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Broadridge Ireland Limited (“Broadridge”) agrees to provide to the entity (“Client”) named in the quotation executed by Broadridge and the Client (“Quotation”), and the Client accepts, the services set out in the Quotation (“Services”) on the terms of these Terms of Business (“these Terms”) and the Quotation. The Quotation and these Terms are referred to as the “Contract”. If there are any consistencies between the Quotation and these Terms, the provisions in these Terms shall prevail.
1. Charges and Payment
1.1 The Client will pay Broadridge the fees (“Fees”) and expenses (“Expenses”) set out in the Quotation. Fees and Expenses are referred to as “Charges”.
1.2 The Client will pay all undisputed Charges within 30 days of the date of the invoice (“Due Date”) to the bank account specified in the invoice. Interests at a rate of 1.5% per month shall be payable by the Client on any undisputed overdue Charges, and such interest shall accrue on a daily basis from the Due Date until the date such payment is received by Broadridge, whether before or after judgement. Any dispute on the Charges shall be made by the Client in good faith within 30 days of the date of the invoice; failing which the Client shall be deemed to have accepted such Charges.
1.3 All Charges are exclusive of any VAT and similar sales taxes in any jurisdiction that may be assessed or imposed and be payable at the rate and in the manner prescribed by law, which shall additionally be payable by the Client. The Client shall pay any such taxes levied against the Client and reimburse Broadridge for any such taxes payable or collectable by Broadridge.
1.4 If the Client is required to withhold any taxes from the Charges, then the amount of the payment due will automatically be increased to totally offset such tax, so that the amount actually remitted to Broadridge, net of all taxes required to be withheld, equals the amount invoiced or otherwise due. Upon Broadridge’s reasonable request, the Client shall promptly furnish Broadridge with copies of a sample of the official receipts evidencing payments of taxes due under or in relation to the Charges to the appropriate taxing authority.
2. Warranties and Undertakings
2.1 The Client shall provide the Services using reasonable skill and care.
2.2 The Client acknowledges that:
a. the Services are provided at all times at the direction of the Client and do not constitute any advisory services; and
b. Broadridge is not an adviser in any capacity.
3. Limitation of Liabilities
3.1 Subject to clause 3.3, save for the Client’s liability to pay the Charges, each party’s total liability (including any liability for the acts and omissions of each party’s employees, agents or sub-contractors) in tort (including negligence), indemnity, equity, contract or otherwise, arising out of, in connection with or under the Contract in any 12 months shall not exceed the Fees paid by the Client and received by Broadridge under the Contract during that 12 month period.
3.2 Subject to clause 3.3, the Client shall not be liable (including any liability for the acts and omissions of each party’s employees, agents or sub-contractors) in tort (including negligence), indemnity, equity, contract or otherwise, under or in connection with the Contract for: loss or corruption of data; loss of production; loss of profit; loss of operation time; loss of goodwill; loss of business; loss of business opportunities; loss of revenues; loss of anticipated savings; and/or any special, indirect or consequential loss, damage, cost or expense of any kind whatever and however caused, arising out of, or in connection with or under the Contract.
3.3 Nothing in the Contract is intended and nor shall it be construed as an attempt by any party to exclude or limit its liability for any liability to the extent that such liability cannot be excluded or limited under any applicable law, including, liability for death or personal injury caused by its negligence, or any act or omission for which that party is vicariously liable, and fraudulent misrepresentation.
3.4 To the fullest extent permitted by law, except as expressly provided in the Contract, Broadridge expressly disclaims all conditions and warranties, express or implied, statutory or otherwise, including any implied warranties of satisfactory quality, merchantability or fitness for a particular purpose with respect to the Services and/or any deliverables provided under the Contract, or any part of them.
3.5 Both parties acknowledge and agree that the limitations and exclusions of liability set out in the Contract are reasonable in the light of all the circumstances existing as at the date of the Quotation and have been agreed taking into account the commercial value of the Contract to each party and the commercial standing of each party.
