Everest – MSA Terms & Conditions

AGREED TERMS

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this Agreement:

Agreement.: These MSA Terms & Conditions and the Application Form.
Applicable Data Protection Laws.: (a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and (b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Everest is subject, which relates to the protection of personal data;
Application Form.: The Application Form agreed between the Parties;
Background IPR.: Any and all Intellectual Property Rights that are owned by or licensed to a party which are or have been developed independently of the Agreement (whether prior to the Effective Date or otherwise).
Covered Lives.: Collectively includes the Employee, the spouse/domestic partner and children (not to exceed age 26) of the Employee, and the parents of the Employee and of the Employee’s partner;
Charges.: The charges payable by the Customer for the supply of the Services by Everest, as set out in the Application Form;
Effective Date.: The date as specified in the Application Form.
Employee.: The individual who is a full-time employee of Customer who is eligible for Customer’s group health benefits generally;
Everest IPRs.: All Intellectual Property Rights subsisting in the Services;
Initial Term.: The initial term described in the Application Form;
Intellectual Property Rights.: Patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; and
Services.: The services to be provided by Everest pursuant to the Agreement, as described in the Application Form.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

1.3 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made from time to time under that legislation or a legislative.

1.4 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

1.5 References to clauses and schedules are to the clauses and schedules of this Agreement and references to paragraphs are to paragraphs of the Application Form.

1.6 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. A reference to writing or written excludes fax but includes email.

1.7 Unless the context otherwise requires: (a) words in the singular shall include the plural and in the plural shall include the singular.

2. COMMENCEMENT AND TERM

This Agreement shall commence on the Effective Date and continue for the Initial Term and, thereafter, automatically renew for successive periods of 12 months (each a Renewal Period), unless otherwise terminated in accordance with the provisions of this Agreement. The Initial Term together with any subsequent period prior to termination being the Term.

3. EVEREST SERVICES

3.1 Everest shall supply the Services to the Customer from the Effective Date in accordance with the Agreement.

3.2 Everest will assign a Customer-unique code that will allow its Employees to create a profile and access Everest Services on Everest’s website. Everest will communicate this code to the Customer, and Customer agrees to provide it only to Employees for use by them or their Covered Lives to access Everest Services. Everest may from time to time update such access code and will provide the same to the Customer. The Customer agrees, upon Everest’s request, to verify the status of an Employee when such Employee or Covered Life contacts Everest and such employee has not yet created a profile. Once Everest has verified that such Employee is an eligible Employee, Everest will continue to provide the Everest Services to the applicable Covered Life. In the event that such Employee’s employment with the Customer terminates, such departed Employee and the Covered Lives associated with that Employee will no longer be entitled to receive the Everest Services; provided, however, that Everest, in its sole discretion, may elect to provide the Everest Services to such Employee and the other Covered Lives, at their individual election, pursuant to a fee-based arrangement.

3.3 Each Party shall keep the other Party reasonably informed as to communications with Covered Lives with respect to Everest Services and the subject matter of this Agreement, including but not limited to any complaints by or on behalf of Covered Lives or their representatives related to Everest Services or otherwise to the subject matter of this Agreement. Each Party may send notices to and otherwise communicate with Covered Lives and their representatives concerning their relationships with them, but both Parties shall refrain from making any disparaging remarks regarding the other in any such communications.

3.4 In supplying the Services, Everest shall:

3.4.1 perform the Services with reasonable care and skill;
3.4.2 use reasonable endeavours to perform the Services;
3.4.3 comply with all applicable laws, statutes, regulations from time to time in force, provided that Everest shall not be liable under the Agreement if, as a result of such compliance, it is in breach of any of its obligations under the Agreement.

3.5 Everest may, at its absolute discretion, update the Everest Services from time to time, provided that Everest shall provide at least 30 days prior written notice of any change.

3.6 Everest Services are not intended to be and shall not be construed to be accounting, legal, tax or investment advice. Neither Everest nor its affiliates will make specific investment recommendations, manage money or take custody of assets. Information provided is for educational purposes only. Individuals shall be encouraged to consult with local professionals in order to receive specific advice related to their situation. The decisions as to whether or not to utilise a resource identified by Everest or its affiliates shall rest solely with the individual who has the sole and independent obligation to decide whether or not to retain such resource.

