Marketing Terms & Conditions

 

The Agreement (comprising the Proposal, the Order Form and these General Terms and Conditions) contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between the parties unless expressly incorporated by reference in this Agreement. The order of precedence in which the components of the Agreement shall apply is (unless otherwise stated in the Agreement and highest importance first): (1) the Order Form (and, in the event that more than one Order Form exists, the most recent Order Form first), (2) these General Terms and Conditions (including the Schedule) and (3) the Proposal.

  1. Definitions and interpretation
    1. Words shall have the meanings given to them in this Agreement, including without limitation as set out below:

      Bribery Laws: means the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption and any similar or equivalent legislation in any other relevant jurisdiction;
      Business Day: means a day, other than a Saturday, Sunday or public holiday, on which clearing banks are open for non-automated commercial business in the City of London;
      Commencement Date: means the date of commencement of the Services as agreed in writing between the Parties from time to time;
      Confidential Information: means any and all confidential information (whether in oral, written or electronic form) given including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other's business, finance or technology, know-how, intellectual property, assets, strategy, products and customers, including without limitation information relating to manufacturing or other processes, management, financial, marketing, technical and other arrangements or operations of any person, firm, or organisation associated with that party;
      Consumer Prices Index or CPI: means the Consumer Prices Index as published by the UK Office for National Statistics;
      Customer Material: means any Material provided or made available by Customer;
      Data Subject: has the meaning given to it in the Schedule;
      Fees: means, together, any Monthly Fees and any One-off Fees payable under this Agreement;
      Force Majeure: means an event or sequence of events beyond a party's reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including war, revolution, terrorism, riot or civil commotion; strikes, lock outs or other industrial action, whether of the affected party's own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire; flood, natural disaster, or adverse weather conditions. Force Majeure does not include, without limitation, inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a party;
      General Terms and Conditions: means these general terms and conditions forming part of the Agreement;
      Good Industry Practice: means the exercise of that degree of care, diligence and skill which would reasonably and ordinarily be expected from a skilled, professional and experienced person engaged in the same type of undertaking under the same or similar circumstances;
      Intellectual Property Rights: means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:

      1. whether registered or not;
      2. including any applications to protect or register such rights;
      3. including all renewals and extensions of such rights or applications;
      4. whether vested, contingent or future; and
      5. wherever existing;

      Initial Term: means a period of three (3) calendar months commencing on the Commencement Date;
      Material: means all text, graphics, logo, photographs, images, moving images (including video), sound, illustrations, software, data, calculations, algorithms, methods, information and other material and related documentation featured, displayed or used in or in relation to the Services;
      Monthly Fees: means any monthly fees payable under this Agreement for any recurring or on-going Services, as set out in the Summary Table(s);
      One-off Fees: means any one-off fees payable under this Agreement for any one-off or discrete Services, as set out in the Summary Table(s);
      Order Form: means the order form forming part of the Agreement (and annexed to the Proposal), and any subsequent order form entered into pursuant to this Agreement being together the Order Form(s);
      Personal Data: has the meaning given to it in the Schedule;
      Proposal: means the proposal prepared by Supplier detailing the Services or any of them and agreed in writing between the parties, to which an Order Form is annexed;
      Service Hours: means from 09:00 to 17:00 (GMT) on Business Days;
      Services: means any services to be provided by Supplier under this Agreement as detailed in the Proposal;
      Summary Table: means the summary of services and fees table set out in the Proposal;
      Sub-Processor: has the meaning given to it in the Schedule;
      Supplier Material: means any Material developed by Supplier either before or during the Term and that is used in or in relation to the Services (or any of them);
      Term: means the term of this Agreement;
      Third Party Charges: means any charges made by third party suppliers for the Third Party Services;
      Third Party Material: means any Material owned or licensed by a third party either before or during the Term;
      Third Party Service: means any goods and/or services to be provided by a third party to Customer and managed by Supplier pursuant to this Agreement (which may be more particularly described in the Proposal (in particular in the Summary Table)); and
      VAT: means United Kingdom value added tax and any other tax imposed in substitution for it.