4.1 Either party may terminate the Contract on written notice if the other party commits a material breach of the Contract, and in the case of a breach capable of remedy, fails to remedy such within 30 days of receipt of a written notice from the non-defaulting party specifying the breach in reasonable detail and containing a warning of an intent to terminate if the breach is not remedied provided however such right to terminate shall cease if such breach is remedied before the expiry of such 30-day period.
4.2 If the Client fails to pay any Charges within 30 days of the Due Date, Broadridge may terminate the Contract on not less than 15 days’ prior written notice to the Client provided that Broadridge informs the Client in such notice that Broadridge may terminate the Contract if such outstanding payment is not paid within such 15-day period. Such right to terminate shall cease if the Client pays and Broadridge receives such outstanding payment in cleared funds before the end of such 15-day period.
4.3 Either party may terminate the Contract on written notice if the other party enters into any arrangement or composition for the benefit of the party’s creditors or convenes a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the (UK) Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other party suffers any distress or execution to be levied on any of its assets or shall be unable to pay its debts within the meaning of section 123 of the (UK) Insolvency Act 1986 or if a trustee, receiver, administrator, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets or undertakings of the other party (or circumstances arise which entitle the Court or a creditor to appoint such a trustee, receiver, administrator, administrative receiver or similar officer) or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction) or circumstances arise which entitle the Court or a creditor to wind up the other party or make such an order, or analogous proceedings or events to those specified in this clause are instituted or occur in relation to a party elsewhere than in England and Wales.
4.4 Upon termination of the Contract, the Client shall pay Broadridge all Charges due and payable to Broadridge up to and including the date of termination.
4.5 Any termination of the Contract is without prejudice to any other rights or remedies a party may be entitled to under the Contract or at law. It does not affect any accrued rights or liabilities of any party nor any provision which is expressly or by implication intended to come into force on, or to continue in force after, termination.
5.1 Each party (“Receiving Party”) undertakes to the other party (“Disclosing Party”):
a. to keep confidential the Disclosing Party’s and its Affiliates’ information of a confidential nature obtained from the Disclosing Party or its Affiliates in discussions leading to the Contract and subsequently received pursuant to the Contract (“Confidential Information”);
b. not to disclose the Confidential Information in whole or in part to any other person without the Disclosing Party’s written consent, except to the Receiving Party’s and/or its Affiliates’ employees, agents and individual contractors involved in the performance of the Receiving Party’s obligations or exercise of the Receiving Party’s rights under the Contract, and/or to the Receiving Party’s and/or its Affiliates’ professional advisors (including auditors and/or legal advisors), on a confidential and need-to-know basis; and
c. to use the Confidential Information solely in connection with the performance of the Receiving Party’s obligations or the exercise of the Receiving Party’s rights under the Contract.
5.2 The confidentiality obligations in clause 5.1 will not apply if the Receiving Party is required by any court, government or other regulatory body or law or regulations to disclose the Confidential Information, but only to the extent required by law, provided that the Receiving Party gives the Disclosing Party written notice as soon as practicable of such requirement subject to any restrictions imposed by the court, government, regulatory body, law or regulations.
5.3 The confidentiality obligations in clause 5.1 will not extend to the Confidential Information which:
a. has ceased to be confidential without default of the Receiving Party’s part;
b. was already in the Receiving Party’s possession prior to disclosure by the Disclosing Party;
c. has been received from a third party who did not acquire it in confidence; or
d. is permitted by the other party to be disclosed without an obligation of confidence, including in accordance with clause 5.2.
6.1 Subject to clauses 7.9 and 7.10, Broadridge shall be entitled to sub-contract all or any part of its obligations under the Contract. Broadridge shall be responsible for any breach by its sub-contractor of Broadridge’s obligations under the Contract except where such sub-contractor is engaged by Broadridge at the request, selection or direction of the Client, in which case, Broadridge shall not be liable for any of such sub-contractor’s acts or omissions.
