Terms and Conditions

1. Definitions

1.1 “Guardian Support” is the trading name of Bushell Investment Group Business Services Limited, a private limited Company. The Company Registration number is 7623348. The registered office is Nationworld House, Noose Lane, Willenhall, WV13 3AP.

1.2 “Client” refers to a business entity, which includes sole traders, partnerships, LLP, public limited and private limited companies. Where the business name is incorrectly identified, the parties agree that this name can be substituted by the correct legal name and this does not preclude authority to bind the intended business entity.

1.3 “HR” is an abbreviation for Human Resources.

1.4 “ACAS” means the Advisory, Conciliation and Arbitration Service.

1.5 “COSHH” is an abbreviation for Control of Substances Hazardous to Health.

1.6 “DSE” is an abbreviation for Display Screen Equipment.

1.7 “HSE” is an abbreviation for the Health and Safety Executive.

1.8 “H&S” is an abbreviation for Health and Safety.

1.9 “IOSH” is an abbreviation for the Institute of Occupation Safety and Health.

1.10 “NEBOSH” is an abbreviation for the National Examination Board of Occupational Safety and Health.

1.11 “SSSTS” is an abbreviation for Site Supervisor Safety Training Scheme.

1.12 “SMSTS” is an abbreviation for Site Manager Safety Training Scheme.

1.13 “HSG65” is reference to a HSE Guidance Document Number 65.

1.14 “OHSAS 18001” is an abbreviation for Occupational Health and Safety Assessment Series.

1.15 “PPE” is an abbreviation for Personal Protective Equipment.

1.16 “SSIP” is an abbreviation for a Safety Scheme in Procurement

1.17 “Employee(s)” refers to a person deemed an Employee in accordance with legislation, specifically as defined presently in Section 230 of the Employment Rights Act 1996. For the avoidance of doubt, this does not include “Workers” any “sub-contractors” or those considered “self-employed”

1.18 “OH” – is an abbreviation for occupational health.

2. Previous Agreements

2.1 Unless agreed otherwise in writing, this agreement supersedes any previous agreement, whether written, verbal or otherwise.

3. Services

3.1 “HR Advice Line” is a service that is provided 24/7 across 365 days of the year. Users of this service will be provided with access to advice from one of our team of qualified advisers. Advisers are either qualified to a legal standard or will be an experienced HR professional. Guardian Support will provide the Client with advice on any aspect of employment law or HR in respect of the Client’s Employees. Core office hours exist between 9am and 5pm Monday to Friday, followed by an out of hours service outside of core office hours for urgent enquiries. The HR Advice Line will be able to provide the Client with appropriate documentation to offer guidance on various procedures along with sample letters as required. Unless agreed otherwise in writing, full bespoke letters are completed at Guardian Support’s absolute discretion. Calls to the Advice Line may be recorded for quality and training purposes. Advice given is available by telephone or email, any onsite advice or work is chargeable unless otherwise agreed in writing. Advice on any aspect of employment tribunal representation or ACAS pre-claim conciliation is specifically excluded from the HR Advice Line service.

3.2 “Contracts of Employment and Employee Handbook” is a service which offers the review of, amendments to, or the complete drafting of bespoke contracts of employment and employee handbook. This documentation includes a Principal Statement of Terms and Conditions of Employment, specific to each job role, an employee handbook, fixed term or temporary contracts, casual worker agreements as well as apprenticeship contracts as required. This work does not include self-employed agreements, commercial contracts, Director’s service agreements, property clauses or shareholder agreements. Should we assist in the drafting of these excluded documents we do so without liability and would always recommend that any drafts are approve by your own commercial legal advisors. Unless specified otherwise on your service agreement, this will be completed without a visit. Once this documentation has been implemented, it will be reviewed on an annual basis.

3.3 “Employment Tribunal Representation” is a service available to Clients who find themselves either with proceedings brought in the Employment Tribunal against them by one of their Employees or Ex-employees, or pre-claim conciliation is instigated against the Client via the ACAS service. Where this service is listed as one of the Client’s HR Services in their service agreement, this will be available for the number of Employment Tribunals detailed in the Client’s Service Agreement (or for up to 1 Employment Tribunal if there is nothing specifically contained in the agreement) over a fixed 12 month period (commencing on the start date of the contract and each anniversary thereafter). As soon as either the ET1 is served or notification of pre-claim conciliation is made, this acts as the claim, irrespective whether this is concluded through conciliation or otherwise. Where this service is taken, a representative will be able to assist the Client from the initial stages, namely pre-claim conciliation or the inception of an ET1 form through to representation at an Employment Tribunal. Guardian Support will not however, assist with any appeal processes, unless agreed otherwise in writing. Assistance with ongoing Employment Tribunal representation is conditional on the cooperation of the Client throughout the proceedings and the merits of the case. The Client’s monthly payments must also not be in arrears. Guardian Support reserves the right to cease acting where the merits of the case do not justify the resources required to proceed to final hearing. “Bronze” service covers liaising with ACAS early pre-claim conciliation, initial advice on the merits and prospects of any claim, plus completion of the ET3 response. “Silver” service covers liaising with ACAS early pre-claim conciliation, and throughout the tribunal process, initial and ongoing advice on the merits, completion of ET3, disclosure, bundle preparation, counter schedule of loss, witness statements, and full preparation for final hearing. “Gold” service covers liaising with ACAS early pre-claim conciliation, and throughout the tribunal process, initial and ongoing advice on the merits, completion of ET3, disclosure, bundle preparation, counter schedule of loss, witness statements, and full preparation and representation at final hearing. Unless the Client takes “Gold” package, hearings, including preliminary hearings, will be charged at £180 per hour plus VAT and expenses. In accordance with the Clause concerning limitation of liability below, Guardian Support’s total liability for Tribunal Services shall be limited to the Client’s annual fee.

