SRUC Contracts OfficeWest Mains Road

Edinburgh EH9 3JGScotland UK

t: +44 (0)131 535 4074f: +44 (0)131 535 4183

e: mike.smith@sruc.ac.uk w: www.sruc.ac.uk

Certificate FS 94274 ISO 9001:2015

     

Our Ref: MLS/

Date:     

LETTER OF OFFER OF SUB-CONTRACT WITH SRUC

SRUC (referred to as “SRUC” or the “Contractor”) have a Project with       (“the Client”) entitled      (“the Project”) that commenced on      , a copy of which is annexed (Appendix 1) hereto together with the terms and conditions.

The contract (Appendix 1) provides for part of the project to be undertaken by a Sub-contractor.

SRUC write to offer       (the “Sub-contractor”) a Sub-contract to perform the Services as set out in the Schedule annexed (Appendix 2) hereto on the terms set out below:-

(a) Our standard terms and conditions of Sub-contract (which are attached to this letter) will form part of the terms and conditions on which we subcontract our obligations to you;

(b) The Sub-contract (as defined in the standard terms and conditions) will commence from       and will end      , unless terminated under Clause 14 hereof, or modified by the Client.

(c) In exchange for providing the Services in terms of the Sub-contract, you will be paid a total sum not exceeding       [(inclusive of VAT)][(plus VAT where properly chargeable)] by SRUC according to the schedule noted in Appendix 3. Payments will be made in arrears and will be made no later than 28 days after receipt of an invoice, subject to the provisions of the standard terms and conditions.

(d) You will comply with necessary standard operating procedures for the conduct of this sub-contract equivalent to that required to satisfy our external QA standard (ISO9001/2015).

Please indicate your acceptance of this Letter of Offer by signing the attached in duplicate.

Yours faithfully,

Dr M L SmithHead of SRUC Contracts OfficeFor and on behalf of SRUC

WE, hereby agree to act as Sub-contractor in respect of the Contract on the above terms and conditions.

SIGNED on behalf of      

By:…………………………………..

Full Name:…………………………………. Designation: …………………………………….

Date: ……………………………

SIGNED on behalf of SRUC

By:…………………………………..

Full Name:…………………………………. Designation: …………………………………….

Date: ……………………………

Appendix 1Contract

Appendix 2Schedule of Work

Appendix 3Payment SchedulePayments will be made and fall due as follows (subject to the standard terms and conditions attached)

Invoice Due Payment Due Amount (£)

Total

Invoices, quoting the purchase order number XXXXXXX should be submitted to:-

SIDPurchase@sruc.ac.uk or if non-UK sub-contract treasury@sruc.ac.uk

or addressed to:

SRUC

Finance Purchase Ledger Department

Peter Wilson Building

West Mains Road

Edinburgh

EH9 3JG

Terms and Conditions

STANDARD TERMS AND CONDITIONS OF SUB-CONTRACT

Of

SRUC and SAC COMMERCIAL LIMITED

1 Interpretation

1.1 In these conditions:-

“Client” means the individual, corporation, partnership or other body defined as such in the Letter of Offer;

“Contractor” means either SRUC (a Scottish charity with charity number SC003712 and a company registered in Scotland with number SC103046) or SAC Commercial Limited (a company registered in Scotland with number SC148684), whichever of them is specified as the Contractor in the Letter of Offer;

“Contract” means the agreement entered into between the Client and the Contractor as specified in the Letter of Offer;

“Contractor’s Group”

means SRUC, SAC Commercial Limited, and any company which is a subsidiary of either of them or any trust, person or other body which is a member of or a holding company of SRUC or any other person or body which is owned or controlled by such trust, person or body;

“IPR” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade business and domain names, rights in trade dress or get up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights to confidential information (including know-how and trade secrets) and other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world;

“Letter of Offer” means the foregoing letter from the Contractor to which these terms and conditions are attached;

“Services” means the services specified in the Letter of Offer to be provided by the Sub-contractor to the Contractor and such other services as the Contractor and the Sub-contractor may from time to time agree in writing are to be provided by the Sub-contractor to the Contractor pursuant to the Sub-contract;

“Sub-contract” means the agreement between the Contractor and the Sub-contractor on the terms and conditions set out herein and in the Letter of Offer; and

“Sub-contractor” means the Sub-contractor specified in the Letter of Offer.

2. Basis of Sub-contract

The Sub-contractor is engaged by the Contractor to carry out the Services in accordance with the terms of the Sub-contract. The Sub-contract shall not contain any terms and conditions other than those specified herein and in the Letter of Offer (including, for the avoidance of doubt, terms of the Contract incorporated by reference), unless the same have been expressly accepted by the Contractor in writing as varying the Sub-contract.

