Supply of Services - Terms and Conditions
Print this pageThe Customer's attention is particularly drawn to the provisions of clause 8.
1. INTERPRETATION
1.1 In these Conditions, the following definitions apply:
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.
Conditions: these terms and conditions as amended from time to time
Contract: the contract between TandIM and the Customer for the supply of Services in accordance with these Conditions.
Customer: the firm who purchases any of the Services from TandIM.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Domestic Law means the law of the United Kingdom or a part of the United Kingdom.
Order: the Customer's order for Services as set out in the Customer's purchase order form, or the Customer's written acceptance of a quotation by TandIM, or overleaf, as the case may be.
Services: the Interim Management, accountancy, bookkeeping, payroll or other services provided by TandIM to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in writing by TandIM to the Customer.
TandIM Limited is registered in England and Wales with company number 04180685 whose registered office is at 46 Barkston House Croydon Street Leeds LS11 9RT.
1.2 In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) a reference to writing or written includes faxes but not e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions. The Order shall only be deemed to be accepted when TandIM issues written acceptance of the Order or when TandIM commences performance of the Services (whichever is the earlier) at which point and on which date the Contract shall come into existence (Commencement Date).
2.2 This Contract shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 6, until either party gives to the other party 3 months written notice to terminate.
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of TandIM which is not set out in the Contract.
2.4 Any descriptive matter or advertising issued by TandIM, and any descriptions contained in TandIM's brochures or on its website, 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 have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 TandIM is not a party to any employment arrangement entered into between the Customer and the Customer’s employees and is therefore not responsible for fulfilling any statutory obligation or making any payment required by statute that may arise as a consequence of the relationship between employer and employee.
3. SUPPLY OF SERVICES
3.1 TandIM shall supply the Services to the Customer using reasonable care and skill.
3.2 TandIM shall use all reasonable endeavours to meet any performance dates agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 TandIM shall have the right to make any changes to the Services which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the Services, and TandIM shall notify the Customer in any such event.
3.4 All pay periods administered by TandIM will be based upon calendar weeks, calendar fortnights, calendar four week periods or calendar months. Other payroll periods requested by Customers will generally not be accepted since TandIM’s computer systems and payroll runs are based upon complete weekly, fortnightly, four weekly or monthly cycles. Where employment starts or ends during a week or month the first (or last) wage slip processed will be to/from the date specified, as the case maybe.
3.5 TandIM will only provide the Services subject to the regulations as stipulated by HM Revenue & Customs and relevant UK legislation at the present time.
4. CUSTOMER'S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with TandIM in all matters relating to the Services;
(c) provide TandIM, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by TandIM;
(d) provide TandIM (in accordance with the required timeframes and deadlines) with such information and materials as TandIM may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects. TandIM will not bear any liability for any consequences that may arise as a result of any incorrect information presented by the Customer.
4.2 If TandIM's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) TandIM shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays TandIM's performance of any of its obligations;
(b) TandIM shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from TandIM's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse TandIM on written demand for any costs or losses sustained or incurred by TandIM arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be on a time and materials basis:
(a) the Charges shall be calculated in accordance with TandIM's standard hourly rates. These vary according to the seniority of the employee assigned to carry out the work, as set out in the Order or Specification;
(b) TandIM shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom TandIM engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by TandIM for the performance of the Services, and for the cost of any materials.
5.2 TandIM shall invoice the Customer for the Services provided either monthly in arrears, quarterly in advance, six-monthly in advance and annually in advance or annually in arrears. The Customer shall pay each invoice submitted by TandIM in full and cleared funds within 14 days of the date of the invoice. Time for payment shall be of the essence of the Contract. All amounts payable by the Customer under the Contract are exclusive of value added tax which will be charged in addition at the current rate.
5.3 If the Customer does not make a payment by the date stated in an invoice or as otherwise provided for in the Contract then TandIM shall be entitled:
(a) to charge interest on the outstanding amount at the rate of 3% per year above the base lending rate of The Bank of England, accruing daily;
(b) suspend the Services being provided by TandIM at that time, provided that
TandIM will not accept any liability or bear any responsibility for any consequences arising from the suspension of the Services.
5.4 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against TandIM in order to justify withholding payment of any such amount in whole or in part. TandIM may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by TandIM to the Customer.
5.5 TandIM reserves the right to increase its standard hourly fee rates, provided that such charges cannot be increased more than once in any 12 month period, commencing from the Commencement Date. TandIM will give the Customer written notice of any such increase two months before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify TandIM in writing within 2 weeks of the date of TandIM's notice and TandIM shall have the right without limiting its other rights or remedies to terminate the Contract by giving 1 month’s written notice to the Customer.
6. TERMINATION
6.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or
(b) the other party becomes insolvent or if an order is made or a resolution is passed for the winding up of the other party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the other party’s assets or business, or if the other party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
6.2 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party 3 months written notice.
7. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to TandIM all of TandIM's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, TandIM shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
8. LIMITATION OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude TandIM's liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
(a) TandIM shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) TandIM's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Charges paid by the Customer to TandIM under this Contract.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 TandIM acts as a payroll provider and/or accounts administrator and/or interim services provider and will accept no liability or accept any responsibility for:
(a) a Customer’s PAYE employer scheme and staff or the payments to HMRC in relation to that scheme;
(b) a Customer’s tax bill or the payments to HMRC in relation to that taxation; or
(c) for the payment of any Companies House fees.
8.5 TandIM shall not be liable to the Customer:
(a) for HM Revenue & Customs penalties or interest charges which may arise as a result of employment arrangements existing prior to the Customer appointing TandIM or for retrospective liability due or the consequences of late filing a declaration of retrospective liability where the Customer appointed TandIM after the due date;
(b) for any additional Tax or National Insurance liability incurred as a consequence of the Customer’s failure to follow instructions given by TandIM;
(c) for overpayment or underpayment of wages incurred as a result of an error in processing the Customer’s specified wage for any period in excess of one month from the date on which the first wage slip for a full period of a week, fortnight, four-week or month at the newly instructed rate is sent to the Customer. It is the Customer’s responsibility to check wages slips received from TandIM to ensure that the information on them is correct as of wage slip date.
(d) For the set up and management of any pension schemes, where applicable.
8.6 TandIM’s bookkeeping and payroll services do not include the provision of financial, regulatory or tax advice.
8.7 This clause 8 shall survive termination of the Contract.
9. INTELLECTUAL PROPERTY RIGHTS
TandIM shall retain all ownership, copyright and other intellectual property rights in everything developed, designed or created in relation to the provision of the Services (including rights in any of the software used under license by TandIM for the provision of the Services), except that any financial records provided by the Customer to TandIM shall be the Customer’s property.
10. CONFIDENTIAL INFORMATION
TandIM will not disclose information held by it to any person without the Customer’s consent unless compelled to do so by law.
11. DATA PROTECTION
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
11.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and TandIM is the Processor. The Schedule sets out the scope, nature and purpose of processing by TandIM, the duration of the processing and the types of Personal Data and categories of Data Subject.
11.3 Without prejudice to the generality of clause 11.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to TandIM and/or lawful collection of the Personal Data by TandIM on behalf of the Customer for the duration and purposes of this Contract.
11.4 Without prejudice to the generality of clause 11.1, TandIM shall, in relation to any Personal Data processed in connection with the performance by TandIM of its obligations under this Contract:
(a) process that Personal Data only on the documented written instructions of the Customer which are set out in the Schedule unless the Provider is required by Domestic Law to otherwise process that Personal Data. Where TandIM is relying on Domestic Law as the basis for processing Personal Data, TandIM shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits TandIM from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or TandIM has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) TandIM complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) TandIM complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 11.
11.5 The Customer consents to TandIM appointing any of the Sub-Processors as listed in the applicable Services description or related document provided with an Order. Any proposed changes to such prelisted Sub- Processors will be notified to the Customer in writing, thereby giving the Customer the opportunity to reasonably object to such changes (grounds for objection being non-compliance of Data Protection Legislation).
11.6 The Customer shall indemnify and keep indemnified TandIM in respect of all losses suffered or incurred by, awarded against or agreed to be paid by, TandIM and any Sub-Processor arising from or in connection with any non-compliance by the Customer with the Data Protection Legislation.
12. GENERAL
12.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of TandIM including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of TandIM or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) TandIM shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents TandIM from providing any of the Services for more than four weeks, the Customer shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to TandIM.
12.2 Assignment and subcontracting:
(a) TandIM may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of TandIM, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.3 Notices: Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, 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 and shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second working day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next working day after transmission.
11.4 Waiver: A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. 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.
11.5 Severance: If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
11.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
11.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by TandIM.
11.9 Governing law and jurisdiction: This Contract, 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
THE SCHEDULE
DATA PROCESSING DETAILS
1 Subject-matter of processing:
The provision of services by the Supplier to the Customer as outlined in any Order and/or associated documentation.
2 Duration of the processing:
For the duration of any Order/Contract.
3 Nature and purpose of the processing:
Processing activities, such as storage and data transfer will be undertaken by TandIM and Personal Data will be processed to provide the services to the Customer as outlined in an Order and/or associated documentation.
4 Type of Personal Data:
Types of Personal Data as may be supplied by the Customer including name, address, email address, phone numbers, date of birth, national insurance number.
5 Categories of Data Subjects:
Data subjects include the Customer’s representatives and personnel, such as employees, contractors and collaborators and other categories of data subjects as may be supplied by the Customer.
6 Processing Instructions:
As may be agreed in an Order or reasonably provided by the Customer