Gateway Terms and Conditions
The agreement is comprised of the following documents (collectively referred to as the Agreement unless expressly stated otherwise). If a conflict arises between any of the following documents, the following order of precedence shall apply:
- Order Form;
- Service Description; and
- these Terms and Conditions.
The Service Descriptions have been produced on an ‘if applicable’ basis. The Order Form sets out the Services to be provided under this Agreement and the part(s) of the Service Description which shall be incorporated into the Agreement.
Definitions and Interpretation
1.1 In these Clauses, unless the context otherwise requires, the following words shall have the following meanings:
Agreement Start Date
the date of signature of the last of the parties to sign the Order Form;
the fee for the provision of the Services set out in the Order Form;
the latest available, as at the date of use, “RPI All Items: Percentage change over 12 months” measure published by the Office for National Statistics or, failing such publication, such other index as replaces the “RPI All Items: Percentage change over 12 months” or most closely resembles it;
with respect to a Party, any other entity or person Controlling, Controlled by, or under common Control with, such Party;
(a) any law, statute, regulation or subordinate legislation in force from time to time; the common law and laws of equity from time to time; any binding court order, judgment or decree; any industry code, policy or standard; in each case, which is applicable in the United Kingdom and to which Benefex is subject and which relates to the delivery of the Services or the operation of Benefex’s business in the United Kingdom; and (b) any applicable direction, policy, rule or order that is binding on Benefex and that is made or given by any regulatory body having jurisdiction over Benefex or any of Benefex’s assets, resources or business in the United Kingdom;
all information systems and technology, Software, Tools, methods, forms, processes, procedures, workflows, data, data formats, data compilations, program names, designs, documentation, manuals and other material owned, licensed to, or developed by Benefex (or its Affiliates) that is made available to Customer in connection with provision of the Services;
the rules and eligibility to be applied to, and the information to be available within, each benefit within the Online Benefits Module that is included in this Agreement;
providers of the Benefits with which the Customer has a direct contract and whose services are accessible using the Services;
|the benefits which are made available to the Employees pursuant to the provision of the Services;|
the online system which gives the Customer and the Employees access to the Modules and the Services;
a day (other than a Saturday, Sunday or bank or public holiday) in England;
any change to this Agreement including to any of the Services or to any of the Design Documents;
the charges, fees and commissions for the Services as set out in the Order Form and Expenses;
|means a complaint or request relating to either party’s obligations under Data Protection Laws relevant to this Agreement, including any compensation claim from a Data Subject or any notice, investigation or other action from a Supervisory Authority;|
commission paid by Benefit Providers to Benefex;
|information in any form or medium whether disclosed orally or in writing before or after the date of this Agreement (together with any reproductions of such information) relating to the business affairs, finances, systems, processes, methods of operation, plans, products, developments, trade secrets, know how, Customers or suppliers of a party or any member of its Group.|
|an entity that possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of a body corporate (whether through the ownership of voting shares, by contract or otherwise) and “Controlling” and “Controlled” shall be interpreted accordingly;|
Customer Acceptance Testing (or CAT)
testing carried out by Customer to confirm that the Online Benefits Module has been configured to comply with the Benefit Design;
|the data and information provided to Benefex by the Customer, the Employees or Benefit Providers about the Employees and their dependants, and the benefits which they have selected or which they receive at the direction of the Customer;|
Customer Funded Benefit
|a Benefit with one policy with one Benefit Provider where the Customer provides, and pays for, benefits to eligible Employees with a maximum of two (2) sets of eligibility criteria for each Benefit included in the Fees as standard but with the ability to increase the eligibility criteria sets upon payment of further Fees;|
(a) any law, statute, regulation or subordinate legislation in force from time to time; the common law and laws of equity from time to time; any binding court order, judgment or decree; any industry code, policy or standard; in each case, which is applicable in any jurisdiction and to which the Customer is subject and which relates to the receipt of the Services or the operation of the Customer’s business; and
(b) any applicable direction, policy, rule or order that is binding on the Customer and that is made or given by any regulatory body having jurisdiction over the Customer or any of the Customer’s assets, resources or business in any jurisdiction;
|all information systems and technology, software, tools, methods, forms, processes, procedures, workflows, data, data formats, data compilations, program names, designs, documentation, manuals and other material owned, licensed to, or developed by Customer (or its Affiliate) that is made available to Benefex for use in rendering the Services;|
the name, brand, logo and trademarks of the Customer and members of its Group;
as set out in any document which is agreed in writing between the parties’ authorised representatives, as amended from time to time, relating to Tailored Benefits
has the meaning set out in the Data Protection Laws;
Data Processing Details
the details of data processing, including the list of Sub-processors, which is found at here.
has the meaning given to that term (or to the term ‘processor’) in the Data Protection Laws;
Data Protection Laws
(a) all applicable data protection and privacy legislation in force from time to time in the UK, including:
i) the retained EU law version of the General Data Protection Regulations (EU 2016/679 (UK GDPR);
ii) the Data Protection Act 2018 and regulations made thereunder;
iii) Privacy and Electronic Communications Regulations (SI 2003/2426) as amended; and
(b) in member states of the European Union the General Data Protection Regulation (EU 2016/679) (EU GDPR) and the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and all relevant member state laws or regulations giving effect to or corresponding with any of them; and
(c) any judicial or administrative interpretation of any of the above, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority;
has the meaning set out in the Data Protection Laws;
Data Subject Request
a request made by a Data Subject to exercise any rights of Data Subjects under Data Protection Laws;
|materials created by or on behalf of Benefex in the course of providing the Services (and any modifications, enhancements or improvements made to such materials during the term of this Agreement) and which are delivered to the Customer;|
those documents which are mutually agreed in writing between the parties (including the Benefit Design);
those employees, agents and independent contractors of the Customer’s Group entities who are authorised by the Customer to use the Services (including the Software) and whose names are provided to Benefex by the Customer and members of the Customer’s Group from time to time;
Employee Funded Benefit
a Benefit with one policy with one Benefit Provider available to all eligible Employees. Employee will pay for Benefit either from gross pay (by salary sacrifice) or from net pay.