3. Duration

The Sub-contract shall be deemed to commence on the date specified in the Letter of Offer or, in the

event of no date being so specified, the date on which the Sub-contractor accepts the Letter of Offer, and shall remain in place (unless earlier terminated upon either party serving upon the other three months’ written notice or in accordance with clause 14 below) until the complete and proper discharge of the Services by the Sub-contractor.

4. Obligations on Sub-contractor

4.1 The Sub-contractor shall at all times during the period of the Sub-contract:-

4.1.1 faithfully and diligently perform the Services fully in accordance with the Sub-contract and with the provisions of the Contract, in so far as they are relevant to the Sub-contractor’s obligations under this Sub-contract. The timetable of work is fixed by the Contract, unless agreed otherwise in writing between the main parties.

4.1.2 obey all reasonable directions of the Contractor and/or the client in relation to the performance of the Services and the Sub-contract generally;

4.1.3 immediately advise the Contractor of any directions given to the Sub-contractor by the Client in terms of clause 4.1.2.

5. Payment

5.1 The Sub-contractor will be paid in accordance with the provisions set out in the Letter of Offer.

5.2 The Contractor shall pay all invoices submitted by the Sub-contractor in terms of the Sub-contract in accordance with the timescales specified in the Letter of Offer, provided the invoice is properly due and payable, gives all relevant detail of the services provided, is accompanied (if so required by the Contractor) by the relevant vouchers of expenses incurred and time spent, and, where VAT is chargeable as provided for in the Letter of Offer, is a valid VAT invoice.

5.3 In the event of a payment in advance (an “advance payment”) being made by the Contractor to the Sub-contractor, then, on termination of the Sub-contract in terms of clause 16 below prior to the performance or the completion of performance of the Services or before expiry of the period of Sub-contract to which such advance payment relates, the Sub-contractor shall reimburse to the Contractor on a pro rata basis that part of the advance payment which is equivalent to the unperformed services or period of Sub-contract not yet expired.

5.4 All payments by the Contractor shall be considered to be advance payments until such time as the Contractor has confirmed that the Contract has been performed satisfactorily.

5.5 In the event that the Client demands repayment under the Contract of any advance payment received by the Sub-contractor, the Sub-contractor, upon written request, shall make such repayment forthwith.

5.6 The Sub-contractor shall retain all invoices, receipts, time records and other documentation in order to substantiate statements of expenditure under the project. All documentation shall be made available on request to the Contractor and the Client.

5.7 VAT, If appropriate, will be added to the agreed sum to be paid to the Sub-contractor by the Contractor as noted in the Letter of Offer.

6. Intellectual Property Rights

6.1 In this clause 6:

6.1.1 references to “Computer Software” mean computer software programs and any documentation pertaining to such programs;

6.1.2 references to any Computer Software and the IPR therein or to any IPR being vested in the Contractor shall be a reference either to the Contractor or, if different, to such company or body forming part of the Contractor’s Group as has the right to that IPR.and the benefit of this clause 6 and of the Sub-contractor’s obligations under this clause 6 shall extend to any such company or body forming part of the Contractor’s Group which owns or has right to any Computer Software and the IPR therein and any other IPR.

6.2 Any IPR in any data, information, goods or materials supplied to the Sub-contractor by the Contractor

shall not pass to the Sub-contractor, but shall remain vested in the Contractor (or in any third party who may have such rights in goods supplied to the Contractor) and, unless expressly authorised to do so in terms of the Sub-contract, the Sub-contractor may not alter or interfere with the same. All IPR in all original drawings, designs, proposals, reports, recordings and original works, and discoveries or inventions made in the course of the Sub-contract shall be and remain the property of the Contractor and the Sub-contractor will, if requested to do so by the Contractor execute all necessary documentation and take all necessary steps to vest all such rights in the Contractor.

6.3 Any IPR in any Computer Software supplied to the Sub-contractor by the Contractor hereunder shall not pass to the Sub-contractor but shall remain vested in the Contractor. By virtue of the Sub-contract the Sub-contractor will have a personal non-exclusive and non-transferable right by way of licence to use the Computer Software and the IPR therein, but only so far as necessary to enable the Sub-contractor to make use of the same in connection with the performance of the Services. The Sub-contractor is bound to treat the Computer Software and the IPR therein as secret and confidential to the Contractor, both during and after the period of use authorised hereunder. The Sub-contractor will not (without the Contractor’s prior written consent) sell, charge, sub-licence, publish, disclose, permit to be disclosed or part with possession of either the Computer Software or the IPR therein, or any other information relating thereto. Notwithstanding the foregoing, the Contractor may require the Sub-contractor at any time to enter into its standard form licensing agreement in respect of the Computer Software and the IPR therein. Where the Contractor further agrees that the Sub-contractor may make use of the Computer Software and the IPR therein beyond the limits authorised above the Sub-contractor will enter into a licensing agreement with the Contractor in such terms as the Contractor requires.

