TERMS & CONDITIONS
SEEK DHARMA LTD
1- DEFINITIONS & INTERPRETATION
1.1- In these terms and conditions, the following words have the following meanings:
Affiliate: in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
Alternative Service(s): as defined in clause 10.1.
Applicable Laws: all applicable laws, regulations, and codes of practice in any relevant jurisdiction relating to the performance of the Services.
Business Day: a day other than a Saturday or Sunday or public holiday in England and Wales.
Change of Control: in relation to the Supplier, any change in the power (whether directly or indirectly and whether by the possession of voting power, contract or otherwise) to appoint and/or remove all of the directors or other governing body of the Supplier as are able to cast a majority of the votes, or otherwise to control or have the power to control the management, policies and affairs of Supplier.
Confidential Information: in relation to THE COMPANY, all information (in whatever form, and whether or not marked confidential) which is, directly or indirectly, in whatever manner, whether before or after the date of the Agreement, disclosed or made available by THE COMPANY or any of its representatives to the Supplier or any of its representatives, including the terms of the Agreement and any personal data but excluding information which: a) at the time of disclosure is in the public domain; b) after disclosure becomes part of the public domain otherwise than by breach by a party of the provisions of the Agreement; c) was already in the possession of the Supplier at the time of disclosure; d) was received by the Supplier after disclosure from a third party who was not required to hold it in confidence; or e) is trivial and/or obvious.
Controller Model Clauses: the European Union Commission Decision 2004/915/EC Set II standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers) including any replacements or updates thereto from time to time pursuant to the Data Protection Laws, the current version of which is set out at:
Customer(s): any Customer(s) of THE COMPANY who have the benefit, or are intended to have the benefit, of the Services, or any of them, whilst staying at the Destination.
Data Protection Laws: the GDPR; the Data Protection Act 2018 and section 3 of the EU (Withdrawal) Act 2018 and all other applicable data privacy laws and regulations in any relevant jurisdiction as amended or replaced from time to time.
Force Majeure Event: any circumstance not within a party’s reasonable control including, without limitation: acts of God; , war (and/or threat of or preparation for war), armed conflict or other action of military forces, terrorism, riot, civil commotion; pandemic, epidemic or other outbreak of illness; collapse of buildings, explosion, accident or fire; flood, drought, earthquake; natural, chemical, biological or nuclear disasters and/or contamination; sonic boom; imposition of sanctions, embargo, or breaking off of diplomatic relations; any law, action or advice taken and/or provided by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; any labour or trade dispute, strikes, industrial action or lockouts; non-performance by suppliers or subcontractors; and interruption or failure of utility service;
GDPR: the General Data Protection Regulation (Regulation (EU) 2016/679) or similar legislation as implemented under EU law (including any regulations and secondary legislation), in each case as applicable and in force from time to time.
EU Adequacy Zone: the European Economic Area and each jurisdiction outside of the European Economic Area that the European Commission has decided provides an adequate level of data protection (and has not withdrawn such decision).
Intellectual Property: all patents, know-how, copyrights, trade or service marks, design rights, and all other intellectual property rights of any kind of THE COMPANY.
Mandatory Policies: as set out in the Contract Details.
Materials: all information, data, materials and documentation in any form which are provided or made available by THE COMPANY in connection with the Services;
Processor Model Clauses: the European Union Commission Decision 2010/87/EU standard contractual clauses for the transfer of personal data to processors established in third countries including any replacements or updates thereto from time to time pursuant to the Data Protection Laws, the current version of which is set out at https://ico.org.uk/media/for-organisations/documents/2620100/uk-sccs-c-p-202107.docx
Services: the services set out or referred to in the Contract Details and Article 1, which the Supplier has agreed to provide to or for THE COMPANY and/or THE COMPANY’S Customers.
Supplier Staff: any employees, personnel, staff, other workers and agents (including their employees, staff and workers) of the Supplier.
Sub-contractor(s): any sub-contractor(s) or supplier(s) including, where applicable, their employees and agents (and the agent’s employees and subcontractors) appointed by the Supplier for the provision of the Services in accordance with clause 17.
Vehicle(s): all types of cars, coaches, buses, mini-buses, mini-coaches, boats and other acceptable passenger transportation vehicles used as part of the Services.
1.2- References to regulations, statutes or other statutory provisions shall be construed to include references to those regulations, statutes or provisions as amended, re-enacted or modified from time to time and shall include any subordinate legislation under the relevant statute or statutory provision.
