Exhibit 10.7
THIS AGREEMENT IS MADE THE 13/TH/ DAY OF AUGUST 1999
Between
(1) The Prudential Assurance Company Limited ("Prudential") and
(2) Sports Fitness and Leisure Limited ("SFL")
DEFINED TERMS
The Association The Association to be set up by SFL, membership of
which shall be required by employees and employers
involved in the sports fitness and leisure
industries as a prerequisite to becoming a member
of the Pension Scheme and to the receipt of other
membership services and benefits. Members of the
Association shall neither have nor be entitled to
any beneficial interest in SFL nor right to vote
or to otherwise participate in the ownership,
management or operation of SFL.
Confidential Information All information relating to either party and to
all concepts, ideas and information relating to
this Agreement but excluding information
. Publicly available or which becomes publicly
available otherwise than due to a breach of
this Agreement; or
. Which, when disclosed by one party to the
other, was already known to the party to whom
it was then disclosed.
The Database The computer software mentioned in clause 2.2
designed, owned and operated by SFL for the
storing of Association membership information.
Service Fee The service fee shall be (Pounds)1,158,736 plus
VAT. (Pounds)273,604,77 has been paid and the
remainder will be payable as follows:
(i) (Pounds) 85,131 on signing of this Agreement
(ii) (Pounds)200,000 on 0/xx/ Xxxxxx 0000
(xxx) (Pounds)200,000 on 1/st/ February 2000
(iv) (Pounds)200,000 on 1/st/ August 2000
(v) (Pounds)200,000 on 1/st/ February 2001
In each case, VAT at the then appropriate rate
will be added.
The Financial Budgets The financial forecasts mentioned in clause 2.18.
The Insurance Policy The insurance policy to be issued to the Scheme
Trustees which sets out the terms under which
Prudential will administer the Pension Scheme and
insure its benefits
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The Marketing Plans The plans to be delivered in line with clause
2.10.
The Member Services The services which the Association provides to its
members.
The Pensions Lounge A section of the Web-Site devoted solely to the
provision of information about pension provision
and the Pension Scheme.
The Pension Scheme The SFL Pension Scheme referred to in recitals 5
and 6.
The Promotional Materials Advertising, marketing or promotional materials in
any form prepared by or on behalf of SFL for use
in connection with the provision of Marketing
Services and the Pension Scheme.
The Scheme Trustees The trustee or trustees for the time being of the
Pension Scheme.
Prudential Marks All trade marks, copyright, registered or
unregistered design, trademark or other industrial
or intellectual property rights, working methods
or rights of a similar nature subsisting and any
applications for the foregoing and any goodwill
relating thereto belonging to Prudential or any of
its group companies.
SFL Marks All trademarks, copyright, registered or
unregistered design, trademark or other industrial
or intellectual property rights, working methods
or rights of a similar nature subsisting and any
applications for the foregoing and any goodwill
relating thereto belonging to SFL or any of its
associated companies.
The Web-Site The internet Web-Site mentioned in clause 2.2
designed by SFL which shall provide information
about inter alia the Association, the Pension
Scheme and Membership Services.
Prudential Support Services As detailed in Parts 1-3 of Section B of
Schedule 1.
BACKGROUND
1. SFL is a company providing services and products to employees and
employers working within sports, fitness and leisure industries.
2. In 1995, SFL commenced discussions with Government Ministers with
regard to welfare and pens on reform. In October 1997, SFL presented
to Prudential a plan for a Pension Scheme to be made available to
employees of members of an association of employers of people working
in the sports fitness and leisure industries. SFL has an extensive
client base and contacts with the sports, fitness and leisure
industries. Prudential recognises the commercial potential for sales
of pensions to association members and wishes to work with SFL to
develop the full
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potential for sales of pensions (and possibly other products) within
the sports, fitness and leisure market.
3. Prudential sees SFL as an important constituent part of its "Project
Leapfrog" strategy in view of its ability to:
(i) Offer expertise and industry contacts to develop and market an
industry wide Pension `Scheme' (and possibly other financial
products) to the sports, fitness and leisure industries.
