1. General Application
1.1 These terms and conditions (Terms) do NOT apply to retained service agreements as these agreements have a separate retained client specific agreement.
1.2 These terms and conditions apply and form part of the Agreement between OJ Health and Safety Solutions Ltd (OJS) and the Client in relation to the provision of Services to the Client. These Terms prevail over any terms and conditions of the Client. No terms or conditions endorsed on, delivered with, or contained in the Client’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Agreement except to the extent that OJS otherwise agrees in writing.
2. Definitions and Interpretation
2.1 In this Agreement, unless the context otherwise requires, the following words have these meanings:
- Agreement means the agreement between OJS and the Client for OJS to provide Services to Client incorporating these Terms and the Proposal.
- Client means the organisation / person for which the Services are rendered.
- Deliverable(s) means Documents, products, materials, work, specifications and solutions developed for Client by OJS in the provision of the Services and which may be more particularly set out in the Proposal.
- Documents includes in addition to any document in writing, any drawing, map, plan, schematic, diagram, design, picture or other image, however recorded and preserved embodying information in any form.
- Fee means the fee for the Services specified in the Proposal or otherwise agreed between the parties.
- Proposal means the proposal describing the Services to be delivered to the Client together with any risks, issues, assumptions and dependencies and outlining the timescales, fees and Deliverable(s).
- OJS Materials means all Documents, information and materials created and/or provided by OJS relating to the Services and/or Deliverables.
- OJS means OJ Health and Safety Solutions Ltd.
- Services means the services to be provided to the Client by OJS as more particularly set out in the Proposal (and as modified by agreement of the parties from time to time).
- Third Party Material means material in any form, the intellectual property rights subsisting in which are owned by a third party.
2.2 References to clauses (except where the context otherwise requires) are references to the clauses referred to herein. Any reference in these Terms to a provision or statute shall be construed as a reference to that provision as amended or re-enacted from time to time.
2.3 Unless the context otherwise requires, any reference to a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time.
2.4 A reference to a ‘Party’ is to OJS or the Client (as the case may be) and a reference to ‘the Parties’ is to OJS and the Client.
3. Services and Appointment
3.1 OJS are appointed on a non-exclusive basis and nothing in the Agreement shall prevent OJS from contracting or dealing with any other clients in relation to the Services or similar services.
3.2 A quotation for Services provided to the Client by OJS does not constitute an offer and OJS reserves the right to withdraw or revise a quotation at any time prior to entering into an Agreement. All statements whether written or oral, including descriptions, illustrations, or specifications concerning the Services made or given by OJS before entering into an Agreement, whether in brochures, leaflets, publications proposals or otherwise are for the purposes of information and guidance only.
3.3 Subject to prompt payment of outstanding amounts by the Client and/or any delay reasonably incurred by OJS or which is beyond OJS’s reasonable control, OJS shall use reasonable endeavours to deliver the Deliverables to the Client on such dates as the Client and OJS agree, but such dates shall be estimates only.
3.4The Client and OJS shall provide each other with clear and accurate information and co-operate in relation to the provision of the Services.
3.5 The Client must obtain all necessary licences, consents, permissions and approvals, before the date on which the Services are to start, if any are required for the carrying out of the Services, other than those held by OJS for the conduct of its business.
3.6 In the event that OJS requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services, the Client shall provide the same in a reasonable and timely manner.
3.7 If the nature of the Services requires that OJS has access to the Client’s premises or other location, access to which is lawfully controlled by the Client, the Client shall ensure that OJS has access to the same at the times to be agreed between OJS and the Client.
3.8 Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of this Clause 3 shall not be the responsibility or fault of OJS.
4.1 The Client will pay the Fee to OJS at the times and in the manner outlined in this Agreement. Time for payment shall be of the essence and OJS may suspend or cancel its carrying out of the Services without liability if the Fee is not paid when due. The Client shall be responsible for all fees charged to OJS as a result of the Client’s failure to pay, including, but not limited to collection charges and associated legal fees.
4.2 VAT and all other taxes, duties and charges will be payable on the Fee, and the Client shall be liable for such VAT, taxes, duties or other charges which will be payable to the appropriate authority.
4.3 If a fixed Fee is specified in the Proposal, that Fee is only applicable to the provision of the Services as set out in that Proposal. OJS will charge for any additional work in the amount and manner agreed in writing by the parties, or if not so agreed, at OJS’s then current standard hourly rates.
4.3 All approved expenses incurred by OJS in the performance of the Services will be fully reimbursed by the Client. On Client request prior to payment, OJS shall provide receipts for such expense claims.