3.4 “HR Training” is available to cover training between Guardian Support and the Client. Unless agreed otherwise, each training session is available to a maximum of 12 delegates per session and must take place on a single day. Training can be held in our purpose built training room or at the Client’s premises. Separate venues may be possible but only with the written permission from Guardian Support. The training costs include attendance on the day and all preparation time. The course topic must be selected from one of our pre-existing courses as detailed in the HR training brochure, unless agreed otherwise in writing.

3.5 “On-site HR Support” is a service available to a Client who requires it. It can be purchased in advance as part of a retained fee or it can be purchased when required. The service can include assistance with meetings, whether these be redundancy or disciplinary meetings and the role can vary from a supportive role, such as minute taker through to actually chairing the meeting itself. On-site support is conditional upon the availability of an Adviser and must be held at the Client’s head office, unless alternative written permission is obtained from Guardian Support. In the event that Guardian Support are required to attend any subsequent Employment Tribunal, or indeed attend any other meetings which require Guardian Supports’ input as a result of their attendance for on-site HR Support, Guardian Support reserve the right to charge for this attendance in line with their charging structure in place at the time.

3.6 “Regular Updated on changes in Employment Law Legislation” is a service that provides authorised contacts with subscription to our monthly combined Newsletter. Although every effort is made to send this at monthly intervals, Guardian Support reserves the right to withdraw or amend the provision of this Newsletter at its absolute discretion. The newsletter should not be used as a substitute for obtaining specific advice from the Advice Line which will be tailored to specifics of the circumstance.

3.7 “Health and Safety Advice Line” is a service that is provided 24/7 across 365 days of the year. Users of this service will be provided with access to advice from one of our team of qualified advisers. Advisers will typically be qualified to NEBOSH level or equivalent. They will provide the Client with advice on any aspects of Health and Safety. Core office hours exist between 9am and 5pm Monday to Friday, followed by an out of hours service outside of core office hours for urgent enquiries. Calls to the Advice Line may be recorded for quality and training purposes. Advice given is available by telephone or email, any onsite advice or work is chargeable unless otherwise agreed in writing. Advice on any aspect of health and safety prosecution is specifically excluded from the H&S Advice Line service.

3.8 “Health and Safety Policy” is the provision of a written policy intended to comply with the Client’s duty under health and safety legislation. This will be reviewed if the Client already has a health and safety policy in place and amended if necessary, or otherwise a bespoke policy will be drafted. The Client’s Health and Safety policy will be reviewed annually thereafter. Should amendment be required more frequently Guardian Support reserve the right at their absolute discretion to charge an additional fee for this service.

3.9 “General Health and Safety Risk Assessment” will be a bespoke assessment of the hazards identified during any specific site visit that is undertaken, identifying the hazards, the people affected, any control measures in place or needed followed by a record of the significant findings. This is a general assessment looking at generic workplace hazards designed to satisfy the Client’s duties under Regulation 3 of the Management of Health and Safety at Work Regulations 1999. It is not intended to look at specific risks assessments such as Fire, Provision and Use of Work Equipment, Lifting Operations or anything else itemised separately in the Service Agreement. Nothing in this agreement renders Guardian Support liable for any omission to identify a hazard that has been concealed or otherwise was not apparent to the reasonable person of competent vision during the visit. To ensure that Guardian Support are aware of all relevant factors, the Client should provide sufficient assistance to facilitate the identification of appropriate hazards and to facilitate an appropriate walkaround of the facility. The Client remains responsible for completing any recommended actions arising from the reports.

3.10 “Fire Risk Assessment” is a bespoke assessment of the fire risk at any given premises at any given time. This will include 1 site visit and a written documented fire risk assessment which identifies the fire hazards present, the people affected, the preventative and protective controls in place or needed, followed by a written record of the significant findings. Nothing in this agreement renders Guardian Support liable for any omission to identify a hazard that has been concealed or otherwise was not apparent to the reasonable person of competent vision during the visit. To ensure that Guardian Support are aware of all relevant factors, the Client should provide sufficient assistance to facilitate the identification of appropriate hazards and to facilitate an appropriate walkaround of the facility. The Client remains responsible for completing any recommended actions arising from the reports.

