Where these terms mention “you” or “your”, that will be a reference to you, the customer named in the Order Form. Where these terms mention “we”, “us” or “our”, that will be a reference to us, REO Digital a company registered in England and Wales under company number 03975096 whose registered office is Oak House, Crewe Hall Farm, Crewe, Cheshire, CW1 5UE. Note, however, that a reference to “each of us” will be a reference to both you and us, and a reference to “either of us” will be a reference to either you or us (or both) as is applicable.
1. Our ordering process
1.1. If you wish to buy services from us, we will provide you with an Order Form and you may place an order by signing and returning this to us.
1.2. By signing and returning an Order Form, you are just making an offer to buy the Services from us. Our Agreement will not actually become legally binding on you and us until we have accepted the Order Form by either:
1.2.1. confirming to you in writing that we have accepted the Order Form (which we might do by countersigning your order form or providing you with a separate confirmation); or
1.2.2. by starting to provide you with the Services,
whichever happens first.
1.3. If we provide you with a quote or proposal, it is exactly that and until an Order Form has been placed and accepted in line with these terms it is not binding on either of us. Any quote or proposal we give you will only be valid for thirty (30) days.
2. Duration of our agreement
2.1. Our Agreement will start on the Effective Date and will continue until it is ended by you or us in line with these terms “The Term”, unless:
2.1.1. either of us end our Agreement by giving not less than 60 days prior notice in writing, but that notice must expire on an anniversary of the Effective Date; or
2.1.2. otherwise terminated in accordance with this Agreement.
3. Providing the services
3.1. We warrant that the Services will be performed substantially in accordance with the scope outlined in the Order Form, with reasonable skill and care and in line with Good Industry Practice and applicable law.
3.2. From time to time we may update or change the Services or the way in which we deliver them, which will not materially affect the nature or quality of the Services; we may also update the Services as necessary to comply with any applicable law. We may do this without your permission so long as these updates or changes do not have a materially negative impact on the Services.
3.3. Our warranty under Condition 3.1 will not apply to the extent any non-conformance is caused by use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than us.
3.4. Notwithstanding Condition 3.3, we:
3.4.1. do not warrant that your use of the Services will be uninterrupted or error-free;
3.4.2. do not warrant that the Services, Materials and/or the information obtained by you through the Services will meet your requirements; and
3.4.3. are not responsible for any delays, delivery failures or any other loss or damage resulting from the transfer of data over communication networks and facilities, including the internet, and you acknowledge that the Services and Materials may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.5. This Agreement will not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
4. Your use of the services
4.1. Subject to you paying the Fees and complying with the restrictions set out in this Condition 4 and the other Terms and Conditions of this Agreement, we will provide the Services and the Materials during the Term solely for your internal business operations.
4.2. In using the Services, you must:
4.2.1. comply with any User Guides, industry best practice and applicable law;
4.2.2. have appropriate access and security policies and procedures, to prevent any unauthorised access to or use of the Services and keep all usernames and passwords and other security details which you are provided with secure and confidential (and you acknowledge that you must be solely responsible for any use of the Services using such access details); and
4.2.3. have appropriate policies and procedures to prevent the introduction of any Viruses. You must tell us promptly if you become aware of or suspect any unauthorised access or use or the introduction of any Viruses.
4.3. In using the Services, you must not:
4.3.1. copy, modify, reproduce or decompile any part of the Services or any Materials without our written permission (except to the extent your right to do these things cannot be excluded by law or where you are making reasonable copies of any Materials to be able to use the Services) or use any part of the Services or any Materials to build any competing services;
4.3.2. use the Services or Materials for anything other than your own day to day business purposes and must not provide or resell any part of the Services or any Materials to a third party or give or assist a third party in getting access to or using the Services or any Materials;
4.3.3. store, distribute or transmit: (i) any Viruses; or (ii) any material during the course of your use of the Services that is infringing, defamatory, harmful, threatening, obscene, offensive, unlawful, facilitates or promotes unlawful activity or depicts sexually explicit images, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or is otherwise illegal or causes damage or injury to any person or property and we reserve the right, without liability or prejudice to your other rights, to disable your access to any material that breaches the provisions of this Condition and/or immediately suspend access to the Services without liability until such matter is remedied to our satisfaction;
4.3.4. try to bypass, deactivate or otherwise circumvent any security mechanisms in the Services or Materials, including any mechanism used to restrict or control the functionality of any third-party online tools that are critical to the provision of the services which we provide or assist you with access to;
4.3.5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Materials available to any third party; or
4.3.6. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Materials.
