Service agreement
Our agreements explained
PARTIES
1. SAFER HOMES LIMITED incorporated and registered in England and Wales with company number 10035395 whose registered office is at The Lodge Kensington Village, Avonmore Road, London, England, W14 8TS ("SAFER HOMES"); and
2. To whom it may concern (the "Client").
WHEREAS
a. SAFER HOMES has developed and will provide Services.
b. The Client wishes to use SAFER HOMES' Services in its business operations.
c. SAFER HOMES has agreed to provide, and the Client has agreed to take and pay for the Services, subject to the terms and conditions of this Agreement.
IT IS HEREBY AGREED
1 Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
"Business Day"
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business
"Confidential Information"
all confidential information (however recorded or preserved) disclosed (or discovered in the course of providing Services) by a party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together, its Representatives) to the other party and that party's Representatives in connection with this Agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure including without limitation all commercially sensitive information regarding the business, affairs, Clients or potential Clients of the Client.
"Client Data"
any information that is provided by the Client to the SAFER HOMES as part of the Client's use of the Services, including any information derived from such information.
"Client Personal Data"
any Personal Data provided by the Client to SAFER HOMES as part of the Client’s use of the Services.
"Client Property"
any property contracted under either a letting or management agreement owned by the Client’s Landlord clients or such property that the Client has authority and/or permission from the property owner to instruct SAFER HOMES to provide the Services as set out in Schedule 2 and updated from time to time.
"Client-side Equipment"
any equipment located or to be located on a Client Site but controlled or to be controlled by SAFER HOMES as part of the Services.
"Data Controller"
has the meaning given to that term in the DP Laws.
"Data Processor"
has the meaning given to that term in the DP Laws.
"DP Laws"
all applicable laws and regulations having applicable jurisdiction and relating to data protection, use of electronic data and privacy matters, including the Data Protection Act 2018 (DPA), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended) (PECR), Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (repealing the DPA and its implementing Directive 95/46/EC) (GDPR), Regulation (EU) 2017/003 of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications (repealing PECR and its implementing legislation Directive 2002/58/EC) (once it becomes applicable) and any relevant analogous legislation or requirements in other jurisdictions; and Data Controller, Data Processor, Data Subject, Personal Data, process and processing have the same meanings as set out in the DPA and the GDPR.
"Dispute Resolution Procedure"
the procedure described in clause 24.
"Effective Date"
the date of this Agreement.
"Fees"
the fees payable to SAFER HOMES, as described in Schedule 1.
"Initial Term"
the period of 36 months from the Effective Date.
"Intellectual Property Rights"
patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including without limitation know-how, trade secrets and lists of SAFER HOMES’, properties, contractors and personnel) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, 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.
the individuals appointed by SAFER HOMES from time to time
"Services"
The property assessment and related services described in the Specification to be performed by SAFER HOMES in accordance with this Agreement.
"Specification"
The description or specification of the Services provided in writing by SAFER HOMES to the Client and as detailed in Schedule 3.
"Personal Data"
has the meaning given to that term in the DP Laws.
“Purchase Order”
the Client's written acceptance of SAFER HOMES’ quotation for Services.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.8 A reference to writing or written includes faxes and email.
1.9 References to clauses and schedules are to the clauses and schedules of this Agreement. References to paragraphs are to paragraphs of the relevant schedule.
1.10 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.11 If there is an inconsistency between provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
2 Basis of contract
2.1 The Purchase Order constitutes an offer by the Client to purchase Services in accordance with this Agreement.
2.2 The Purchase Order shall only be deemed to be accepted when SAFER HOMES issues written acceptance of the Purchase Order at which point a contract shall come into existence on the terms of this Agreement.
2.3 Any samples, drawings, descriptive matter or advertising issued by SAFER HOMES, and any descriptions or illustrations contained in SAFER HOMES’ catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the contract or this Agreement and do not have any contractual force.
2.4 This Agreement applies to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by SAFER HOMES shall not constitute an offer, and is only valid for a period of 28 Business Days from its date of issue.
3 Services provision
3.1 SAFER HOMES shall provide the Services as from the Effective Date until expiry or termination of this Agreement for any reason.
3.2 SAFER HOMES shall supply the Services to the Client in accordance with the Specification in all material respects.
3.3 SAFER HOMES shall use all reasonable endeavours to meet any performance dates specified in the quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.4 SAFER HOMES reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services and SAFER HOMES shall notify the Client in any such event.
4 Client data
4.1 The Client Data shall remain the property of the Client at all times. SAFER HOMES shall follow its archiving and security procedures for Client Data. SAFER HOMES’ archiving and security procedures shall confirm with good industry practices.
