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Terms​ & Conditions

PARTIES:

(1)        Capture Marketing Ltd a company incorporated and registered in England and Wales with company number 06667381, whose registered office is at 60 Great Portland Street, London, England, W1W 7RT (“Agency”).

 

(2)        The company identified as the client on the related Scope of Work (”Client”).

 

RECITALS:

The Client wishes to obtain, and the Agency wishes to provide, commerce marketing services in accordance with the terms and conditions of this Agreement.

IT IS AGREED AS FOLLOWS:

 

1.Definitions

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

 

“Affiliate” means in respect of a party to this agreement, any legal entity which controls, is controlled by or is under common control with that party, where “control” has the meaning given to it in s1124 of the Corporation Tax Act 2010.

 

“Agency Proprietary Materials” means software, including the Platform, (including all programming code in object and source code form), methodology, know-how and processes and Materials (including any Platform Content to the extent these are not created specifically for the Client), in relation to which the Intellectual Property Rights are owned by (or licensed to) the Agency and which are: (i) in existence prior to the date on which it is intended to use them in connection with a Project; or (ii) created by or for the Agency outside of the Services and which are intended to be reused across its business.

 

“Agreement” means each Scope of Work and these terms and conditions.

 

“Associates” means a party’s employees, officers, agents, sub-contractors or authorised representatives.

 

“Authorised Client Entities” means any Affiliates of the Client which are named as Authorised Client Entities on a Scope of Work.

 

“Authorised Users” means those officers, employees, agents and independent contractors of the Client and each other Authorised Client Entity who are authorised by the Client to use the Services, Subscription Services and the Platform Content.

 

“Business Day” means a day (other than a Saturday or a Sunday) on which the clearing banks in the City of London are open for business.

 

“Client Data” means information uploaded to the Platform by or on behalf of the Client.

 

“Client Materials” means any data (including the Client Data), client equipment, computer systems, software, documents, copy, Intellectual Property Rights, artwork, logos and any other materials or information owned by or licensed to the Client that are provided to the Agency and/or its Associates by or on behalf of the Client for use in the provision of the Services.

 

“Commencement Date” means the date when this Agreement has been signed by all the parties.

 

“Created Materials” means those Materials specifically created by the Agency for the purposes of a Project by or on behalf of the Agency (including any Materials adapted, modified or derived from the Client Materials) and which may be incorporated into Deliverables during the Term.

 

“Deliverables” means any advertising, data and Platform Content, creative (including reports and presentations) and other materials which are to be provided by the Agency in the course of providing the Services as specified in a Scope of Work, including Created Materials, Third Party Materials and Agency Proprietary Materials where applicable.

 

“Expenses” means any expenses and out of pocket costs as set out in a Scope of Work or as agreed between the parties in advance, in accordance with clause 7.

 

“Fees” means any amounts payable to the Agency (including any Licence Fee) payable for the Services as set out in the relevant Scope of Work.

 

“Initial Licence Term” means the initial term applicable to any Subscription Service as set out in the relevant Scope of Work.

 

“Intellectual Property Rights” or “IPRs” means the following rights, wherever in the world enforceable, including all reversions and renewals and all applications for registration: (i) any patents or patent applications; (ii) any trade marks (whether or not registered); (iii) inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; (iv) copyright or design rights (whether registered or unregistered); (v) database rights; (vi) performer's property rights as described in Part II, Chapter X of the Copyright Designs and Patents Act 1988 and any similar rights of performers anywhere in the world; (vii) any goodwill in any trade or service name, trading style or get-up; and (viii) any and all other intellectual or proprietary rights.

 

“Licence Fees” means the fees payable by the Client to the Agency for any Subscription Service, as may be detailed in a Scope of Work.

 

“Licence Term” means, the period commencing on the licence start date, with respect to any Subscription Services, and continuing for the Initial Licence Term together with any subsequent Renewal Periods agreed between the parties.

 

“Malware” means a computer program (in any form) or a device, which is designed to cause, or is deployed for the purpose of causing, or actually has the effect of causing, damage or mischief to any computer or its owner or operator or any third party, or to suborn or bypass its security, or to retard or degrade its performance, or to facilitate criminal acts or acts of industrial espionage, digital vandalism or “hacktivism”.

 

“Materials” means any artwork, copy, models, designs, photographs, commercial, feature film, character, music, voice over, sound recording, performance, book, painting, logo, or any other material protected by Intellectual Property Rights, but not including any software.

 

“Media Buying” means when the Agency buys or procures media on behalf of the Client and only relevant when specified in an applicable SOW.

 

“Media Buying Terms” means the terms in Schedule 4 of this Agreement.

 

“Normal Business Hours” means 8.00 am to 6.00 pm local UK time, each Business Day.

 

“PlanApps” means the “PlanApps” platform made available by the Agency for Use by the Client under the Subscription Services Terms in Schedule 1 to this Agreement.

 

“Platform” means PlanApps or any other platform or app operated by Agency or an Agency Affiliate and as may be set out in a Scope of Work.

 

“Platform Content” means the content made available to the Client through the Platform.

 

“Project” means any project(s) agreed between the parties from time to time under which the Agency is to perform Services to the Client over and above those under Retainer Scope of Work, as more fully described in the applicable Project Scope of Work.

 

“Project Scope of Work”  means a Scope of Work for a Project agreed by the parties in writing from time to time.

 

‘Purchase Order’ means a purchase order issued by the Client to the Agency that expressly references this Agreement and which is accepted by the Agency either expressly or by commencing performance.

 

“Retainer Scope of Work” means a Scope of Work setting out the Services to be provided in respect of any retainer fee by the Agency on an annual basis, agreed between the parties in writing.

 

“Renewal Period” unless otherwise stated in a Scope of Work, means the period of 12 months commencing on (i) the expiry of the Initial Licence Term and (ii) each anniversary of the expiry of the Initial Licence Term.

 

“Scope of Work” or “SOW” means the scope of work document, booking form, or similar document, based on the template in Schedule 3, agreed and signed by both parties containing a description of the relevant Services and incorporating these terms and conditions and includes any Retainer Scope of Work (if applicable) and any Project Scopes of Work (if applicable).

 

“Security Incident” means unauthorised acquisition, access, use or disclosure of Client’s Personal Data.

 

“Services” means the services to be provided by the Agency under this agreement, including the provision of any Deliverables and/or any Subscription Services, as set out in any Scope of Work.

 

“Subscription Services” means the subscription to any Platform, provided by Agency to the Client which allows the Client to access Platform Content, and only relevant when specified in an applicable SOW.

 

“Term” has the meaning given in clause 3.1.

