Health and Safety Terms of Business
These Health and Safety Terms of Business apply to health and safety consultancy services we have been engaged by you (The Client) to provide. A copy of these terms will be included in your Engagement Letter which details the services we provide to you.
1. Interpretation
The following definitions and rules of interpretation apply in this agreement.
1.1 Definitions:
Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.
Charges: the sums payable for the Services, as set out in the Letter of Engagement.
Client: as defined in the Letter of Engagement.
Client's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Client, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services.
Client Materials: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Supplier in connection with the Services, including the items provided pursuant to clause 4.1(c).
Data Protection Legislation: (i) unless and until the GDPR 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 GDPR or the Data Protection Act 1998.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Letter of Engagement: the Supplier’s letter setting out the Services to be provided to the Client.
Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 1998 or as superseded by any applicable Data Protection Legislation and relates only to personal data, or any part of such personal data, in respect of which the Client is the Data Controller and in relation to which the Supplier is providing services under this agreement.
Services: the services as set out in the Letter of Engagement, including services which are incidental or ancillary to such services.
Supplier: SafetyToolbox Ltd with company number 08292787 and registered office at 12 Green Lane, Godalming, GU7 3SN.
1.2 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.3 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.4 A reference to writing or written includes email.
2. Commencement and duration
2.1 This agreement shall commence on the date when the Letter of Engagement has been signed by the Client and shall continue, unless terminated earlier in accordance with clause 12 (Termination), until the Services are completed as stated in the Letter of Engagement when it shall terminate automatically without notice.
2.2 The Supplier shall provide the Services to the Client in accordance with this agreement and the Letter of Engagement. For the avoidance of doubt, if there is any inconsistency between any of the provisions of this agreement and the provisions of the Letter of Engagement, the provisions of the Letter of Engagement shall prevail.
3. Supplier's responsibilities
3.1 The Supplier shall use reasonable endeavours to supply the Services in accordance with this agreement and the Letter of Engagement in all material respects.
3.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Letter of Engagement but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement.
3.3 The Supplier shall use reasonable endeavours to observe all health and safety and security requirements that apply at the Client's premises and that have been communicated to it under clause 4.1(d), provided that it shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this agreement.
4. Client's obligations
4.1 The Client shall:
(b) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client's premises, office accommodation, data and other facilities, such as adequate parking, as reasonably required by the Supplier to provide the Services;
(c) provide to the Supplier or the Suppliers agents subcontractors and consultants, in a timely manner all documents, information, items and materials in any form (whether owned by the Client or third party) required to supply the Services or otherwise reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects and immediately inform the Supplier of any changes in circumstances that could affect the Services to be provided;
(d) inform the Supplier of all health and safety and security requirements that apply at any of the Client's premises;
(e) ensure that all the Client's Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements;
(f) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services, the use of all Client Materials and the use of the Client's Equipment insofar as such licences, consents and legislation relate to the Client's business, premises, staff and equipment, in all cases before the date on which the Services are to start.
4.2 If the Supplier's performance of its obligations under this agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
5. Non-solicitation
5.1 The Client shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of 12 months after the termination or expiry of this agreement, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
5.2 Any consent given by the Supplier in accordance with clause 5.1 shall be subject to the Client paying to the Supplier a sum equivalent to 50% of the then current annual remuneration of the Supplier's employee, consultant or subcontractor or, if higher, 50% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.
6. Charges and payment
6.1 In consideration of the provision of the Services by the Supplier, the Client shall pay the Charges.
6.2 The Charges for the Services are set out in the Letter of Engagement, including any reasonable expenses incurred following submission of an appropriate invoice and receipt, and are those in effect at the date of the agreement and entitle the Client to the Services during the service hours and at the locations specified in the Letter of Engagement.
6.3 The Supplier reserves the right to increase the Charges for the Services above the rate of inflation by providing written notice of any such increase 3 months before the proposed date of the increase. If such increase is not acceptable to the Client, it shall notify the Supplier in writing within 4 weeks of the date of the Supplier’s notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Services by giving 4 weeks’ written notice to the Client.
6.4 The Supplier shall invoice the Client for the Charges in accordance with the Letter of Engagement. If no intervals are so specified the Supplier shall invoice the Client at the end of each month for Services performed during that month.
6.5 The Client shall pay each invoice submitted to it by the Supplier, in accordance with the details as provided in the invoice.
6.6 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier any sum due under this agreement on the due date:
(b) the Supplier may suspend all or part of the Services or any product in use by the Client or demand return or cessation of use of any product provided to the Client until payment has been made in full.
6.7 All sums payable to the Supplier under this agreement:
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.8 The Client may be entitled to assistance with professional fees, particularly in relation to any investigation by the Health and Safety Executive. Assistance may be provided through insurance policies you hold or via membership of a professional or trade body. The Client will need to advise the Supplier of any such insurance cover in place. The Client will remain liable for the Charges regardless of whether all or part are liable to be paid by a third party.
7. Intellectual property rights
7.1 The Client acknowledges that all Intellectual Property Rights in or arising out of or in connection with the Services belong and shall belong to the Supplier or the relevant third-party owners (as the case may be), and the Client shall have no rights in or to the Services other than the right to use it in accordance with these terms and conditions.
7.2 The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Client's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Client.
