Contents
- DEFINITIONS AND INTERPRETATION
- SERVICES
- FEES AND PAYMENT
- CORPORATE POWER OF ATTORNEY
- DECISION MAKING BY DIRECTORS
- APPOINTMENT AND TERMINATION OF APPOINTMENTS OF DIRECTORS
- MEETINGS OF DIRECTORS
- MATTERS REQUIRING PARENT CONSENT
- THE SUBSIDIARY’S COVENANTS
- TERM OF TERMINATION
- CONSEQUENCES OF TERMINATION
- CONFIDENTIALITY
- DATA PROTECTION
- CONFLICT WITH ARTICLES
- ENTIRE AGREEMENT
- NOTICES
- INTELLECTUAL PROPERTY RIGHTS
- VARIATION
- ASSIGNMENT AND SUBCONTRACTING
- SET OFF
- NO PARTNERSHIP OR AGENCY
- SEVERANCE
- WAIVER
- THIRD PARTY RIGHTS
- GOVERNING LAW
- JURISDICTION
SCHEDULE 1 – SERVICES
SCHEDULE 2 – RESTRICTED MATTERS
SCHEDULE 3 – THE SUBSIDIARY’S COVENANTS
SCHEDULE 4 – DATA PROTECTION
THIS AGREEMENT is made on 2021 BETWEEN:
- UNIVERSITY OF GLOUCESTERSHIRE, a private limited company by guarantee without share capital, incorporated in England and Wales under number 06023243 whose registered office is at Fullwood House, University Of Gloucestershire, The Park, Cheltenham, England, GL50 2RH (“Parent“); and
- UNIVERSITY OF GLOUCESTERSHIRE PROFESSIONAL SERVICES LIMITED a company incorporated in England and Wales under number 13363828 whose registered office is at The University Of Gloucestershire, Fullwood House, The Park, Cheltenham, Gloucestershire, United Kingdom, GL50 2RH (“Subsidiary”) (each of the Parent and the Subsidiary being a “party” and together the Parent and the Subsidiary are the “parties“).
BACKGROUND:
A. The Subsidiary is a wholly-owned subsidiary of the Parent.
B. The business of the Subsidiary is the employment of staff for the Parent.
C.The parties have agreed that the Parent shall supply services to the Subsidiary on the terms set out in this Agreement and that the Subsidiary shall be governed in accordance with the terms of this Agreement.
IT IS AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 In this agreement:
“Agreement”
this Agreement including its schedules, as the same may be amended or varied from time to time in accordance with clause 18
“Articles”
the articles of association of the Subsidiary as amended from time to time
“Board”
the board of Directors of the Subsidiary from time to time
“Business Day”
a day other than a Saturday, Sunday or bank or public holiday in England
“Confidential Information”
any and all information, data and material of a technical or business nature or relating in any way to the business, products, services and personnel of either party which the other party may receive or obtain in connection with the operation of this Agreement or otherwise and which is expressly identified as confidential or which ought reasonably to be regarded as confidential
“Control”
the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company
“Directors”
the directors of the Subsidiary from time to time
“Effective Date”
1 August 2021
“Intellectual Property Rights”
all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, processes, 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, topography rights, moral rights, know-how and Confidential Information, and all other intellectual property rights and similar or equivalent rights or forms of protection anywhere in the world which currently exist or are recognised in the future, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights; and in each case all goodwill in or attaching to same
“Parent Consent”
the approval of a transaction or matter in accordance with the terms of Clause 8.3
“Parent Services”
the services provided by the Parent to the Subsidiary and listed in Schedule 1
“Payroll Services”
the services to be provided by the Parent to the Subsidiary, as set out in paragraph 2 of Part 1 of Schedule 1
“Services”
the Parent Services and/or the Subsidiary Services, in each case as set out in Schedule 1
“Subsidiary Services”
the services provided by the Subsidiary to the Parent and listed in Schedule 1
“Term”
the term of this Agreement and the provision of the Services, starting on the Effective Date and ending on its date of termination as described in clause 10
1.2 In this agreement
1.2.1 a reference to this Agreement includes its schedules, appendices and annexes (if any);
1.2.2 a reference to a party includes that party’s personal representatives, successors and
permitted assigns;
1.2.3 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in
each case whether or not having separate legal personality) and that person’s personal
representatives, successors and permitted assigns;
1.2.4 a reference to a gender includes each other gender;
1.2.5 words in the singular include the plural and vice versa;
1.2.6 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.7 the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and
1.2.8 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under this Agreement.