4. Customer’s obligations

4.1 The Customer shall:

4.1.1 co-operate with Everest in all matters relating to the Services;
4.1.2 provide, or procure its Employees to provide, in a timely manner, any information Everest may require, and ensure that it is accurate and complete in all material respects;
4.1.3 comply with all applicable laws, statutes, regulations from time to time in force;
4.1.4 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner; and
4.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for it to perform its obligations under this Agreement.

4.2 If Everest’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Everest shall:

4.2.1 1ot be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
4.2.2 be entitled to payment of the Charges despite any such prevention or delay; and
4.2.3 be entitled to an extension of time to perform its obligations equal to the delay caused by the Customer and recover any additional costs, charges or losses Everest sustains or incurs that arise directly or indirectly from such prevention or delay.

4.3 Customer confirms to Everest that it has all necessary rights, licences, consents and permissions to provide the Customer’s, Employee and associated Covered Lives’ data and information to Everest under or in connection with this Agreement.

4.4 Customer shall report to Everest its latest headcount of Employees no fewer than 30 days prior to the end of the Initial Term or the start of each subsequent Renewal Period. Any increase in the number of Employees shall be deemed to have been amended in the Application Form and Everest shall be entitled to update the Charges accordingly by giving reasonable notice to the Customer. The updated Charges shall be payable by the Customer for each subsequent Renewal Period.

5. Data protection

5.1 For the purposes of this Agreement, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the applicable data protection laws.

5.2 Each party shall comply with all applicable requirements of Applicable Data Protection Laws. This clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.

5.3 The parties have determined that, for the purposes of Applicable Data Protection Laws, Everest shall process the personal data set out in Appendix 1 as a processor on behalf of the Customer in respect of the processing activities set out in Appendix 1. If this determination changes, the parties shall work together in good faith to make any changes necessary to this clause 5 or Appendix 1.

5.4 To the extent Everest processes any personal data on Customer’s behalf, the parties acknowledge and agree that the subject-matter, duration, nature and purpose of the processing together with the type of personal data and categories of individuals shall be as set out in Appendix 1, and Everest shall:

5.4.1 process such personal data only on documented instructions from Customer, unless required to do otherwise by applicable law, in which case Everest shall, unless legally prohibited from doing so, inform Customer of such legal requirement;
5.4.2 ensure that persons authorized by it to process such personal data are subject to appropriate obligations of confidentiality;
5.4.3 taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing as well as the risk of varying likelihood and severity for the rights and freedoms of individuals, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk and take steps to ensure that any individuals acting under its authority who have access to such personal data do not process them except on instructions from Customer, unless they are required to do so by applicable law;
5.4.4 notify Customer without undue delay on becoming aware of a personal data breach;
5.4.5 assist Customer, at Customer’s expense, with the fulfilment of Customer’s obligation to respond to requests for exercising individuals rights under applicable privacy and data protection law, together with Customer’s obligations regarding data security, notification by Customer of personal data breaches to the supervisory authority, communication by Customer of personal data breaches to the affected individuals, data protection impact assessments, and prior consultation with the supervisory authority;
5.4.6 at the choice of Customer, delete or return all such personal data after the end of the provision of services involving the processing of such data, and delete existing copies unless applicable law requires storage of such personal data;
5.4.7 make available to Customer all information necessary to demonstrate compliance with this clause;
5.4.8 allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer provided that (i) Everest shall be compensated for its costs and expenses in relation to such audit, (ii) reasonable advance notice shall be given in respect of any such audit, (iii) any such audit shall only be conducted during Everest’s normal business hours, (iv) any such audit shall be conducted to cause minimal disruption to Everest’s business operations, (v) no access shall be given to Everest’s confidential information or any information relating to Everest’s other Customers and/or financial data, and (vi) any third party auditor shall enter into confidentiality obligations directly with Everest which are reasonably acceptable to Everest; and
5.4.9 not transfer any such personal data outside of the European Economic Area and/or UK without ensuring appropriate safeguards in respect of such transfer in accordance with applicable privacy and data protection law.