4.2 SAFER HOMES shall promptly notify the Client in writing within 12 hours of becoming aware of any actual or suspected loss, damage, unauthorised access to or unauthorised disclosure of the Client Data (a "Data Breach"). In the event of any Data Breach, (i) the terms of Schedule 4 Part 1 shall apply in respect of Client Personal Data; and (ii) SAFER HOMES shall use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest backup of such Client Data maintained by SAFER HOMES in accordance with the archiving procedure described in Schedule 4. SAFER HOMES shall not be responsible for any loss, destruction, alteration or unauthorised disclosure of Client Data caused by any third party (except (i) where SAFER HOMES’ organisational or technical security measures are inadequate; or (ii) those third parties subcontracted by SAFER HOMES to perform services related to Client Data maintenance and back-up).
4.3 Each party warrants that it shall comply with the DP Laws when performing the Services under this Agreement.
4.4 The Client shall be the Data Controller, and the parties hereby acknowledge that SAFER HOMES will be acting as Data Processor in respect of all data processing activities in relation to Client Personal Data that SAFER HOMES carries out under this Agreement.
4.5 SAFER HOMES undertakes to the Client that it shall comply with the Data Processor terms set out in Schedule 4.
5 Safer Homes’ obligations
5.1 SAFER HOMES warrants that the Services will be performed with all reasonable skill and care and in accordance with good industry practices.
5.2 If the Services do not conform with the warranty in clause 5.1, SAFER HOMES will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance.
6 Client's obligations
6.1 The Client shall:
a. ensure that the terms of the Purchase Order and any information it provides is complete and accurate;
b. co-operate with SAFER HOMES in all matters relating to the Services;
c. provide SAFER HOMES, its employees, agents, consultants and subcontractors, with access to the Client’s Property, premises, office accommodation and other facilities as reasonably required by SAFER HOMES;
d. provide SAFER HOMES with such information and materials as SAFER HOMES may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
e. obtain and maintain all necessary licences, permissions and consents which may be required for SAFER HOMES to perform the Services before the date on which the Services are to start.
6.2 If SAFER HOMES’ performance of any of its obligations under this Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation or provide relevant information or acquire the property owner’s consent (Client Default):
a. without limiting or affecting any other right or remedy available to it, SAFER HOMES shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays SAFER HOMES’ performance of any of its obligations;
b. SAFER HOMES shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from SAFER HOMES’ failure or delay to perform any of its obligations as set out in this clause 7.2; and
c. the Client shall indemnify SAFER HOMES on written demand for any costs or losses sustained or incurred by SAFER HOMES arising directly or indirectly from the Client Default.
7 Warranties
7.1 The Client warrants that:
a. it has the full permission, capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Client; and
b. it will comply with and use the Services in accordance with the terms of this Agreement and all applicable laws including but not limited to Health and Safety laws and DP laws.
7.2 SAFER HOMES warrants and represents that:
a. it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of SAFER HOMES;
b. so far as SAFER HOMES is aware, it will comply with all applicable laws in performing its obligations under this Agreement;
c. all personnel and sub-contractors used by SAFER HOMES in the performance of this agreement are in the reasonable opinion of SAFER HOMES adequately skilled and experienced for the activities they are required to perform;
d. SAFER HOMES shall not make any statement, orally or in writing, publicly or privately, or do any act or otherwise conduct itself in such a manner as will or may in the reasonable opinion of the Client disparage the Client, its clients or Clients, its or their business, products or services.
e. when delivering the Services Specification it has taken account of and effectively incorporated all elements of the Client's requirements for the Services as communicated by the Client to SAFER HOMES; and
f. it is able to provide all of the Services described in the Services Specification in accordance with all applicable descriptions.
7.3 SAFER HOMES acknowledges that the Client is entering into this agreement in reliance on the warranties and representations provided by SAFER HOMES in clause 7.2.
8 Charges and payment
8.1 The Client shall pay the Fees set out in Schedule 1 for the Services.
8.2 All amounts and Fees stated or referred to in this Agreement are exclusive of value added tax, which shall be added to SAFER HOMES’ invoice(s) at the appropriate rate.
8.3 SAFER HOMES shall invoice the Client monthly in arrears for all Services performed by SAFER HOMES in that month.
8.4 The Client shall pay each invoice submitted by SAFER HOMES:
a. within 30 days of the date of the invoice or in accordance with any credit terms agreed by SAFER HOMES and confirmed in writing to the Client; and
b. in full and in cleared funds to a bank account nominated in writing by SAFER HOMES, and time for payment of SAFER HOMES’ invoices shall be of the essence of this Agreement.