6.4 The provisions of the Contract require the Contractor to make every effort to exploit the intellectual property arising during the course of the project and the Sub-contractor agrees to take all such steps as may be requested by the Contractor (acting reasonably) to achieve that end and the parties agree that they shall mutually agree an appropriate distribution of any royalty income received in a fair and reasonable way taking into account the respective contributions of each party in developing the said intellectual property.

6.5 All IPR in all original drawings, designs, proposals, reports, recordings and original works, products or processes and discoveries or inventions (all as hereinafter together referred to as “technical information”) which arise in the course of the Sub-Contract shall vest in the Contractor on creation and remain vested in the Contractor unless otherwise agreed by the Contractor in writing and the Sub-contractor’s rights to make use of the same will be governed by clause 7. Furthermore, the Sub-contractor agrees to maintain the technical information secret and confidential and to use the technical information exclusively for the purposes of the Project and only to disclose the technical information with the Contractor’s express consent and in any event only to the extent reasonably necessary for the purposes of the Project;

6.6 The Sub-contractor shall notify the Contractor promptly of any actual, threatened or suspected infringement of any IPR in relation to the Sub-contract which comes to its notice and, if so required by the Contractor, the Sub-contractor shall do everything (at the Contractor’s expense) reasonably required to take or resist any proceedings in relation to any such infringement or claim.

6.7 If any copyright or similar right arises in the Sub-Contractor’s favour in relation to any work (as that term is defined in the Copyright, Design and Patents Act 1988 as amended from time to time) in the course of the Sub-contract, the Sub-Contractor hereby assigns such copyright to the Contractor and agrees to execute on demand any and all necessary documentation required to give effect to this Condition 6.7. The Sub-Contractor shall procure that its employees, agents and subcontractors shall waive absolutely and irrevocably their moral rights granted under the Copyright, Designs and Patents Act 1988 or equivalent or analogous rights under laws of other jurisdictions in relation to such intellectual property.

6.8 If any processes or inventions are created, discovered or made by the Sub-Contractor in the course of the Project, the Sub-Contractor shall disclose full details of such invention to the Contractor. The Contractor shall in its sole discretion be entitled to apply for patent(s) in respect of any such invention and shall be responsible for the maintenance and renewal of such patent(s). The Sub-Contractor agrees to assign to the Contractor all right, title and interest in and to any such invention and further agrees to provide reasonable assistance to the Contractor in connection with any application for patent rights and to do all such reasonable acts and things as are necessary in connection with any such assignment or assistance.

6.9 The Sub-contractor shall indemnify the Contractor against all claims, demands, actions, costs, expenses (including legal costs and disbursements on a solicitor and client basis), losses and damages arising from or incurred by reason of any infringement or alleged infringement (including the defence of such alleged infringement) of any IPR by the availability of the Services, except to the extent that they have been caused by or contributed to by the Contractor’s acts or omissions.

7. Publication

7.1 The Sub-contractor shall not at any time communicate to any other person, publish or make use of in any publication any report, statement, drawing, design, proposal, recording or other original work issued by the Contractor nor any extract therefrom, nor refer to the fact that any product or process has been the subject of a contract with the Contractor in any communication, publication or publicity material without the prior written permission of the Contractor.

7.2 Without prejudice to the generality of clause 7.1 above neither the Sub-contractor nor any person acting on behalf of the Sub-contractor or with the Sub-contractor’s authority shall issue any advertisement or publicity material which suggests either expressly or by implication that any product or service has been approved or recommended by the Contractor or any company or body within the Contractors group.

7.3 Any communication, publication or other public statement in respect of the work the subject of the Contract intended to be made by the Sub-contractor must be submitted to the Contractor in draft at least 45 days in advance of submission to the publisher, or date of release of the communication or public statement. The Contractor shall have 45 days in which to review the material for a disclosure of the Contractor’s confidential information or patentable material. If the Contractor believes that the communication, publication or other public statement contains confidential information, the Contractor, will notify the sub-contractor, who shall not publish such confidential information. If the Contractor believes that patentable information is contained within the publication, the Contractor may request the Sub-contractor to delay the communication, publication or other public statement for a further 45 days to allow the preparation/filing of one or more patent applications.