Exit Management Plan
the operations plan detailing the procedures to be followed in the event of the expiry or termination of this Agreement;
such costs and expenses as may be agreed between the parties from time to time, including
|the Financial Conduct Authority which regulates the financial services industry in the UK. Their address being 25 The North Colonnade, Canary Wharf, London, E14 5HS and contact number being 0800 111 6768 and website address being: https://www.fca.org.uk/contact;|
|permissions granted to Benefex Financial Solutions Ltd by the FCA governing the services provided to Benefex customers and which are contained in the applicable Service Descriptions where they contain Services regulated by the FCA;|
Force Majeure Event
|any event or circumstances or cause outside the reasonable control of a party (which does not arise from its fault or negligence) including Act of God, riot, civil disturbance, act of terrorism, fire, explosion, flood, or unusually severe weather. A Force Majeure Event does not include (a) strikes or other industrial action by employees of the affected party or any of its sub-contractors; or (b) any failure by a subcontractor unless such failure also results from a Force Majeure Event;|
Good Industry Practice
|the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as can reasonably be expected from a skilled and experienced provider of products and services similar to the Services;|
in relation to a company, that company’s subsidiaries and holding companies and subsidiaries of such holding companies;
Information Security Schedule
Benefex’s information security standards (benefex-information-security-schedule/) as amended from time to time;
implementation costs set out in the Order Form;
the initial period set out in the Order Form, commencing on the Initial Period Start Date;
Intellectual Property Rights
|all patents, copyrights, design rights, trademarks, service marks trade secrets, database rights, and any other rights in the nature of intellectual property rights (whether registered or not) and all applications for the same which may now, or in the future, subsist anywhere in the world, including the right to sue for and recover damages for past infringements;|
the purpose or purposes for which funds are, or are to be, invested under a Scheme;
losses, damages, liabilities (including any liability to taxation), claims, costs and expenses including fines, penalties, reasonable legal and other professional fees and expenses;
|Employee Funded Benefit available to all Employees, with no eligibility restrictions. Marketplace Benefits will be sourced by Benefex on pre-negotiated rates and terms on an execution only basis, and are configured in Online Benefits module;|
|any thing 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 programme or data, including the reliability of any programme 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;|
the order form setting out the Customer’s order for Services;
the period of time in which the Customer must pay invoices issued to it by Benefex, as set out in the Order Form;
Pension Governance Support
the services described in Service Description 2 in relation to Pension Governance;
the Defined Contribution Pension Scheme(s) offered by the Customer to its Employees;
Pension Scheme Provider
the business(es) with whom the Customer has contracted to manage the Pension Scheme(s) for its Employees;
use by Benefex or a Benefit Provider of Employees’ nominated email addresses in order to do one or more of the following activities:
send any other communications.
has the meaning given to that term in the Data Protection Laws and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which Benefex is providing Services under this Agreement as a data processor;
Personal Data Breach
a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data;
has the meaning given to that term in the Data Protection Laws and “processed” and “process” shall be construed accordingly;
the fee for the processing of any additional files received from Customer in excess of the number of data files as set out in the Order Form;
each successive period of three months starting on the Agreement Start Date and Quarterly shall be construed accordingly;
a pension, investment, flexible benefits, health and risk or any other form of scheme managed (whether or not created) by Benefex under Service Description 2;
the project undertaken to update the benefits within the Online Benefits Module (this will include any updates to the text and rates applicable to existing benefits). The removal of existing benefits, change in Benefit Provider for an existing benefit, modification to the rules of existing benefits and addition of new benefits will be subject to these Terms and Conditions
Scheme Renewal Fee
the Scheme Renewal Fee set out in Order Form;
the sums attributable to a Service Failure as specified in the applicable Service Descriptions;
the service description set out gateway-service-description-001/, which sets out each parties’ respective obligations in relation to the Services;
a failure by Benefex to deliver the relevant parts of the Services in accordance with the Service Levels;
the service levels (if any) set out in the applicable Service Descriptions;
the services set out in the Order Form, comprising technology and/or consulting services;
Gateway, all software used by Benefex in the creation of the Benefex Gateway and/or the online software applications provided by Benefex as part of the Services (including, without limitation, software programs proprietary to Benefex, open source software and third party software);
each of the sub processors set out in the applicable Service Descriptions and any additional or replacement sub processors appointed in accordance with this Agreement;
|any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws;|
|a benefit that is usually a Customer Funded Benefit available to Employees which may have some eligibility restrictions. Where Benefex is the appointed intermediary, Tailored Benefits are sourced in accordance with the applicable Service Description and are subject to a contract with the Benefit Provider that the Customer enters into directly;|
the period commencing on the Agreement Start Date and ending on the date of termination of this Agreement
all know-how, development tools, processes, methodologies and technologies, documents, data and other material and the software, created prior to or outside the scope of this Agreement, the Intellectual Property Rights in which are vested in or licensed to Benefex, and which are used by Benefex in performing the Services and any tools (including software) and know-how developed, and methods invented, by Benefex in the course of or as a result of carrying out the Services, whether or not developed or invented specifically or used exclusively to carry out the Services;
a transaction, or series of related transactions, conducted under or pursuant to Service Description 2.
value added tax chargeable under the Value Added Tax Act 1994 (as amended from time to time);
1.2 In this Agreement (except where the context otherwise requires):
1.2.1 any reference to a clause, sub-clause, schedule, appendix or party is to a clause, sub-clause, schedule, appendix of or party to this Agreement;
1.2.2 save where otherwise specified, reference to a clause is to a clause in the same schedule or appendix;
1.2.3 headings are included for convenience only and do not affect the interpretation of this Agreement;
1.2.4 use of the singular includes the plural and vice versa;
1.2.5 any reference to a person includes natural persons, firms, partnerships, companies, corporations, associations, organisations;
1.2.6 any reference to a person includes that person’s legal personal representatives, successors and assignees;
1.2.7 subsidiary and holding company have the meanings given to them by section 1159 Companies Act 2006;
1.2.8 all references to a statute shall be construed as including references to:
(a) any statutory modification, consolidation or re-enactment (whether before or after the date of this Agreement) for the time being in force;
(b) all statutory instruments or orders made pursuant to that statute;
(c) any statutory provisions of which it is a consolidation, re-enactment or modification;
1.2.9 any phrase introduced by the terms including, include, in particular or any similar expression is illustrative only and does not limit the sense of the words preceding those terms.
2 COMMENCEMENT & DURATION
2.1 The Agreement shall commence on the Agreement Start Date, and unless terminated in accordance with these Terms and Conditions, shall continue.
