LEGAL

Terms & Conditions

Last Updated 27th June 2023

1. Interpretation

1.1 Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or public holiday) when UK clearing banks in the city of London are open for general business;

Campaign: the competition, advertising campaign or other project being undertaken by the Client and pursuant to which the Supplier is supplying the Services;

Charges: the charges payable by the Client for the provision of the Services in accordance with clause 8;

Client: the person or firm who purchases Services from the Supplier;

Commencement Date: has the meaning set out in clause 2.1;

Conditions: these terms and conditions as amended from time to time in accordance with clause 18.7;

Contract: the contract between the Supplier and the Client for the supply of Services in accordance with these Conditions;

Data: the data provided to the Client by the Supplier pursuant to the Data Services;

Data Services: the provision of data in electronic format by the Supplier to the Client as set out in the Order Confirmation;

Deliverables: the deliverables set out in the Design Proposal produced by the Supplier for the Client;

Design Proposal: the draft marketing content provided by the Supplier to the Client in connection with the Design Services;

Design Services: the design services to be provided by the Supplier in connection with the Marketing Services;

DPA: the Data Protection Act 2018;

Extended Licence Term: has the meaning given in clause 10.1;

Initial Licence Term: has the meaning given in clause 10.1;

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Licence: has the meaning given in clause 10.1;

Marketing Services: means the marketing services provided by the Supplier to the Client as set out in the Order Confirmation

Order: the Client’s written acceptance of a Quotation;

Quotation: the Supplier’s quotation for the provision of the Services;

Recipients: the recipients of the Client Advert and/or the Approved Advert pursuant to the Marketing Services;

Services: the services, constituting the Data Services and/or the Marketing Services, supplied by the Supplier to the Client as set out in the Order Confirmation;

Supplier: Direct Education Limited (trading as Buzz Education) registered in England and Wales with company number 03481319 whose registered address is 13 St Georges St, Chorley, Lancashire, PR7 2AA.

1.2 Construction. In these Conditions, the following rules apply:

(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes emails.

2. Basis of contract

2.1 The Order constitutes an offer by the Client to purchase the Services in accordance with these Conditions and the Order shall only be deemed to be accepted by the Supplier when the Supplier issues written acceptance of the Order (“Order Confirmation“) at which point and on which date the Contract shall come into existence (“Commencement Date“).

2.2 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier whether verbally or in writing which is not set out in the Contract.

2.3 Any samples, drawings, testimonials, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues, brochures and/or website are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5 Any Quotation:

(a) shall not constitute an offer;
(b) is only valid for a period of 30 days from its date of issue; and
(c) is subject to amendment or revision by the Supplier.

3. Data services

3.1 The Client acknowledges and accepts that the Data supplied by the Supplier is guaranteed to accuracy levels of 99% in relation to postal details, 97% in relation to electronic details (including email addresses) and 90% in relation to Named Contacts on the date that the Data is downloaded by the Client (“Data Download Date“).

3.2 The Supplier does not warrant the accuracy of the Data at any time after the Data Download Date, and the Client acknowledges, agrees and accepts that given the nature of the Data, the information will change with the passage of time.

3.3 If any of the Data is inaccurate on the Data Download Date, the Supplier shall refund to the Client 99% of the Charges for the Data Services less an amount representing the accuracy level. By way of an example only, if the Data is 90% accurate, the Supplier shall refund 9% of the Charges for the Data Services.

3.4 Data is supplied to the Client (unless otherwise stated in writing) under licence for a 12 month period from date of purchase. The expiry date will be outlined in the Order Confirmation given to the Client. Data cannot be used beyond this 12 month period, or the Client will be deemed to have breached the licence conditions. Direct Education Ltd will endeavour, but cannot promise, to contact the Client 30 days prior to the end of their licence period.

3.5 The Client shall:

(a) not resell, disclose or make available in whole or in part the Data at any time to any third party;
(b) not copy, reduce to writing or otherwise record the Data;
(c) not use, reproduce, transform or store the Data in an externally accessible computer or electronic retrieval system;
(d) apply the same security measures and degree of care to the Data as the Client applies to its own confidential information, which the Client warrants as providing adequate protection from unauthorised disclosure, copying or use.
(e) check with their third party marketing provider that generic data can be used on their platform.
(f) ensure they mark the Data as belonging to the Supplier so that it can be removed from all third party software should they cease working with Direct Education Ltd.