4.4. You agree that you will, if so requested, provide to us a short case study and/or positive feedback based on your experience of the Services, which we may use in promoting the Services and REO in general.
5.1. Unless agreed otherwise between you and us in writing, we will invoice you for:
5.1.1. Fees in advance at the start of the month in which we begin Services “Go Live”;
5.1.2. Licence Fees for any third-party tools in accordance with the payment schedule agreed and detailed Schedule 1 of this agreement;
5.1.3. Any additional Fees in arrears, at the end of the month in which they were incurred.
5.2. You must pay our invoices in full within thirty (30) days of the date of our invoice. If you do not then (without limiting any other right we might have) we:
5.2.1. subject to Condition 5.3, may charge interest on the overdue amounts at the rate of 4% per annum above the Bank of England base rate from time to time. This interest will be applied on a daily basis from the date the amount is due until you pay us in full; and/or
5.2.2. disable access to all or part of the Services and we will be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
5.3. If you have a genuine dispute about any invoice, you must inform us of this within ten (10) days of receiving our invoice. You must still pay us any undisputed parts of the invoice while we discuss the disputed part. Interest will only accrue on any disputed sum from the day following agreement or any ruling that such amount is due and payable.
5.4. We may offset any amount which we owe to you, against any amount which you owe to us under our Agreement or any other agreement between you and us.
5.5. If you require a Purchase Order (PO) you must provide this to us in advance of our invoice and in line with Condition 5.1 and in a form acceptable to us.
5.6. Unless we both agree otherwise, when providing you with Additional Services, we may charge for our reasonable travel, accommodation, food and drink expenses and any resource fees will be charged out at our standard resource rates which we will provide you with on request. Our standard resource rates assume that work will not be required outside of normal working hours (9:00am to 5:30pm on a business day) and, if it is, we may increase our standard resource rates for the work undertaken.
5.7. All amounts which you have to pay under our Agreement are, unless we state otherwise, payable in pounds sterling and quoted exclusive of VAT, which is payable at the applicable rate on receipt of a VAT invoice, together with the rest of the amount you have to pay.
5.8. We are entitled to increase Fees:
5.8.1. no more than once annually, capped at the greater of: (i) the increase in the Consumer Prices Index in the preceding 12 months; or (ii) 5%; and/or
5.8.2. with effect from the start of each Renewal Period,
in each case upon ninety (90) days’ prior notice to you.
6. Third party technology
6.1. We may use or give you access to or use of Third Party Technology as part of the Services.
6.2. Occasionally, the provider of Third Party Technology may ask that we audit your use of the Services and Third Party Technology. If we are asked to do this, then you must provide us with reasonable assistance and access to information to enable us to undertake the audit and you recognise that we are allowed to report the audit results to the provider of the Third Party Technology.
6.3. We make no representation, warranty or commitment and will have no liability or obligation whatsoever in relation to the content or use of the Third Party Technology, or correspondence with the applicable third party.
7. Rights in the services
7.1. The Services and the Materials, and all IPR in them, will at all times remain our property (or in some cases, for instance Third Party Technology, the property of our licensors) and you do not have permission to use the Services or Materials other than in line with our Agreement.
7.2. The Customer Data, and all IPR in it, will at all times remain your property and we do not have permission to use it other than to be able to provide the Services in line with our Agreement and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
8.1. We will indemnify you against any loss and reasonable costs which you suffer as a result of any claim that the Services or the Materials infringe the IPR of a third party except where that claim arises directly or indirectly as a result of:
8.1.1. any Customer Data;
8.1.2. the Customer Websites;
8.1.3. your use of the Services or Materials in a manner contrary to our instructions;
8.1.4. your use of the Services or Materials after receipt of notice of the alleged or actual infringement; and/or
8.1.5. any changes, modifications or repairs to the Services or Materials which are not undertaken or authorised by us;
8.1.6. and provided that you tell us of the claim as soon as possible, you do not admit liability or settle the claim and you give us full control of running, defending and settling the claim. You still must mitigate any losses and costs which you might suffer, which you try to recover under this indemnity.