2. SERVICES
Parent Services
2.1 During the term, the parent agrees to supply, and the subsidiary agrees to receive, the parent services on the terms set out in this agreement
2.2 The parent shall prove the parent services:
2.2.1 in accordance with all applicable laws and regulations;
2.2.2 in accordance with any reasonable instructions given by the Subsidiary from time to time;
and
2.2.3 in accordance with any timescales agreed by the parties from time to time.
Subsidiary Services
2.3 During the Term, the Subsidiary agrees to supply, and the Parent agrees to receive, the Subsidiary Services on the terms set out in this Agreement.
2.4 The Subsidiary shall provide the Subsidiary Services:
2.4.1 in accordance with all applicable laws and regulations;
2.4.2 in accordance with any reasonable instructions given by the Parent from time to time; and
2.4.3 in accordance with any timescales agreed by the parties from time to time.
General
2.5 Each party hereby agrees to provide the other with all information and assistance which the other party may reasonably require to provide the Services in accordance with this Agreement
2.6 At the request of either party during the Term, the parties shall review the Services being provided under this Agreement. As part of such review, the parties shall consider Parents provision of the Parent Services, the Subsidiary’s provision of the Subsidiary Services and whether there is a need to make any change to the Services.
3. FEES AND PAYMENT
3.1 There shall be no costs payable by the Subsidiary for the Parent’s provision of the Parent Services.
3.2 Subject always to clause 3.3, in consideration of the Subsidiary’s provision of the Subsidiary Services, the Parent will reimburse the Subsidiary for the costs incurred by the Subsidiary (plus any mark up to those costs agreed between the parties) in its provision of the Subsidiary Services, in arrears subject to the delivery of an itemised invoice by the Subsidiary to the Parent.
3.3 The costs incurred by the Subsidiary in the provision of the Payroll Services shall not be paid in arrears and such costs shall be paid within two Business Days of receipt of the Payroll Invoice in accordance with paragraph 2 of Part 1 of Schedule 1.
3.4 The parties shall pay invoices properly rendered in accordance with this Agreement within two Business Days of the date of the invoice and such payment shall be made by BACS transfer.
4. CORPORATE POWER OF ATTORNEY
4.1 Subject to Clause 4.3, and with effect from the Effective Date, the Subsidiary hereby appoints the Parent’s company secretary (as may be appointed and replaced from time to time) to be the Subsidiary’s true and lawful attorney with full power, authority and legal right in the name and on behalf of the Subsidiary to negotiate, amend, execute, deliver, seal and sign any and all contracts and agreements on behalf of the Subsidiary and to give effect to the benefit of Clause 17.
4.2 The Subsidiary undertakes to ratify and confirm whatever the Parent (or its representative) shall lawfully do, purport to do or cause to be done by virtue of the powers of attorney set out in Clause 4.1 and to indemnify and hold harmless the Parent, its representative, and their successors against all actions, demands, proceedings, claims, costs, expenses, obligations, liabilities and losses of any description arising from the exercise or the purported exercise in good faith of any of the powers granted to the Parent pursuant to Clause 4.1.
4.3 The parties shall review the appropriateness of the powers of attorney set out in Clause 4.1 and the Subsidiary may, acting in accordance with Clause 5, revoke the powers of attorney set out in Clause 4.1 upon written notice to the Parent.
5. DECISION MAKING BY DIRECTORS
5.1 Subject to Clause 8.1, the management of the Subsidiary shall be vested in the Board at all times subject to the terms of this Agreement. The Board shall be the Subsidiary’s governing body with responsibility for the management of the Subsidiary and the conduct of all the Subsidiary’s affairs.
5.2 Questions arising at any physical Board meeting shall be determined by majority decision and in relation to all other decisions by the Board by unanimous majority.
5.3 The quorum necessary for any Board meeting must never be less than two Directors.
5.4 The parties agree and acknowledge that the Board shall be entitled to disclose to the Parent such information concerning the Subsidiary as they deem fit.
6. APPOINTMENT AND TERMINATION OF APPOINTMENTS OF DIRECTORS
Subject to Parent Consent, the Board may appoint persons to act as Directors of the Subsidiary and may remove any Director.