    2. Interpretation
      In this Agreement, unless the context otherwise requires:

      1. the singular includes the plural and vice versa;
      2. references to sub-clauses and clauses are to sub-clauses and clauses of the General Terms and Conditions, and references to paragraphs are to paragraphs in an Order Form;
      3. references to this Agreement include the Proposal, the Order Form(s) and the General Terms and Conditions;
      4. references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);
      5. 'including’ (or similar words) means including without limitation;
      6. clause headings do not affect their interpretation;
      7. ‘in writing’ or ‘written’ includes email; and
      8. references to legislation (including any subsidiary legislation) include any modification or re-enactment thereof.
  2. Duration

    1. This Agreement will commence on the date of signature of the first Order Form between the parties and will continue for the Initial Term of that Order Form (and any additional Order Form) and thereafter unless and until terminated in accordance with clause 19 (Termination) of the General Terms and Conditions.
    2. For the avoidance of doubt, termination of one Service shall not terminate any other Services unless specifically provided in the relevant notice of termination. Each of the Services provided by Supplier is individually available, unless stated to the contrary in the relevant Order Form or Proposal.
  3. Services

    1. In consideration of the payment by the Customer of the Fees, Supplier shall provide the Services during the Service Hours in accordance with the terms of this Agreement, including as set out in the Proposal and the Order Form(s).
    2. Customer may request and Supplier may agree to provide additional Services at any time during the Term by completing an Order Form which shall be signed by each of the parties. Any additional Order Forms entered into pursuant to this clause2 shall form part of this Agreement.
    3. The parties agree that Supplier is being appointed as an exclusive supplier of the Services.
    4. Customer authorises Supplier, acting as Customer’s agent and on Customer’s behalf and without any liability on the part of Supplier, to enter into agreements in Customer’s name for certain Third Party Services with the third party suppliers listed in the Proposal.
  4. Fees and expenses

    1. Customer shall pay the following to Supplier in accordance with these General Terms and Conditions:

      1. Fees: the combined total of all One-off Fees and all Monthly Fees for the Services contained in the Summary Table(s) of the Proposal; and
      2. Expenses: expenses (excluding any Third Party Charges) shall be approved by Customer in advance of being incurred (such approval not to be unreasonably withheld or delayed) and shall be in accordance with any expenses policy of Supplier from time to time in force.
    2. The parties agree that any recurring charges, fees or expenses payable pursuant to this Agreement shall be reviewed annually by Supplier and may be increased by Supplier with effect from 1 January in each year following the first anniversary of this Agreement by not more than CPI plus 2%, and Supplier shall notify Customer of such increase at least 30 days prior to the effective date of increase.
    3. Any Third Party Charges shall be for the account of Customer in addition to any Fees set out in the Proposal.
  5. Taxes and duties

    1. All amounts due under this Agreement are exclusive of VAT, sales or other tax applicable which shall be paid in addition by Customer at the rate and in the manner for the time being prescribed by law.
  6. Invoicing and payment

    1. Supplier shall invoice Customer electronically to the email address provided by Customer to Supplier in writing for all sums due under this Agreement and otherwise in accordance with this clause 6.
    2. One-off Fees
      Supplier shall invoice Customer and Customer shall pay any One-off Fees as follows:

      1. as to 50% of any One-off Fees, on or prior to the relevant Commencement Date; and
      2. as to the remaining 50% of such One-off Fees, Supplier shall invoice Customer upon completion of the relevant Services and Customer shall pay such sums within 30 days from the date of invoice.
    3. Monthly Fees
      Supplier shall invoice Customer monthly in advance in respect of any Monthly Fees and Customer shall pay such sums in full:

      1. as to the Monthly Fees in respect of the first month’s Services, on or prior to the Commencement Date in respect of such Services; and
      2. as to the Monthly Fees for subsequent periods, within 30 days from the date of invoice.
    4. Expenses
      1. Supplier shall invoice Customer monthly in arrears in respect of any expenses approved in accordance with clause 4.1.2 and Customer shall pay such sums within 30 days from the date of invoice.
    5. General
      1. Amounts payable to Supplier under this Agreement shall be paid:
        1. by BACS or CHAPS transfer to Supplier’s bank account specified in the relevant invoice; or
        2. by cheque made payable to Williams Commerce Limited.
      2. Where sums due hereunder are not paid in full by the due date, Supplier may, without limiting its other rights, charge interest on such sums at 2 % a year above the base lending rate of The Royal Bank of Scotland PLCfrom time to time in force. Interest will apply from the due date for payment until actual payment in full, whether before or after judgment.
      3. Without prejudice to any of its other rights or remedies, Supplier shall be entitled to suspend performance of the Services hereunder (or any of them) if any payment by Customer under this Agreement is overdue by 10 Business Days or more and Supplier has provided Customer with at least 5 Business Days’ notice of suspension.
  7. Supply obligations

