DEFINITIONS AND INTERPRETATION

1.1                    In this Agreement:

Actual Live Date means the date when IRIS FMP completes its first payroll run (or parallel run process) for the Customer (as determined by IRIS FMP);

Additional Charge means any additional fees charged in accordance with the Fee Policy;

Agreed Live Date means a date agreed by IRIS FMP and the Customer when the parties anticipate the first payroll run will be completed and described as such in the Order Form;

AML means Anti Money Laundering Legislation. IRIS FMP has a legal requirement to perform the relevant annual checks to ensure compliance;

BACS means Bankers Automated Clearing Services Limited;

Business Day means any day other than a Saturday, a Sunday or a day which is a public holiday in England;

Change Control means the process whereby the Customer requests new or additional services from IRIS FMP as defined in clause 8.1;

Commencement Date means the date that the Agreement is signed by the Customer or the date when the Customer accepts any change to the Services in accordance with Change Control;

Confidential Information means information of commercial value which has been kept confidential by the party from whom the information originates and which has not come into the public domain during the Term in breach of any obligation of confidence;

Customer means the customer identified as such on the Order Form;

Customer Data means all data which is supplied to IRIS FMP by or on behalf of the Customer and relating to the Customer’s employees, business, operations or clients; and any  Personal Data in respect of which the Customer is the Data Controller (as defined in the Data Privacy Laws);

Customer Hardware means the computers and other equipment to be used by the Customer in conjunction with the Software;

Customer Representative means a person duly authorised by the Customer to act on its behalf for the purposes of this Agreement and specified in the Order Form;

Data Privacy Laws means GDPR and any other applicable law on data protection or data privacy;

Dispute Resolution Procedure means the procedure for dealing with disputes under this Agreement as set out in clause 12;

Documentation means the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable and/or machine readable forms supplied by IRIS FMP in relation to the Services;

Fees means the fees and expenses payable under this Agreement as set out in the Order Form, or otherwise, and charged in accordance with the Fee Policy as amended from time to time;

Fee Policy means the IRIS FMP fee policy;

IRIS FMP means IRIS FMP Payroll Services Ltd.

IRIS FMP Relief Event means (a) any negligent act or omission or any failure or delay on the part of the Customer in relation to a Customer Obligation; or (b) any error, inaccuracy or omission in any Customer Data, or (c) any failure in the receiving, transmission or execution of Customer Data or payment instructions by BACS;

Force Majeure Event means an unforeseeable and insurmountable act, event or set of circumstances which affects the performance by a party of its obligations under this Agreement and which is beyond that party’s reasonable control;

GDPR means EU Regulation (EU) 2016/679 or such UK legislation intended to replace or supersede it;

HMRC means Her Majesty’s Revenue and Customs;

Initial Term means the period commencing on the Commencement Date and expiring 12 months from the Actual Live Date;

Intellectual Property Rights means patents, trade marks, service marks, logos, get-up, trade names, internet domain names, rights in designs, copyright (including rights in computer software) and moral rights, database rights, semi-conductor topography rights, utility models, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world;

Liability Fee means the aggregate of the Set Up Fee and the total Payslip Fees paid by the Customer for the specific payroll in which the liability occurred in the 12 months prior to the date of determination of the liability;

Normal Working Hours means the hours 9:00 am to 5:30 pm UK time, Monday to Thursday and 9:00 am to 5:00 pm on Fridays, on Business Days;

Ongoing Product Training / Consultancy means each system user will be required to attend either a Consultancy or a Training day in order to refresh or further advance their system knowledge;

Order Form means the IRIS FMP order form;

Payroll Manager means the IRIS FMP employee who has overall responsibility for the provision of the Services and identified in the Order Form;

Payslip means the calculation and production by IRIS FMP of a payslip for a Customer employee;

Payslip Fee means the payslip fee described as such in the Order Form;

Payslip Threshold means the number of Payslips stated in the Order Form on which the Payslip Fee is based, beyond which additional Payslips are processed at an Additional Charge;

Personal Data means data that is subject to protection under Data Privacy Laws;

Planned Activities means a planned chargeable event or action, agreed to take place at a time agreed between the Customer and IRIS FMP;

Primary Client means the Customer;

Proposal has the meaning given to it in clause 8.1.2;

Recurring Monthly Charges means payments to be made each month to IRIS FMP by the Customer for provision of the Services;

Renewal Term means a period equal to the Initial Term;

Review Date means each anniversary of the Actual Live Date;

Secondary Client means any entity for which the Primary Client is procuring the Services (IRIS FMP will not have any contractual relationship with any Secondary Clients);

Secondary Client Addendum means the IRIS FMP addendum to this Agreement which sets out the details of any Secondary Clients;

Services means the services to be provided by IRIS FMP to the Customer and as described in the Order Form;

Set Up Fee means the set up fee described as such and set out in the Order Form in accordance with the Fee Policy;

Software means any software provided by IRIS FMP to the Customer;

Term has the meaning given to it in clause 9.1;

Termination means expiry or termination of this Agreement for any reason;

Termination Fee means the fee payable by the Customer in the event set out in clause 9.10;

TUPE Regulations means the Transfer of Undertakings (Protection of Employment) Regulations 2006;

Users means employees of the Customer authorised to access the Software;

VAT means value added tax chargeable under the Value Added Tax Act 1994 and any similar additional tax; and

Viruses means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2                    Words and phrases which have defined meanings in the Data Privacy Laws have the same meanings when used in this Agreement. To the extent that any UK legislation supersedes or replaces EU Regulation (EU) 2016/679, any reference in this Agreement to a term defined in or provision of the GDPR shall be interpreted as a reference to the nearest equivalent term or provision in such legislation.