8. Provisions related to the supply of Material

8.1 Where applicable, the Contractor will provide accurate information, when possible, as to the composition of material supplied by it, and will give the Sub-contractor notice of any hazards in their use known or suspected by the Contractor.

8.2 The provisions of this clause 8.2 relate only to analytical services:

8.2.1 in respect of material submitted for analysis of whatever nature, the Contractor warrants that it has the right to take and submit the material and that it does so either as owner of all materials involved or with full authority of the owner of all such materials; and

8.2.2 after the Sub-contractor has supplied its Report, the Sub-contractor will store, where possible, any material for 6 months and then return material to the Contractor for longer term storage.

9. Health and Safety

9.1 The Sub-contractor acknowledges that it has read the Contractor’s policy regarding health and safety which can be found on our website : https://www.sruc.ac.uk/downloads/file/1104/health_and_safety_policy.The Sub-contractor agrees to comply with this policy, and any additional rules made known to the Sub-contractor from time to time by the Contractor together with all applicable statutory rules and regulations regarding these matters. The Sub-Contractor will be responsible for procuring that its employees and agents also comply with these rules and regulations.

9.2 The Sub-contractor will ensure that any machinery or equipment provided to the Contractor complies with all current laws, including the requirement of the Health and Safety at Work Act 1974. If in the

opinion of the Contractor, the equipment does not comply with current laws, or with the Contractor’s safety standards the Sub-contractor will be responsible for making necessary modifications before work begins.

10. Confidentiality

10.1 The Contractor and Sub-contractor will, as far as is reasonably practicable, secure from the sight of visitors all confidential documents, data and equipment relating to the Client, the Contract, the Contractor or the Sub-contractor. Computer stored data relating to any of these will be protected from access by others by the use of file protection.

10.2 The Contractor and Sub-contractor shall not make use of or divulge to any third party any confidential information it may gain as a result of any visit to the Contractor, Subcontractor’s or Client’s premises.

11. Delays, Suspensions and Interruptions

Neither the Contractor nor the Sub-contractor shall be held responsible for any failure or delay by them in carrying out their obligations in terms of this Sub-contract, which is due to circumstances beyond their reasonable control. Without prejudice to the foregoing, if the Sub-contractor is so prevented from carrying out its duties in terms of the Sub-contract for a period of more than one month, the Contractor will be entitled to immediately terminate the Sub-contract.

12. Liability

12.1 The Sub-contractor shall be liable to the Contractor for any loss or damage incurred by the Contractor arising directly or indirectly as a result of a breach by the Sub-contractor of the Sub-contract or as a result of the acts or omissions of the Sub-contractor, its employees, servants or agents.

12.2 The Contractor will not be liable to the Sub-contractor in respect of any loss of profits, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the Sub-contractor as a result of an action brought by a third party) arising out of the use by the Sub-contractor of any material, data, information, results or products provided in the pursuance of the Sub-contract. No responsibility is accepted for any interpretation which may be made of said results, reports and information.

12.3 Notwithstanding any other provision of this Sub-contract neither party limits or excludes its liability for:

(a) fraud or fraudulent misrepresentation;

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

(c) any other act or omission, liability for which may not be limited under any applicable law.

13. Sub-contractor’s Rights against Client

The Contractor does not hereby assign, and no term of the Sub-contract shall be deemed to be an assignation of, any of the Contractor’s rights under the Contract.

14. Termination

14.1 This agreement is at all times subject to the existence of the Contract. In the event of early termination of the Contract the Contractor may terminate this agreement. Any outstanding commitments to expenditure of the Sub-contractor shall be dealt with according to the provisions of the Contract relative to the outstanding expenditure provided that in no circumstances shall the Contractor be liable to the Sub-contractor for expenditure which the Contractor cannot recover from the Client.

14.2 Without prejudice to clauses 11 and 12 above, the Contractor may without notice immediately terminate the Sub-contract if the Sub-contractor shall:-

14.2.1 be in breach of any terms of the Sub-contract which, in the case of a breach capable of remedy, shall not have been remedied by the Sub-contractor within 21 days of receipt by

the Sub-contractor of a notice from the Contractor or the Client specifying the breach and requiring its remedy;

14.2.2 be incompetent, guilty of gross misconduct and for any serious or persistent negligence in performing the Services.