3.6 The Client may disclose the Data to it’s employees, agents and other representatives (“Representatives“) who need to know the Data in connection with the Client’s marketing operations provided that:

(a) it informs its Representatives of the confidential nature of the Data prior to disclosure;
(b) it procures that its Representatives shall, in relation to any Data disclosed to them, comply with these Conditions, as if they were the Client and, if the Supplier so requests, procure that any relevant Representative enters into a confidentiality agreement with the Supplier on terms equivalent to those contained in these Conditions, and the Client shall at all times be liable for the failure of any Representative to comply with these Conditions.

3.7 The Client may also disclose the Data only to the extent required by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent that it is legally permitted to do so, it gives the Client as much notice or disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 3.7, it takes into account the reasonable request of the Client in relation to the content of such disclosure.

3.8 Direct Education Ltd will insert seeded data into the lists we supply. These addresses cannot be disclosed in order that we can protect our commercial interests. They will be used and monitored to ensure we can detect instances of data misuse.

3.9 Where data is used outside the terms of the licence outlined in the Order Confirmation, a charge of 100% of the annual licence fee will be applied. This will be due for payment within 7 days of the invoice date by the Client. Use outside of the terms of the licence could include, but is not limited to, re-use by the client beyond the licence expiry date OR allowing a third party to use the data.

4. Marketing services

4.1 Where the Supplier is providing the Marketing Services, the Client shall inform the Supplier:

(a) of whether it requires the Supplier to provide Design or Content Creation Services;
(b) to which group of Recipients it requires the Supplier to address the Marketing Services;
(c) of the requested date for completion of the Marketing Services;
(d) and provide in writing all information, documentation and other literature necessary to enable the Supplier to provide the Design Services (if applicable).

4.2 Where the Client requires the Supplier to provide the Design or Content Creation Services, provided that the Client has complied with its obligations under clause 4.1(d), the Supplier shall provide the Client with a Design or Content Proposal which must be approved by the Client in writing (such approved Design Proposal being the “Approved Advert“) prior to the Supplier providing the Marketing Services. The Client shall be responsible for ensuring that the details included in the Design Proposal are full, accurate and correct.

4.3 Where the Client does not require the Supplier to provide the Design Services or Content Creation Services, the Client shall provide the Supplier with the template email, literature, advertisement or other materials necessary (“Client Advert“) to enable the Supplier to provide the Marketing Services.

4.4 Where the client requires the Supplier to fulfil a Buzz Guaranteed Campaign, the client shall note that;

(a) Guaranteed Leads refers only to Opportunity Leads. These leads refer to the contact information of email recipients who engage with an email campaign. In this case, we shall prioritise recipients who click on the campaign first, and recipients who open the campaign second.
(b) Where we guarantee a number of Opportunity Leads, we will provide this exact number. For example, if we guarantee 250 Leads, the Client will receive contact information for 250 recipients. The Client will have the opportunity to access all Opportunity Leads, and any above the level quoted will be available for a fee.
(c) Where the client send volume is below 2,500, we will guarantee Opportunity Leads at 10% of the total send volume. This will be confirmed in the proposal and on the Order Confirmation.
(d) Opportunity leads supplied may duplicate across campaigns. If a campaign recipient engages with a campaign, they will be supplied as an Opportunity Lead regardless of whether they have engaged with previous campaigns.
(e) We do not guarantee High Intent Leads or Sales Leads.

5. Supply of services

5.1 The Supplier shall use reasonable endeavours to meet any performance dates requested by the Client, but any such dates shall be estimates only and time shall not be of the essence for fulfilment of the Services.

5.2 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.

5.3 The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.

5.4 The Supplier does not provide any advice, skill or expertise in relation to the Client’s Campaign, advertising strategy or otherwise upon which the Client it entitled to place reliance and is engaged by the Client to facilitate the delivery of the Campaign to the Recipients.

5.5 The Supplier gives no guarantee or warranty as to the success of the Campaign and shall not be liable if the Campaign and/or the Services do not achieve the results desired or anticipated by the Client.

6. Client’s obligations

6.1 Together with any other obligations of the Client detailed in these Conditions, the Client shall:

(a) ensure that the Client Advert and any information it provides to the Supplier in connection with the Campaign and / or the Services (including but not limited to any information provided under clause 4.1(d) are complete and accurate;
(b) cooperate with the Supplier in all matters relating to the Services and shall provide to the Supplier, at the Supplier’s request all such information, documentation and materials concerning the Client and the Campaign to which the Services relate as is necessary to enable the Supplier to perform the Services; and
(c) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.