8.2. If we reasonably believe that the Services or Materials might infringe the IPR of someone else, we may replace or modify the infringing element of the Services or Materials without your permission or, if that is not reasonably possible, we reserve the right to terminate the Agreement in whole or in part by immediate written notice (in which circumstance we will refund to you any fees paid in respect of the period following termination).
8.3. Conditions 8.1 and 12.5 state your exclusive rights and remedies, and our (including our employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement or alleged infringement of any patent, copyright, trade mark, database right or other IPR.
8.4. You must defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services and/or Materials, provided that:
8.4.1. you are given prompt notice of any such claim;
8.4.2. we provide reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
8.4.3. you are given sole authority to defend or settle the claim, subject to our prior written approval of any proposed settlement terms or admissions (such approval not to be unreasonably withheld or delayed).
9. Personal data
Duration and application
9.1. The terms of this Condition 9 will apply to all Client Data.
9.2. Unless otherwise agreed in writing, we (REO) will be Data Processor and you will be Data Controller in respect of all Customer Data.
9.3. Without prejudice to the terms of this Condition 9, each party will comply with the Data Protection Legislation.
Data processor obligations
9.4. The Data Processor must process the Client Data solely for the purpose agreed with the Data Controller. All parties envisage that such Processing will comprise web tracking, customer identification, data analysis and analytics, profiling, research, targeting and/or marketing communications and any reasonably necessary related uses. The Data Processor must not process any Client Data for any other purpose except with the express written consent of the Data Controller.
9.5. The Data Processor must, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk to the rights and freedoms of natural persons, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of unauthorised or unlawful processing or accidental loss, destruction or damage of Client Data.
9.6. The Data Processor must ensure that any individuals Processing Client Data on its behalf are made aware of their obligations with regard to the security and protection of the Client Data and must require that they enter into binding obligations with the Data Processor in order to maintain the levels of security, protection and confidentiality provided for in this Condition 9.
9.7. Subject to the provisions of Condition 9.6, the Data Processor must not divulge the Client Data whether directly or indirectly to any person, firm or company without the express consent of the Data Controller, except pursuant to any subcontract approved in accordance with Condition 9.8.
9.8. The Data Processor must equally comply with such requirements in respect of any future appointment of a sub-processor. In the event that the Data Processor appoints a sub-processor, the Data Processor must give the Data Controller no fewer than twenty eight (28) days’ written notice before the sub-processor commences work and you will be entitled, within fourteen (14) days of the date of such notice, to inform us in writing of your objection to the proposed sub-processor.
9.9. The Data Processor will without undue delay inform the Data Controller if an incident involving the Data Processor or any Sub-processor has resulted, or may reasonably result, in unauthorised access to or disclosure of the Client Data (“Data Breach”).
9.10. The Data Processor must assist the Data Controller:
9.10.1. in complying with its security obligations, including informing Data Subjects, where required, if they are affected by a Data Breach; and
9.10.2. in undertaking any necessary data privacy impact assessments.
The Data Processor will assist the Data Controller in informing the relevant Supervisory Authority of any Data Breach.
9.11. The Data Processor will assist the Data Controller in providing the information or services required to allow Data Subjects to exercise their rights pursuant to the Data Protection Legislation. These rights include subject access, rectification, deletion, portability and objections to processing.
9.12. The Data Processor will without undue delay pass on to the Data Controller any notices, requests or other communications from a Data Subject whose Personal Data is included within the Client Data. The Data Processor will not act on any request from a Data Subject without the prior written authority of the Data Controller.
9.13. The Data Processor must not transfer any Client Data outside the European Economic Area without the Data Controller’s prior written consent.