14.2.3 if, being an individual, becomes apparently insolvent or dies or, being a partnership, is dissolved or any of its partners become apparently insolvent or die;

14.2.4 if, being a company or other corporate body, goes into liquidation or has a receiver appointed to all or any part of its assets or it becomes subject to an administration order or makes any voluntary arrangement with its creditors.

15. Breach by Sub-contractor

Without prejudice to clauses 11 and 12 above, in the event of the Sub-contractor breaching the terms of the Sub-contract by failing to fulfil any of its obligations thereunder, the Contractor will be entitled to fulfil such obligations itself or procure such other person as it thinks fit to do so.

16. Variations

16.1 The Contractor shall notify the Sub-contractor of any variation to the Contract agreed with the Client.

16.2 The Sub-contract shall only be varied with the agreement in writing of the Sub-contractor and the Contractor.

17. Law

The Sub-contract shall be governed by Scots law and the Contractor and Sub-contractor both submit to the exclusive jurisdiction of the Scottish Courts.

18. Freedom of Information

The Contractor is subject to the Freedom of Information (Scotland) Act 2002 and regulations made under it, which require the Contractor and the Sub-contractor to make certain information (which may include results) available to members of the public on request. Wherever possible, and in accordance with any applicable Code of Practice issued with the legislation, the Sub-contractor will consult with the Contractor before making any disclosure of results pursuant to the legislation.

19. Data Protection

Both parties shall duly observe all their obligations under the Data Protection Act 1998 (“DPA”) which arise in connection with the Sub-contract. Notwithstanding the generality of the foregoing, where the Sub-contractor is processing personal data as a data processor for the Contractor, the Sub-contractor shall ensure that it has in place appropriate technical and contractual measures to ensure the security of the personal data, as required under the Seventh Data Protection Principle in Schedule 1 of the DPA.

20. Anti-corruption

The Sub-contractor shall throughout the term of this Sub-contract comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Anti-corruption laws”) and shall have and shall maintain in place and enforce where appropriate policies and procedures, including adequate procedures under the Bribery Act 2010 to ensure compliance with the anti-corruption laws.

21. No partnership or agency

Nothing in this Sub-contract shall be construed as constituting a partnership between the parties or as

constituting either party as the agent of the other for any purpose whatsoever except as expressly specified by the terms of the Sub-contract.

22 Insurance

22.1 The Sub-contractor shall effect and maintain with a reputable insurance company a policy or policies of insurance providing an adequate level of cover in respect of all risks which may be incurred by the Sub-contractor, arising out of the Sub-contractor's performance of the Sub-contract, including death or personal injury, loss of or damage to property or any other loss.

22.2 The Sub-contractor shall hold employer's liability insurance in respect of its employees, agents and officers in accordance with any legal requirement for the time being in force.

22.3 The Sub-contractor shall give the Contractor, on request, copies of all insurance policies referred to in this clause or a broker's verification of insurance to demonstrate that the appropriate cover is in place, together with receipts or other evidence of payment of the latest premiums due under those policies.

22.4 If, for whatever reason, the Sub-contractor fails to give effect to and maintain the insurances required by the Sub-contract the Contractor may make alternative arrangements to protect its interests and may recover the costs of such arrangements from the Sub-Contractor.

23. General

23.1 No failure or delay by a party in exercising any right or remedy under the Sub-contract or by law shall constitute a waiver of that (or any other) right or remedy or preclude or restrict its further exercise.

23.2 If any provision of the Sub-contract is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable then

23.2.1 that provision or part provision shall to the extent required by deemed not to form part of the Sub-contract and the validity or enforceability of the other provisions of the Sub-contract shall not be affected; and

23.2.2 the parties shall negotiate in good faith to amend that provision so that, as amended, it is legal, valid and enforceable and so far as possible achieves the parties’ original intention.

23.3 Any notice or other communication required to be given by one party to the other under the Sub-contract shall be in writing and shall be delivered personally or sent by prepaid first class post, recorded delivery or by commercial courier to the other party. Any such notice or other communication shall be deemed to have been duly received if delivered personally when left at the address or, if sent by prepaid first class post or recorded delivery at 09.00am on the second business day after posting or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

This part of the Agreement only to be signed if the Sub-Contractor is a data Processor for SRUC

THE DATE OF DELIVERY OF THIS DATA PROCESSING AGREEMENT IS __________________.

PARTIES

(1) [SRUC ], a company incorporated in [Scotland] with registered number [NUMBER] having its registered office address at [ADDRESS] (“Customer”).

(2) [COMPANY NAME], a company incorporated in [Scotland] with registered number [NUMBER] having its registered office address at [ADDRESS] (“Supplier”).