1.3- Words denoting the singular include the plural and vice versa, words denoting any one gender include all genders and vice versa, and references to persons include individuals, partnerships, bodies corporate and unincorporated associations.
1.4- A reference to a recital, schedule, exhibit or appendix is a reference to a recital or schedule, exhibit or appendix to the Agreement, a reference to a clause is a reference to a clause of the schedule, exhibit or appendix in which the clause appears and a reference to a sub-clause is a reference to a sub-clause of the clause in which the reference appears.
1.5- The words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
2.1- The Rates for the Services are set out in Article 2 and, unless otherwise specified, are inclusive of all local or other taxes, charges, duties, fees and all other sums of whatever nature relating to the Services.
2.2- No increase in the Rates may be made without the prior written consent of THE COMPANY.
3- INVOICING AND PAYMENTS
3.1- Unless otherwise specified, and unless the Services are paid for by the Customer directly, the Supplier shall invoice THE COMPANY for the Services performed in accordance with Article 2.
3.2- THE COMPANY may at any time, without notice to the Supplier, set off any liability of the Supplier to THE COMPANY against any liability of THE COMPANY to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Agreement. Any exercise by THE COMPANY of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Agreement or otherwise.
4- OBLIGATIONS OF the SUPPLIER
4.1- In providing the Services the Supplier warrants that it shall:
(a) co-operate with THE COMPANY in all matters relating to the Services;
(b) perform the Services with the best care, skill and diligence and in accordance with best practice in the Supplier’s industry, profession or trade;
(c) provide and ensure that the Supplier Staff, personnel, Sub-contractors and Alternative Service providers shall be: (i) DBS checked (or local equivalent) and checked regularly thereafter; (ii) fully trained at induction and receive ongoing training at regular intervals on matters such as, without limitation, conduct, behaviour and customer service; (iii) suitably monitored, managed and supervised at all times; (iv) suitably skilled and experienced to perform tasks assigned to them: (v) permitted to only carry out the tasks and services within the scope of their training and/or role/position;
(d) subject to 4.1(b) and (c): (i) provide such Supplier Staff, personnel, Sub-contractors and Alternative Service providers in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Agreement; (ii) ensure that it has policies in place addressing matters such as, without limitation, code of conduct and behaviour; (iii) ensure that is has an internal disciplinary procedure and process;
(e) ensure that the Services will conform with all descriptions, standards and requirements set out in this Agreement and as advised to the Supplier by THE COMPANY from time to time (including, without limitation, as to any booking or reservation process);
(f) provide all equipment, tools and Vehicles and such other items as are required to provide the Services;
(g) use the best quality facilities, services, materials, standards and techniques, and ensure that the Services will be free from defects and will be of a good, clean and safe standard;
(h) not do or omit to do anything which may (i) cause THE COMPANY to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that THE COMPANY may rely or act on the Services; (ii) bring THE COMPANY into disrepute or which may damage the interests of THE COMPANY; or (iii) prejudice or damage THE COMPANY’s reputation or goodwill in its Intellectual Property (including its trademarks);
(i) ensure that when arranging or selling any additional
services for the Customers in Destination, where such additional services do not form part of the Customer’s booking with THE COMPANY, to inform the Customer that they are contracting directly with the operator of any such services, on that operators terms and conditions and that any such additional services shall not form part of the Customer’s contract with THE COMPANY. Pursuant to this clause 4.1(i) the Supplier shall indemnify THE COMPANY against any damage, loss, cost, claim, payment of compensation, or other expense arising from, or in relation to, the provision of any such additional services;
(j) co-operate with THE COMPANY and provide any and all such information, documentation and assistance as required by THE COMPANY including, without limitation, any information that is required to be provided to the Customer by THE COMPANY under The Package Travel and Linked Travel Arrangements Regulations 2018 (“PTRs”) and any other Applicable Laws;
(k) maintain complete and accurate records and shall allow THE COMPANY to inspect such records at all reasonable times on request;(l) comply with any request from THE COMPANY as to any audits that may be required for any reason including, without limitation, for health and safety, fire, hygiene, pool and food.
5- Intellectual property
5.1- The Supplier acknowledges and agrees that all Intellectual Property will at all times and for all purposes vest and remain vested in THE COMPANY and, except for the limited licence to use THE COMPANY materials set out in clause 5.2, the Supplier shall acquire no right, title or interest in or to the same.