2.2 The parties acknowledge that some of the Services may be provided by third party suppliers subcontracted by Benefex. If the corresponding subcontract for the provision of a Service between Benefex and a third-party supplier terminates, Benefex may (at its sole discretion and without liability):
2.3 The parties acknowledge that some of the Services may be provided by third party suppliers subcontracted by Benefex. If the corresponding subcontract for the provision of a Service between Benefex and a third-party supplier terminates, Benefex may (at its sole discretion and without liability):
2.3.1 terminate the provision of such Service and adjust the Charges accordingly;
2.3.2 where such Service has been offered as part of a bundle, terminate the provisions of such Service and taking into account the terminated Service, provide the Customer with the Services of the most appropriate bundle available at the applicable price; or
2.3.3 engage a replacement third party supplier to provide similar services.
3.1 Benefex shall perform the Services in accordance with the terms of the Agreement.
3.2 If the Customer has purchased technology services, the Service Description Technology shall apply.
3.3 If the Customer has purchased consulting services, the Service Description Consulting shall apply.
4.1 The Customer may use the Services for the benefit of any Affiliate. The Customer shall give Benefex prior notification in writing of the identity of each Affiliate from time to time.
4.2 Services provided to a Customer Affiliate will be deemed to be Services provided to the Customer. The Customer shall at all times remain responsible for the actions and omissions of its Affiliates.
4.3 The Customer may only use the Services during the Term for internal business purposes for itself and the benefit of its Affiliates (either through Customer or by allowing its Affiliates to access the Services directly).
5 BENEFEX OBLIGATIONS
5.1 Benefex shall:
5.1.1 comply with all Benefex Laws;
5.1.2 carry out all Benefex responsibilities set out in this Agreement in accordance with Good Industry Practice;
5.1.3 comply with its obligations under this Agreement and provide the Services in accordance with (i) the Service Description in all material respects; and (ii) any applicable Service Levels;
5.1.4 comply with the Information Security Schedule; and
5.1.5 co-ordinate and co-operate with any Benefit Providers to ensure, where necessary, that work, materials and services provided by such Benefit Providers integrate with the Services or Deliverables, where applicable.
5.2 Benefex warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
5.3 Except as set out in this Agreement, all warranties, clauses and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
5.4 Benefex shall be under no obligation to provide any services under the terms of this Agreement other than the Services.
6 CUSTOMER OBLIGATIONS
6.1 The Customer shall comply with all Customer Laws;
6.1.1 carry out and comply with all Customer responsibilities and obligations set out in this Agreement in a timely and efficient manner;
6.1.2 provide Benefex with all necessary information required in order to provide the Services, including Customer Data;
6.1.3 where applicable to the Services, be responsible for entering into, and the operation and management of, the contracts between the Customer and any Benefit Provider; and
6.1.4 inform Benefex promptly should there be any change of Control of the Customer or the owner of the Customer (if applicable) or there occurs a material adverse change in the financial condition of the Customer, or any company who Controls the Customer and any of its Affiliates.
6.2 The Customer warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
6.3 Without limiting the effect of clauses 6.1 and 6.2, the Customer shall be responsible for compliance with:
(a) all applicable guidance or changes made by Her Majesty’s Revenue and Customs;
(b) all applicable guidance issued by any regulatory authority relating to or affecting any of the benefits or the Employees; and
(c) the application of the Benefits to Employees and the eligibility of the Employees for the Benefits.
6.4 The Customer is responsible for retaining:
6.4.1 copies of all information which the Customer provides to Benefex;
6.4.2 all information provided to the Customer by Benefex;
6.4.3 if applicable, all information in the Benefit Provider reports; and
6.4.4 all information provided to the Customer on termination of this Agreement.
6.5 The Customer shall provide Benefex or any Benefit Provider with e-mail addresses of Employees as reasonably required to perform the Services. Subject to compliance with these Terms and Conditions, Benefex shall not be liable to the Customer for any Losses (including, for the avoidance of doubt, loss arising from loss of data or breach of confidentiality) arising from:
6.5.1 Benefex’s, Benefit Provider’s or a Third-Party Provider’s Permitted Use of such e-mail address; and
6.5.2 The provision to Benefex, Benefit Provider or a Third-Party Provider of an incorrect e-mail address.
6.6 Without prejudice to the Customer’s obligations pursuant to clause 7.4, information entered into Benefex Gateway shall be retained in Benefex Gateway for the period of seven years or until the termination of this Agreement (whichever shall be the shorter). Benefex accepts no responsibility for retaining information on behalf of the Customer.
7 INTERNET AND BROWSER
7.1 Access to the Software requires an up-to-date evergreen web browser as set out at https://hellobenefex.com/about-us/information-security-and-business-continuity/. The Customer acknowledges that if it or an employee does not use one of these versions of web browser that there may be a material diminution in the performance and / or functionality of the Software which will be outside of Benefex’s control.
7.2 Benefex is not responsible for any delays, delivery failures, or any Losses resulting from the transfer of data over communications networks and facilities, including the internet, (other than those under Benefex’s direct control) and the Customer acknowledges that the Services and Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8 EMPLOYEE TRANSACTIONS WITH BENEFIT PROVIDERS
8.1 The Customer acknowledges that the Software and the Services may enable or assist the Customer or Employees to access the website content of, correspond with, obtain benefits from and purchase products and services from, Benefit Providers (which for the purpose of this clause 9 shall include the providers of benefits, products and services set out in the Order Form) and that the Customer and each Employee does so solely at their own risk.
8.2 Benefex makes no representation or commitment and shall have no liability or obligation whatsoever in relation to:
8.2.1 the content or use of any Benefit Provider’s website;
8.2.2 any correspondence between the Customer or any Employee and any Benefit Provider;
8.2.3 any transactions completed, and any contract entered into by the Customer or any Employee, with any Benefit Provider; or
8.2.4 any benefits, products or services obtained by the Customer or any Employee from any Benefit Provider.
8.4 Benefex shall not be liable for:
8.4.1 any losses of data, programs, breaches of security, viruses and disabling or harmful devices that the Customer or any Employee may download or otherwise experience as a result of accessing any third-party website;
8.4.2 any claims and actions relating to any benefits, products or services purchased from, or offers made by, such third parties; and
8.4.3 any acts or omissions of any Benefit Provider or any failure by any Benefit Provider to comply with its obligations to the Customer or any of the Employees.
