Marketing Services Terms & Conditions
Terms and Conditions
1. Key Details
The following table provides the details of the parties to this agreement and the Term of this agreement.
| Service Provider | Direct Education LTD T/A Buzz Education a company incorporated in England and Wales with company number 03481319 and registered office address 13 St. Georges Street, Chorley, Lancashire, England, PR7 2AA Contact Email: info@buzz-education.com |
2. How to read this agreement
2.1 Meaning of Capitalised Words and Phrases
Capitalised words and phrases used in these terms and conditions have the meaning given:
a) to that word or phrase in the Order Confirmation;
b) by the word immediately preceding any bolded and bracketed word(s) or phrase(s); or
c) in the definitions in clause 20 of this agreement.
2.2 Order of Precedence
Unless otherwise expressly agreed in writing, in the event of any inconsistency between these terms and conditions and an Order Confirmation, these terms and conditions will prevail to the extent of such inconsistency.
3. Duration and renewal of this agreement
a) This agreement will start on the Start Date in the Order Confirmation, and continue in effect until the End Date in the Order Confirmation (Term), unless earlier terminated in accordance with clause 15, or extended in accordance with clause 3(b).
b) The parties may agree to extend this agreement by mutual agreement, including by conduct that indicates an intention to extend the Term.
c) If any Services are supplied after the expiry of the Term without the parties having entered into a replacement agreement or otherwise having expressly agreed in writing that this agreement will not apply, the terms of this agreement will continue to apply for those Services.
d) The duration of any Order Confirmation is indicated by the dates set out in the Order Confirmation.
4. Service Process, Order Confirmations
4.1 Ordering Services
a) The parties may agree to Order Confirmations during the Term.
b) If the Client requests services from Service Provider during the Term, and Service Provider agrees to provide those services, then Service Provider will issue an Order Confirmation to the Client in respect of those services.
c) The Client will be taken to have accepted an Order Confirmation if the Client:
i) signs the Order Confirmation; or
ii) informs or otherwise indicates to Service Provider that the Client wishes for Service Provider to proceed with the performing the services set out in the Order Confirmation.
d) If the Client requests, and Service Provider agrees to provide, any of the services contained in the Order Confirmation, then Service Provider will charge the Fees in the Order Confirmation for those services.
e) Nothing in this agreement requires:
i) Service Provider to perform services before it decides to issue an Order Confirmation and that Order Confirmation has been accepted; or
ii) the Client to request services from Service Provider during the Term.
4.2 Order Confirmations
a) These terms and conditions will apply to all Order Confirmations agreed between the parties.
b) An Order Confirmation will not limit or otherwise affect any other current Order Confirmations between the parties.
4.3 Changes to Scope
a) The Client must pay a ‘change in scope fee’, in an amount reasonably determined by Service Provider (Change Fee), for changes to Services requested by the Client which alter the scope set out in an agreed Order Confirmation, and require Service Provider to perform additional work or incur additional costs (Changes).
b) Unless otherwise agreed in writing, Service Provider may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
c) Service Provider will only be required to perform Changes, if:
i) Service Provider agrees in writing to perform the Changes;
ii) the Client confirms in writing that they wish for Service Provider to proceed with the Changes and the relevant Change Fee; and
iii) the Client pays the Change Fee, in accordance with clause 9.1 as if it was a Fee.
4.4 Client Feedback
a) In relation to any Service which include Service Provider incorporating the Client’s feedback (as set out in the Order Confirmation), the following provisions of this clause 4.4 will apply.
b) If Service Provider provides such Services to the Client for review, the Client agrees to provide this review to the Service Provider.
c) After receiving Feedback, Service Provider will use its best efforts to incorporate the Feedback into the relevant Service, and provide an updated version of the Service to the Client.
d) If applicable, Service Provider will only provide the number of rounds of Feedback set out in the Order Confirmation (Rounds of Feedback). Any feedback request in addition to the Rounds of Feedback is not included in the Service and will constitute a Change in accordance with clause 4.3.
e) If the Rounds of Feedback in an Order Confirmation refer to ‘major’ or ‘minor’ changes, what constitutes a major or minor change will be determined by Service Provider, in its sole discretion.
f) If:
i) Service Provider receives a notice from the Client indicating that a Service has been accepted;
ii) Service Provider does not receive any Feedback in respect of a Service; or
iii) the Client has provided all the Rounds of Feedback included for a particular Service,
then that Service will be taken to have been accepted by the Client (Accepted).
g) The Client won’t be entitled to further complimentary revisions once a Service is Accepted.
