Crisis Call Terms and Conditions
1. The following terms and conditions will form the basis of the Agreement between AXA and the Company for the receipt and use of the Crisis Call Services:
2. DEFINITIONS AND INTERPRETATION
2.1. In this Agreement the following words and expressions shall have the following meanings:
“Agreement” means this agreement for the provision of the Services to Company, together with the Order Form(s), the Confirmation Email(s) and any other documents that are expressly incorporated by reference within the foregoing documents;
“Available Services” means the Crisis services listed in the Order Form and https://www.axahealth.co.uk/globalassets/corporate/pdfs/brochures/eap-crisis-call-brochure.pdf;
“AXA” means AXA Health Services Limited, company number 03429917 whose registered office is at 20 Gracechurch Street, London, EC3V 0BG;
"AXA Health Group" means AXA and any other company which is for the time being its direct or indirect Subsidiary or direct or indirect Holding Company or a direct or indirect Subsidiary of any such Holding Company, and where the context so permits, any of those companies;
“Business Day” means any day from Monday to Friday between the hours of 0900-1700 excluding Saturday and Sunday and any UK bank or public holidays;
“Change of Control” means the obtaining of Control of the Company or any Holding Company of the Company by any entity that did not previously exercise that Control (and "Control" shall have the meaning ascribed to it in sections 450, 451 and 1124 of the Corporation Tax Act 2010);
“Crisis” means an event which has a stressful impact sufficient enough to overwhelm the usual effective coping skills of either an individual or a group; threatens human integrity; it is a typically sudden, powerful occurrence or may be unusual and extreme.
“Company” means the company procuring the Available Services as named in the Crisis Call Order Form.
“Confirmation Email” means the email that AXA will send to the Company following the submission of the Order Form. AXA may send separate emails to confirm the performance of elements of the Services requested in any given Order Form;
"Contract Price" means the price(s) payable by Company to AXA for the provision of Services in accordance with the requirements set out by Company in the properly completed Order Form, subject only to any subsequent clarifications as to pricing for non-standard provision of the Services as may be set out in the Confirmation Email(s);
"Commencement Date" means the date of the earliest Confirmation Email issued by AXA in relation to the Order Form;
"Confidential Information" means, save for any Personal Data or other User related information (each of which shall be excluded from this definition), any information of confidential nature relating to the business of the Parties disclosed by a Party or its Representatives (whether before or after the Commencement Date) to the other Party and/or that Party's Representatives in relation to this Agreement, including, without limitation, the Charges, details of AXA's systems, software and hardware and any information regarding the Available Services and Ordered Services or otherwise relating to the affairs of the other Party which may be acquired, in connection with the performance of this Agreement;
"Data Protection Legislation" means: any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of personal data to which a Party is subject, including the GDPR and the Data Protection Act 2018, as each is amended in accordance with the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (as amended by SI 2020 no. 1586) and incorporated into UK law under the UK European Union (Withdrawal) Act 2018; and any code of practice or guidance published by a Regulator from time to time;
"Data Subject Request" means an actual or purported subject access request or notice or complaint from (or on behalf of) a data subject exercising his rights under the Data Protection Legislation;
"Force Majeure Event" means any circumstances beyond the reasonable control of either Party or an AXA Health Group company which prevents the affected Party from performing this Agreement including, without limitation, Acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction of any overriding emergency procedures, accident, fire, flood, and storm, acts or omissions of any persons for whom either Party or an AXA Health Group company is not responsible, and any strikes or any industrial action affecting the Ordered Services under this Agreement and outside the control of the Party relying on the Force Majeure Event;
"Group" means the AXA Health Group and/or Company Group, as the context may require;
"Holding Company" has the meaning set out in s.1159 of the Companies Act 2006;
“Term” has the meaning given to it in Clause 4.