5.2- THE COMPANY grants the Supplier a non-exclusive, non-transferable, royalty-free licence to use THE COMPANY materials, as determined by the Company from time to time, for the term of the Agreement for the purpose of providing the Services.
6- COMPLIANCE WITH LAW, LICENCES AND POLICIES
a) The Supplier shall at all times:comply with all Applicable Laws, regulations, regulatory policies, conventions, guidelines and/or industry codes which may apply from time to time to the provision of the Services including, without limitation, the PTRs;
b) obtain and at all times maintain all licences, permits and consents which may be required for the provision of the Services and provide copies of the same to the Company, on request;
c) comply with the Company’s Mandatory Policies.
7.1- During the term of the Agreement and for a period of 6 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, public liability and other insurances sufficient to cover the liabilities that may arise under or in connection with the Agreement and shall, on THE COMPANY’S request, produce the insurance certificates giving details of cover and the receipt for the current year’s premium in respect of each insurance.
7.2- The insurance required by clause 7.1 must without limitation cover claims made by Customers against THE COMPANY which are based on any act, omission, negligence or breach of the Agreement by the Supplier, the Supplier Staff or Sub-contractors and pursuant to clause 4.1.
8.1- THE COMPANY shall be entitled to share any information it receives from the Supplier with its group companies and Affiliates as required in connection with the Agreement.
8.2- The Supplier undertakes that it shall not at any time during the Agreement, and for a period of two years after termination or expiry of the Agreement , disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the COMPANY, except as permitted by Clause 8.3.
8.3- The Supplier may disclose the Confidential Information: (a) to the Supplier Staff and Sub-contractors who need to know such information for the purposes of carrying out its obligations under the Agreement. The Supplier shall ensure that Supplier Staff and Sub-contractors to whom it discloses the Confidential Information shall comply with this Clause 8; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.4- The Supplier shall not use THE COMPANY’S Confidential Information for any purpose other than to perform its obligations under the Agreement.
9- DATA PROTECTION
The parties agree to comply with relevant Data Protection Laws, and in particular the provisions of Annex A shall apply to the Agreement.
10- SERVICE UNAVAILABILITY
10.1- If the Supplier (i) fails to perform the Services; or (ii) is or becomes aware that the Services are or may become unavailable; or (iii) is or becomes aware that the Services are or may become otherwise deficient or non-compliant with the terms of the Agreement and are likely to have an adverse effect on the quiet enjoyment and/or safety of the Customer(s), whether permanently or temporarily, (“Deficient Services“), the Supplier shall notify THE COMPANY immediately in writing and, at no extra cost to THE COMPANY or the Customer(s), provide alternative services (“Alternative Services”) of equivalent or higher standard than the Deficient Services.
10.2- Pursuant to clause 10.1, the Supplier shall retain all liability for the Alternative Services and shall indemnify THE COMPANY against any damage, loss, cost or other expense that it may incur arising from, or in relation to, the provision of any such Alternative Services to the Customers;
10.3- THE COMPANY shall, without limiting or affecting other rights or remedies available to it, retain the right to: (a) cancel any Deficient Services and/or Alternative Services (in whole or in part) and not be liable to the Supplier (or the provider of the Alternative Services) for payment of the same; (b) terminate the Agreement with immediate effect by giving written notice to the Supplier; (c) recover from the Supplier any costs incurred by THE COMPANY in obtaining any substitute services (“Substitute Services”) from a third party; (d) require a refund from the Supplier of any sums paid for any Substitute Services.
10.4- This clause 10 shall extend to any and all Deficient or Alternative Services provided by the Supplier.
10.5- THE COMPANY’S rights and remedies under the Agreement are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.
11- CUSTOMER COMPLAINTS AND CLAIMS
11.1- The Supplier shall use best endeavours to resolve any Customer complaints effectively and efficiently (within 24 hours), whether in regard to the Services provided by the Supplier, the Supplier Staff, the Supplier Sub-contractors or any Alternative Service providers.
11.2- In the event that the complaint is serious, or involves a personal injury, the Supplier shall immediately notify THE COMPANY in writing and will use best endeavors to assist the Company in resolving, or defending, any such complaint. The Supplier shall have no authority to bind THE COMPANY and must ensure that it does not do or say anything to prejudice THE COMPANY’S position in any respect, nor shall it acknowledge or admit any liability on behalf of THE COMPANY or without THE COMPANY’s prior agreement.
