THIS AGREEMENT (“Agreement”)
BETWEEN:
(1) “Digital Partner” refers to the entity LocalEdge Navigator Sole Trader, registered in England and Wales, located at 34 Prince Road, London, SE25 6NW, and operating the website: http://go.bestsearchlist.com/
(2) THE CLIENT or “Client” (as identified in the Client Agreement) means the individual (person), corporation, partnership, or entity engaging the Digital Partner for advertising services (advertising of the Client’s website).
INTRODUCTION:
(A) The Client desires to procure services and deliverables, as detailed in the Client Agreement, and the Digital Partner has agreed to provide these services.
(B) Both parties agree that the services and deliverables shall be governed by this Agreement.
(C) This Agreement governs the provision of services and deliverables by Digital Partner not only to the Client but also to any affiliated company of the Client Group purchasing Broadcast Placements or receiving Media Planning services.
IT IS AGREED AS FOLLOWS:
1. Definitions and Interpretations
1.1 In this Agreement, references to clauses and schedules pertain to clauses and schedules of this Agreement. The terms of any Client Agreement are also incorporated herein. In case of conflict between provisions of the schedules or the Client Agreement and those of this Agreement, precedence shall be given in the following order unless expressly stated otherwise in the Client Agreement:
1.1.1 Main Body of this Agreement
1.1.2 Client Agreement
1.1.3 Schedules
1.2 Unless context requires otherwise:
1.2.1 “Person” includes both parties – natural person and legal entity such as limited companies, organisations and legal entities.
1.2.2 The terms “include” and “including” imply without limitation.
1.2.3 References to legislation encompass any subordinate legislation enacted under it, as amended or replaced at any time.
1.3 Headings in this Agreement serve for convenience only and do not affect its interpretation.
1.4 Specific terms shall bear the meanings assigned to them in this Agreement:
“Memberships” refers to the Client’s products and services under the Services as defined in a Service Scope;
“Promotions” encompass all advertising or sponsorship materials procured by Broadcast Placements on behalf of the Client in connection with the Services;
“Regulations” include applicable codes of practice or adjudications by the Committee of Advertising Practice or the Advertising Standards Authority, along with UK laws directly pertinent to the Services;
“Digital Partner Creative Assets” denote materials produced by Digital Partner for an Outreach Campaign, excluding Digital Partner Proprietary Assets;
“Digital Partner Proprietary Assets” include software, methodology, and any other Creative Assets owned or licensed by Digital Partner, existing before intended use in an Outreach Campaign or created for general business use;
• in existence before the date on which it is intended to use them for an Outreach Campaign; or
• created by or for the Digital Partner outside of an Outreach Campaign and which are intended to be reused across its business;
“Agreement” is comprised of these terms, any applicable Module Terms, exhibits, schedules, addenda, or other attachment appended hereto (the “Agreement”) and any Quotation/s, Order Form/s or Proposal entered into between Digital Partner and the relevant Client (all legal documents signed between parties);
“Authorization” means approval given following clause 10.1;
“Partners” means a party’s employees, officers, agents, sub-contractors or authorised representatives;
“Approved Digital Partner Representative” means those Digital Partner personnel who have the authority to bind the Digital Partner contractually in all matters relating to this Agreement (and any successor(s) notified to the Client);
“Approved Client Representative” means those Client personnel who have the authority to bind the Client contractually in all matters relating to this Agreement (and any successor(s) notified to the Digital Partner);
“Business Day” means any day other than:
• a Saturday, Sunday or public holiday in England; or
• any day between 24th December in any year and 1st January in the immediately following year (inclusive);
“Outreach Campaign” means the Client’s advertising campaign;
“Cancellation Charge” means a sum equal to one or three month’s Fees calculated as an average of the Fees due to the Digital Partner from the Client over one or three months before the date of cancellation (depending on the term in the agreement);
“Client Division” means:
(a) the Client (and any holding companies or subsidiary companies of the Client) and any subsidiary company of the holding Company (together with any holding companies or subsidiary companies of such subsidiary) where ‘holding company’ and ‘subsidiary company’ shall have the meaning given in Companies Act 2006 or equivalent in any applicable country;
(b) any affiliated or associated companies of the Client or any affiliated or associated companies of any entity within the same group of companies as the Client (irrespective of the Client’s percentage shareholding) including any companies with which the Client has a joint venture; and
(c) any sub-contractor or agent of the Client or any other entity providing services directly or indirectly to the Client authorised to purchase Broadcast Placements on behalf of the Client.
“Client Resources” means any client equipment, computer systems, software, documents, copy, and any other materials or information owned by or licensed to the Client including any Promotions or Materials which have been prepared for the Client (by a third party or otherwise) and which are provided to the Digital Partner by or on behalf of the Client and in respect of which the Digital Partner is asked to provide Services under this Agreement;
“Client Portals” means any websites, social media pages, mobile apps or other digital platforms that are owned, controlled or operated by the Client that are relevant to the provision of the Services or Creative Deliverables;
“Confidential Information” means all information (whether written or oral) concerning the business and affairs of the Digital Partner or of its clients which is obtained or received by the Client as a result of the discussions leading up to the entering into or performance of this Agreement (including without limitation all technical, financial and non-public information of any nature whatsoever) and which is marked confidential or which ought reasonably to be treated as confidential;
“Controller Personal Data” means all Personal Data which is owned, controlled or processed by the Digital Partner on behalf of the Client and which is provided by or on behalf of the Client to the Digital Partner or which comes into the possession of the Digital Partner as a result of or in connection with the supply of the Services;
“Data Controller”, “Data Processor”, “Data Subject”, “Personal Data” and “Process” shall bear the respective meanings given to them in the Data Protection Act 1998 or General Data Protection Regulation 2016 (as applicable) in each case as may be amended, updated, replaced or superseded from time to time (and “Processes” and “Processing” shall be construed accordingly);
“Data Protection Legislation” means the EU Data Protection Directive, the Data Protection Act 2018 and any other legislation in force from time to time which implements that Directive, the Regulation of Investigatory Powers Act 2000, the Telecommunications Regulations 2000, the Electronic Communications Data Protection Directive, the Privacy and Electronic Communications Regulations 2003 and any laws that replace or amend any of these (including without limitation the General Data Protection Regulation 2016 (Regulation (EU)) and (GDPR)), together with the equivalent legislation of any other applicable jurisdiction and all other applicable law, regulations, guidance and codes of conduct in any relevant jurisdiction relating to the processing of personal data and privacy including the guidance and codes of practice issued by the Information Commissioner’s Office (ICO), the European Data Protection Board or any other relevant supervisory authority;
“Data Subject Requests” means a request by a Data Subject to exercise any of their rights set out in the Data Protection Legislation, including but not limited to, requests for access, rectification, erasure or blocking of their Data;
“Creative Deliverables” means creative ad materials, creative ad designs, creative campaigns, selected media plans, selected media buys and advertising (depending on the Client’s goals and budget), which are to be provided by the Digital Partner according to the Service Scope and Advertising services;
“DA” means Digital Account; this refers to, but is not limited to, a Social Media account on Facebook, a Google Ads account, a Microsoft Ads account, Programmatic management tools, Amazon Advertising, Data warehousing or integrating (such as Big Query, Supermetrics), Call tracking packages (such as ResponseTap) and other such platforms managed by the Digital Partner which the Client may be given access to;
“Effective Date” means the date on which the Services commenced;
“Outgoing Costs” means reasonable travelling, hotel, subsistence and other costs incurred by the Digital Partner (if it is necessary) in connection with the supply of Services and Creative Deliverables provided that such Outgoing Costs have received the Client’s prior;
“Charges” means the Digital Partner fees, rates and charges for the Services as detailed in the Client’s Service Scope (Quotations, Order Form/s or Proposals), as may be amended by the parties from time to time under this Agreement;
“Force Majeure Event” has the meaning set out in clause 23.1;
“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, rights to goodwill or to sue for passing off (or unfair competition), rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, and renewals or extensions of, and rights to claim priority from such rights and all similar or equivalent rights or forms of protection which exist now or in the future in any part of the world;
“Quotation” means a written document with services, products and all premiums (the costs involved) offered to the Client by the Digital Partner.