4.4 Expenses and disbursements will be invoiced at the same time as Fee invoices.
4.5 Subject to Clause 4.7, the Client must pay in full and cleared funds all amounts owing under this Agreement within 14 days of receipt of the relevant OJS invoice.
4.6 Where sums due under these Terms are not paid in full by the due date, then, without limiting any other remedies, OJS may charge interest on a daily basis from the due date for payment until the actual date of payment, both before and after any judgment, at 8% per annum above the Bank of England’s base rate from time to time.
5. Confidential Information
5.1 ‘’Confidential Information’’ means any confidential information (whether oral or written or in electronic form) concerning the business, affairs, customers, clients or suppliers of a party. Without limitation there shall be included in Confidential Information the content and specification of OJS’s methodology in carrying on their business.
5.2 In providing the Services, both OJS and Client shall take all reasonable measures and precautions to safeguard any Confidential Information and data in its possession concerning the affairs of the other and in any event such measures and precautions shall be no less stringent than operated from time to time by that party in respect of Confidential Information and data concerning its own internal affairs.
5.3 On termination of this Agreement or demand by the disclosing party, all Confidential Information supplied to the recipient by or on behalf of the disclosing party is to be returned to the disclosing party or destroyed (as directed by the disclosing party).
5.4 The provisions of this clause shall not apply to (1) any information which was in the public domain at the date of this Agreement; (2) any information which comes into the public domain subsequently other than as a consequence of any breach of this Agreement or any related agreement; (3) any information which is independently developed by a party without using information supplied by the other party; or (4) any disclosure required by law or a regulatory authority or otherwise by the provisions of this Agreement.
6. Intellectual Property
6.1 The Client acknowledges that title to and all intellectual property rights in all existing OJS Materials will remain with OJS.
6.2 The title and ownership of any copyright or any other intellectual property rights and any information reports, drawings, designs or written or electronic information or other products generated or used by OJS in the course of the provision of the Services (hereinafter referred to as the “Materials”) shall be and remain vested in OJS (except for Third Party Material). Subject to OJS receiving the payment in full and cleared funds of all amounts owing under this Agreement, OJS grants Client the right to use the OJS Materials and/or Materials for the purposes of utilising the Services only.
6.3 Client shall not use the OJS Materials and/or Materials for any other purpose without the prior written consent of OJS and upon such terms as may be agreed by OJS. OJS shall not be liable for the use by any person of the OJS Materials and/or Materials for any other purpose other than that for which the same were prepared by or on behalf of OJS.
6.4 Unauthorised recording, copying, or transmission of content is strictly prohibited.
7. Service Warranty
7.1 OJS shall exercise reasonable skill and care in the provision of the Services and warrants that the Services will be provided to Client by competent personnel. OJS warrants that it will not knowingly provide Services that infringe any other third party intellectual property rights.
7.2 Except for the warranty in clause 7.1 and to the full extent permitted by law, OJS excludes all warranties, terms, conditions or undertakings whether express or implied, written or oral, statutory or otherwise including any implied warranty of satisfactory quality or fitness for a particular purpose in respect of the Services or the Deliverables.
7.3 In the event that any Services fail to comply with the standard at clause 7.1, OJS will, at its option and provided it is promptly notified in writing by the Client of such failure, either repeat such non-complying Services at no additional charge or refund to the Client all Fees paid by the Client with respect to such non-complying Services. Where OJS repeats such Services, any time specified in the Proposal shall be extended accordingly.
8. Client Warranties/Indemnities
8.1 The Client warrants, represents and undertakes that the Client:
- in entering into the Agreement, and performing the obligations set out in it, will not violate any applicable laws and regulations;
- is (if a natural person) over the age of 18;
- owns the entire right, title and interest to, or has an appropriate license to use, all materials provided to OJS; and
- has provided OJS with all relevant, full and accurate information as to the Client’s business and needs.
8.2 The Client agrees to indemnify, defend and hold harmless OJS, OJS’s parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable legal fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to;
- any violation by the Client of any relevant policies notified from OJS to the Client from time to time;
- any breach of any of the Client’s representations, warranties or covenants contained in the Agreement; and/or
- any acts or omissions by the Client.
The terms of this clause 8.2 shall survive any termination of the Agreement. For the purposes of this clause 8.2 only, the term “the Client” includes the Client, visitors to the Client’s website, and users of the Client’s products or services, the use of which is facilitated by OJS.