11.3- If asked to do so, the Supplier must transfer to THE COMPANY or THE COMPANY’S insurers any rights it may have in regard to a claim or complaint.
12- LIMITATIONS ON Liability and indemnity
12.1- Notwithstanding any other provision of the Agreement, THE COMPANY shall have no liability to the Supplier, the Supplier Staff or its Sub-contractors for any loss, damage, cost or other expense, howsoever caused.
12.2- No agreement or terms (whether written or otherwise) entered into between a Customer and a Supplier, the Supplier Staff, its Sub-contractors or any third party shall affect the rights and obligations of the Supplier or THE COMPANY under this Agreement, including any liability or indemnity under it.
12.3- The Supplier shall hold harmless and fully indemnify THE COMPANY and its Affiliates, and keep THE COMPANY and its Affiliates fully indemnified, against, and as a separate obligation shall pay to THE COMPANY on demand, all costs (including legal costs of THE COMPANY and the Customer(s) on a full indemnity basis), claims (including any settlement of claims, whether before or after the issue of proceedings), sums suffered or incurred by THE COMPANY or its Affiliates (including all refunds, reimbursement of expenses and other compensation and/or credits which THE COMPANY provides to Customers in its reasonable discretion) in respect of all and any complaints (whether formal or informal), any sums paid under mediation or any other means of alternative dispute resolution, actions, judgment sums (including sums arising from consent orders or judgments), penalties, damages, losses, expenses, liabilities and demands, wholly or partly, directly or indirectly arising out of or in connection with:any breach of the Agreement by the Supplier, the Supplier Staff, Sub-contractors or Alternative Service providers;
a) any breach of any of the following clauses of these terms & conditions by the Supplier, the Supplier Staff, Sub-contractors or Alternative Service providers: (i) Clause 4 (Obligations of the Supplier); (ii) Clause 5 (Intellectual Property); (iii) Clause 6 (Compliance with law, licences and Policies); (iv) Clause 8 (Confidentiality); (v) Clause 9 (Data protection); (vi) Clause 10.1 (Service Unavailability); (vii) Clause 17 (Sub-contractors);
b) any liability (including any liability to the Customer or any third party) which arises from or in connection with: (i) any defect in or failure of the Services or Alternative Services; (ii) any representation or warranty given by the Supplier in this Agreement being inaccurate in any material respect; (iii) any other failure by the Supplier (including the Supplier Staff or Alternative Service providers) to comply with any of its obligations under this Agreement; or which otherwise arises from any act and/or omission of the Supplier, the Supplier Staff, Sub-contractors and Alternative Service providers under the Agreement or in providing the Services to THE COMPANY (and/or the Customers); any death or personal injury of any person (including the Customer) arising out of the performance of the Services or which otherwise arises from any act or omission of the Supplier, the Supplier Staff, Sub-contractors and Alternative Service providers; and
c) any loss or damage to any property of the Customer, the Supplier Staff, or any third-party property, arising out of the performance of the Services or which otherwise arises from any act or omission of the Supplier, the Supplier Staff, Sub-contractors and Alternative Service providers.
12.4- for the avoidance of doubt, this clause 12 shall neither limit nor
exclude any liability imposed by Applicable Laws and shall not restrict
any other remedies the COMPANY may have under any other provision
of this Agreement, or under the Applicable Laws.
12.5- In entering into this Agreement the Supplier acknowledges that it is aware of the COMPANY’s legal liability to its Customers as a travel organizer under the Package Travel and Linked Travel Arrangements Regulations 2018.
12.6- This Indemnity shall survive and remain in full force and effect after the termination (for whatever reason) or expiry of this Agreement.
13- CHANGE OF CONTROL
If the Supplier is subject of a Change of Control, the Supplier shall notify THE COMPANY in writing at least 2 months in advance of the Change of Control taking effect and obtain THE COMPANY’s prior written consent which may be withheld or made subject to any conditions at THE COMPANY’s absolute discretion.
14- FORCE MAJEURE
14.1- Provided it has complied with Clause 14.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations.
14.2- The Affected Party shall: (a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than 14 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and (b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
14.3- If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 30 days, THE COMPANY may terminate this Agreement by giving 30 days written notice to the other party. In this event, any payments made by THE COMPANY to the Supplier in respect to any Services not provided, shall be immediately refunded to THE COMPANY by the Supplier.
15- DURATION AND TERMINATION
15.1- The Agreement shall be legally binding from the Effective Date and, unless otherwise terminated in accordance with its terms, the Agreement shall continue until the Termination Date.