5. Services
5.1 General
a) Service Provider will provide the Client with the services set out in an Order Confirmation accepted in accordance with clause 4 (Services).
5.2 Standards
Service Provider will use its best efforts to provide the Services to the Client in accordance with:
a) any applicable Laws, rules or regulations; and
b) any applicable industry standards.
5.3 Timing
a) The parties may agree on schedules for Services and/or deliverables, including estimated dates of completion, deadlines or schedules (Timelines).
b) Service Provider will use its best efforts to meet Timelines, however these are subject to change if unforeseen complexities arise. Service Provider will use its best efforts to minimise the impact of such changes, and notify the Client if more than a 24 hour variation is required.
c) Service Provider reserves the right to revise Timelines in the event that a delay is caused by the Client’s failure to provide timely access, Feedback or other information or Materials reasonably requested by Service Provider in order to perform the Services.
5.4 Review of Services
a) If the Client reviews and approves of a Service, then that will constitute acceptance of responsibility for any errors and omissions within that Service. Service Provider will use its best efforts to ensure there are no such errors or omissions.
b) To the maximum extent permitted by law, the Client releases Service Provider from all liability in relation to any loss or damage that may arise in connection with an error and omission in a Service that has been reviewed and approved by the Client.
5.5 Exclusivity – The Client’s Other Service Providers
To the extent that Services are described in an Order Confirmation as being provided exclusively to the Client (to the exclusion of other service providers), the Client agrees and warrants that:
a) they appoint Service Provider to provide those Services on an exclusive basis for their duration;
b) they will not make the same or similar arrangements with any third party service providers while they are receiving those Services; and
c) they will not allow any third party to perform services in relation to their business that are the same as, or similar to, the Services, while they are receiving the Service Provider Services.
5.6 Exclusivity – Service Provider’s Other Clients
The Client acknowledges and agrees that the Services are not provided on an exclusive basis and that Service Provider may provide services to third parties that are the same as, or similar to, the Services (which may include third parties that operate in similar marketplaces and geographical territories to the Client).
5.7 Third Party Terms and Conditions
a) The Client acknowledges and agrees that the terms & conditions of third party Service Providers of goods or services (Third Party Terms) may apply to any part of the Services.
b) Service Provider will endeavour to notify the Client of Third Party Terms that apply to the Services, in which case:
i) the Client must immediately notify Service Provider if they do not agree to the Third Party Terms; and
ii) if Service Provider does not receive a notice in accordance with clause 5.7(b)(i) the Client will be taken to have accepted those Third Party Terms, and Service Provider will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
c) The Client acknowledges and agrees that if the Client does not agree to any Third Party Terms, this may affect Service Provider’s ability to meet delivery dates and times.
5.8 Disclaimer
The Client acknowledges and agrees that:
a) any information provided to the Client as part of or in connection with the Services is general in nature and may not be suitable for the Client’s circumstances; and
b) it is the Client’s responsibility to comply with applicable regulations relevant to the Client’s business, including industrial relations laws and privacy laws.
6. Warranties From Both Parties
6.1 Compliance with Laws
Service Provider agrees and warrants that in providing the Services, and the Client agrees and warrants that in receiving and using the Services, it will not:
a) breach any applicable Laws, rules or regulations (including any applicable privacy laws); or
b) infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.
6.2 Act Reasonably
Both parties warrant that they will act reasonably and in good faith in relation to their rights and obligations under this agreement.
7. Client Obligations
7.1 Provide Information and Assistance
The Client must provide Service Provider with all documentation, information and assistance reasonably required by Service Provider to perform the Services.
7.2 Liaison
The Client agrees to liaise with Service Provider as they reasonably request for the purpose of enabling Service Provider to provide the Services.
