Terms of Business (Contractors)
Terms of Business of Ultra CIS Limited (‘UCISL’) for the Supply of Construction Industry Services (Main Contractors)
(only for use to contract directly with Main Contractors, not for use when contracting with Employment Agencies / Employment businesses)
(not suitable for use where a public sector end client has determined that Chapter 10 ITEPA (IR35-public sector) is applicable) (June 2019 revision)
- Definitions and Interpretation
- In these Terms:
- ‘Agreement’ means the relationship between the parties constituted by these Terms and any Contract
- ‘Assignment’ means the Services and terms specified in an Assignment Schedule
- ‘Assignment Schedule’ means an assignment schedule in the form specified from time to time by UCISL, and including the details specified therein
- ‘CIS’ means the Construction Industry Scheme
- ‘CIS Subcontractors’ means independent skilled tradespersons, capable of working on Assignments without requiring supervision, direction or control as to the manner in which their services are provided, and registered with HMRC under CIS
- ‘Contract’ means a contract between UCISL and a Main Contractor, constituted by an Assignment Schedule and these Terms, for the performance of an Assignment
- ‘Data Protection Legislation’ has the meaning given by clause 15.1.3
- ‘Immediate Notice’ means notice to terminate with immediate effect, and shall be effective however communicated, provided confirmed in writing as soon as reasonably practicable
- ‘ITEPA’ means the Income Tax (Earnings and Pensions) Act 2003
- ‘Main Contractor’ means the person or company so named in an Assignment Schedule
- ‘Personal Data’ has the meaning given by Data Protection Legislation
- ‘PPE’ means personal protective equipment
- ‘Public Authority’ has the meaning given by section 61L ITEPA
- ‘Services’ means the work specified in an Assignment Schedule to be performed by the Subcontractor for the Main Contractor
- ‘Terms’ means these terms of business
- ‘UCISL’ means Ultra CIS Limited of 118 Airport House, Purley Way, Croydon Surrey CR0 0XZ incorporated in England and Wales with company registered number 11972985
- ‘Work Product’ means any work carried out as part of the Services, and includes any drawings, plans, reports and other documents and changes to the same and terms defined in an Assignment Schedule have the meanings given to them there.
- Any
reference, express or implied, to an enactment includes a reference
to that enactment as from time to time amended, modified, extended,
re-enacted, replaced or applied by or under any other enactment
(whether before or after the date of a Contract) and all
subordinate legislation made (before or after a Contract) under it
from time to time.
- Where
the context permits, words denoting:
- persons
shall include bodies corporate and unincorporated associations of
persons;
- the
singular includes the plural and vice versa; and
- one
gender shall include any gender.
- Background
- UCISL
is registered with HMRC as a contractor under CIS with gross
payment status.
- UCISL
engages the services of CIS Subcontractors, in order to provide
those services to Main Contractors.
- Each
Subcontractor has represented to UCISL
that:
- the
Subcontractor is an independent skilled tradesperson, registered
under the Construction Industry Scheme (‘CIS’)
- the
Subcontractor is capable of working on Assignments and providing
Services without requiring supervision, direction or control as to
the manner in which such Services are provided, and
- the
Subcontractor wishes to or has entered an agreement with UCISL,
with a view to being engaged by UCISL
from time to time to carry out Assignments for Main Contractors.
- Nature
of these Terms, and Contracts
- These
Terms define the basis on which UCISL
will provide Subcontractors
to carry out Assignments,
as agreed between the parties from time to time in Contracts and
specified in Assignment Schedules.
- Before
any work is to be performed, an Assignment Schedule will be
prepared by UCISL
from information provided by the Subcontractor
and the Main
Contractor,
and issued to the
Subcontractor
and the Main
Contractor.
- On
receipt of an Assignment Schedule,
if
the Main
Contractor
does not accept its terms, or considers them to be in any way
inaccurate, it will promptly advise UCISL.
- An
Assignment Schedule shall become a Contract binding on the parties
and incorporating these Terms upon both
- the
earlier of either
- the
Subcontractor signing the Assignment Schedule and returning it to
UCISL, or
- the
Subcontractor commencing performance of the Services to which the
Assignment Schedule relates, on or after the Assignment Start
Date,
- and
the
earlier of either
- the
Main
Contractor
signing the Assignment Schedule and returning it to UCISL, or
- the
Main
Contractor
permitting the Subcontractor to commence performance of the
Services to which the Assignment Schedule relates, on or after
the Assignment Start Date.