9.14. The Data Processor must keep records of all Processing of Client Data.
9.15. The Data Processor must appoint a data protection officer if required in accordance with the Data Protection Legislation. At the date of this Agreement this role is held by Tim Roe, who may be contacted at firstname.lastname@example.org.
Data controller obligations
9.16. The Data Controller must provide all reasonable assistance and cooperation as the Data Processor may request in connection with the Client Data, including making available representatives to provide prompt and accurate instructions.
9.17. The Data Controller warrants that it has complied with all Data Protection Legislation in acquiring the Client Data. Without prejudice to the foregoing, the Data Controller represents that all Client Data has been lawfully and fairly processed at the point of its delivery to the Data Processor and that it has verifiable records of Data Subjects’ consent to processing or any other applicable conditions or bases of processing.
9.18. The Data Controller must not knowingly or recklessly do anything to put the Data Processor in breach of Data Protection Legislation.
9.19. The Data Controller will advise the Data Processor without delay should it become aware of any security breach or unlawful processing relating to any Client Data provided to the Data Processor.
9.20. The Data Controller will ensure that it provides clear and comprehensive instructions to the Data Processor and will, where so requested, assist the Data Processor in developing an appropriate scope for processing the Client Data.
9.21. The Data Processor must, upon request, provide evidence to the Data Controller of the measures it has implemented to comply with its security obligations pursuant to Condition 9.5. The Data Processor must allow the Data Controller and/or its auditors or their representatives to have access to relevant processes, procedures, documentation and/or premises of the Data Processor for the purposes of inspection and audit, such access to take place on reasonable advance notice and during normal working hours. The Data Processor reserves the right to charge a reasonable amount in respect of time spent on such audits and inspections.
9.22. If the Data Controller reasonably believes that the Data Processor is in breach of any of its obligations under this Condition 9, the Data Processor must make all reasonable endeavours to provide prompt co-operation and assistance to the Data Controller and/or its representatives at no additional charge.
9.23. The Data Processor must immediately inform the Data Controller if it believes that any instruction from the Data Controller infringes Data Protection Legislation.
9.24. The Data Processor must promptly investigate any Data Breach, provide status updates, cooperate with the Data Controller’s reasonable requests during the management of the Data Breach (or, at its option, permit the Data Controller to support the management of the Data Breach) and send a written report to the Data Controller, describing the nature of the Data Breach and any remedial actions taken and/or planned.
9.25. Subject to the provisions of Condition 12.3the Data Processor’s liability to the Data Controller for any loss or damage of whatsoever nature suffered or incurred by the Data Controller, or for any liability of the Data Controller to any other person for any loss or damage suffered or incurred by that person, in connection with this Condition 9 or any Client Data must to the extent permitted by law:
9.25.1. be limited to direct losses only; and
9.25.2. not exceed one million pounds (£1,000,000) per claim or series of related claims.
9.26. On termination of this Agreement, save to the extent retention is required in order to meet legal or regulatory requirements, the Data Processor must, upon receipt of written notice from the Data Controller, return or securely destroy any Client Data.
9.27. We may, at any time on not less than thirty (30) days’ notice, revise this Condition 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which must apply when replaced by attachment to this Agreement).
9.28. Given the importance of this Condition 11, we both agree that if either of us breach it, that will be considered a material breach of our Agreement.
10. Confidential information
10.1. Each of us (“Receiving Party”) must keep in strict confidence all Confidential Information which has been disclosed by the other (“Disclosing Party”) or the disclosing party’s employees, agents or subcontractors for the duration of this Agreement and for a period of two (2) years after termination of the Agreement. Neither party may use any Confidential Information relating to the other party for any purpose other than to enforce its rights or perform its obligations in relation to this Agreement.
10.2. The receiving party must only disclose Confidential Information to those of its employees, agents and subcontractors who need to know it for the purpose of complying with the receiving party’s obligations under our Agreement, and must make sure that those employees, agents and subcontractors comply with the obligations set out in this Condition 10 as though they were a party to our Agreement.
10.3. Each of us will make sure that reasonable precautions are taken to protect any Confidential Information (and these must be at least as effective as those taken to protect each of our own confidential information).