1.3                    Wherever the words other, in particular, include, including or for example are used in this Agreement, they are to be construed without limitation.

1.4                    A reference to a statute or a statutory instrument is a reference to it as it is in force at the relevant time, taking account of any amendment, extension or re-enactment, and includes any subordinate legislation then in force under it.

1.5                    If there is a conflict or inconsistency between any of the documents forming this Agreement, the following order of precedence will apply: these General Terms and Conditions; and then, the Fee Policy; and then, the Order Form.

2                       SERVICES

2.1                    Time will not be of the essence in achieving the Agreed Live Date in respect of the Services.

2.2                    The Services shall begin from the Actual Live Date and continue for the Term.

2.3                    The Customer shall pay the Fees for the Services.

2.4                    Planned Activities that are cancelled or postponed by the Customer, shall be subject to a charge.

2.5                    Any Consultancy and Training days purchased shall be valid for a period of 1 year from the point of contact signature, after which, they expire.

3                       SOFTWARE

3.1                    Where relevant, IRIS FMP grants to the Customer a non-exclusive, non-transferable licence to use the Software in the course of its business and also to assist the performance of the Services, subject to clauses 3.2.

3.2                    The licence is subject to the following:

3.2.1                  the Customer may not disassemble, decompile, reverse engineer, modify, adapt, make error corrections, attempt to copy, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Software and/ or Documentation (as applicable) in any form or media or by any means except as permitted by this Agreement, by law or with the prior written consent of IRIS FMP;

3.2.2                  the Customer may not, subject to any provisions in this Agreement, license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the Software and/ or Documentation available to any third party except the authorised Users without the prior written consent of IRIS FMP;

3.2.3                  the Customer may not access all or any part of the Software and/ or Documentation in order to build a product or service which competes with the Software and/ or the Documentation;

3.2.4                  the Customer may not make adaptations or variations of the Software without the prior written consent of IRIS FMP;

3.2.5                  if any of the Customer Hardware becomes inoperable for any reason, the Software may be temporarily used on backup equipment until such hardware is repaired; and

3.2.6                  the Software may only be used by employees or contractors who have been properly trained in the use of the Software by IRIS FMP and are users approved by IRIS FMP.

4                       CONFIDENTIALITY

4.1                    IRIS FMP shall treat as confidential all Confidential Information of the Customer supplied under this Agreement.  IRIS FMP shall not divulge any such Confidential Information to any person except to its own employees and then only to those employees who need to know the same.

4.2                    IRIS FMP may provide any subcontractor with such Customer’s Confidential Information as it needs to know in order to perform its obligations under this Agreement, provided that such sub­contractor has first entered into a written obligation of confidentiality.

4.3                    The Customer shall treat as confidential all Confidential Information of IRIS FMP supplied to or obtained by the Customer during the performance of this Agreement.

4.4                    The Customer shall not, without the prior written consent of IRIS FMP, divulge any part of IRIS FMP’s Confidential Information to any person other than employees, officers and advisers of the Customer who need to know the same for purposes relating to this Agreement.

4.5                    The Customer undertakes to ensure that the persons mentioned in clause 4.4 above are made aware, prior to the disclosure of any part of IRIS FMP’s Confidential Information, that the same is confidential and that they owe a duty of confidence to IRIS FMP.

4.6                    The obligations under this clause 4 shall remain in full force and effect notwithstanding Termination.

5                       DATA PROTECTION

5.1                    The following details apply to the processing being carried out under this Agreement:

5.1.1                  the Personal Data will be processed for the provision of the Services;

5.1.2                  the Personal Data will be processed for the term of this Agreement;

5.1.3                  the specific processing activities will be the processing of HR and payroll information; and

5.1.4                  the Personal Data processed concern the HR and payroll information of the Customer’s employees.

5.2                    Each party will comply with the Data Privacy Laws applicable to it in connection with the Services and will not cause the other party to breach any of its obligations under Data Privacy Laws.

5.3                    The Customer:

5.3.1                  will provide to IRIS FMP on demand all such information as IRIS FMP may reasonably request in connection with the performance of its obligations under this Agreement, including but not limited to the information which IRIS FMP needs in order to comply with article 30(2) GDPR (if not already within IRIS FMP’s knowledge); and

5.3.2                  represents and warrants that all such information will be correct, complete and not misleading, and that it has disclosed to IRIS FMP all information relating to the Personal Data which is relevant to IRIS FMP’s performance of its obligations under this Agreement or the Data Privacy Laws in respect of the Personal Data.

5.4                    IRIS FMP acknowledges, and will comply with, its obligation under article 28(3) GDPR to inform the Customer if, in its opinion, an instruction given by the Customer infringes the Data Privacy Laws.  However, the Customer acknowledges and agrees that IRIS FMP is not a law firm and does not give legal advice, and therefore IRIS FMP will have no liability whatsoever to the Customer arising out of or in connection with the content or effect of any such opinion, or whether or when any such opinion is given or not given, or otherwise.