6.2 Broadridge shall not be liable for the use of support providers to perform ancillary services of a purely administrative nature such as couriers, messengers or other commercial transport systems or utility services including internet service providers, telecommunications providers and postal services which are deemed not to be sub-contractors of Broadridge.
7. Data Protection
7.1 The parties acknowledge and agree that:
a. the Client shall be the data controller in respect of any personal data which the Client puts through the Services for Broadridge to processed (“Client Personal Data”); and
b. in providing the Services, Broadridge shall process Client Personal Data as data processor acting for and on behalf of Client.
7.2 Each party will at all times comply with its own obligations under the General Data Protection Regulation 2016/679 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (and all applicable laws which replace it, including the e–Privacy Regulation) and shall include, where applicable, all local applicable data protection laws and regulations (“Data Protection Laws”).
7.3 Broadridge will process the Client Personal Data only on documented instructions from the Client as set out in the Contract unless:
a. Broadridge is required to process the Client Personal Data to comply with applicable laws, in which case Broadridge will notify the Client of such legal requirement prior to such processing unless such applicable laws prohibit notice to the Client on public interest grounds.
b. Broadridge considers that any instructions from the Client relating to processing of Client Personal Data may put Broadridge in breach of Data Protection Laws, in which event, Broadridge will be entitled not to carry out that processing and will not be in breach of the Contract or otherwise liable to the Client as a result of its failure to carry out that processing.
7.4 Broadridge shall ensure that any individual authorised to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
7.5 Where relevant to the Services, at the written request of the Client, Broadridge will delete or return (in Broadridge’s standard format) to the Client all Client Personal Data after the end of the provision of Services relating to processing, and delete any remaining copies. Broadridge will be entitled to retain any Client Personal Data which it has to keep to comply with any applicable law or which it is required to retain for insurance, accounting, taxation or record keeping purposes.
7.6 Broadridge will only transfer Client Personal Data to a country outside the European Economic Area of Client Personal Data (“International Transfer”) as permitted under the Data Protection Laws.
7.7 Broadridge will, in respect of Client Personal Data:
a. implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk presented by processing the Client Personal Data, in particular from a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Client Personal Data (“Data Security Incident”);
b. notify the Client without undue delay after becoming aware of a Data Security Incident;
c. provide reasonable assistance to the Client (at the Client’s cost and expense) in:
i. complying with its obligations under the Data Protection Laws relating to the security of processing the Client Personal Data;
ii. responding to requests for exercising data subjects’ rights under the Data Protection Laws, including by appropriate technical and organisational measures, insofar as this is possible;
iii. documenting any Data Security Incidents and reporting any Data Security Incidents to any supervisory authority and/or data subjects; and
iv. conducting privacy impact assessments of any processing operations and consulting with supervisory authorities, data subjects and their representatives accordingly.
7.8 Broadridge will:
a. following the Client’s reasonable request (at the Client’s cost and expense), make available to the Client all information necessary to demonstrate compliance with the obligations set out in this clause 7;
b. allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client, provided that:
i. the Client gives Broadridge reasonable prior written notice of such audit;
ii. such audit shall be performed not more than once every 12 months;
iii. such audit is carried out at the Client’s cost during the Client’s and Broadridge’s business hours;
iv. the Client and/or its auditor shall not cause any disruption to Broadridge’s business;
v. the Client or its auditor shall only be given access to the Client Personal Data and not to personal data of any third party;
vi. the Client and/or its auditor shall not copy or remove any materials from the premises where the audit is performed; and
vii. any materials disclosed to the Client during such audit and the result and outcome of such audit shall be kept confidential between the parties.