“Quotation Period” means the period of negotiation of all Fees, Charges and any Premiums negotiated between the Digital Partner and the Client.
“Proposal” outlines the services the Digital Partner will provide to the potential Client, the timeline for delivery, all premiums and costs involved, and the benefits the Client can expect. It includes the Digital Partner’s approach, team credentials and results from past experiences. By accepting this Proposal, the Client agrees to the terms of service, payment schedule, and project milestones specified.
“Order Form/s” means written document/s that constitute the order.
“Required Information” means the information which the Client must supply to the Digital Partner to enable the Digital Partner to carry out the Advertising Services;
“Key Personnel” means the Digital Partner individuals assigned to work under the Account Director named in the Service Scope on behalf of the Client;
“Losses” means all losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses (including reasonable legal and other professional costs);
“Creative Assets” means any artwork, copy, models, designs, photographs, commercial, feature film, character, music, voice-over, sound recording, performance, book, painting, logo, or any other material protected by Intellectual Property Rights;
“Broadcast Placement” means the advertising, sponsorship or promotional space or time in a publication, broadcast stream, press insert, transmission, VOD, website or any other on or off-line platform which is purchased either directly or indirectly from Third parties by the Digital Partner in connection with the provision of Services and all clicks howsoever purchased;
“Broadcast Owner” means any third party with whom the Digital Partner contracts or places an order either directly or indirectly for the purchase of Broadcast Placements, including Broadcast Owners, publishers, exchanges, platform providers, search engines, ad servers, campaign partners and related technology and data providers, including, without limitation, affiliates of the Digital Partner, Google, Video on Demand (VOD), YouTube, Sky and DoubleClick as well as online or other media research providers or social media platforms (e.g., Facebook, Twitter, Instagram, LinkedIn);
“Broadcast Cost” means the cost invoiced by Broadcast Owners in respect of Broadcast Placements;
“Moral Rights” means all rights described in Part I, Chapter IV of the Copyright Designs and Patents Act 1988 and any similar rights of authors anywhere in the world;
“Payment Timeline” means the payment schedule set out in the Client Agreement;
“SEO” means search engine optimisation;
“Service Scope” means the description of the Services or Creative Deliverables to be provided by the Digital Partner and other relevant details of the proposed Outreach Campaign and as may be amended by the parties from time to time in writing, as detailed within the Client Agreement;
“Services” means some or all of the services listed in the Schedule which are to be provided as a written legal document under this Agreement as detailed in the Service Scope;
“Term” means the duration of this Agreement as more particularly described in clause 3.1;
“Geo-Targets” means the United Kingdom or any other country (such as the US, Canada, Australia etc), or any region of these countries. Publication and marketing on globally accessible mediums such as the internet shall not mean that the Geo-Targets is deemed to be worldwide;
“Third Party Contracts” has the meaning set out in clause 2.3;
“Third Party Expenses” has the meaning set out in clause 15.1;
“Third Party Resources” means those materials which are either commissioned by the Digital Partner from third parties during the Term and incorporated into the Creative Deliverables or which have been created by a third party and which are in existence at the time it is desired to make use of them for inclusion in the Creative Deliverables; and
“One Year” means twelve months commencing on the Effective Date and each anniversary of the Effective Date during the Term.
2. Appointment of Digital Partner. Engagement and obligation of the parties
2.1 The Client appoints the Digital Partner as its exclusive agent to provide the Services, including negotiating contracts with Broadcast Owners as per the Client Agreement and this Agreement’s terms.
2.2 Digital Partner acts as a principal in all its contracts with Third parties concerning the Services.
2.3 Digital Partner enters into contracts with Third-party suppliers and Broadcast Owners for Services and Creative Deliverables under their respective standards or individual conditions (“Third Party Contracts”). Client acknowledges and accepts that such Third Party Contracts are binding on Client as if incorporated herein, with Digital Partner’s liabilities mirroring those under the Third Party Contracts.
2.4 No terms or conditions accompanying the Client’s acceptance of proposals, quotations, Order Form/s or similar documents will be binding unless expressly agreed in this Agreement.
2.5 Client warrants that all companies within its Client Division contracting with Digital Partner for Broadcast Placements or related media services are bound by the terms of this Agreement.
2.6 Acceptance of Terms and Conditions.
2.6.1 These Terms and Conditions (“Terms”) are to be read together with and constitute an integral part of the Order Form, Quotation, Proposal or any other legal documents – exhibits, schedules, addenda, or other attachment documents appended hereto (the “Agreement”) sets forth the agreement and understandings by and between Digital Partner and Client.
2.6.2 By executing this Agreement, Client accepts the terms and conditions of Advertising Services set forth below. Hereinafter, Digital Partner and Client may be referred to in the aggregate as the “Parties” and each singularly as a “Party”.
2.7 Quotations and Formation of Agreement
2.7.1 The Client will receive the Quotation for further consideration by the Digital Partner;
2.7.2 Quotations provided by the Digital Partner shall remain valid for acceptance by the Client for 21 days from the date of the Quotation unless otherwise withdrawn by the Digital Partner.
2.7.3 A binding contract shall only be established after the Quotation Period upon acceptance of the Quotation, the Order Form, or Proposal which is demonstrated by the signing, counter signing, and dating of the order by the Client, and its subsequent return to the Digital Partner.
2.8 The Client acknowledges and agrees to accept these Terms and Conditions by signing the Order Form or Proposal.
2.9 The Client hereby appoints the Digital Partner to undertake the Advertising Services (as applicable), and the Digital Partner hereby accepts such appointment.
3. Term of Service
3.1 This Agreement shall commence on the Effective Date as defined in the Client Agreement and, unless terminated earlier by its terms, shall continue for the specified period in the Order Form/s or Proposal. Upon expiration, this Agreement shall automatically renew for successive rolling one-month, three, six-month or yearly terms (depending on the agreement), unless either party provides written notice to the other at least 30 days before the current term’s end, expressing its intent not to renew.
4. Client’s Obligations
4.1 The Client shall provide the Digital Partner with comprehensive and clear instructions regarding its requirements for the Services and Creative Deliverables, consistent with the descriptions outlined in the Service Scope (as detailed in the Client Agreement). The Client warrants the accuracy and non-misleading nature of all provided information.