7.3 Access
The Client agrees to provide Service Provider with access to:
a) the Client’s premises and Personnel, to the extent required to perform the Services;
b) the Client’s website (where Service Provider is providing Services that involve making updates or changes to the Client’s website); and
c) any other third party or other accounts used by the Client (including login details and passwords),
as reasonably required by Service Provider to perform the Services.
7.4 Client Materials
a) The Client warrants that all information, documentation and other Material (defined in clause 11) they provide to Service Provider for the purpose of receiving the Services is complete, accurate and up-to-date, including floor plans.
b) The Client acknowledges and agrees that Service Provider will rely on the accuracy of any plans, specifications and other information the Client provides.
c) The Client releases Service Provider from all liability in relation to any loss or damage that may arise in connection with the Services, to the extent it is caused or contributed to by information, documentation or any other Material provided by the Client being incomplete, inaccurate or out-of-date.
7.5 Client Default
If the Service Provider’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 Service Provider 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 Service Provider’s performance of any of its obligations;
b) the Service Provider shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Service Provider’s failure or delay to perform any of its obligations as set out in this clause 7.5; and
c) the Client shall reimburse the Service Provider on written demand for any costs or losses sustained or incurred by the Service Provider arising directly or indirectly from the Client Default.
8. Specific Services
8.1 Data Services
a) The Service Provider may provide the Client with contact data in electronic format as set out in the Order Confirmation from time to time (the Data and the Data Services).
b) The Service Provider grants to the Client a non-exclusive, non-transferable, revocable licence (subject always to the Client’s obligations under this agreement), to access, view and use the Data for the purpose of marketing its business.
c) The Client acknowledges and accepts that the Data supplied by the Service Provider 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“).
d) The Service Provider 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, its accuracy is transient and the data will change over time.
e) If the Client believes that any of the Data is inaccurate on the Data Download Date, the Client will immediately contact the Service Provider, who will investigate the suspected inaccuracy. Should the inaccuracy be found, the Service Provider will 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 Service Provider shall refund 9% of the Charges for the Data Services.
f) Data is supplied to the Client (unless otherwise stated in the Order Confirmation) on an annual subscription basis, via a 12 month licence from the date of purchase (the Annual Data Subscription). The Annual Data Subscription will automatically renew, unless and until it is terminated in accordance with the terms of this agreement. Should the Client choose not to renew their Annual Data Subscription, it will end 12 calendar months after the date of purchase, and the Client will lose all rights to utilise the Data. 35 days prior to the renewal date, the Service Provider will contact the Client via email to remind them of the renewal.
g) The Client will:
i) not resell, disclose or make available in whole or in part the Data at any time to any third party;
ii) not copy, reduce to writing or otherwise record the Data;
iii) not use, reproduce, transform or store the Data in an externally accessible computer or electronic retrieval system;
iv) 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;
v) confirm with their third party marketing provider that generic data can be used on their platform; and
vi) ensure they mark the Data as belonging to the Service Provider so that it can be removed from all third party software should they fail to renew their Annual Data Subscription.
h) The Client may disclose the Data to its employees, agents and other representatives who need to know the Data in connection with the Client’s marketing operations (“Representatives“) provided that:
i) it informs its Representatives of the confidential nature of the Data prior to disclosure;
ii) it procures that its Representatives shall, in relation to any Data disclosed to them, comply with the terms of this agreement, as if they were the Client and, if the Service Provider so requests, procure that any relevant Representative enters into a confidentiality agreement with the Service Provider on terms equivalent to those contained in this agreement, and the Client shall at all times be liable for the failure of any Representative to comply with this agreement.
i) The Client may disclose the Data, to the extent required by law, to 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 Service Provider as much notice of the disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the Service Provider in relation to the content of such disclosure.
j) For security purposes, the Service Provider inserts seeded data into the Data it supplies to Clients. The seeded data is not identified in the Data provided to the Client, and is utilised in detecting any misuse of the Data by the Client.
k) The Client must not misuse the Data in any way. Misuse includes but is not limited to, use of the Data if the Client does not have an active Annual Data Subscription and the Client allowing any third party (not approved prior in writing by the Service Provider) to utilise the Data (the Breach Events). Should a Breach Event occur, the Service Provider will immediately issue the Client with an invoice for the Annual Data Subscription fee (the Breach Invoice). The Breach Invoice is due for payment within 7 days of the invoice. For the avoidance of doubt, the issuance of any Breach Invoice is in addition to any remedy the Service Provider may have under law and this agreement. .