8.5 If the Client fails to make any payment due to SAFER HOMES under this Agreement by the due date for payment, then, without limiting SAFER HOMES’ remedies under clause 14, the Client shall pay interest on the overdue amount at the rate of 4% (four percent) per annum above Metrobank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
8.6 SAFER HOMES reserves the right to increase the Fees on an annual basis with effect from each anniversary of the Effective Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Effective Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index and Schedule 1 shall be deemed to be updated accordingly.
8.7 All amounts due under the Agreement 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).
9 Intellectual property rights
9.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by SAFER HOMES.
9.2 SAFER HOMES grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Agreement to use SAFER HOMES Intellectual Property Rights for the purpose of receiving and using the Services in its business.
9.3 The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 9.2.
9.4 The Client grants SAFER HOMES a fully paid-up, non-exclusive, royalty-free, non- transferable licence to copy and modify any materials provided by the Client to SAFER HOMES only for the term of the Agreement for the purpose of providing the Services to the Client.
10 Change control
10.1 If either party wishes to change the scope of the Services it shall submit details of the requested change to the other in writing.
10.2 If either party requests a change to the scope or execution of the Services, SAFER HOMES shall, within seven (7) Business Days, provide a written estimate to the Client of:
a. the likely time required to implement the change;
b. any variations to the Fees arising from the change;
c. the likely effect of the change on the Specification; and
d. any other impact of the change on the terms of this Agreement.
10.3 If SAFER HOMES requests a change to the scope of the Services, the Client shall not unreasonably withhold or delay consent to it.
10.4 If a party wishes the other to proceed with a change, the other party has no obligation to consent unless and until the parties have agreed in writing the necessary variations to its charges, the Specification and any other relevant terms of this Agreement to take account of the change.
11 Confidentiality
11.1 The provisions of this clause shall not apply to any Confidential Information that:
a. is or becomes generally freely available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
b. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
c. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
d. was known to the receiving party before the information was disclosed to it by the disclosing party;
e. the parties agree in writing is not confidential or may be disclosed; or
f. is developed by or for the receiving party independently of the information disclosed by the disclosing party.
11.2 Each party shall keep the other party's Confidential Information confidential and shall not:
a. use Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement (Permitted Purpose); or
b. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
11.4 SAFER HOMES acknowledges that the Client Data is the Confidential Information of the Client.
11.5 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
a. it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
b. at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.
11.6 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.6, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.7 A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
11.8 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this Agreement are granted to the other party, or to be implied from this Agreement.
11.9 The provisions of this clause 11 shall continue to apply after termination of this Agreement.
11.10 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12 Limitation of liability
12.1 This clause 12 sets out the entire financial liability of SAFER HOMES (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Client in respect of:
a. any breach of this Agreement;
b. any use made by the Client of the Services; and
c. any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
12.2 Except as expressly and specifically provided in this Agreement:
a. SAFER HOMES shall have no liability for any damage caused by errors or omissions in any information, instructions or Purchase Orders provided to SAFER HOMES by the Client in connection with the Services, or any actions taken by SAFER HOMES at the Client's direction; and
b. all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this Agreement.
12.3 Nothing in this Agreement excludes or limits the liability of either party for:
a. death or personal injury caused by the other's negligence;
b. fraud;
c. fraudulent misrepresentation; or
d. any other liability which cannot lawfully be excluded or limited.
12.4 Subject to clause 12.3:
a. SAFER HOMES shall not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits or anticipated savings, loss of revenue or income, loss of use, loss of business, contracts or opportunities, loss of or damage to goodwill, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising or losses incurred by the Client arising out of or in connection with any third party claim against the Client which has been caused by the act or omission of the SAFER HOMES and for these purposes, third party claims shall include but not be limited to demands, fines, penalties, actions, investigations or proceedings, including but not limited to those made or commenced by subcontractors, the SAFER HOMES’ personnel, regulators and customers of the Client; and
b. SAFER HOMES’ total aggregate liability to the Client in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to a sum equal to the Fees paid for the Services during the twelve (12) months preceding the date on which the claim arose.
12.5 The caps on the SAFER HOMES' liabilities shall be reduced by the amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
12.6 Unless the Client notifies SAFER HOMES that it intends to make a claim in respect of an event within the notice period, SAFER HOMES shall have no liability for that event. The notice period for an event shall start on the day on which the Client wishing to make a claim became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire 3 months from that date. The notice must be in writing and identify the event and the grounds for the claim in reasonable detail.