4.2 The Client shall promptly furnish the Digital Partner with any Client Creative Assets necessary for the Services and Creative Deliverables, at no cost. The Client must ensure it holds all requisite rights and licenses for the Digital Partner’s use of these assets. Clause 20.6 regarding indemnification of Digital Partner for the provision of Client Resources shall apply.
4.3 For the sole purpose of the Digital Partner providing the Services, the Client agrees to provide the following upon the Digital Partner’s request:
(a) Administrative CPanel, FTP Login details or back-end access to Client Portals and any other IT infrastructure relevant to analysis of content and structure necessary for Service delivery;
(b) Administrative/backend access to the Website Content Management System (such as WordPress, Joomla, Drupal or other CMS) for editing and analysis.
(c) Permission for Digital Partner to make modifications to Client Portals to facilitate Service provision;
(d) Authorization for Digital Partner to communicate directly with relevant third parties (e.g., Client’s hosting provider) to facilitate Service delivery; and
(e) All reasonable assistance necessary for Digital Partner to perform the Services.
4.4 The Client shall promptly notify the Digital Partner if any Creative Deliverables submitted for approval are believed to be false, misleading, or in violation of any law or Regulations.
4.5 If the Client’s failure to fulfil its obligations under this Agreement prevents the Digital Partner from performing Services as agreed, the Digital Partner shall not be liable for any Losses incurred by the Client, without prejudice to the Digital Partner’s rights and remedies.
5. Service Delivery
5.1 Digital Partner shall provide the Client with clear and complete instructions regarding Client Resources necessary for performing the Services and delivering Creative Deliverables.
5.2 Digital Partner shall:
(a) Apply appropriate time, attention, reasonable skill and care necessary for the proper performance of Services and delivery of Creative Deliverables, aiming for the success expected of a competent media Digital Partner;
(b) Comply with all lawful and reasonable directives concerning Services and Creative Deliverables provided by the Client, with material amendments subject to agreement as per clause 10.1;
(c) Maintain reasonable security of Client Resources under its possession or control; and
(d) Ensure Services and Creative Deliverables comply with applicable laws.
5.3 Digital Partner shall not be responsible for preparing, producing, or supplying copy for any Promotions unless otherwise agreed in writing.
5.4 If the Digital Partner anticipates it may not meet agreed-upon deadlines for performing Services or delivering Creative Deliverables, it shall promptly notify the Client, providing reasons for the delay. Time for performance of Services shall not be of the essence under this Agreement.
6. Digital Partner Services
6.1 Digital Partner shall exercise reasonable care and skill in selecting and engaging actual or potential Broadcast Owners for Broadcast Placements.
6.2 The Client acknowledges and agrees that Broadcast Owners may impose restrictions on user activities and content display on their services, and may require specific privacy disclosures. The Client agrees to comply with such requirements and acknowledges the Digital Partner’s non-liability for Client activities or approvals breaching these requirements.
6.3 Digital Partner shall not be responsible for providing terms of use, privacy policies, notices, or other conditions for Client Portals.
6.4 Digital Partner shall promptly notify the Client in writing if it becomes aware that any Broadcast Owner may be unable to provide a purchased Broadcast Placement for any reason.
7. DA – Digital Account for Social & Marketing Services
7.1 Where, as part of the provision of the Services, the Client is granted access to a DA set up on its behalf as part of an Outreach Campaign via the Digital Partner’s systems, the Client acknowledges and agrees that it is solely liable for all account activity undertaken by or on behalf of the Client via the grant of such access. This includes any changes made to such DA by the Client that negatively impact the DA’s performance or result in financial implications, such as additional costs or the cost of remedial work incurred due to the Client’s actions. Accordingly, the Digital Partner excludes all liabilities for actions taken by the Client as detailed in clause 7.1. The Client acknowledges that the ‘change history’ on Google Ads and the ‘activity history’ in Facebook Business Manager record changes made by each party granted access to such memberships.
7.2 The Client may be granted a revocable, non-transferable, non-exclusive, limited license to use the DA solely for the purposes agreed upon in the Service Scope within their Client Agreement. Access to the DA shall be password-protected, and the Client agrees not to share its password with third parties. If the Client suspects or believes that a third party knows its login details, the Client shall promptly inform the Digital Partner.
SEO & PPC Services
7.3 Regarding SEO, the Client acknowledges that the Digital Partner does not guarantee specific positions for any keyword, phrase, or search term, as search engine listings are at the discretion of the search engines themselves.
7.4 Regarding PPC, the Client acknowledges that due to the operational algorithms of paid search, the Digital Partner cannot guarantee that bid amounts for any words or phrases will secure or maintain particular positions at any specific cost on relevant search engines.
7.5 Furthermore, concerning both SEO and PPC, the Client acknowledges that Digital Partner cannot be held responsible for fluctuations, perceived non-delivery, or damages caused by actions or changes by third parties, including but not limited to:
(a) Differential treatment of the Client Platform by search engines for any reason;
(b) Adoption by the Client of unethical practices related to the Client Platform or practices disapproved by search engines;
(c) Failure by the Client to implement actions required by the Digital Partner within specified timeframes, including on-page changes to the Client Platform;
(d) Engagement of other search engine marketing providers by the Client simultaneously working on the same Client Platform;
(e) Unauthorized changes made by the Client;
(f) In such instances, Charges remain payable by the Client.
7.6 The Client acknowledges that the Digital Partner has no control over search engine policies regarding website types accepted or website ranking criteria now or in the future. Therefore, search engines may:
(a) Cease accepting submissions from Digital Partner indefinitely, with or without notice;
(b) Delist a website at their discretion. If a website fails to reappear within thirty (30) days of delisting, Digital Partner will re-optimize the website based on current search engine policies, at costs agreed upon by the parties. Digital Partner shall not be liable to Client for search engine actions.
7.7 Digital Partner is not responsible for changes made to the website by:
(a) Other parties; or
(b) Client, in choosing to link to or obtain a link from a specific website without prior consultation with Digital Partner, adversely affecting website search engine rankings.
7.8 Digital Partner shall not be responsible for Client overwriting actions taken as part of the Services on the website.
7.9 Digital Partner shall promptly report to Client any significant issues with Service or website performance. Upon the Client’s reasonable request and subject to cost agreement between the parties, the Digital Partner shall use reasonable efforts to rectify such significant performance issues with Services or Client Portals.
7.10 Digital Partner shall include in SEO pages only materials and content developed according to the Specifications.
7.11 Solely for Digital Partner providing the Services, Client agrees to provide the following:
7.11.1 Administrative or back-end access to the website for analysis of its content and structure (explained in detail in Clause 4.3);
7.11.2 Permission for Digital Partner to make changes to the website for optimization purposes (explained in detail in Clause 4.3);
7.11.3 Permission for Digital Partner to communicate directly with any applicable third parties connected with the website (e.g., Client’s web designer) to facilitate Services;
7.11.4 Access to existing traffic statistics for the website for analysis and tracking purposes;
7.11.5 If the website lacks textual content, the Client will provide additional text content in electronic format to create additional or richer web pages.
7.11.6 If the website lacks textual content and the Client is unable to provide additional text content in electronic format to create additional or richer web pages then the Digital Partner can help the Client with copywriting. This service must be in a separate Agreement.
7.12 The Client acknowledges and agrees that the Digital Partner cannot guarantee owners of any Third-Party website will agree to provide a link from that website to the Client’s Platforms.