8. Compliance with laws and policies
8.1 In performing its obligations under this agreement, the Supplier shall comply with the Applicable Laws.
8.2 Changes to the Services required as a result of changes to the Applicable Laws shall be automatic and the Client shall have no right of termination save as in accordance with this agreement, but the Client shall be informed of any such changes.
9. Data protection and data processing
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
9.3 Without prejudice to the generality of clause 9.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement.
9.4 Without prejudice to the generality of clause 9.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
(f) notify the Client without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 9.
9.5 The Client consents to the Supplier appointing third-party subprocessors of Personal Data under this agreement. The Supplier maintains an up-to-date list of the names and locations of all third-party subprocessors which can be found on our website. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processors into a written agreement incorporating terms which are substantially similar to those set out in this clause 9. As between the Client and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 9.
9.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
9.7 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause 9.
9.8 The Supplier will retain soft copy records of the Services provided to the Client for a period of 6 years from the issue of the final invoice for the Services. After this period, the Supplier reserves the right to destroy these records subject to any written request from the Client to return the records to them. Hard copies of records, including original documents, will be destroyed unless specifically requested by the Client for the Supplier to return these documents.
10. Confidentiality
10.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 10.2.
10.2 Each party may disclose the other party's confidential information:
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
11. Limitation of liability
11.1 Nothing in this agreement shall limit or exclude the Supplier's liability for:
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
11.2 Subject to clause 11.1, the Supplier shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill, any indirect or consequential loss.
11.3 Subject to clause 11.1, the Supplier shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement:
(b) for any action taken by the Client after a significant change in circumstance of the Client and where the Client has acted upon advice provided by the Supplier prior to the significant change in circumstance of the Client; or
(c) for any action taken by the Client where there has been a failure by the Client to inform the Supplier in accordance with its obligations under clause 4 or fail to comply with the advice provided by the Supplier in respect of the Services provided.
11.4 For the purposes of clause 11.3 (b), a significant change in circumstance is considered, although not limited to, the following:
(b) Any changes to job descriptions or restructuring of the organisational network of the Client which could affect communication and management;
(c) Any changes to the layout of any premises or relocation of office personnel;
(d) Any changes to the office personnel carrying out specific tasks or office personnel being exposed to different operational activities than otherwise advised to the Supplier.
11.5 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
12. Termination
12.1 Without affecting any other right or remedy available to it:
(b) the Supplier may terminate this agreement with immediate effect by giving written notice to the Client if:
(ii) the Client commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so; or
(iii) the Client fails to pay any amount due under this agreement on the due date for payment; or
(iv) there is a change of control of the Client; or
(v) the Client receives notice of intention to appoint an administrator, receiver or an administration application is made or a creditors meeting is called by the Client or a petition is presented for liquidation of the Client.
13. Consequences of termination
13.1 On termination or expiry of this agreement:
(b) the Supplier shall on request return any of the Client Materials not used up in the provision of the Services; and
(c) the following clauses shall continue in force: clause 1 (Interpretation), clause 5 (Non-solicitation), clause 7 (Intellectual property rights), clause 10 (Confidentiality), clause 11 (Limitation of liability), clause 13 (Consequences of termination), clause 20 (Waiver), clause 22 (Severance), clause 27 (Governing law) and clause 28 (Jurisdiction).
13.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
14. Complaints
14.1 The Supplier is committed to providing a high quality service that is both efficient and effective. Should there be a cause for complaint in relation to any aspect of our service, it is requested that you contact the Directors of the Supplier in accordance with the contact details as stated in the Letter of Engagement.
14.2 The Supplier will review any complaint carefully and promptly and will take reasonable steps to put it right in accordance with its internal complaints procedure.
14.3 This is clause is without prejudice to the rights of termination in accordance with clause 12.
15. Insurance
The Supplier has professional indemnity cover in place in respect of the Services provided in the sum of £10,000,000. It is believed that the cover is reasonable in respect of work undertaken. The Supplier’s cover is with Hiscox UK. A copy of the certificate can be provided on request.
16. Force majeure
16.1 Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident; and
(g) any labour or trade dispute, strikes, industrial action or lockouts; and
(h) interruption or failure of utility service.
16.2 Provided it has complied with clause 16.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
16.3 The Affected Party shall:
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
16.4 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 4 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 4 weeks' written notice to the Affected Party.
17. Indemnity
17.1 The Client shall indemnify the Supplier 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 Supplier arising out of or in connection with:
(b) any claim made against the Supplier by a third party arising out of or in connection with the provision of the Services, to the extent that such claim arises out of the breach, negligent performance, unauthorised use of any product provided in the course of the Services or failure or delay in performance of this agreement by the Client, its employees, agents or subcontractors
18. Assignment and other dealings
18.1 This agreement is personal to the Client and the Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
18.2 The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.
19. Variation
No variation of this agreement shall be effective unless it is in writing by the parties (or their authorised representatives).
20. Waiver
20.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
20.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
21. Rights and remedies
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22. Severance
22.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
22.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. Entire agreement
23.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
23.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
24. No partnership or agency
24.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
24.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
25. Third party rights
25.1 This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
26. Notices
26.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
(b) sent by email to the address specified by each party.
26.2 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
27. Governing law
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
28. Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.