(ii) Create, develop and produce ideas in connection with the sale of
industry wide "membercentric" based pensions and other financial
services.
4. In addition to providing development and promotional expertise SFL
will administer the Association. It will enter into agreements with a
number of companies whereby they, in conjunction with SFL, will market
and provide services and products to members of the Association.
5. As part of the project, Prudential and SFL wish to jointly set up,
market and administer, a money purchase occupational Pension Scheme,
to be approved by the Inland Revenue under chapter I of an XIV of the
Income and Corporation Taxes Xxx 0000.
6. It is intended that the Pension Scheme should be a centralised scheme
for non-associated employers within the sports, fitness and leisure
industries and will be the major product in the range offered by the
Association. Presently, and for the purposes of this Agreement, only
the employees of employers who have valid corporate membership of the
Association will be offered membership of the Pension Scheme, the
intention being that such employees first become members of the
Association.
7. Prudential shall administer the Pension Scheme in accordance with the
terms of the Insurance Policy and shall promote and market it with
SFL. SFL shall arrange for the appointment of Scheme Trustees for the
Pension Scheme.
OPERATIVE TERMS
1. OBLIGATIONS OF PRUDENTIAL
1.1. Subject to the terms of this Agreement, to pay SFL the service Fee as
agreed herein.
1.2. To prepare the legal documentation and use its best endeavours to
obtain all necessary approvals required in connection with the Pension
Scheme.
1.3. To invest contributions received and administer the Pension Scheme in
accordance with the terms of the Insurance Policy and service level
agreement to be agreed with the Scheme Trustees and SFL. For the
avoidance of doubt,
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Prudential" liability in respect of administration and other matters
under the Insurance Policy is to the Scheme Trustees alone.
1.4. Prudential's charges (and the right to amend them), its requirements
in respect of minimum investment and other terms relevant to the
administration and insurance of the Pension Scheme will be described
in the Insurance Policy.
1.5. To use its best endeavours to maintain the accuracy of information
relating to the Pension Scheme contained in any written material(s)
issued to members of the Association or Pension Scheme, or otherwise
featured in the Pensions Lounge SFL has the right to approve (such
approval not to be unreasonably withheld) any feature, article or
information presented by Prudential for inclusion in the Pensions
Lounge or elsewhere on the Web-Site.
1.6. To comply with regulations and requirements which apply to it in the
execution of this Agreement.
1.7. No sum payable to SFL will be paid to SFL by Prudential unless the
work carried out by SFL is in all respects in compliance with the
terms of this Agreement.
1.8. Prudential will be contractually bound to the Scheme Trustees to
administer the Pension Scheme in line with the Insurance Policy. Its
duties shall include the following responsibilities:
. Prudential will register the Scheme with the Pension Scheme
Registry and pay the relevant membership fees and levies (general
and compensation scheme).
. In addition it will prepare a draft Scheme Trustees annual report
for consideration and use by the Pension Scheme auditors, which
will include confirmation as to whether or not contributions have
been paid in accordance with the statutory payment schedules.
. Prudential will monitor all contributions in line with the
payment schedules and will inform the Scheme Trustees where
missed or late payments have occurred or, if agreed, with the
Scheme Trustees, Prudential will send such details directly to
the Occupational Pensions Regulatory Authority on behalf of the
Scheme Trustees.
. For such period as all members contributions are invested in the
Insurance Policy the Pension Scheme will (subject to any changes
in the legislation) be treated as an "earmarked scheme" within
the meaning of the Occupational Pension Schemes (requirement to
certain audited accounts and a statement from the auditor)
Regulations 1996 (SI 1996/1975) and as such there will be no
legal requirement for the Scheme Trustees to produce annual
audited accounts. Prudential will in any event produce an annual
employer summary setting out contributions paid and details of
the fund value in respect of each member of the Pension Scheme.
If Prudential fails to meet any part of its obligations under
this clause it will be responsible for the reasonable fees of
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the Pension Scheme auditors incurred by the Scheme Trustees in
carrying out the required work.