7. MEETINGS OF DIRECTORS
7.1 Unless otherwise agreed by the Parent: –
7.1.1 the Subsidiary will provide all Directors with reasonable advance notice of each meeting of the Board (such notice to be not less than seven days’ prior notice unless otherwise agreed by the Directors); and
7.1.2 not less than two days prior to the proposed meeting an agenda of the business to be transacted at such meeting together with all Board papers circulated in advance of the meeting shall be provided to the Directors.
7.2 The Parent shall be entitled to send observers (acting on behalf of the Parent) to any meeting of the Board.
7.3 The person acting as secretary for each meeting of the Board will prepare a record of that meeting in the form of minutes and a summary of any actions required as a result of the decisions made at the meeting. The Board shall circulate the minutes and summary of actions to each of the Directors and the Parent within 14 days of any meeting of the Board.
8. PARENT CONSENT
8.1 The Subsidiary agrees that, save with prior Parent Consent, it shall not effect or propose any of the
matters referred to in Schedule 2 (Parent Consent Matters).
8.2 Notwithstanding any other provision contained in this Agreement the Subsidiary shall not be bound by any provision of this Agreement to the extent that it would constitute an unlawful fetter on any statutory power of the Subsidiary, but any such provision shall remain valid and binding as regards all other parties to which it is expressed to apply.
8.3 Where this Agreement requires Parent Consent in relation to a matter, such consent shall be deemed given if given by the Parent’s company secretary from time to time.
8.4 If the same proposed transaction or matter requires Parent Consent under more than one provision of this Agreement a single Parent Consent to that proposed transaction or matter shall be deemed to cover all required Parent Consents.
9. THE SUBSIDIARY’S COVENANTS
The Subsidiary covenants with the Parent in the terms of Schedule 3.
10. TERM AND TERMINATION
10.1 This Agreement shall come into effect on the Effective Date.
10.2 Either party may terminate the Services (or any part thereof) by giving the other party no less than three calendar months’ notice in writing. For the avoidance of doubt, the termination of the Services (or any part thereof) shall not effect the other provisions of this Agreement which shall remain in full force and effect.
10.3 Either party may terminate this Agreement immediately by notice in writing if the other party:-
10.3.1 goes into compulsory creditors voluntary or members voluntary liquidation or has an administrator appointed;
10.3.2 becomes insolvent or makes a composition or arrangement with its creditors;
10.3.3 has an administrative receiver or a receiver appointed over all or any part of its assets or undertaking;
10.3.4 at any time by notice in writing if, in relation to the other party, anything analogous to any of the events in Clause 10.3.1 – 10.3.3 (inclusive) shall occur under the law of any jurisdiction to which that party is subject; or
10.3.5 undergoes a change of Control.
11. CONSEQUENCES OF TERMINATION
11.1 Termination of this Agreement for any reason shall be without prejudice to any right or remedy of
either party which may have accrued prior to such termination.
11.2 Notwithstanding termination of this Agreement for any reason, the provisions of this Agreement which either expressly or by implication are intended to survive termination of this Agreement, shall survive and remain in full force and effect.
12. CONFIDENTIALITY
12.1 Each party undertakes to keep secret and strictly confidential and shall not disclose Confidential Information to any third party, without the other party’s prior written consent provided that:-
12.1.1 such party shall not be prevented from using any general knowledge, experience or skills which were in its possession prior to the Effective Date or was independently developed or acquired otherwise than from the performance of the Agreement;
12.1.2 the provisions of this Clause shall not apply to any Confidential Information which:-
a) is in or enters the public domain other than by breach of the Agreement; or
b) is obtained from a third party who is lawfully authorised to disclose such information; or
c) is authorised for release by the prior written consent of the other party.
12.2 Nothing in this Clause shall prevent either party from disclosing Confidential Information where it is required to do so by judicial, administrative, governmental or regulatory process in connection with any action, suit, proceedings or claim or otherwise by applicable law.
13. DATA PROTECTION
Each party agrees to comply with the data protection provisions set out in Schedule 4
14. CONFLICT WITH ARTICLES
In the event of any conflict or inconsistency between the provisions of this Agreement and the Articles, the parties will co-operate to ensure that the provisions of this Agreement will prevail and will procure the passing of such resolutions as will be necessary to amend the Articles to eliminate such conflict or inconsistency.
15. ENTIRE AGREEMENT
15.1 This Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
15.2 Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.