6.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default“):

(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 6.2; and
(c) the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.

7. The Staff-Room service

7.1 Staff-Room is a web-based subscription email management service that allows you to upload, store, transmit, disseminate, and otherwise distribute content to and from your account (“Content”). Your use of The Service is at your own risk.

Modification of These Terms

7.2 When using Staff-Room, you agree to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time. Direct Education Ltd may, at it’s discretion, modify or revise these Terms of Service and policies at any time; by using The Service you agree to be bound by such modifications or revisions. If you do not accept and abide by this Agreement and these Terms of Service, you may not use The Service.

Use of The Service

7.3 You are responsible for your own communications and communications to and from your account with The Service, and for all Content sent to and from your account and activity that occurs under your account (even when Content is posted by others who have access to your account) and for any consequences arising therefrom.

7.4 You agree that you will use The Service in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence. You shall not, shall not agree to, and shall not authorise or encourage any third party to: (a) use the Service to upload, store, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by Direct Education Ltd (b) upload, store, transmit or otherwise distribute content that infringes upon another party’s.

7.5 intellectual property rights or other proprietary or contractual rights or obligations; (c) prevent others from using The Service; or (d) use The Service for any fraudulent or inappropriate purpose.

7.6 Violation of any of the foregoing may result in immediate termination of this Agreement and your account with Staff-Room, and may subject you to legal penalties and other legal consequences. Direct Education Ltd reserves the right, but shall have no obligation, to investigate your use of The Service in order to determine whether a violation of the Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.

Content of the Service, Ownership, and Intellectual Property Rights

7.7 Direct Education Ltd takes no responsibility for third party content (including, without limitation, any viruses, malware, or other disabling features), nor does Direct Education Ltd have any obligation to monitor such third party content. Direct Education Ltd reserves the right at all times to remove or refuse to distribute any Content on The Service, such as content which violates the terms of this Agreement. Direct Education Ltd also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process, or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam), (d) respond to user support requests, or (e) protect the rights, property, or safety of Direct Education Ltd, its users and the public. Direct Education Ltd will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement.

User Representations and Warranties

7.8 You are solely responsible for your Content and the consequences of uploading, storing, transmitting, or otherwise distributing Content to and / or from your account. Except as set forth herein, Direct Education Ltd will not use any of the Content for any purpose except to provide you with The Service.

7.9 By uploading, storing, transmitting, or otherwise distributing Content, you affirm, represent, and warrant that:

7.10 the Content does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, or libel any other person; and the Content does not contain any viruses, malware, adware, spyware, worms, or other malicious code.

7.11 Violators of any third-party rights may be subject to criminal and civil liability. Direct Education Ltd. reserves all rights and remedies against any Users who violate these Terms of Service.

Prohibited Activities

7.12 By agreeing to these Terms of Service you agree not to:

(a) Except as expressly permitted herein, use The Service for any purposes other than to access and use Staff-Room as such services are offered by Direct Education Ltd;
(b) Share a single login with multiple people. Your login may be used by only one person, but you may create separate logins for up to 2 other colleagues (additional logins are charged at our standard administration fee);
(c) Impersonate any person or entity, falsely claim an affiliation with any person or entity, or access Staff-Room accounts of others without permission, forge another persons’ digital signature or identity, misrepresent the source, identity, or content of information transmitted via Staff-Room, or perform any other similar fraudulent activity;
(d) Use Staff-Room for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection, and privacy;
(e) Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of Staff-Room or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
(f) Modify, adapt, translate, or create derivative works based upon Staff-Room or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
(g) Use data that has been purchased from any other data provider. Staff-Room permits you to use your own subscriber data, and data leased from Direct Education Ltd, but does not permit you to use any other bought in data.

Account, Payment, Refund, Upgrading and Downgrading

7.13 When you use Staff-Room, you are solely responsible for maintaining the confidentiality of your account and passwords and for restricting access to your computer and/or account, and you agree to accept responsibility for all activities that occur under your account or passwords.

7.14 You agree that the information you provide to Direct Education Ltd on registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your account is no longer secure, then you agree to immediately notify Direct Education Ltd.

7.15 The Service is billed in advance on a monthly basis, as pre agreed between you and Direct Education Ltd and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.