1.9. Where Prudential request and authorise SFL to provide Marketing
Services or Promotional Materials in addition to those set out in the
Marketing Plans to pay SFL the fees, payments, costs, disbursements
and/or expenses and expended by, or in respect of which liability has
been incurred by SFL in connection therewith. These charges will be
discussed and agreed in advance.
1.10. To use in best endeavours to develop and supply to SFL by April 2001,
if not sooner and at no cost to SFL (save for costs involved in any
necessary changes to SFL's computer systems, which work SFL undertake
to carry out at its own cost) the computer technology and software
necessary to provide a fully working "live" electronic link or
"interface" between the Prudential Administrative Database and
Pension Scheme members through the SFL Web-Site, including ensuring
that Prudential's and SFL's computer systems/software can communicate
or "talk together" for these purposes. For the avoidance of doubt,
Prudential will not be liable to pay any sums to SFL or their agents
in respect of such matters.
The interface will enable SFL members using a computer modem to
access directly on line and in an encrypted and secure manner, inter
alia records of their benefits under the Pension Scheme and other
information as agreed between Prudential and the Scheme Trustees. The
Prudential will consult and liase with SFL in the development of the
interface and will keep SFL fully and regularly appraised of progress
and of any changes in the projected date for installation of the
interface.
If prior to April 2001, Prudential supply an interface to and/or for
the use of another centralised scheme, in a form which can be used by
members of the Association and SFL without significant alteration
Prudential undertakes to supply such interface to SFL as soon as
reasonably practicable.
In the absence of the above interface being available by July 2001,
SFL's only remedy will be to reduce required milestone figures for
Pension Scheme membership in schedule 2 to such reasonable levels as
Prudential can administer without such interface (which, for the
avoidance of doubt, will be at least 1500 new members per month
subject to and depending upon Prudential continuing to allocate the
required presentation and sales staff to deal with such volume of
prospective members). When the interface is subsequently available
the original Pension Scheme membership milestone figures will again
apply, but with an appropriate period of deferment to correspond with
the delay in delivery of the interface.
1.11. Prudential agrees that SFL can pay for its legal costs in the
development of this agreement and the confidentiality agreement out
of the service fee, to a maximum of (Pounds)14,500 plus VAT.
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1.12. To provide the support services and personnel set out in Parts 1-3
of Section B "Marketing Services" of Schedule 1, at no cost to SFL.
For the avoidance of doubt, Prudential will not be liable to pay any
sums to SFL or their agents in respect of such matters.
1.13. To use its best endeavours to ensure that SFL Membership Application
forms and Pension Scheme application forms are completed by
employers and/or employees and are returned forthwith to SFL for
administrative processing.
2. OBLIGATIONS OF SFL
2.1. To develop the Association and, as its major product, the Pension
Scheme with Prudential as an industry wide occupational pension plan
for sale to and promotions in the sports, fitness and leisure
industries, and in particular to carry out the specific actions set
out in clause 2.2.
2.2. (i) To create, develop and maintain the Web-Site and Database in
accordance with the specifications contained in parts 2 and 3
of Schedule 1.
(ii) To design software which will enable members to access
information in connection with Member Services and, when the
necessary secure interface is supplied as per clause 1.10 will
permit members direct on line access to records of their
benefits under the Pension Schedule.
2.3. To use its best endeavours to ensure the information stored in the
Database and provided in the Web-site is accurate and reliable.
2.4. To make the Web-site available for inspection by the members of the
Association through the Internet.
2.5. To commence the promotion and marketing of the Pension Scheme and
membership of the Association in and to the sports, fitness and
leisure industries upon signing the Agreement.
2.6. Subject to the provisions of clause 1.10, to use its best endeavours
to achieve the targets set for membership growth in the "SFL
Milestones Programme" in Schedule 2 to this Agreement. SFL will
provide Prudential with details (and such reasonable proof as
Prudential shall require) of Association membership numbers and
levels in connection with this and Prudential's other reasonable
auditing requirements.
2.7. To administer the Association and carry out the Marketing Services
specified in Part I Schedule I and to carry out the tasks described
in each Marketing Plan within any time scales agreed. SFL may
instruct a third party or third parties to carry out particular
tasks. However SFL shall be responsible for keeping to time scales
and for the quality of such work. SFL will keep expenses and
payments due in respect of marketing activities broadly in line with
any agreed Marketing Plan.