7.13 The Client acknowledges that paid activity with Google is subject to Google’s passing on of the Digital Services Tax (DST). This amount will be added to invoices at 2% of the Broadcast Cost on the client’s expenditure with Google. DST will not be subject to the Digital Partner’s bid management fee or other markups but will be subject to VAT at the prevailing rate. This amount will not appear in schedules provided by Digital Partner. Unless otherwise agreed in the Client Agreement, discussion and approval of budgets on Google activity will be net of this charge. The Client further acknowledges that should other Broadcast Owners pass on the DST in the same way or the amount of the DST change, its treatment will be identical to that set out for Google within clause 7.13.
Social Media
7.14 If the Digital Partner manages paid social media activity as part of the Services, the Digital Partner will endeavour to address all requests for Outreach Campaign adjustments and customer relationship management within reasonable timescales. However, Digital Partner can only guarantee that such adjustments and responses will be executed between 9:00 and 17:30 GMT (Monday to Friday).
Content Verification and Brand Safety
7.15 The Client and Digital Partner will agree on brand safety and Content Verification tools (“CV Tools”) for monitoring and blocking websites and mobile applications content related to the Client’s Digital Placements. Selected CV Tools must be certified by the Audit Bureau of Communications (“ABC”) according to JICWEBS Content Verification Product Principles.
7.16 The parties will review the efficacy of chosen CV Tools monthly or annually, with costs borne by the Client.
7.17 Digital Partner may provide Client with a list of websites and mobile applications on its brand safe list for Client to create its list of approved third-party websites and mobile applications (“Client Whitelist”). Digital Partner will purchase Broadcast Placements only on websites and mobile applications on the Client Whitelist. The Client may amend the Client Whitelist with [INSERT NUMBER IN THE END OF THE LIST] and written notice to the Digital Partner.
7.18 Digital Partner shall not purchase Broadcast Placements on websites and mobile applications containing or linking to specified “Blacklist Content” including but not limited to obscene, violent, hateful, or illegal content. Digital Partner will use CV Tools certified by ABC to verify Client Whitelist absence of Blacklist Content. Client shall not pay for ad impressions, clicks, or post-campaign conversions delivered on inventory containing Blacklist Content at delivery time. If such inventory is discovered post-delivery, the Digital Partner will seek reimbursement from relevant Broadcast Owners and pass the Client’s proportionate share of reimbursed Third Party Expenses within thirty (30) days.
7.19 If Digital Partner discovers or is notified of advertising on a website or mobile app with Blacklist Content, it shall endeavour to remove such advertising promptly upon discovery or notification. Editorial Content about Blacklist Content on Client Whitelist sites or apps shall not constitute a breach of this clause or any Agreement clause.
7.20 Client may request specific websites and mobile applications be blocked from Broadcast Placements, requiring approval of ad network(s) or ad exchanges before Digital Partner signs off on insertion orders (IOs) or trading deals.
7.21 Digital Partner adheres to Digital Trading Standards Group (“DTSG”) Good Practice Principles to minimize ad misplacement risks when providing Services.
Ad Fraud
7.22 Client and Digital Partner will agree on ad fraud tool(s) to identify and prevent fraudulent activities on Broadcast Placements.
7.23 Digital Partner adopts policies and strategies to detect and mitigate ad fraud on all Broadcast Placements through implementing ad fraud tool(s).
7.24 Digital Partner selects Broadcast Owners, publishers, platforms, and ad tech suppliers with integrity to minimize ad fraud, aligning with JICWEBS standards.
7.25 If Third Party Expenses for Broadcast Placements are attributed to fraudulent ad traffic post-delivery, Digital Partner will seek reimbursement from Broadcast Owners and pass such reimbursed expenses to the Client within the agreed timeframe.
7.26 Digital Partner complies with IAB Tech Lab Digital Promotions Sellers (Ads.txt) initiative when purchasing inventory.
Ad Viewability
7.27 Client and Digital Partner will agree on ad viewability tool(s) for monitoring Client’s Broadcast Placements.
7.28 Digital Partner collaborates with Client to define viewability thresholds for Client’s Broadcast Placements, implementing technology for monitoring, prevention, and reporting. Absent agreed viewability metric, default MRC/IAB viewability recommendations apply.
7.29 If Third Party Expenses for Broadcast Placements fall below-agreed viewability thresholds post-delivery, Digital Partner will seek reimbursement from Broadcast Owners and pass the Client’s proportionate share of reimbursed Third Party Expenses.
Programmatic Trading (fully disclosed programmatic trading model)
7.30 For Broadcast Placements procured programmatically, Digital Partner:
7.30.1 Provides fully transparent programmatic solutions.
7.30.2 Grants Client read-only access to all media-buying platforms, including reports.
7.30.3 Complies with Client’s programmatic optimization and trading, including bid and floor prices, buying strategies, and campaign budgets, to avoid unwarranted trading as per Client Agreement terms.
8. Personnel
8.1 The Digital Partner will allocate suitable personnel with an appropriate level of experience to provide the Services. The Client acknowledges and agrees that it may be necessary for the Digital Partner to replace the personnel providing the Services with alternative personnel with similar levels of experience.
9. Amendments and Cancellations
9.1 If either party wishes to make a material change to the Service Scope within their Client Agreement, such change shall be subject to the agreement of both parties in writing. The Creative Deliverables’ turnaround timescale of such a change shall be agreed in writing by both parties at the time of the request.
9.2 Pending approval of any changes to the Client’s Service Scope by clause 9.1 above, the Digital Partner shall continue to perform the Services and be paid for them as if such change(s) had not been requested (unless otherwise agreed).
9.3 Subject to clause 9.4 the Client may request in writing that the Digital Partner cancels a Service Scope or part thereof, including any plans, schedules or work in progress. The Digital Partner will take all reasonable steps to comply with any such request provided that the Digital Partner can do so within its contractual obligations under the Third-Party Contracts. However, if the Digital Partner is not able to cancel, for example, booked media spend, then the Client shall remain liable for the full amount of such expenditure. An indication only of the cancellation periods imposed by Third-party Broadcast Owners is set out in the Schedule.
9.4 In the event of any such cancellation the Client will reimburse the Digital Partner for all Charges up to the date of cancellation together with the Cancellation Charge and any third-party charges or other expenses or costs reasonably incurred by the Digital Partner or to which the Digital Partner is committed as well as any charges or other expenses/costs imposed on the Digital Partner by third parties (including Broadcast Owners) arising from the cancellation. In certain circumstances, the Digital Partner might be committed to costs beyond the cancellation date. Where this applies the Client will be liable for such costs. In such circumstances, evidence from the Broadcast Owner will be provided to the Client by the Digital Partner.
10. Approvals and Authority
10.1 For this Agreement, any reference to “Authorization” to be given by the Client shall mean the Client approving by one of the following methods:
(a) the Client issuing a purchase order bearing the signature of an Approved Client Representative; or
(b) an e-mail from the individual business e-mail address of an Approved Client Representative; or
(c) the signature of an Approved Client Representative on the Digital Partner’s documentation; or
(d) where an approval is time critical, including (but not limited to) where the Client wishes to take advantage of a short-term offer, then the Digital Partner will accept verbal approval from the Client. In such circumstances, the Digital Partner will confirm the actions taken as soon as reasonably practicable in writing to the Client.