10.4. This Condition 10 will not apply to any Confidential Information which:
10.4.1. was already known to the receiving party;
10.4.2. becomes public without breach of our Agreement by the receiving party; or
10.4.3. a third party discloses without breaching any duty of confidence owed to the disclosing party.
10.5. The receiving party may disclose such Confidential Information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
10.6. You acknowledge that details of the Services, and the results of any performance tests of the Services, constitute our Confidential Information.
10.7. We acknowledge that the Customer Data is your Confidential Information.
10.8. Nothing in this Agreement will prevent us from making any announcement or issuing any press release or other marketing material stating that you are a client of REO.
11. Ending our agreement
11.1. We may end our Agreement or suspend the Services by giving you notice in writing if:
11.1.1. you are in material breach of our Agreement and, where it is possible to correct the breach, you have not corrected this within thirty (30) days of us giving you notice in writing asking you to do so;
11.1.2. you have not paid an invoice (other than parts disputed in line with Condition 5.3) within thirty (30) days of the date of our invoice;
11.1.3. you repeatedly breach any terms of this Agreement in such a manner as reasonably to justify the opinion that your conduct is inconsistent with you having the intention or ability to give effect to its terms;
11.1.4. you undergo a change of ownership or control (within the meaning of Section 1124 of the Corporation Tax Act 2010);
11.1.5. you suffer an Insolvency Event; or
11.1.6. despite our reasonable efforts, we have been unable to complete Set-Up within thirty (30) days of our anticipated Effective Date.
11.1.7. In addition, either of us may end the Agreement pursuant to Condition 2.1.1.
11.2. You may end our Agreement by giving us notice in writing if:
11.2.1. we are in material breach of our Agreement and, where it is possible to correct the breach, we have not corrected this within thirty (30) days of you giving us notice in writing asking us to do so; or
11.2.2. we suffer an Insolvency Event.
11.3. If our Agreement ends for any reason, then:
11.3.1. all licences granted under this Agreement will immediately terminate;
11.3.2. each of us must within fourteen (14) days return and make no further use of any equipment, property, Materials and other items (and all copies of them) belonging to the other party;
11.3.3. we may send you an invoice for any Services we have provided but have not invoiced you for, and all of our invoices will become payable immediately;
11.3.4. each of us must within fourteen (14) days return to the other or, if asked, securely destroy any Confidential Information and other materials of the other (including in our case, the Materials).
11.4. Any of these terms that expressly or by implication are intended to come into or continue in force on or after termination (including Conditions 7, 8, 9, 10, 11.3, 11.4, 11.5, 12, 13, 14, 16 and 17) will remain in full force and effect.
11.5. When our Agreement ends, this will not affect any rights, remedies, obligations or liabilities of the parties that have accumulated up to that date, including the right to claim damages in respect of any breach of our Agreement which existed at or before that date.
12.1. Without prejudice to Conditions 4.1 and 8.3 this Condition 12 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you:
12.1.1. arising under or in connection with the Agreement;
12.1.2. in respect of any use made by you of the Services and Materials or any part of them; and
12.1.3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
12.2. To the extent of any conflict between the provisions of this Condition 12 and Condition 9.26 (in relation to personal data), Condition 9.26 will prevail.
12.3. Except as expressly and specifically provided in these terms:
12.3.1. you assume sole responsibility for results obtained from your use of the Services and the Materials, and for conclusions drawn from such use;
12.3.2. we will have no liability for any damage caused by errors or omissions in any information, instructions or scripts you have provided to us in connection with the Services or any actions we have taken at your direction;
12.3.3. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute, common law or custom and practice are, to the fullest extent permitted by applicable law, excluded from the Agreement.
12.4. There are certain things which parties to a contract cannot limit or exclude liability for by law, for example fraud, fraudulent misrepresentation and death or personal injury caused by negligence. Nothing in this Condition 12 or anywhere else in our Agreement excludes liability for these things. This Condition 12 also does not limit your liability to pay the Fees in any way.
12.5. There are other things however, for which liability can be limited or excluded, and you recognise that the Fees take account of the liability which we are able to accept under our Agreement and the limitations and exclusions set out in this Condition 12.
