Terms and Conditions of Service

 

2. APPOINTMENT & PURCHASE ORDERS

2.1 This Agreement is a services agreement under which the Client may request the Company to provide, and the Company shall provide to the Client, various communications consultancy services, as set out in a Purchase Order, and which services may include:

(a) video and digital content production;

(b) communications strategy consultation and development;

(c) brand propositioning;

(d) campaign development and management;

and which may be provided on an Annual Retainer Work basis, a project specific basis, or both.

2.2 The Company acts in all its contracts with third parties with regard to the provision of Services set out in a Purchase Order as a principal at law.

2.3 During the Term, the Company shall perform the Services and (where relevant) shall supply the Deliverables to the Client in accordance with the Purchase Orders which are agreed between the parties from time to time in writing.

2.4 The parties may agree new Purchase Orders from time to time in writing, whereupon such Purchase Orders shall automatically form part of this Agreement.

2.5 The Company will not be obliged to perform any work on behalf of the Client until the relevant Purchase Order has been signed by both parties.

 

3 TERM

3.1 This Agreement shall commence on the Effective Date and shall continue for the Initial Period and thereafter subject to earlier termination in accordance with clause 21, unless and until terminated by either party giving not less than two months’ notice in writing to the other party, such notice to expire no earlier than the end of the Initial Period.

3.2 Where the parties agree specific projects rather than or in addition to Annual Retainer Work, each such project shall commence on the relevant date set out in the relevant Purchase Order and shall continue until project completion as set out in the relevant Purchase Order, subject to earlier termination in accordance with the terms of clause 21.

 

4. CLIENT’S OBLIGATIONS

4.1 The Client will give the Company full and clear instructions as to its requirements for the Services and Deliverables to be included in a Purchase Order, including full details of the dates by which each stage of the proposed Services and Deliverables are to commence and finish. The Client will give the Company clear briefings and ensure that all the facts given to the Company in relation to the Services are accurate and shall ensure that its other suppliers and agencies act in willing co-operation with the Company. The Client will promptly inform the Company if the Client considers that any Deliverables submitted to the Client by the Company for approval are false or misleading or in any way contrary to law or applicable Advertising Regulation.

4.2 The Client will cooperate with the Company in all matters relating to the Services and promptly supply to the Company (at no charge) any Client Materials reasonably required by the Company or otherwise necessary to provide the Services and Deliverables and shall ensure that it has all rights and licences in place to enable use by the Company of all Client Materials.

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

 

5. SERVICE DELIVERY

5.1 The Company will give the Client clear instructions as to the Client Materials it reasonably requires for the purposes of performing the Services and providing the Deliverables.

5.2 The Company shall apply such time, attention, and reasonable skill and care as may be necessary or appropriate for its proper performance of the Services and provision of the Deliverables.

5.3 The Company shall deliver all Deliverables by the dates set out in the applicable Purchase Order or any other delivery date(s) agreed by the parties in writing.

 

6 COMPANY: OTHER APPOINTMENTS

The relationship between the parties is non-exclusive and the Company shall therefore be entitled to provide any services or deliverables the same or similar to the Services and/or Deliverables to any third party.

 

7 PERSONNEL

The Company will allocate suitable personnel with appropriate levels of experience and seniority to provide the Services. The Client acknowledges and agrees that it may be necessary for the Company to replace the personnel providing the Services with alternative personnel with similar levels of seniority and experience.

 

8 AMENDMENTS TO A PURCHASE ORDER

In the event that either party wishes to make any material amendment to a Purchase Order, any such amendment shall be subject to the agreement of both parties in writing.

 

9 APPROVALS AND AUTHORITY

9.1 Where the Client is asked to give approval under or in connection with this Agreement, such approval shall be given to the Company in writing and is not to be unreasonably withheld or delayed.

9.2 The Company will seek the Client’s prior approval in relation to:

(a) any estimates or quotations for any third party costs to be paid by the Client; and

(b) such phases of the Services as may be set out in a Purchase Order

and the Client’s approval of such estimates and phases will be the Company’s authority to enter into contracts with relevant third parties, to prepare draft Deliverables and to proceed with the use of the relevant draft Deliverables.

9.3 In the event that the Client does not approve of any matter requiring approval it shall notify the Company of its reasons for disapproval within 5 Business Days of the Company’s request. If the Client does not notify the Company of its disapproval in accordance with this clause 9.3, it shall be deemed approved.

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

 

10 RELATIONSHIP MANAGEMENT

During the Term, the Company will keep the Client informed as to the progress and status of all Services and Deliverables. The Company will prepare and submit written reports at such intervals and in such format as is agreed by the parties in a Purchase Order.