10.2 For this Agreement, any reference to “Authorization” to be given by the Digital Partner shall mean the Digital Partner approving by one of the following methods:
(a) an e-mail from the individual business e-mail address of an Approved Digital Partner Representative; or
(b) the signature of an Approved Digital Partner Representative on the Client’s documentation.
10.3 If a party is requested to approve this Agreement or in connection with it, such approval shall not be unreasonably withheld or delayed. The Client shall ensure that its approval is provided in sufficient time to the Digital Partner to the extent necessary for the satisfactory performance of the Services by the Digital Partner. The Digital Partner shall not be held responsible for any delay in the performance of the Services resulting from the unavailability of an approver to provide written approval(s).
10.4 The Digital Partner will seek the Client’s prior approval in respect of:
(a) any estimates or quotations for any third-party costs to be paid by the Client; and
(b) any plans for Broadcast Placements; and the Client’s approval of such estimates and creative treatments will be the Digital Partner’s authority to enter into contracts with relevant third parties and Broadcast Owners.
10.5 The Digital Partner will seek the Client’s prior approval of any draft Creative Deliverables and such approval will be the Digital Partner’s authority to proceed with the use of the relevant Creative Deliverables.
11. Relationship Management
11.1 At the beginning of the Term, the parties will agree in writing the number of meetings to be attended per annum to review the status and progress of the Services, Creative Deliverables and Outreach Campaigns and to seek to resolve any issues that have arisen. Such meetings shall be held at such intervals as shall be agreed by the parties in the Client Agreement and either at such locations as specified in the said agreement or by remote access (such as Skype, Zoom, Google Meet or other platforms). Additional meetings outside of this pre-agreed number will be charged at the cost notified to the Client at the time such additional meetings are requested.
12. Reporting
12.1 The Digital Partner shall provide the Client reporting and Client campaign data, as specified in the Client Agreement.
13. Remuneration
13.1 The Digital Partner will invoice the Client in respect of all Charges, Outgoing Costs and Third Party Expenses, the latter of which will be invoiced as detailed in clause 15.1.
13.2 In consideration of the Digital Partner providing the Services and Creative Deliverables set out in the Client Agreement, the Client shall pay the Digital Partner the Charges which shall be payable following clause 13.3. Outgoing Costs shall be paid by the Client by the due date stated on the invoice. Third-Party Expenses will be payable as stated in clause 15.1.
13.3 The Client shall make payment of an invoice issued by the Digital Partner under this Agreement by the due date for payment as shown in the Payment Timeline (or as notified by the Digital Partner from time to time). Payment shall be made in cleared funds to the bank account nominated by the Digital Partner in writing.
13.4 All sums stated in this Agreement or any Client Agreement, 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.
13.5 The terms of remuneration set out in this Agreement do not cover the performance of services which are outside of a Client Agreement nor do they cover the performance of Services outside the Geo-Targets. If any such Services are required the terms relating to their provision together with the applicable Charges will be agreed upon in writing by the parties.
13.6 If any payment of the Charges, Expenses or Third Party Expenses is subject to tax (whether by way of direct assessment or withholding at its source), the Digital Partner shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to the Digital Partner of the Charges, Expenses and Third Party Expenses after tax in respect of the payment is the same as it would have been were the payment not subject to such tax.
13.7 The Client is advised that where an invoice remains unpaid for more than 30 days, then within the terms of its credit insurance policy it is obliged to report such debt to the Digital Partner’s credit insurance company. Should the Digital Partner’s credit insurers refuse, revise or withdraw cover for the Client, or if the Digital Partner is unable to obtain sufficient credit references in respect of the Client, the Digital Partner reserves the right to revise its terms of payment or require advance payments from the Client. Where the Client does not agree to such revised payment terms then the Digital Partner has the right to terminate this Agreement immediately on written notice.
13.8 Where a surcharge is levied by a supplier against the Digital Partner due to late payment and this is caused by a late payment by the Client, the Client shall immediately upon being notified reimburse to the Digital Partner the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.
13.9 The Client shall be responsible for any late copy charges levied by a Broadcast Owner against the Digital Partner, save to the extent caused by the negligence or breach of this Agreement by the Digital Partner. The Digital Partner shall provide the Client with evidence of all such charges and the Client will immediately reimburse the amount of such late copy charge to the Digital Partner.
13.10 The Client accepts that in respect of Adserving services, targets may be under-delivered or over-delivered and all quoted costs are therefore estimates only and are subject to reconciliation.
13.11 The Client shall pay all monies which are payable by it to the Digital Partner without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the Digital Partner.
14. Invoicing and Payments
14.1 Invoices for Digital Partner costs are payable within 28 days from the invoice date, unless credit insurance is unavailable for the Client, in which case payment must be made in advance of media costs being incurred, in cleared funds.
14.2 Under instructions from Advertising Agencies by Media Proprietor’s Associations, in agreement with the Advertising Association and the Institute of Practitioners in Advertising, a 3% surcharge will be applied to all invoices not settled by the last working day of the month following the invoice date. An additional 2% surcharge will be levied on all outstanding amounts remaining unpaid for an additional 30 days unless disputed.
14.3 Invoices for biddable media (such as Facebook and Google) will be issued monthly, once actual spends are confirmed. Such invoices will be dated the last day of the activity month, with payment due on the last working day of the following month. For instance, if an invoice is issued on July 2nd for June activity, payment is due by the last working day of July.
14.4 Any invoice discrepancies must be reported in writing to the Digital Partner within 7 days of the invoice date. The Client is responsible for comparing invoices with statements issued and must request any missing invoices from the Digital Partner within 7 days of the statement date. Failure to raise queries within this period constitutes acceptance of the invoice’s accuracy.
14.5 The Client acknowledges that queries related to clause 14.4 concerning partial invoices do not hinder payment of undisputed amounts, which must be settled within the specified timeframes.
14.6 If the Client requires invoices to reference specific purchase order (PO) numbers, this requirement must be communicated in writing before the Effective Date. All PO numbers must be provided to the Digital Partner by the 25th of the activity month. Failure or delay in issuing POs, except where mandatory per the Client Agreement under Clause 10 approval, shall not impede invoice payment under Clause 14 terms.
15. Third Party Services & Costs
15.1 The Digital Partner will invoice the Client for all Third Party Expenses incurred in performing the Services, subject to the Client’s advance written approval. These expenses include advertising and Tech Charges, Broadcast Placements, and services procured on behalf of the Client (“Third Party Expenses”). Payment is due by the invoice due date stated.
15.2 The Digital Partner will promptly inform the Client of any changes in estimated Third Party Expenses.
15.3 Fluctuations in currency exchange rates may cause actual costs of Third Party Expenses for Creative Deliverables purchased overseas to differ from initial estimates. In such cases, the Digital Partner will charge based on the exchange rate on the payment date, using the closing mid-point rate in London as quoted in the next Financial Times edition.
15.4 The Digital Partner shall disclose all payment terms for Third Party Expenses to the Client and provide evidence upon request. If Broadcast Owners or other third parties require advance or accelerated payment, the Digital Partner will notify the Client promptly, and the Client shall ensure timely payment to meet these deadlines.