5.5                    Where IRIS FMP processes Personal Data (as processor) on behalf of the Customer (as controller) in connection with the Services, IRIS FMP will:

5.5.1                  process that Personal Data only in accordance with this Agreement or (at the Customer’s cost) such different or additional instructions received in writing from the Customer from time to time.  If compliance with such additional instructions prevents or hinders the performance of IRIS FMP’s obligations under this agreement, IRIS FMP will be excused from the performance of the affected obligations, without liability;

5.5.2                  ensure that all of its personnel with access to that Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

5.5.3                  take all measures required pursuant to Article 32 of the GDPR to implement technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and accidental loss, destruction, damage, alteration or disclosure; and detect and report Personal Data breaches within good time;

5.5.4                  engage such other processors as it considers appropriate (each, a “Sub-Processor”) to process that Personal Data on its behalf.  Details of the current Sub-Processors used are available on request from IRIS FMP.  If IRIS FMP wishes to engage a different or an additional Sub-Processor, it will first inform the Customer of the identity of the proposed Sub-Processor and provide the Customer with a reasonable opportunity (the length of which will be determined by IRIS FMP acting reasonably and notified to the Customer) to object to that Sub-Processor’s engagement.  If the Customer does so object it will inform IRIS FMP within such time period, giving reasons for the objection, and if IRIS FMP cannot address the reasons for it to the Customer’s reasonable satisfaction IRIS FMP may choose not to appoint that Sub-Processor, or it may choose to appoint that Sub-Processor regardless, in which case the Customer will be entitled to terminate this Agreement by notice to IRIS FMP;

5.5.5                  if IRIS FMP does appoint a new or different Sub-Processor it shall bind that Sub-Processor by a written agreement complying with the requirements of Article 28 GDPR as it applies to that Sub-Processor’s processing activities and IRIS FMP shall remain liable to the Customer for the acts and omissions of that Sub-Processor, as if they were the acts or omissions of IRIS FMP itself;

5.5.6                  taking into account the nature of the processing and insofar as is possible, assist the Customer (at the Customer’s cost) with the fulfilment of the Customer’s obligation to respond to requests by data subjects to exercise their rights under the Data Privacy Laws over that Personal Data, by providing relevant information requested by the Customer and copies of relevant Personal Data requested by the Customer within a reasonable time and in a commonly used electronic format, in each case unless that information or relevant Personal Data is already accessible to the Customer without IRIS FMP’s intervention;

5.5.7                  taking into account the nature of the processing and the information available to IRIS FMP, assist the Customer (at the Customer’s cost) in ensuring the Customer’s compliance with regards to security of processing under article 32 GDPR, in carrying out privacy impact assessments pursuant to article 35 GDPR and prior consultations pursuant to article 36 GDPR in respect of that Personal Data, by providing such relevant information about the processing carried out by IRIS FMP as the Customer may reasonably request;

5.5.8                  inform the Customer of any personal data breach which occurs in respect of the Personal Data under IRIS FMP’s control without undue delay after becoming aware of it, providing sufficient details to enable the Customer to comply with its own notification obligations (and IRIS FMP may provide such details in stages as they become available to it, provided that it is reasonable to do so);

5.5.9                  after the termination of the Services, delete or return to the Customer (at the Customer’s option and cost) all copies of the Personal Data in its possession or control, and procure that any relevant Sub-Processor does the same, unless the applicable laws of the United Kingdom or European Union require IRIS FMP or that Sub-Processor to retain a copy of it;

5.5.10                make available to the Customer on demand all information reasonably necessary to demonstrate compliance with this clause 5.5, to the extent that it is not already available to the Customer; and

5.5.11                allow the Customer, or its external auditor (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit IRIS FMP’s data processing activities insofar as they relate to the Personal Data, to enable the Customer to verify that IRIS FMP is in compliance with this clause 5.5, provided that any such inspection or audit shall be subject to the provisions of clause 5.6.

5.6                    In exercising its right of inspection and audit, the Customer:

5.6.1                  shall do so no more frequently than once per calendar year, unless required by a supervisory authority;

5.6.2                  shall meet IRIS FMP’s reasonable costs incurred as a result of any such inspection or audit, unless that inspection or audit shows IRIS FMP to be in breach of clause 5.5;

5.6.3                  (or its auditor, as the case may be) will not thereby be entitled to access to the personal data or confidential information of any other customer of IRIS FMP, nor to direct access to any computer or storage system unless explicitly required by a supervisory authority;

5.6.4                  (or its auditor, as the case may be) shall comply with IRIS FMP’s reasonable policies while onsite, including its safety and security policies; and

5.6.5                  shall ensure that any information coming into its possession (or that of its auditor, as the case may be) as a result of such inspection or audit shall be and remain the confidential information of IRIS FMP and the Customer will (and will procure that its auditor will, as the case may be) treat it accordingly.

5.7                    IRIS FMP and the Customer acknowledge their mutual obligations under Chapter V GDPR in relation to international transfers of Personal Data, and agree to address those obligations as follows.  IRIS FMP may transfer the Personal Data outside of the United Kingdom without the Customer’s prior written agreement provided that IRIS FMP and the Customer agree to enter into such arrangement as may reasonably be required to provide adequate safeguards in respect of that transfer, such as entry into standard-form contracts governing such transfers which have been approved by the EU Commission and/or the UK Information Commissioner (as the case may be).