9 CUSTOMER DELAY
9.1.1 If at any time Benefex’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Customer, (including delay or failure by the Customer to perform any relevant obligation, or delay or failure by the Customer to provide information or data required by Benefex, or if any information is provided to Benefex in a different form or format from the one specified by Benefex or from the one in which it has previously been provided under the Agreement) (Customer Delay):
9.1.2 the Customer shall, at its own cost, take all steps as Benefex may reasonably require to remedy the Customer Delay;
9.1.3 Benefex shall, without limiting its other rights or remedies, rely on the Customer Delay to relieve it from the performance of any of its obligations to the extent the Customer Delay prevents or delays Benefex’s performance of such obligations;
9.1.4 Benefex may, without limiting its other rights or remedies, adjust any previously agreed timetable or delivery schedule as reasonably necessary as a consequence of the Customer Delay (after consultation with the Customer); and
9.1.5 Benefex shall not be liable for any Losses sustained or incurred by the Customer arising directly or indirectly from Benefex’s failure or delay to perform those of its obligations prevented or delayed by the Customer Delay.
10 SERVICE LEVELS & SERVICE CREDITS
10.1 If Service Levels apply to particular Services (as identified in the Service Descriptions) the following applies;
10.1.1 Benefex shall ensure that the Services meet or exceed the relevant Service Levels;
10.1.2 If there is a Service Failure, Benefex shall use its reasonable endeavours to take all remedial action that is necessary to rectify it and / or to prevent the Service Failure from recurring; and
10.1.3 Benefex shall not be liable for failure to meet any Service Levels that can reasonably be evidenced is: (i) caused by factors beyond the reasonable control of Benefex; or (ii) that results from a Customer Delay.
10.2 Subject to clause 16.4, if there is a Service Failure, Benefex shall credit the Customer with the applicable Service Credit. Service Credits shall either be shown as a deduction from the amount due from the Customer to Benefex in the next invoice then due to be issued under this Agreement, or Benefex shall issue a credit note against a previous invoice and the amount for the Service Credits shall be repayable by Benefex as a debt within thirty (30) days of the date of the credit note.
10.3 This clause 10, represents the Customer’s sole and exclusive remedy available for breach of any Service Levels and/or Service Failures.
11.1 In consideration of the provision of the Services, the Customer shall pay the Charges set out in the Order Form.
11.2 The Customer shall provide any purchase order, reference number (or other documents or information required by the Customer before an invoice can be issued) in sufficient time for Benefex to be able to submit each invoice in accordance with this Agreement.
11.3 Additional Subscription – If at the end of a year the average number of Employees in that year is higher than the Contracted Number of Employees (stated in the Order Form), Benefex reserves the right to raise an invoice for the Additional Subscription for that year. The Additional Subscription for each year will be calculated by multiplying the average number of Employees in that year in excess of the Contracted Number by the Subscription per Employee per Month and multiplying by twelve (12).
11.4 Benefex shall, with effect from each anniversary of the Agreement Start Date (Review Date) increase the Charges for the forthcoming Year by up to the Annual Rate.
11.5 Benefex will invoice the Customer Quarterly for all Expenses incurred by Benefex in the previous Quarter.
11.6 The Customer shall pay all valid and undisputed Charges in full and in cleared funds within the Payment Period, to a bank account nominated in writing by Benefex.
11.7 If the Customer has a bona fide dispute in respect of the whole or any part of any invoice then the Customer shall notify Benefex of the nature of such dispute in writing within fourteen (14) days of the invoice date giving all relevant details. If the Customer notifies Benefex in accordance with this clause 11.7, the Customer shall be entitled to withhold payment of the amount in dispute, but shall pay the undisputed part in accordance with this Agreement. On settlement of any dispute the Customer shall make the appropriate payment within 10 days of the settlement of such dispute.
11.8 Without limiting any other right or remedy of Benefex, and subject to clause 11.7, if the Customer fails to make any payment due to Benefex under the Agreement by the due date for payment (Due Date), Benefex shall have the right to charge interest on the overdue amount at the rate of 2 per cent per annum above the then current HSBC base rate accruing on a daily basis, from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment. (In the event that the Customer gives notice of a disputed amount pursuant to clause 11.7 the Due Date for the disputed amount shall be 10 days from the settlement of such dispute.)
11.9 Subject to clause 11.7, if Benefex has not received payment within thirty (30) days of the invoice date, and without prejudice to any other rights and remedies of Benefex, Benefex may, subject to Benefex giving thirty (30) days’ written notice to the Customer, without liability to the Customer, disable the Customer’s and Employees’ passwords, accounts and access to all or part of Benefex Gateway and Benefex shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid. Benefex shall promptly restore access to Benefex Gateway and resume provision of the Services when payment is made.
11.10 All amounts payable by the Customer under this Agreement are exclusive of VAT which the Customer shall pay at the same time as the sums to which it relates.
11.11 Save as set out in clause 11.7 or clause 10 the Customer shall pay all amounts due under this Agreement in full without any deduction, withholding, set-off or counterclaim.
12 INTELLECTUAL PROPERTY RIGHTS
12.1 The Customer:
12.1.1 consents to Benefex using the Customer Data for the provision of the Services and acknowledges that when Benefex is acting on behalf of the Customer;
12.1.2 shall own all rights, title and interest in and to the Customer Name, Customer Materials and all of the Customer Data; and
12.1.3 The Customer hereby grants to Benefex a non-exclusive, royalty-free, worldwide licence to use and copy the Customer Name, Customer Materials and Customer Data during the term of this Agreement to the extent necessary and for the sole purpose of the performance of the Services.
12.2.1 shall be permitted to disclose all or any of the Customer Data to Benefit Providers to the extent necessary for Benefex to perform the Services and its obligations under this Agreement;
12.2.2 shall have no responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data; and
12.2.3 may include the Customer Name in its lists of customers. Neither party shall issue press releases or announcements regarding this Agreement until the other party has agreed in writing the content and intended distribution of such releases or announcements, provided that such agreement is not unreasonably withheld, delayed or conditioned.
12.3 Benefex and/or its licensors own all Intellectual Property Rights in the Services and Benefex Materials. Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights, or any other rights or licences in respect of the Services and Benefex Materials.