5.5 The Customer will ensure that it has all necessary and appropriate consents and notices in place to enable the lawful transfer of any personal data to Everest for the duration and purposes of the Agreement.

5.6 The Customer hereby provides its general authorisation for Everest to engage other processors to carry out processing activities on behalf of Customer. Everest shall notify the Customer of any intended changes concerning the addition or replacement of such other processors. If, within five (5) business days of receipt of such notice, Customer notifies Everest in writing of any objections on reasonable grounds to the proposed addition or replacement: (a) Everest shall take reasonable steps to address the objections raised by Customer, and shall provide Customer with a reasonable written explanation of the steps taken; and (b) if having received from Everest a reasonable explanation to address Customer’s objections, Customer nevertheless objects to the addition or replacement, Everest shall not proceed with the addition or replacement with respect to the processing of any personal data on Customer’s behalf, and may, at Customer’s cost, propose the engagement of a different processor in accordance with this clause. Customer acknowledges and agrees that where Customer objects to the appointment of a processor pursuant to this clause, Everest may be prevented from providing the associated services to Customer, and Everest shall have no liability to Customer in respect of its inability to provide all, or part of, such services.

5.7 Where Everest engages another processor for carrying out specific processing activities on behalf of Customer, materially equivalent data protection obligations as set out herein shall be imposed on that other processor. Where that other processor fails to fulfil its data protection obligations, Everest shall remain fully liable to Customer, subject to the limitations and exclusions of liability set out herein, for the performance of that other processor’s obligations

6. INTELLECTUAL PROPERTY

6.1 Each party (or its licensors as applicable) shall retain the right, title and interest in and to its Background IPR. Neither Party shall as a consequence of this Agreement acquire, transfer any right or interest whatsoever in the Intellectual Property Rights of the other.

6.2 Everest grants the Customer a fully paid-up, worldwide, non-exclusive, royalty-free, licence to Everest IPRs for the purpose of receiving and using the Services in the Customer’s business during the term of the Agreement.

6.3 The Customer grants Everest a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify: (a) the Customer’s name, trademarks, service marks, copyrights and logo; and (b) the Covered Lives’ materials, data or information for the term of the Agreement for the purpose of providing the Services to the Covered Lives in accordance with the Agreement. Customer may object to any such use of the licence, to which Everest shall cease such use if the parties agree that it goes unreasonably beyond the purpose of this clause 5.11.

6.4 Each party agrees to indemnify the other party in full against any sums awarded by a court against the other party arising of or in connection with any claim brought against Everest for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the other’s name, trademarks, service marks, copyrights and logo by the other party.

7. Charges and payment

7.1 In consideration for the provision of the Services, the Customer shall pay Everest the Charges in accordance with this Clause 6 and Application Form.

7.2 All amounts payable by the Customer exclude amounts in respect of any tax, levy or similar governmental charges (including value added or sales tax) which the Customer shall additionally be liable to pay to Everest.

7.3 Everest shall be entitled to raise invoices for the Charges plus VAT in accordance with this Agreement and the payment term frequency in the Application Form. The Customer shall pay each invoice due and submitted to it by Everest, within thirty (30) days of receipt, to a bank account nominated in writing by Everest.

7.4 If the Customer fails to make any payment due to Everest under the Agreement by the due date for payment, then, without limiting Everest’s remedies under Clause 9 (Termination):

7.4.1 the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
7.4.2 Everest may suspend all Services until payment has been made in full.

7.5 All amounts due under the Agreement from the Customer to Everest shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. Audit

8.1 Everest may upon not less than thirty (30) days prior written notice , shall be entitled, from time to time, and no more than once a calendar year, to conduct an audit of the Customer’s activities, use of Services, its reporting strictly to the extent necessary be limited in scope to books and records directly related to the services performed under this Agreement to validate that the Customer remains compliant in full with the terms of this Agreement (Use Audit). If and to the extent that Everest requires access to data and/or information that is not available to it (and accessible by the Customer) in order to undertake such Use Audit, the Customer shall promptly provide Everest with such data and/or information upon request by Everest.