16. Confidentiality
16.1 The Client acknowledges that the Digital Partner may disclose Confidential Information, including but not limited to, financial details, personnel compensation arrangements, media plans, marketing platforms, Charges, prices, and other terms related to agreements with Broadcast Owners. The Client agrees to maintain strict confidentiality and shall not disclose such information to any third party without prior written consent from the Digital Partner.
16.2 The confidentiality obligations under Clause 16 shall remain in effect for 3 years from the termination date or expiry of this Agreement.
16.3 Confidential Information shall not include information that: (a) is publicly available at the time of disclosure to the Client; (b) becomes publicly available through no fault of the Client; (c) is lawfully received from a third party without restrictions; or (d) was already known to the Client before receiving it from the Digital Partner.
16.4 The Client agrees to maintain the confidentiality of the Digital Partner’s Confidential Information at all times and to implement measures at least as stringent as those used to protect its confidential information. The Client shall not use, disclose, exploit, copy, modify, or allow any third party to use the Digital Partner’s Confidential Information without prior written consent, except as necessary for the performance of its obligations under this Agreement.
16.5 The Client agrees to disclose the Digital Partner’s Confidential Information only to employees who require such information for the purposes outlined in this Agreement.
16.6 The Client shall not be considered in breach of Clause 16 if it discloses the Digital Partner’s Confidential Information as required by law, regulation, or order of a competent authority, provided that the Digital Partner is given reasonable advance notice and an opportunity to contest such disclosure.
16.7 The Client indemnifies the Digital Partner against all Losses arising from any breach of this Clause 16.
17. Digital Partner Warranties
17.1 The Digital Partner warrants that it has full authority to enter into this Agreement without breaching any obligations to third parties and will perform the Services with reasonable skill and care.
17.2 All implied warranties, conditions, terms, undertakings, and obligations are excluded to the fullest extent permitted by law, including those of satisfactory quality or fitness for a particular purpose.
18. Client Warranties
18.1 The Client warrants that:
(a) it has full authority to enter into this Agreement without breaching any obligations to third parties;
(b) its resources, when used as per this Agreement and any written instructions, do not infringe on any third party’s Intellectual Property Rights;
(c) its resources comply with all applicable laws and regulations, including Regulations; and
(d) its resources are accurate and complete.
19. Limitation of Liability and Indemnification
19.1 The Digital Partner’s maximum aggregate liability under this Agreement, including any indemnities, whether in contract, tort (including negligence), or otherwise, shall not exceed the Charges received from the Client in the 12 months preceding the liability arising.
19.2 Nothing in this Agreement excludes or limits liability for fraud, death, personal injury caused by negligence, or any other liability that cannot be excluded or limited by law.
19.3 Subject to Clause 19.2, the Digital Partner shall not be liable under this Agreement for:
(a) loss of income or profits;
(b) loss of goodwill or reputation;
(c) loss of savings; or
(d) any indirect or consequential loss or damage, whether caused by tort, breach of contract, or otherwise, even if foreseeable.
19.4 While the Digital Partner endeavours to ensure accuracy in estimated figures related to exposure and costs of Promotions, the Client acknowledges that actual results may vary, and the Digital Partner makes no warranties regarding such estimates. The Digital Partner assumes no liability for losses resulting from the Client’s reliance on these estimates.
19.5 The Digital Partner does not guarantee uninterrupted display or distribution of content or Services, nor that Services will be error-free or secure. In case of interruption, the Digital Partner’s obligation is limited to restoring service promptly.
19.6 The Client agrees to indemnify the Digital Partner against any Losses arising from:
(a) Promotions content provided by the Client;
(b) Client Resources supplied by third parties acting on the Client’s behalf;
(c) unauthorized use of Creative Deliverables;
(d) defects in the Client’s products or services;
(e) claims arising from Client-specific instructions to the Digital Partner;
(f) breach of Clause 7.1 by the Client; or
(g) third-party claims of Intellectual Property Rights infringement due to modifications or unauthorized use of Creative Deliverables. Any third party claim that any Creative Deliverables provided by the Digital Partner under this Agreement infringe any third party’s Intellectual Property Rights where such infringement:
(1) was due to any amendments, adaptations or changes made to the Creative Deliverables by the Client or any third party acting on its behalf which rendered such Creative Deliverables infringing; or
(2) was due to such Creative Deliverables being used other than following this Agreement or outside the agreed terms (including the terms of any third party licence); or
(3) arises in respect of any Client Resources; or
(4) if the Digital Partner had previously notified the Client of a specific risk that the Creative Deliverables infringed third-party Intellectual Property Rights or breached Regulations or other laws and regulations and the Digital Partner had obtained the prior approval of the Approved Client Representative to use such Creative Deliverables notwithstanding such notified risk.
20. Intellectual Property Rights
20.1 The Client acknowledges that all Intellectual Property Rights in the Digital Partner Proprietary Assets and Digital Partner Creative Assets shall be owned by and remain vested in the Digital Partner. Upon receipt of full payment for Charges, Expenses, and Third Party Expenses related to the Services, the Digital Partner may grant the Client a non-exclusive, non-transferable, irrevocable, worldwide, and perpetual license to use such Digital Partner Proprietary Assets and Digital Partner Creative Assets included in the Creative Deliverables within the designated Geo-Targets.
20.2 As between the Digital Partner and the Client, the Client retains all rights, title, and interest (including Intellectual Property Rights) in and to any Client Resources. The Client grants the Digital Partner and Broadcast Owners a non-exclusive, non-transferable, revocable, royalty-free, worldwide license to use, copy, modify (as permitted herein), publicly perform, display, broadcast, and transmit:
(a) any Client Resources; and
(b) the Client’s name, logo, company name, and trademarks, as necessary to perform the Services during the Term. Additionally, the Client consents to the Digital Partner using the Client’s name (including any trade name and trademark) in perpetuity for marketing and sales purposes.
20.3 Before delivering Creative Deliverables, the Digital Partner will endeavour to obtain necessary licenses or consents for Third-Party Resources. The Client will be informed of any usage restrictions or contractual obligations related to such Third Party Resources and agrees to comply with these restrictions.
20.4 Upon request and at the Client’s expense, the Digital Partner shall undertake all actions and execute necessary documents to enable the Client to obtain, defend, or enforce its rights in the Creative Deliverables.
20.5 To the extent permitted by law, the Digital Partner shall ensure waiver of all Moral Rights in Digital Partner Creative Assets included in the Creative Deliverables. If waiver of Moral Rights in Third Party Resources is not feasible, the Digital Partner shall use reasonable efforts to prevent the assertion of such Moral Rights. If waiver cannot be obtained, the Client will be notified and approval sought before incorporating such Third Party Resources.
20.6 The Digital Partner shall not be liable under this Agreement for modifications, adaptations, or amendments to Creative Deliverables made by the Client or third parties on behalf of the Client, nor for any faults, errors, destruction, or degradation in quality or quantity of Creative Deliverables due to acts or omissions of the Client or its agents.
20.7 The obligations and terms of Clause 20 shall survive termination of this Agreement for any reason.
21. Termination of Agreement
21.1 Without prejudice to Clause 3.1, the Digital Partner may terminate this Agreement at any time by giving not less than 30 days written notice to the Client without cause.