8.2 Marketing Services
a) The Service Provider may provide the Client with design, content creation, direct mail and/or general marketing services as set out in the Order Confirmation from time to time.
b) Where the Service Provider is providing the Marketing Services, the Client shall inform the Service Provider:
i) of whether it requires the Service Provider to provide Design, content creation and/or direct mail services;
ii) to which group of Recipients it requires the Service Provider to address the Marketing Services;
iii) of the requested date for completion of the Marketing Services; and
iv) provide in writing all information, documentation and other literature necessary to enable the Service Provider to provide the Design Services (if applicable).
c) Where the Client requires the Service Provider to provide Design services or content creation Services, provided that the Client has complied with its obligations under this clause 8, the Service Provider 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 Service Provider providing the Marketing Services. The Client shall be responsible for ensuring that the details included in the Design Proposal are full, accurate and correct.
d) Where the Client does not require the Service Provider to provide the Design Services or content creation Services, the Client shall provide the Service Provider with the template email, literature, advertisement or other materials necessary (“Client Advert“) to enable the Service Provider to provide the Marketing Services. All information must be provided by the client in HTML format, if it is provided in any other format, the Service Provider will charge the Standard Administration Fee.
e) 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:
i) comply with all applicable laws in the United Kingdom (including but not limited to the relevant data protection laws) 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 Service Provider shall be required to provide the Services, including all such guidelines and codes issued by statutory, regulatory and industry bodies;
ii) not infringe the Intellectual Property Rights or proprietary rights of any third party; and
iii) not be defamatory, illegal, libellous, obscene or otherwise offensive.
f) The Client shall indemnify the Service Provider, and its employees, advisers, agents, subcontractors and other representatives (together “Service Provider 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 Service Provider Indemnified Parties (“Losses“) arising out of or in connection with any third-party claims or any action, adjudication or decision taken against the Service Provider 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.
g) The indemnity in clause 8.2(f) shall not extend to any Losses if the same are caused by:
i) any material breach of these Conditions by the Service Provider; or
ii) the negligence or fraud of any of any of the Service Provider Indemnified Parties.
h) If either the Client or the Service Provider 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, each shall promptly notify the other, and, without prejudice to any other right or remedy of the Service Provider, 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 Service Provider’s act or omission (and/or to any material error in any information provided by the Service Provider to the Client in relation to the relevant Campaign).
i) The Client shall ensure that the Service Provider’s possession and use of the Client’s Material in the exercise of the Service Provider’s obligations under the Contract shall not infringe the Intellectual Property Rights or proprietary rights of any third party.
j) Where the Client engages the Service Provider to provide direct mail services, the Client acknowledges and agrees that the functionality of the postal system, the associated delivery timelines and cost increases are beyond the control of the Service Provider.
8.3 The Staff-Room Services
a) The Service Provider may provide the Client with access to a web-based subscription email management service that allows the Client to upload, store, transmit, disseminate, and otherwise distribute content to and from their account (the “Staff-Room” and “Staff-Room Content”).
b) The Client’s use of Staff-Room is at the Client’s own risk, and it is solely responsible for its communications made via the Staff-Room, for all Content sent to and from its account and any and all activity that occurs under its account (even if Staff-Room Content is posted by others who have access to the Client’s account) and for any consequences arising therefrom.
c) The Client will use Staff-Room in compliance with all applicable local, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from its country of residence.
d) The Client will not, and will not agree to, and will not authorise or encourage any third party to: (a) use Staff-Room 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 the Service Provider or (b) upload, store, transmit or otherwise distribute content that infringes upon another party’s intellectual property rights or other proprietary or contractual rights or obligations; (c) prevent others from using Staff-Room; or (d) use Staff-Room for any fraudulent or inappropriate purpose.
e) Violation of this clause 8.3 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. The Service Provider 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.
f) The Service Provider takes no responsibility for third party content (including, without limitation, any viruses, malware, or other disabling features), nor does the Service Provider have any obligation to monitor such third party content. The Service Provider reserves the right at all times to remove or refuse to distribute any Staff-Room Content on Staff-Room, such as content which violates the terms of this Agreement. The Service Provider 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 The Service Provider, its users and the public. The Service Provider will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement.