7.9 Broadridge shall only engage third parties for the processing of the Client Personal Data which are approved by the Client (“Sub-Processors”) provided that such approval is not required for the engagement by Broadridge of any third party for translation, fulfilment or printing services. Broadridge will inform the Client of any intended changes concerning the addition or replacement of Sub-Processors, thereby giving the Client the opportunity to object to such changes provided that the Client shall not make any such objection if the replacement sub-processor has security measures for the Client Personal Data which are consistent with the security measures of Broadridge.
7.10 Where Broadridge appoints a Sub-Processor, Broadridge will put in place a written contract between Broadridge and the Sub-Processor that specifies the Sub-Processor’s processing activities and imposes on the Sub-Processor the same terms (in substance) to those imposed on Broadridge in the Contract. Broadridge will remain liable to the Client for performance of the Sub-Processor’s obligations under the Contract.
8. Legal Notices
Any legal notice under the Contract must be made in writing and in English. It must be addressed to the other party for the attention of the following person at the following address or to such other person or address as such party may, from time to time, advise in accordance with this clause 8:
with a copy to: Legal Department, Broadridge Financial Solutions Limited at its registered office address.
It may be sent by prepaid registered or recorded mail or by prepaid international courier service of international reputation, and will be deemed to have been received:
a. by mail (local) – 3 days after the date of mailing;
b. by international courier – 5 days after the date of mailing;
9.1 Broadridge may describe the Client as Broadridge’s client and refer to the Client’s use of the Services in/at, amongst other materials/events, Broadridge’s marketing materials and marketing events.
9.2 Neither party shall be liable for any delays or failure to meet its obligations under the Contract due to any cause outside its reasonable control, which it must notify to the other party as soon as possible.
9.3 The Client shall not assign any of its rights under the Contract to any third party without the prior written consent of Broadridge.
9.4 In the event any one or more of the provisions contained in the Contract shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of the Contract, but the Contract shall be construed as if such invalid, illegal or unenforceable provision had never been included in the Contract and the Contract shall be carried out as nearly as possible according to its original terms and intent.
9.5 No delay or failure by either party to exercise any of its powers, rights or remedies under the Contract will operate as a waiver of them, nor any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing.
9.6 Nothing in the Contract shall constitute, or be deemed to constitute, a partnership between the parties, nor, except as expressly provided, shall it constitute, or be deemed to constitute, any party the agent of any other party for any purpose.
9.7 The Contract contains all the terms which the parties have agreed in relation to the transactions provided for in the Contract and supersedes all provisions, contracts, arrangements, representations (other than fraudulent misrepresentations) or understandings between the parties whether written, arising from custom or oral.
9.8 The Quotation may be executed in one or more counterparts all of which taken together shall be deemed to constitute one and the same instrument.
9.9 No variation of the Contract shall be effective unless made in writing and signed by each of the parties.
9.10 The parties do not intend that any of the terms of the Contract will be enforceable by virtue of the (English) Contract (Rights of Third Parties) Act 1999 by any person not a party to the Contract.
9.11 The Contract shall be construed in accordance with English laws. The parties agree to submit to the exclusive jurisdiction of the English courts.
10.1 In the Contract (defined below), unless otherwise expressly provided or unless the context requires otherwise, the following capitalised terms shall have the following meanings:
Charges means Fees and Expenses.
Contract has the meaning defined at the top of these Terms.
Due Date has the meaning defined in clause 1.2.
Expenses has the meaning defined in clause 1.1.
Fees has the meaning defined in clause 1.1.
Services has the meaning defined at the top of these Terms.
Quotation has the meaning defined at the top of these Terms.
10.2 In these Terms, unless otherwise provided, references to a clause are references to a clause of these Terms.
10.3 In the Contract, the words and phrases “includes”, “including” or “in particular” (as well as any similar words or expressions) shall be without limitation to the generality of any preceding words and any preceding words shall not be construed as being limited to a particular class where a wider interpretation of those words and phrases is possible and shall be deemed to be immediately followed by the words “without limitation”.