8.2 Subject to Clause 8.1, Everest may, at its absolute discretion, adjust its Charges upwards following such Use Audit if the actual number of Employees receiving Services over the relevant Term exceeds the number of Employees in the Application Form.

Limitation of liability

References to liability in this Clause 8 include every kind of liability arising under or in connection with the Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

Nothing in this Clause 8 shall limit either Party’s obligations under this Agreement.

Nothing in this Agreement excludes the liability of either Party for any breach, infringement or misappropriation of the other Party’s Intellectual Property Rights and confidentiality obligations.

Nothing in the Agreement shall limit the liability of either Party which cannot legally be limited, including liability for:

death or personal injury caused by negligence;
fraud or fraudulent misrepresentation;
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
any other liability which cannot legally be limited or excluded.

Subject to Clauses 8.1 to 8.4, each Party’s total aggregate liability whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall, in each 12 month period (commencing on the Effective Date), be limited to the Charges payable by Customer to Everest in such 12 month period.

Subject to Clause 8.1 to 8.4, Neither Party be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:

loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of use or corruption of software, data or information;
loss of or damage to goodwill; and
indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.

Each Party shall notify the other if it intends to make a claim in respect of an event within the notice period. The notice period for an event shall start on the day on which the other Party became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

Termination

Either party may notify the other of termination, in writing, no fewer than 14 days before the end of the Initial Term or then-current Renewal Period (if applicable), in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or then-current Renewal Period.

Without affecting any other right or remedy available to it, either party to the Agreement may terminate it with immediate effect by giving written notice to the other party if:

the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.

Without affecting any other right or remedy available to it, Everest may terminate the Agreement with immediate effect by giving written notice to the Customer if:

the Customer fails to pay any amount due under the Agreement on the due date for payment; or
there is a change of control of the Customer.

On termination of the Agreement for whatever reason:

the Customer shall immediately pay to Everest all of Everest’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Everest may submit an invoice, which shall be payable immediately on receipt;
any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect; and
termination of the Agreement shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

General

Survival. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.

Assignment and other dealings. The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement without Everest’s prior written consent. Everest may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Agreement.

Confidentiality

Each party undertakes that it shall not at any time during the Agreement, and for a period of three years after termination of the Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by Clause 10.4. For the purposes of this Clause 10.4, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

Each party may disclose the other party’s confidential information:

to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 10.4; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Agreement.

Entire agreement. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.

Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.

Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted and remainder of this Agreement shall remain in effect.

Notices

Any notice given to a party under or in connection with the Agreement shall be in writing and shall be:

to Everest: at its address stated at the top of this Agreement or by email to uk@everestfuneral.com and
to Customer: at its address stated at in the Application Form.

Any notice shall be deemed to have been received:

if delivered by hand, at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting; or
if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 10.9.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

This Clause 10.9 does not apply to the service of any proceedings or other documents in any legal action, arbitration or other method of dispute resolution.

Third party rights. The parties hereby exclude to the fullest extent permitted by law any rights of third parties to enforce or rely upon any of the provisions of this Agreement.

Governing law and jurisdiction. The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.

Appendix 1 – Data Processing Particulars

SCOPE
The personal data is processed to enable Everest to provide Everest Services to the Customer, Employees or Covered Lives pursuant to this Agreement.

NATURE
Processing includes collecting, storing, retrieving and making available the personal data.

PURPOSE OF PROCESSING
To enable Everest to provide Everest Services to the Customer, Employees or Covered Lives in accordance with the Agreement.

DURATION OF THE PROCESSING
For the duration of the Customer, Employees or Covered Lives’ use of Everest Services.

TYPES OF PERSONAL DATA
Names, surnames, email addresses, date of birth, phone numbers, credit card information, national identification document and numbers, and any further information provided to Everest.

CATEGORIES OF DATA SUBJECT
The Customer’s Employees or Covered Lives using Everest Services and any authorised users.