12.6. Subject to Condition 12.3, neither we nor you will be liable to the other for any Loss the other suffers to the extent that such loss is:
12.6.1. loss of: (i) revenue; (ii) business; (iii) profits; (iv) savings; or (v) reputation;
12.6.2. business interruption costs or losses; or
12.6.3. indirect or consequential loss.
12.7. We will not be liable to you for any Loss you suffer to the extent that loss is caused by an Excluded Issue or for any Loss which is caused by your failure to comply with these terms.
12.8. Our liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, including under any indemnity, per claim or series of connected claims arising in connection with the Contract must, subject to Conditions 9.26 and 12.5 be limited as follows:
12.8.1. in respect of any claim relating to loss of or damage to data arising from REO’s negligence, REO’s liability will be limited to the lesser of: (i) the total Fees paid during the twelve (12) months immediately preceding the date on which the claim arose; and (ii) £100,000; and
12.8.2. in respect of any other claim, REO’s liability will be limited to the total Fees paid during the six (6) months immediately preceding the date on which the claim arose.
12.9. Neither we or you will be liable to the other for any Loss the other suffers unless notified of the same within two (2) years of the claiming party becoming aware of the claim (whether the claim is in contract, tort (including negligence), breach of legal duty or otherwise).
13. Other important terms
13.1. Events outside of our control
We live in unpredictable times. We will have no liability to you under this Agreement if we are prevented from or delayed in performing our obligations under this Agreement by circumstances or events beyond our reasonable control, provided that we have notified you of such an event and its expected duration. Such circumstances include, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce 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.
Unless we have said elsewhere in these terms that we may change or update something, any changes to our Agreement have to be agreed between you and us in writing. This does not affect our right to revise these terms from time to time.
If we fail to exercise any of our rights or remedies provided under our Agreement or by law, or if we only exercise any right or remedy in part, this must not to be taken to be a waiver of that or any other right or remedy and it must not prevent nor restrict us from further exercising that or any other right or remedy.
13.4. Our entire agreement
Our Agreement is the entire agreement between you and us. You recognise that you have not relied on any statement, promise or representation made or given by us or on our behalf which is not set out in our Agreement. In particular, any presentations, worked examples, or projections which we give you are illustrative only and based on estimates to give you an idea of our services, but do not form part of our Agreement.
If any provision of our Agreement is found to be invalid or unenforceable for any reason, then the other provisions of our Agreement will be unaffected as if the invalid or unenforceable part did not exist.
13.6. Our relationship
We are your independent contractor. Our Agreement will not create any type of employment, legal partnership or agency relationship. If, as a result of the application of the Transfer Regulations or otherwise, the employment of any person (or any claim or liability related to such person) who has been employed or engaged by you or any third party transfers or is deemed to transfer to us as a result of or connected to our Agreement or us providing you with the Services, then we may dismiss such persons (which we may do immediately) and you must reimburse and compensate us in full (without us having to mitigate) in respect of any Employment Liabilities that arise and the limitations and exclusions of liability in Condition 12 do not apply to this Condition 13.6. In the event that there is any such transfer you must comply with your obligations under the Transfer Regulations and must, at your own cost, co-operate with us and promptly provide us with all such information as we request in relation to such person and the transfer.
13.7. Third parties
The provider of any Third Party Technology will be able to enforce our Agreement to the extent it relates to your access to or use of their Third Party Technology. Other than as we have set out in this Condition 13.7 no third party will have any rights under our Agreement. The permission of any third party is not needed for you and us to agree any changes to our Agreement.
13.8. Transferring our agreement
Our Agreement is personal to you and so you must not assign, sub-contract or otherwise transfer our Agreement or any rights or obligations under it without our written permission. We may however assign, sub-contract or otherwise transfer our Agreement or any rights or obligations under it without your permission. If we do assign or transfer our Agreement to someone else, we use reasonable efforts to tell you about this before or shortly after the assignment or transfer.