 

11 FEES

11.1 The Company will invoice the Client in respect of all Fees, Expenses and Third Party Costs.

11.2 For the avoidance of doubt, the Fees are payable in addition to all payments for Expenses and Third Party Costs.

11.3 In consideration of the Company providing the Services set out in a Purchase Order, the Client shall pay the Company the Fees, which shall be payable in accordance with clause 11.6.

11.4 Any Retainer Fee is fixed for the relevant Annual Retainer Work period set out in a Purchase Order, and the Retainer Fee will not be increased or decreased, unless the parties mutually agree in writing to amend the Retainer Fee in accordance with clause 8.

11.5 The Fees, Expenses and Third Party Costs will be invoiced in accordance with the payment terms set out in the applicable Purchase Order and shall be payable (subject to clause 12.3) within 15 days of the date of the relevant invoice, or such other reasonable period as the parties may agree in the applicable Purchase Order.

11.6 All sums stated in this Agreement or in any Purchase Order, quotation or estimate exclude VAT and any other applicable sales tax (unless otherwise stated) which shall also be payable by the Client at the rate prevailing from time to time.

11.7 The terms of remuneration set out in this Agreement do not cover the performance of services which are outside of a Purchase Order. If any such services are required the terms relating to their provision together with the applicable fees will be agreed in writing by the parties.

11.8 In the event that the Client fails to make any payment in full when due to the Company under this Agreement, then without prejudice to its other rights and remedies under or in connection with this Agreement or otherwise in law, the Company shall be entitled to charge the Client interest at such rates and in such manner as prescribed by The Late Payment of Commercial Debts (Interest) Act 1998.

11.9 If the Client is overdue with any payment hereunder, then without prejudice to the Company’s other rights or remedies:

(a) the Company shall have the right to suspend performance of the Services on seven (7) days’ written notice until the Company has received payment of the overdue amount together with any accrued interest; and/or

(b) the Company shall have the right to terminate this Agreement or the applicable Purchase Order immediately upon seven (7) days’ written notice to the Client, whereupon the Client shall immediately cease using the Company Materials and the Company Proprietary Materials and (at its sole cost) return (or at the Company’s option, destroy) all media on which the Company Materials and the Company Proprietary Materials are held.

11.10 Where a surcharge is levied by a supplier against the Company due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to the Company the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.

 

12 THIRD PARTY SERVICES & COSTS

12.1 The Company will invoice the Client in respect of all third party costs incurred by the Company on behalf of the Client in performing the Services, subject to the Client approving all such costs in advance in writing (whether via a Purchase Order or otherwise), including:

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

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

(collectively defined as “Third Party Costs”).

12.2 The actual cost to the Company of Third Party Costs in respect of materials or services purchased overseas for the Deliverables may be more or less than the cost anticipated at the date when the Company ordered the relevant materials or services (or obtained the Client’s approval for such Third Party Costs) as a result of fluctuations in the rate of currency exchange. If so, the Company will charge the Client at the rate of currency exchange in operation on the date the Company pays for the relevant Third Party Costs, which shall be deemed to be the closing rate for that day as subsequently quoted on XE.com.

12.3 In the event that any Third Party Costs require payment in advance or sooner than the payment terms set out in clause 11.5, the Company will notify the Client as soon as reasonably practicable in advance and the Client shall pay such costs within the period set out in the relevant invoice.

 

13 THIRD PARTY SUPPLIERS: BUSINESS TERMS & SELECTION

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

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

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

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

(c) the Client hereby indemnifies and shall keep the Company indemnified against any Losses caused by any act or omission of the Client which puts the Company in breach of any such Third Party Contracts.

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

13.4 The Company shall use reasonable care and skill in the selection and appointment of suppliers.

 

14 CONFIDENTIALITY

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

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

14.3 Confidential Information shall exclude information which:

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

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

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

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

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

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

14.6 The Client acknowledges and agrees that any identifiable and original idea or concept presented by the Company in relation to any promotion or advertising campaign developed by the Company shall be acknowledged as being available only for such promotion or campaign and shall not be used for any other purposes whatsoever without the Company’s express prior written approval. Even where no promotion or campaign is agreed, the ideas and concepts presented to the Client shall remain strictly confidential and shall not be used in any way, including communication to any third party, without the Company’s prior written approval.

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

14.8 Neither party shall be in breach of this clause 14 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.

14.9 Each party hereby indemnifies the other party from and against all Losses arising out of or in connection with the other party’s breach of this Clause 14, including breach by each party’s Associates.

14.10 The terms of and obligations imposed by this Clause 14 shall survive the termination of this Agreement for any reason.

14.11 Nothing in this Clause 14 shall prevent the Company from publicising the fact that it works as a communications Company for the Client.

 

15 COMPANY WARRANTIES

15.1 The Company warrants and undertakes that:

(a) it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party;

(b) the personnel who perform the Services are and shall be competent and suitable, whether as to qualifications, experience or otherwise, to provide the Services; and

(c) subject to clause 15.3(a), the use of the Deliverables by the Client in accordance with this Agreement and for the purposes set out in the Purchase Order will not infringe the copyright of any third party.