12.4 Benefex warrants that it has all the rights in relation to the Services and Benefex Materials that are necessary to grant all the Intellectual Property Rights it purports to grant under, and in accordance with, the terms of this Agreement.
12.5 Subject to clauses 12.6 and 16.1, Benefex shall indemnify the Customer against all Losses suffered or incurred by the Customer arising out of or in connection with any claim made against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights, arising out of or in connection with the Customer’s receipt of the Services or use of the Software.
12.6 If any third party makes a claim, or notifies an intention to make a claim, which may reasonably be considered likely to give rise to a liability under the Intellectual Property Rights indemnities (a Claim), the receiving party shall:
12.6.1 as soon as reasonably practicable, give written notice of the Claim to the other party, specifying the nature of the Claim in reasonable detail;
12.6.2 not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the other party;
12.6.3 give the other party reasonable assistance in connection with the defence of the Claim; and
12.6.4 take such action as the other party may reasonably request, at the expense of the other party, to avoid, dispute, compromise or defend the Claim.
12.7 In the event of a Claim, either party shall be entitled at its own expense and option either to:
12.7.1 procure the right for the other party to continue receiving and/or using the infringing intellectual property rights; or
12.7.2 make such alterations, modifications, or adjustments so that infringement becomes non-infringing, without incurring a material diminution in performance, capacity or functionality; or
12.7.3 replace the infringing part with a non-infringing substitute provided that such substitute does not entail a material diminution in performance, capacity or functionality (and the provisions of this clause 12 shall apply equally to any such substitute) and reimbursing the other party its reasonable costs associated with such substitution.
12.8 Subject to clauses 12.6 and 16.1, the Customer shall indemnify Benefex against all Losses suffered or incurred by Benefex arising out of or in connection with any claim made against Benefex for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with use of the Customer Name, Customer Data or Customer Materials.
13 TAX, LEGAL AND OTHER ADVICE
13.1 Benefex may from time to time provide support and guidance to the Customer in relation to taxation, legal and financial services matters in connection with the Services (Guidance).
13.2 The Customer hereby acknowledges and agrees that:
13.2.1 Benefex’s expertise lies in the provision of employee benefit management services and, where applicable and mentioned in applicable Service Descriptions, financial services guidance pursuant to the FCA Permissions;
13.2.2 Benefex’s staff, employees and consultants are not qualified to provide professional tax or legal advice or, where applicable, any financial services advice or guidance other than pursuant to the FCA Permissions;
13.2.3 Benefex is not authorised to provide advice in relation to regulated financial products and services except where expressly set out in an applicable Service Description;
13.2.4 any Guidance provided shall not constitute professional tax or legal advice or guidance; and
13.2.5 the Customer should take advice from an appropriately qualified tax and/or legal to satisfy itself that any Guidance is appropriate with regard to the Customer’s circumstances and requirements.
13.3 The Customer acknowledges that the Customer is responsible for:
13.3.1 assessing and deciding whether the Services are appropriate for the Customer’s requirements;
13.3.2 carrying out due diligence in respect of the Benefit Providers;
13.3.3 confirming the accuracy of all information included in Benefex Gateway about the financial products and services which are included in the Benefits;
13.3.4 the accuracy of all information provided to Employees about the Benefits;
13.3.5 the accuracy of all information provided to Benefit Providers and for keeping such information up to date; and
13.3.6 ensuring that the benefits, financial goods and services provided (and to be provided) by the Benefit Providers are appropriate for the Customer and the Employees.
13.4 Without prejudice to clauses 13.2 and 13.3, Benefex shall not be liable for any Losses sustained or incurred by the Customer that arise directly or indirectly from:
13.4.1 any reliance by the Customer on Guidance provided by Benefex; or
13.4.2 the implementation by the Customer of any measures outlined in Guidance; or
13.4.3 any inaccuracy or omission in any Guidance based on inaccurate and/or incomplete information provided by the Customer.
13.5 This clause 13 shall survive termination of the Agreement.
14.1 Without limiting its other rights or remedies, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
14.1.1 the other party commits a material breach of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of full particulars of the breach and being required to remedy it;
14.1.2 approves a voluntary agreement, or an administration order is made, or a receiver or administrative receiver is appointed over any of its assets or an undertaking or a resolution or petition or order for winding up or bankruptcy is passed or presented (other than for the purposes of amalgamation or reconstruction) or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order; or
14.1.3 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
14.2 The Customer may terminate the Agreement with immediate effect by giving written notice to Benefex in the event of three or more Service Failures, in a relevant six-month period. Any such notice to terminate under this clause must be received by Benefex within 20 Business Days of the last Service Failure in the relevant period.
14.3 Benefex may terminate the Agreement with immediate effect by giving written notice to the Customer if:
14.3.1 the Customer fails to pay any undisputed amount due under the Agreement on the Due Date for payment and remains in default for over thirty (30) days after being notified in writing to make such payment; or
14.3.2 there is a change of Control of the Customer which is either to a competitor of Benefex or, in Benefex’s reasonable opinion, would have a material effect on the Customer’s continued ability to pay for the Services.
14.4 Either party may terminate this Agreement by giving, at any time after the end of the Initial Period, written notice to the other of not less than the Notice Period.
14.5 If the Customer requests to terminate the Agreement (in whole or in part) without cause prior to the expiry of the Initial Period, Benefex shall not be obliged to credit or repay to the Customer any part of the Charges paid and may continue to invoice the Customer for the remainder of the Initial Period in accordance with the Agreement.