3.11 “Fire Safety Management Plan” is a bespoke plan to meet requirements of the Regulatory Reform (Fire Safety) Order 2005 and sets out the roles and responsibilities within the organisation and the arrangement to manage fire safety within the organisation. This includes, planning, organisation, control, monitoring and review of fire safety. No intrusive survey will be carried out and the management plan will be developed through verbal consultation and document provision supplied by the Client. Guardian support will not be held liable for any omission or concealment of information.

3.12 “First Aid Needs Analysis” can be undertaken to assess the first aid requirements on any given site of the Client. This will ordinarily be undertaken in accordance with the HSE guidance on first aid provision within the workplace, or any other subsequent or similar guidance. This assessment will typically identify the numbers and classes of first aid requirements. It does not however, include the training of first aid personnel. The Client remains responsible for completing any recommended actions arising from the reports.

3.13 “COSHH Assessment” is an assessment of exposure to a particular hazardous substance (or substances) within the workplace. The assessment will identify the substance, the routes of entry into the body (e.g. absorption, inhalation, ingestion and injection), the person(s) exposed, control measures for these exposures to minimise the risks and the significant findings will be recorded in writing. The Client remains responsible for completing any recommended actions arising from the reports.

3.14 “DSE Assessment” is an assessment of an individual’s computer workstation. It will identify the risks, the existing control measures, along with any additional controls necessary and the significant findings recorded in writing. The Client remains responsible for completing any recommended actions arising from the reports.

3.15 “Manual Handling Assessment” is an assessment looking at specific risks associated to any manual handling activity. Manual handling may include for example, lifting, pushing, pulling and carrying. This assessment will identify the risks arising from the task in question, the individual’s particular capabilities, the load and the environment. It will consider control measures in place or necessary for the reduction of risk. The significant findings will be recorded in writing. The Client remains responsible for completing any recommended actions arising from the reports.

3.16 “Specific Machine Assessment” is an assessment of any particular machine at a workplace. It will look at mechanical and non-mechanical hazards arising from the work activity. It will look at the control measures in place or required as well as any remedial action necessary to reduce the risk. The significant findings will be documented in writing. The Client remains responsible for completing any recommended actions arising from the reports.

3.17 “On-site Support Visits” are available to any client who has a requirement for any health and safety support which is within the capability of Guardian Support but outside of the scope of any existing services purchased. The Client should ensure that Guardian Support are fully briefed as to the nature of the visit and works to be undertaken. Any consequential or preparatory work will be an additional charge to any on-site support visits. On-site support is conditional upon the availability of an adviser. Unless agreed otherwise, a day of support visit consists of 8 hours maximum to include travel and suitable rest breaks. In the event that Guardian Support are required to attend a Court hearing or indeed attend any other meetings which require Guardian Supports’ input as a result of their attendance for on-site support visits, Guardian Support reserve the right to charge for this attendance.

3.18 “On-site Management Systems Audit” is an audit looking at the Client’s organisation against H&S management standards. It focuses on the minimum requirements needed for legal compliance. The Audit will look at a number of factors, including the Client’s policies, procedures, communication and risk control measures affecting the business. It will then include a bespoke report on the significant findings and will identify any gaps in performance against the standard. The Client remains responsible for completing any recommended actions arising from the reports.

3.19 “On-site OHSAS 18001 Audit” is an audit looking at the Client’s organisation against the OHSAS 18001 Management Standard. It focuses on the requirements needed for certification against the standard. The Audit will look at a number of factors, including the Client’s policies and the need for commitment for continual improvement, the procedures, communication and risk control measures affecting the business. It will then include a bespoke report on the significant findings and will identify any gaps in performance against the standard. The Client remains responsible for completing any recommended actions arising from the reports.

3.20 “On-site compliance review” is an on-site overview of general health and safety compliance at the workplace. It will look at any unsafe practices as well as good practice and produce a report of the significant findings and suggested remedial works. Unless agreed otherwise, the review will be undertaken against set criteria determined by Guardian Support. The review will be limited to one day’s on-site activity and consequential write up time, unless agreed otherwise in writing. Additional work on top of this will be chargeable at an agreed rate.

3.21 “Chairing or Facilitating H&S Committee Meetings” is available to the Client should this be required and subscribed for. It will include attendance at the meeting itself at the interval agreed. Guardian Support will chair the meeting if required. The Client is responsible for preparing a suitable agenda, venue and refreshments for the meeting and for keeping a record of the meeting. This is conditional upon the availability of an adviser.

3.22 “Bespoke Training” is available to cover any agreed H&S topic. Unless agreed otherwise, training is available to a maximum of 12 delegates per session. Training can be held in our purpose built training room or at the Client’s premises. Separate venues may be possible but only with the written permission from Guardian Support. The training costs include attendance on the day and all preparation time. The course topic may be selected from our pre-existing courses or a bespoke course can be agreed.

3.23 “Assistance with application for SSIP” is a service available for a Client to assist them to apply for the SSIP detailed on the Client’s Service Agreement. This Assistance is available provided that the Client cooperates with the requirements of Guardian Support at all times for submitting the application. The cost for any application payable to the accrediting body is not included in this service and will be required for payment by the Client. This service also does not include assistance with completing any compliance gaps in the documentation required to support the application and it is, unless agreed otherwise in writing, for a single application and in the event that the application fails, Guardian Support are not liable to resubmit the application.