15.3 Nothing in this agreement purports to limit or exclude any liability for fraud.
16. NOTICES
16.1 Any notice or other communication given by a party under this Agreement shall be in writing and in English; signed by, or on behalf of, the party giving it; and sent to the relevant party at the address set out in clause 16.3.
16.2 Notices may be given, and are deemed received:
16.2.1 by hand: on receipt of a signature at the time of delivery;
16.2.2 by post: at 9.00 am on the second Business Day after posting;
16.3 Notices and other communications shall be sent to:
16.3.1 Parent: for the attention of the “Company Secretary” at: Fullwood House, The Park, Cheltenham, England, GL50 2RH.
16.3.2 Subsidiary: for the attention of the “Company Secretary” at: Fullwood House, The Park, Cheltenham, England, GL50 2RH.
16.4 Any change to the contact details of a party as set out in clause 16.3 shall be notified to the other
party in writing.
17. INTELLECTUAL PROPERTY RIGHTS
17.1 Any data or other information or documents or Intellectual Property Rights made, designed or developed by any of the parties shall automatically on creation vest in the Parent. To the extent they do not vest automatically, they shall be held on trust for the Parent and (if appropriate) the Subsidiary shall promptly execute all documents and do all acts as may be necessary to give effect to this clause.
17.2 Any data or other information or documents or Intellectual Property Rights made, designed or developed by any of the employees of the Parent or the Subsidiary parties shall automatically on creation vest in the Parent. To the extent they do not vest automatically, they shall be held on trust for the Parent and (if appropriate) the Subsidiary shall, or shall procure that its employees shall, promptly execute all documents and do all acts as may be necessary to give effect to this clause.
18. VARIATION
No amendment or variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
19. ASSIGNMENT AND SUBCONTRACTING
Neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the other party.
20. SET OFF
Each party shall pay all sums that it owes to the other party under this Agreement without any setoff, counterclaim, deduction or withholding of any kind, save as may be required by law.
21. NO PARTNERSHIP OR AGENCY
The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
22. SEVERANCE
22.1 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
22.2 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
23. WAIVER
23.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
23.2 No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
23.3 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
24. THIRD PARTY RIGHTS
A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.
25. GOVERNING LAW
This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
26. JURISDICTION
The parties irrevocably agree 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, its subject matter or formation (including non-contractual disputes or claims).
SIGNED AS A DEED by the parties on the date set out at the head of this Agreement
Signed (but not delivered until dated) as a Deed for and on behalf of UNIVERSITY OF GLOUCESTERSHIRE by:
Authorised signatory: …………………………………………………………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………. (Print name)
In the presence of:
Witness Signature ………………………………………………………………………
Witness Name ……………………………………………………………………………
Witness Address ………………………………………………………………………..
…………………………………………………………………………………………………….
Witness Occupation ………………………………………………………………….
Signed (but not delivered until dated) as a Deed for and on behalf of UNIVERSITY OF GLOUCESTERSHIRE PROFESSIONAL SERVICES LIMITED by:
Authorised signatory: …………………………………………………………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………. (Print name)
In the presence of:
Witness Signature ………………………………………………………………………
Witness Name ……………………………………………………………………………
Witness Address ………………………………………………………………………..
…………………………………………………………………………………………………….
Witness Occupation ………………………………………………………………….
SCHEDULE 1 – SERVICES
PART 1
The parent shall: –
- Pay on behalf of the Subsidiary (upon receipt of a valid invoice addressed to the Parent or from the
Subsidiary): –
1.1 any administration costs properly incurred by the Subsidiary save for any statutory fees including audit fees and bank charges; and
1.2 (other than payroll, which is dealt with at paragraph 2 below), any staff-related costs properly incurred by the Subsidiary (including, without limitation, all redundancy, pension and taxation costs). - Provide the Subsidiary with the funds by way of bank transfer to the Subsidiary’s bank account such amounts as requested by the Subsidiary to ensure it has sufficient funds to pay the staffpayroll (the “Payroll Services“). As a condition to the Payroll Services to be provided, the Subsidiary shall submit an invoice to the Parent on a monthly basis (and in any event within four days prior to the date the payroll payment is required to be made by the Subsidiary) (the “Payroll Invoice“), and provided that there are no fees outstanding from the Subsidiary to the Parent (as provided for in Clause 3.1), the Parent shall put the Subsidiary in funds as set out in the Payroll invoice within two Business Days of receipt of the Payroll Invoice.
- Prepare all annual accounts, management accounts of the Subsidiary for approval by the Subsidiary.