If either of us is giving notice to the other under these terms, then this may be done by recorded post or by email. If we are giving you notice, we may send this to the postal or email address which you have given on your order form or which you have otherwise provided us with. If you are giving us notice, you may send it to our registered office marked for the attention of your account manager or send by email to your account manager to the email address which your account manager has provided you with. Postal or email addresses for notices may be updated by giving notice in line with this Condition 13.9. Notices sent by recorded post will automatically be deemed to have been delivered two (2) business days after posting. Notices sent by email will be automatically deemed to have been delivered on the day of sending if sent before 5:00pm on a business day, otherwise at 10:00am on the next business day, unless a delivery failure report or an out of office reply is received. If you receive a delivery failure report or an out of office reply, you must ensure you send the notice in another way that is allowed under this Condition 13.9.
14.1. Each of us will nominate representatives to deal with any disputes which arise under the Agreement. The identity of these representatives may be changed at any time. The table below sets out the appropriate level for each representative at each stage of the resolution process.
|Stage 1||Optimisation Manager||Manager|
|Stage 2||Customer Success Manager||Senior Manager|
|Stage 3||Commercial Director||Director|
14.2. Each of us will refer any dispute that arises under or in connection with our Agreement to the representatives (the first reference being made by either stage one representative to the other in writing). The representatives will discuss the issue within fourteen (14) days (or such other period we both agree to) at a mutually agreed time, to try and seek resolution or decide upon a course of action for resolution of the dispute. If the dispute cannot be resolved in these timescales or a time for discussion cannot be agreed within these timescales, either of us may refer the dispute to the next level of representative.
14.3. If any dispute has not been settled or a course of action for its settlement agreed within the timescales set out above, either of us may commence legal proceedings.
14.4. Nothing in this Condition 14 will prevent either of us seeking injunctive relief or commencing legal proceedings to recover any debts due and payable or where a delay in commencing proceedings may reasonably be considered to prejudice the claiming party’s position.
15.1. Each of us must comply with all laws and regulations relating to anti-bribery and anti-corruption, including the Bribery Act 2010, and whilst our Agreement is in force have and maintain suitable policies and procedures to ensure such compliance and enforce them appropriately.
15.2. Neither of us must engage in any activity, practice or conduct which would be an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK.
16. Applicable law
Our Agreement and any disputes which arise out of or in connection with our Agreement, whether the dispute is a contractual one or not, must be governed by the law of England and Wales and must be subject to the exclusive jurisdiction of the courts of England and Wales.
17. Definitions and interpretation
The definitions we use in these terms are as follows:
“Additional fees” means our fees and expenses for providing you with any Additional Services.
“Additional services” means any services which we agree to provide you from time to time which are not completing Set-Up or the Available Services.
“Agreement” means the legally binding agreement between you and us for services which comes into existence in line with these terms and incorporates these terms (as updated from time to time), any documents referenced within these terms, the relevant Order Form and if applicable any Solutions Overview Document.
“Available services” means services, products, tools and/or solutions which we will provide you with or make available which are set out in the Order Form together with any help and support services within the scope set out in these terms.
“Client data” means any Personal Data Processed by us on your behalf.
“Condition” means a term, condition or section of these Terms of Service.
“Confidential information” means any technical or commercial know-how, specifications, processes or initiatives which either of us receives from the other, or information either of us receives about the other’s business, affairs, customers, clients, suppliers, plans or market opportunities which are of a confidential nature and any other information of a confidential nature received.
“Customer data” means any data (including personal data) about your customers, users of the Customer Websites or people on the Customer Databases.
“Customer websites” means your website(s) in relation to which we provide you with the Services, as indicated on the relevant Order Form.
“Data breach” will have the meaning given in Condition 9.9.
“Data controller” means a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed, or such other meaning as set out in the Data Protection Law.
“Data protection law” means the General Data Protection Regulation EU 2016/679 (“GDPR”) and the UK legislation implementing GDPR Data Protection Act 2018 and any subsequent amendments.
“Data protection legislation” means all applicable data protection and privacy legislation, regulations, guidance and codes of practice, including:
• the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
• any secondary legislation pursuant to the Data Protection Law; and
• any guidance or codes of practice issued by Working Party 29, the European Data Protection Board or the Information Commissioner from time to time (all as amended, updated or re-enacted from time to time).