3.24 “Noise Assessment” is a bespoke assessment of noise exposure levels within an organisation. This will typically involve measuring noise levels using at least a Class 2 integrating sound level meter, and producing a written report detailing the level of noise exposure and where applicable, recommendations for reducing noise exposure and reviewing the suitability of the hearing protection provided. The Assessment is designed to meet the Client’s responsibilities under the Control of Noise at Work Regulations 2005. Any assessment is only valid based on exposure levels during the time of the assessment.

3.25 “Electromagnetic Field Assessment” is an assessment of exposure to electromagnetic fields generated by resistance welding, magnetic particle inspection, and induction heating processes using a software application containing a database of exposure levels related to the type of equipment used and the processes carried out.

3.26 “Food Safety Audit/Inspection” – a bespoke audit and inspection of the business in relation to food safety that clearly identifies a clients areas of strength and any areas which may need improving detailing any significant findings and actions for improvement.

3.27 Food Safety Management System – A bespoke HACCP system that is designed as a systematic approach to controlling food safety hazards within a business ensuring food is safe to eat.

3.28 Recruitment and Onboarding Services” is a service that can be provided via our carefully selected recruitment partners.

3.29 “Recruitment and Onboarding Administrative Support”, as part of the service your recruitment consultant will assist with letter writing, i.e. interview invites, rejection letters, conditional offers, reference requests through to issuing contracts and handbooks on your behalf.

4. Third Party Suppliers

4.1 If the Client has instructed Guardian Support, whether verbally or in writing, to arrange for additional works to be carried out by a third party contractor (e.g. asbestos survey or training etc), then the Client agrees to meet fully, any costs incurred by the third party contractor, and expressly agrees to their terms and conditions of engagement (a copy of which is available from either Guardian Support or the third party contractor).

5. Provision of Documentation

5.1 Any documentation forming our Health and Safety and HR services will unless agreed otherwise in writing, be supplied to the Client in electronic format and the Client will be responsible for arranging their own hard copy printing. Guardian Support may at their absolute discretion provide it in hard copy. Guardian Support reserves the right to charge for this service.

5.2 Guardian Support reserves the right to charge addition fees for lost, damaged or duplicate documentation.

5.3 Documentation provided by Guardian Support should not be amended without express written permission from Guardian Support.

5.4 Guardian Support accepts no liability for courier / Royal Mail / other postal failures beyond their control.

5.5 In the event that Guardian Support is required to re-type any existing Client documentation, Guardian Support reserves the right to make an administration charge of £30 per hour plus VAT to undertake this work. Therefore, the Client should use their best endeavours to ensure that any documentation is provided in Word format.

6. Validity of Assessments and Documentation

6.1 Any assessment or documentation described in Clause 3 above will only be valid at the time of any visit when the work is undertaken.

6.2 The Client should be aware that Guardian Support accepts no responsibility should this assessment or documentation be amended without their involvement or knowledge.

6.3 Unless agreed otherwise, assessments or documentation will be reviewed once a year.

6.4 Assessments or documentation may identify actions for the Client, and unless agreed otherwise by Guardian Support in writing, these actions will be for the Client to undertake, and an additional charge may be invoked if Guardian Support are required to complete these.

7. Payments

7.1 Payments should be made in line with Guardian Support’s individual requirements, these will include; by standing order, BACS, debit / credit card, direct debit, or by cheque at agreed monthly intervals for retained Clients or for Pay as you go or additional services, payment terms are strictly within 14 days of the date of an invoice.

7.2 All Clients will be subject to a credit check (typically at the commencement of their services or at any period thereafter). Guardian Support will use this credit check to determine the Client’s payment terms. Once payment terms have been agreed, Guardian Support reserves the right, at its absolute discretion, to amend any payment terms agreed if the Client’s credit score has altered or if any default on payment is incurred.

7.3 For a retained Client who is paying on an agreed payment schedule (e.g. monthly payments), in the event of default on any payments, the Client becomes liable immediately for the total contract fee for the remaining contract period. For the avoidance of doubt, once the Client has defaulted, they lose the ability to pay in regular instalments.

7.4 In the event that payments are not made within this period, Guardian Support reserves the right, at its absolute discretion, to suspend any services provided, and they shall not be liable to the Client for any loss in consequence.

7.5 Guardian Support also reserves the right, at its absolute discretion to make a £100 administration charge (plus where applicable VAT) for any late payment.

7.6 In the event that any fees become outstanding, Guardian Support reserves the right, at its absolute discretion, to charge interest at 8% above the Bank of England’s base rate.

7.7 Guardian Support reserves the right to add debt collection fees of 20% of the debt to outstanding for balances which are more than one month in arrears or any annual debt that becomes payable as a result of late monthly payment

7.8 In the event that there is a change in the numbers employed or the number of premises covered by this agreement, Guardian Support reserves the right to alter any fees agreed with the Client.

7.9 Furthermore, Guardian Support also reserves the right, at its absolute discretion, to vary any hourly fees for pay as you go clients and in relation to any additional services.