15.2 All warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise are hereby excluded to the fullest extent permitted by law, including any condition of satisfactory quality or fitness for a particular purpose.

15.3 The Client releases the Company from any liability under or in connection with this Agreement and hereby indemnifies the Company against any Losses incurred by the Company to the extent that such Losses arise as a result of:

(a) the Deliverables infringing third party Intellectual Property Rights, where the Company had previously notified the Client of a specific risk that the Deliverables infringed third party Intellectual Property Rights and the Company had obtained the prior approval to use such Deliverables notwithstanding such notified risk; and/ or

(b) the Deliverables breaching Advertising Regulations; and/ or

(c) the incorporation of Client Materials into the Deliverables provided that the Company has incorporated and used such Client Materials in the Deliverables in accordance with any instructions given by the Client from time to time.

 

16 CLIENT WARRANTIES

16.1 The Client warrants and undertakes that:

(a) it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party;

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

(c) to the best of its knowledge and belief, the Client Materials will comply with all applicable laws and regulations including all Advertising Regulations; and

(d) the Client Materials are accurate and complete in all material respects.

 

17 LIABILITY

17.1 Subject to clause 17.2 the Company’s maximum aggregate liability under or in connection with this Agreement (including all Purchase Orders and any indemnity contained in this Agreement), whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the total Fees paid to it under this Agreement.

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

17.3 Subject to clause 17.2 (and including for the avoidance of doubt any indemnity contained in this Agreement), in no event will either party be liable under or in connection with this Agreement for:

(a) loss of actual or anticipated income or profits;

(b) loss of goodwill or reputation;

(c) loss of anticipated savings;

(d) loss of data; or

(e) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.

17.4 Where one party (“Indemnifying Party“) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under this Agreement, such indemnity is subject to the Indemnified Party complying with the following process in the event that a third party claim arises:

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

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

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

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

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

 

18 INSURANCE

18.1 The Company shall take out and maintain insurance policies to the value sufficient to meet its liabilities under or in connection with this Agreement. Upon the Client’s reasonable request, the Company will provide the Client with evidence that such insurance is in place.

18.2 The Client acknowledges and agrees that nothing in this Agreement shall place any obligation upon the Company to obtain insurance cover in relation to risks arising from terrorism or military action or any threat of terrorism or military action and the Company shall not be liable to the Client under this Agreement for any loss of any kind arising from any such action or threat.

 

19 INTELLECTUAL PROPERTY RIGHTS

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

19.2 Subject to the remaining provisions of this clause 19 and subject to the Company receiving payment of all Fees attributable to the Company Materials the Company hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in the Company Materials which are capable of being assigned together with the right to sue for past infringement of the Intellectual Property Rights in the Company Materials.

19.3 The Client acknowledges that all Intellectual Property Rights in the Company Proprietary Materials shall be owned by and remain the property of and vested in the Company. Subject to the Company receiving payment of all Fees attributable to the Company Proprietary Materials licensed under this clause, the Company hereby grants to the Client a licence to use such Company Proprietary Materials as are included in the Deliverables, solely for the purpose of obtaining the benefit of the Deliverables and any purpose set out in the relevant Purchase Order.

19.4 Prior to delivery of the Deliverables, the Company shall obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Materials for the purposes set out in the Purchase Order. The Company shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Materials, and the Client hereby indemnifies and keeps the Company indemnified against any Losses suffered by the Company as a result of the Client or its Affiliates breaching any such restrictions.

19.5 Notwithstanding any of the above and save as otherwise expressly provided for in a Purchase Order, the Company shall:

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

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

During the Term, if the Company is asked to take part in a competitive pitch or other similar process for the Client, then notwithstanding any of the previous provisions of this clause 19, the Company shall retain ownership of all Intellectual Property Rights in any Materials forming part of the pitch process, save to the extent that the Company is successful in such pitch and the parties agree that such Materials will be used in accordance with Services to be provided under a Purchase Order.

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

19.7 The terms of and obligations imposed by this clause 19 shall survive the termination of this Agreement for any reason.

 

20 ADVERTISING STANDARDS

20.1 The parties acknowledge that, while the Company shall perform the Services having regard to the standards generally observed in the industry for similar services and will do so with reasonable skill and care, the Client shall be solely responsible for ensuring the Deliverables comply in all respects with Advertising Regulation.

20.2 The parties will co-operate with each other in ensuring that suitable objective factual product and other information is available as required to satisfy the requirements of any applicable Advertising Regulation.

 

21 TERMINATION

21.1 Either party may terminate this Agreement without cause at any time after expiry of the Initial Period by giving not less than two months written notice to the other party, provided that such notice to terminate cannot expire until the Initial Period has elapsed.