5.8                    The Customer grants to IRIS FMP and any Sub-Processor, a non-exclusive, non-transferable licence to use the Personal Data and all other information and documents provided to IRIS FMP in order for IRIS FMP to provide the Services.

5.9                    Nothing in this clause 5 will relieve the Customer from any of its responsibilities and liabilities under Data Privacy Laws.

6                       TUPE REGULATIONS

6.1                    IRIS FMP and the Customer do not consider or intend that the TUPE Regulations apply as a result of entering into this Agreement.

6.2                    If for any reason the TUPE Regulations do apply the Customer shall indemnify and keep IRIS FMP indemnified against all and any claims, costs, expenses, awards, or liabilities (including without limitation legal expenses and other professional fees) whatsoever and howsoever arising, incurred or suffered by IRIS FMP arising directly or indirectly from the application of the TUPE Regulations to this Agreement in relation to a transferring employee.

7                       LIMITATION OF LIABILITY

7.1                    Nothing in this Agreement shall have the effect of limiting IRIS FMP’s liability for: fraud; death or personal injury caused by IRIS FMP or its employees, agents or sub-contractors’ negligence; or any other liability that cannot be limited or excluded by law.

7.2                    IRIS FMP shall not have any liability to the Customer for: any category of indirect, special or consequential loss or damage; or any loss of profit.

7.3                    IRIS FMP does not accept any responsibility or liability for the actions or omissions of any third party in connection with the provision of the Services (including, without prejudice to the generality of the foregoing, the receiving, transmission or execution of data and the transmission of payment instructions by BACS).

7.4                    Subject to clauses 7.1 and 7.2, the total liability of IRIS FMP, whether in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement or any collateral contract, shall be limited to a maximum sum (including interest and costs) equal to the Liability Fee.

8                       CHANGE CONTROL

8.1                    The Customer may request a change (“Change”) to the Services in accordance with the following:

8.1.1                  the Customer shall request the Change in writing;

8.1.2                  IRIS FMP shall inform the Customer in writing (“Proposal”) whether the Change is possible and if so the cost of implementing the Change and the increase, if any, in the Fees;

8.1.3                  if the Customer accepts the Proposal in writing, the Agreement shall be deemed to be amended on the terms set out in the Proposal; and

8.1.4                  if the Customer does not accept the Proposal, the Agreement shall continue on the terms originally agreed in this Agreement.

9                       TERM AND TERMINATION

9.1                    This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with these terms, for the Initial Term and any Renewal Term activated in accordance with clause 9.2 (“Term”). Where any additional Services have been agreed via the Change Control process then such new Services will commence on the date that the additional Order Form is signed and will run in conjunction with the Initial Term or Renewal Term as applicable.

9.2                    Upon expiry of the Initial Term (or any Renewal Term), the Term shall automatically continue for a further Renewal Term unless or until either party has served on the other party at least six months’ written notice stating its wish to terminate expiring on the last day of the then Initial Term or Renewal Term, as may be applicable.

9.3                    Either party may terminate this Agreement immediately by written notice to the other if the other party: (i) commits any material breach of this Agreement and (if the breach can be remedied) it fails to remedy the breach within 30 days of such notice; or (ii) commits a material breach of this Agreement which is not capable of being remedied.

9.4                    Without limitation, any failure by the Customer to pay the Fees when required will be a material breach of this Agreement.

9.5                    Failure to supply the AML information required by IRIS FMP to carry out the necessary checks, will result in a material breach of this Agreement

9.6                    Either party may terminate this Agreement immediately if the other party ceases carrying on business in the normal course, or calls a meeting of its creditors or makes a proposal for a voluntary arrangement within the meaning of Part 1 of the Insolvency Act 1986 or for any other composition or scheme of arrangement with (or assignment for the benefit of) its creditors, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if a trustee, receiver, administrative receiver or other similar officer is appointed or a meeting is convened for the purpose of considering a resolution for its winding up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or it is the subject of an administration order, or is subject to any equivalent process or proceedings in any jurisdiction anywhere in the world.

9.7                    Except where IRIS FMP has terminated this agreement under clauses 9.2 to 9.4, IRIS FMP shall provide the Customer, in a IRIS FMP standard format, such assistance as the Customer may reasonably require to facilitate the orderly transfer of services similar to the Services to the Customer or to another supplier.

9.8                    On Termination, IRIS FMP will either (a) if so requested by the Customer return in IRIS FMP standard format (i) the Customer Data in its possession in respect of the period of 3 years before Termination at no charge; and (ii) the Customer Data in its possession over 3 years subject in both cases to payment of all Fees current at the date of the request; or (b) if not so requested by the Customer, destroy any Customer Data in its possession.

9.9                    If the Customer requires any services from IRIS FMP after the date of Termination, IRIS FMP may at its discretion agree to provide such services on a time and materials basis.

9.10                   In the event of early Termination by the Customer, except under clause 9.6 or for IRIS FMP’s material breach of this Agreement, IRIS FMP will charge the Customer a Termination Fee for each payroll terminated. The Termination Fee will be calculated by multiplying the number of months left in the Initial Term or Renewal Term (as applicable) by the last Recurring Monthly Fee charged to the Customer. Termination Fees are payable on demand.