13 Insurance
13.1 SAFER HOMES shall at all times during the term of this Agreement obtain and maintain insurance with a responsible company in such amounts and against such risks as are customarily carried by business entities engaged in similar businesses similarly situated, and will furnish the Company within fifteen (15) days after receipt of the Client’s request the certificates evidencing such policies. Without limitation to the foregoing, SAFER HOMES shall maintain insurance coverage for itself and its Representatives that encompasses employers’ liability insurance or equivalent and general commercial liability insurance covering SAFER HOMES’ obligations under this agreement.
14 Term and termination
14.1 This Agreement shall commence on the Effective Date. Unless terminated earlier in accordance with this clause 14, this Agreement shall continue in force for the 36 months and shall automatically extend for successive 24-month periods (Extended Term) at the end of the Initial Term and at the end of each Extended Term a party may give written notice to the other party, not later than 90 days before the end of the Initial Term or the relevant Extended Term, to terminate this Agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
14.2 Without prejudice to any rights that the parties have accrued under this Agreement or any of their respective remedies, obligations or liabilities either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
a. the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
b. the other party commits a material breach of any material term of this Agreement (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
c. the other party commits a series of breaches of this agreement which are each individually not material but which occur sufficiently often within a sufficiently short period to have, in aggregate, the effect of being a material breach.
d. the other party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
e. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (in the case of a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
f. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
g. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
h. the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
i. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
j. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
k. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.d to clause 14.j (inclusive);
l. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
m. there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
14.3 Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
14.4 Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
14.5 On termination of this Agreement for any reason:
a. the Client shall immediately pay to SAFER HOMES all of SAFER HOMES’ outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, SAFER HOMES shall submit an invoice, which shall be payable by the Client immediately on receipt;
b. SAFER HOMES shall immediately cease provision of the Services;
c. the Client shall return all of SAFER HOMES’ equipment, property, materials and other items (and all copies of them) which have not been fully paid for. If the Client fails to do so, then SAFER HOMES may enter the Client’s Property and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Agreement;
d. each party shall return or destroy the Confidential Information belonging to the other party.
14.6 If a party is required by any law, regulation, or government or regulatory body (Regulatory Requirement) to retain any documents or materials which it would otherwise be obliged to return or destroy under clause 14.5(d) it shall notify the other party in writing of such retention, giving details of the documents or materials that it must retain. Clause 11 shall continue to apply to any such retained documents and materials for as long as any such requirement continues in force, subject to any disclosure mandated by any Regulatory Requirement.
15 Force majeure
15.1 Neither party shall have any liability to the other under this Agreement if it is prevented from, or delayed in, performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control including national strikes, lock-outs or other industrial disputes, act of God, war, riot, civil commotion, compliance with any law or regulation, fire, flood or storm (each a Force Majeure Event), provided that:
a. the other party is notified of such an event and its expected duration; and
b. it uses all reasonable endeavours to mitigate, overcome or minimise the effects of the Force Majeure Event concerned, and that if the period of delay or non-performance continues for 14 days or more, the party not affected may terminate this Agreement by giving 14 days' written notice to the other party.
15.2 If the Force Majeure Event results in the suspension of all or any part of the Services, then the Client shall not be obliged to pay the relevant Fees until such time as the Force Majeure Event shall have ceased to have effect and the Services recommence in accordance with this agreement.
16 Waiver
16.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
17 Severance
17.1 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.
17.2 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.
17.3 In the event any provision of this contract is invalid, illegal or unenforceable, and the provision is, in the opinion of SAFER HOMES, so fundamental to the purpose of this contract that its removal renders the contract materially changed, the parties shall immediately enter into negotiations in good faith to remedy the provision.
18 Entire agreement and amendment
18.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.
18.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
18.3 Each party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract.
18.4 Nothing in this clause shall limit or exclude any liability for fraud.
18.5 No alteration to or variation of this Agreement shall take effect unless and until the same is in writing and signed on behalf of each of the parties by a duly authorised representative.
19 Assignment
19.1 The Client shall not, without the prior written consent of SAFER HOMES, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
20 No partnership or agency
20.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or
20.2 joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
20.3 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
21 Third-party rights
21.1 No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
22 Rights and remedies
22.1 Except as provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any provided by law.
23 Notices
23.1 Any notice required to be given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first class post or other next working day delivery service at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.
23.2 Any notice shall be deemed to have been received if delivered by hand, on signature of a delivery receipt, or if sent by fax, at 9.30 am on the next Business Day after transmission, or otherwise at 9.30 am on the second Business Day after posting.
23.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include email.