    1. Supplier shall provide the Services during the Service Hours:
      1. with reasonable skill and care; and
      2. at the times and in the manner required in the Order Form or otherwise specified in this Agreement.
    2. In the event that Supplier is required to supply or create any Third Party Material and/or Supplier Material in connection with the Services, Supplier shall seek the prior written approval of Customer (such approval not to be unreasonably withheld or delayed) of all such Third Party Material and/or Supplier Material prior to the publication or distribution of the same in connection with the Services.
    3. Supplier shall respond as soon as reasonably practicable from time to time to Customer’s reasonable requests for additional information or assistance if Services need to be modified.
  8. Customer obligations
    Customer shall:

    1. ensure that the Proposal and Order Form are complete and accurate and reflect Customer’s requirements;
    2. (if appropriate) provide accurate and complete Customer Material to Supplier at the time and in the format required to enable Supplier to provide the Services; and
    3. respond promptly from time to time to the reasonable requests of Supplier for relevant information, instructions and assistance, including reasonable access to and cooperation by Customer
  9. Third party services

    1. If the Services include the management or arrangement of the provision of Third Party Services, Customer agrees and acknowledges that:
      1. Supplier shall not be responsible for, and provides no warranty in relation to the provision, availability or quality of the Third Party Services;
      2. Customer shall directly and without delay enter into any licence or other form of agreement required by the relevant third party relating to the provision of such Third Party Services (Third Party Agreement) and shall comply with the terms and conditions of such Third Party Agreement; and
      3. Customer shall be responsible for and indemnify and keep indemnified and hold Supplier harmless against all and any Third Party Charges, together with any claims, losses damages, costs and expenses incurred by Supplier as a result of or in connection with any Third Party Agreement.
    2. Supplier and Customer may agree from time to time in writing:
      1. a budget for Third Party Charges spend in relation to a particular Third Party Service; and/or
      2. the hours during which the Third Party Service will be operational.
    3. In such circumstances set out in clause 2, Supplier shall use reasonable endeavours during Service Hours to monitor the relevant balance of such Third Party Charges and to bring any actual or potential overspend to the attention of Customer in writing PROVIDED THAT:
      1. Supplier provides no guarantee that the Third Party Charges will not exceed any such budget whether as a result of:
        1. increased consumer browsing traffic; or
        2. any such third party’s actions or amendments to the Third Party Service; or
        3. otherwise; and
      2. Customer shall be ultimately responsible for reviewing and monitoring the level of Third Party Charges spend and liaising with the relevant third party in the event of any concerns relating to the level of such spend.
  10. Anti-slavery

    1. Customer undertakes, warrants and represents that:
      1. neither Customer nor any of its officers, employees, agents or subcontractors has:
        1. committed an offence under the Modern Slavery Act 2015 (a MSA Offence); or
        2. been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
        3. is aware if any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
      2. it shall comply with the Modern Slavery Act 2015;
      3. it shall notify Supplier immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of Customer’s obligations under clause 1. Such notice shall set out full details of the circumstances concerning the breach or potential breach of Customer’s obligations.
    2. Any breach of clause 9.1 by Customer shall be deemed a material breach of the Contract and shall entitle Supplier to terminate the Contract with immediate effect.
  11. Warranties

    1. Supplier warrants and represents to Customer that:
      1. Supplier has the right, power and authority to enter into this Agreement and grant to Customer the rights contemplated in this Agreement, and to perform the Services; and
      2. Supplier will perform the Services during the Service Hours with reasonable care and skill and in accordance with Good Industry Practice.
    2. Whilst Supplier will use reasonable endeavours to achieve any advertising, marketing or social media objectives of Customer set out in the relevant Proposal, Supplier does not warrant that the Services or any of them will:
      1. result in any increased awareness of Customer’s products and/or services; or
      2. result in any increased internet traffic to Customer’s website(s); or
      3. directly or indirectly increase the turnover of Customer,

      and Customer acknowledges that Supplier shall not be liable for any failure by Supplier to meet any such objectives where such failure arises as a result of any fact or matter outside the reasonable control of Supplier (including, for the avoidance of doubt and not limited to, any event of Force Majeure, market forces and the changing nature of internet browsing, search engine and advertising technologies).