- A
Contract formed on the basis of an Assignment Schedule referencing
these Terms is governed only by these Terms and by no other terms,
except where and to the extent that both parties expressly agree in
writing; and all
conditions, warranties or other terms implied by statute or common
law are hereby excluded to the fullest extent permitted by law.
- Subcontractor
Responsibilities
- Each
Subcontractor is engaged on terms which require that the
Subcontractor
- shall
provide Services for the Main Contractor as specified in the
Assignment Schedule and in these Terms, with reasonable skill and
care, and so far as is reasonably practicable within any timescale
required by the Main Contractor
- shall
not require (or be subject to the right of)
supervision
direction or control as to the manner of performance of its
Services
- in
the course of providing the Services, shall comply with
site-specific requirements
applicable to independent contractors at the Work Location, as
notified by the Main Contractor from time to time
- shall
provide Services to the Main Contractor’s reasonable
satisfaction and in accordance with the Main Contractor’s
required quality standards, and to the extent not so provided must
be corrected in the Subcontractor’s own time and at the
Subcontractor’s own cost
- shall
be responsible for the
performance of the Services, and may perform them himself,
or arrange for their performance, in full compliance with these
Terms and the applicable Assignment Schedule, by a substitute with
any necessary skills, experience, and (where applicable) security
clearance, and equally capable of providing the Services without
requiring supervision direction or control as to the manner of
performance of its Services
- shall
be responsible for his own health and safety, and in particular
for assessing any risks or hazards at the Site / Work Location
that may affect the provision of the Services, and for ensuring
that he is fit and able to perform the Services and that he does
not place other personnel or members of the public at risk by
failing to take appropriate rest breaks
- shall
be responsible for familiarising
himself and complying
with (a) all reasonable standards of safety including the Main
Contractor’s own Health and Safety procedures from time to time in
force at the Site / Work Location, and (b) all
security, working, operating, and any other requirements
applicable to independent contractors working at the Site / Work
Location
- shall
comply strictly with all requirements of the Main Contractor for
recording time worked, and shall (where applicable) submit
timesheets promptly
- shall
comply with all his obligations under CIS
- shall
pay his own expenses
- shall
provide at his own cost all such equipment (including PPE, save
for any agreed to be provided by the Main Contractor)
and training as may be required for the proper performance of the
Services.
- Main
Contractor Responsibilities
- In
respect of each CIS Subcontractor to be engaged pursuant to these
Terms, the Main
Contractor
warrants and represents
- that
its status shall be that of customers of the business carried on
by the Subcontractor, and
- that
the manner in which the Subcontractor provides the Services shall
not be subject to (or to the right of) supervision, direction or
control by any person.
- The
Main
Contractor
acknowledges that it is responsible for carrying out all due
diligence and checks to confirm that each Subcontractor has the
necessary qualifications, skills, experience and/or any
authorisation which are required by law or by any professional body
in order to perform the Services lawfully. For the avoidance of
doubt this includes, without limitation, carrying out appropriate
due diligence to confirm that each Subcontractor is eligible to
work lawfully in the United Kingdom for the period of the
Assignment.
- The
Main Contractor has no responsibility for the Subcontractor or any
person engaged on the Services, other than (a) as specifically
provided for in these Terms or under an Assignment Schedule, and
(b) such responsibilities as are generally owed to the public at
large.
- The
Main Contractor shall:
- give
the Subcontractor such cooperation, information and access as are
reasonably necessary for the proper performance of the Services
- inform
the Subcontractor if on any day the Services are not required
- ensure
that all relevant Health & Safety policies, risks, information
and relevant statutory compliance measures are disclosed to the
Subcontractor.
- The
Main
Contractor
shall
- notify
UCISL
immediately of anything which might affect the Subcontractor’s
self-employed status including any changes to the arrangements
under which he is supplying the Services
- itself
provide all PPE as may be required to perform the Services (save
for any agreed to be provided by the Subcontractor), details of
all health and safety policies, procedures and requirements
(including requirements for safety clothing and/or equipment)
relevant to the Site / Work Location(s) and details of any
specific risks to health or safety of which the Subcontractor
should be aware.
