Terms of business for Foundation and Foundation Plus services

If you have any questions about these Terms of Business please contact us: [email protected]

Terms of Business for our tailored services are available on request.

Your attention is specifically drawn to clauses 7 (Warranty of Authority), 8 (Indemnity) and 9 (Limitation of Liability).

1. DEFINITIONS

1.1 In these Terms of Business the following definitions apply:

“Advertisement” means the advertisement published on the Agency Website on the Client’s behalf;
“Agreement” means the agreement between the parties that is governed by these Terms and Conditions of Business;
“Application Form” means the application form for the relevant Service as set out on the Agency Website;
“Client” means the organisation on behalf of which payment has been made for the Services;
“Agency” means Trustees Unlimited LLP;
“Agency Website” means www.trustees-unlimited.co.uk and/or www.non-executives- unimited.co.uk;
“Fee” means the fee for the relevant Service as set out on the Agency Website;
“Service(s)” means the Foundation service or the Foundation Plus service as selected by the Client when completing the Application Form and as described on the Agency Website;
“Service Period” means the period during which the Agency agrees to provide the Services, as described on the Agency Website;
“Turnover” means (i) the turnover figure shown on the Client’s last annual accounts filed at Companies House or the Charity Commission (as the case may be)

1.2 Unless the context requires otherwise, references to the singular include the plural.

1.3 The headings contained in these Terms of Business are for convenience only and do not affect their interpretation.

2. ENTIRE AGREEMENT

2.1 These Terms of Business shall come into force on the submission of the Application For on behalf of the Client.

2.2 These Terms of Business constitute the entire agreement between the Agency and the Client in respect of the Services and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to their subject matter.

2.3 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms of Business. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these Terms of Business.

2.4 No variation to or alteration of this Agreement shall be valid unless the details of such variation are agreed between the Agency and the Client and are set out in writing and a copy of the varied terms is given to the Client stating the date on which such varied terms shall apply.

3. THE SERVICES

3.1 In return for the Fee, the Agency will provide the Services during the Service Period with reasonable care, skill and diligence.

3.2 The Agency will begin to provide the Services within two working days of receipt of the Fee and all information required by the Agency, as set out in the Application Form.

3.3 Subject to the provisions of the Equality Act 2010, the Agency may for any reason decline to provide the Services and if it does so it will return the Fee within 30 days of receipt.

4. THE FEE

4.1 The Client agrees to pay the fee before the Agency begins to provide the Services.

4.2 The Fee is calculated by reference to the Client’s Turnover and is subject to a discount for NCVO members. If the Client does not have accounts identifying its Turnover, the Client shall pay the maximum fee for the relevant Service, as set out on the Agency Website.

5. CONTENT OF THE ADVERTISEMENT

The Client agrees:

5.1 to be solely responsible for the content of the Advertisement submitted by the Client to be published on the Agency Website; and

5.2 to ensure that all information supplied in the Advertisement is true, accurate, up-to-date and not misleading or likely to mislead or deceive and that it is not discriminatory, obscene, offensive, defamatory or otherwise illegal, unlawful or in breach of any applicable legislation, regulations, guidelines or codes of practice or the copyright, trade mark or other intellectual property rights of any person in any jurisdiction.

6. DATA PROTECTION

The following definitions apply in this clause 6:

Agreed Purposes: The provision and sharing of personal data about any person through via the Client’s account accessible through the Agency Website.
Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003 No. 2426) as amended; any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); [and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Permitted Recipients: the Agency and the Client and their employees and any third parties engaged to perform obligations in connection with the Agreement.
Shared Personal Data: the personal data to be shared between the parties under the Agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject: name, address, contact details, curriculum vitae (including details of employment, education and qualification), national insurance number, financial details, health and background check data, proof of eligibility to work in the UK, Identity, financial and basic criminal records check.

6.1 This clause 6 sets out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes.

6.2 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation.

6.3 Each party shall:

(a) ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under the Agreement of the nature such processing;
(c) process the Shared Personal Data only for the Agreed Purposes;
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by the Agreement;
(f) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
(g) not transfer any personal data outside of the European Economic Area unless the transferor:
(h) complies with the provisions of Article 26 of the GDPR (in the event the third party is a joint controller); and
(i) ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 of the GDPR; or (iii) one of the derogations for specific situations in Article 49 of the GDPR applies to the transfer.

6.4 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:

(a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
(b) promptly inform the other party about the receipt of any data subject access request;
(c) provide the other party with reasonable assistance in complying with any data subject access request;
(d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
(e) assist the other party, at the cost of the other party, 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 other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of the Agreement unless required by law to store the personal data;
(h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
(i) maintain complete and accurate records and information to demonstrate its compliance with this clause 6; and
(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.

7. WARRANTY OF AUTHORITY – THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

The person who submits the Application Form on behalf of the Client hereby warrants that they are duly authorised to do so by the Client and that their application to the Agency for provision of the Services legally binds the Client.

8. INDEMNITY – THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

The Client indemnifies the Agency against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Agency arising out of or in connection with the Client’s breach of its obligations in clause 5.

9. LIMITATION OF LIABILITY – THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

9.1 This clause sets out the entire financial liability of the Agency (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of:

(a) any breach of these terms including any deliberate breach by the Agency or its employees, agents or subcontractors; and
(b) any representation, statement or tortuous act or omission (including negligence) arising under or in connection with these terms.

9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded.

9.3 Nothing in these terms limits or excludes the liability of the Agency:

9.3.1 for death or personal injury resulting from negligence; or

9.3.2 for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Agency.

9.4 Subject to clause 10.2 and 10.3:

9.4.1 The Agency shall not be liable for:

(i) loss of profits;
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses;
(iv) loss of goods;
(v) loss of contract;
(vi) loss of corruption of data or information;
(vii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; or
(viii) any acts or omissions of the Applicant; and

9.4.2 the Agency’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the services to be provided by the Agency shall be limited to the total fee paid to the Agency pursuant to these Terms of Business.

10. FORCE MAJEURE

Neither party shall be in breach of its obligations under these Terms of Business nor liable for delay in performing, or failure to perform, any of its obligations if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for eight weeks, the party not affected may terminate the agreement by giving seven days’ written notice to the affected party.

11. RIGHTS OF THIRD PARTIES

The Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

12. LAW

12.1 The Agreement is governed by the law of England & Wales and is subject to the exclusive jurisdiction of the Courts of England & Wales.

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