    3. Any estimates provided by Supplier relating to projected hit rates, pay-per-click performance or any other form of measuring internet traffic and browsing, are provided in accordance with Good Industry Practice but any such estimates cannot be guaranteed and Supplier provides no warranty in relation to achievement of the same.
    4. Supplier does not warrant the suitability, adequacy or quality of any Third Party Services provided or made available to Customer as a result of or in connection with the Services.
    5. Supplier may from time to time request that Customer make certain technical changes (in the form of uploading new or optimised content or otherwise) in order to increase the online visibility of Customer and/or its products, and/or to achieve any advertising, marketing or social media objectives of Customer set out in the relevant Proposal. Customer shall make any such changes as soon as reasonably practicable.
    6. Customer acknowledges that Supplier is not liable for any loss or damage incurred by Customer to the extent that this results from any failure or delay by Customer to discharge its obligations (or any of them) under this Agreement, including Customer’s failure or delay in implementing any changes requested by Supplier pursuant to clause 5.
    7. Customer warrants and represents to Supplier that:
      1. it has the right, power and authority to enter into this Agreementand grant to Supplier the rights contemplated in this Agreement, and to receive the Services;
      2. it has all rights and licences to any Customer Material and any Third Party Material provided pursuant to this Agreement and to grant all necessary licences to Supplier to use the same in accordance with the terms of this Agreement; and
      3. any Customer Material will not:
        1. be fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent or pornographic or otherwise contrary to law;
        2. infringe the Intellectual Property Rights of any third Party; or
        3. contain any viruses or other harmful or intrusive programs or other code.
    8. All other warranties and representations as to the Services, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.
    9. Any warranties given by Supplier shall be subject to Customer using the Services in compliance with this Agreement.
  12. Intellectual Property Rights

    1. In order to enable Supplier to provide, and in consideration of Supplier providing the Services, Customer grants to Supplier a non-exclusive, world-wide, non-transferable, royalty-free licence of such of Customer’s Intellectual Property Rights in the Customer Material as are necessary for Supplier to fulfil its obligations under this Agreement.
    2. In the event that Supplier is required to supply or create any Third Party Material and/or Supplier Material in connection with the Services, all such Third Party Material and/or Supplier Material shall remain the property of Supplier or its licensors (as the case may be) and shall only be licensed or assigned or otherwise dealt with in accordance with the following provisions of this clause 12.
    3. Assigned Material
      1. In relation to Third Party Material and/or Supplier Material that the parties agree in writing will be assigned to Customer, subject to and in consideration for Customer’s compliance with the terms of this Agreement including payment of all Fees relating to the Material in question, Supplier shall, with fulltitle guarantee (in the case of Supplier Material) or such title guarantee as it is able to provide (in relation to Third Party Material) , assign and transfer all intellectual property rights in the relevant Third Party Materials and/or Supplier Materials (as the case may be) (Assigned Material), including the right to sue for past infringements and retain any damages obtained as a result of such action, for the remainder of the term during which the rights and any renewals or extensions of them subsist.
      2. Supplier shall, at Customer’s expense, do and execute, or ensure the doing or execution of, all matters, acts, documents, deeds and things Customer may reasonably require to vest the intellectual property rights in the Assigned Material or any part or parts of it in Customer properly or otherwise to perfect Customer’s title to them.
      3. Supplier waives any moral rights granted by the Copyright, Designs and Patents Act 1988 Sections 77–89 that may subsist in the Assigned Material, and will procure the waiver of any such rights by its employees or sub-contractors.
    4. Retained Material
      In relation to Third Party Material and/or Supplier Material  that either is (a) agreed in writing between the parties will remain the property of Supplier or the relevant third party or (b) not specified in any part of the Agreement as being the subject of any assignment to Customer or otherwise (Retained Material), Supplier grants to Customer a non-exclusive, non-transferable, royalty-free licence (or sub-licence (as the case may be)) of such of Supplier’s Intellectual Property Rights in the Retained Material as is necessary for Customer to fulfil its obligations under this Agreement and to enable Customer to make use of the Services, which licence or sub-licence:

      1. in the case of software, shall be a licence of object code only unless otherwise expressly provided;
      2. in the case of Third Party Material it shall be on such terms as Supplier may grant in accordance with the terms between Supplier and the Third Party Material owner; and
      3. shall be to the extent and for the purpose only of Customer making use of the Services.
    5. Except as expressly agreed in this clause 12 (Intellectual Property Rights), no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
    6. Subject to the foregoing, Supplier shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with the provision of the Services provided always that such skills, techniques or know-how do not infringe Customer’s Intellectual Property Rights now or in the future or disclose or breach the confidentiality of Customer’s Confidential Information.
  13. Intellectual Property Rights indemnity