g) The Client is solely responsible for its Staff-Room Content and the consequences of uploading, storing, transmitting, or otherwise distributing Content to and / or from its account.
h) By uploading, storing, transmitting, or otherwise distributing Staff-Room Content, you affirm, represent, and warrant that:
i) The Staff-Room 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.
ii) Violators of any third-party rights may be subject to criminal and civil liability. The Service Provider. reserves all rights and remedies against any Clients who violate the terms of this clause 8.3.
i) By agreeing to these Terms of Service you agree not to:
i) Use Staff-Room except as expressly permitted herein;
ii) 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);
iii) 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;
iv) 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;
v) 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;
vi) 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;
vii) Use Staff-Room with any data other than that licensed from the Service Provider or that which is your own subscriber data, subject always to your ensuring that your use of your own subscriber data complies with all applicable laws and regulations..
j) Client is solely responsible for maintaining the confidentiality of your account and passwords and for restricting access to your computer and/or account, and agrees to accept responsibility for all activities that occur under your account or passwords.
k) Client will ensure that the information it provides on Staff-Room will be true, accurate, current, and complete and will ensure that this information is kept accurate and up-to-date at all times. If the Client has any reason to believe that your account is no longer secure, then you agree to immediately notify the Service Provider.
l) Staff-Room is supplied on an annual subscription basis (the Staff-Room Subscription), billed monthly, in advance as outlined in the Order Confirmation 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.
m) The Staff-Room Subscription will automatically renew, unless and until it is terminated in accordance with the terms of this agreement. Should the Client choose not to renew their Staff-Room Subscription, it will end 12 calendar months after the date of purchase, and the Client will lose all rights to utilise the Staff-Room. 35 days prior to the renewal date, the Service Provider will contact the Client via email to remind them of the renewal.
9. Fees and Payment
9.1 Fees
a) The Client must pay the Fees in the amounts, and on or before the Due Date(s), set out in an Order Confirmation.
b) Fees paid in accordance with this agreement are non-refundable for change of mind.
c) If there is no Due Date set out in an Order Confirmation in relation to a Fee, that Fee must be paid at the time set out the relevant invoice issued by Service Provider.
d) If there is no Due Date set out in an invoice for a Fee, that Fee must be paid within 14 days of the date of the invoice.
9.2 Invoices
Service Provider will issue a valid tax invoice to the Client for payment of the Fees. The Client must pay the Fees in accordance with the remittance method set out in an invoice.
9.3 Late Payment
If the Client does not pay the Service Provider the amounts due and payable under an invoice on or before its due date, without limiting any of the Service Provider other rights under this agreement, the Client must pay the Service Provider interest at the rate of 8% per annum on each amount outstanding, from the due date for payment to the date on which the payment is received by the Service Provider, plus any other amount the Service Provider is entitled to claim under law including The Late Payment of Commercial Debts (Interest) Act 1998.
9.4 Expenses
The Client will pay the following expenses in accordance with clause 9.1 as if they were a Fee:
a) expenses listed in an Order Confirmation; and
b) expenses otherwise reasonably incurred by Service Provider in connection with the Services, provided these expenses are approved by the Client prior to them being incurred.
9.5 VAT
Unless otherwise indicated, amounts stated in an Order Confirmation do not include VAT. In relation to any VAT payable for a taxable supply by Service Provider, the Client must pay the VAT subject to Service Provider providing a tax invoice.
9.6
If the Service Provider carries out work for the Client, and the Client terminates the Service, the Service Provider will invoice the client for the amount due for Services supplied to the date of termination. This amount will be at the rates annexed to this agreement, or at a rate the Service Provider considers to be fair for the work carried out. Where a Client has signed an Order Confirmation for a discounted package, and terminates the Service before completion, the Service Provider will invoice the Client for the non-discounted price.