- Provide assistance in relation to any company secretarial matters required by the Subsidiary.
- Insure with a reputable insurance office and keep so insured at all times the Subsidiary against appropriate risks to the extent and in accordance with good commercial practice (such insurance to include cover against any liability by the Directors or their respective alternates in the lawful performance of their respective duties) as agreed with the Parent.
- Provide such other services as may be requested by the Subsidiary and agreed upon by the Parent in writing from time to time.
PART 2
Subsidiary Services
- The subsidiary shall: – Provide professional services staff to the Parent to undertake all administrative services of the Parent.
- Provide such other services as may be requested by the Parent and agreed upon by the Subsidiary in writing from time to time
SCHEDULE 2 – PARENT CONSENT MATTERS
The parties shall procure that the Subsidiary shall not do any of the matters set out in this Schedule 2 without prior Parent Consent:-
- Permit the registration (upon subscription or transfer) of any person as a member of the Subsidiary.
- Increase the amount of its issued share capital, grant any option or other interest (in the form of convertible securities or in any other form) over or in its share capital, redeem or purchase any of its own shares or reduce its share capital or effect any other reorganisation of its share capital.
- Issue any loan capital or enter into any commitment with any person with respect to the issue of any loan capital.
- Make any borrowing, enter into any banking facilities, open a bank account or give any guarantee or indemnity.
- Apply for the listing or trading of any shares or debt securities on any market.
- Pass any resolution for its winding up.
- Engage in any business other than the provision of the Subsidiary Services or spend any monies other than bona fide for the purposes of or in connection with the carrying on of such business.
- Form any subsidiary or acquire shares in any company or participate in any partnership or joint venture (incorporated or not).
- Amalgamate or merge with any other company or business undertaking.
- Acquire or dispose of any assets or properties.
- Vary in any respect its Articles.
- Alter its name or re-register as unlimited or as a plc.
- Enter into, vary or terminate any commitments or any transaction or arrangement of any nature whatsoever.
- Make or permit to be made any change in the accounting policies and principles adopted by the company in the preparation of its accounts.
- Establish or amend any pension scheme or grant any pension rights, profit-sharing, share option, bonus or other incentive scheme of any nature for Directors or employees.
- Dismiss any Director, officer or employee.
- Agree to remunerate any officer of or consultant to the company.
- Enter into or vary any contract of employment.
- Institute, settle or compromise any legal proceedings instituted or threatened against the Subsidiary or submit to arbitration any dispute involving the Subsidiary.
SCHEDULE 3 – THE SUBSIDIARY’S COVENANTS
The subsidiary will:-
- PROMOTION OF BUSINESS
1.1 Support the parent’s ongoing strategy and purpose. - PROVISION OF INFORMATION
2.1 Send to the parent:-
2.1.1 as soon as reasonably practicable, copies of public announcements of the Subsidiary
2.1.2 as soon as reasonably practicable, all material notices received by the Subsidiary from any regulatory body; and
2.1.3 as soon as reasonably practicable, any such other information as the Parent may require relating to the business, finance and affairs of the Subsidiary. - BOARD MEETINGS