    1. Customer shall indemnify and keep indemnified, and hold harmless, Supplier against all claims, losses damages, costs and expenses incurred by Supplier as a result of or in connection with any action, demand or claim that use or possession of any Customer Material infringes the Intellectual Property Rights of any third party.
    2. Supplier shall indemnify and keep indemnified, and hold harmless, Customer against all claims, losses, damages, costs and expenses incurred by Customer as a result of or in connection with any action, demand or claim that the Services, any Supplier Material or any of them (excluding any Customer Material) infringes the Intellectual Property Rights of any third party.
  14. Limits on liability

    1. Subject to the following sub-clauses, in no event shall the aggregate liability of Supplier to Customer (whether in contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with this Agreement exceed:
      1. £1,000 (one thousand pounds) in respect of any one claim or series of related claims; and
      2. an amount equivalent to 125% of twelve (12) months’ aggregate Fees or £10,000 (ten thousand pounds)(whichever is the lower) in respect of any and all claims, losses and damages arising under or in connection with this Agreement.
    2. The above limits on liability shall apply in respect of any indemnities provided by Supplier under this Agreement, including without limitation to the indemnities under clause 13 (Intellectual Property Rights indemnity) and Supplier’s liability for a breach of its obligations under clause 16 (Confidential Information).
    3. Supplier's liability to Customer in contract, tort (including negligence), for misrepresentation (whether innocent or negligent), for breach of statutory duty or otherwise arising out of or in connection with this Agreement shall not extend to any loss of profits, business opportunity, goodwill, data, anticipated savings or any special, indirect or consequential loss or damage whatsoever, even if foreseeable or if Supplier has been advised of the possibility of such damage.
    4. The parties agree that the limitations on liability in this Agreement are fundamental to the Agreement and are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement. Customer acknowledges that Supplier would not provide any Services to Customer without such limitations.
    5. Notwithstanding the above neither party excludes or limits any liability for:
      1. personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; or
      2. fraud or fraudulent misrepresentation; or
      3. any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
      4. any other liability to the extent the same cannot be excluded or limited by law.
  15. Force Majeure

    1. A party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it:
      1. promptly notifies the other of the Force Majeure event and its expected duration, and
      2. uses reasonable endeavours to minimise the effects of that event.
    2. If, due to Force Majeure, a party:
      1. is unable to perform a material obligation, or
      2. is delayed in or prevented from performing its obligations for a continuous period of more than 90 days,

      the other party may, within a further 10 days terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect.

  16. Confidential Information

    1. Each party shall maintain the confidentiality of the other party's Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party's Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement.
    2. Each party undertakes to:
      1. disclose the other party's Confidential Information only to those of its officers, employees, agents and contractors (including Supplier personnel) to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and
      2. to procure that such persons are made aware of and agree in writing to observe the obligations in this clause.
    3. Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party's Confidential Information immediately upon becoming aware of the same.
    4. The provisions of this clause shall not apply to information which:
      1. is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
      2. is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
      3. is independently developed by the recipient, without access to or use of such information; or
      4. is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.
    5. The obligations under this clause shall survive the variation, expiry or termination of this Agreement for a period of 2 years thereafter.
  17. Data protection

    1. For the purposes of this clause 17 and the Schedule:
      1. the following shall be authorised Sub-Processors: those third party suppliers listed in the Proposal;
      2. the nature of processing is as follows: the provision of marketing and social media services;
      3. the types of Personal Data to be processed, the categories of Data Subject and any specific processing instructions that apply to this Agreement (if relevant) shall be agreed in writing between the parties.
    2. Each party agrees that, in the performance of their respective obligations under this Agreement and to the extent applicable, it shall comply with the provisions of the Schedule with regard to the processing of Personal Data.
    3. Each party will establish and maintain adequate security measures to safeguard information and data of the other party in its possession from unauthorised access and copying.
  18. Anti-bribery

    1. Each party shall comply with applicable Bribery Laws, and each shall use all reasonable endeavours to ensure that:
      1. all of that party’s personnel;
      2. all of that party’s subcontractors; and
      3. all others associated with that party,

      involved in performing services for or on behalf of that party or otherwise involved with this Agreement so comply.