21.2 Either party may terminate this Agreement immediately upon written notice to the other party:
(a) for any material breach of this Agreement by the other party, which is not remediable or, if remediable, not remedied within thirty (30) days after receipt of written notice specifying the breach;
(b) if the other party is insolvent or unable to pay its debts as they fall due under the Insolvency Act 1986;
(c) if the other party proposes or enters into any compromise or arrangement with creditors, other than for solvent reconstruction or amalgamation;
(d) upon filing, notice, resolution, or order for winding up of the other party, other than for solvent reconstruction or amalgamation; or
(e) upon appointment of an administrator or notice of intention to appoint an administrator over the other party.
22. Consequences of Termination
22.1 Upon termination of this Agreement for any reason:
(a) the Client shall pay all outstanding Charges, Expenses, and Third Party Expenses to the Digital Partner during the notice period;
(b) Each party shall promptly deliver or dispose of all materials and property belonging to the other party in its possession, custody, or control, including certifying in writing compliance with this obligation. The Client specifically acknowledges this requirement regarding the Digital Partner’s Confidential Information.
22.2 Upon termination, Digital Partner-owned accounts (such as Google Ads, Microsoft Ads, Facebook, and Amazon Advertising) shall remain the property of the Digital Partner. Should the Client or a new supplier seek ownership, a fee (DA Fee) equal to 20% of one month’s Charges and Third Party Costs over the prior six months shall apply per account.
22.3 If the Digital Partner holds Client marketing performance data in a data warehousing facility, it shall be deleted within 60 days of termination, or transferred upon Client’s written request before termination, with a fee of £100 per hour, totalling no less than £500 for transfer.
22.4 Certain provisions including Clauses 16 (Confidentiality), 18 (Client warranties), 19 (Liability), 20 (Intellectual Property Rights), 22 (Consequences of Termination), 24 (Notices), 28 (Data Protection), 29 (General), and 30 (Governing law and jurisdiction) shall survive termination.
23. Force Majeure
23.1 Neither party shall be liable for any delay in performing or failure to perform its obligations under this Agreement to the extent that such delay or failure results from any act, event, non-happening, omission, or accident beyond its reasonable control (“Force Majeure Event”).
23.2 Force Majeure Events shall include, but not be limited to, the following events affecting either party or its partners:
(a) strikes, lock-outs, or other industrial action (excluding strikes, lock-outs, or other industrial action of any partners of the party seeking to rely on the Force Majeure Event);
(b) civil commotion, riot, invasion, war (whether declared or not), terrorism, or threat of or preparation for war or terrorist attack;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport, or other means of public or private transport; or
(e) compliance with any law or governmental order, rule, regulation, or direction.
23.3 The party affected by a Force Majeure Event shall promptly provide written notice to the other party upon becoming aware of the Force Majeure Event, detailing its nature, likely duration, and the manner and extent to which its obligations are likely to be prevented or delayed.
23.4 If a Force Majeure Event occurs, the affected party’s performance obligations shall be postponed for the duration of the Force Majeure Event. If the Force Majeure Event continues for a period exceeding two (2) months, the non-affected party may terminate this Agreement immediately by written notice to the affected party. Both parties shall use reasonable endeavours to minimize the effects of any Force Majeure Event.
23.5 If the production of Creative Deliverables is cancelled, delayed, or disrupted due to an act or threatened act of terrorism or military action, the Client shall reimburse the Digital Partner for any Third Party Expenses related to the cancelled, delayed, or disrupted Creative Deliverables that cannot be recovered, as well as any losses suffered by the Digital Partner as a result of such acts.
24. Notices
24.1 Any notice under or in connection with this Agreement shall be in writing and sent to the party at the email address specified in this Agreement or as otherwise notified in writing to the other party.
24.2 The graph below specifies methods of sending notices and the corresponding deemed delivery date and time:
+++++++++++++++++++++++
Method of Delivery: Deemed Delivery – Date and Time
—
Email —> contact@bestsearchlist.com – Upon transmission
Hand Delivery —> Upon delivery – Date and Time
+++++++++++++++++++++++
24.3 All references to time to calculate deemed receipt are to the local time of the recipient.
25. Advertising Standards
25.1 Both parties acknowledge their responsibility to comply with all applicable regulations.
25.2 The parties shall cooperate to ensure that accurate and factual product information is available to satisfy regulatory requirements. Each party shall comply with all applicable laws related to the subject matter of this Agreement. However, the Client acknowledges that the Digital Partner is responsible solely for compliance with applicable laws regarding the Services under this Agreement.
25.3 Each party shall promptly inform the other upon discovering that any Promotion is false, misleading, or contrary to law or applicable codes.
25.4 A levy of 0.1% is payable:
(a) to the Advertising Standards Board of Finance (ASBOF) for non-broadcast advertising, based on the ‘cost to client’ media costs of specified advertising media in the UK; and
(b) to the Broadcast Advertising Standards Board of Finance (BASBOF) for broadcast advertising, based on the ‘cost to client’ of broadcast advertisements in the UK.
25.5 The Digital Partner shall add the levies specified in Clause 25 to relevant invoices submitted to the Client for media purchased for advertising in the UK.
26. Assignment and Sub-Contracting
26.1 The Digital Partner may subcontract its performance of the Services or Creative Deliverables, provided that such subcontracting does not relieve the Digital Partner of its obligations under this Agreement.
26.2 The Client may not assign, transfer, charge, or otherwise dispose of this Agreement or any rights or obligations hereunder without the prior written consent of the Digital Partner.
27. Third Party Rights
27.1 The provisions of this Agreement may only be enforced by a Party to it, and the operation of the Contracts (Rights of Third Parties) Act 1999 is expressly excluded concerning all third parties.
27.2 Notwithstanding any provision of this Agreement (including clause 27.1), the Parties do not require the consent of any third party to rescind, terminate, or amend this Agreement.
28. Data Protection
28.1 The parties agree that the Client acts as a Data Controller (“Controller”) and the Digital Partner acts as a Data Processor (“Processor”) for processing Controller Personal Data under this Agreement.
28.2 As of the Effective Date, the Controller provides general written authorization to the Processor to engage any agent, sub-contractor, or other third party (“Sub-Processor”). The Processor shall inform the Controller of any intended changes regarding the addition or replacement of any Sub-Processors, allowing the Controller to object. The Processor remains fully liable for all actions and omissions of the Sub-Processors. Each Sub-Processor must agree in writing to comply with obligations at least equivalent to those imposed on the Processor under this clause and as required by Article 28(3) of the GDPR. The Processor shall make reasonable efforts to impose these obligations on Sub-Processors, even where the Sub-Processor provides non-negotiable standard terms.
28.3 The Processor shall:
(a) Process Controller Personal Data only on documented instructions from the Controller; and
(b) not transfer or disclose Controller Personal Data to countries outside the European Economic Area (EEA) without the prior written consent of the Controller, except as required by EU or member state law, provided the Processor informs the Controller of such legal requirement before the transfer. Subject to prior agreement between the parties, the countries to which the Processor is permitted to transfer Controller Personal Data are agreed upon as of the Effective Date, subject to clause 28.4.