- Ffor
the avoidance of doubt, the Main Contractor has no authority to
discipline the Subcontractor, or to terminate the provision of the
Services other than by giving notice to UCISL
in
accordance with the applicable Assignment Schedule.
- UCISL
shall if so requested enter
a VAT self-billing agreement with the Main Contractor.
- Payment
and Tax
- The
Main Contractor is responsible for making payment to UCISL
for all Services provided by Subcontractors under Assignment
Schedules at the applicable Pay Rate and Invoice Frequency, and in
accordance with the Payment Terms, plus VAT as applicable.
- Where
the amounts
and the make-up of the amounts to be paid are based on time records
maintained by the Main Contractor, the Main Contractor must,
according to the Invoice Frequency, provide UCISL with sufficient
information, in an agreed format, to enable UCISL:
- to
readily identify the amounts and make-up of the amounts to be paid
for that period in respect of each Subcontractor and each
Assignment Schedule,
- to
invoice the Main Contractor, where applicable, and
- to
make such payments to and in respect of each Subcontractor, on or
before the dates such payments are due.
- If
the Main Contractor fails to make payment by self-billing in
accordance with the Payment Terms, notwithstanding that VAT
self-billing arrangements may have been agreed, UCISL may itself
invoice the Main Contractor.
- The
due date for payment by the Main Contractor of each invoice shall
be the later of (a) the date indicated by the Payment Terms, and
(b) 3 days after the date of each invoice; and the final date for
payment of each invoice shall be 1 day after the due date. If the
Main Contractor proposes to withhold payment of any sum set out on
any invoice it shall, not later than 1 day before the final date
for payment, provide to UCISL
a notice setting out the amount(s) that the Main Contractor
proposes to withhold and the ground(s) for withholding such sum(s).
- If
the Main Contractor has any cause for dissatisfaction with
performance of any Services by any Subcontractor it must notify
UCISL,
and promptly provide any requested further details.
Payment may not be withheld for time actually worked by a
Subcontractor.
- So
far as payment of UCISL’s
invoices
is concerned, time is of the essence, and if the Main Contractor
does not pay any sum due within the Payment Terms then, without
prejudice to any other remedy:
- UCISL
may
withhold or suspend the provision of further work by any Worker in
respect of any Assignment; and
- all
sums owing by the Main Contractor to UCISL
on
any account shall become due and payable immediately; and
- the
Main Contractor will pay interest and fixed charges as specified
in the Late Payment of Commercial Debts (Interest) Act 1998 on all
sums due from date of invoice to date of payment both before and
after any judgment; and
- UCISL
may
terminate any or all then current Assignments for material breach.
- On
receipt of money from the Main Contractor in respect of Services
performed by a Subcontractor, or (if sooner) on receipt of the
information to be provided pursuant to clause
6.2,
UCISL
shall, on or before the dates such payments are due to the
Subcontractor:
- deduct
its margin and any sums required by law to be deducted,
- raise
a self-billing invoice on behalf of the Subcontractor,
- make
payment by BACS to the Subcontractor, plus VAT as applicable, and
- remit
any sums required by law to be deducted, as required.
- Each
Subcontractor as a self-employed person has agreed to manage his
own tax affairs and comply with all other applicable legal
requirements, and to keep the Main Contractor indemnified
- in
respect of any legitimate claim or demand made by the proper
authorities for all taxes, national insurance or social security
contributions, in relation to payments made for the Services
performed by the Subcontractor
or by any substitute on his behalf,
and
- against
any claims that may be made by any individual providing Services
under employment-related legislation.
- Status
- The
relationship governed by these Terms and an Assignment Schedule is
neither that of agent-principal, nor that of employer-employee; no
individual providing Services will be the employee of the Main
Contractor, or of UCISL.
- Each
Subcontractor has warranted and represented that
- he
is self-employed,
- he
is in business on his own account,
- the
status of the Main Contractor and UCISL
is that of customers of the Subcontractor’s own business,
- the
manner in which the Subcontractor provides the Services shall not
be subject to (or to the right of) supervision, direction or
control by any person,
- the
nature of the Services is ‘Construction Operations’ as defined
in section 74 Finance Act 2004, and the Services are delivered by
the Subcontractor or any substitute as a self-employed worker, and
- he
has the right to live and work in UK.