7.16 All clients will receive a renewal notice 40 days before their subscription ends. The subscription will roll over into a new 12 month contract at the end of the initial 12 month period. To cancel your contract before renewal, 30 days written notice must be provided. Once you have entered a new 12 month contract period, written notice must be provided and there is a 90 day termination period. You may continue to use Staff-Room during this period.

7.17 At the end of your 12 month subscription period, all surplus credits will be removed from the account, and a new batch of credits added equivalent to that in the initial Order Confirmation.

7.18 All fees are exclusive of all taxes.

8. Charges and payment

8.1 The Charges for the Services shall be as set out in the Order Confirmation.

8.2 The Supplier reserves the right to increase its Charges as a result of:

(a) any factor beyond the Supplier’s control (including but not limited to foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) the Client requesting additional Services; and
(c) the Client’s instructions changing in relation to it’s requirements in respect of the Marketing Services, which will result in an increase in the Charges.

8.3 Unless otherwise agreed in writing and signed by an authorised representative of the Supplier, the Supplier shall be entitled to invoice the Client for the Charges at any time on or after the Commencement Date.

8.4 The Client shall pay each invoice submitted by the Supplier:

(a) in respect of the Data Services, prior to the Supplier releasing the Data to the Client;
(b) in respect of the Marketing Services, prior to the Client Advert and/or Approved Advert being sent to the Recipients (unless otherwise agreed in writing);
(c) in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

8.5 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

8.6 If the Client fails to make any payment due to the Supplier under the Contract by the due date for payment:

(a) the Client shall pay interest on the overdue amount at the rate of [4]% per cent per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount; and
(b) the Supplier shall be entitled to suspend the provision of the Services until all overdue amounts are received by the Supplier in full and cleared funds.

8.7 If the Client disputes the amount payable under any invoice or wishes to query the Charges, it must do so in writing within 5 Business Days of the date of the invoice, otherwise the Client shall be deemed to have accepted the invoice and the full amount shall be payable on the due date for payment.

8.8 If the Supplier carries out work for the Client, and the Client subsequently puts a stop to their Marketing Service, the Supplier shall invoice the Client for the appropriate amount due for services supplied thus far. This amount will be at a rate the Supplier considers to be fair for the work carried out. Where the Supplier has not carried out any work related to Content Creation or Design Services, the Supplier reserves the right to charge an administration fee for any work done in this regard. The current standard administration fee is £125. Where a client has received an Order Confirmation for a discounted package, and stops the service midway through, the Supplier will invoice the Client for the appropriate non-discounted price.

8.9 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Supplier to the Client.

9. Compliance of campaign and deliverables with the law

9.1 The Client shall ensure that the Campaign, the Approved Advert and/or the Client Advert (as applicable) and their publication or otherwise making available to the Recipients, shall:

(a) comply with all applicable laws in the United Kingdom (including but not limited to the DPA) and any other applicable laws, regulations, regulatory policies, guidelines or codes in each case from time to time in force in the United Kingdom and any other territories in which the Supplier shall be required to provide the Services, including all such guidelines and codes issued by statutory, regulatory and industry bodies;
(b) not infringe the Intellectual Property Rights or proprietary rights of any third party; and
(c) not be defamatory, illegal, libellous, obscene or otherwise offensive.

9.2 The Client shall indemnify the Supplier, and its employees, advisers, agents, subcontractors and other representatives (together “Supplier Indemnified Parties“) against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier Indemnified Parties (“Losses“) arising out of or in connection with any third-party claims or any action, adjudication or decision taken against the Supplier Indemnified Parties by any regulatory body, in each case directly or indirectly arising (in whole or in part) out of any breach by the Client of clause 8.1.

9.3 The indemnity in clause 8.2 shall not extend to any Losses if the same are caused by:

(a) any material breach of these Conditions by the Supplier; or
(b) the negligence or fraud of any of any of the Supplier Indemnified Parties.

9.4 If either the Client or the Supplier becomes aware that there is risk that the Campaign or any part of a Client Advert or an Approved Advert is not in compliance with clause 8.1, each shall promptly notify the other, and, without prejudice to any other right or remedy of the Supplier, the Client shall make any modifications which may be necessary to remedy that defect in the Client Advert and/or the Approved Advert or Campaign. Any modifications shall be at the Client’s cost unless the problem was due to the Supplier’s act or omission (and/or to any material error in any information provided by the Supplier to the Client in relation to the relevant Campaign).