 

“Territory” means the United Kingdom, unless expressly specified otherwise in the Scope of Work (and publication and marketing on globally accessible mediums such as the internet shall not mean that the Territory is deemed to be world-wide).   

 

“Third Party Contracts” has the meaning given in clause 7.2.

 

 “Third Party Costs” has the meaning given in clause 7.5.

 

“Third Party IP Claim” has the meaning given to it in paragraph 1.23 of Schedule 1.

 

“Third Party Materials” means those Materials which are either commissioned by the Agency from third parties during the Term and incorporated into the Deliverables, or which have been created by a third party and which are in existence at the time it is desired to make use of them for inclusion in any Deliverables, but which excludes software which is owned or licensed by a third party.

 

“TUPE” means the Transfer of Undertakings (Protection of Employment) Regulations 2006, and any predecessor regulations including the Transfer of Undertakings (Protection of Employment) Regulations 1981.

 

“Use” means in respect of any Platform, only those acts of connecting to it, logging in to it, accessing it and interacting with it as are consistent with its ordinary intended usage as described in a Scope of Work and in respect of any Platform Content made available through any Platform, only the acts of downloading them, creating a reasonable number of copies of them, combining reasonable extracts from them with other material to create combined works, and distributing those copies and/or combined works within the internal organisation of the Client and/or a relevant Authorised Client Entity, and in each and all cases  solely for the internal business purposes of the Client and/or the Authorised Client Entities.

 

“VAT” means value added tax or any equivalent tax chargeable in the UK or any other relevant jurisdiction.

 

1.2Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

 

1.3A “person” includes a natural person, or corporate or unincorporated body (whether or not having separate legal personality).

 

1.4Where the context so requires, words in the singular shall include the plural and vice versa, and words denoting one gender shall include all genders.

 

1.5A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and includes any subordinate legislation in force made under it.

 

1.6If there is any conflict or direct inconsistency between any of the documents comprising this Agreement, they will prevail according to the following order of precedence: (i) a Scope of Work (but only to the extent of such direct inconsistency); (ii) the Schedules (but only to the extent of such direct inconsistency); and (iii) this Agreement.

 

1.7Any words following the terms including, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

 

1.8Except where stated otherwise, a reference to “writing” or “written” does not include email or fax.

 

2.Appointment & scopes of work

 

2.1The Agency shall have no obligation to provide any Services or Deliverables until a Scope of Work has been signed by both parties and (if required for invoicing purposes) a valid Purchase Order number has been issued to the Agency.

2.2The Agency shall provide the Services to the Client on the terms and conditions of this Agreement during the Term.

 

2.3The parties may agree Projects from time to time by agreeing a new Project Scope of Work in writing.  Once a Scope of Work has been signed on behalf of the Agency and the Client, such Scope of Work shall automatically form part of this Agreement.  The parties may amend a Scope of Work by agreement in writing between the parties.

 

2.4Any dates specified in any Scope of Work for delivery of Services shall be estimates only and time shall not be of the essence in this Agreement.

 

3.Term

 

This Agreement shall commence on the Commencement Date and shall continue until terminated in accordance with clause 15 (“Term”).

 

4.Agency's obligations & warranties

 

4.1The Agency warrants and undertakes that:

(a)it has full power and authority to enter into this Agreement;

(b)it shall perform the Services with reasonable skill and care, using suitably qualified personnel, to a standard no less than that to be reasonably expected of a competent agency of similar size and resources;

(c)the use by the Client of any final approved Deliverables to be provided by the Agency in connection with the Services (but excluding any IPRs in any Client Materials incorporated in the Deliverables) will not, when used in accordance with this Agreement and for the purposes set out in any Scope of Work, infringe the copyright of any third party.

 

4.2Subject to clause 12, the Agency hereby defends and indemnifies the Client against any losses, costs or expenses incurred by the Client in the defence or settlement of a third party claim arising from a breach by the Agency of its warranty in clause 4.1(c) provided that there the third party claim relates to any Subscription Service, the indemnity in paragraph 1.22 of Schedule 1shall apply instead.

 

4.3Save to the extent expressly agreed in any Scope of Work, the relationship between the parties is non-exclusive and the Agency shall therefore be entitled to provide any services or deliverables the same or similar to the Services (but for the avoidance of doubt, only without using any Client Materials) to any third party subject always to clause 10 (Confidentiality).

 

4.4Subject to clause 10.2, the Agency shall not be liable for:

 

(a)any failure to generate media coverage or public interest for the Client, or any failure or delay in publication or transmission in any media, or any third-party error in publication, as these are ultimately out of the Agency’s control, and the Client acknowledges that payment of the Fees and Expenses is not conditional upon such;

(b)any loss or damages arising as a result of any information or materials supplied or approved by the Client;

(c)any decisions or actions taken or not taken as a result of the Platform Content;

(d)any loss or damages arising from the withdrawal or alteration of any third-party product or service; or

(e)for any damage caused by errors or omissions in any information, instructions or scripts provided to Agency by the Client in connection with the Services, or any actions taken by Agency at the Client's direction.

 

5.Client's obligations & warranties

 

5.1The Client warrants that:

(a)it has full power and authority to enter into this Agreement;

(b)the Client Materials do not and will not, when used in accordance with this Agreement and any written instructions given by the Client, infringe any third party Intellectual Property Rights;

(c)the Client Materials do and will comply with all applicable laws and regulations;

(d)the Client Materials are accurate and complete; and

(e)it is the beneficial owner of, or is otherwise entitled to provide the Agency with, the Client Materials.

 

5.2The Client undertakes to:

(a)carry out all of its obligations under this Agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, the Agency shall be entitled to adjust any agreed timetable or delivery schedule as reasonably necessary;

(b)provide the Agency with full and clear instructions as to its requirement for the Services and all information, materials and assistance required for the proper performance of the Services;

(c)provide a Purchase Order (if applicable) as soon as reasonably practicable but not later than five (5) Business Days following mutual agreement of a Scope of Work;

(d)promptly supply to the Agency (at no charge) any Client Materials reasonably required by the Agency or otherwise necessary to provide the Services and shall ensure that all Client Data is provided in a secure and encrypted form;

(e)comply with, and (where the Services includes any Subscription Services) procure that each Authorised User complies with, all applicable laws and regulations with respect to its activities under this Agreement;

(f)obtain and maintain in force throughout the Term all necessary licences, consents and permissions necessary for the Agency, its sub-contractors and agents to use the Client Materials and perform their obligations under this Agreement, including the Services;

(g)use the Services only for the purposes for which they were provided, and not modify or alter any material or information provided by the Agency without the Agency’s written consent;

(h)keep the Agency informed of any matters related to the Client which will, or could, have an impact on the Agency’s performance of the Services;

(i)promptly inform the Agency if the Client considers that any Services or materials provided to the Client by the Agency for approval are false or misleading or in any way contrary to law or applicable advertising regulation;

(j)permit the Agency to attend meetings, when reasonably necessary, with any advertising or marketing services agencies and other advisers engaged by the Client; and

(k)ensure that the Client’s other suppliers, contractors and agents cooperate with the Agency as reasonably necessary to enable the Agency to perform the Services.