- Each
Subcontractor has agreed to immediately notify the Company of
anything which might affect his self-employed status, including any
changes to the arrangements under which he is supplying the
Services, and/or the loss or cancellation of his UTR or CIS status.
- Intellectual
Property Rights
- All
rights in the nature of intellectual property rights in any Work
Product shall vest in and belong to the Main Contractor, and the
Subcontractor has agreed on request to sign any required form of
documentary assurance in respect thereof.
- Confidentiality
- Each
party will keep any information of a confidential nature disclosed
by the
other secret,
and on termination (or sooner if required) will at the option of
the owner thereof return or destroy such information.
- Neither
party may use or take advantage of any such information without the
discloser’s consent, even after the end of an Assignment or
termination of a Contract.
- For
the avoidance of doubt, nothing precludes the making of a
“protected disclosure” within the meaning of Part 4A
(Protected Disclosures) of the Employment Rights Act 1996. This
includes protected disclosures made about matters previously
disclosed to another recipient.
- Legal
and Regulatory requirements
- The
parties acknowledge that various legal and regulatory requirements
may affect their relationship, and that they may not have the
option to elect how such provisions may impact on their
relationships with each other and with any Subcontractor. However,
in deciding whether or not to enter any Contract, the parties have
agreed and intend that their positions in respect of the following
legal and regulatory requirements shall be as follows:
- Agency
Workers’ Regulations 2010
- The
parties do not consider Subcontractors to be ‘agency workers’,
within the meaning of these regulations.
- Conduct
of Employment Agencies and Employment businesses Regulations 2003
- UCISL
does
not provide work-finding services as defined under these
regulations, nor does it operate as an employment business as
defined under the Employment Agencies Act 1973. The parties
acknowledge and agree that at no time will UCISL
offer
work-finding services to or be obliged to find work for the
Subcontractor.
- The
parties therefore envisage that, as between UCISL
and the Subcontractor,
the arrangements contemplated by these Terms and any Assignment
Schedule do not fall within the scope of such regulations.
- To
the extent that such regulations may apply as between (a) UCISL
and a Subcontractor, and (b) the Main
Contractor, and to the extent legally permissible, UCISL
and each Subcontractor have agreed to opt out of the regulations,
and each Subcontractor has authorised UCISL
to so notify the Main Contractor.
- Working
Time Regulations 1998
- The
parties consider no Subcontractor to be a ‘worker’, for the
purposes of these regulations, and no payment will be made for
paid leave.
- National
Minimum Wage Act 1998
- Whether
or not such regulations apply, for the avoidance of doubt, UCISL
will pay each Subcontractor at a rate no less than the applicable
National
Minimum Wage / National Living Wage rate in respect of all time
actually worked.
- Pensions
Act 2008
- The
parties consider the Subcontractor not to be a ‘worker’, for
the purposes of this Act, and therefore that UCISL
does not have obligations under Pensions Act 2008 to the
Subcontractor.
- CITB-ConstructionSkills
levy
- Where
CITB levy may be payable by UCISL
in respect of payments made to the Subcontractor, UCISL
may deduct and retain provision for its liability to pay such levy
from payments made to the Subcontractor.
- Managed
Service Companies
- So
far as section 61B ITEPA is concerned, UCISL is not a ‘managed
service company’, and no MSC provider is involved with UCISL.
- Termination
- A
Contract may be terminated
- by
either party giving the other written notice of the Notice Period
specified in the Assignment Schedule
- by
either party by Immediate Notice, if the other is in material
breach of contract, or is in breach of contract and fails to
remedy the breach within fourteen days of being required in
writing to do so, or if the other becomes insolvent or ceases to
carry on business, or if any preliminary step is taken towards the
other’s liquidation winding up receivership or administration
(other than for bona
fide reconstruction
or amalgamation)
- by
UCISL
by
Immediate Notice, if the corresponding contract and/or Assignment
Schedule under which UCISL
engages the
Subcontractor’s services terminates (for whatever reason).