14.6 For the purposes of clause 14.1.1, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
15 CONSEQUENCES OF TERMINATION
15.1 On termination or expiry of the Agreement:
15.1.1 the parties shall comply with their respective obligations set out in the Exit Management Plan (if any) provided that any further exit assistance requested by the Customer from Benefex may be chargeable at Benefex’s then-current daily rates or as otherwise agreed in writing between the parties;
15.1.2 the Customer shall immediately pay to Benefex all of Benefex’s outstanding unpaid invoices and interest and any early termination charges applicable as set out in the Service Descriptions (if any);
15.1.3 Benefex shall be entitled to submit an invoice in respect of (i) any part of the Charges as yet not invoiced for the period from the date of the last invoice to the actual date of termination of the Agreement and (ii) all Implementation Fees as yet not invoiced;
15.1.4 If the Customer has terminated this Agreement as a result of the circumstances set out in clause 14.1, Benefex shall issue a credit note to the Customer (or deduct from any invoice rendered under clause 15.1.3) any part of the Annual Subscription already invoiced and paid by the Customer for the period after the actual date of termination of the Agreement;
15.1.5 the Customer shall return or destroy (at Benefex’s sole option) all of the Benefex Materials and Confidential Information in its possession;
15.1.6 Benefex shall cease to use the Customer Materials and Confidential information and Benefex may destroy or otherwise securely dispose of any of the Customer’s Materials in its possession unless, no later than twenty (20) Business Days after the effective date of termination, a written request is received from the Customer requesting, at the Customer’s cost, that Benefex provide the Customer and/or any replacement supplier nominated by the Customer with the Customer Materials in Benefex’s possession in electronic form in the formats and on media agreed between the parties;
15.1.7 all licences granted under the Agreement shall immediately terminate.
15.2 Clauses 15.1.5 and 15.1.6 shall not apply to the extent that either party is required by this Agreement, law, government, or regulatory authorities to retain information relating to the Services. In the event either party is required to retain information for this reason it shall continue to ensure that the other party’s materials and/or Confidential Information remains confidential for the entire period that it is required to be retained and that it shall be stored securely and not kept in active use.
15.3 The accrued rights, remedies, obligations and liabilities of the parties as at expiry, termination or thereafter shall not be affected.
15.4 Those clauses which expressly or by implication have effect after termination shall come into or continue in full force and effect.
16.1 Nothing in this Agreement shall limit or exclude either party’s liability for:
16.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
16.1.2 fraud or fraudulent misrepresentation; or
16.1.3 Losses suffered by the other arising under clauses 12.5 and 12.8; or
16.1.4 any other liability which cannot be excluded or limited by applicable law.
16.2 Subject to clause 16.1 neither party shall in any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, for loss of profit, loss of business, loss of enjoyment, depletion of goodwill, loss of reputation and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, in each case whether direct, indirect or consequential, or any indirect or consequential loss arising under or in connection with this Agreement.
16.3 Subject to clauses 16.1 and 16.2 neither party’s aggregate liability to the other, whether in contract, tort (including negligence), for breach of statutory duty, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall in any circumstances exceed an amount equal to the Charges (excluding any Expenses) paid and payable by the Customer in the year in which the breach or breaches occurred.
16.4 Subject to clauses 16.1 and 16.2 Benefex’s total aggregate liability in respect of the Service Credits is limited to the amount set out in the Service Credit calculation column opposite the relevant Service Level.
16.5 Benefex shall take out and maintain with an insurer of good repute employer’s liability insurance, professional indemnity insurance and public liability insurance, in such amounts as is reasonable, or required by law, in connection with its provision of the Services and Benefex shall, at the request of the Customer, provide to the Customer evidence of such insurance once in each year.
16.6 This clause 15 shall survive termination of the Agreement.
17.1 Each party shall take the precautions as it takes with its own confidential information to ensure that all Confidential Information of the other party is treated as confidential and not disclosed or used other than for the purposes of this Agreement, or as required by law.
17.2 The forgoing provision shall not prevent the disclosure or use by either party of any Confidential Information which was in the lawful possession of the receiving party prior to disclosure under this Agreement or which is or hereafter becomes, through no fault of that party, public knowledge or lawfully acquired or independently developed without the obligation of confidentiality.
17.3 Each party shall be permitted to disclose Confidential Information of the other party to the extent that it is required to do so by law or by any public, governmental, supervisory or regulatory authority or by any legally binding order of any court or tribunal.
17.4 This clause 16 shall survive termination of the Agreement.
18 DATA PROTECTION
18.1 Subject to clause 18.3, the parties agree that, in respect of the Personal Data, the Customer shall be the Data Controller and Benefex shall be the Data Processor.
18.2 Each party shall comply with all Data Protection Laws in connection with their respective rights and obligations under this Agreement.
18.3 Where Benefex processes the contact details of the Customer’s representatives in connection with the administration of this Agreement and the Services, it does so as a Data Controller.
Instructions and details of processing
18.4 Insofar as Benefex processes Personal Data on behalf of the Customer:
18.4.1 Subject to clause 18.4.3, Benefex shall (and shall ensure each of its Sub-processors shall) process the Personal Data only in accordance with the Customer’s documented instructions as set out in this clause 19 and Data Processing Details, and as updated from time to time by the written agreement of the parties (together Processing Instructions);
18.4.2 Benefex shall promptly inform the Customer, if, in Benefex’s opinion, any of the Processing instructions infringe any of the Data Protection Laws; and
18.4.3 if any Benefex Laws require it to process Personal Data other than in accordance with the Processing Instructions, Benefex shall notify the Customer of any such requirement before processing the Personal Data (unless any of the Benefex Laws prohibit such information on important grounds of public interest).
18.4.4 Benefex shall make available to the Customer all information reasonably necessary to demonstrate its compliance with the provisions of Article 28 UK GDPR (and where applicable, Article 28 EU GDPR).
18.5 Benefex shall ensure that all Benefex personnel processing Personal Data are subject to obligations of confidentiality.
Security of Personal Data
18.6 Benefex shall implement and maintain, at its cost and expense, appropriate technical and organisational measures in relation to the processing of Personal Data by Benefex so as to ensure a level of security in respect of the Personal Data processed by it is appropriate to the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
18.7 In respect of any Personal Data Breach, Benefex shall:
18.7.1 notify the Customer of the Personal Data Breach without undue delay (and in any event within 48 hours after becoming aware of the Personal Data Breach) provide the Customer with such details as the Customer reasonably requires regarding:
(a) the nature of the Personal Data Breach, including the categories and approximate numbers of Data Subjects and Personal Data records concerned; and
(b) any measures taken, or that Benefex recommends, to address the Personal Data Breach, including to mitigate its possible adverse effects,
provided that, if Benefex cannot provide all these details within such timeframes, it shall (before the end of this timeframe) provide the Customer with reasons for the delay and when it expects to be able to provide the relevant details (which may be phased), and give the Customer regular updates on these matters; and
18.7.2 taking into account the nature of processing and the information available to Benefex, provide such reasonable assistance as the Customer reasonably requests to enable the Customer to comply with its obligations pursuant to the Data Protection Laws in connection with the Personal Data Breach.