21.2 Either party may terminate this Agreement immediately upon written notice to the other party:

(a) in the event of any material breach of this Agreement by the other party which breach is not remediable or, if remediable, is not remedied within 14 days after the service by the party not in default of a written notice on the defaulting party, specifying the nature of the breach and requiring such breach to be remedied; or

(b) if the other party suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

(c) if 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 or enters into any compromise or arrangement with its creditors (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or

(d) if a petition is filed, or a notice is given, or a resolution is passed or an order is made for or in connection with the winding up of that other party (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or

(e) if 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.

 

22 CONSEQUENCES OF TERMINATION

22.1 Upon termination of this Agreement for any reason:

(a) the Client shall pay the Company all Fees, Expenses and Third Party Costs due to the Company including during the notice period; and

(b) subject to clause 22.2(a) each party shall on the reasonable request of the other party promptly deliver or dispose of any and all materials and property belonging or relating to the other party (including all Confidential Information) and all copies of the same, which are then in its possession, custody or control and shall on the request of the other party certify in writing that the same has been done.

22.2 Provisions of this Agreement which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination shall remain in full force and effect notwithstanding termination of this Agreement. Notwithstanding the generality of the foregoing, the following clauses shall survive termination of this Agreement:

(a) Clause 14 (Confidentiality);

(b) Clause 15 (Company warranties);

(c) Clause 16 (Client warranties);

(d) Clause 17 (Liability);

(e) Clause 18 (Insurance);

(f) Clause 19 (Intellectual Property Rights);

(g) Clause 22 (Consequences of Termination);

(h) Clause 23 (Non-Solicitation); and

(i) Clause 28 (General).

 

23 NON-SOLICITATION

During the Term and for a further period of 6 after its termination, neither party shall (except with the prior written approval of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party either in the provision or receipt of any Services or Deliverables, other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.

 

24 FORCE MAJEURE

The Company shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications 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 sub-contractors, provided that the Client is notified of such an event and, where practicable, its expected duration.

 

25 ASSIGNMENT AND SUB-CONTRACTING

25.1 The Company shall be entitled to sub-contract its performance of the Services and/or Deliverables provided that any sub-contracting shall not relieve the Company from its obligations to the Client under this Agreement.

25.2 Neither party may assign, transfer or charge or otherwise dispose of this Agreement or any of its rights or obligations arising hereunder without the prior written approval of the other party.

 

26 THIRD PARTY RIGHTS

A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

 

27 DATA PROTECTION

27.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 27 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

27.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Company is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). Schedule 2 sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of Personal Data and categories of Data Subject (both as defined in the Data Protection Legislation).

27.3 Without prejudice to the generality of Clause 27.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Company for the duration and purposes of this Agreement.

27.4 Without prejudice to the generality of Clause 27.1, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of its obligations under this Agreement:

(a) process that Personal Data only on the written instructions of the Client unless the Company is required by applicable laws to otherwise process that Personal Data. Where the Company is relying on the laws of a member of the European Union or European Union Law as the basis for processing Personal Data, the Company shall promptly notify the Client of this before performing the processing required by the applicable laws unless those applicable laws prohibit the Company from so notifying the Client;

(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;

(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled;

(i) the Client or the Company has provided appropriate safeguards in relation to the transfer;

(ii) the data subject has enforceable rights and effective legal remedies;

(iii) the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

(iv) the Company complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data.

(e) assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f) notify the Client without undue delay on becoming aware of a Personal Data breach;

(g) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data; and

(h) maintain complete and accurate records and information to demonstrate its compliance with this Clause 27

27.5 The Company may only authorise a third party (subcontractor) to process the Personal Data if the Client is provided with an opportunity to object to the appointment of each subcontractor within 7 days after the Company supplies the Client with full details regarding such subcontractor. The Company will enter into a written agreement with the third-party processor substantially on that third party’s standard terms of business. As between the Client and the Company, the Company shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 27.

27.6 Either party may, at any time on not less than 30 days’ notice, revise this Clause 27 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).

 

28 GENERAL

28.1 The failure of either party to enforce or exercise at any time any term or any right under this Agreement does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect that party’s later right to enforce or to exercise it.

28.2 If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.

28.3 This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties acknowledges and agrees that:

(a) in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in this Agreement; and

(b) its only remedies in connection with any statements, representations, warranties and understandings expressly set out in this Agreement shall be for breach of contract as provided in this Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.

28.4 No modification or variation of this Agreement shall be valid unless it is in writing and signed by each of the parties to this Agreement.

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

28.6 This Agreement shall be governed by and construed in accordance with the laws of England and Wales.

28.7 Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute between them arising under or in connection with this Agreement (save in respect of enforcement of judgments where their jurisdiction shall be non-exclusive).