"Intellectual Property" means logos, trade marks, trade or business names, devices, service marks, design rights, database rights, domain names, copyright, patents, utility models, know-how and any branding or other similar rights, whether or not registered, and all applications for the same, as may exist anywhere in the world;
"Order Forms" means the forms entitled ‘Crisis Call Order Form’ which form part of this Agreement. Each Crisis for which the Ordered Services are requested will require an individual Order Form to be completed;
“Ordered Services” means the Services ordered by Company in the Order Form;
“Party” means the Company and AXA individually;
“Parties” means the Company and AXA together;
"Personal Data" has the meaning given to it in the Data Protection Legislation;
"Pre-Existing Intellectual Property" means, for a given Party, any Intellectual Property that has been developed or conceived by that Party prior to the Commencement Date, the Effective Date or the supply of any Ordered Services whichever is earlier, or that is conceived or developed by that Party at any time wholly independently of the Ordered Services;
"Regulator" means the UK Information Commissioner's Office and any other person in any jurisdiction, which has regulatory or supervisory authority over all or any part of the business or activities of the relevant person;
"Representative" means in relation to each Party:
i)employees and officers that need to know the Confidential Information for the purpose of this Agreement; ii) its professional advisers, which shall be limited to the Parties' lawyers, accountants and auditors; iii) in relation to AXA only, a sub-contractor who needs to know the Confidential Information for the purposes of administering Available Services or providing the Ordered Services in accordance with this Agreement; and iv) any other person to whom the other Party agrees in writing that Confidential Information may be disclosed in connection with this Agreement;
"Subsidiary" has the meaning set out in s.1159 of the Companies Act 2006;
"Term" means the duration of this Agreement as defined and calculated in accordance with Clause 45 below;
"Third Party IP" means Intellectual Property owned by a party other than AXA which is licensed to AXA and which AXA makes available to Company for the purposes of providing the Ordered Services;
"Third Party Services" means any Ordered Services provided by a Party other than AXA, including those provided by Company; and
"User" means an employee of the Company; or non-employed member of Company staff, or other individual that has otherwise been provided access to the Ordered Services by the Company in accordance with this Agreement;
“User Data” means all Personal Data relating to the Users which may be exchanged between the Parties under or in connection with this Agreement and, in the case of AXA, including where such Personal Data has been provided to AXA by the Users or generated by or on behalf of AXA in the course of the performance of the Ordered Services;
"VAT" means value added tax and any or duty of a similar nature which may from time to time be levied in addition to or in substitution for it.
3. SERVICES
3.1. By signing and returning the Order Form(s), the Company is appointing AXA to carry out the Services for the duration of the Term and AXA shall at its discretion have the right to accept the Company offer (inclusive of any clarifications as to Ordered Services or pricing agreed between the Parties following submission of the Order Form) in whole or in part by issuing one or more Confirmation Emails to Company. Each further Company request for use of the Available Services shall require an Order Form to be returned. Each Confirmation Email issued to Company by AXA shall be conclusive evidence of the appointment between Company and AXA for the performance by AXA of those portions of the Ordered Services that are particularised therein.
3.2. The acknowledgement section of the Order Form shall be signed by an appropriate authorised representative of Company and returned to AXA. It remains the Company responsibility to ensure any staff member signing such Order Form is a properly authorised representative of the Company and has read, understood and is authorised to accept the cost of these Ordered Services. Any addition or other modification in or to the terms of the Agreement that is contained in any acknowledgement, invoice, or other form of communication from Company is hereby objected to and rejected regardless of whether AXA has provided any portion of the Ordered Services or accepted payment or any part thereof.
4. TERM
The Agreement shall commence as of the Commencement Date and shall continue in full force and effect (unless earlier terminated in accordance with Clause 16), until the 31st December in the calendar year that the first Order Form is received by AXA.
5. AXA OBLIGATIONS
5.1. AXA shall diligently provide the Services to with reasonable care and skill for the Term and in accordance with the provisions of this Agreement.
5.2. During the Term AXA shall devote such of its personnel time, attention and abilities to its duties under this Agreement as may be necessary for the proper discharge of its duties as service provider.
5.3. AXA shall comply with the reasonable written directions of the Company in respect of the Ordered Services.
6. COMPANY OBLIGATIONS
6.1. The Company in consideration for the Ordered Services shall pay the Charges to AXA in accordance with the Payment Terms.