 

5.3If the Client does not fulfil its obligations under or in connection with this Agreement (including its payment obligations), then to the extent that such failure prevents the Agency from performing any Services in accordance with this Agreement, the Agency will be relieved of its obligations to the Client, and the Agency shall not be liable for any losses, costs or expenses incurred by the Client as a result of any such failure.

 

6.Fees

 

6.1In consideration of the provision of the Services by the Agency, the Client shall pay the Fees to the Agency together with any Expenses and Third Party Costs.

 

6.2If it is agreed that work shall be undertaken by the Agency outside the scope of any Scope of Work, the Agency will charge for such work by time spent and in accordance with the hourly rates listed in the Agency’s prevailing rate card as may be communicated to the Client from time to time.

 

6.3Unless set out otherwise in any Scope of Work, the Fees and (if applicable) the Expenses and Third Party Costs shall be invoiced to the Client on entering into the applicable Scope of Work and for each element of media booked, the Client shall be invoiced once the media goes live. Where applicable VAT will be charged to the Client at the prevailing rate.

 

6.4Unless set out otherwise in any Scope of Work, the Client shall pay the Agency, in full and in cleared funds within 30 days of the date of each invoice.

 

6.5In event that the Services are cancelled (including in event of termination of the Agreement for convenience in accordance with clause 15), the Agency will charge the Client an amount (“Cancellation Charge”) equal to the greater of:

(a)10% of the total Fees or £2,000 (whichever is lower); or

A fee based on work undertaken up to the date of cancellation, calculated by incorporating Third Party Costs, charges or expenses incurred (including any cancellation or committed charges payable) and estimated time committed to date.

6.6In the event of any amendment to any Scope of Work by the Client (as agreed between the parties):

 

(a)the Client shall reimburse the Agency for any Third Party Costs, charges or expenses incurred (including any cancellation or committed charges payable) to which the Agency is committed as a result of the amendment, including but not limited to any cancellation charges imposed by suppliers.

 

6.7Without prejudice to any other right or remedy that it may have, the Agency may charge interest on any overdue sum from the due date for payment at an annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing daily from the due date for payment until the date on which the Agency receives payment together with all accrued interest. Without prejudice to any other right or remedy that it may have the Agency may also without liability to the Client suspend the Services (including with respect to any Subscription Services, disabling the Client's and/or the Authorised Users’ password, account and access to all or part of any Platform) until payment for overdue sums has been made in full (during which period, for the avoidance of doubt, the Fees will remain payable in full).

 

6.8If any payment of the Fees (including the Cancellation Charge) Expenses or Third Party Costs is subject to tax (whether by way of direct assessment or withholding at its source), the Agency shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to the Agency of the Fees (including the Cancellation Charge), Expenses and Third Party Costs after tax in respect of the payment is the same as it would have been were the payment not subject to such tax.

 

6.9If the Agency is required to purchase anything other than in pounds sterling, it shall charge the Client at the exchange rate (which shall be the mid-point rate as quoted in the following day’s Financial Times) in operation on the date on which the Agency makes the purchase. If the Agency is required to invoice the Client other than in pounds sterling, the amounts shall be calculated in pounds sterling, and shall be charged to the Client based on the exchange-rate in operation on the date on which the Agency issues the invoice (which shall be the mid-point rate as quoted in the following day’s Financial Times), unless set out otherwise in any Scope of Work.

 

7.Expenses and Third Party Costs

 

7.1Any Expenses incurred and not set out in a Scope of Work will be agreed in advance.

 

7.2The Agency enters into contracts with third party suppliers in respect of Services in accordance with such suppliers’ standard or individual conditions and contracts (“Third Party Contracts”).

 

7.3Provided that the Agency has notified the Client of any significant restrictions or contract terms contained in such Third Party Contracts:

(a)the Client hereby acknowledges that its right to use or otherwise benefit from any Services or deliverables acquired under such Third Party Contracts shall be as set out in such Third Party Contracts;

(b)any charges or liabilities (to the extent caused by an act or omission of the Client or its Affiliates or any third party acting for or on its behalf) for which the Agency is liable under such Third Party Contracts (including cancellation payments) shall be the responsibility of the Client; and

(c)the Client hereby indemnifies, and keeps indemnified, the Agency against any losses, costs and expenses caused by any act or omission of the Client which puts the Agency in breach of any such Third Party Contracts. 

 

7.4The Agency shall provide the Client with a copy of any relevant Third Party Contract if requested to do so and if authorised by the relevant third party. 

7.5The Agency shall invoice the Client in respect of all third party costs incurred by the Agency on behalf of the Client in performing the Services (collectively defined as “Third Party Costs”), subject to the Client approving all such costs in advance in writing, including:

(a)third party production work required to produce the Deliverables including illustrations, film production, artwork, photography, model fees, recordings, the services of performers, animation, print and post production work and other content; and

(b)all costs incurred in taking legal or other advice or searches and enquiries, as agreed between the parties from time to time.

7.6If any Third Party Costs require payment in advance or sooner than the payment terms set out in clause 6.4, the Agency will notify the Client as soon as reasonably practicable in advance and the Client shall pay such costs within the period set out in the relevant invoice.

 

8.Approvals

 

8.1For the purposes of this Agreement, any reference to “written approval” shall include letter, fax, e-mail, purchase order, or the Client’s signature (including electronic or digital signature) on a particular document that has been submitted for approval.

 

8.2The Agency will seek the Client’s written approval for all draft press releases, proofs, copy, layouts, photographs, artwork, articles or announcements, or for any other material that it is to make public on the Client’s behalf, and will not subsequently seek to publish any of the above until it has obtained such written approval.

 

8.3The Agency may rely on written approval from any employee of the Client, unless the Client has previously provided written notice in the manner stipulated by clause 18 that a particular employee is not authorised to give valid written approval.

 

8.4The Client’s written approval of media schedules and estimates will be the Agency’s authority to make reservations and contracts for space, time and other facilities under Third Party Contracts.

 

8.5The Agency will promptly advise the Client of any changes in the estimated cost of media or any other material changes to anything previously approved by the Client.