9.5 The Client shall ensure that the Supplier’s possession and use of the Client’s Property in the exercise of the Supplier’s obligations under the Contract shall not infringe the Intellectual Property Rights or proprietary rights of any third party.

10. Licence

10.1 The Supplier grants to the Client a non-exclusive, non-transferable, revocable licence (subject always to the Client’s obligations under clause 3), to access, view and use the Data for marketing its business.

11. Intellectual property rights ownership

11.1 The Client acknowledges that:

(a) all Intellectual Property Rights in the Data and the Approved Advert (if applicable) are the property of the Supplier or its licensors, as the case may be;
(b) it shall have no rights in or to the Data or the Approved Adverts other than the right to use them in accordance with the express terms of these Conditions.

11.2 The Client shall cooperate with the Supplier to protect the goodwill and reputation of the Services.

12. Data protection

12.1 In this clause 12, personal data, data subject, data controller and process shall have the meanings given to them in the DPA.

12.2 Where the Client shall provide personal data to the Supplier in connection with the Services, the Client warrants that it is validly and properly registered under the DPA as the data controller and shall provide the Supplier with full written details and instructions in relation to how the Supplier shall process the personal data and the purposes for which the personal data is to be processed.

12.3 Subject to clause 12.2, the Supplier shall only process the relevant personal data on the instructions of the Client and shall not in any way determine the purposes for which, and the manner in which, the personal data is processed.

12.4 The Supplier shall notify the Client as soon as reasonably practicable if it receives:

(a) a request from a data subject for access to any personal data; and/or
(b) any complaint, notice or communication that relates directly or indirectly to the processing of any personal data or to either party’s compliance with the DPA.

13. Confidentiality

13.1 In addition to the confidentiality obligations in clause 3 in relation to the Data, a party (“receiving party“) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (“disclosing party“), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its customers, suppliers, products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 13 shall survive termination of the Contract.

14. Limitation of liability: The client’s attention is particularly drawn to this clause

14.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

14.2 Subject to clause 14.1:

(a) the Supplier shall under no circumstances whatever be liable to the Client, whether in:

(i) contract;
(ii) tort (including negligence);
(iii) breach of statutory duty;
(iv) or otherwise, for any:
(v) loss of profit; or
(vi) any indirect or consequential loss,
arising under or in connection with the Contract; and

(b) the Supplier’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £1,000,000.
(c) The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
(d) This clause 14 shall survive termination of the Contract.

15. Termination

15.1 Without limiting its other rights or remedies, and subject to clause 15, either party may terminate the Contract by giving the Customer 1 (one) month’s written notice.

15.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within [20] days of that party being notified in writing to do so and for the avoidance of doubt, a breach of any of clauses 3, 8, 11 or 12 by the Client shall constitute a material breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) 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 any of the events mentioned in clause 14.2(a) to clause 14.2(b) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(l) the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

15.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 10 Business Days after being notified in writing to do so.

15.4 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between the Client and the Supplier if the Client becomes subject to any of the events listed in clause 14.2 or the Supplier reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.

16. Consequences of termination

16.1 On termination of the Contract for any reason:

(a) the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest;

16.2 the Client shall be required to pay to the Supplier all Charges and any third party fees in respect of Services supplied but for which no invoice has been submitted together with fair and reasonable compensation for the costs incurred by the Supplier up to the point of termination in fulfilling any outstanding Order, including but not limited to labour costs and other reasonable overhead costs including costs associated with the utilities, equipment and plant required by the Supplier to fulfil the Order up to the point of termination of the Contract.

16.3 the Client shall return or delete (at the Supplier’s request) any Data and Approved Adverts which have not been fully paid for.

16.4 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

16.5 clauses which expressly or by implication survive termination shall continue in full force and effect.

17. Force majeure

17.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier, a Subcontractor or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or Subcontractors.

17.2 The Supplier shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

17.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 10 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.

18. General

18.1 Assignment and other dealings.

(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to its Subcontractors or any third party or agent without being required to give prior written notice to the Client.
(b) The Client shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

18.2 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission, provided always that email is sent to the correct address and the sender does not receive any notification of non-delivery or attempt to recall the notice.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

18.3 Severance.

(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

18.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18.5 No partnership or Agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

18.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

18.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Supplier.

18.8 Governing law. This Contract, 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.

18.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims). However, nothing in this clause 18.9 shall prevent the Supplier from issuing proceedings against the Client in any other jurisdiction.