6.2. Company shall provide all reasonable assistance and cooperation to AXA as is required for the Ordered Services including but not limited to:
6.2.1. following such protocols (including providing such information) as may be reasonably required by AXA in relation to placing such orders;
6.2.1.1. following such protocols as may be reasonably required by AXA to facilitate availability or provision of the Ordered Services, including regarding communications with relevant Users in respect of the available Ordered Services;
6.2.1.2. providing such of its materials to AXA as may be required in connection with the Ordered Services (and the Company shall further be solely responsible for updating said materials) – for example, this may include contact details being provided in a manner compliant with applicable law, provision of branding / logos, and other information regarding the Company’s relationship or benefits package for relevant Users; and
6.2.1.3. providing AXA with such information as may be required to support the Ordered Services.
6.3. The Company shall use all reasonable endeavours to prevent any unauthorised activation of, or use of, the Ordered Services and, in the event of any such unauthorised access or use, promptly notify AXA.
7. CHARGES AND PAYMENT
7.1. The Company shall pay the Charges to AXA in accordance with this Agreement.
7.2. If Company fails to pay any amount payable by it under this Agreement within the timescales specified under the Payment Terms, AXA shall be entitled but not obliged to charge the Company interest on the overdue amount, payable by the Company immediately on demand, from the due date up to the actual date of payment, after as well as before judgment, at the rate of 2% per annum above the base rate for the time being of Barclays Bank plc. Such interest shall accrue on a daily basis and be compounded quarterly.
7.3. AXA reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7.4. In the event of termination of this Agreement AXA shall be entitled to be paid that portion of the Charges which pro rata relates to the period of this Agreement up to the date of Termination and any further fee due under Clause 15. Any Charges or portion thereof paid by the Company in excess of such amount shall be refunded by AXA to the Company.
7.5. All sums payable under this Agreement unless otherwise stated are exclusive of Value Added Tax ("VAT") and other duties or taxes and any VAT or other duties or taxes payable in respect of such sums shall be payable in addition to such sums.
7.6. All amounts due to AXA under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. INTELLECTUAL PROPERTY
8.1. Except for the specific licenses granted in this Agreement, each Party shall retain all right, title and interest in and to its Pre-Existing Intellectual Property. All goodwill arising from use of AXA’s Intellectual Property shall inure automatically upon creation to AXA.
8.2. Subject to Clause 8.1, it is the intention of the Parties that all Intellectual Property in the Services is either the property of AXA or is Third Party IP.
8.3. The Company hereby grants to AXA a non-exclusive royalty free licence to use its Pre-Existing Intellectual Property for the term of this Agreement solely to the extent required to allow AXA performance of the obligations under this Agreement, subject to the specific prior written approval of the Company for each use.
8.4. The Company warrants that it has the necessary rights to grant the licence granted under Clause 8.3, and the receipt and use of the same by AXA shall not infringe the Intellectual Property of a third party.
8.5. Subject to Clause 8.6 below, AXA grants, or shall procure the grant, to the Company of, a non-exclusive, revocable, non-transferrable, royalty free licence for the term of this Agreement to use AXA‘s Intellectual Property as may be supplied by AXA to the Company solely to the extent required to allow the Company to perform its obligations under this Agreement, subject to the specific prior written approval of AXA for each use and compliance by the Company with the brand guidelines and other instructions as notified to the Company by AXA from time to time.
8.6. The Company shall immediately cease use of all or some of AXA’s Intellectual Property in the event that it is so required by AXA, including in the event of actual or suspected non-compliance with the applicable brand guidelines or other instructions regarding use of the Intellectual Property.
8.7. In the event of the termination or expiry of this Agreement, or, in the case of AXA on the fulfilment of any outstanding actions that are required to bring the Services to a conclusion in a clinically appropriate fashion following termination, the licences granted in accordance with Clauses 8.3 and 8.5 shall terminate automatically and each Party shall deliver to the other or destroy (each to the extent reasonably practicable) any Intellectual Property licensed to it pursuant to Clause 8.3 or 8.5, as applicable, in its possession or control.
8.8. Nothing in this Agreement shall prevent any Party from taking such action as it deems appropriate (including any application to a relevant court) for injunctive or other emergency or interim relief in relation to its Intellectual Property (or that of any member of its Group) or from otherwise commencing proceedings to preserve any legal right or remedy to protect its interests or the interests of any member of its Group.
9. HEALTH AND SAFETY
9.1. AXA will comply with all applicable laws, rules, regulations, and approved codes of practice relating to all health and safety and fire precaution matters in force from time to time during the provision of the Services to the Company.