 

8.6The Client will not give written approval for anything which it knows, or ought reasonably to know, contains inaccurate, unlawful or defamatory material. The Client undertakes to notify the Agency immediately if it believes that any statement in a document submitted by the Agency to the Client for written approval is misleading or could give rise to any claim or action against the Agency, whether for defamation, infringement of any right, or otherwise.

 

8.7The Client hereby indemnifies, and keeps indemnified, the Agency against any costs, any claims or proceedings, or any demands, arising out of or in connection with anything approved in writing by the Client.

 

8.8In the event of any delay or failure of the Client giving approvals (or disapprovals) requested under or in connection with this Agreement, the Agency will not be liable for any resulting delays or adverse impact caused to the delivery of any Services. 

 

9.Intellectual property rights

 

9.1The Agency acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services) shall remain vested in the Client or its licensors. The Client hereby grants to the Agency a non-exclusive licence during the Term to use the Client Materials solely for the purposes of providing the Services.

 

9.2Subject to the remaining provisions of this clause and in the case of any Platform, in accordance with the Schedule relating to Subscription Services, and subject to the Agency receiving payment of all Fees attributable to the Created Materials the Agency hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in the Created Materials which are capable of being assigned together with the right to sue for past infringement of the Intellectual Property Rights in the Created Materials.

 

9.3The Client acknowledges that all Intellectual Property Rights in the Agency Proprietary Materials shall be owned by and remain the property of and vested in the Agency. Subject to the Agency receiving payment of all Fees attributable to the Agency Proprietary Materials licensed under this clause 9, the Agency hereby grants to the Client a licence to use such Agency Proprietary Materials as are included in the final approved Deliverables,  and in the case of any Platform, in accordance with the Schedule relating to Subscription Services, for the period of time and for the purposes set out in a Scope of Work.

 

9.4Prior to delivery of any materials to be provided by the Agency under a Scope of Work, the Agency shall obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Materials for the purposes set out in such Scope of Work.  The Agency shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Materials, and the Client hereby indemnifies, and keeps indemnified, the Agency against any losses, costs and expenses suffered by the Agency as a result of the Client or its Affiliates breaching any such restrictions.

 

9.5The Agency agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the Deliverables, and shall not do or fail to do any act which would or might prejudice the Client’s rights under this clause 9.

 

9.6Notwithstanding any of the above and save as otherwise expressly provided for in a Scope of Work, the Agency shall:

 

(a)be able during and after the Term to use any Deliverables which have been broadcast, published, distributed or otherwise made available to the public, and the Client’s name and logo for the purposes of promoting its work and its business including on the Agency’s website, in credentials pitches and in its showreel.  Any other use by the Agency shall be subject to the Client’s prior approval; and

(b)retain all know how obtained in connection with the Services.

 

9.7During the Term, if the Agency is asked to take part in a competitive pitch or other similar process for the Client, then notwithstanding any of the previous provisions of this clause 9, the Agency shall retain ownership of all Intellectual Property Rights in any Materials forming part of the pitch process, save to the extent that the Agency is successful in such pitch and the parties agree that such Materials will be used in accordance with Services to be provided under a Scope of Work.  

 

9.8For the avoidance of doubt, the Agency shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client and/or its Associates.

 

9.9Any Client Data provided under this Agreement or any applicable SOW will form part of an aggregate that Agency and/or Agency’s Affiliates use in supplying the Service to the Client and will use for the provision of services to other clients. The Client confirms and agrees that Agency and its Affiliates are permitted to aggregate the Client Data into their databases provided that:

(a)Agency will procure that its directors, officer, employees and agents shall, at all times (both during and after the term of this Agreement), keep the Client Data confidential from their other clients;

(b)Client Data which is added to any aggregated database will only be used in supplying services to clients in an aggregated and anonymised manner; and

(c)Agency will ensure that no other client will be able to determine the Client’s individual performance from the information held in the aggregated database.

10.Confidentiality

 

10.1Each of the parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).

 

10.2Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential.

 

10.3Confidential Information shall exclude information which:

 

(a)at the time of receipt by the recipient is in the public domain;

(b)subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;

(c)is lawfully received by the recipient from a third party on an unrestricted basis; and/or

(d)is already known to the recipient before receipt hereunder.

 

10.4Each of the parties undertake to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure. Neither party shall at any time, whether during the Term or at any time thereafter, without the prior written approval of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement. 

 

10.5Each of the parties undertakes to disclose the other party’s Confidential Information only to those of its Associates to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement.

 

10.6The Client acknowledges that nothing in this Agreement shall affect the Agency’s right to use as it sees fit any general intelligence gained by the Agency in the course of its appointment.

 

10.7Neither party shall be in breach of this clause 10 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that, to the extent practicable and permissible, the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.

 

10.8The terms of and obligations imposed by this clause 10 shall survive the termination of this Agreement for any reason.

 

11.SUBSCRIPTION SERVICES AND MEDIA BUYING TERMS

 

11.1Schedule 1 of this Agreement shall apply and Client shall comply with Schedule 1 when the Services include any Subscription Services.

11.2Schedule 4 of this Agreement shall apply and Client shall comply with Schedule 4  when the Services include any Media Buying.

12.Limitation of liability

 

12.1Subject to clause 12.2, the Agency’s maximum aggregate liability under or in connection with this Agreement (including all Scopes of Work):

(a)whether in contract, tort (including negligence) or otherwise, but excluding under any indemnity, shall in no circumstances exceed the lower of (a) £1,000,000; and (b) Fees paid or payable by the Client to the Agency in the 12 month period preceding any event giving rise to liability; and

(b)in the case of any indemnity contained in this Agreement, shall in no circumstances exceed £1,000,000.

 

12.2Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.

 

12.3Subject to clause 12.2, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement (and including for the avoidance of doubt any indemnity contained in this Agreement) for:

(a)any loss (whether direct, indirect or consequential) of profits, sales or business, agreements or contracts, anticipated savings or goodwill;

(b)loss of use or corruption of software, data or information; or

(c)any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses

 

12.4Where one party (“Indemnifying Party“) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under this Agreement, the Indemnified Party shall comply with the following process in the event that a third party claim (“Claim”) arises:

(a)the Indemnified Party must promptly notify the Indemnifying Party in writing of such Claim;

(b)the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party;

(c)the Indemnified Party must give the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such Claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence of the Claim;

(d)the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such Claim as the Indemnifying Party may reasonably require at the Indemnifying Party’s cost and expense; and

(e)if within ninety (90) days after the Indemnifying Party’s receipt of notice of any such claim, the Indemnifying Party fails to take action to defend or settle such claim, the Indemnified Party may at the Indemnifying Party’s expense undertake the defence, compromise or settlement of the Claim as it sees fit. 