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2.8. To provide information and assistance to Association members about
Association and Pension Scheme membership and about Member Services
and products.
2.9. To take all reasonable steps to ensure that copyright and any other
intellectual property rights over the Web-site are owned by SFL or
where appropriate to seek any necessary licenses or assignments and
that ownership of the source code of the SFL computer program used to
set up the Web-Site will pass to SFL should the person or persons who
develop and own the source code suffer any act to be done whereby
that ownership would otherwise pass to a third party.
2.10. To provide Prudential, on a quarterly basis, with a Marketing Plan
which will include detailed information on such matters as Prudential
shall reasonably require in respect of activities planned for the 12
month period following issue of the particular Marketing Plan. Each
will include the following:
(i) Details of all planned marketing activities.
(ii) Details of all planned advertising campaigns.
Prudential accepts that circumstances can occur which may necessitate
adjustments or changes having to be recommended and/or made by SFL in
the projected Marketing Plans and activities. Any such adjustments
shall be subject to Prudential approval and consent, which shall not
be unreasonably withheld.
2.11. To consult Prudential in the development of the Promotional Material
for use in connection with the provision of the Marketing Services
relating to the Pension Scheme, and all material (including anything
featured in the Web-site) of any nature for use in connection with
the Pension Scheme (unless the materials is purely for internal use
by SFL). No such material may be used without prior approval by
Prudential. Such approval (which is not to be unreasonably withheld)
shall be confirmed (or reasonable objections notified) within 3
working days of the receipt by Prudential of the Promotional
Material. Such approval will be subject to SFL providing such
supporting evidence as Prudential may reasonably require as to the
accuracy and source of any particular information in the Promotional
Material presented for approval.
2.12. SFL will consult Prudential in the design and development of the
Pension Lounge and all material featured in it. Which shall not be
made available on the Internet until Prudential has approved its
design and content, such approval not to be unreasonably withheld.
2.13. To share with Prudential income paid from, and dependent upon ,
membership fees paid by active members of the Pension Scheme, to
maximum of (Pounds)1,626,875 including VAT. This will be paid by
installments on July 31/st/ of each year from 2000, as described in
more detail in the Milestones Programme set out in Schedule 2.
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2.14. SFL will provide Prudential with copies of the minutes of SFL Board
Meetings or parts thereof relating to the Pension Scheme.
2.15. SFL will allow Prudential access to all SFL and Association
accounting books and records of prime entry, management accounts and
other accounting records which Prudential may reasonably required to
see in connection with the Pension Scheme.
2.16. Within one month of commencement of this Agreement, SFL will appoint
its solicitor, Xxxxxxx Xxxx, and its accountant, Xxxxxxxx Xxxxx as
directors; and they will remain directors unless replaced by another
solicitor in the case of Xxxxxxx Xxxx or a chartered accountant in
the case of Xxxxxxxx Xxxxx (in either case the replacement to be
approved by Prudential, such approval not being unreasonably
withheld). This provision shall not restrict or prevent or otherwise
affect any statutory rights or duties the aforementioned may have or
exercise in their capacity as directors of SFL.
2.17. SFL will produce Financial Budgets every quarter, commencing October
1999. These will be disclosed to Prudential, and SFL will keep its
expenditure broadly in line with the forecast set out in these
budgets.
3. TRADE MARKS
3.1. SFL MARKS
3.1.1. SFL Marks are and will remain the property of SFL or its associated
companies and may not be used by Prudential save in accordance with
3.1.
3.1.2. The use of or reference to SFL Marks by Prudential shall be subject
to the prior written permission of SFL. SFL Marks shall not be
changed or altered in any regard save with SFL's prior written
permission.
3.1.3. SFL has the right to change or alter any SFL Marks. In the event
that any such changes or alterations necessitate adjustments or
corrections to the details on the Web-Site or Database or in
Promotional Material relating to the Pension Scheme, SFL shall bear
the costs thereof.