9.2. The Company shall co-operate with AXA where appropriate in respect of all health and safety and fire precaution matters. The company shall be responsible for ensuring that any areas assigned and designated to AXA to enable AXA to perform the services are at all times in compliance with the requirements of the Health & Safety as Work Act 1974, The Workplace (Health Safety & Welfare) Regulations 1992, The Provision and Use of Work Equipment Regulations 1992, The Provision and Use of Work Equipment Regulations 1998 and any other health and safety and fire precautions, laws or regulations. The areas made available to AXA shall also ensure such required boundaries of clinical confidentiality can be observed.
10. CONFIDENTIAL INFORMATION
10.1. The Ordered Services are provided on the understanding that where relevant AXA contact with the Users may be confidential. Where required such elements of the Ordered Services are subject to relevant data legislation and the professional codes of ethics and practice including but not limited to those of the British Psychological Society, the British Association for Counselling and Psychotherapy, the Irish Association for Counselling and Psychotherapy and the Employee Assistance Professionals Association as issued or updated from time to time. Where such Ordered Services elements are confidential, details shall not be shared with the Company (or any other third party acting on behalf of the Company) which identify an individual user of the Ordered Services unless with his or her explicit consent or where there is a threat to life or risk of serious harm or where AXA is legally required to do so. In such circumstances the details shall wherever possible be given on a "need to know" basis and if the information is judged to be of significance. Clear clinical procedures exist in such circumstances and shall be communicated to such Users of the relevant Ordered Services when required.
10.2.
Each Party shall treat all Confidential Information as secret and confidential and shall not divulge such information to any persons (except to such Party's own employees and then only to those employees who need to know the same, its professional advisers or as required to be divulged by law or regulatory authority) without the other Party's prior written consent provided that this Clause shall not extend to information which was rightfully in the possession of such Party prior to the commencement of the negotiations leading to this Agreement; or is already public knowledge or becomes so at a future date (other than by breach of this Clause).
10.3.
Subject to Clause 10.4, if in accordance with this Clause 10.3, the recipient of the Confidential Information is entitled to disclose any of the other Party's Confidential Information to a Representative, it must procure that the Representative is aware of the confidentiality obligations and restrictions on use and restricts any further disclosure of that Confidential Information by the Representative and remains responsible for the Representatives' acts and omissions.
10.4. In the event the Company engages a third party auditor, the Company may not disclose AXA’s Confidential Information to such third party auditor if the third party auditor is provider or supplier of private medical insurance or healthcare trust or healthcare plan administration services who are capable of providing the Services or are otherwise competitors of AXA or the AXA Health Group.
10.5. Each Party shall be liable for the acts and/or omissions of its Representatives in respect of this Agreement as if they were its own acts and/or omissions.
11. INSURANCE
11.1. AXA shall effect and keep in force a policy or policies of insurance for the Term in respect of its potential liability under this Agreement and the Company shall be responsible for maintaining adequate insurance to cover its own legal liabilities.
11.2. AXA and the Company will, each for their own premises, obtain or maintain a comprehensive policy of public liability insurance to cover any liabilities that may be contractors or personnel of the other which may occur during the course of the provision of the Ordered Services at either AXAs' or the Company’s premises.
11.3. The Company and AXA shall be at liberty to inspect any of the foregoing confirmation of insurance and either Party shall provide copies to the other on request.
12. NON-SOLICITATION
During the Term and for a period of twelve (12) months thereafter, the Company shall not directly or indirectly either on its own account or on behalf of any person, firm or company solicit or entice away from AXA or any member of the AXA Health Group any employee who at any time prior to such solicitation or enticement was engaged or concerned with the management or handling of matters covered by this Agreement.
13. DATA PROTECTION
13.1. For the purposes of this Clause 13, "controller", "personal data", and "processing" shall have the meanings set out in the Data Protection Legislation and "process" and "processed" when used in relation to the processing of personal data, will be construed accordingly. Any reference to personal data includes special categories of personal data, (as listed in Article 9(1)(a) of the GDPR and personal data relating to criminal convictions and offences as set out in Data Protection Legislation.
13.2. Each Party agrees to use all reasonable efforts to assist each other to comply with such obligations as are imposed on them by the Data Protection Legislation. Neither Party shall, by its acts or omissions, cause the other Party to breach its respective obligations under the Data Protection Legislation.