9. Limitation of liability
9.1 The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause.
9.2 Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following: (1) death or personal injury caused by negligence; (2) fraud or fraudulent misrepresentation; or (3) any other losses which cannot be excluded or limited by applicable law.
9.3 Subject to clause 9.2, OJS will not be liable either in contract, tort (including negligence) or otherwise for direct or indirect loss of profits, business or anticipated savings, loss of data, loss of use, loss of production, loss of contract, loss of opportunity, loss of savings, discount or rebate (whether actual or anticipated), harm to reputation or loss of goodwill nor for any indirect or consequential loss or damage arising from this Agreement (even if OJS has been advised of the possibility of such damages) for which the Client pays, suffers or is liable.
9.4 Subject to clause 9.2, The liability of OJS for all claims in aggregate for any loss suffered by the Client (except for those losses with unlimited liability under clause 9.2) for any cause of action will be limited to the extent permitted by law to the Fee paid to OJS under the Agreement.
10. Term and termination
10.1 This Agreement will terminate automatically in accordance with the term specified in the Proposal (unless the parties agree in writing to extend the term) or following conclusion of the Services unless this Agreement is terminated in accordance with clause 8 or clause 10.2.
10.2 Either party may terminate this Agreement at any time with immediate effect by giving notice in writing to the other party if the other party:
- in the reasonable opinion of the non-breaching party, is in material breach of its obligations under the Agreement and fails to remedy that breach within 21 days of being requested in writing by the non-breaching party to do so;
- stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
- is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if OJS reasonably believes that to be the case;
- becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
- has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
- has a resolution passed for its winding up;
- has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
- is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
- has a freezing order made against it
10.3 On termination, the Client must pay OJS for all Services rendered and expenses incurred up to the date of termination.
10.4 Clauses 4, 5, 6, 8, 9, 10, 12, 13, 15, 16, 17 and 18 of this Agreement survive the termination or expiration of this Agreement.
11.1 OJS may cancel or suspend the Services or a Deliverable in the event of a delay reasonably incurred by OJS or an event that is beyond OJS’s reasonable control. In the event that OJS exercises its right under this clause 11.1 to cancel, the Client shall be entitled to a refund of the Fees already paid to OJS with respect to such cancelled Services.
- 11.2 In the event of cancellation and/or postponement (Cancellation) by the Client (subject to 11.3), OJS reserves the right to charge the Client the following:(a) 25% of the total fee payable for Services if Cancellation is received by OJS in writing more than one calendar month but less than 6 weeks prior to the scheduled date of commencement of the Deliverable;
(b) 50% of the total fee payable for Services if Cancellation is received by OJS in writing less than one calendar month but more than 2 weeks prior to the scheduled date of commencement of the Deliverable;
(c) 75% of the total fee payable for Services if Cancellation is received by OJS in writing less than two weeks but more than one week prior to the scheduled date of commencement of the Deliverable.
(d) 100% of the total fee payable for Services if Cancellation is received by OJS in writing not more than one week prior to the scheduled date of commencement of the Deliverable.
11.2 If the Client requests any details of the Services to be amended, these must be made in writing as soon as they are known. In discussion with the Client, OJS will use reasonable endeavours to make any required changes. Any additional costs will be included in the Fees and will be invoiced to the Client.
12. Data Protection
12.1 Each party shall ensure that it complies with its obligations under the Data Protection Laws (as defined in the attached schedule to these Terms) in relation to any Personal Data it supplies to the other party.
12.2 If the Client provides any Personal Data (as defined in the attached schedule to these Terms) to OJS or OJS processes any Personal Data on the Client’s behalf when performing the Services, the provisions of the schedule to these Terms shall apply to the processing of such Personal Data.
13.1 OJS may subcontract any part of the Services.
14.1 A party may not assign or otherwise deal with their rights under this Agreement without the prior written consent of the other party.
15.1 Any notice to be given under this Agreement (other than service of any proceedings or other documents in any legal action) shall be in writing and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or (where an email address has been provided) by email to the addresses set out in the Agreement.
16. Force Majeure
16.1 Neither party shall be liable to the other for any failure to perform or delay in performance of its obligations under this Agreement caused by act of God, war, civil disturbance, acts of terrorism, the act of any government or authority (including revocation of any licence or consent), fire, flooding, explosion, natural disasters or other events beyond its reasonable control. Should such an event of force majeure continue for longer than one month, the party adversely affected may terminate this Agreement immediately without further liability other than those liabilities which had already accrued at the date of termination.
