Last updated: June 2024
These terms of service outline the rules and regulations for the use of JamPot's Website, located at www.jam-pot.com.
Jampot Support Ltd (the “Company”) provides online business management, virtual freelancer services, web design, HR, finance assistance, marketing, events management and legal services or any other services agreed between the parties to business clients. The Company has reasonable skill, knowledge and experience in that field. These Terms and Conditions shall apply to the provision of services by the Company to its clients.
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Acceptance Tests”
means the tests to be carried out on the website;
“Advertising Campaign”
means a paid advertising campaign set up and managed by the Company for and on behalf of the Client in the course of providing the Services;
“Agreement”
means the agreement that shall be formed when the Company offers to provide the Services and the Client accepts in accordance with these Terms and Conditions (or variation thereof agreed upon by both Parties in writing) which shall govern provision of the Services;
“Business Day”
means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in the United Kingdom;
“Client”
means the party procuring the Services from the Company;
“Commencement Date”
means the date on which provision of the Services will commence, as agreed in writing between the Parties;
“Confidential Information”
means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Data Protection Legislation”
means all applicable legislation in force from time to time in the United Kingdom applicable to data protection and privacy including, but not limited to, the UK GDPR (the retained EU law version of the General Data Protection Regulation ((EU) 2016/679), as it forms part of the law of England and Wales, Scotland, and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018); the Data Protection Act 2018 (and regulations made thereunder); and the Privacy and Electronic Communications Regulations 2003 as amended;
“Defect”
means any failure in the website that causes it to fail any part of the Acceptance Tests;
“Fees”
means any and all sums due under the Agreement from the Client to the Company and shall include any fees provided to the Client in the Company’s Quotation for bespoke Services or in line with the Company’s standard fees as listed on our website here: https://www.jam-pot.com/pricing;
“Intellectual Property Rights”
means (a) any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights), trade, business and company names, internet domain names and e-mail addresses, unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions;
(b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a);
(c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and
(d) the right to sue for past infringements of any of the foregoing rights;
“Non-Developer Defect”
means any failure in the website that causes it to fail any part of the Acceptance Tests that has been caused by the Client’s act or omission, or by any other party associated with the Client for whom the Company has no responsibility;
“Quotation”
means the quotation that may be provided to you in advance of Services commencing;
“Services”
means the services to be provided by the Company to the Client in accordance with the Quotation provided, Clause 2 and subject to these terms and conditions; and
“Term”
means the term of the Agreement as defined in Clause 8.
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
1.2.4 a Clause or paragraph is a reference to a Clause of these Terms and Conditions or to a Clause of the Agreement, as appropriate; and
1.2.5 a "Party" or the "Parties" refer to the parties to the Agreement.
1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include all genders.
1.6 References to persons shall include corporations.
2.1 Subject to the provisions of this Clause 2 and Clause 3, with effect from the Commencement Date the Company shall provide to the Client the Services as agreed in writing between the Parties during the term of the Agreement.
2.2 The Parties agree that unless otherwise specified the Services are provided and contracted on a per project or ad hoc basis. A Proposal, detailing the current costs, will be provided to the Client when the Client is onboarded.
2.3 No form of exclusive arrangement is created by the Agreement and nothing in these Terms & Conditions shall, during the Term prevent the Client from obtaining from any third party services similar to or the same as any of the Services or prevent the Company from providing to any third party services similar to or the same as any of the Services.
2.4 The Company, and any sub-contractors, shall provide the Services with reasonable skill and care, commensurate with prevailing standards in the relevant industries in the United Kingdom.
2.5 The Company shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of Services agreed in writing during the Term of the Agreement.
2.6 The Company may, in relation to certain specified matters related to the Services, act on the Client’s behalf. Such matters shall not be set out in the Agreement but shall be agreed between the Parties as they arise from time to time.
2.7 The Company shall use all reasonable endeavours to accommodate any reasonable changes in the Services that may be requested by the Client, subject to the Client’s acceptance of any related reasonable changes to the Fees that may be due as a result of such changes.
Social Media Services
2.8 Where the Services include social media marketing The Client shall provide the access credentials or make the Company the administrator for the relevant social media accounts as set out within the Proposal.
2.9 Where applicable the Client hereby authorises the Company to use its access credentials detailed in 2.8 solely for the purposes of providing the Services. All such information is hereby designated Confidential Information and shall be treated accordingly, as described under Clause 6.
Copywriting & Content Creation & Email Marketing Services
2.10 The Company shall use all reasonable endeavours to accommodate any reasonable amendments to these Services on 3 occasions within 30 Business Days following the submission of these Services to You. Each amendment must not change the scope of the work detailed within the Proposal. Any amendments over and above this will be subject to additional fees as quoted by the Company.