13.3. Both Parties acknowledge and agree that, for the purposes of this Agreement, each Party shall process personal data and shall each be a controller of such personal data that is processed under or in connection with this Agreement.
13.4. Each Party shall comply with its obligations under the Data Protection Legislation.
13.5. AXA may provide management information as agreed with the Company but will only provide such information in anonymised form to the extent that it will not constitute personal data.
13.6. If, at any time AXA monitors, intercepts or records any telephone call made by a User AXA shall comply with all UK and European laws and regulations in force from time to time and relating to such monitoring, intercepting or recording (including the Data Protection Legislation, the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000), Telecommunications (Data Protection and Privacy) Regulations 1999 and the Human Rights Act 1998.
13.7. Each Party shall establish reasonably adequate procedures designed to ensure compliance with this Clause.
14. LIMITATION OF LIABILITY
14.1.
Each Party’s liability to the other under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise and howsoever arising shall be limited to £1 million (£1,000,000) in respect of any one event or series of connected events.
14.2.
In no event will either Party be liable under this Agreement either in contract, tort (including negligence) or otherwise for any:
14.3.
loss of profits, loss of revenue or loss of anticipated savings;
14.4.
loss of business or opportunity, loss of goodwill or injury to reputation;
14.4.1.
any special, consequential or indirect loss or damage suffered by the other Party.
14.5.
Nothing in this Clause 14 is intended to exclude or restrict or shall be construed as excluding or restricting the liability of either Party for the death or personal injury caused by the negligence of either Party or its employees, servants or agents; or to the extent that such exclusion or restriction is prohibited by applicable law.
14.6.
AXA undertakes to provide the Ordered Services in good faith and in such a way that both the Company and the Company employees will benefit from the Ordered Services. AXA does not, however, give any warranty as to the effect of the Ordered Services on staff turnover, sickness and absence, productivity, industrial relations or any other facet of organisational life.
14.7.
AXA accepts no responsibility or liability whatsoever arising out of or in connection with any Third Party Services or the Company’s failure to adhere to Clause 6.2.
15.
FORCE MAJEURE
15.1.
Neither Party shall be in breach of this Agreement or otherwise liable to the other Party for delay in performance or non-performance hereunder where such delay or non-performance is caused by a Force Majeure Event.
15.2.
If either Party is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by a Force Majeure Event then:
15.2.1.
that Party’s obligations under this Agreement shall be suspended for as long as the Force Majeure Event continues and to the extent that Party is so prevented, hindered or delayed;
15.2.2.
as soon as reasonably possible after commencement of the Force Majeure Event that Party shall notify the other Party in writing of the occurrence of the Force Majeure Event, the date of commencement of the Force Majeure Event and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement;
15.2.3.
that Party shall use all reasonable efforts to mitigate the effects of the Force Majeure Event upon the performance of its obligations under this Agreement;
15.3.
As soon as reasonably possible after the cessation of the Force Majeure Event that Party shall notify the other Party in writing of the cessation of the Force Majeure Event and shall resume performance of its obligation under this Agreement; and
15.4.
If the Force Majeure Event continues for more than 30 days either Party shall be entitled to terminate this Agreement by giving to the other not less than 14 days prior notice of termination in writing.
16.
TERMINATION
16.1.
Either Party may terminate this Agreement at any time by giving the other not less than 90 days’ prior written notice to the other Party.
16.2.
Either Party may terminate this Agreement with immediate effect by notice in writing to the other Party on or at any time after the occurrence of any of the events below in relation to the other Party:-
The events are:
16.2.1.
A material breach by either AXA or the Company of any of its obligations under this Agreement which (if the breach is capable of remedy) the other Party has failed to remedy within 28 days after receipt of notice in writing giving particulars of the breach and requiring the other Party to do so.
16.2.2.
The passing by either AXA or the Company of a resolution for its winding up or the making by a court of competent jurisdiction of an order for the winding up of the other Party or the dissolution of the other Party.
16.2.3.
The making of an administration order, (other than for the purposes of a solvent amalgamation or reconstruction with the prior approval of the other Party) in relation to the other Party or the appointment of a receiver or administrative receiver and that appointment is not terminated or discharged within 30 days or the taking possession or sale by an encumbrancer of any of the other Party’s assets.