3.1.4. At SFL's expense Prudential shall take all steps which SFL may
require from time to time to be necessary to protect SFL Marks.
3.2. PRUDENTIAL MARKS
3.2.1. Prudential Marks are and will remain the property of Prudential or
its group companies and may not be used by SFL save in accordance
with 3.2
3.2.2. The use of or reference to Prudential Marks by SFL shall be subject
to the prior and written permission of Prudential. Prudential Marks
shall not be changed or altered in any regard save with Prudential's
prior written permission.
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3.2.3. Prudential and its group of companies have the right to change or
alter any Prudential Marks. In the event that Prudential notifies
SFL of any change in the form of manner of use of any Prudential
Marks, SFL shall at Prudential's expense, effect the required
changes and shall destroy all documentation bearing the old
Prudential Marks.
3.2.4. At Prudential's expense, SFL shall take all steps which Prudential
may require from time to time to consider to be necessary to
protect Prudential Marks.
4. INTELLECTUAL PROPERTY
4.1. Ownership of any pre-existing intellectual property rights shall
remain unaffected by this Agreement.
4.2. Intellectual and copyright in the Association, Database, Web-site
and source code shall belong to SFL. Intellectual Property and
copyright in all material produced in connection with the Pension
Scheme will belong to the Scheme Trustees, save where previously
owned by SFL or Prudential, produced by SFL or Prudential, or where
based on a Prudential standard form, in which case it will belong
to SFL or Prudential as appropriate but the Scheme Trustees will
have licence in perpetuity to use the same for the purpose of the
Pension Scheme.
4.3. Each party will take all reasonable steps to protect the
intellectual property rights of the other and will execute such
assignments or other documents as the other party may reasonably
require to ensure that party's rights are fully registered and/or
protected. Prudential shall bear any expenses and costs incurred by
SFL in taking action as requested by Prudential under this Clause.
SFL shall bear any expenses and costs incurred by Prudential in
taking action as requested by SFL under this Clause.
5. CONFIDENTIAL INFORMATION
5.1. All Confidential Information shall remain the property of the party
to whom it initially belongs. Each party shall maintain the secrecy
of the Confidential Information and shall not use or disclose it or
permit its use or disclosure to any of its employees or third party
except in accordance with the Confidentiality Agreements signed by
the parties herein.
6. COMPLIANCE OBLIGATIONS
6.1. Each party is responsible for ensuring the accuracy of all facts
supplied by it to the other party concerning matters relating to
this Agreement.
6.2. SFL is not responsible for but will use its best endeavours to
ensure the accuracy of any material or information supplied by
third parties appearing in the Web-Site or any Promotional
Materials. It will provide Prudential with such supporting evidence
as it may reasonably require as to the accuracy of any such
materials or information.
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6.3. Each party is responsible for ensuring that all work it carries out
in accordance with this Agreement is performed in accordance with and
complies with all relevant statutes, regulations, statutory
instruments or other applicable laws, and with any relevant rules of
professional practice or regulatory authority.
6.4. SFL shall take all reasonable steps to ensure that the content of the
Promotional Materials shall not infringe any codes of practice,
copyright or other rights of any third party nor will be defamatory.
6.5. Prudential shall be responsible for ensuring Promotional Materials
relating to the Pension Scheme given to it for approval comply with
all relevant compliance regulations and rules.
6.6. SFL will keep Prudential indemnified against any claim arising from
any activity undertaken by SFL under the terms of this Agreement
which concerns, in relation to any third party, a defamation,
infringement of copyright or other intellectual property rights
passing off or similar matter, or the wrongful use or disclosure of
Confidential Information.
6.7. Prudential will likewise keep SFL indemnified against similar claims
against SFL arising out of any such activity undertaken by
Prudential.
7. COMPETITION
7.1. During the currency of this Agreement Prudential will not promote any
other centralised Pension Scheme of the type described in recital 6
targeted generally at employers and employees within the sports,
fitness and leisure industries. However, it may provide pension
arrangements for individual employers and employees within those
industries. It may also promote and provide other centralised schemes
to Association or groups who are not predominantly involved or active
within the sports, fitness and leisure industries but who may have
individual members who are provided such schemes are not targeted
solely or mainly, at employers and employees in the sports, fitness
and leisure industries.