10                     IRIS FMP RELIEF EVENT

Notwithstanding any provision to the contrary in this Agreement, IRIS FMP shall not be in default or liable for any failure or delay in the performance of its obligations under this Agreement where such failure or delay is caused by the occurrence of a IRIS FMP Relief Event.

11                     STAFF

During the Term of this Agreement and for a period of 12 months after its Termination neither party shall solicit the services of any employee of the other party who has been engaged in the provision or receipt (as appropriate) of the Services or in the management of this Agreement.

12                     DISPUTE RESOLUTIONS

12.1                   Any dispute which may arise between the parties concerning this Agreement shall be determined as provided in this clause 12.

12.2                   For the purpose of this clause 12, a dispute shall be deemed to have arisen when one party serves on the other a notice in writing stating the nature of the dispute.

12.3                   After service of the notice of dispute, the following procedure shall be followed by the parties (and all periods specified in this clause 12 shall be extendable by mutual agreement):

12.3.1                within 5 Business Days, the Payroll Manager and the Customer Representative shall meet to attempt to settle the dispute; and

12.3.2                if the Payroll Manager and the Customer Representative are unable to reach a settlement within 5 Business Days from the date of service of the notice, the head of IRIS FMP and a director of the Customer shall meet (or discuss on the telephone) within the following 5 Business Days to attempt to settle the dispute.

12.4                   If no settlement is reached under the provisions of this clause 12 then clause 14.11 shall apply.

13                     FORCE MAJEURE

Neither party will be liable for failures, delays or reduced performance caused by any Force Majeure Event provided that it uses reasonable endeavours to perform regardless of the Force Majeure Event.  Only those obligations of the affected party that are affected by the Force Majeure Event will be excused.  Nothing in this clause 13 will excuse or relieve the Customer’s obligation to pay the Fees.

14                     GENERAL

14.1                   Any provision of this Agreement that expressly, by implication or by its nature is intended to come into or continue in force on or after Termination will remain in full force and effect following Termination.

14.2                   The parties are independent contractors. Consequently, the provisions of this Agreement will not, under any circumstances, be interpreted as creating any agency or partnership between the parties. Neither party may bind the other in any manner whatsoever or in favour of anyone whomsoever, except in accordance with this Agreement.

14.3                   The Customer will not assign or transfer all or part of its rights and/or obligations under this Agreement to any third party without IRIS FMP’s prior written consent, which IRIS FMP will not unreasonably withhold or delay. IRIS FMP may assign or transfer this Agreement to any company within its company group without the Customer’s consent.

14.4                   IRIS FMP may subcontract the performance of any of its obligations under this Agreement, provided that IRIS FMP will remain liable to the Customer for the acts and omissions of its subcontractors.

14.5                   This Agreement contains the whole agreement between the parties, and supersedes all prior agreements, arrangements and understandings between the parties, relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Agreement or not) (each, a Representation) other than as expressly set out in this Agreement. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation will be for breach of this Agreement. Nothing in this clause 14.5 will limit or exclude any liability for fraud.

14.6                   These General Terms and Conditions apply to this Agreement 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.  In particular, any terms or conditions attached to or forming part of any purchase order issued by the Customer will be null and void and of no effect.

14.7                   If any provision of this Agreement is held to be invalid or unenforceable for any reason, that provision will, if possible, be adjusted rather than voided, in order to achieve a result which corresponds to the fullest possible extent to the intention of the parties. The nullity or adjustment of any provision of this Agreement will not affect the validity and enforceability of any other provision of this Agreement.

14.8                   Any notice required or permitted to be given under this Agreement must be in writing and delivered personally, sent by courier, first class post or by email, such that the notifying party can prove delivery of the notice, in each case to the address of the receiving party set out in the Order Form.

14.9                   The failure of a party to enforce a provision of this Agreement or any rights with respect thereto (or any delay in so doing) will not be a waiver of that provision or right, or in any way affect the validity of this Agreement. A waiver of any claim for a breach of this Agreement will not operate to waive any claims in respect of any other breach.

14.10                 This Agreement and all non-contractual obligations arising out of or in connection with it are governed by English law and subject to the exclusive jurisdiction of the English courts.

14.11                 Assignment of interest and foreign exchange commission to IRIS FMP Global. The Customer understands that no interest will be paid by IRIS FMP Global to the Customer in respect of any funds held by IRIS FMP Global (e.g. a Partial Prepayment, Additional Partial

Prepayment, or funds maintained in a Holding Balance, etc.), or foreign exchange commission made on the transfer of the Customer’s funds.

FULLY MANAGED SERVICE

Service Specific Terms and Conditions

A completely outsourced solution, the IRIS FMP payroll team take on the responsibility of running the payroll from start to finish, with a dedicated Payroll Manager and team to support them.

If IRIS FMP has agreed to provide the Customer with its Fully Managed Service, these Service Specific Terms and Conditions form part of the Services Agreement between the Customer and IRIS FMP which also consists of the Order Form, the General Terms and Conditions, Fee Policy and the other documents referred to in them. Capitalised terms used in these Service Specific Terms and Conditions have the meanings given to them in the General Terms and Conditions.