1. OPERATIVE PROVISIONS

Definitions and Interpretation

1.1 In this Agreement the following definitions and rules of interpretation apply, unless the context requires otherwise:-

“Agreement” means this data processing agreement, including the Schedule.

“Customer Personal Data” means any personal data (as defined in the GDPR) which will be processed (subject to the Data Protection Legislation) by the Supplier on behalf of the Customer in connection with the Services and pursuant to this Agreement.

“Data Protection Legislation” means, for the purposes of this Agreement, the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) and any other laws applicable in the United Kingdom or the European Union from time to time that relate to data protection, privacy or the use of information relating to individuals.

“Effective Date” means [the later of (i) 25 May 2018 or (ii) the date of delivery of this Agreement].

“Schedule” means the Schedule in two Parts annexed to and forming part of this Agreement.

“Services” means the services provided by the Supplier to the Customer under the Service Agreement.

“Service Agreement” means the agreement for the provision of services between the Supplier and the Customer as set out in Part 2 of the Schedule.

The terms “appropriate technical and organisational measures”, “controller”, “processor”, “process”, “data subject”, “personal data”, “personal data breach” and “supervisory authority” shall, unless the context otherwise requires, each have the respective meanings given to them in the GDPR.

Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted, provided that such amendment, extension or re-enactment does not in the case of a defined word or meaning alter the substance of the definition.

Words denoting the singular number only shall include the plural and vice versa.

Reference to any one gender shall include all the other genders.

Reference to persons shall include unincorporated associations, partnerships and bodies corporate.

Words and expressions defined in the Companies Acts shall bear the same meaning in this Agreement.

All warranties, representations, agreements and obligations given or entered into by more than one person are given or entered into jointly and severally.

Reference to any clause is to a clause of this Agreement and reference to any Part is to a Part of the Schedule.

The headings of this Agreement are inserted for convenience only and shall not affect its construction.

Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2.0 Application of this Agreement

With effect from the Effective Date, this Agreement shall apply to:

2.1 all Customer Personal Data sent from the date of this Agreement by the Customer to the Supplier for processing;

2.2 all Customer Personal Data accessed by the Supplier on the authority of the Customer for processing from the date of this Agreement; and

2.3 all Customer Personal Data otherwise received by the Supplier for processing on the Customer’s behalf,

in relation to the Services.

3.0 Data Processing

3.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

3.2 The parties acknowledge that for the purposes of the Data Protection Legislation:

the Customer is the controller and the Supplier is the processor of the Customer Personal Data being processed for the purposes of the Services;

the Customer is a controller in respect of any personal data relating to the Supplier's staff that it processes for the purposes of entering into the Agreement and receiving the Services; and

the Supplier will be a controller in respect of any personal data relating to the Customer’s staff that it processes for the purposes of entering into the Agreement and providing the Services and in respect of any other personal data that it processes in connection with the Services that is not Customer Personal Data.

Without prejudice to the generality of clause , the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to the Supplier for the duration and purposes of the Agreement.

The parties agree that Part 1 of the Schedule (Data Processing Information) sets out the subject-matter and nature of the processing to be performed by the Supplier on behalf of the Customer, the categories of data subjects to whom the Customer Personal Data relate and the types of Customer Personal Data that will be processed by the Supplier on behalf of the Customer as Customer Personal Data.

Without prejudice to the generality of clause , the Supplier shall, in relation to any Customer Personal Data processed in connection with the performance by the Supplier of its obligations under the Agreement:

process the Customer Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process such Customer Personal Data (“Applicable Data Processing Laws”). Where the Supplier is relying on Applicable Data Processing Laws for processing such Customer Personal Data, the

Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Supplier from so notifying the Customer;

ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer 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 Customer Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Customer 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);

ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep the Customer Personal Data confidential;

not transfer any Customer Personal Data outside of the European Economic Area unless [the prior written consent of the Customer has been obtained and] the following conditions are fulfilled:

the Supplier or the Customer has in place with the non-EEA receiving entity the EU model contractual clauses as set out in Decisions 2010/87/EU or any alternative version of those clauses issued by the European Commission or such other supervisory authority from time to time;

the transfer is to a non-EEA country that is deemed to have an adequate level of protection from time to time by the European Commission or such other supervisory authority;

there is an approved code of conduct in place by an association or other body representing the Supplier or the Customer that applies to the non-EEA territory or territories to which the Customer Personal Data is to be transferred;

there is an approved certification mechanism in place in respect of the non-EEA territory; or

to the extent that the transfer is to an entity located in the United States, such entity participates in the EU-US Privacy Shield or such other mechanism that may replace or supersede it from time to time;