 

12.5Save as expressly set out in this agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

 

13.Data protection

 

Each party shall comply with Data Privacy Laws with regards to any processing of Personal Data under this Agreement and shall comply with the terms of the Data Processing Schedule at Schedule 2 of this Agreement.

14. Anti-bribery & Anti-Slavery

14.1Both parties:

(a)shall comply with the Bribery Act 2010 and any guidance issued by any governmental department relating to such legislation (“Bribery Act”);

(b)shall not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the Bribery Act if such activity, practice or conduct had been carried out in the UK;

(c)shall maintain in place throughout the Term (and enforce where appropriate) its own policies and procedures to ensure compliance with the Bribery Act;

(d)shall promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement; and

(e)shall ensure that it imposes written terms on any sub-contractor connected with the matters arising under this Agreement which are at least equivalent to those set out in in this clause.

14.2Each party shall comply, and procure that all its employees, contractors, agents and representatives comply, with Anti-Slavery Law, as relevant to the provision and receipt of the Services and the activities of the parties under this Agreement. Each party shall use reasonable endeavours on a continuing basis to ensure that Slavery is not taking place in its supply chains. For the purpose of this clause: “Anti-Slavery Law” means all applicable laws relating to the prevention, prohibition and/or outlawing of Slavery in the Territory or any other jurisdiction relevant to the performance of this Agreement, including the Modern Slavery Act 2015; and “Slavery” means all forms of modern slavery, human trafficking, forced labour, child labour, involuntary servitude and debt bondage.

15.Termination

 

15.1Without prejudice to any other rights or remedies which either party may have, either party may terminate this Agreement for convenience on three months’ written notice provided that, with respect to (i) the Subscription Services, such notice to terminate cannot expire until the expiry of the Initial Licence Term or, if applicable, the relevant Renewal Period; and (ii) any ongoing Services to be performed or performed under a current Scope of Work, such notice cannot expire until the expiry of the Scope of Work.

 

15.2Without prejudice to any other rights or remedies which either party may have, either party may terminate this Agreement immediately on giving notice to the other if the other party:

(a)fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;

(b)commits a material breach of this Agreement if such breach is not capable of remedy;

(c)suspends (or threatens to suspend) payment of its debts or the continuation of all or a substantial part of its business, is unable or deemed unable to pay its debts as they fall due, begins negotiations with any class of its creditors with a view to rescheduling any of its debts, is the subject of a court order for winding-up, has a receiver appointed over its assets (or entitles any person to appoint one), or enters into any compromise or arrangement with its creditors or is the subject of a notice, resolution or order for or in connection with its winding-up (other than for the sole purpose of a solvent amalgamation or solvent reconstruction);

(d)any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to those outlined in clause 15.2(c); or

(e)if there is a change of control of the Client (where “control” has the meaning given to it in s1124 of the Corporation Tax Act 2010), and the person gaining control of the Client is, or controls, a direct competitor of Agency.

 

15.3The termination or expiry of any Scope of Work shall not affect the continuation of any other Scope of Work or this Agreement.

 

15.4On termination (or expiry) of this Agreement, any Retainer Scope of Work, howsoever arising,  and each Project Scope of Work then in force at the date of such termination shall continue in full force and effect for the remainder of the term of such Scope of Work, unless terminated earlier in accordance with the terms of such Scope of Work.

 

15.5On termination of this Agreement or any Scope of Work for any reason:

 

(a)the Client shall immediately pay the Agency for all the Agency's outstanding unpaid invoices, and, in respect of Services supplied, Expenses and Third Party Costs incurred but not yet invoiced, or any Cancellation Charge, the Agency may submit invoices, which shall be payable immediately on receipt;

(b)each party shall return all the other party’s material equipment and other property;

(c)the accrued rights and liabilities of the parties as at termination shall not be affected and

(d)all licences granted under this agreement shall immediately terminate.

 

15.6Provisions of this Agreement which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination shall remain in full force and effect notwithstanding termination of this Agreement. Notwithstanding the generality of the foregoing, clauses 9, 10, 12, 15, 17 and 20 shall survive and continue to have full force and effect following termination.

16.Force majeure

 

16.1A party shall not be in breach of this Agreement, or be liable for any failure or delay in performance of any obligations under this Agreement (except in the case of a failure to pay), where such failure or delay arises or is attributable to acts, events, omissions or accidents beyond its reasonable control (”Force Majeure”), including but not limited to fire, accidental damage, natural disaster, epidemic, pandemic, war, terrorist attack, riots, failure of machinery, computers or vehicles, industrial action, non-performance by suppliers or subcontractors (excluding companies in the same group as the party seeking to rely on this clause), or interruption or failure of utility service.

16.2A party subject to Force Majeure shall not be in breach of this Agreement provided it could not have avoided the effect of Force Majeure by taking precautions which it ought reasonably to have taken, and provided it promptly notifies the other party of the existence and nature of the Force Majeure, and uses reasonable endeavours to mitigate the effect of Force Majeure.

 

16.3If Force Majeure continues for more than 30 consecutive days, either party may terminate this Agreement immediately by giving written notice to the other party. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring before such termination.

17.Notices

17.1A notice (other than a notice in any legal proceedings) given by one party to the other under this Agreement will be properly served if it is in English and sent to the appropriate address noted below.

 

17.2The following table sets out methods by which a notice may be sent and, if sent by that method, the corresponding deemed delivery date and time:

Delivery by hand - On signature of a delivery receipt.

Pre-paid first class recorded delivery post or other next working day delivery service providing proof of postage. - 9.00 am on the second Business Day after posting.

Pre-paid airmail providing proof of postage. - 9.00 am on the fifth Business Day after posting

Email  sent to [insert email address] - at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours (9am – 5pm Monday to  Friday) resume

17.3For the purpose of this clause and calculating deemed receipt all references to time are to local time in the place of deemed receipt.

 

17.4The addresses for service of a notice are as follows:

 

            Agency:

Address: the address set out at the beginning of this Agreement

For the attention of:Client Relationship Manager

With a copy to:

            Capture Marketing Ltd

c/o Next 15 Group plc,

60 Great Portland Street, London, W1W 7RT

For the attention of: the UK General Counsel

Client:

 

Address: the address set out on the relevant Scope of Work

        

17.5This clause 17 does not apply to the services of any proceedings or other documentation in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

18.Assignment, Subcontracting & TUPE

 

18.1The Agency shall be entitled to sub-contract its performance of the Services provided that any sub-contracting shall not relieve the Agency from its obligations to the Client under this Agreement

 

18.2Subject to clause 18.1, neither party may assign, transfer or charge or otherwise dispose of this Agreement or any of its rights or obligations arising hereunder without the prior written approval of the other party. The Agency is, however, entitled to perform any Services under this Agreement through any company which is its holding company or the subsidiary of such holding company, and any act or omission of such company shall be deemed to be the act or omission of the Agency. For the purposes of this clause, “holding company” and “subsidiary” shall be construed in accordance with the definition in section 1159 of the Companies Act 2006.