1                       SERVICES

1.1                    Subject to payment of the Fees, IRIS FMP shall:

1.1.1                  input all Customer Data, which is received by IRIS FMP in the agreed format by the agreed time, for inclusion in that month’s pay run;

1.1.2                  calculate the Customers payroll, including calculations for Income Tax, National Insurance and Attachment of Earnings Orders;

1.1.3                  ensure that the total net pay figures are signed off in a timely manner and in accordance with the payroll schedule and the BACS listing provided;

1.1.4                  ensure payment via BACS of all employee payments where so required;

1.1.5                  ensure payment of PAYE and NICs, by BACS, to the HMRC by the statutory deadlines each month;

1.1.6                  provide tax year end work, including relevant submissions to the HMRC, production of all P60’s for employees as at 5 April of the relevant year;

1.1.7                  process year end returns and make relevant submissions to HMRC;

1.1.8                  prepare and dispatch to an agreed location in accordance with the agreed payroll-processing schedule: control reports and electronic files (as stated in the payroll procedures); third party reports (as stated in the payroll procedures); payslips ready for distribution by the Customer; and submission of the BACS file to BACS for payment to the employee bank accounts;

1.1.9                  run standard management reports in accordance with agreed deadlines;

1.1.10                take responsibility for the return of all statutory documentation to the employee on notification of their leave date;

1.1.11                inform the relevant parties when an employee leaves with an Attachment of Earnings Order in force;

1.1.12                administer court order deductions from court documents that have been received from the authorised body and arrange timely payments to the relevant authorities;

1.1.13                process requests to the Department for Work and Pensions for missing National Insurance numbers on a periodic basis;

1.1.14                ensure that the correct file, with the correct processing date, is transmitted to BACS in accordance with the agreed schedule; and

1.1.15                receive data on behalf of the Customer submitted from third parties such as the HMRC and Courts.

2                       CUSTOMER OBLIGATIONS

2.1                    The Customer shall:

2.1.1                  promptly sign off any checking reports;

2.1.2                  collate, batch, authorise and forward to IRIS FMP all documents relevant for the Services in an agreed format, within agreed timescales. Failure to do so may result in non-processing of data received outside of the agreed timescales. All data submitted to IRIS FMP will be deemed to have been duly authorised;

2.1.3                  provide IRIS FMP with correct employee data (bank account details, National Insurance numbers). The Customer shall be liable for any penalties incurred for the use of temporary National Insurance numbers;

2.1.4                  provide the sign off, as authorisation of payment, of PAYE and NICs;

2.1.5                  provide IRIS FMP with notification of all leavers;

2.1.6                  provide all data to IRIS FMP within the agreed timescales;

2.1.7                  update IRIS FMP of any changes to the payroll within pre-agreed cut off deadlines;

2.1.8                  alert IRIS FMP to any changes required following review of the checking reports within agreed deadlines;

2.1.9                  complete the P35 declaration;

2.1.10                agree BACS limits with the sponsoring bank, and ensure that any payroll submitted for processing falls within this limit; and

2.1.11                if approval of the Payroll is provided with a signature, ensure authorised signatories are available to sign off the payroll for BACS transmission, within pre-agreed timescales.

16.1.12               Anti Money Laundering (AML) Legislation requires Companies such as IRIS FMP to complete certain checks on clients to ensure that they know who their clients are.  A key milestone to finalise the implementation process for your payroll will be for you to provide specific AML information to IRIS FMP (the required information will be detailed in your welcome pack) which IRIS FMP will then use to complete the relevant AML checks using a specialised AML Service Provider.

2.1.13                Failure to supply the AML information required by IRIS FMP to carry out the necessary checks, will result in a material breach of this Agreement, as per clause 9.5

3                       WARRANTY

3.1                    IRIS FMP warrants that it will perform the Services in accordance with good industry practice.

3.2                    Save for the warranty in clause 17.1 above, all other conditions, warranties or other terms which might have effect between IRIS FMP and the Customer or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality

and fitness for purpose.

4                       EMPLOYMENT GUARDIAN SERVICES

Introduction

4.1                    Please read this clause carefully as it contains the terms and conditions upon which any Employment Guardian Services will be provided to you. Employment Guardian Services are provided to the Customer by SME Advisor (defined below) and this clause 4 governs the Customer’s agreement with SME Advisor in respect of the provision of any Employment Guardian Services provided to it. IRIS FMP is not a party the Customer’s agreement with SME Advisor.

Definitions

4.2                    In these Terms and Conditions, the following words and phrases shall bear the following meanings and may be used in the singular or plural as appropriate:

4.3                    “Contract” means the SME Advisor’s proposal for the provision of Human Resources and Health & Safety Consultancy Services and the Customer’s acceptance thereof

4.4                    “Consultancy” means the Human Resources and Health & Safety advice given by SME Advisor to the Customer based on the information provided to it by the Customer.

4.5                    “Consultancy Charges” means the charges specified in the Contract together with any additions or deductions therefrom agreed in writing between the Customer and SME Advisor.

4.6                    “Consultancy Services” means the Human Resources and Health & Safety services set out in Contract and any Variation thereto.                    

4.7                    “SME Advisor” means SME Advisor Limited whose registered office is situated at Amelia House, Crescent Road, Worthing BN11 1QR.