24 Dispute resolution
24.1 If a dispute arises under or in connection with this Agreement (Dispute), including any Dispute arising out of any amount due to a party hereto, then before bringing any suit, action or proceeding in connection with such Dispute, a party must first give written notice of the Dispute to the other party describing the Dispute and requesting that it is resolved under this dispute resolution process (Dispute Notice).
24.2 If the parties are unable to resolve the Dispute within 30 days of delivery of the Dispute Notice, then each party will promptly (but no later than five Business Days thereafter):
a. appoint a designated representative who has sufficient authority to settle the Dispute and who is at a higher management level than the person with direct responsibility for the administration of this Agreement (Designated Representative); and
b. notify the other party in writing of the name and contact information of such Designated Representative.
24.3 The Designated Representatives will meet as often as they deem necessary in their reasonable judgment to discuss the Dispute and negotiate in good faith to resolve it. The Designated Representatives will mutually determine the format for discussions and negotiations, provided that all reasonable requests for relevant information relating to the Dispute made by one party to the other party will be honoured.
24.4 If the parties are unable to resolve the Dispute within 30 days after the appointment of both Designated Representatives, then either party may proceed with any other available remedy.
24.5 Notwithstanding the foregoing:
a. either party may seek interim or other equitable relief necessary (including an injunction) to prevent irreparable harm; and
b. the Client may withhold payment of any invoice which is the subject of a Dispute Notice during the dispute resolution procedure but SAFER HOMES may not suspend performance of the Services.
25 Anti-bribery and anti-slavery
25.1 Both parties shall:
a. comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption and anti-modern slavery, including the Bribery Act 2010 (Relevant Requirements);
b. not engage in any activity, practice or conduct that 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;
c. comply with the other parties policies on ethics, anti-bribery, anti-corruption and anti- modern slavery as a party may provide to the other from time to time (Relevant Policies);
d. have and maintain in place throughout the term of this agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and the Relevant Policies, and shall enforce them where appropriate; and
e. promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received by a party in connection with the performance of this agreement.
25.2 SAFER HOMES shall ensure that any person associated with SAFER HOMES or who is otherwise performing services in connection with this agreement does so only on the basis of a written contract that imposes on and secures from such person terms equivalent to those imposed on SAFER HOMES in this clause 25. (Relevant Terms) SAFER HOMES shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Client for any breach by such persons of any of the Relevant Terms.
25.3 Breach of this clause 25 shall be deemed a material breach of this Agreement.
26 Governing law and jurisdiction
26.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1
Product and service specification
The Company provides onsite and online services including annual inspection, periodic regulated testing and risk assessment of the Property in accordance with the Landlord and Tenant Act 1985 and subsequent Homes (Fitness for Human Habitation) Act 2018.
TIARO product and service
The complete TIARO product and service specification consists of the following onsite and online services. Testing services are included within the complete TIARO package and are carried out periodically when required by law and instructed by the “Client”.
If testing services have not been pre-approved by the “Client” on-demand safety testing may be instructed by the “Client”.
Testing
Gas, Electrical installation, PAT, Energy, smoke/heat & CO detector test
Inspection
Condition, fixtures, fittings, furniture & contents
Assessment
Risks to tenants’ health and well-being
Recording
Results for landlords and/or agents to read and act upon
Online
Storage of certificates and reports
Specification disclaimer
Landlord (or owner) responsibilities:
The Landlord (or owner) is responsible for the provision, state and proper working order of the following, in accordance with the Homes (Fitness for Human Habitation) Act 2018.
1. The exterior and structural elements of the dwelling; and
2. The installations within and associated with the dwelling for:
a. The supply and use of water, gas and electricity
b. Personal hygiene, sanitation and drainage
c. Food safety
d. Ventilation
e. Space and water heating
Inspection and report
Inspections and their report outcomes are based on a visual inspection of the dwelling interior, common parts and surrounding curtilage of the “Client Property”. The inspection report consists of general observations made during the inspection with its primary concern being the decorative condition and care of the dwelling, including its common parts and garden, furniture, fixtures and fittings, heating and lighting systems.
On-site testing
Gas and Electrical Installation safety testing services are carried out by Safer Homes approved Gas Safe and or NIC/EIC registered engineers. Replacement Smoke and CO Detectors will be installed or replaced at the time of our inspection if a fault has been identified. Smoke and CO detector replacement units supplied are battery-powered and meet BSI approved standards.