7.10 Guardian Support may increase the Client’s annual fee by up to 10% per year.

7.11 Guardian Support reserves the right, at its absolute discretion, to charge for travel costs incurred in connection to the performance of any aspect of this agreement. Travel time will be charged at £70 per hour and travel expense will be charged at £0.55 per mile. Hotel costs, subsistence cost, public transport charges, car parking costs and any congestion or toll charging will also be passed onto the Client in the same manner.

7.12 Guardian Support reserves the right to charge the Client for any of its losses occurring from any act or omission of the Client, including but not limited to late cancellation of meetings.

7.13 During any period of contract when the Client is not subject to a fixed contract period (i.e. when the Client’s original fixed term contract expires and/or becomes a rolling contract), Guardian Support reserves the right at its absolute discretion to increase the monthly fee by 20% plus VAT, and/or not to complete any visits for the Client, until their renewal is secured.

7.14 In the event that the Client is in arrears with their account, Guardian Support reserves the right to exercise a lien over any Client property or documentation.

8. Time Management

8.1 Any work undertaken for the Client by Guardian Support will be calculated in fifteen-minute intervals only. Therefore, any work undertaken will be rounded upwards to the nearest fifteen minutes.

9. Refunds

9.1 Refunds may only be given with the express written authorisation of a Director who will apply discretion to each individual circumstance.

9.2 Nothing in this agreement is intended to deny the Client the use of any of their statutory rights which may entitle them to a refund of any fees payable.

10. Commencement of the Agreement

10.1 Unless agreed otherwise, in writing, Guardian Support and the Client agree that this agreement will commence immediately once it has been accepted by the Client (whether written or verbally).

10.2 If more than one company or individual is named on the Agreement, the Client also agrees that they shall be held jointly and severally liable for all terms and obligations under this Agreement.

11. Value Added Tax (VAT)

11.1 Unless stated to the contrary, all prices quoted by Guardian Support are exclusive of Value Added Tax (VAT). Therefore, VAT will be added onto any invoice payable by the Client.

12. Client’s Obligations

12.1 The Client (including their employees) agree to the following:

12.2 That they will co-operate with Guardian Support at all stages to assist them in the performance of their obligations under this agreement.

12.3 That they will provide to Guardian Support, any documents which are reasonably required for the proper performance of any aspect of this agreement, within a timeframe specified by Guardian Support (or in the absence of an agreed timeframe, within a reasonable timeframe following any request).

12.4 Ensure that they are open and honest with Guardian Support at all stages and in respect of all matters.

12.5 Ensure that they disclose to Guardian Support, any matter which is relevant to any aspect of the services provided by Guardian Support, whether asked or otherwise.

12.6 Notify Guardian Support if there is any increase to the number of staff members employed or the number of sites which would give rise to a review of any fees made payable to Guardian Support.

12.7 In the event that the Client breaches any of these obligations at any point, Guardian Support reserves the right, at its absolute discretion to terminate this agreement, without compensation.

13. Guardian Supports’ Obligations

13.1 Guardian Support (including its employees and associates) agree to the following:

13.2 That they will use their reasonable endeavours and expertise to ensure the proper performance of the services detailed within these terms and conditions.

13.3 They will only act where they have the competence to do so. They will refuse to complete any work not within their technical competence.

13.4 That they will respond to any query as soon as is reasonably practicable taking into consideration the urgency of the task and existing operational requirements.

13.5 Although every effort is made to deliver all services within a reasonable timeframe, Guardian Support guarantees that all services will be delivered during contract period, subject to the client complying with clause 12 above.

14. Appointments

14.1 Guardian Support will use reasonable endeavours to ensure that any appointments with the Client are kept and arrived for on time. They aim to arrive at least 15 minutes before any appointment, although with traffic, unfortunately this cannot always be guaranteed.

14.2 The Client agrees that they will ensure that there are suitable arrangements in place for any appointment, including car parking, directions, suitable PPE and refreshments. If these are not available, Guardian Support reserves the right to cancel the meeting and shall not be liable for any consequential loss or rescheduling of the meeting.

14.3 The Client will ensure that Guardian Support’s team member is protected whilst on site. They should be made aware of any relevant procedures, including but not limited to emergency procedures. The consultant reserves the right to refuse to continue with the visit should safety not be guaranteed. The Client recognises that they will be liable if this is not performed and will not be entitled to any refund.

14.4 In the event that a Client cannot keep an appointment, Guardian Support are able to reschedule the meeting once, provided that they are given no less than 72 hours notice (excluding weekends).

14.5 In the unfortunate event that sufficient notice is not provided, there is no guarantee that the meeting can be rescheduled, although if it is, a charge may be invoked for the time and travel of the representative.

14.6 Guardian Support may, for any reason, rearrange any appointment if required.

14.7 Appointments will be arranged by a Guardian Support representative who will make three attempts to arrange a visit. In the event that the appointment has not been successfully arranged after this, the Client shall become solely responsible for arranging the meeting with Guardian Support.

14.8 Appointments are confirmed by Guardian Support, typically 24 hours before the meeting. In the event that Guardian Support cannot confirm the meeting, the representative reserves the right not to attend the meeting.