15.2- Without limiting or affecting any other right or remedy available to it, THE COMPANY may terminate the Agreement:
(a) with immediate effect by giving written notice to the Supplier if:
(i) there is a change of control of the Supplier; or (ii) the Supplier’s financial position deteriorates to such an extent that in THE COMPANY’S opinion the Supplier’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy; or (iii) the Supplier commits a breach of any of the following clauses: a). Clause 4 (Obligations of the Supplier); b). Clause 6 (Compliance with Law, Licences and Mandatory Policies); c) Clause 7 (Insurance); d) Clause 8 (Confidentiality); e) Clause 9 (Data protection); f) Clause 10.1 (Service unavailability); g) Clause 11 (Customer complaints and claims); and h) Clause 17 (Sub-contractors);
(b) for convenience by giving the Supplier 1 months’ written notice at any time.
15.3- Without limiting or affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if: (a) the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; (b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or (c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
16- TERMINATION CONSEQUENCES
16.1- On termination of the Agreement for any reason or on expiry, the Supplier shall immediately deliver to THE COMPANY all materials pursuant to clause 5. If the Supplier fails to do so, then THE COMPANY may enter the Supplier’s premises and take possession of them.
16.2- Termination or expiry of the Agreement shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
16.3- Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
17.1- The Supplier shall not sub-contract any Services without the prior written agreement from THE COMPANY and where agreement is provided, the Supplier shall carefully select and supervise its Sub-contractors and provide THE COMPANY with a list of all Sub-contractors, on request.
17.2- No Sub-contractor or Alternative Service provider shall relieve the Supplier from any of its obligations and/or liabilities under this Agreement.
18.1- Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
18.2- A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.3- If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity or enforceability of the rest of the Agreement. If any provision or part-provision of this Agreement is deemed deleted under this Clause 18.3, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provisions.
18.4- Save as expressly provided herein, the rights and remedies provided by these terms are cumulative and (subject as otherwise provided in these terms) are not exclusive of any right or remedy provided by law. No exercise by a party of any one right or remedy shall (save unless expressly provided otherwise) operate so as to hinder or prevent the exercise by it of any other right or remedy.
18.5- Except as set out in this Agreement no variation of the Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives.
18.6- THE COMPANY may at any time assign, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement. The Supplier shall not assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of THE COMPANY.
18.7- Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be delivered by a next working day delivery service at its registered office; or sent by email to the address specified in the Contract Details.
A notice or other communication shall be deemed to have been received: (i) if sent by pre-paid next working day delivery service, at 9.00 am on the second Business Day after posting; (ii) if sent by email, at the time of transmission, or if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 18.7, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt. This Clause 18.7 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
18.8- Nothing in the Agreement shall constitute a partnership, joint venture, representative or agency relationship between the parties hereto or be construed or have effect as constituting any relationship of employer and employee between the parties. Neither party shall have the authority to bind or pledge the credit of, or oblige the other in any way without obtaining the other’s prior written consent.
18.9- The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19- GOVERNING LAW & JURISDICTION
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
Annex A – data protection
The general obligation
Each of the parties warrants and represents that it shall comply with its obligations under Data Protection Laws in respect of its activities under the Agreement, including in relation to the obtaining, transferring and processing of personal data.
The subject-matter and duration of the processing, the nature and purpose of the processing (the “Specified Purposes”), the type of personal data, categories of data subjects and a list of sub-processors (which may be updated and agreed between the parties in writing from time to time) are as follows:
1.2.1 Subject-matter of the processing: the provision of the Services;
1.2.2 Duration of the processing: the term of the Agreement;
1.2.3 Nature and purpose of the processing: to fulfil all contracted obligations;
1.2.4 Type(s) of personal data: Personal contact details such as [name, title, addresses, telephone numbers, and personal email addresses, Date of birth, gender, marital status and dependants, next of kin and emergency contact information, copy of driving licence and information about health, including any medical condition, health and sickness records (special category personal data)];
1.2.5 Categories of data subjects: Customers, Supplier Staff, Sub-contractors or other personnel of any category engaged in or in relation to the performance of the Services; and
1.2.6 Sub-processors: Any Sub-contractors and Alternative Service providers.
Specific controller to controller obligations
Under the Agreement, one of the parties passes personal data to the other and each of the parties separately determines the purpose and means of processing the personal data (in other words each party is a “controller”).