Risk assessment and report
The “Risk Assessment” adopts principles from the Homes (Fitness for Human Habitation) Act 2018 and applies the formula from the Housing Health and Safety Rating System (HHSRS) in order to generate the individual risk and overall “Client Property” health and safety rating score. The individual risk and overall “Client Property” health and safety rating score is derived from any deficiencies identified across the possible 262 potential sub-elements within the overall 29 potential hazards assessed in accordance with the Homes Act 2018. The “Risk Assessment” report displays a total of 24 potential hazards having combined related hazards including (falls associated with baths, level surfaces, stairs and between levels), (fire safety, flames and hot surfaces) and (excess cold and/or excess heat).
If one of the 24 potential hazards has no deficiency identified, the whole hazard is given a rating band of A (Satisfactory). If a sub-element of a potential hazard has been identified, a hazard score band is generated only for the combined deficiencies identified within the relevant hazard.
However, there are four sub-elements that are required to be evidenced in the report. These sub-elements include a carbon monoxide detector test, smoke/heat detector test, hot water temperature test and cold water temperature test results. These scores, even when given a rating of A, contribute to the hazard score and “Client Property” health and safety rating band. The overall “Client Property” health and safety rating band is derived by averaging all of the 24 individual hazard band results for each of the 24 risks.
“Risk Assessment” reports are provided as a means for determining the existence of any obvious hazard or risk that may cause harm to the health and safety of an actual or potential occupier,
or visitor that can arise from a number of possible defects and deficiencies outlined in the Homes Act 2018.
For the avoidance of doubt, the “Risk Assessment” is a visual inspection, and does not cover any latent or hidden defects within the property or the structure or fabric of the property which can only be undertaken by a qualified Surveyor. In addition, it may not be possible to complete a full assessment where to do so would require moving furniture, furnishings and fittings.
The “Risk Assessment” carried out by the “Company” on the instruction of a landlord, owner or third party will be carried out without detailed information on materials used in the original construction and in any subsequent structural alterations to the property.
Once an inspection is complete, the “Company” will provide a report. This report will draw attention to those hazards or risks identified during the course of our assessment.
Other than to replace or install new battery-powered smoke/heat and/or carbon monoxide detectors where required, the “Company” excludes all responsibility for any remedial works to any identified hazards during the course of our assessment or thereafter unless specifically agreed in writing by a Director of the “Company”.
Where an assessment involves a dwelling in a multi-occupied building (a building with more than one independent dwelling e.g. a block of flats) the “Company” will consider the variance of risks to an individual dwelling subject to the location of the individual dwelling being assessed, however, the “Company” does not assess multi-occupied buildings as a whole and accepts no responsibility for doing so, unless specifically agreed in writing by a Director of the company.
24 potential hazards
1. Asbestos and MMF
2. Biocides
3. Carbon monoxide and fuel combustion products
4. Collision and entrapment
5. Crowding and space
6. Damp and mould growth
7. Domestic hygiene, pests and refuse
8. Electrical hazards
9. Excess cold and/or excess heat
10. Explosions
11. Falls (baths, level surfaces, stairs, between levels)
12. Fire safety, flames and hot surfaces
13. Food safety and hygiene
14. Lead
15. Lighting
16. Noise
17. Personal hygiene, sanitation and drainage
18. Position and operability of amenities
19. Radiation and Radon gas
20. Security and entry by intruders
21. Structural collapse and falling elements
22. Uncombusted fuel gas
23. Volatile organic compounds
24. Water hygiene and supply
Schedule 2
Not applicable
Schedule 3
Not applicable
Schedule 4, Part 1 – Data processor terms
1 Definitions
1.1 In this Schedule, the following additional definitions apply:
"Client's Group" means Client and any subsidiary or holding company of Client and any subsidiary of a holding company of that company;
"Complaint" means a complaint or request relating to either party’s obligations under DP Laws relevant to this Agreement, including any compensation claim from a Data Subject or any notice, investigation or other action from a Supervisory Authority;
"Data Subject Request" means a request made by a Data Subject to exercise any rights of Data Subjects under DP Laws;
"International Organisation" means an organisation and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries;
"International Recipient" has the meaning given to that term in paragraph 7.1;
"Personal Data" has the meaning given to that term in DP Laws;
"Personal Data Breach" means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Protected Data;
"processing" has the meanings given to that term in DP Laws (and related terms such as
"process" have corresponding meanings);
"Protected Data" means Personal Data received from or on behalf of Client, or otherwise obtained in connection with the performance of SAFER HOMES’ obligations;
"Supervisory Authority" means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering DP Laws;
1.2 This Schedule shall survive termination (for any reason) or expiry of this Agreement (or of any of the Services).
2 Data processor and data controller
2.1 The Parties agree that, for the Protected Data, Client shall be the Data Controller and SAFER HOMES shall be the Data Processor.