9.7
The Client will 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 Service Provider 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
10. Accreditations
a) Unless otherwise agreed in writing, Service Provider retains the right to describe the Services and reproduce, publish and display the deliverables (including analysis of the results Service Provider achieves in performing the Services) in Service Provider’s portfolios, pitch decks and websites for the purposes of recognition or professional advancement.
b) In connection with such uses under clause 10(a), Service Provider may:
i) exercise such rights after termination of this agreement, and if the Client is no longer a Client of Service Provider;
ii) be credited with authorship of the Services and deliverables; and
iii) refer to the Client, and use the Client’s name, logos and other branding (acting reasonably, and without holding itself out as acting on behalf of the Client).
11. Confidentiality, Data & Privacy
11.1 Data Protection
a) Words and phrases in this section shall have the meaning given to them by applicable data protection and privacy laws, including the General Data Protection Regulation 2016/679 (GDPR) and applicable national legislation that implements or supplements the GDPR or otherwise applies to data protection and privacy, and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated (Data Protection Legislation) and the terms “controller”, “processor”, “process” and “personal data” shall have the meanings given to those terms in such Data Protection Legislation.
b) During and after the delivery of the Services, the Client agrees that the Service Provider will be processing personal data for its own purposes and as such will be a controller under the Data Protection Legislation and this includes (but is not limited to) the following purposes:
i) the Service Provider providing Services in fulfilment of the Scope of Work;
ii) the Service Provider and/or our independent contractors and third party Service Providers may use the contact details the Client and the Client’s representatives to send marketing materials or other publications.;
iii) the Service Provider may process personal data concerning its other Clients and contacts in other ways for its own business purposes;
iv) the Service Provider may process and transfer personal data as necessary to effect a re-organisation of its business; and
v) the Service Provider may share personal data with other legal or professional advisers used by us to provide the Client with legal or professional services.
c) During and after the delivery of Services, there may be limited occasions where the Service Provider may process on the Client’s behalf as a processor any personal data the Client have provided to the Service Provider. The Service Provider will advise the Client in writing where the Service Provider believes the Service Provider may act as a processor and any such processing shall be in accordance with, and subject to, the Client’s instructions.
d) Before performing the processing, the Service Provider shall document within the instructions the subject matter and duration of the processing, the nature and purpose of the processing, the types of personal data and categories of data subjects and the other terms prescribed by the Data Protection Legislation. The Service Provider will ensure that all appropriate technical and organisational measures are taken to protect any personal data supplied by the Client to the Service Provider against unauthorised or unlawful processing, accidental loss, destruction or damage, including when the Service Provider subcontract any processing (for example, in the case of external storage of data).
e) The Client’s instructions are taken to include the use by the Service Provider, where appropriate, of independent contractors and third party Service Providers appointed by us for functions such as data and file storage, back-up, destruction, billing, debt collection, legal processing and the like, in accordance with the foregoing.
f) By accepting this agreement the Client gives positive consent for the Service Provider to obtain, store and process information about the Client as described in the preceding paragraphs. The Client agrees that where necessary the Client will have satisfied relevant statutory ground under the Data Protection Legislation in connection with the above-described categories of processing, before providing the Service Provider with personal data. It is also a term of this agreement that any personal data supplied by the Service Provider to the Client about employees/independent contractors of the Service Provider and/or any third parties may only be used for the express purposes for which that information is provided to the Client.
g) Each party shall comply with the terms of the Data Protection Legislation.
11.2 Third Party Data
a) The Client warrants, in relation to the personal information and all other data that it provides to Service Provider in connection with this agreement (Third Party Data), that:
i) the Client has all necessary rights in relation to Third Party Data, such that the Services can be performed in respect of that data;
ii) the Client is not breaching any Law by providing Service Provider with Third Party Data;
iii) Service Provider will not breach any Law by performing the Services in relation to any Third Party Data;
iv) there are no restrictions placed on the use of the Third Party Data (including by any Third Party Terms) and if there are any such restrictions, the Client has notified Service Provider of this, and Service Provider has agreed to perform the Services in respect of that data (being under no obligation to do so); and
v) Service Provider will not breach any Third Party Terms by performing the Services in relation to any Third Party Data.
b) The Client agrees at all times to indemnify and hold harmless Service Provider and its officers, employees and agents from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those parties, where such loss or liability was caused or contributed to a breach of a warranty in clause 11.2(a).