3.1 Procure that at least one Board meeting is held in any 12-month period.
SCHEDULE 4 – DATA PROTECTION
- DEFINITIONS AND INTERPRETATION
1.1 In this schedule:
“Communication” means a complaint, enquiry, notice, request or other communication (but excluding any Data Subject Request) relating to either party’s obligations under any Data Protection Laws in connection with this Agreement and/or the Processing of any of the Shared Personal Data, including any compensation claim from a Data Subject or any notice, investigation or other action from a Data Protection Supervisory Authority relating to any of the foregoing;
“Consent” means a freely given, specific, informed and unambiguous indication (by a statement or by a clear affirmative action) by which the relevant Data Subject has agreed to the relevant transfer(s) and/or Processing of the Shared Personal Data relating to them that has not been withdrawn. To the extent the relevant Shared Personal Data is Special Category Personal Data, this definition should be read as if the word ‘unambiguous’ above read ‘unambiguous and explicit’. The terms “freely given“, “specific“, “informed“, “unambiguous” and “explicit” in this definition shall be construed in accordance with Data Protection Laws;
“Contact Point” means the Data Protection Officer of the Parent;
“Data Protection Laws” means, as applicable to either party and/or to the rights, responsibilities and/or obligations of either party in connection with this Agreement:
a) the GDPR;
b) the Data Protection Act 2018;
c) the Privacy and Electronic Communications (EC Directive) Regulations 2003
d) any other applicable law relating to the Processing, privacy and/or use of Personal Data;
e) any laws which implement or supplement any such laws; and
f) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
“Data Protection Supervisory Authority” means any regulator, authority or body responsible for administering Data Protection Laws;
“Data Subject Request” means a request made by a Data Subject to exercise any right(s) of Data Subjects under Chapter III of the GDPR in relation to any of the Shared Personal Data or concerning the Processing of such data;
“Disclosing Part” means each party to the extent it (or any person acting on its behalf) discloses or otherwise makes accessible any Shared Personal Data to the other party (or any person acting on the other party’s behalf);
“GDPR” means the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time);
“Permitted Lawful Bases” means the permitted lawful basis under Article 6(1) of the GDPR under which the Shared Personal Data is shared by the Disclosing Party with the Receiving Party and Processed by the Receiving Party, which the parties have agreed is as set out in the Staff Privacy Notice;
“Permitted Purpose” means the permitted purposes for the personal data processed by the parties as set out in the Parent Privacy Notice;
“Permitted Recipients” means the following who need access to the Received Personal Data for the Permitted Purpose:
a) the relevant Receiving Party’s employees; and
b) the third parties listed in the Staff Privacy Notice to which the Receiving Party may disclose the Shared Personal Data for the Permitted Purpose;
“Received Personal Data” means Shared Personal Data in respect of which the relevant party is the Receiving Party;
“Received Party” means each party to the extent it (or any person acting on its behalf receives or accesses any Shared Personal Data disclosed or made available by the other party (or any person acting on the other party’s behalf);
“Shared Personal Data” means Personal Data received by or on behalf of one party from or on behalf of the other party, or otherwise made available by one party to the other for the Permitted Purpose and as specified in more detail in the Staff Privacy Notice;
“Staff Privacy Notice” means the staff privacy notice agreed between the parties and published from time to time by the Parent in respect of the processing of personal data of directors, officers and employees of the Parent and the Subsidiary and which is published at Staff Privacy Notice.
“UK Law” means applicable law of the United Kingdom or of a part of the United Kingdom.
1.2 For the purposes of this Schedule 4, the terms Controller, Data Subject, Joint Controller, Personal Data, Personal Data Breach, Processor, Processing and Special Category Personal Data shall have the meaning given to them in the UK GDPR.
- Status of this schedule and the parties
Each party shall be a Joint Controller of the Shared Personal Data. If the parties share the Shared Personal Data, it shall be shared and managed in accordance with the terms of this Schedule.
- Compliance with Data Protection Laws
3.1 Subject to compliance by the other party with its express obligations in other provisions of this Schedule, each party shall at all times comply with all Data Protection Laws in connection with the exercise and performance of its respective rights and obligations under this Agreement.
3.2 This Schedule allocates certain rights and responsibilities among the parties as enforceable contractual obligations between themselves, however nothing in this Schedule is intended to limit or exclude either party’s responsibilities or liabilities under Data Protection Laws.
- Agreed basis for sharing
4.1 The parties have determined that it is necessary to share the Shared Personal Data in order to achieve the Permitted Purpose.
4.2 The parties agree that this Schedule relates to ongoing and routine data sharing.
4.3 The parties have documented in the Staff Privacy Notice additional details relating to the sharing of the Shared Personal Data, which includes:
4.3.1 the aims of each party in sharing the Shared Personal Data;
4.3.2 why sharing the Shared Personal Data on the terms of this Agreement is necessary to achieve those aims; and
4.3.3 the benefits to the Data Subjects and/or society of the parties sharing the Shared Personal Data.
- General obligations
5.1 Each party, to the extent it acts as Receiving Party, undertakes to the relevant Disclosing Party that it shall undertake all Processing of Received Personal Data only:
5.1.1 for the Permitted Purpose in accordance with this Agreement and in all respects in accordance with Data Protection Laws; and
5.1.2 to the extent consistent with the Permitted Lawful Basis,
except to the extent otherwise require by UK Law.