    2. Without limitation to the above sub-clause:
      1. neither party shall (directly or indirectly) offer or give or request, agree to receive or accept any bribe, other improper payment or advantage or bribe any UK or foreign public official in breach of applicable Bribery Laws; and
      2. each party shall implement, maintain and enforce adequate procedures designed to prevent persons associated with that party engaging in conduct which contravenes the Bribery Act 2010.
    3. Each party shall immediately notify the other as soon as it becomes aware of a breach of any of the requirements in the foregoing sub-clauses.
    4. The expressions 'adequate procedures', 'associated with' and ‘foreign public official’ shall be construed in accordance with the Bribery Act 2010.
  19. Suspension and termination

    1. Customer may request that Supplier suspend a Service or Services upon giving to Supplier 30 days prior written notice (specifying the Service(s) in question). In order to recommence the relevant Service(s) Customer shall give Supplier no less than 14 days prior written notice.
    2. Either party may terminate a Service or Services for convenience upon 30 days prior written notice (specifying the Service(s) in question) to the other party, such notice to take effect on or after the expiry of the relevant Initial Term. Such termination shall not affect the continuation of any other Services provided by Supplier to Customer pursuant to this Agreement. This Agreement shall be deemed to terminate upon termination of all the Services provided hereunder.
    3. Either party may without prejudice to its other rights and remedies by notice in writing to the other party immediately terminate this Agreement if the other:
      1. is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
      2. is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
    4. Either party may without prejudice to its other rights and remedies by notice in writing to the other party immediately terminate this Agreement if that other party ceases carrying on business in the United Kingdom.
    5. In the event of termination of any Services pursuant clause 2 or of this Agreement for any reason:
      1. Customer shall pay to Supplier all outstanding Fees payable and expenses incurred in relation to such Services or under the Agreement (as the case may be) up to the date of termination; and
      2. (in the case of termination of the Agreement only) each party shall within 14 days of such termination return (or, at the other party's option, destroy) all the other party's Confidential Information in its possession or under its control and all copies of such information.
  20. Dispute resolution

    1. If there is a dispute between the parties in relation to any matter under this Agreement, the parties shall meet to try to resolve any such dispute and if they fail to do so with a reasonable time the matter in dispute shall be referred to a senior manager of Supplier and Customer respectively, for them to try to resolve the matter in dispute, failing which the provisions of clause 24 (Governing Law and Jurisdiction) shall apply.
  21. Compliance with law

    1. Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties hereunder, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach to the extent that such breach is directly caused or contributed to by any act or default of the other party or its employees, agents and representatives.
  22. Entire agreement

    1. This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement.
    2. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement.
    3. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
  23. General

    1. Whilst Supplier will use reasonable endeavours to meet any deadlines agreed, such dates are approximate only and the performance of Supplier’s obligations is not of the essence under this Agreement.
    2. Each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.
    3. Provisions which by their terms or intent are to survive termination of this Agreement will do so.
    4. The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
    5. For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.
    6. Save for the provision of Third Party Services by those third party suppliers and Sub-Processors set out in the Order Form(s) or otherwise agreed by the parties in writing from time to time, no party may assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other's prior written consent or except as expressly permitted in this Agreement.
    7. No amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory of each party.
    8. If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
    9. Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
    10. All payments under this Agreement will be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction.
    11. Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.
    12. Notices under this Agreement must be in writing and sent to the other party's registered office.
  24. Governing law and jurisdiction

    1. This Agreement is governed by the law of England and Wales. All disputes under this Agreement not otherwise resolved by the parties in accordance with the process set out in clause 20 (Dispute resolution) shall be subject to the exclusive jurisdiction of the courts of England and Wales.

 

 

Operative provisions

  1. Definitions

    1. In this Schedule:
      1. Appropriate Safeguards means such legally enforceable mechanism(s) for transfers of Personal Data as may be permitted under Data Protection Laws from time to time;
      2. Controller, Data Subject, Personal Data, Processor and processing shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly) and international organisation and Personal Data Breach shall have the respective meanings given to them in the GDPR;
      3. Data Protection Laws means, as binding on either party or the Services:
        1. the Directive 95/46/EC (Data Protection Directive) and/or Data Protection Act 1998 or the GDPR;
        2. any laws which implement any such laws; and
        3. any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
      4. GDPR means the General Data Protection Regulation (EU) 2016/679;
      5. Protected Data means Personal Data received from or on behalf of Customer in connection with the performance of Supplier's obligations under this Agreement;
      6. Sub-Processor means any agent, subcontractor or other third party (excluding its employees) engaged by Supplier for carrying out any processing activities on behalf of Customer in respect of the Protected Data;
      7. Supplier Personnel means all employees, officers, staff, other workers, agents and consultants of Supplier and any of its subcontractors who are engaged in the performance of the Services from time to time; and
      8. Technical and Organisational Measures means, in accordance with the Data Protection Laws and taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with this Agreement, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, such appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(1)(a) to 32(1)(d) (inclusive) of the GDPR.
  2. Compliance with data protection laws