- Any
provision which expressly or by implication is intended to come
into or continue in force on or after termination shall remain in
full force and effect.
- Liability
- The
parties agree that the Main Contractor’s own knowledge of its
requirements is greater than that of UCISL,
and that it is therefore the Main Contractor’s sole
responsibility to satisfy itself as to qualifications, skills,
experience or suitability of each Subcontractor to perform the
Services. By allowing the commencement of an Assignment, the Main
Contractor acknowledges that it has satisfied itself as to such
qualifications, skills, experience and suitability. UCISL
shall have no liability to the Main Contractor in respect of any
failure by a Subcontractor to have the experience, training,
qualifications or any authorisation which the Main
Contractor
considers are necessary, or which are required by law or by any
professional body in order to perform the Services lawfully.
- UCISL
neither employs nor engages any Subcontractor as an agency worker.
Accordingly, UCISL
has no legal duty to carry out pre-employment immigration checks in
relation to any Subcontractor and shall have no liability to the
Main Contractor if any Subcontractor is found to be working
unlawfully in the UK.
- The
Main Contractor acknowledges and agrees that, in relation to each
Subcontractor, the Subcontractor is engaged to perform the Services
as specified in the applicable Assignment Schedule as an
independent contractor, and neither the Subcontractor nor any
person engaged by it on the provision of Services is under the
control of UCISL;
and therefore
- the
Subcontractor
has accepted
responsibility for
any wrongful negligent or unlawful acts defaults or omissions of
itself and of any such person in relation to an Assignment; and
- UCISL
shall not be liable for any such acts
defaults or omissions, or for the
Services provided by the Subcontractor, or for working conditions
or other arrangements at the Site / Work Location, or for any act,
default or omission of the Main Contractor (or any of its
personnel) in relation to the Services and/or the Site / Work
Location.
- UCISL
shall
not be liable for economic,
consequential or indirect loss or damage of any kind or any
loss of profit, business, revenue, goodwill, anticipated savings
and/or any claims made under third party contracts, arising out of
any failure by UCISL
to
perform any obligations under these Terms or an Assignment
Schedule.
- Neither
party nor any Subcontractor excludes or limits liability for death,
personal injury, fraud, repudiatory breach, or otherwise where it
is not lawful to do so. Subject thereto, the total liability (a)
of UCISL,
and (b) of each
Subcontractor and any person providing Services on its behalf,
whether such liability may arise in contract, tort, or otherwise,
is limited to £1,000,000.
- Neither
party enters any Contract on the basis of or relying on any
representation, warranty or other provision except as expressly
provided in writing, and all other terms implied by statute or
common law are excluded so far as legally permitted. Liability or
remedy for innocent or negligent (but not fraudulent)
misrepresentation is excluded.
- These
limitation and exclusion provisions shall operate for the benefit
of all potentially liable persons.
- Anti-Facilitation
of Tax Evasion
- In
performing its obligations under this Agreement, UCISL
shall:
- not
engage in any activity, practice or conduct which would constitute
either:
- a
UK tax evasion facilitation offence under section 45(5) of the
Criminal Finances Act 2017; or
- a
foreign tax evasion facilitation offence under section 46(6) of
the Criminal Finances Act 2017;
- have
and shall maintain in place throughout the term of this agreement
such policies and procedures as are reasonable
- to
prevent the facilitation of tax evasion by another person
(including without limitation employees of UCISL)
and
- to
ensure compliance with clause 13.1.1;
- promptly
report to the Main Contractor any request or demand from a third
party to facilitate the evasion of tax within the meaning of Part
3 of the Criminal Finances Act 2017, in connection with the
performance of this agreement;
- at
the
Main Contractor’s
request, provide the
Main Contractor with
a statement of such steps it has taken to ensure compliance with
the Criminal Finances Act 2017, together with such other
information as the
Main Contractor may
reasonably require in order to undertake risk assessments to
ensure that the
Main Contractor is
not facilitating tax evasion pursuant to the Criminal Finances Act
2017.
- UCISL
shall
ensure that any person associated with UCISL
who
is performing services and/or providing goods in connection with a
Contract does so only on the basis of a written contract which
imposes on and secures from such person terms equivalent to those
imposed on UCISL
in
this clause (Relevant
Terms).