2.11 Whilst the Company will try to optimise written content for search engine purposes, they do not warrant that this effort will in any way guarantee results. The Company cannot be held responsible for any changes to the position of the Client’s website in the search engine results in response to a particular search. The Company does not guarantee a listing positioning in any search engine.
Advertising Campaigns
2.12 Where the Services include a paid Advertising Campaign the following shall apply:
2.12.1The Company can, if required, set up the account connected to the Advertising Campaign but the Client shall be required to use its own billing details to enable the Services to be performed.
2.12.2 The Company shall base the set-up referred to in sub-Clause 2.12.1 above on the information provided by the Client.
2.12.3 Upon receipt of the information detailed in 2.12.2 above The Company may conduct research which shall include, but not necessarily be limited to, an examination of the Client’s website, online research and the use of other suitable methods and tools. You will be required, upon receipt of this information, to confirm that You are happy with the targeted Advertising Campaign.
2.13 The Client understands and acknowledge the following:
2.13.1 The Company cannot control search engines or algorithms and cannot provide any guarantee that there will not be any changes in third party policies or functionality in such a way that will have a detrimental effect on the effectiveness of the Advertising Campaign(s).
2.13.2 The Company cannot control search engines or algorithms and cannot provide any guarantee that there will not be any changes in third party policies or functionality in such a way that will have a detrimental effect on the effectiveness of the Advertising Campaign(s).
2.13.3 The Company accepts no responsibility for any detrimental effect on the effectiveness of the Advertising Campaign(s) which results from any activity of the Client or any third party including, but not limited to, alterations to the Client’s website.
2.13.4 The effectiveness of the Advertising Campaign(s) will be determined in part by the budget allotted thereto and available therefor. Failure by You to make the required budget(s) available may have a negative effect on the related Advertising Campaign(s). The Company accepts no responsibility for any such negative effects.
Website Design
2.14 Where the Services include Web Design Services the following shall apply:
2.14.1 The Client will promptly, at The Company's request, provide any and all information, data, documentation, and client materials that are reasonably required in order to perform their obligations under this Agreement.
2.14.2 The Client hereby acknowledges that The Company's ability to perform its obligations under this Agreement is dependent on the Client’s full and timely cooperation.
2.14.3 Any third-party software required for the Services will be either detailed within the Quotation or requested by the Company in writing. The licence fee will be payable for the third-party software in addition to The Company's fees and will be the Client’s sole responsibility.
2.14.4 The Company does not provide domain names or hosting and they are purchased at the Client’s own expense and registered in the Client’s name. The Company may recommend and connect, as part of the Services, both the domain name and hosting to the website. Thereafter the sole responsibility to renew both the domain and the hosting remains with the Client. The Company accepts no liability for any financial loss resulting from a domain not being renewed or hosting lapsing. Furthermore, the Company makes no guarantee that the same will always be fit for purpose and the contract will solely be between the Client and that third-party.
2.14.5 The Company is not responsible for any third-party apps or software and nor are they responsible for rectifying the same. Accordingly, any damage, loss of time, errors, omissions or downtime of third-party apps or software remains the third party's responsibility not the Company’s.
2.14.6 The Company will attempt to optimise the website for search engine purposes but We do not warrant that this effort is in any way guaranteed.
2.14.7 Upon completion of the design, the Client shall have a 14 Business Days testing period within which to carry out the Acceptance Tests on the Website. Three rounds of minor edits are included. Any changes above and beyond minor edits will result in further charges becoming payable.
2.14.8 In the event that the Acceptance Tests are not passed, the Client shall inform The Company at the end of the testing period of all Defects in writing. Upon receipt The Company shall have a period 14 Business Days to compile a defect report providing the same to the Client at the end of the period.
2.14.9 In the event that a fault or failure is found to have been caused by an act or omission by the Client, or by any other party associated with the Client for whom The Company has no responsibility, such Non-Developer Defect shall not be considered a Defect for the purposes of the Acceptance Tests. If only Non-Developer Defects are present, the website shall be deemed to have passed the Acceptance Tests.
2.14.10 Defects shall be remedied by The Company at no additional cost to the Client. The Client may request that The Company remedy a Non-Developer Defects, however The Company shall reserve the right to charge the Client in full for such remedial work at the Company’s current rates for such work.
2.14.11 You shall be deemed to have accepted the website before the Acceptance Tests and (where applicable) acceptance retests have been passed if:
2.14.11.1 The Client uses the website or any part of it in the course of business other than for testing purposes in accordance with the Acceptance Tests; or
2.14.11.2 the Acceptance Tests or Acceptance Retests are unreasonably delayed for a period of more than 14 Business Days by the Client without The Company's written agreement to such a delay and to extend the relevant testing period or retest period.
Sales Development
2.15 Where the Services consist of Sales Development the following will apply:
2.15.1 the Company will be entitled to commission from the leads generated by the Company.