2.2 SAFER HOMES shall comply with all DP Laws in connection with the processing of Protected Data, the Services and the exercise and performance of its respective rights and obligations under this Agreement.
2.3 Client shall comply with all DP Laws in respect of the performance of its obligations under this Agreement.
3 Instructions and details of processing
3.1 Insofar as SAFER HOMES processes Protected Data on behalf of Client, SAFER HOMES shall (and shall ensure each person acting under its authority shall) process the Protected Data only on and in accordance with Client’s documented instructions as set out in Parts 1 and 2 of this Schedule, and as updated from time to time by the written agreement of the Parties; and
3.2 The processing to be carried out by SAFER HOMES under this Agreement shall comprise the processing set out in Part 2 of this Schedule, and such other processing as agreed by the Parties in writing from time to time.
4 Technical and organisational measures
4.1 SAFER HOMES shall implement and maintain, at its cost and expense, appropriate technical and organisational measures in relation to the processing of Protected Data by SAFER HOMES:
a. such that the processing will meet the requirements of DP Laws and ensure the protection of the rights of Data Subjects;
b. so as to ensure a level of security in respect of Protected Data processed by it is appropriate to the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed; and
c. without prejudice to paragraph 6.1, insofar as is possible, to assist Client in the fulfilment of Client’s obligations to respond to Data Subject Requests relating to Protected Data.
4.2 Without prejudice to paragraph 4.1.2, SAFER HOMES shall, in respect of the Protected Data processed by it under this Agreement comply with the requirements regarding security of processing set out in the DP Laws (as applicable to Data Processors) and in this Agreement.
5 Using staff and other processors
5.1 Save for the third parties listed in the Specification, SAFER HOMES shall not engage any other third-party Data Processor for carrying out any processing activities in respect of the Protected Data without Client’s prior written consent. If Client consents to the engagement of a third-party Data Processor under this paragraph 5.1, the Provider shall ensure that, prior to any processing of Protected Data by such third-party Data Processor, it enter into with such third-party Data Processor a written agreement incorporating terms which are substantially the same as those set out in this Schedule and which comply with the provisions of Article 28(3) of the GDPR.
5.2 SAFER HOMES shall ensure that all SAFER HOMES’ personnel (including all sub-contractors) processing Protected Data are subject to a binding written contractual obligation with SAFER HOMES to keep the Protected Data confidential.
5.3 Without prejudice to any other provision of this Schedule, SAFER HOMES shall ensure that SAFER HOMES personnel and sub-contractors processing Protected Data are reliable and have received adequate training on compliance with this Schedule and the DP Laws applicable to the processing.
6 Assistance with compliance and data rights
6.1 SAFER HOMES shall (at no cost to Client):
a. promptly record and then refer all Data Subject Requests it receives to Client within 72 hours of receipt of the request;
b. provide such information and cooperation and take such action as Client requests in relation to a Data Subject Request, within the timescales required by Client; and not respond to any Data Subject Request or Complaint without Client’s prior written approval.
6.2 Without prejudice to paragraph 3.1, SAFER HOMES shall, at its cost and expense, provide such information, co-operation and other assistance as Client requires (taking into account the nature of processing and the information available to SAFER HOMES) to Client in ensuring compliance with Client’s obligations under DP Laws, including with respect to:
a. security of processing;
b. data protection impact assessments (as such term is defined in DP Laws);
c. prior consultation with a Supervisory Authority regarding high risk processing; and
d. any remedial action and/or notifications to be taken in response to any Personal Data Breach and/or Complaint, including (subject in each case to Client's prior written authorisation) regarding any notification of the Personal Data Breach to Supervisory Authorities and/or communication to any affected Data Subjects.
7 International data transfers
7.1 SAFER HOMES shall not transfer any Protected Data to any country outside the European Economic Area or to an International Organisation ("International Recipient") without Client’s prior written consent and compliance with the following conditions:
a. Client or SAFER HOMES has provided appropriate safeguards in relation to the transfer;
b. the Data Subject has enforceable rights and effective legal remedies;
c. SAFER HOMES complies with its obligations under the DP Laws by providing an adequate level of protection to any Protected Data that is transferred; and
d. SAFER HOMES complies with reasonable instructions notified to it in advance by Client with respect to the processing of the Protected Data.
8 Records, information and audit
8.1 SAFER HOMES shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of Client, containing such information as Client may reasonably require, including:
a. the name and contact details of the Data Processor(s) and of each Data Controller on behalf of which the Data Processor is acting, and of SAFER HOMES’ representative and data protection officer (if any);
b. the categories of processing carried out on behalf of each Data Controller;
c. where applicable, details of transfers of Protected Data outside the European Economic Area or to an International Recipient; and
d. a general description of the technical and organisational security measures referred to in paragraph 4.1.