UCISL
shall
be responsible for the observance and performance by such persons
of the Relevant Terms, and shall be directly liable to the Main
Contractor for any breach by such persons of any of the Relevant
Terms.
- Breach
of this clause shall be deemed a material breach.
- For
the purposes of this clause, the meaning of reasonable prevention
procedure shall be determined in accordance with any guidance
issued under section 47 of the Criminal Finances Act 2017 and a
person associated with UCISL
includes [but is not limited to] any subcontractor of
UCISL.
- Bribery
and Corruption
- The
parties shall comply with all applicable legal requirements
relating to bribery and corruption.
- A
Subcontractor is responsible for complying with any Main Contractor
policies relating to bribery and corruption that may be disclosed
to the Subcontractor, as though such policies applied to and had
been adopted by the Subcontractor.
- UCISL
confirms that it has not offered or given or agreed to give to any
person employed by or connected with the Main Contractor any gift
or any consideration of any kind as an inducement to do or to
forbear to do any act in relation to the entry of UCISL
into this Agreement.
- UCISL
undertakes to the Main Contractor that:
- it
will comply with applicable laws, regulations, codes and sanctions
relating to anti-bribery and anti-corruption including but not
limited to the Bribery Act 2010 (“Anti-Bribery
Law”);
- it
will not engage in any activity, practice or conduct which would
constitute an offence under sections 1, 2 or 6 of the Bribery Act
2010 if such activity, practice or conduct had been carried out in
the UK;
- it
has and will maintain in place adequate procedures designed to
prevent any conduct that would give rise to an offence under
Anti-Bribery Law and to
ensure compliance therewith;
- it
has and will maintain in place effective accounting procedures and
internal controls necessary to record all expenditure in
connection with the Agreement; and
- from
time to time, at the reasonable request of the Main Contractor, it
will confirm in writing that it has complied with its undertakings
under this provision and will provide any information reasonably
requested by the Main Contractor in support of such confirmation
of compliance.
- In
interpreting this provision, regard shall be had to the provisions
and definitions of the Bribery Act 2010 and to any current guidance
issued pursuant to section 9 thereof.
- Breach
of any of the undertakings in this clause shall be deemed to be a
material breach incapable of remedy.
- Data
Protection
- Definitions:
In
this clause,
- ‘Agreed
Purpose’ means the performance by each party of its obligations
in connection with this Agreement, and the promotion by each party
of its products and services.
- ‘Applicable
Laws’ means the data protection or privacy laws of any member of
the European Union, or the laws of the European Union, and of any
other country, to the extent as applicable.
- ‘Data
Protection Legislation’ means (i) the General Data Protection
Regulation ((EU) 2016/679) (‘GDPR’) and any national
implementing laws, regulations and secondary legislation, for so
long as the GDPR is effective in the UK, (ii) the Data Protection
Act 2018, and (iii) any successor legislation to the GDPR and/or
the Data Protection Act 2018.
- ‘controller’,
‘data controller’, ‘processor’, ‘data processor’,
‘data subject’, ‘personal data’, ‘processing’, and
‘appropriate technical and organisational measures’ have the
meanings as defined in the Data Protection Legislation.
- ‘Permitted
Recipients’ means the parties to this Agreement, the employees
of each party, and any third parties engaged to perform
obligations in connection with this Agreement.
- ‘Shared
Personal Data’: the personal data to be shared between the
parties under or in connection with this Agreement. Shared
Personal Data shall be confined to the following categories of
information relevant to the following categories of data subject:
- names
and contact details of actual and potential contractual
counterparties of each party;
- data
in relation to assignments to be performed by actual or potential
contractual counterparties of one party, via the parties, for an
actual or potential contractual counterparty of the other party;
- data
in relation to times worked and services provided on assignments
performed by contractual counterparties of one party, via the
parties, for contractual counterparties of the other party, for
purposes relating to payment of remuneration.
- Shared
Personal Data.
The nature of the relationship constituted by this Agreement is
such that the parties envisage that each party will be a
controller, and that neither will be in the position of processor
in relation to the other. This clause sets out the framework for
the sharing of personal data between the parties as controllers.