 

18.3The Client will indemnify Agency against all Losses which Agency may incur on account of or arising from:

(a)any claim by any persons who allege their employment transfers to Agency for a reason related to the commencement of this Agreement by the operation of TUPE and whose employment is terminated by Agency within the later of three months of the Commencement Date and Agency being made aware that such an allegation is being made;

(b)any claim by any person in respect of any fact or matter to the extent that such claim concerns or arises from employment before the Commencement Date; 

(c)any claim by any person in respect of which Agency incurs or is alleged to incur responsibility or liability as a result of the operation of TUPE applying to the commencement of this Agreement; and

(d)any claim made against or liability otherwise incurred by Agency arising from or connected with an alleged failure (whether by Agency or not) to comply with regulations 13 and 14 of TUPE on entering into this Agreement.

 

19.Miscellaneous

19.1No variation of this Agreement shall be valid unless it is in writing and signed by a duly authorised officer of each of the parties.

19.2A party’s failure to exercise, or delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of such, or preclude any further exercise of that or any other right or remedy.

 

19.3If any provision or part-provision of this Agreement is found to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions and part-provisions of the Agreement shall not be affected.

 

19.4A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of it.

 

19.5If any dispute arises under or in connection with this Agreement, the parties will first attempt in good faith to settle such through negotiation rather than through legal proceedings. If the dispute is not resolved within 21 days of either party’s attempt to instigate such negotiations, it may be settled by the courts of competent jurisdiction under this Agreement.

 

19.6Nothing in this Agreement shall restrict or exclude the right of either party to seek injunctive relief against the other party. 

 

19.7This Agreement, and any documents annexed to it and signed or initialled by the parties, constitutes the entire agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject-matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance, undertaking or warranty, whether negligently or innocently made (“Representation”), of any person (whether a party to this Agreement or not), other than as expressly set out in this Agreement. Each party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract. Nothing in this clause 20.7 shall limit or exclude any liability for fraud.

 

19.8This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.

 

19.9Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.

 

20.Governing Law and Jurisdiction

 

20.1This Agreement, and any dispute or claim arising out of or in connection with it or its subject-matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.

 

20.2The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject-matter or formation (including non-contractual disputes or claims).

 

1.SCHEDULE 1

SUBSCRIPTION SERVICES TERMS

 

The terms of this Schedule 1 shall apply and be binding on the parties on in relation to any Subscription Services supplied under this Agreement.

 

1.1Subject to the Client’s full compliance with the terms of this Agreement, the Agency hereby grants to the Client a non-exclusive, non-transferable, revocable right to permit the Authorised Users to Use the Platform and the Platform Content during the Licence Term.

1.2Except as expressly agreed in the Scope of Work, the rights provided under this Schedule 1 are granted to the Client only, without the right to grant sub-licences, and shall not be considered granted to any subsidiary or holding company of the Client.

1.3The Agency reserves the right to implement and maintain technical measures to control access to and detect unauthorised use of the Subscription Service at any time, provided that such measures shall not adversely affect the Client’s and Authorised Users’ Use of the Subscription Service in accordance with this Agreement.

 

1.4The Client shall procure that each Authorised User shall select a secure password for their use of the Platform and that each Authorised User shall keep their password secret and treat it as the Confidential Information of the Agency. The Client will procure that each Authorised User changes their password on at least a monthly basis

 

1.5The Client shall not access, store, distribute or transmit any Malware during the course of its use of the Platform.

 

1.6The Client shall ensure that each Authorised User enters into and complies with the terms of the Platform’s end user licence agreement in force from time to time.

 

1.7The Client shall not, and shall procure that each Authorised User shall not, during the course of its use of the Platform, access, store, distribute or transmit any Malware.

 

1.8The Client shall not, and shall procure that each Authorised User shall not, during the course of its Use of the Platform, access, store, distribute or transmit any material:

 

(a)that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, discriminatory or racially or ethnically offensive;

(b)that facilitates illegal activity;

(c)that depicts sexually explicit images;

(d)that promotes unlawful violence; or

(e)in a manner that is otherwise illegal or causes damage or injury to any person or property, and the Agency reserves the right, without liability or prejudice to its other rights, to immediately suspend or terminate the Client's and/or any or all of the Authorised Users’ right to receive the Services if the Client breaches the provisions of clauses 1.5, 1.6 and 1.7 of this Schedule.

                    

1.9As a particular condition of Use of the Subscription Services, the Client shall not and shall not attempt to (and shall procure that each Authorised User shall not and shall not attempt to):

(a)except to the extent expressly permitted by this Agreement or any applicable law which is incapable of exclusion by agreement between the parties (i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform (including all or any portion of the software that operates the Platform) and/or the Platform Content in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software that operates the Platform, including its associated configurations, file formats and data structures; or

(b)during the Licence Term and for 12 months thereafter, access all or any part of the Platform, any documentation and/or Platform Content in order to build or assist any third party to build a product or service which competes with the Subscription Services or any software program offering similar functionality to the fundamental functional and technical aspects of the Subscription Service; or

(c)resell access to the Platform or the Platform Content, or use the Platform and/or Platform Content in any provision of services to third parties by way of an outsourced service, service bureau or similar arrangement; or

(d)license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or Platform Content available to any third party except the Authorised Users, or

(e)obtain, or assist third parties in obtaining, access to the Platform and/or Platform Content, other than to Authorised Users.

1.10The Client undertakes to:

(a)ensure that the Authorised Users use the Platform and the Platform Content in accordance with the terms and conditions of this Schedule and Agreement and any other reasonable instructions given by the Agency to the Client, and the Client shall be responsible for any Authorised User’s breach of this Agreement and/or any applicable end user licence agreement;

(b)ensure that its network and systems comply with the relevant specifications provided by the Agency from time to time; and

(c)be solely responsible for procuring and maintaining its network connections and telecommunications links, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links.

1.11Notwithstanding any other provision of this Agreement, in the event that the Client is permitted to make available, the Platform to the Client’s clients, the Client shall ensure that it enters into a binding written agreement with such third party with respect to the Platform materially equivalent to the terms of this Agreement.