7.2. During the currency of this Agreement SFL and the Association will
not promote or provide in the sports, fitness and leisure industries
any pension which competes with the Pension Scheme.
8. DATA PROTECTION
8.1. If any of the activities undertaken by either party ("the user")
involves the gathering, holding or use by it of any "personal data"
which is subject to data protection legislation, it will
. Advise the other party of any requirements under the legislation
affecting the other party and of any restriction affecting the
other party and of any restrictions affecting the use or
disclosure of the data
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. Comply at all times with the legislation and any relevant
principles, guidelines and guidance issued as part of the
legislation or from time to time by the Data Protection Registrar
(or the holder of any office which replaces that of the Data
Protection Registrar) and maintain any necessary registrations
under the legislation.
SFL and Prudential agree to amend this contract to cover such
additional data protection requirements as SFL and/or Prudential may
reasonably require.
9. RELATIONSHIP OF THE PARTIES
9.1. Subject to clause 1.3 Prudential will administer the Pension Scheme
in accordance with the terms of the Insurance Policy. SFL is
primarily responsible for marketing and promotional matters and for
administration of the Association. The parties are not partners for
the purposes of this Agreement and neither shall they be treated as
the agent of the other.
10. TERMINATION
10.1. The parties may terminate this Agreement by mutual consent.
10.2. Without affecting any other rights or remedies they may have, either
party may terminate this Agreement on giving 28 days notice in the
event that either party commits any material breach of any of its
obligations hereunder and (if the same is capable of remedy) shall
not remedy such breach within 30 days of being required by written
notice to do so. Such periods may be varied by agreement between the
parties.
10.3. In addition this Agreement may be terminated:
(i) By Prudential or SFL if Prudential is replaced as the insurer or
administrator of the Pension Scheme. In the event of a
termination, the party terminating shall give 28 days notice of
its intention to terminate, and Prudential shall pay to SFL any
sums due or incurred by SFL or to which they are committed which
(in each case) have been agreed by Prudential and a portion of
the next installment of the service fee due after the said
notice, pro rated over 4 months from the date of the said notice;
or
(ii) By Prudential if SFL fails to substantially meet the "Milestones"
target figures for new Pension Scheme members set out in Schedule
2 or, in the absence of agreement with Prudential to keep
expenditure substantially in line with the forecast in any
relevant Financial Budget or Marketing Plan. In this event
Prudential shall give 28 days notice of its intention to
terminate and shall pay to SFL any sums due or incurred by SFL or
to which they are committed which (in each case) have been agreed
by Prudential.
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10.4. In the event that Prudential or SFL terminate the Agreement but
Prudential remains the insurer and administrator of the Pension
Scheme under the Insurance Policy:
(i) existing pension Scheme members shall have the right and option
to have Prudential continue to manage and administer their
pensions without surcharge, penalty or other disadvantageous
terms being imposed.
(ii) Prudential shall remain responsible for the levies and fees as
per clause 1.8.
10.5. If either party is in breach of this Agreement then the other party
(whether or not it terminates the Agreement) will be entitled to:
. Damages (and to such other remedy as may appropriate) from the
party in breach in respect to any loss or injury sustained as a
result of the breach; and
. To set off any such losses it has sustained against any sum it is
liable to pay to the party in breach.
However, the parties agree that their liability to each other under
this Agreement (in addition to any sums specifically stated to be
due elsewhere in this Agreement) be limited to (Pounds)50,000.
11. VARIATIONS
11.1. No variation of this Agreement shall be enforceable by either party
unless it is in writing signed on behalf of both parties.
12. NO ASSIGNMENTS
12.1. Neither party may assign or otherwise transfer its rights or
obligations under this Agreement without obtaining the written
consent of the other party.
13. SEVERABILITY AND CUMULATION OF REMEDIES
13.1. If the whole or any part of this Agreement is held to be invalid,
such invalidity shall not affect the validity of any other
provision. All remedies available to either party under this
Agreement are cumulative and may be exercised together or
separately, and are in addition to any other remedies that may be
available to either party at law.