“Data subject” means an individual who is the subject of personal data, or such other meaning as set out in the Data Protection Law.
“Effective date” means the date on which an Order Form is accepted by us in line with these terms.
“Employment liabilities” means all costs, losses, proceedings (including any applicable Court or Tribunal fees), actions, claims, demands, liabilities, damages and obligations which we incur or are liable for (including our legal costs and expenses) arising out of or in connection with a person’s employment and/or its termination and/or any claim for a failure to consult in relation to a transfer that could be brought by such person or any employee representative on behalf of such person (in each case whether on, before or after such person’s transfer).
“Fees” means any Setup Fees, Service Fees, Licence Fees and/or Additional Fees.
“GDPR commencement date” means the date on which the General Data Protection Regulation is in full force and effect in the United Kingdom.
“Good industry practice” means the level of skill and diligence that you would reasonably expect of a service provider in our industry performing similar services, in a similar context and for a similar fee.
“Insolvency event” means: (i) convening a meeting of creditors or a proposal is made for any composition, scheme or arrangement with creditors; (ii) being unable to pay debts within the meaning of section 123 of the Insolvency Act 1986; (iii) a trustee, receiver or administrative receiver or similar officer being appointed in respect of all or any part of a business or a business’s assets; (iv) a petition is presented or a meeting is convened to consider a resolution (or other steps are taken) for winding-up, other than for a solvent amalgamation or reconstruction; or (v) 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.
“IPR” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Loss” means any loss, cost, expense, damage or claim arising under or in connection with our Agreement, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise.
“Materials” means any documents, guides, videos, reports or other materials belonging to us or which we provide or make available to you in connection with the Services.
“Order form” means your order for Services, completed using our order form, which contains details of the Services which you have requested from us.
“Personal data” means data which relate to a living individual who can be identified either from those data alone, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, or such other meaning as set out in the Data Protection Law.
“Processing” will have the meaning set out in the Data Protection Law (and “Process” and “Processed” will be construed accordingly).
“Processor” or “Data Processor” will have the meaning set out in the Data Protection Law (and “Process” and “Processed” must be construed accordingly).
“Processing” in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including organisation, adaptation or alteration of the information or data; retrieval, consultation or use of the information or data; disclosure of the information or data by transmission, dissemination or otherwise making available; or alignment, combination, blocking, erasure or destruction of the information or data; or such other meaning as set out in the Data Protection Law (and “Process” and “Processed” must be construed accordingly).
“Renewal period” means any renewal period described in Condition 2.1.
“Services” means completing Set-Up, the Available Services and any Additional Services.
“Set-Up” means the configuration of the Available Services which we need to do in order to make them available to you.
“Set-Up fees” means any fees set out in the Order Form or otherwise agreed in writing for Set-Up.
“Supervisory authority” means the Information Commissioner’s Office in the United Kingdom and/or such other supervisory body as may be appropriate to the Processing and/or Data Subjects in question.
“Third party technology” means any software, tools, code, hardware or other technology which is not our own proprietary technology.
“Transfer regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 or equivalent in any other jurisdiction.
“User guides” means any user guides, e-learning materials, documentation, instructions or acceptable use policies which we provide you with from time to time in relation to the Services.
“Virus” means any thing or device, including without limitation, any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
In these terms: (i) the headings are included for convenience only; (ii) the expressions “including”, “include”, “in particular”, “for example” and any similar expressions will not limit the preceding words; (iii) words in the singular will include the plural and vice versa, references to any gender will include all genders and references to legal persons will include natural persons and vice versa; (iv) references to any law or regulation will, unless the context otherwise requires, be construed as including references to any amended and/or replacement statute or statutory provision; (v) references to “writing” and “written” will include electronic communication by email; (vi) reference to “business days” will mean any day, other than a Saturday, Sunday or public holiday in England; and (vii) to the extent of any conflict between these terms (as updated from time to time) and any documents referred to in these terms the following order of precedence will apply:
1. The Order Form;
2. The data processing provisions at Condition 9 of these terms;
3. The remainder of these terms;