4.8                    References to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted or supplemented.

4.9                    The headings of these conditions are inserted for convenience only and shall not affect their construction.

Premises and Facilities

4.10                   The Customer shall arrange for or grant SME Advisor access at all reasonable times to its premises as may be necessary for the Consultancy.

Variations

4.11                   If the Customer requires any reasonable variation or omission to the Consultancy Services SME Advisor shall identify the impact of the proposed variation or omission of the Consultancy Services and the Consultancy Charges and notify the Customer of the same in writing within a reasonable period of receipt of the Customer’s written request. The Contract and the terms thereof shall remain unchanged unless and until the Customer and SME Advisor agree any variation in writing (herein referred to as a “Variation”)

Company Obligations

4.12                   SME Advisor shall exercise reasonable skill, care and diligence in the performance of the Consultancy Services.

Assignment

4.13                   Neither party shall assign any of its rights or obligations under the Contract without the prior written consent of the other party, which consent shall not be unreasonably withheld.

Professional Indemnity Insurance

4.14                   SME Advisor maintains professional indemnity insurance and shall provide evidence of such cover when requested by the Customer.

4.15                   SME Advisor shall be entitled to suspend performance of the Consultancy Services until the payment of all money due to it in accordance with invoices delivered to the Customer have been paid provided that no such suspension may take place unless SME Advisor has given written notice requiring payment of an overdue sum and the Customer has failed to make payment to SME Advisor within seven days of the date of the notice.

4.16                   If any part of any invoice is disputed or queried by the Customer, it will promptly notify SME Advisor of the reason for the dispute and both parties will use their reasonable endeavours to settle the dispute forthwith.   The Customer shall not delay payment of any undisputed amount of the invoice.

Extension of Time and Additional Cost

4.17                   If SME Advisor is delayed or impeded in the performance of its obligations by any act or omission of the Customer its servants or agents then SME Advisor shall be entitled to be paid any additional costs thereby incurred by it with an allowance for profit and, where appropriate, an extension of the time for completion of the Consultancy Services.

4.18                   Mistakes and Delays in the Provision of Information

4.19                   If additional costs or delay are occasioned by any discrepancies, error or omissions in any information supplied by the Customer to SME Advisor then the Customer shall pay such additional costs to SME Advisor and shall allow an extension of time for completion of the Consultancy Services.

Insolvency and Bankruptcy

4.20                   If either party should become insolvent or bankrupt, or have a receiving or administration order made against it or compound with its creditors, or being a corporation, commence to be wound up (not being a members’ voluntary winding up for the purpose of reconstruction or amalgamation) or carry on its business under an administration or administrative receiver for the benefit of its creditors or any of them then the other party shall be at liberty either:

4.21                   to terminate the contract forthwith by notice in writing to the other or to the administrative receiver or administrator or liquidator or to any person in whom the Contract may become vested or

4.22                   to give such administrative receiver, administrator, liquidator or other person the option of carrying out the Contract subject to their providing a guarantee for the due and faithful performance of the Contract up to an agreed amount, and clearing any outstanding debt that there may be with “SME Advisor”.

Confidentiality

4.23                   SME Advisor and the Customer shall keep confidential all information of the other party, whether such information is designated as confidential or not, obtained under or in connection with the Contract or the Consultancy Services and shall not divulge the same to any third party without the written consent of the other party.  The provisions of this clause shall not apply to any information in the public domain otherwise than by breach of the Contract; or information from a third party who is free to divulge the same.

4.24                   SME Advisor and the Customer shall divulge confidential information only to those employees who are directly involved in the Contract or have use of equipment and/or software used in connection with the Contract and shall ensure that such employees are aware of and comply with these obligations as to confidentiality.

4.25                   SME Advisor may refer to the Contract or to the fact that the client is its customer with the prior written consent of the Customer which shall not be unreasonably withheld.

Data Protection

4.26                   The Customer understands and accepts that SME Advisor may collect and keep a record of information concerning its business and individuals with whom it is involved, which may include information contained in the Contract

4.27                   The Customer understands and accepts that SME Advisor may use credit reference agencies to verify its identity under the Contract.  SME Advisor will record the enquiries made about the Customer.

4.28                   The Customer is entitled to receive a copy of the information maintained about it in SME Advisor’s records by making written application to it and on payment of a fee.

4.29                   The Customer is entitled to receive a copy of the information maintained about it by a credit reference agent.

Rights of Third Parties

4.30                   Unless expressly provided to the contrary, nothing herein or in the Contract confers or purports to confer on any third party any benefit or any right to enforce any term of these Terms and Conditions or the Contract and none of the terms of the Contract are enforceable pursuant to the provisions of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to the Contract.

Notices

4.31                   All parties to the Contract understand and accept that communications and materials to be provided under the Contract and these Terms and Conditions will be provided in the English language and that the English language will be the controlling language for all the matters between the parties to the Contract.

4.32                   Notice, information or other correspondence (“Notices”) may be given by being handed over to the other party or by being sent to the other party’s address by email, first or second class post.

4.33                   Each party’s address shall be the last address that has been advised to the other party in writing.  Each party shall promptly notify any change of address to the other in writing.

4.34                   Any Notice posted shall be deemed to have been received at the time when, in the ordinary course, it would have been received.