16.2.4.
Either AXA or Company making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally.
16.3.
AXA may terminate this Agreement on 30 days’ prior written notice to the Company if the Company suffers a Change of Control.
17.
CONSEQUENCES OF TERMINATION
17.1.
No further Available Services will be capable of being ordered from AXA after the effective date of termination of this Agreement. AXA may cease to perform any or all of the then current Ordered Services under this Agreement upon the effective date of termination (as specified in any validly served notice of termination).
17.2.
Upon the effective date of termination of this Agreement pursuant to Clause 17.1 the Company shall pay AXA for all Ordered Services performed up to the effective date of termination and any that AXA has elected to continue to perform thereafter.
18. ANTI-BRIBERY AND SANCTIONS
18.1.
Each Party shall:
18.1.1.
have and maintain in place throughout the term of this Agreement adequate policies and procedures to ensure compliance with the Bribery Act 2010 and enforce them where appropriate;
18.1.2.
not do, nor omit to do anything, nor permit anything to be done by any other party, which is an offence or which may be deemed to be an offence under the Bribery Act 2010; and
18.1.3.
notify AXA immediately upon becoming aware or upon becoming reasonably suspicious that any activity undertaken in connection with this Agreement has contravened or may contravene the Bribery Act 2010.
18.2.
AXA shall not be deemed to provide the Ordered Services to the extent that the provision of such Ordered Services, would, in AXAs’ opinion, be likely to expose AXA to any sanction, prohibition or restriction under United Nations resolutions or the trade or economic sanction, laws or regulations of the European Union, United Kingdom or United States of America.
18.3.
AXA reserves the right to immediately cease provision of the Ordered Services in relation to the Company or any User if the Company or such User is, directly or indirectly, subject to any sanction, prohibition or restriction described in Clause 18.2, including where relevant sanctions apply against the User’s country of residence. If the Company is aware that it or a User is subject to any sanction, prohibition or restriction, the Company must inform AXA within seven (7) days of obtaining such information.
18.4.
AXA may exercise its rights under Clause 18.4 even if the Company or that User has permission from a relevant authority to continue receiving the Ordered Services, or if that Ordered Service is exempted from any prohibition or restriction.
18.5.
The Company acknowledges that the AXA Health Group adheres to certain principles and practices designed to prevent, detect and identify money laundering and counter terrorist financing.
18.6.
Each Party shall take such steps as necessary prior to the Commencement Date and during the term of this Agreement to prevent, detect and identify money laundering and terrorist financing in connection with this Agreement which shall include, (but need not be limited to), the following components:
18.6.1.
maintaining an effective anti-money laundering and counter terrorist financing regime, including detection, prevention, identification and appropriate responses;
18.6.2.
maintaining an effective anti-money laundering and counter terrorist financing regime that complies with the regulatory requirements, and applicable laws, including checking financial sanctions lists;
18.6.3.
operating a structure, procedures and mechanism for immediately reporting suspicious activity, to the extent permitted by law, through a secure reporting mechanism to a representative of each Party (as nominated by that Party in writing to the other Party from time to time).
18.7.
AXA reserves the right to terminate this Agreement immediately if:
18.7.1.
the Company has failed to comply with Clause 18.2;
18.7.2.
AXA deems that Clause 18.3 applies or the Company is directly or indirectly, subject to any sanction, prohibition or restriction described in Clause 18.3.
18.8.
Where a Party fails to comply with Clause 18.7, that Party will be deemed to be in material breach of this Agreement that is not capable of being remedied and the other Party shall have a right to terminate this Agreement immediately.
19. MODERN SLAVERY
19.1.
In performing its obligations under this Agreement, each Party shall:
19.1.1.
comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Modern Slavery Act 2015; and
19.1.2.
not engage in any activity, practice or conduct that would constitute an offence under Sections 1, 2 or 4 of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK; and
19.1.3.
have and maintain throughout the Term its own policies and procedures to ensure such compliance.
20. SEVERANCE
If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable (or indications to that effect are received by either of the Parties from any competent authority) the Parties shall amend that provision in such reasonable manner as achieves the intention of the Parties without illegality or at the discretion of AXA it may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
21.WHOLE AGREEMENT
Each Party acknowledges that this Agreement contains the whole agreement between the Parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations.