17. Applicable Law
17.1 This Agreement shall be governed by and construed in accordance with English law. Subject to Clause 17.2 below, any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
17.2 If any dispute shall arise with regard to any matter or thing done or to be done under the foregoing provisions or otherwise in relation to this Agreement every such dispute shall if the Parties fail to agree be referred to arbitration and the provisions of the Arbitration Act 1996 or any statutory modification for the time being in force shall apply accordingly. The appointment of an Arbitrator shall be determined by the President of the Chartered Institute of Arbitrators of 12 Bloomsbury Square London WC1A 2CR
18.1 This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations, agreements, statements and understandings whether verbal or in writing.
18.2 This Agreement may not be changed or modified in any way after it has been signed, except in writing signed by or on behalf of the parties.
18.3 The failure of either party to assert any of its rights hereunder shall not be deemed to constitute a waiver by that party thereafter to enforce each and every provision of this Agreement in accordance with its terms.
18.4 If any provision or part-provision of the 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 18.4 shall not affect the validity and enforceability of the rest of the Agreement.
18.5 Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
The Schedule – Data Protection
In this Schedule:
|Controller||has the meaning given in applicable Data Protection Laws from time to time;|
|Data Protection Laws||means, all legislation in force from time to time in the United Kingdom applicable to data protection and privacy including, but not limited to:
|Data Subject||has the meaning given in applicable Data Protection Laws from time to time;|
|Personal Data||has the meaning given in applicable Data Protection Laws from time to time;|
|Personal Data Breach||has the meaning given in the Data Protection Laws;|
|Processing||has the meaning given in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly);|
|Processor||has the meaning given in applicable Data Protection Laws from time to time;|
|Protected Data||means Personal Data received from or on behalf of the Client in connection with the performance of OJS’s obligations under this Agreement; and|
|Sub-Processor||means any agent, subcontractor or other third party (excluding its employees) engaged by OJS for carrying out any processing activities on behalf of the Client in respect of the Protected Data.|
2. Customer’s compliance with data protection laws
The parties agree that the Client is a Controller and that OJS is a Processor for the purposes of processing Protected Data pursuant to this Agreement. The Client shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Client shall ensure all instructions given by it to OJS in respect of Protected Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Laws. Without prejudice to the generality of this paragraph 2 and paragraph 3 below, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Protected Data to OJS for the duration and purposes of the Agreement.
3. OJS’s compliance with data protection laws
OJS shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.
The Client shall indemnify and keep indemnified OJS against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Client of its obligations under this Schedule.
5.1 OJS shall only process (and shall ensure OJS Personnel only process) the Protected Data for the purpose of fulfilling its obligations under this Agreement (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and shall inform the Client of that legal requirement before processing, unless applicable law prevents it doing so).
5.2 Without prejudice to paragraph 5.1, if OJS reasonably believes that any instruction received by it from the Client is likely to infringe the Data Protection Laws it shall promptly inform the Client and be entitled to cease to provide the relevant Services (without liability) until the parties have agreed appropriate amended instructions which are not infringing.
In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with this Agreement, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, OJS shall implement appropriate technical and organisational security measures appropriate to the risk.
7. Sub-processing and personnel
7.1 not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the prior written authorisation of the Client;
7.2 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this schedule that is enforceable by OJS and ensure each such Sub-Processor complies with all such obligations;
7.3 remain fully liable to the Client under this Agreement for all the acts and omissions of each Sub- Processor as if they were its own; and
7.4 ensure that all persons authorised by OJS or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
OJS shall (at the Client’s cost) assist the Client in responding to any and all requests from Data Subjects and in ensuring its compliance with the Data Protection Laws with respect to impact assessments, security, breach notifications, and consultations with supervisory authorities or other applicable regulatory authorities (including, but not limited to, the Information Commissioner’s Office).
9. International transfers
OJS shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom without the prior written consent of the Client.
10. Audits and processing
OJS shall, in accordance with Data Protection Laws, make available to the Client such information that is in its possession or control as is necessary to demonstrate OJS’s compliance with the obligations placed on it under this Schedule.
OJS shall notify the Client without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
12. Deletion/return of Protected Data
On the end of the provision of the Services relating to the processing of Protected Data, at the Client’s cost and the Client’s option, OJS shall either return all of the Protected Data to the Client or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires OJS to store such Protected Data.
This schedule shall survive termination or expiry of this Agreement indefinitely in the case of paragraphs 2, 3, 4, 8 and 13 and until 12 months following the earlier of the termination or expiry of this Agreement in the case of all other paragraphs and provisions of this schedule.