15. Notices

15.1 Any notice required to be served in accordance with this agreement must be served in writing to the respective parties’ head office.

15.2 Any notice to terminate the agreement is only effective once this notice has been received by and acknowledged by the other party to the agreement.

16. Data Protection

16.1 Guardian Support will obtain, process and store information about a Client as part of the proper performance of this agreement, including information relating to any of its employees, volunteers, or otherwise anyone else with whom they have cause to speak about or advise upon.

16.2 This information will be retained for any statutory periods where applicable (or in the absence of regulatory retention requirements, the information will be retained for any period deemed sufficient by Guardian Support usually 7 year), after which it will be destroyed confidentially.

16.3 Guardian Support may send you information about complementary services and updates that relate to your contracted services, based on our legitimate business interest in promoting services relevant to your needs. This is in addition to mandatory legislative updates. You may opt-out of these promotional communications at any time by clicking on unsubscribe.

16.4 In relation to recruitment activity, Guardian Support will retain applicant details for a 6 month period, following which they will be securely and permanently deleted.

16.5 Should Guardian Support receive a Subject Access Request, from a Client’s employee, for all or any information that it has processed about an employee, then Guardian Support reserves the right, at it’s absolute discretion, to invoke an additional charge to the Client, at the prevailing hourly rate, for complying with this request.

16.6 In this clause 16, “Data Protection Law” means all applicable legislation in force from time to time in the United Kingdom relating to data protection and privacy including, but not limited to, the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder), and the Privacy and Electronic Communications Regulations 2003, in each case as amended, replaced or superseded, and (where applicable) the EU GDPR. The terms “data controller”, “data processor”, “data subject”, “personal data”, “special category personal data”, “personal data breach” and “processing” have the meanings given to them in Data Protection Law. Guardian Support processes personal data in accordance with this clause 16 and with its Data Protection Policy, its Client Portal Data Retention Policy and its Incident Response Procedure, each as updated from time to time and copies of which are available on request.

16.7 Both parties will comply with all applicable requirements of Data Protection Law. This clause 16 is in addition to, and does not relieve, remove or replace, either party’s obligations or rights under Data Protection Law.

16.8 The capacity in which Guardian Support processes personal data depends on the circumstances. Where Guardian Support determines the purposes and means of the processing — including in respect of user account, authentication and access data, audit and activity logs, and its own advice, case, quality, training, credit-checking, billing, marketing and business records, together with the other categories of personal data identified in its Data Protection Policy — Guardian Support acts as a data controller and processes that personal data in accordance with its Data Protection Policy. Where Guardian Support processes personal data solely on the documented instructions of, and on behalf of, the Client (for example, where it stores, hosts, handles or exchanges documents and information that the Client uploads to or provides through the Client Portal in connection with employment tribunal representation, ACAS conciliation, HR advice or any other Service), the Client is the data controller and Guardian Support is the data processor, and clauses 16.10 to 16.21 apply to that processing.

16.9 Guardian Support may make available to the Client a secure online client portal (the “Client Portal”) through which the Client and Guardian Support may store, access, upload, exchange and process documents and information. The Client acknowledges that this may include the names of, and other personal data relating to, the Client’s employees, workers, ex-employees, applicants and other individuals (including the categories of personal data described in Guardian Support’s Data Protection Policy), together with tribunal paperwork, pleadings, evidence, witness statements, correspondence and related material, and that this may include special category personal data (such as data concerning health) and personal data relating to criminal allegations, proceedings, convictions or offences.

16.10 For the purposes of Article 28 of the UK GDPR, where Guardian Support acts as data processor the subject matter of the processing is the provision of the Services; its duration is the contract period together with any applicable retention period referred to in clause 16.19; its nature and purpose is the performance of the Services described in this agreement; and the types of personal data and the categories of data subject are those contained in the information uploaded or provided by the Client. Guardian Support will process such personal data only on the Client’s documented instructions (including the instructions set out in this agreement and any instructions given by the Client through the Client Portal), unless required to process it by law, in which case Guardian Support will inform the Client of that legal requirement before processing, unless the law prohibits it from doing so.

16.11 Guardian Support will ensure that any persons it authorises to process personal data are subject to a duty of confidentiality (whether contractual or statutory) in respect of that personal data.

16.12 Guardian Support will implement appropriate technical and organisational measures to protect personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure, appropriate to the risk. In relation to the Client Portal, and in accordance with Guardian Support’s Data Protection Policy, these measures include, as appropriate, role-based access controls, multi-factor authentication, encryption of personal data in transit and at rest, activity logging, regular security monitoring and auditing, and secure backup and recovery processes.

16.13 The Client is responsible for managing and controlling which of its personnel are granted access to the Client Portal, for keeping all login credentials secure and confidential, for promptly notifying Guardian Support where any user should no longer have access, and for all activity carried out under its user accounts. The Client will ensure that its authorised users access only the personal data that they are entitled to access.