 

1.12The Client shall, and shall procure that each relevant Authorised Client Entity shall, use all reasonable endeavours to prevent any unauthorised access to, or Use of, the Platform and/or the Platform Content and, in the event of any such unauthorised access or use, promptly notify Agency.

 

1.13The Agency shall use reasonable endeavours to make the Subscription Service available for Use in accordance with this Agreement, subject to:

 

(a)Client-caused outages or disruptions;

(b)Disruptions due to Force Majeure;

(c)planned and/or unscheduled maintenance undertaken outside of Normal Business Hours; and

(d)unscheduled maintenance undertaken during Normal Business House, provided that Agency has used reasonable endeavours to give the Client reasonable notice in advance of such unscheduled maintenance,

 

and the Client’s sole and exclusive remedy in respect of a breach of this paragraph 1.13 shall be to receive the Support Services.

 

1.14The Agency:

 

(a)does not warrant that the Client's Use of the Subscription Service will be uninterrupted or error-free; or that the Subscription Service and/or Platform Content and/or any information and/or results obtained through the Subscription Service will meet the Client's requirements; and

(b)is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities outside of its reasonable ability to control, including the Internet, and the Client acknowledges that the Subscription Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

 

1.15The Client acknowledges and agrees that, notwithstanding any other provision of this Agreement, it is inherent to the nature of the Subscription Services that the particular range of Platform Content available to the Client during the Licence Term may vary from time to time as the Subscription Services evolves and different data sources become or cease to be available. The availability or not of a particular range of Platform Content will not be a breach of this Agreement by the Agency.

 

1.16The Client acknowledges that the Platform and/or the Platform Content may enable it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Agency has no control over such third party products and services and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party.

 

1.17Save for Clause 9.9, the Agency will treat any Client Data as the Confidential Information of the Client, and will not use or exploit it for its own commercial purposes. However, the Client acknowledges and agrees that the Subscription Service is not a zero-knowledge service, that the Agency’s security measures may not be impregnable, and that the Subscription Service is not designed to be used as a repository of highly confidential materials. The Client therefore agrees that it shall not, and shall procure that Authorised Users shall not, upload to the Subscription Service any Client Data the disclosure of which to any third party would be likely to cause significant harm to the business of the Client, its Affiliates or its or their respective clients or suppliers.

 

1.18While the Agency may, in the course of its own internal processes, incidentally take backups of the Client Data, the Client acknowledges and agrees that the Subscription Service is not a backup or disaster recovery service, and is not designed to hold the only copy of any Client Data, and therefore the Client is solely responsible for ensuring that it has access to a backup copy of the Client Data in the event of any unavailability of the Platform.

 

1.19The Client acknowledges and agrees that, as between the Agency and the Client, the Agency and/or its licensors own all intellectual property rights in the Subscription Service, including the Platform and the Platform Content.  Except as expressly stated herein, this agreement does not grant the Client any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Platform Content.

 

1.20This Agreement shall not prevent the Agency from entering into similar agreements with third parties, or from independently developing, using, selling or licensing the Platform Content, or products and/or services which are similar to those provided under this Agreement.

1.21The Agency reserves the right, without liability or prejudice to its other rights, to immediately suspend or terminate the Client’s and/or any or all of the Authorised Users’ right to Use the Subscription Service if the Client or any Authorised User breaches any of the provisions of this Agreement.

 

1.22Subject to paragraph 1.14 of this Schedule, the Client hereby defends, indemnifies and holds harmless the Agency against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:

(a)The use of the Subscription Service (including the Platform) by the Client and the Authorised Users other than in accordance with this Agreement; and

(b)The use of the Client Data by the Agency in accordance with this Agreement and the use of the Client Data by the Client and Authorised Users.

1.23Subject to paragraph 1.24 of this Schedule, the Agency hereby defends the Client against any third party claim that the Platform or the Platform Content (excluding any Client Materials) infringe any copyright, trade mark, database right or right of confidentiality in the Territory (each, a “Third Party IP Claim”), and indemnifies the Client for any amounts awarded against the Client in judgment or settlement of such Third Party IP Claims.

 

1.24Subject to clause 12, in no event shall the Agency, its employees, agents and sub-contractors be liable under or in connection with this Agreement to the extent that the Third Party IP Claim arises from or in connection with:

(a)a modification of the Subscription Services or Platform Content by anyone other than the Agency; or

(b)the Client's or any Authorised User’s use of the Subscription Services or Platform Content in a manner contrary to the instructions given to the Client by the Agency and/or in breach of this Agreement and/or the end user licence agreement; or

(c)the combination of any aspect of the Subscription Service with some other product or service, if the alleged infringement would otherwise have been avoided; or

(d)the Client's or any Authorised User’s use of the Subscription Services and/or Platform Content after notice of the alleged or actual infringement from the Agency or any appropriate authority.

 

1.25In the event of a Third Party IP Claim, the Agency shall use commercially reasonable efforts to (at its option): (i) obtain for the Client a right to continue to use the Platform and the Platform Content; (ii) modify the Platform and/or the Platform Content so as to avoid the alleged infringement; or (iii) if it is not commercially reasonable or practicable to do either of those things, terminate this Agreement and give the Client a pro rata refund of any Fees paid in advance for any unexpired period of the Licence Term following such termination.  Subject to clause 12, the indemnity set out in paragraph 1.23 above and this paragraph 1.25 set out the Client’s sole and exclusive remedy in respect of any Third Party IP Claim.

SCHEDULE 2

DATA PROCESSING SCHEDULE

 

1.1       For the purpose of this Schedule, “Data Privacy Laws” means all applicable laws and regulations governing the handling of personal data, including the following as amended, extended, re-enacted or replaced from time to time:

(a)        the UK Data Protection Act 2018 and the UK GDPR (as defined in the Data Protection Act 2018) and the Privacy and Electronic Communications (EC Directive) Regulations 2003;

(b)        EC Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector;

(c)        the Swiss Federal Act on Data Protection 1992 to be replaced by the Swiss Federal Act on Data Protection 2020 (when in force) (“Swiss FADP”); and

(d)        all local laws or regulations implementing or supplementing the legislation referred to in (b) above;

1.2       Word and phrases which have defined meanings in the Data Privacy Laws will have the same meanings when used in this clause.

1.3       Each of the Agency and the Client will, in performing this agreement, comply with the Data Privacy Laws applicable to it. 

1.4       In performing this Agreement, the Agency will in certain circumstances process on behalf of the Client as processor certain personal data of which the Client and/or one or more of the Client's Affiliates is a controller (the "Processor Data").