    1. The parties agree that Customer is a Controller and that Supplier is a Processor for the purposes of processing Protected Data pursuant to this Agreement.
    2. Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. Customer shall ensure all instructions given by it to Supplier in respect of Protected Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Laws.
    3. Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.
    4. Customer shall indemnify and keep indemnified Supplier against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by Customer of its obligations under this Schedule.
    5. Customer shall not withhold, delay or condition its agreement to any action required by Supplier to be carried out by Customer (including the application of any software security patch or fix) to ensure the Services and Supplier (and each Sub-Processor) can comply with Data Protection Laws.
  3. Instructions

    1. Supplier shall only process (and shall ensure Supplier Personnel only process) the Protected Data in accordance with Part B of this Schedule and this Agreement (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and shall inform Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest).
    2. Without prejudice to paragraph 2 of this Part A, if Supplier believes that any instruction received by it from Customer is likely to infringe the Data Protection Laws it shall promptly inform Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
  4. Security

      Supplier shall implement and maintain Technical and Organisational Measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
  5. Sub-processing and personnel

    1. Supplier shall:
      1. not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the written authorisation of Customer;
      2. prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this Schedule that is enforceable by Supplier and ensure each such Sub-Processor complies with all such obligations;
      3. remain fully liable to Customer under this Agreement for all the acts and omissions of each Sub-Processor as if they were its own; and
      4. ensure that all persons authorised by Supplier or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
  6. List of authorised sub-processors

      Customer authorises the appointment of the Sub-Processors listed in the Order Form.
  7. Assistance

    1. Supplier shall (at Customer’s cost) assist Customer in ensuring compliance with Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to Supplier.
    2. Supplier shall (at Customer’s cost) taking into account the nature of the processing, assist Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
  8. International transfers
    Customer agrees that Supplier may, to facilitate the provision of the Services under this Agreement, transfer Protected Data that is Personal Data relating to:

    1. clients or customers of Customer; and/or
    2. members of any Customer database(s); and/or
    3. business contact details of employees of Customer,
    4. to countries outside the European Economic Area (EEA) or to any international organisation(s) (an International Recipient), provided all transfers by Supplier of Protected Data to an International Recipient shall (to the extent required under Data Protection Laws) be effected by way of Appropriate Safeguards and in accordance with Data Protection Laws. The provisions of this Agreement shall constitute Customer’s instructions with respect to transfers in accordance with paragraph 3.1.

  9. Audits and processing

      Supplier shall, in accordance with Data Protection Laws, make available to Customer such information that is in its possession or control as is necessary to demonstrate Supplier’s compliance with the obligations placed on it under this Schedule and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by Customer (or another auditor mandated by Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this paragraph 9).
  10. Breach

      Supplier shall notify Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
  11. Deletion or return of Protected Data and copies
    1. Supplier shall, at Customer’s written request and at Customer’s cost, either delete or return all the Protected Data to Customer in such form as Customer reasonably requests within a reasonable time after the earlier of:
      1. the end of the provision of the relevant Services related to processing; or
      2. once processing by Supplier of any Protected Data is no longer required for the purpose of Supplier’s performance of its relevant obligations under this Agreement,

      and delete existing copies (unless storage of any data is required by Applicable Law and, if so, Supplier shall inform Customer of any such requirement).

 

 

Data processing details

  1. Processing of the Protected Data by Supplier under this Agreement shall be for the purposes of enabling Supplier to deliver the Services pursuant to this Agreement and shall (unless otherwise agreed between the parties in writing) continue for the term of this Agreement (as set out in clause 2 of the General Terms and Conditions).
  2. The nature of processing, types of Personal Data, categories of Data Subjects and specific processing instructions (if any) are set out in clause 17 of the General Terms and Conditions and/or shall be agreed in writing between the parties.