16.14 Where Guardian Support acts as data processor, the Client provides Guardian Support with general written authorisation to appoint third parties as sub-processors (which may include the provider(s) that host or support the Client Portal and any sub-contractors, group or associated companies or approved-panel partners referred to in clause 17). Guardian Support will impose on any such sub-processor, by a written contract, data protection obligations equivalent to those set out in this clause 16, and will remain liable to the Client for the acts and omissions of its sub-processors. Guardian Support will inform the Client of any intended addition or replacement of a sub-processor and give the Client a reasonable opportunity to object.

16.15 Taking into account the nature of the processing, Guardian Support will assist the Client, by appropriate technical and organisational measures and insofar as this is possible, to respond to requests from data subjects seeking to exercise their rights under Data Protection Law. The Client’s attention is drawn to clause 16.5 in respect of charges for Guardian Support’s time in complying with such requests.

16.16 Taking into account the nature of the processing and the information available to it, Guardian Support will assist the Client in ensuring compliance with its obligations relating to the security of processing, the notification of personal data breaches, data protection impact assessments and prior consultation with the Information Commissioner’s Office.

16.17 Guardian Support will manage personal data breaches in accordance with its Incident Response Procedure. Where Guardian Support acts as data processor, it will notify the Client without undue delay after becoming aware of a personal data breach affecting the Client’s personal data, and will provide the Client with such information and reasonable assistance as the Client requires to meet its own obligations. Where Guardian Support acts as data controller and a personal data breach is likely to result in a risk to the rights and freedoms of data subjects, Guardian Support will notify the Information Commissioner’s Office without undue delay and, where feasible, within 72 hours of becoming aware of it, and will inform affected data subjects without undue delay where the breach is likely to result in a high risk to their rights and freedoms.

16.18 Guardian Support will not transfer personal data to a country outside the United Kingdom unless an appropriate safeguard or transfer mechanism recognised under Data Protection Law is in place (such as UK adequacy regulations, the Information Commissioner’s Office International Data Transfer Agreement, or the International Data Transfer Addendum to the EU Standard Contractual Clauses), or another condition permitting the transfer under Data Protection Law applies. Where Guardian Support acts as data processor, it will not transfer the Client’s personal data outside the United Kingdom without the Client’s prior written consent, except where required to do so by law.

16.19 Personal data held within the Client Portal will be retained in accordance with Guardian Support’s Client Portal Data Retention Policy. In summary, and unless a longer period is required by law or a legal hold applies, client account information, uploaded documents and communications are retained for the duration of the client relationship plus seven years; audit, access and authentication logs are retained for twelve months; and backup data is retained for up to ninety days. Where litigation, investigation, regulatory review or other legal proceedings are anticipated or underway, relevant information may be retained beyond these periods until the matter is resolved.

16.20 On termination or expiry of the relevant Services, Guardian Support will, at the choice of the Client, delete or return to the Client the personal data that it processes on the Client’s behalf as data processor, and delete existing copies, save to the extent that Guardian Support is required or permitted to retain it by law or in accordance with the retention periods and legal holds described in clause 16.19 and its Client Portal Data Retention Policy.

16.21 Guardian Support will make available to the Client such information as is reasonably necessary to demonstrate its compliance with its obligations as a data processor under this clause 16, and will allow for and contribute to audits, including inspections, conducted by the Client or an auditor mandated by the Client, subject to reasonable prior notice, obligations of confidentiality, reasonable limits on frequency, and a reasonable charge for Guardian Support’s time and costs.

16.22 The Client warrants and undertakes that, in respect of all personal data it uploads to the Client Portal or otherwise provides to Guardian Support: it has a valid lawful basis for the processing and (where required) any necessary condition for processing special category personal data and criminal-offence data; it has provided all necessary privacy and fair-processing information to the relevant individuals; it is entitled to disclose the personal data to Guardian Support and to have it processed for the purposes of the Services; and the Client’s instructions will not cause Guardian Support to breach Data Protection Law.

16.23 The Client will indemnify and keep indemnified Guardian Support against all losses, damages, costs, expenses, claims, fines and penalties arising out of or in connection with any breach by the Client of its obligations or warranties under this clause 16.

16.24 Any questions, requests or concerns relating to data protection, including the exercise of data subject rights, may be directed to Guardian Support’s Data Protection Officer at dpo@guardiangroup.co.uk.

17. Performance of Work

17.1 Every effort will be made to ensure that the Services provided by Guardian Support are provided by one of our team of employed specialists. However, where circumstances require this, Guardian Support reserves the right, at its absolute discretion, to use sub-contractors, group or associated companies or affiliated partners that have been carefully selected to be on our “approved panel”.

17.2 Guardian Support may assign or subcontract any of its rights or obligations under the Agreement provided that any such assignment or subcontracting does not materially diminish the standard or quality of services provided to the Client.

18. Complaints

18.1 Should the Client, at any point be aggrieved or have concern with the performance of any aspect of the agreement, they should initially attempt to resolve the matter through informal discussions.

18.2 Should an informal approach not be successful, or should the Client not wish to pursue this route, a formal complaint may be made by writing to a Director at Guardian Supports’ registered office.