1.5       Where the Agency processes the Processor Data as processor, it will:

(a)        process the Processor Data only on the written instructions of the Client (and the Client hereby instructs the Agency to process such personal data as is reasonably necessary to perform this Agreement);

(b)        take the measures described in any security policy, or otherwise will take appropriate technical and organisational measures, to secure the Processor Data from accidental or unauthorised loss, destruction or use;

(c)        ensure that its staff who process the Processor Data have committed themselves to confidentiality;

(d)        ensure that any sub-processor engaged to process the Processor Data is engaged in compliance with articles 28(2) and 28(4) UK GDPR;

(e)        assist the Client, at the Client's cost, through appropriate technical and organisational measures (insofar as possible) to respond to a request by a data subject to exercise his or her rights in respect of the Processor Data;

(f)         assist the Client, at the Client's cost, in ensuring compliance with articles 32 to 36 GDPR in respect of Processor Data, taking into account the nature of the processing and the information available to the Agency;

(g)        make available to the Client all information necessary to demonstrate the Agency's own compliance with this clause, and allow for and contribute to audits, including inspections, of the Agency on reasonable notice and during business hours, not more frequently than once per calendar year (unless required by the ICO), conducted by the Client or another auditor mandated by the Client, subject always to the confidentiality provisions of this agreement (and where the auditor is not the Client, the Client shall be responsible for the auditor's compliance); and

(i)         upon expiry of this agreement or termination of this agreement for any reason, delete or return such Processor Data to the Client (as the Client may elect), unless the applicable laws of the United Kingdom or the European Union or a member state thereof (as the case may be) require its retention.

1.6       Subject to the Agency's compliance with clause 1.5(d), the Client provides a general authorisation to the Agency to engage sub-processors.

1.7       The Agency may also, in the course of or in connection with this Agreement, process certain personal data as a controller rather than as the Client’s processor. Where that is the case:

(a)        that personal data, when so processed by the Agency, is not Processor Data and so clause 1.5 does not apply to it; and

(b)        Client is not responsible for the Agency’s processing of that personal data, it being for the Agency to ensure that it does so in accordance with the Data Privacy Laws.

1.8       Unless otherwise set out in a Scope of Work or as agreed in writing between the parties, the processing details of any personal data covered by this Agreement is set out below:

Subject matter of processing:

The provision by the Supplier of [insert subject matter: e.g. type of services to be provided by the Client], as set out in the Agreement.

Duration of the processing:

[Insert expected duration of processing, e.g. the period for which the Supplier will be providing the Services to the Client under the Agreement.]

Nature and purpose of the processing:

[Insert nature and description of processing, e.g. to optimise and enhance commerce campaigns in order to further the Client's business objectives.]

Categories of data subject:

[Insert description, e.g. the Client’s personnel/Client’s customers.]

Type of personal data:

[Insert description, e.g. the Client’s customer email addresses.]

Location of processing:

[Insert location of processing, e.g. the United Kingdom]

SCHEDULE 3

Scope  of Work - As outlined and discussed.

 

SCHEDULE 4

MEDIA BUYING TERMS AND CONDITIONS

1.    The Services

1.1.    The Agency shall provide media buying services to the Client in accordance with the Agreement and good industry practice.
1.2.    Unless set out otherwise in the Agreement, the Agency shall not in any way be responsible for the preparation, content, production or supply of copy for any of the Client’s advertising.
1.3.    The Agency acts in all its contracts as a principal at law.
1.4.    The Agency shall, after obtaining the Client’s general written approval of its campaign plans, submit to the Client for its specific written approval:
1.4.1.    media schedules for time, space and other facilities; and
1.4.2.    estimates or quotations of the cost of the various items of advertising and other services covered by this Agreement together with terms of payment.
1.5.    The Client’s written approval of media schedules and estimates will be the Agency’s authority to make reservations and contracts for space, time and other facilities under the terms and conditions required by media or suppliers. 
1.6.    The Client acknowledges that the Agency shall not be obliged to make reservations and contracts, unless and to the extent that the Client has provided the Agency with a valid PO number,
1.7.    The Agency will advise the Client promptly of any changes in the estimated cost of media or any changes in plans, schedules or work in progress previously approved in writing by the Client.

2.    Fees and Payment
2.1.    Any additional Fees for additional Services, including reporting, optimisation and campaign management, shall be as set out in the Fees section of the applicable Project SOW, or otherwise as agreed in writing between the parties.
2.2.    The Agency will invoice the Client n accordance with [the terms of this Agreement/the applicable SOW] and the Client will pay the invoice within 30 days of the date of invoice.
2.3.    In the event that the Agency incurs any form of charges from its suppliers due to late payment by the Client, the Client shall immediately reimburse to the Agency the amount of such charge, together with any accrued interest charged by the supplier in respect of the overdue amount. 
2.4.    If late copy charges or late payment charges are levied by a media owner against the Agency the Client shall reimburse the amount of such late charges to the Agency.

3.    Cancellation
3.1.    In the event that the Client amends or cancels the scope of any media booking (as agreed between the parties in writing), (a) the Client shall reimburse the Agency for any charges or expenses to which the Agency is committed or that arise as a result of such cancellation or amendment, including but not limited to any cancellation charges imposed by a publisher; and (b) the Agency may at its discretion charge the Client a fee in lieu of any commission that would otherwise have been received by the Agency.

4.    Agency’s Responsibility
4.1.    The Agency shall use reasonable care and skill in the selection and appointment of media supplier and the agreement of the terms and conditions of such appointment.  
4.2.    The Client confirms that it is expressly understood and agreed that in planning and buying the Client's media activity, the Agency shall use its reasonable endeavours to ensure the accuracy of all estimated and target figures relating to:
4.2.1.    the number, proportion or type of people likely to be exposed to the advertising;
4.2.2.    the number of exposures each person is likely to receive; and
4.2.3.    the cost of achieving these exposures.
4.3.    Since these are matters which are ultimately beyond the Agency’s control, no warranties can be given by the Agency as to the accuracy of such estimates/targets or as to the figures actually occurring and no liability shall attach to the Agency in respect of any losses suffered by the Client or by any third party by reason of the Client’s reliance on such estimates/targets.
4.4.    For the avoidance of doubt the Agency is not responsible for copy content or late delivery of the advertising provided by the Client or a third party creative agency or for advising the Client about compliance issues.

5.    Compliance
5.1.    Both parties shall comply with applicable law and advertising regulation.
5.2.    The Client shall inform the Agency without delay if the Client discovers that any advertising is false or misleading or in any way contrary to law or to any applicable code or advertising regulation.
Each party shall ensure that any mailing list or customer database supplied to the other party shall comply with the requirements of all applicable legislation in force from time to time and the provisions of this Agreement.

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