The parties therefore agree that, in addition to the general obligation under paragraph 1.1, the controller disclosing personal data warrants and represents that:
it has the required authority, grounds, rights or consents (as applicable) to enable both the disclosing controller and the receiving controller to process the personal data in accordance with the Specified Purposes;
it has provided all information required to be provided to the data subject under the UKGDPR;
it has implemented appropriate technical and organisational measures to ensure that processing is performed in accordance with the UKGDPR and shall review and update such measures, where necessary; and
it has the relevant consent to enable the receiving controller to transfer the personal data outside of the UK to any country specified by the receiving controller.
Specific controller to processor obligations
Notwithstanding paragraph 2.2, to the extent that either of the parties is acting as a processor rather than a controller, that party shall carry out its obligations in respect of any personal data in accordance with the obligations set out in Article 28.3 of the GDPR and in accordance with the UKGDPR.
Controller to controller transfers abroad
Where THE COMPANY transfers personal data located within the UK, in respect of which it is a controller, to a Supplier located outside of the EU Adequacy Zone, where the Supplier (as controller) receives such personal data on a controller to controller basis, the parties agree that the terms of the Controller Model Clauses shall apply with the following information inserted in the relevant parts:
Name and address of the data exporting organisation: the name and address of THE COMPANY set out in the Contract Details;
Name and address of the data importing organisation: the name and address of the Supplier set out in the Contract Details;
In relation to clause II(h) of the Controller Model Clauses, the parties select option (iii); and Information for Annex B:
Categories of data subjects: as set out in paragraph 1.2.5;
Purposes of the transfer(s): as set out in paragraph 1.2.1;
Categories of data: as set out in paragraph 1.2.4;
Recipients: Supplier Staff, Sub-contractors and Alternative Service providers who require the personal data in order to provide the Services;
Sensitive data (if appropriate): as set out in paragraph 1.2.4;
Additional useful information: personal data shall only be stored by the Supplier for a period of 6 months, or longer if required by applicable law, after which the Supplier shall delete the personal data.
Controller to processor transfers abroad
Where THE COMPANY transfers personal data located within the UK, in respect of which it is a controller, to a Supplier located outside of the EU Adequacy Zone, where the Supplier processes such personal data on behalf THE COMPANY as THE COMPANY’s processor, the parties agree that the Processor Model Clauses shall apply with the following information inserted in the relevant parts:
Name and address of the data exporting organisation: the name and address of THE COMPANY set out in the Contract Details;
Name and address of the data importing organisation: the name and address of the Supplier set out in the Contract Details;
In relation to clauses 9 and 11(3) of the Processor Model Clauses, the parties agree that the governing law of the Processor Model Clauses and any sub-processing contract shall be the laws of England & Wales;
Information for Appendix 1:
Data exporter: the data exporter is a company that transfers certain personal data to its Suppliers for the purposes of operating its business;
Data importer: the data importer is a company that receives personal data from THE COMPANY for the purposes of providing the Services;
Data subjects: as set out in paragraph 1.2.5;
Categories of data: as set out in paragraph 1.2.4;
Special categories of data (if appropriate): as set out in paragraph 1.2.4; and
Processing operations: as set out in paragraph 1.2.3; and
Information for Appendix 2:
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) of the Processor Model Clauses (or document/legislation attached):
The Supplier has implemented the following technical measures: robust measures and protocols for access to buildings, measures for the secure disposal of paperwork and devices which contain personal data, robust cyber security measures such as firewalls, malware scans and anti-virus protection and measures to ensure devices containing personal data have strong passwords;
The Supplier has implemented the following organisational measures: information security policies, business continuity plans, risk assessments, policies and procedures regarding the security of personal data, training programmes for and conducting due diligence on sub-contractors and staff.
The Supplier shall not transfer any personal data outside of the EU Adequacy Zone without the written consent of THE COMPANY.
The Supplier shall do, or cause to be done at its own cost, all things required to comply with any additional requirements imposed by THE COMPANY to ensure compliance by the Supplier and/or THE COMPANY with Data Protection Laws (“Purpose”) including in relation to or arising out of or in connection with the UK’s exit from the European Union.
SEEK DHARMA LTD is a company incorporated and registered in England and Wales with company number 13127983. The registered office is at 2nd Floor Nucleus House, 2 Lower Mortlake Road, Richmond, TW9 2JA, United Kingdom.
© 2022 SEEK DHARMA, LTD