28.4 The Processor may transfer Controller Personal Data to countries outside the EEA provided:
(a) EU model contractual clauses as per Decision 2010/87/EU or alternative versions issued by the European Commission or supervisory authorities are in place with the non-EEA recipient/Sub-Processor;
(b) the transfer is to a non-EEA country deemed to have an adequate level of data protection by the European Commission or supervisory authority;
(c) Binding Corporate Rules for the transfer of Personal Data to a non-EEA Group Company are in place within the Processor’s Group when the transfer is to a Digital Partner Group Company outside the EEA;
(d) an approved code of conduct is in place by an association or body representing the Controller or Processor, applicable to the non-EEA location to which Controller Personal Data will be transferred;
(e) an approved certification mechanism is in place concerning the non-EEA location; or
(f) the transfer is to an entity in the United States that complies with the EU-US Privacy Shield or any replacement or successor mechanism.
28.5 The Processor shall ensure that access to Controller Personal Data is limited to Processor Personnel and authorized Sub-Processors who require access to supply the Services and who are bound by enforceable obligations of confidentiality regarding Controller Personal Data.
28.6 Considering the state of technical development and the nature of Processing, the Processor shall implement appropriate technical and organizational measures to protect the Controller’s Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access.
28.7 The Processor shall, to the extent possible, assist the Controller in fulfilling its obligations regarding Data Subjects’ requests for access, rectification, erasure, or objection to Processing, through appropriate technical and organizational measures.
28.8 The Processor shall promptly and in writing notify the Controller if the Controller’s Personal Data is disclosed in breach of this clause 28.
28.9 The Processor shall promptly notify the Controller of any security breach concerning Controller Personal Data, providing full and comprehensive details of such breach.
28.10 The Processor shall assist at the Controller’s cost concerning the need to conduct a data protection impact assessment under Data Protection Legislation.
28.11 The Processor shall assist at the Controller’s cost regarding any application to the Information Commissioner or other data protection supervisory authority related to the Processing of Controller Personal Data.
28.12 Upon expiration or termination of this Agreement, at the Controller’s cost and option, the Processor shall either return all Controller Personal Data (and copies thereof) or securely dispose of such data, except to the extent that applicable law requires storage of Controller Personal Data or the Controller directs retention.
28.13 The Processor shall allow for an audit (not more than once per year) by the Controller and appointed auditors, at the Controller’s cost, to demonstrate compliance with this clause 28. Upon reasonable notice, the Processor shall provide the Controller and auditors with all necessary information for the audit.
28.14 If the Processor reasonably believes that an audit instruction under clause 28.13 may violate Data Protection Legislation or other applicable law, the Processor may withhold consent for such audit or provision of Services until the Controller revises the instruction to comply with the law.
28.15 The Processor shall adhere to any relevant approved code of conduct and certification mechanism once adopted and implemented by the Information Commissioner’s Office.
28.16 To the extent that the Controller collects and transfers Personal Data to the Processor under this Agreement, the Controller represents, warrants, and undertakes that:
(a) it has obtained appropriate consent from all Data Subjects, or provided necessary information under Data Protection Law, to transfer their Data to the Processor for the intended purposes as specified by the Controller; and
(b) the information is accurate and current.
28.17 Each party (“indemnifying party”) shall indemnify the other party (“indemnified party”) against:
(a) fines imposed on the indemnified party by the Information Commissioner or any applicable regulator arising from the indemnifying party’s breach of obligations under this Agreement; and
(b) subject to clause 28.18, all amounts paid or payable by the indemnified party to a third party that would not have been payable if the indemnifying party had not breached this clause 28; and
(c) all other losses, claims, damages, liabilities, fines, interest, penalties, costs, expenses, demands, and legal and other professional costs (on a full indemnity basis) arising from or related to any breach by the indemnifying party of its obligations under this clause, up to a maximum aggregate liability of two hundred and fifty thousand pounds (£250,000) for each Data Protection Liability in any year of the Term, provided the breach amount exceeds £10,000.
28.18 The indemnifying party shall not be liable under clause 28.17(b):
(a) if it can demonstrate no responsibility for the event causing damages under Article 82(3) of the GDPR; or
(b) to the extent the indemnified party is liable for damages under Article 82(5) of the GDPR.
28.19 Notwithstanding the provisions of clause 28, the Client, acting as Data Controller, acknowledges authorizing the Digital Partner, as Data Processor, to collect certain personal information about the Client’s customers through the Services. This includes, but is not limited to, the use of cookies, tracking technologies, and tracking codes. The Client warrants full compliance with Data Protection Legislation in authorizing the Digital Partner to collect and make such Controller Personal Data available. The Client further warrants maintaining a privacy policy on its portals as required by Data Protection Legislation, informing customers that the Digital Partner collects Controller Personal Data on its behalf and explaining how such information will be used. The Client also includes a cookie policy on its portals, informing customers about cookies placed by the Digital Partner during Service provision.
29. General
29.1 The failure of either party to enforce or exercise any term or right under this Agreement at any time does not constitute and shall not be construed as a waiver of such term or right. It does not affect the party’s right to enforce or exercise it at a later time.
29.2 For 12 months after the Term’s end, the Client shall not, directly or indirectly, alone or in association with others, solicit or attempt to solicit away any Key Individual or other individual of the Digital Partner who worked on the Outreach Campaign during the last 12 months of the Term.
29.3 If any term of this Agreement is found illegal, invalid, or unenforceable under applicable law, that term shall be deemed omitted from this Agreement to the extent it is severable from the remaining terms. Omission does not affect the legality, validity, or enforceability of the remaining terms. If a provision is found invalid or unenforceable but would be valid or enforceable with some modification, the provision shall apply with necessary modifications to make it valid.
29.4 This Agreement constitutes the entire agreement between the parties regarding its subject matter, supplanting any prior oral or written agreements, understandings, or arrangements. Each party acknowledges:
(a) not relying on any statement, representation, warranty, or understanding other than those expressly outlined in this Agreement upon entering into it; and
(b) its remedies being limited to breach of contract as provided in this Agreement regarding any statements, representations, warranties, or understandings expressly set forth herein. However, this clause does not limit or exclude liability for fraud.
29.5 Modification of Agreement.
29.5.1 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. Unless expressly set out in this Agreement, no modification or variation of this Agreement shall:
(a) be valid if made by e-mail;
(b) be construed as a general waiver of any provisions of this Agreement; or
(c) affect any rights, obligations or liabilities under this Agreement which have already accrued up to the date of such modification or waiver. The rights and obligations of the parties under this Agreement shall remain in full force and effect, except and only to the extent that they are so modified or varied.
29.5.2 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. Unless expressly provided in this Agreement, no modification or variation of this Agreement shall:
(a) be valid if made by electronic communication (including email);
(b) constitute a general waiver of any provisions of this Agreement; or
(c) affect any rights, obligations, or liabilities under this Agreement that have already accrued up to the date of such modification or waiver. The rights and obligations of the parties under this Agreement shall remain in full force and effect, except to the extent that they are modified or varied under this clause.
29.6 No provision of this Agreement shall be construed to create a partnership or joint venture between the parties or authorize either party to act as an agent for the other. Neither party shall have the authority to act in the name or on behalf of the other or to bind the other party in any manner whatsoever.
30. Governing Law and Jurisdiction
30.1 This Agreement shall be governed by and construed by the laws of England and Wales.
30.2 Each Party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales to settle any dispute arising under or in connection with this Agreement. This submission of jurisdiction shall not affect the right of either party to enforce a judgment in any other jurisdiction.
These terms are updated on 10/06/2024.