11.3 Confidential Information
The parties will not, during, or at any time after, the Term, disclose Confidential Information directly or indirectly to any third party, except:
a) with the other party’s prior written consent;
b) as required by Law; or
c) to their Personnel on a need to know basis for the purposes of performing its obligations under this Agreement (Additional Disclosees).
11.4 Breach
If either party becomes aware of a suspected or actual breach of clause 11.3 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach. The parties agree that damages may not be a sufficient remedy for a breach of clause 11.3.
11.5 Permitted Use
A party may only use the Confidential Information of the other party for the purposes of exercising its rights or performing its obligations under this Agreement.
11.6 Return
On termination or expiration of this Agreement, each party agrees to immediately return to the other party, or (if requested by the other party) destroy, any documents or other Material in its possession or control containing Confidential Information of the other party.
11.7 Additional Disclosees
Each party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 11. Each party will, when requested by the other party, arrange for an Additional Disclosee to execute a document in a form reasonably required by the other party to protect Confidential Information.
12. Intellectual Property
12.1 Definitions
In this clause and any Order Confirmation, the following terms have the following meanings in relation to Intellectual Property Rights:
a) Existing Material means Material, other than New Material;
b) Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.
c) New Material means Material that is created, written, developed or otherwise brought into existence during the Term for the purposes of this agreement.
12.2 Existing Material
a) Except to the extent otherwise stated in an Order Confirmation or in this clause 11:
i) each party retains ownership of the Intellectual Property Rights in its Existing Material; and
ii) nothing in this agreement transfers ownership of, or assigns any Intellectual Property Rights in, either party’s Existing Material to the other party.
b) The Client grants to Service Provider (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material to the extent reasonably required to perform any Services.
c) The Client warrants that Service Provider’s use of the Client’s Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify Service Provider from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
d) Service Provider grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use its Existing Material, to the extent:
i) such Existing Material is incorporated into the New Material; and
ii) such use is reasonably required for the Client to enjoy the benefit of the Services.
12.3 New Material
Unless otherwise stated in an Order Confirmation:
a) the Intellectual Property Rights in New Material are assigned to and vest in Service Provider as those rights are created;
b) those Intellectual Property Rights are then assigned to and vest in the Client when Service Provider receives payment of all the Fees payable under the Order Confirmation in relation to which that New Material was created (without limiting clause 8.3 (Assignment Date); and
c) from the Assignment Date, the Client grants to Service Provider a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify and adapt the New Material in order for Service Provider to use, exploit or otherwise enjoy the benefit of the New Material.
12.4 Third Party Intellectual Property
Service Provider warrants that:
a) the provision of the Services to the Client; and
b) the Client’s receipt and use of the Services for their intended purpose,
will not infringe the Intellectual Property Rights of any third party.
13. Subcontracting
Service Provider may subcontract the provision of the Services. Service Provider will be responsible for the acts or omissions of its subcontractors as if they were the acts or omissions of Service Provider.
14. Disclaimers & Limitation of Liability
Nothing in this agreement shall exclude or limit the Service Provider’s liability for fraud or intentional unlawful conduct by the Service Provider, or death or personal injury resulting from Service Provider’s negligence.
To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement or an Order Confirmation are excluded.
To the maximum extent permitted by the applicable law, neither Service Provider, nor any of Service Provider’s employees, contractors, officers or agents (Personnel) will be liable to the Client for:
a) any incidental, punitive, indirect, special or consequential damage, loss or expenses, including but not limited to any loss of business, contracts, revenue, or profits, any business interruption, security breach, loss of data, loss of goodwill or reputation or other pecuniary loss suffered by the Client, even if Service Provider or any of its Personnel have been advised of their possible existence, arising in connection with this agreement or any Order Confirmation; nor
b) any direct damage loss or expenses arising from loss of customers, loss of profits, loss of anticipated profits or loss of savings, arising in connection with this agreement or any Order Confirmation.
To the extent that the provisions of any applicable law shall impose restrictions on the extent to which liability can be excluded under this agreement or an Order Confirmation including, for the avoidance of doubt, the provisions of sections 3, 6 and 11 of the Unfair Contract Terms Act 1977 in the UK (and its equivalent in any other jurisdiction) relating to the requirement of reasonableness, the exclusions set out in this clause shall be limited in accordance with such restrictions. However, any exclusions of liability that are not affected by such restrictions shall remain in full force and effect.