International Data Transfer
18.8 Benefex may only transfer Personal Data to an organisation outside both the United Kingdom and the European Economic Area (EEA) (an International Recipient) if the Customer has consented to the transfer and to the mechanism of the transfer in writing (such consent not to be unreasonably withheld) or if such transfer is to a member of the Benefex Group.
18.9 If Benefex does transfer any Personal Data to an International Recipient, Benefex shall do so under the following conditions:
18.9.1 the Personal Data is being processed in a territory which is subject to an adequacy decision;
18.9.2 Benefex has implemented appropriate safeguards in accordance with Article 46 UK GDPR, such as by implementing an International Data Transfer Agreement or EU Standard Contractual Clauses made available by the European Commission or relevant Supervisory Authority from time to time; or
18.9.3 pursuant to the derogations set out in Article 49 UK GDPR.
18.10 The Customer hereby consents to the transfer of Personal Data to the International Recipients which are listed as Sub-processors within the Data Processing Details.
Using other processors
18.11 Subject to clause 18.10, 18.13 and 18.14, Benefex shall not engage any other Data Processor or Sub-processor without the Customer’s prior written consent.
18.12 The Customer consents to the appointment of the Benefit Providers and the Sub-processors by Benefex and the processing of Personal Data by each of them in accordance with the Data Processing Instructions. In the event that Benefex proposes to change the identity of, or appoint a new, Data Processor (in addition to the Sub Processors) and that Data Processor will be Processing the Personal Data (a “New Sub Processor”):
18.12.1 Benefex shall give the Customer not less than 20 Business Days prior written notice of the intended appointment of the New Sub Processor, including reasonable information on the identity and location of the New Sub Processor and the nature of the Processing;
18.12.2 the Customer may object to the appointment of the New Sub Processor within 20 Business Days of receipt by the Customer of the notice referred to in clause 18.12.1 on the grounds that the Customer reasonably believes that the appointment of the New Sub Processor will have an adverse impact on the protection afforded to the Personal Data;
18.12.3 if the Customer raises objections in accordance with clause 18.12.2 Benefex shall not appoint (or disclose any the Personal Data to) the New Sub Processor until Benefex and the Customer have agreed on reasonable steps to address the objections raised by the Customer;
18.12.4 in the event that no such reasonable steps can be agreed between the Customer and Benefex within 40 Business Days from Benefex’s receipt of the Customer’s notice, then Benefex shall either:
(a) continue to process the Personal Data but shall not engage the New Sub Processor for such purpose; or
(b) shall notify the Customer that it is unable to process the Personal Data without using the New Sub Processor in which event, notwithstanding anything in the Agreement, the Customer may by written notice to Benefex with immediate effect terminate the Agreement to the extent that it relates to the Services which require the use of the New Sub Processor;
18.12.5 if the Customer does not object within the time period identified in clause 18.12.2 or where the Customer withdraws its objection, Benefex may appoint the New Sub Processor immediately.
18.13 Where Benefex engages a sub processor to carry out activities which involve the processing of Personal Data Benefex shall:
18.13.1 carry out appropriate due diligence of such sub processor; and
18.13.2 engage such sub processor on written terms which comply with the Data Protection Laws;
18.13.3 remain fully liable to the Customer for the sub processor’s failure to fulfil its obligations in relation to Personal Data.
18.14 Each party shall promptly inform the other party if it receives a Complaint and provide the other party with full details of such Complaint.
Assistance with Customer’s Compliance with Data Subject Rights
18.15 Benefex shall:
18.15.1 taking into the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to Data Subject’s Requests;
18.15.2 record and refer all Data Subject Requests it receives to the Customer, without undue delay (and in any event within 48 hours of receipt);
18.15.3 provide such assistance to the Customer as the Customer reasonably requests in relation to a Data Subject Request; and
18.15.4 not respond to any Data Subject Request without the Customer’s prior written approval.
18.16 Benefex shall, at its cost and expense, provide such reasonable assistance to the Customer (taking into account the nature of processing and the information available to Benefex) in ensuring compliance with such obligations as apply to the Customer under Data Protection Laws, with respect to:
18.16.1 security of processing;
18.16.2 Data Protection Impact Assessments (as such term is defined in the Data Protection Laws); and
18.16.3 prior consultation with a Supervisory Authority regarding high risk processing.
Deletion or return of Personal Data
18.17 At the end of the provision of the Services and the provision of information pursuant to the Exit Management Plan agreed, Benefex shall without delay, securely delete all of the Personal Data unless:
18.17.1 storage of any data is required by Benefex Laws and, if so, Benefex shall inform the Customer of any such requirement); or
18.17.2 Benefex requires storage of any data for the establishment, exercise or defence of legal claims.
Records, Information and Audit
18.18 Benefex shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of the Customer.
18.19 Benefex shall make available to the Customer on request in a timely manner copies of the records under clause 18.18.
18.20 18.20 Subject to clause 19, Benefex shall allow for and contribute to audits, including inspections, conducted by the Customer or its auditors, for the purpose of demonstrating compliance its obligations under clause 19.
18.21 The Customer acknowledges Benefex will not be liable for any claim brought by a Data Subject arising from any action or omission by Benefex to the extent that such action or omission resulted from the Customer’s instructions or from the Customer’s failure to comply with Data Protection Laws or its obligations under this Agreement.
18.22 Without prejudice to clause 18.2 the Customer shall establish the legal basis under Data Protection Laws for the processing of the Personal Data by Benefex for the delivery of the Services (including, in the absence of any other legal basis, all necessary consents).
18.23 If at any time Benefex is unable to process any Personal Data because the Customer has failed or been unable to establish a legal basis for such processing or an Employee has exercised any of its rights under the Data Protection Laws to prevent such processing, such failure or inability or prevention shall be considered a Customer Delay.