18.3 Any complaint will be properly investigated, and the Client provided with a full written response.

18.4 Where possible, complaints will be resolved within 28 days, unless this is not achievable for operational reasons.

18.5 A copy of the full written complaints’ procedure is available on request from the Client Care Department.

19. Termination

19.1 This agreement can only be terminated by the Client in accordance with the terms of this agreement. If the contract period is for a fixed period, the Client cannot cancel this agreement during this period (unless they are entitled to do so by law).

19.2 Guardian Support may terminate the agreement at any point and for any reason. In the event that Guardian Support terminate this agreement, payment for all work undertaken up until the termination date will be payable by the Client at a cost of £140 + VAT per hour and all costs incurred for any travel (including tolls, parking etc), hotel and subsistence allowances, but Guardian Support will not charge for any work not completed. The Client should be aware that the value of the work completed by any termination date may have exceeded the monthly payments already made by the Client. Therefore, Guardian Support reserves the right, at its absolute discretion, to seek recompense between the sums paid by the Client and the actual value of the work undertaken as at the termination date.

19.3 Should the Client enter into any proceedings under the Insolvency Act (as amended), Guardian Support reserves the right to discontinue the provision of its services immediately. The Client becomes liable for all sums payable under the contract.

19.4 Should the client agreement be subject to auto renewal, the cancellation terms will be details in the specific service agreement. Should notice not be served by the Client in accordance with the provisions quoted, Guardian support reserve the right to charge for the full contractual sums due.

20. Entire agreement

20.1 These terms and conditions constitute the entire agreement between Guardian Support and the Client. The Client expressly confirms that there are no other documents, supporting information or oral statements which form additional terms to this agreement.

20.2 No amendment to these terms and conditions are enforceable unless they are made (or authorised) by a Director at Guardian Support.

21. Law and Jurisdiction

21.1 These terms and conditions will be governed by and construed in accordance with English law, and any disputes relating to these terms and conditions will be subject to the jurisdiction of the courts of England and Wales.

22. Force Majeure

22.1 Nothing in this agreement shall render Guardian Support liable for any act or omission taken or not taken because of force majeure. Force majeure includes any act of god, adverse weather, strikes, pandemic or disease, industrial action, technological difficulties outside of either parties reasonable control, sickness etc.

23. Liability

23.1 All services forming the terms of this agreement will be carried out with the utmost precision and professionalism. However, the Client should be aware that Guardian Support will not be liable for anything which occurs outside of the scope of this agreement.

23.2 In particular, Guardian Support are not liable for any consequence arising from any breach of the Client’s obligations as dictated by clause 12 above.

23.3 Guardian Support are not liable for anything which occurs outside of the Contract Period. In addition, Guardian Support will cease to become liable for any act or omissions which occurs within the Contract Period, when this agreement is subsequently terminated during the Contract Period for whatsoever reason.

23.4 In the event of accident or injury, nothing in the agreement is intended to render Guardian Support liable. The Client therefore should ensure that they hold and maintain a suitable level of insurance cover against any such consequences.

23.5 Guardian Support liability is limited (in any case) to the lesser of the Client’s annual fee, or its total professional indemnity insurance limit (details of which are available upon request).

23.6 Nothing in this clause is intended to remove Guardian Support’s legal liability for death or personal injury.

23.7 In the unlikely event that Guardian Support receives an Employment Tribunal claim, where they are named as a Respondent by one of the Client’s Employees, the Client agrees to indemnify Guardian Support again their legal costs (and any award made against them) by an Employment Tribunal.

24. Other Miscellaneous Terms of Business

24.1 Guardian Support reserves the right, from time to time and at its absolute discretion, to alter, amend, add to or in any other way vary any of the provisions of this agreement.

24.2 Copyright in respect of all documents used, records kept, information and material supplied by Guardian Support to the Client shall remain the property of Guardian Support.

24.3 In the event that a conflict of interest arises between two or more Guardian Supports’ clients, a right is reserved to cease to act for one or all of the parties concerned,

24.4 without any offer of compensation.

24.5 In the event that the Client, either personally or by an agent, during or within 6 months of the Employee’s employment at Guardian Support, directly or indirectly solicits or entices away any employee of Guardian Support who has at any time been directly engaged in providing services to a Client as provided for in this Agreement the Client will pay Guardian Support a fee equivalent to 20% , of the employee’s gross annual salary as at the termination of their employment with Guardian Support or the cost the replacement, whichever is the greater. The fee shall be payable immediately upon the termination of the employee’s employment with Guardian Support. Where notice has been served under this Agreement, the Client shall be prevented from engaging the employee (whether as an employee or a consultant) until the expiry of the notice period.

25. Guardian Support Commitment to the Client

25.1 Guardian Support take the provision of their services very seriously and are committed to complete client satisfaction. Guardian Support strive for continual improvement through proactive and reactive feedback from Clients.

25.2 Guardian Support will therefore contact the Client at regular intervals throughout the contract period in order to measure the performance and satisfaction levels.

25.3 Should the Client have any cause to speak with Guardian Support at any point and about any matter, Guardian Support operate an open communication policy and would always urge the Client to get in contact. Attention is drawn to the Complaints provisions above, although it is recognised that informal contact can often resolve issues.