Without prejudice to the limitation of liability provisions above, in the event that the Client incurs any loss, damage or expense arising out of an Order Confirmation or this agreement, the Client agrees that Service Provider’s maximum liability to the Client shall be limited to either (a) the total amounts paid by you to us for the relevant Order Confirmation under which the liability arose, or (b) where the liability does not relate to an individual Order Confirmation, the sum of £500.
15. Dispute Resolution
a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this agreement prior to commencing any proceedings.
b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the nominated contact of the other party at the email address given at the beginning of this agreement.
c) The parties acknowledge and agree that compliance with this clause 15 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
i) in the case of applications for urgent interlocutory relief; or
ii) a breach by another party of this clause 15.
16. Termination
16.1 Termination Rights
a) Service Provider may terminate this agreement at any time by providing 1 month’s written notice to the Client.
b) Either party (Non-Defaulting Party) may terminate this agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party:
i) is in breach of this agreement and either:
A) fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
B) that breach is not capable of remedy;
ii) ceases, suspends or threatens to cease or suspend to conduct its business; or
iii) becomes subject to any form of insolvency or bankruptcy administration.
16.2 Accrued Rights and Liabilities
The expiration or termination of this agreement will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of this agreement occurring prior to expiration or termination of this agreement.
16.3 Consequences of Expiration or Termination
Upon expiration or termination of this agreement:
a) Service Provider will refund any amounts paid by the Client for Services not provided as at the date of termination;
b) the Client must pay all amounts owed for Services already provided as at the date of termination;
c) each party must return all property of the other party to that other party; and
d) each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party.
16.4 Survival
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
17. Force Majeure
a) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
i) reasonable details of the Force Majeure Event; and
ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
b) Subject to compliance with clause 17(a) the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
c) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
ii) strikes or other industrial action outside of the control of the Affected Party; or
iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.
18. Notices
a) A notice or other communication to a party under this agreement must be:
i) in writing and in English; and
ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that territory; or
ii) when replied to by the other party,
whichever is earlier.
19. General
19.1 Governing Law and Jurisdiction
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
19.2 Business Days
If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.
19.3 Amendments
This agreement may only be amended in accordance with a written agreement between the parties.
19.4 Waiver
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
19.5 Severance
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
19.6 Third Party Rights
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
19.7 Joint and Several Liability
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
19.8 Assignment
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
19.9 Counterparts
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
19.10 Costs
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
19.11 Entire Agreement
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
19.12 Interpretation
a) (singular and plural) words in the singular includes the plural (and vice versa);
b) (gender) words indicating a gender includes the corresponding words of any other gender;
c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
i) (includes) the word “includes” and similar words in any form is not a word of limitation;
j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
k) (currency) a reference to a currency is in Great British Pounds, unless otherwise agreed in writing.
20. Definitions
In these terms and conditions, the following words and phrases have the following meaning:
| Term | Meaning |
| Business Day | A day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in London, United Kingdom. |
| Campaign | the competition, advertising campaign or other project being undertaken by the Client and pursuant to which the Service Provider is supplying the Services |
| Confidential Information | Information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge. |
| Data | the data provided to the Client by the Service Provider pursuant to the Data Services |
| Data Services | the provision of data in electronic format by the Service Provider to the Client as set out in the Order Confirmation |
| Deliverables | the deliverables set out in the Design Proposal produced by the Service Provider for the Client |
| Design Proposal | the draft marketing content provided by the Service Provider to the Client in connection with the Design Services |
| Design Services | the design services to be provided by the Service Provider in connection with the Marketing Services |
| Fees | The fees set out in an Order Confirmation |
| Intellectual Property Rights | All copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world. |
| Laws | Any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Services are performed or received and includes any industry codes of conduct. |
| Order Confirmation | A document agreed and signed by both parties which outlines the Services to be provided by Service Provider, and Fees to be paid by the Client. |
| Recipient(s) | the recipients of the Client Advert and/or the Approved Advert pursuant to the Marketing Services; |
| Standard Administration Fee £[125] | |
| Services | Has the meaning given in clause 5.1. |
| Term | Has the meaning given in clause 3(a). |