Unless otherwise specified in this Agreement, no variation will be admitted unless it is in writing and signed on behalf of both Parties by a properly authorised representative.
22. VARIATION
Unless otherwise specified in this Agreement, no variation will be admitted unless it is in writing and signed on behalf of both Parties by a properly authorised representative.
23. SUPERSEDES PRIOR AGREEMENTS
Any such prior agreements in respect of the subject matter are cancelled as at the Commencement Date but without prejudice to any rights which have already accrued to either of the Parties.
24. NO PARTNERSHIP
Nothing in this Agreement and no action taken by the Parties under this Agreement shall constitute a partnership, association, joint venture or other co-operative entity between the Parties.
25. THIRD PARTY RIGHTS
Unless otherwise specified in this Agreement, any person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from this Act.
26. NOTICES
Any notice issued under this Agreement must be in writing and be delivered or sent either by registered or recorded delivery post and shall be considered to have been given if sent by first class post forty-eight hours after it was posted to:
for AXA
AXA Client Contract Team
Ground Floor, International House
Forest Road
Tunbridge Wells
Kent
TN2 5FE
for the Company at the registered office that appears on the Order Form.
27. RIGHTS CUMULATIVE
All rights granted to either of the Parties shall be cumulative and no exercise by either of the Parties of any right under this Agreement shall restrict or prejudice the exercise of any other right granted by this Agreement or otherwise available to it.
28. WAIVER
The waiver by AXA or the Company of any breach of any term or condition of this Agreement shall not prevent the subsequent enforcement of that term or condition and shall not be deemed to be a waiver of any subsequent breach.
29. ASSIGNMENT & SUBCONTRACTING
29.1.
Neither Party shall assign this Agreement without the prior written consent of the other Party, except, that AXA may at any time assign this Agreement to a member of the AXA Health Group.
29.2.
AXA shall engage sub-contractors and providers of Third Party Services in its discretion. Where AXA sub-contracts any of its obligations under this Agreement then notwithstanding such sub-contracting, AXA shall not be relieved from any of its obligations or liabilities under this Agreement. AXA shall, however, have no liability or obligation in relation to the actions or omissions of providers of Third Party Services.
30. DISPUTES
30.1.
In the event of any dispute or difference arising between the Parties in connection with this Agreement, senior representatives of the Parties shall meet in good faith effort to resolve the dispute without recourse to legal proceedings within thirty (30) days of a written request from either Party to the other Party. If the dispute or difference is not resolved as a result of such a meeting either Party may commence court proceedings.
30.2.
Notwithstanding the provisions set out in Clause 30.1, nothing shall prevent either Party commencing or continuing court proceedings at any time.
31. GOVERNING LAW AND JURISDICTION
This Agreement (and any non-contractual obligation arising out of or in connection with it) shall be governed by and construed in accordance with the laws of England and the Parties irrevocably agree to submit to the exclusive jurisdiction of the English courts.
Schedule 1 - Charges and Payment
This Schedule is integral to this Agreement and in conjunction with Clause 7 sets out the Charges payable by the Company to AXA for the provision of the Ordered Services.
1. PAYMENT TERMS
1.1.
Subject to Paragraph Error! Reference source not found., the Charges for the Ordered Services (including any expenses) shall be as agreed between the Parties on the Order Form and confirmed in the Confirmation Emails.
1.2.
Cancellation fees shall be included on any invoice as relevant.
2.
Unless otherwise agreed between the Parties:
2.1.
AXA shall submit an invoice for the applicable Charges incurred for each month that the Ordered Services are delivered, together with any VAT; and
2.2.
the Company shall pay in full the amount set out in each invoice within thirty (30) days of receipt.
3.REVIEW OF CHARGES
3.1.
The Charges shall be subject to adjustment by AXA on notice to the Company in each of the following circumstances:
3.1.1.
the costs of providing the Ordered Services materially increases due to the severe nature of the Crisis despite AXA using commercially reasonable endeavours to mitigate such costs increase; and
3.1.2.
the Company requests a change to the Ordered Services.
4.
Notwithstanding the foregoing, AXA shall be permitted to change the pricing applied to each Available Service through updates to the Order Form at any time during the Term.