assist the Customer 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 Customer without undue delay (and in any event within 72 hours) of receipt of any request from a data subject in connection with any Customer Personal Data;

notify the Customer without undue delay (and in any event within 48 hours) on becoming aware of a personal data breach affecting the Customer Personal Data;

at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Agreement unless required by Applicable Data Processing Law to store the Customer Personal Data (as set out in clause );

maintain complete and accurate records and information to demonstrate its compliance with this clause ; and

at no cost to the Supplier, submit and contribute to audits and inspections carried out by the Customer (or a third-party appointed by the Customer to carry out such audits or inspections) for the purpose of ensuring the Supplier’s compliance with this clause . Any such audit or inspection shall be subject to the following restrictions:

the Customer shall provide reasonable written notice of the date of inspections or audits;

the Customer may perform such audits no more than once per year unless required by the Data Protection Legislation;

any third party appointed by the Customer to perform such audit or inspection shall be required to execute a confidentiality agreement acceptable to the Supplier prior to such audit or inspection;

audits must be conducted during regular business hours, subject to the Supplier’s policies, and may not unreasonably interfere with the Supplier’s business activities;

the Customer must provide the Supplier with any audit reports generated in connection with any audit at no charge unless prohibited by applicable law. The Customer may use the audit reports only for the purposes of meeting its audit requirements under Data Protection Legislation and/or confirming compliance with the requirements of this clause . The audit reports shall be confidential; and

nothing in this clause shall require the Supplier to breach any duties of confidentiality owed to any of its customers, employees or third parties.

The Customer generally consents to the Supplier appointing sup-processors as third-party processors of Customer Personal Data. [The existing authorised sub-processors (if any) are set out in Part 1 of the Schedule.]

If the Customer gives specific or general written authorisation for the Supplier to use a sub-processor, the following shall apply:

the Supplier shall notify the Customer of any changes to sub-processors made under prior general written authorisation and shall allow the Customer a reasonable time to object to those changes;

the Supplier shall ensure that the processing of Customer Personal Data by any sub-processor is subject to terms substantially similar to, and no less restrictive than, the terms of clause ; and

as between the Supplier and the Customer, the Supplier shall remain fully liable to the Customer for any acts or omissions of a sub-processor.

The provisions of clause will survive termination or expiry of the Services.

Warranties and Indemnities

The Supplier undertakes, warrants and represents that it shall:

process the Customer Personal Data in accordance with the terms of the Data Protection Legislation and this Agreement;

ensure that the Customer Personal Data is kept secret and confidential; and

fully assist the Customer in ensuring compliance with the obligations under the Data Protection Legislation and within the timescales required by the Data Protection Legislation.

The Supplier hereby indemnifies, and keeps indemnified, the Customer fully on demand against all losses and/or expenses arising from any breach of the Supplier, or any employees, agents or sub-processors engaged by the Supplier, and/or as a result of any claim made or brought by an individual or other legal person in respect of any loss, damage or distress caused to them as a result of the Supplier’s unauthorised processing, unlawful processing, destruction or, and/or damage to, any Customer Personal Data processed by the Supplier and/or any employees, agents or sub-processors engaged by the Supplier.

Non-disclosure of information

Neither of the parties shall:-

disclose to any person, other than to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement; or

use or exploit for any purpose other than carrying out its obligations under this Agreement,

any of the trade secrets or confidential information or financial trading information relating to the other which that party may receive or obtain as a result of entering into this Agreement, and each party shall use their reasonable endeavours to prevent their employees and agents from so acting. This restriction shall continue to apply after termination of this Agreement without limit of time but shall cease to apply to information or knowledge which may properly come into the public domain through no fault of the party so restricted.

Termination

This Agreement shall terminate automatically upon termination or expiry of the Supplier’s obligations in relation to the Services.

The Customer shall be entitled to terminate this Agreement forthwith by notice in writing to the Supplier if:

the Supplier is in a material or persistent breach of this Agreement which, in the case of a breach capable of remedy, shall not have been remedied within twenty-one (21) days from the date of receipt by the Supplier of a notice from the Customer identifying the breach and requiring its remedy; or

the Supplier becomes insolvent, has a receiver, administrator, or administrative receiver appointed over the whole or any part of its assets, enters into any compound with creditors, or has an order made or resolution passed for it to be wound up (otherwise than in furtherance of a scheme for solvent amalgamation or reconstruction).