18.24 Where the Customer or any Employee uses or accesses the Services from outside both the UK and the EEA (Relevant Jurisdiction), it shall be the Customer’s responsibility to ensure that any use of or access to the Personal Data outside both the UK and the EEA and any transfers of such Personal Data to the UK or the EEA complies with the provisions of the Data Protection Laws and all laws relating to data protection in the Relevant Jurisdiction
18.25 This clause 17 shall survive termination of the Agreement.
19 RECORDS, AUDIT & INSPECTION
19.1 The Customer shall have the right upon reasonable prior notice (being not less than thirty (30) days) and at agreed times and intervals (but no more frequently than once in each twelve (12) month period) to inspect at its own expense (including costs reasonably incurred by Benefex to provide such audit assistance) the Benefex premises and documentation. Such audit may include environmental controls, physical and logical security and access, file retention and security back up, problem and change management.
19.2 The Customer’s internal audit department or its external auditors or any combination thereof (the “Auditors”) may conduct or assist in any such audit. The Customer shall procure that those Auditors under the Customer’s control comply with the security arrangements of Benefex in respect of the premises and systems and sign any reasonable confidentiality undertaking required by Benefex and shall indemnify Benefex in respect of any breach thereof.
19.3 Benefex shall provide such assistance as the Customer may reasonably require in respect of such audit.
19.4 Notwithstanding any other provision of this Agreement, neither the Customer nor the Auditors shall without Benefex’s prior written consent, have rights to conduct or have conducted any penetration testing; or any load or destruction testing; or any testing which may have the same effects as a “denial of service” attack or ethical hacking. The Auditors and the Customer shall not be entitled to access Benefex’s internal communications or financial records or to have access to any element which might put at risk the disclosure of confidential information of other Benefex customers
20.1 Each party shall, at all times, comply with the Bribery Act 2010.
20.2 In performing its obligations under this Agreement Benefex shall comply with all anti-slavery and human trafficking laws from time to time in force which apply to it, (including but not limited to those parts of the Modern Slavery Act 2015 which apply to it).
20.3 Benefex represents and warrants that at the date of this Agreement neither Benefex nor any of its officers or employees:
20.3.1 has been convicted of any offence involving slavery and human trafficking; orhas been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence of or in connection with slavery and human trafficking.
20.4 Benefex shall notify the Customer as soon as it becomes aware of any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Agreement.
21.1 Benefex shall be entitled to use third parties (i) to outsource functions related to the general operation of Benefex’s business and services, (ii) in connection with the development or modification or the Tools or Software and (iii) for incidental engagements by Benefex of individual experts or consultants as independent contracts, provided that Benefex shall remain responsible for performance of the Agreement and for all acts and omissions of its subcontractors as if such acts and omissions were its own.
22 FORCE MAJUERE
22.1 Without prejudice to clause 9 neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from a Force Majeure Event (save that no Force Majeure Event affecting the Customer shall excuse failure or delay in making any payment due under this Agreement). Subject to clause 22.2, the time for performance shall be extended by a period equivalent to the period of the Force Majeure Event.
22.2 On the cessation of any Force Majeure Event Benefex may, without limiting its other rights or remedies, adjust any previously agreed timetable or delivery schedule as reasonably necessary.
22.3 If the event a Force Majeure Event causes a party to be unable to perform all of its obligations under this Agreement for a continuous period of ninety (90) days, the party not affected may terminate this Agreement by not less than thirty (30) days written notice to the affected party.
23.1 The Agreement 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 Benefex which is not set out in the Agreement.
23.2 The terms of this Agreement operate 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.
23.3 No failure to exercise or any delay in exercising any right, power or remedy by a party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
23.4 Nothing in this Agreement constitutes a partnership between the parties nor constitutes any party the agent of the other party.
23.5 The Customer shall not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Benefex, which shall not be unreasonably withheld or delayed. Benefex shall be entitled to assign or transfer absolutely or by way of security (and in whole or in part), its rights or obligations hereunder. Notwithstanding any such assignment, Benefex will remain liable for all its obligations hereunder.
23.6 Each party to this Agreement shall, at the request and cost of the other, do or procure to be done all such further acts and things and execute or procure the execution of all such other documents as are necessary to give effect to the terms of this Agreement.
23.7 No variation of this Agreement shall be valid unless made in writing and signed by an authorised representative on behalf of each of the parties.
23.8 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement which shall remain in full force and effect.
23.9 Except where expressly stated, for the purposes of the Contracts (Rights of Third Parties) Act 1999 the parties do not intend any person other than a party to this Agreement to be able to enforce any term of this Agreement.
23.10 The Customer shall be entitled to enforce any provision of this Agreement for and on behalf of the members of the Customer’s Group (who shall not bring any action, claim or proceeding against Benefex in their own names) and any Losses suffered by a member of the Customer’s Group shall be deemed to be suffered by the Customer.
24.1 Any notice given under or pursuant to this Agreement shall be in writing and delivered by hand or posted to the relevant party at is registered address or such other address notified in writing for this purpose to the other party. A notice is deemed served upon its deposit at the appropriate address and, in the case of notices sent by post, 48 hours after being sent by first class post. The Customer acknowledges that Benefex may serve notices to the Customer email address notified from time to time and such notice is deemed served on confirmation of dispatch without error message.
25 COUNTERPARTS & E-SIGNATURES
25.1 The Order Form may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute one agreement.
25.2 Transmission of an executed counterpart of this Agreement by email shall take effect as delivery of an executed counterpart of the Order Form. Each party shall provide the others with the original of such counterpart as soon as reasonable possible thereafter.
25.3 Signature using an industry-standard electronic signature management system (such as DocuSign) shall be permitted by the parties and shall take effect as delivery of an executed counterpart of the Order Form.
26 DISPUTE RESOLUTION
26.1 In the event of any dispute or difference arising in connection with the Agreement (including any question regarding its existence, validity or termination or the legal relationships established by this Agreement), the Chief Executive or Chief Finance Officer (or equivalent officer) of each party will, within 14 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute or difference. If the dispute or difference is not resolved at that meeting, or if such meeting does not take place, either party may refer the dispute to the courts in accordance with clause 27.
27 GOVERNING LAW & JURISDICTION
27.1 No action regardless of form arising out of this Agreement may be brought by either party more than two (2) years after the party concerned becomes aware or should reasonably have become aware of the facts constituting the cause of action. However, where applicable law prohibits this two (2) year time limit the minimum period of time permitted by such law shall apply. In no circumstances shall this clause be construed as extending any statutory limitation period.
27.2 Laws of England and Wales governs this Agreement. Each party hereby irrevocably submits to the exclusive jurisdiction of the courts of England in respect of any claim or matter arising out of or in connection with this Agreement.