Each party acknowledges that one party (the Data Discloser) will
regularly disclose to the other party (the Data Recipient) Shared
Personal Data collected by the Data Discloser for the Agreed
Purposes.
- Effect
of non-compliance with Data Protection Legislation.
Each party shall comply with all the obligations imposed on a
controller under the Data Protection Legislation, and any material
breach of the Data Protection Legislation by one party shall, if
not remedied within 30 days of written notice from the other party,
give grounds to the other party to terminate this Agreement with
immediate effect.
- Particular
obligations relating to data sharing.
Each party shall:
- ensure
that it has all necessary notices and consents in place to enable
lawful transfer of the Shared Personal Data to the Permitted
Recipients for the Agreed Purposes;
- give
full information to any data subject whose personal data may be
processed under this Agreement of the nature such processing. This
includes giving notice that, on the termination of this Agreement,
personal data relating to them may be retained by or, as the case
may be, transferred to one or more of the Permitted Recipients,
their successors and assignees;
- process
the Shared Personal Data only for the Agreed Purposes;
- not
disclose or allow access to the Shared Personal Data to anyone
other than the Permitted Recipients;
- ensure
that all Permitted Recipients are subject to written contractual
obligations concerning the Shared Personal Data (including
obligations of confidentiality) which are no less onerous than
those imposed by this Agreement;
- ensure
that it has in place appropriate technical and organisational
measures, reviewed and approved by the other party, to protect
against unauthorised or unlawful processing of personal data and
against accidental loss or destruction of, or damage to, personal
data.
- not
transfer any personal data outside the EEA unless the transferor:
- complies
with the provisions of Articles 26 of the GDPR (in the event the
third party is a joint controller); and
- ensures
that (i) the transfer is to a country approved by the European
Commission as providing adequate protection pursuant to Article
45 GDPR; (ii) there are appropriate safeguards in place pursuant
to Article 46 GDPR; or (iii) one of the derogations for specific
situations in Article 49 GDPR applies to the transfer.
- Mutual
assistance.
Each party shall assist the other in complying with all applicable
requirements of the Data Protection Legislation. In particular,
each party shall:
- consult
with the other party about any notices given to data subjects in
relation to the Shared Personal Data;
- promptly
inform the other party about the receipt of any data subject
access request;
- provide
the other party with reasonable assistance in complying with any
data subject access request;
- not
disclose or release any Shared Personal Data in response to a data
subject access request without first consulting the other party
wherever possible;
- assist
the other party, at the cost of the other party, in responding to
any request from a data subject and in ensuring compliance with
its obligations under the Data Protection Legislation with respect
to security, breach notifications, impact assessments and
consultations with supervisory authorities or regulators;
- notify
the other party without undue delay on becoming aware of any
breach of the Data Protection Legislation;
- where
and to the extent appropriate, at the written direction of the
Data Discloser, delete or return Shared Personal Data and copies
thereof to the Data Discloser on termination of this Agreement
unless required by law to store the personal data;
- use
compatible technology for the processing of Shared Personal Data
to ensure that there is no lack of accuracy resulting from
personal data transfers;
- maintain
complete and accurate records and information to demonstrate its
compliance with this clause and allow for audits by the other
party or the other party’s designated auditor; and
- provide
the other party with contact details of at least one employee as
point of contact and responsible manager for all issues arising
out of the Data Protection Legislation, including the joint
training of relevant staff, the procedures to be followed in the
event of a data security breach, and the regular review of the
parties’ compliance with the Data Protection Legislation.
- Indemnity.
- Each
party shall indemnify the other against all liabilities, costs,
expenses, damages and losses (including but not limited to any
direct, indirect or consequential losses, loss of profit, loss of
reputation and all interest, penalties and legal costs (calculated
on a full indemnity basis) and all other reasonable professional
costs and expenses) suffered or incurred by the indemnified party
arising out of or in connection with the breach of the Data
Protection Legislation by the indemnifying party, its employees or
agents, provided that the indemnified party gives to the
indemnifier prompt notice of such claim, full information about
the circumstances giving rise to it, reasonable assistance in
dealing with the claim and sole authority to manage, defend and/or
settle it.
- The
liability of the indemnifying party under this clause shall be
subject to the limits set out in this Agreement.