5.2 The parties agree that in respect of Shared Personal Data, the relevant Disclosing Party:
5.2.1 subject to paragraphs 5.3 and 9.1, shall direct Data Subjects to the Contact Point in connection with the exercise of their rights as Data Subjects and for any enquiries concerning the Shared Personal Data and identify the Contact Point in all information referred to in paragraphs 5.2.4 and 5.2.10 as the contact point for all Data Subject Requests or other Communications from Data Subjects regarding the sharing or other Processing of such Shared Personal Data;
5.2.2 shall ensure that the Shared Personal Data has been collected, Processed and transferred in accordance with the Data Protection Laws as applicable to that data at all times prior to the receipt of that data by the Receiving Party (or any person acting on its behalf);
5.2.3 shall ensure the Shared Personal Data is accurate and up-to-date when disclosed or made accessible to the relevant Receiving Party and shall promptly notify the Receiving Party if such Shared Personal Data becomes inaccurate or out of date during the term of this Agreement (together with revised and corrected data);
5.2.4 is solely responsible for both parties’ compliance with all duties to provide information to Data Subjects under Articles 5(1)(a), 13 and 14 of the GDPR or any similar Data Protection Laws, including as required for all Processing of Shared Personal Data by or on behalf of the Receiving Party for the Permitted Purpose on the Permitted Lawful Basis in accordance with this Agreement;
5.2.5 shall ensure that the Shared Personal Data when transferred to the Receiving Party (or anyone acting on its behalf) in connection with this Agreement is not subject (or potentially subject) to any laws giving effect to Article 71 (Protection of personal data) of the agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community;
5.2.6 to the extent Consent is identified in this Agreement as the Permitted Lawful Basis in respect of the Shared Personal Data, is solely responsible for obtaining the Consent of Data Subjects, in accordance with Data Protection Laws as required for the transfers and Processing of that Shared Personal Data undertaken by either party in connection with this Agreement;
5.2.7 without prejudice to its other obligations, shall ensure that it is entitled to transfer the Shared Personal Data to the Receiving Party and that the Receiving Party (and each of the Receiving Party’s Permitted Recipients) is entitled under all applicable laws and legal theories to Process the Shared Personal Data for the Permitted Purpose in accordance with the terms of this Agreement;
5.2.8 shall promptly notify the Receiving Party if it becomes aware that any such Consent referred to in paragraph 5.2.6 is withdrawn or if a relevant Data Subject has requested that their Shared Personal Data is no longer Processed by either party for the Permitted Purpose;
5.2.9 is solely responsible for ensuring that where the Shared Personal Data was received by the Disclosing Party from a third party, or has been Processed by a third party on behalf of the Disclosing Party, it has in place arrangements with those third parties:
a) as required by all Data Protection Laws (including, where applicable, Articles 26, 28 and 32 of the GDPR);
b) which are adequate to permit the Disclosing Party to share the Shared Personal Data with the Receiving Party (and its Permitted Recipients) under all Data Protection Laws; and
c) as required for the Receiving Party (and its Permitted Recipients) to Process such data in accordance with this Agreement; and
5.2.10 shall make available to Data Subjects in the Staff Privacy Notice the essence of this Schedule (and notify them of any changes to it).
5.3 Notwithstanding the terms of this Schedule, the parties acknowledge that a Data Subject has the right to exercise their legal rights under the Data Protection Laws against any relevant party as Controller.
5.4 Each party shall use its reasonable endeavours to assist the other to comply with any obligations under all Data Protection Laws in connection with this Agreement and shall not perform its obligations under this Schedule in such a way as to cause the other party to breach any of the other party’s obligations under applicable Data Protection Laws to the extent it is aware, or ought reasonably to have been aware, that the same would be a breach of such obligations.
5.5 Without prejudice to any other obligation, if either party becomes aware any of the Shared Personal Data is inaccurate or out of date, it shall promptly notify the other.
- Technical and organisational measures
6.1 The Receiving Party shall at all times:
6.1.1 put in place and maintain appropriate technical and organisational measures as required by Data Protection Laws; and
6.1.2 without prejudice to paragraph 6.1.1, implement and comply with the technical and organisational measures specified by the Disclosing Party from time to time.
- Third party Processing
7.1 Each party undertakes not to disclose or transfer Received Personal Data in respect of which it is the Receiving Party to any third party other than to a Permitted Recipient where necessary for the Permitted Purpose. Each party transferring or disclosing Received Personal Data in respect of which it is the Receiving Party shall ensure it is transferred and disclosed subject to equivalent and legally binding obligations which are no less onerous than those applicable to the Receiving Party under this Schedule. This paragraph 7.1 is without prejudice to any disclosure or transfer required by UK Law.