14. NOTICES
14.1. All notices sent under this Agreement shall be in writing and sent
to the address of the other party is set out below, or such other
address as may have been provided (by notice in writing) to the
sending party subsequently.
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Prudential: The Prudential Assurance Company Limited
Xxxxx Xxxxxxx
00 Xxxxx Xxxx
Xxxxxxx, XX0, 0XX
Marked "FAO MPP Administration (SFL Pension Scheme)"
SFL: X.X. Xxx 000
Xxxxxx
X000 0XX
14.2. A "notice in writing" shall include a copy sent by facsimile
transmission and service shall be deemed to have been made:
(i) on the date of delivery by hand
(ii) three days after posting by first class post, or
(iii) on the date of transmission of a facsimile (provided the
sending party can produce suitable proof of successful
transmission).
Provided that if any notice is not received during normal business
hours, service will be deemed to be received on the next working
day.
15. DISPUTES
15.1. This Agreement shall be governed by and construed in accordance with
English Law. The courts of England shall have exclusive jurisdiction
to settle any dispute that arises out of or in connection with this
Agreement.
16. HEADINGS
16.1. The headings in this Agreement are for convenience only and shall
not affect the construction or interpretation of any term.
17. WAIVER
17.1. No waiver of any breach under this Agreement shall amount to a
waiver of any other prior or subsequent breach, and no party's
rights shall be affected by any delay, failure or omission to
enforce or express forbearance granted in respect of any obligation
of the other party.
18. NON-APPLICATION OF COLLATERAL MATERIAL
18.1. Save where stated otherwise, this Agreement comprises the entire
Agreement between the parties in respect of its subject matter. It
supersedes all (whether oral or written) previous statements made by
either party and all previous agreements, understandings and
arrangements.
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19. FORCE MAJEURE
19.1. Neither party shall be liable to the other for non-performance of
its obligations (other than an obligation to pay money) if and to
the extent that such non-performance is or has been delayed,
hindered, interfered with, curtailed or prevented by any
circumstances beyond its control, or by legislative or
administrative interference, or compliance with any law,
regulations, order or request of any governmental authority or
person purporting to be or act for any such authority; or by fire,
explosion, strikes or other labour disputes or other civil
disobedience.
20. VOID UNENFORCEABLE OR ILLEGAL PROVISIONS
20.1. If any provision of this Agreement is or subsequently becomes void,
unenforceable or illegal that shall not affect the validity,
enforceability or legality of the other provisions of the remainder
of this Agreement.
21. DURATION
21.1. It is accepted that new terms setting out ongoing responsibilities
will be needed once Prudential has received the sums due to it under
clause 2.13 and Schedule 2 and the Pension Scheme membership figures
under Schedule 2 have been reached. At that point the parties will
re-negotiate the Agreement in good faith, each party making all
reasonable efforts to agree terms which not only meet its own
reasonable requirements but the reasonable requirements of the other
party. The parties will refer any areas of disagreement to the
Centre for Dispute Resolution for the purpose of mediation. If
agreement cannot be reached, any party which has negotiated in good
faith as set out above may terminate the agreement on giving 3
months notice. A maximum period of 12 months in total shall be
permitted for such renegotiation and mediation efforts. The terms of
the Confidentiality Agreement signed by the parties, and any other
terms expressly stated to survive termination will continue to have
effect.
IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed the day and year first above written.
______________________________
Capacity ____________________
SIGNED for and on behalf of
The Prudential Assurance Company Limited
14
_______________________________
Capacity ___________________
SIGNED for and on behalf of
Sports Fitness Leisure Limited
SCHEDULE 1
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(A) SFL
-------
Marketing Services
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Part 1: General
---------------
1. The analysis of the objectives of the Association.
2. The creation, development and production of ideas and recommendations
for the advertising and promotion of Member Services (and in particular
the Pension Scheme).
3. The making of arrangements with third parties where necessary to allow
Promotional Materials to be produced.
4. The planning, conduct and negotiations of contracts with third parties
providing media space or time for advertising including (but not
limited to) the owners of newspapers, magazines, billboards, radio and
television stations and film or video production.