- Modern
Slavery Act 2015
- In
performing its obligations under a Contract, UCISL
shall:
- comply
with all applicable anti-slavery and human trafficking laws,
statutes, regulations and codes from time to time in force
including but not limited to the Modern Slavery Act 2015;
- have
and maintain throughout the term of this Agreement its own
policies and procedures to ensure its compliance;
- not
engage in any activity, practice or conduct that would constitute
an offence under sections 1, 2 or 4, of the Modern Slavery Act
2015 if such activity, practice or conduct were carried out in the
UK; and
- require
that each of its direct subcontractors and suppliers shall comply
with all applicable anti-slavery and human trafficking laws,
statutes, regulations, codes and policies from time to time in
force including but not limited to the Modern Slavery Act 2015.
- Compliance
with all other applicable laws
- In
addition to the specific requirements for compliance elsewhere in
this Agreement, each party expressly agrees with the other that it
will at all times comply with all other applicable laws, statutes,
regulations and codes from time to time in force.
- Electronic
signatures
- Notwithstanding
that a Contract constituted by these Terms and an Assignment
Schedule may be formed pursuant to clause 3.4 without the
Assignment Schedule being signed by either or both parties,
- An
Assignment Schedule may be signed by electronic signature
(whatever the form the electronic signature takes), and that such
method of signature shall be equally conclusive of the intention
of each party to be bound by its terms and conditions as if signed
with manuscript signatures.
- Notwithstanding
that it may have been signed by a form of electronic signature, no
addition, amendment to, or modification or discharge of a Contract
shall be effective otherwise than in writing on paper and signed
with the manuscript signature of each party.
- General
- Assignment:
UCISL
may assign its rights or obligations under a Contract without the
consent of the
Main
Contractor
and, upon
such assignment, without prejudice to the assignor’s rights in
respect of matters arising prior to such assignment, all references
to UCISL
shall be deemed to refer to the assignee.
- Force
majeure:
If a party is obstructed in performing any of its obligations by an
event outside its reasonable control, then performance to the
extent obstructed is suspended for so long as the obstruction
continues. Whilst performance has been suspended for more than 7
days, either party may terminate a Contract by Immediate Notice.
- Waiver:
Failure to enforce any of these terms or any provision of a
Contract is not a waiver of a party’s rights and shall not
prejudice its rights to take action in respect of the same or any
later breach.
- Severability:
Any part of a term of a Contract which is wholly or partially void,
invalid, or unenforceable shall be severed from the remainder
(which shall remain enforceable).
- Notices:
Any notice pursuant to a Contract shall be given in writing
(excluding email), provided that notices
- from
UCISL
to
the Main Contractor may be given by email to the most recent email
address provided to UCISL
by
the Main Contractor, and shall be deemed received forthwith upon
sending unless notice of rejection is received from the Main
Contractor’s email provider
- sent
by post shall be deemed served 2 days after posting.
- Third
Party Rights:
The
terms of UCISL’s
contract
with the Subcontractor expressly provide for the Main Contractor to
have the benefit of the Subcontractor’s commitments therein and
(where appropriate) to take legal action directly against the
Subcontractor. Any agreement between UCISL
and the Subcontractor to rescind
or vary that contract and/or an Assignment Schedule in a way which
affects the Main Contractor’s rights is therefore conditional on
the Main Contractor’s consent.
- Entire
Agreement:
A Contract constituted by these Terms and an Assignment Schedule
together constitutes the entire agreement and
understanding between the parties relating to the subject matter.
Any
earlier agreement between the parties relating to the same subject
matter is hereby superseded and is discharged by mutual consent.
In case of conflict, the Assignment Schedule shall prevail. No
other terms or changes will apply unless in writing and signed by
both parties.
- Adjudication:
Any
dispute arising under or out of a Contract may be referred by
either party to an adjudicator for adjudication in accordance with
the Adjudication Rules published by the Technology and Construction
Solicitors Association (2011 Version 3.2).
- Law:
These
Terms, any Assignment Schedule, and any non-contractual disputes or
claims between the parties are governed by the laws of England and
Wales, whose courts shall (subject
to the provision for adjudication) have
sole jurisdiction in relation to all matters arising.