agreement shall be determined invalid, unlawful or unenforceable to any extent then such term, or such part thereof shall be severed from the remaining terms of the Agreement which shall continue to be valid and enforceable to the fullest extent permitted by law.
11.9 Failure or neglect by the Company to enforce at any time any of the provisions hereof shall not be construed as, nor shall it be deemed to be, a waiver of the Company's rights hereunder nor in any way affect the validity of the whole or any part of these Terms and Conditions nor prejudice the Company's rights to take subsequent action.
11.10 The Agreement may not be assigned or transferred in any way by the Customer without the Company's prior written consent.
11.11 The Company shall be entitled to assign the benefit (subject to the burden) of this Agreement to a company which succeeds to the business of the Company as a result of any internal reorganisation reconstruction or amalgamation of the Company or any group of companies of which the Company from time to time forms part of.