7.2 In respect of any Processing of Received Personal Data performed by a Processor on behalf of a Receiving Party, that Receiving Party shall:
7.2.1 carry out adequate due diligence on such Processor to ensure that it is capable of providing the level of protection for the Received Personal Data as is required by this Agreement and Data Protection Laws; and
7.2.2 ensure that suitable written agreements are at all times in place with each Processor as required under all Data Protection Laws (including Articles 28 and 32 of the GDPR).
7.3 The relevant Receiving Party shall be liable to the Disclosing Party for all acts and omissions of each of its Permitted Recipients in connection with Received Personal Data. Each obligation in this Schedule on a party to do, or refrain from doing, any thing shall include an obligation on that party to ensure all its Permitted Recipients do, or refrain from doing, such thing.
- International transfers
The Receiving Party shall not transfer Received Personal Data to any country outside the United Kingdom or to any international organisation (as defined in the GDPR), except to the extent required by UK Law or with the Disclosing Party’s express prior written consent. For the purposes of this paragraph 8 ‘transfer’ bears the same meaning as the word ‘transfer’ in Article 44 of the GDPR.
- Dealing with Data Subject Requests and Communications
9.1 Responsibility for complying with any Data Subject Request or Communication falls on the party which first received such Data Subject Request or Communication.
9.2 If the Subsidiary receives a Data Subject Request or Communication relating to the Shared Personal Data Processed by (or on behalf of) the other party it shall to the extent lawful under UK Law promptly (and in any event within two Business Days of receipt) notify the Contact Point, who will manage the Communication or Data Subject Request in accordance with the Data Protection Laws on behalf of both parties.
9.3 Each party shall use all reasonable endeavours to provide the Contact Point with full and prompt co-operation and assistance in relation to any Data Subject Request or Communication.
- Personal Data Breaches
10.1 Each party shall promptly (and in any event within 24 hours) notify the Disclosing Party and the Point of Contact if it suspects or becomes aware of any actual or threatened occurrence of any Personal Data Breach in respect of any Received Personal Data which it (or any person acting on its behalf) Processes as Receiving Party. In such circumstances, the Point of Contact shall work with both parties to promptly provide (to the extent permitted by UK Law):
10.1.1 sufficient information as the Disclosing Party (or its advisors) reasonably requires to meet any obligations to report a Personal Data Breach under Data Protection Laws (in a timescale which facilitates such compliance);
a) co-operation with Data Protection Supervisory Authorities (including with investigations or actions to mitigate or remediate the Personal Data Breach);
b) making available all relevant data and records required for either party to comply with Data Protection Laws or as otherwise reasonably required by the Disclosing Party;
c) taking such reasonable steps as are directed by the Disclosing Party to assist in the investigation, mitigation and remediation of a Personal Data Breach (which may include providing the Disclosing Party with physical access to any facilities affected and facilitating the interview of staff and others involved in the matter); and
d) co-ordination with the Disclosing Party regarding the management of public relations and public statements relating to the Personal Data Breach.
- Data protection impact assessments
The parties have completed a data protection impact assessment in respect of the planned sharing of the Shared Personal Data under this Agreement, and have agreed that this Agreement will assist with mitigating certain risks that have been identified.
- Records
Each party shall maintain complete, accurate and up to date written records of all of its Processing of the Shared Personal Data and as necessary to demonstrate its compliance with this Schedule and all Data Protection Laws.
- Audit
13.1.1 Each party shall (and shall ensure all its Permitted Recipients shall) promptly make available to the other party such information as is reasonably required to demonstrate that party’s compliance with its obligations under this Schedule;
13.1.2 upon reasonable prior notice allow for, permit and contribute to audits, including inspections, by the other party (or another auditor mandated by the other party) during normal business hours to the extent necessary to verify the audited party’s compliance with its obligations under this Schedule; and
13.1.3 provide (or procure) access to all relevant systems, personnel, business premises and records for the purposes of each such audit or inspection referred to in paragraph 13.1.2 and provide (and procure) all further reasonable co-operation, access and assistance in relation to any such audit or inspection.
13.2 Each party shall allow the other to exercise its rights at paragraph 13.1.1 in the period up to six years after the termination or expiry of this Agreement.
- Retention
Except as required by UK Law, each party shall retain the Received Personal Data in accordance with the Parent’s records management policy published from time to time.
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