5. The monitoring of advertising placed to ensure its quality.
6. Carrying out and interpreting market research necessary to carry out
the Marketing Services properly.
7. The planning and organization of exhibitions, trade fairs and similar
activities promoting and advising members (and potential members) of
the Association about the Association, the Member Services in general
and the Pension Scheme in particular.
8. The Production from time to time of marketing strategies, which will
describe the intended marketing and promotional activities expected to
be introduced over a stated period of time together with any subsequent
amendments.
Part 2: The Web-Site
--------------------
1. The Web-Site will allow Association members to access in a
user-friendly manner a full description of the Association and all
services available to members.
2. It will include separate suites for each of the services including the
Pensions Lounge.
3. Each suite shall include a full description of the particular service
and the options available.
4. The Pensions Suite will allow employer members of the Association to
download information about the Pension Scheme to assist and enable
employers to decide whether or not to join the Pension Scheme as an
associated employer, and shall give members of the Pension Scheme
information about the Pension Scheme, its benefits and options.
5. The design of and information contained in the Pensions Lounge and all
changes to it will be the joint responsibility of Prudential and SFL,
and subject to sign-off by both parties.
6. SFL will regularly review the information contained in the Web-Site and
will renew, update and amend it as and when necessary. It will use its
best endeavours to ensure any material featured in the Web-Site is
accurate and compliant with any legal requirements.
Part 3: The Database
--------------------
1. The Database will contain details of Association members' and
employers' names and addresses and such other membership information as
may be needed to facilitate the objectives of the Association.
(B) Prudential
--------------
Marketing Services
------------------
Part 1: General
---------------
1. Analysis of the objectives of Prudential's partnership with SFL in
connection with the development of the Pension Scheme.
2. Liaising with SFL Marketing team, providing SFL with support from and
access to Prudential personnel and resources set up in connection with
the Pension Scheme including the "teams" or departments responsible for
"PR", sales, administration, "telecentre", and "external" resources,
consultants etc retained by the Prudential, that can provide help to
SFL/Prudential in developing the project.
3. PR Team. Providing Prudential staff to assist and support the SFL
project, to be coordinated jointly by SFL and Prudential.
4. Sales Team. Prudential staff coordinated by the Prudential Corporate
Pensions division and trained in conjunction with SFL to carry out
sales presentations to staff members of SFL corporate members,
presenting the project under the direction and supervision of SFL.
5. Administration Team. Prudential staff tasked with the administration of
the Pension Scheme and the servicing of members' pension enquiries.
Operational procedures and service standards and training to be agreed
with SFL. Telephone enquiries to be handled by a team trained in
conjunction with SFL.
6. External consultants. Where Prudential deems appropriate to provide SFL
with the services of external consultants retained by Prudential to
assist in the development, marketing, promotion and sales of the SFL
Pension Scheme and project.
7. Use of, where necessary and available, Prudential's internal events and
promotional departments for design and production of materials.
8. To appoint a liaison officer dedicated to co-ordinating the SFL
project.
9. Subject to availability, the provision of materials, stands, technology
and equipment from time to time as required by SFL at strategy events
to assist and support the provision of Marketing Services.
Part 2: Web-Site
----------------
1. Prudential will use its best endeavours to ensure the accuracy of, and
to maintain and keep operative accurate and compliant all information
held and/or featured within the Pensions Lounge of SFL's Web-Site in
connection with the Pensions Scheme and/or related services and
products.
Part 3: The "Interface"
-----------------------
1. Prudential considers the development of "e-commerce" as a crucial
element in "Project Leapfrog" and is committed to developing the
associated computer technology and software, in particular an
electronic link or interface with SFL in connection with the Pension
Scheme.
2. Prudential acknowledges the installation of the interface is regarded
by SFL as crucial to its ability to maintain the attractiveness and
competitiveness, and thereby its ability to promote and sell,
membership of the Association and the Pension Scheme.
Prudential will use its best endeavours to develop and supply to SFL by
July 2001 a computer interface in line with and subject to the terms of
Clause 1.10.
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