8.2 SAFER HOMES shall make available to Client on request in a timely manner (and in any event within 72 hours):
a. copies of the records referred to in paragraph 8.1 to the extent such records relate to processing undertaken on behalf of Client; and
b. such other information as Client reasonably requires to demonstrate SAFER HOMES’ compliance with its obligations under DP Laws and this Schedule.
8.3 SAFER HOMES shall at no cost to Client:
a. allow for and contribute to audits, including inspections, conducted by Client or another auditor mandated by Client for the purpose of demonstrating compliance by SAFER HOMES with its obligations under the DP Laws and under this Schedule; and
b. provide (and procure) reasonable access for Client or such other auditor (where practicable, during normal business hours) to:
c. the facilities, equipment, premises and sites on which Protected Data and/or the records referred to in paragraph 8.1 are held, and to any other equipment or facilities used in the provision of the Services (in each case whether or not owned or controlled by SAFER HOMES); and
d. to SAFER HOMES’ personnel,
e. provided that Client gives SAFER HOMES reasonable prior notice of such audit and/or inspection.
8.4 If any audit or inspection reveals a material non-compliance by SAFER HOMES with its obligations under the DP Laws or a breach by SAFER HOMES of any of the provisions of this Schedule, SAFER HOMES shall pay the reasonable costs of Client or its mandated auditors, of the audit or inspection.
8.5 SAFER HOMES shall promptly resolve, at its own cost and expense, all data protection and security issues discovered by Client and reported to SAFER HOMES that reveal a breach or potential breach by SAFER HOMES of its obligations under this Schedule.
8.6 If SAFER HOMES is in breach of its obligations under this Schedule, Client may suspend the transfer of Protected Data to SAFER HOMES until the breach is remedied.
8.7 Client shall be entitled to share any notification, details, records or information provided by or on behalf of SAFER HOMES under this Schedule (including under paragraphs 8 or 9) with any other member of Client's Group, its professional advisors and/or the Supervisory Authority.
9 Breach notification
9.1 In respect of any Personal Data Breach, SAFER HOMES shall:
a. notify Client of the Personal Data Breach without undue delay (but in no event later than 12 hours after becoming aware of the Personal Data Breach); and
b. provide Client without undue delay (wherever possible, no later than 24 hours after becoming aware of the Personal Data Breach) with such details as Client reasonably requires regarding:
i. the nature of the Personal Data Breach, including the categories and approximate numbers of Data Subjects and Protected Data records concerned;
ii. any investigations into such Personal Data Breach;
iii. the likely consequences of the Personal Data Breach; and
iv. any measures taken, or that SAFER HOMES recommends, to address the Personal Data Breach, including to mitigate its possible adverse effects,
v. provided that, (without prejudice to the above obligations) if SAFER HOMES cannot provide all these details within such timeframes, it shall (before the end of this timeframe) provide Client with reasons for the delay and when it expects to be able to provide the relevant details (which may be phased), and give Client regular updates on these matters.
9.2 SAFER HOMES shall promptly (and in any event within 48 hours) inform Client if it receives a Complaint and provide Client with full details of such Complaint.
10 Deletion or return of protected data and copies
10.1 SAFER HOMES shall without delay, at Client’s written request, either securely delete or securely return all the Protected Data to Client in such form as Client reasonably requests after the earlier of:
a. the end of the provision of the relevant Services related to processing; or
b. once processing by SAFER HOMES of any Protected Data is no longer required for the purpose of SAFER HOMES’ performance of its relevant obligations under this Agreement,
c. and securely delete existing copies (unless storage of any data is required by applicable law and, if so, SAFER HOMES shall inform Client of any such requirement).
Schedule 4, Part 2 – Data processor details
1 Subject matter of the processing
1.1 The subject matter of the processing of Protected Data is the performance of the Services under each SOW and this Agreement.
2 Duration of the processing
2.1 The duration of the processing of Protected Data undertaken by SAFER HOMES under this Agreement shall correspond to the term of this Agreement.
3 Nature and purpose of the processing
3.1 The nature and purpose of the processing of Protected Data are set out in this Agreement.
4 Type of personal data
4.1 Names
4.2 Contact details
5 Categories of data subjects
5.1 Client employees
6 Processing instructions
6.1 The instructions relating to the processing of Protected Data are set out in this Agreement or as otherwise communicated to SAFER HOMES by the Client in writing.