Intellectual Property Rights

4.35                   Unless otherwise agreed in writing, all intellectual property rights arising out of the Contract shall vest in SME Advisor. The Customer shall have a worldwide, non-exclusive, non-transferable, royalty free license to use, and have used, the intellectual property for any purpose.

Records

4.36                   SME Advisor shall maintain records of the Consultancy Services provided under the Contract for a period of two years from completion of the Contract.   SME Advisor shall provide copies of such records to the Customer as may be reasonably required on request and the Customer shall reimburse SME Advisor with the reasonable costs incurred in preparing and supplying the copies.

Governing Law and Jurisdiction

4.37                   These terms and conditions and the Contract shall be governed by and construed in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English Courts

Fair use

4.38                   To offer you a low monthly subscription we operate a Fair Use Policy. This should be interpreted as one phone call per subject per month or up to 30 minutes’ telephone consultation.

Cost Additional advice, letters and meeting attendance are available but are subject to a charge. We will always notify you of the costs beforehand so that you’ll always stay in control. Additional charges will be collected in accordance with our normal terms and conditions.

FEE POLICY

This Fee Policy forms part of the Agreement between the Customer and IRIS FMP which also consists of the Order Form, the General Terms and Conditions and the other documents referred to in them. Capitalised terms used in this Fee Policy have the meanings given to them in the General Terms and Conditions.

One-off Fees will be payable upon the Commencement Date.

1                       SET UP FEE

1.1                    The Set Up Fee covers costs for configuration, data transfer and implementation of the Services.

1.2                    Upon signature of the contract the Set Up Fee and first Recurring Monthly Fee will be invoiced as per our standard Payment Provisions (below).

2                       RECURRING MONTHLY CHARGES                                              

2.1                    All Recurring Monthly Charges will be charged from the Agreed Live Date.

2.2                    The Recurring Monthly Charges will be the calculation of Payslip Fee x Payslip Threshold (and any other fess detailed in the Order Form or in accordance with Change Control) and shall be charged monthly in arrears.

4                       ADDITIONAL CHARGES

4.1                    IRIS FMP reserves the right to charge an Additional Charge for any additional service including but not limited to:

4.2                    Supplementary Pay runs in addition to the standard payroll processing schedule;

4.3                    additional work for IRIS FMP, generated due to incorrect or incomplete Customer Data or an error by the Customer;

4.4                    extensions to agreed deadlines;

4.5                    Year End processing and reporting, charged at the equivalent of one month’s processing fee (subject to a minimum charge of £99 or as published from time to time);

4.6                    manual calculations;

4.7                    ad hoc reports;

4.8                    calculation of payments to ex-patriates;

4.9                    separate expense payruns;

4.10                   P60 and Payslip reprints or copies;

4.11                   processing of form P11D;

4.12                   Statement of Earnings letters;

4.13                   additional payslips over the Payslip Threshold;

4.14                   configuration and/or data transfer services in addition to those included in the Set Up Fee;

5.15                   reasonable travel costs and expenses incurred;

5.16                   training courses;

5.17                   any service required by IRIS FMP due to the Customer not meeting agreed deadlines;

5.18                   any end of year services;

5.19                   any additional services above those set out in the Order Form; and

5.20                   any Additional Charges will be invoiced monthly in arrears.

6                       PAYMENT PROVISIONS

6.1                    All paid Fees are non-refundable.

6.2                    All Fees are exclusive of VAT unless otherwise specified.

6.3                    IRIS FMP shall be entitled to increase the Fees payable under the Agreement on the Review Date by:

6.3.1                  the proportion by which the Consumer Prices Index as published by the Office for National Statistics for the month preceding the Review Date exceeds the figure for the month 12 months before the Review Date; or

6.3.2                  5%,whichever is the greater.

6.4                    The Customer shall pay all invoices submitted by IRIS FMP in full and cleared funds within 30 days after the date of such invoice.

6.5                    The Customer shall make payment by way of direct debit into IRIS FMP’s bank account.

6.6                    The Customer shall be liable for all administration fees incurred in respect of its direct debit transaction.

6.7                    If any sum due from the Customer is not paid on the due date for payment as set out in the Order Form then without prejudice to any other right or remedy available to IRIS FMP, IRIS FMP shall be entitled to:

6.7.1                  charge interest at the annual rate of two per cent above the then current base rate of Barclays Bank in the UK accruing on a daily basis and being compounded monthly until payment is made, whether before or after any judgment or claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 at IRIS FMP’s sole discretion;

6.7.2                  suspend the performance or further performance of all or part of its obligations under the Agreement without liability to the Customer after the Customer has been notified in writing of the non-payment and informed that IRIS FMP may suspend performance and has been given not less than 10 Business Days to correct the late payment; and

6.7.3                  withhold all Customer Data until all outstanding payments are made in full.

6.8                    On Termination of the Agreement for any reason, the Customer shall pay in full and cleared funds any outstanding monies due to IRIS FMP within 14 days after the date of Termination.

6.9                    When IRIS FMP contracts with a Primary Client, the Set Up fee and Recurring Monthly Charges are an accumulative sum payable in respect of all the Secondary Clients. Secondary Clients that are new and not detailed on the Secondary Client Addendum are required to sign an additional Order Form via Change Control.