Consequences of Termination

On expiry or termination of this Agreement, the Supplier and any employee, agent or sub-processor engaged by the Supplier shall, at the choice of the Customer, either:

return all Customer Personal Data, including any data storage media supplied by the Customer, including all Customer Personal Data created for the performance of the Services, and the copies thereof to the Customer within any timeframe provided by the Customer and the Supplier warrants that it will guarantee the confidentiality of the Customer Personal Data transferred and will not in any way process the personal data transferred anymore; or

delete and/or destroy all the Customer Personal Data and certify to the Customer that it has done so within any timeframe provided by the Customer,

unless legislation imposed upon the Supplier prevents it from returning or destroying all or part of the Customer Personal Data. In that case, the Supplier warrants that it will guarantee the ongoing confidentiality of the Customer

Personal Data retained and will not actively process the Customer Personal Data transferred anymore other than for the purpose to enable it to comply with such legislation.

On expiry or termination of this Agreement, the Service Agreement shall expire or terminate simultaneously.

General

Neither of the parties shall assign or transfer or purport to assign or transfer any of their rights or obligations under this Agreement without the prior written consent of the other party.

The rights of either party shall not be prejudiced or restricted by any indulgence or forebearance extended to the other party and no waiver by either party in respect of any breach shall operate as a waiver in respect of any subsequent breach.

This Agreement shall not be varied or cancelled unless such variation or cancellation shall be expressly agreed in writing between the parties.

If any of the provisions of this Agreement is found by any court or other competent authority to be void or unenforceable, such provision shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect. Notwithstanding the foregoing, the parties shall thereupon negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the provision so found to be void or unenforceable.

All costs and legal fees and other expenses incurred by the parties in relation to this Agreement shall be borne by the party that incurred them.

None of the provisions of this Agreement shall be deemed to constitute a partnership between the parties and none of them shall have any authority to bind any other in any way.

Each party shall promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.

Notices

A notice shall be deemed to have been served as follows:

if personally delivered, at the time of delivery;

if posted, 48 hours after posting; and

if sent by email, at the time of transmission.

In proving such service it shall be sufficient to prove that personal delivery was made, or that the envelope containing such notice was properly addressed and delivered for posting by pre-paid registered or recorded delivery post, or that the email transmission was transmitted by email to the email address of the other party, as the case may be, using the relevant details specified in clause .

The details referred to in clause are:

[The Customer]

Address: [specify]

Email address: [specify]

For the attention of: [specify]

[The Supplier]

Address: [specify]

Email address: [specify]

For the attention of: [specify]

or such other address, email address or person as may be notified in writing from time to time by the relevant party to the other party for the purposes of this clause.

Counterparts

This Agreement may be executed in any number of counterparts and by each of the parties on separate counterparts, all as permitted by the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015.

If executed in counterparts:

this Agreement will not take effect until each of the counterparts had been delivered;

the date of delivery of this Agreement may be inserted on the first page of this Agreement in the blank provided for the delivery date.

Governing Law & Jurisdiction

This Agreement shall be governed by and be construed in accordance with Scots law.

The parties submit to the exclusive jurisdiction of the Scottish Courts in respect of any dispute that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes).

IN WITNESS WHEREOF these presents consisting of this and the 7 preceding pages together with the Schedule of two parts are executed as follows:-

SUBSCRIBED for and on behalf of [THE CUSTOMER]byaton 20in the presence of:- ………………………………..

Director

Witness ………………………………..

Full Name ………………………………..

Address ………………………………..

………………………………..

SUBSCRIBED for and on behalf of [THE SUPPLIER]byaton 20in the presence of:- ………………………………..

Director

Witness ………………………………..

Full Name ………………………………..

Address ………………………………..

………………………………..

SCHEDULE

This is the Schedule in two parts referred to in the foregoing data processing agreement between [THE CUSTOMER] and [THE SUPPLIER]

PART 1DATA PROCESSING INFORMATION

1 Subject matter Customer Personal Data is processed by the Supplier in connection with providing the Services requested by the Customer in accordance with the Service Agreement.

2 Duration Processing will continue for the duration of the provision of the Services.

3 Nature and Purpose of Processing

The nature and purpose of the processing will be:

[PLEASE SPECIFY]

4 Categories of Data Subjects

The categories of data subject whose Personal Data are processed for the purposes of the Services are:

[PLEASE SPECIFY]

5 Types of Personal Data

The types of Personal Data processed for the purposes of the Services are:

[PLEASE SPECIFY]

6 [Sub-processors] [The authorised sub-processors are:

[PLEASE SPECIFY]]

PART 2SERVICE AGREEMENT

[Either attach copy of the services agreement (if any) or outline key contractual terms.]