2.15.2 Commission will be at the rate of …% of the income generated by the Client for each lead for a period of 12 months.
2.15.3 Commission is payable monthly. The Client has a duty to inform the Company of any commission amounts by the ….......of each calendar month. Thereafter payment of the commission invoices must be paid within 14 Business Days.
3. Client's Obligations
3.1 The Client shall use all reasonable endeavours to provide all pertinent information to the Company that is necessary for the Company’s provision of the Services.
3.2 The Client may, from time to time, issue reasonable instructions to the Company in relation to the Company’s provision of the Services. Any such instructions should be compatible with the specification of the Services provided in writing between the Parties during the Term of the Agreement.
3.3 In the event that the Company requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner.
3.4 If any consents, licences or other permissions are needed from any third parties such as landlords, planning authorities, local authorities or similar, it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).
3.5 If the nature of the Services requires that the Company has access to the Client’s home or any other location, access to which is lawfully controlled by the Client, the Client shall ensure that the Company has access to the same at the times to be agreed between the Company and the Client as required.
3.6 Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of this Clause 3 shall not be the responsibility or fault of the Company.
3.7 The Provider shall not be responsible for the accuracy of any Services which are provided as a result of a Rush fee pursuant to sub-Clause 5.7.
3.8 The Provider shall not be responsible or liable for any results-driven outcome that may be connected to the Work produced.
4. Fees & Payments
4.1 In consideration of the obligations undertaken by the Company, the Client shall, subject to the following provisions of this Clause 4 pay the Company the sums in accordance with the agreed billing cycle and the invoice the Company shall submit to the Client.
4.2 Invoices will be provided at the end of each month for the work completed in that month. Payment is required within 14 Business Days of the date of the invoice, unless the Company has agreed different payment terms with you in writing.
4.3 All payments required to be made pursuant to this Agreement shall be made in GBP in cleared funds to such account as the receiving Party may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as that Party is required to deduct or withhold by law.
4.4 All sums quoted and payable are exclusive of any VAT or other applicable sales tax, which shall be added to the sum in question or otherwise included in any relevant calculation.
4.5 Without prejudice to sub-Clause 4.3, any sums which remain unpaid following the expiry of the agreed payment terms shall incur interest on a daily basis at 8% above the base rate of the Bank of England from time to time until payment is made in full of any such outstanding sums.
4.6 Any expenses which need to be incurred in the delivery of the Services must be paid for directly by the Client. Such expenses are payable directly to the third party and will not be included in the invoicing process between the Client and the Company. The Company will not be responsible for any delay in the Services where the Client has failed to make payment in respect of third party expenses.
4.7 In the event that the Client requires Services to be completed at short notice the Company shall be entitled to charge a fee over and above the agreed fee for the Services (a “Rush fee”). The Company shall advise the Client if any such Services shall incur a Rush fee and the Client will approve this fee by email in writing to accept the same. The Rush fee shall be a 50% increase of the Company’s usual hourly rate. For avoidance of doubt a Rush fee will be incurred if the Client does not provide the Company with more than 24 hours’ notice for the Services to be completed.
4.8 For all accounts related and tax return submissions completed by the Company’s finance team payment must be made in full in advance of submission of the accounts. Should the Client sign up part-way through the Client’s financial year the Company shall raise an invoice for the balancing payment due upon completion of the year end accounts but prior to submission. The balancing payment must be paid in advance of submission of the accounts. No refund shall be provided to the Client should the terminate this agreement in advance of preparation and submission of the Client’s annual accounts which fall due in that financial year. For the avoidance of doubt where an accounts package is purchased this does not include the preparation and submission of self assessment returns. Self assessment returns are subject to additional fees as quoted.
Referrals
4.9 The Company operates a referral opportunity which gives Clients the opportunity to receive a discount on future invoices. Where a Client introduces a customer to the Company and that customer spends in excess of £3,000 (exclusive of VAT) over a period of 3 months upon full payment by the customer, the Client will be entitled to 15% off their next 3 invoice payments. The discount is non transferable and may not be redeemed for cash. Where a Client terminates the relationships with the Company they will forfeit the right to receive the discount mentioned herein.
5. Liability, Indemnity and Insurance
5.1 The Company shall ensure that it, and any sub-contractors it uses, has in place at all times suitable and valid insurance that shall include professional indemnity insurance.
5.2 In the event that the Company fails to perform the Services with reasonable care and skill it shall carry out any and all necessary remedial action at no additional cost to the Client.
5.3 The Company’s total liability for any loss or damage caused as a result of its negligence or breach of the Agreement shall be limited to:
5.3.1 For all adhoc one off Services the total value of those Services; or
5.3.2 For all ongoing monthly Services, the average monthly total of those Services.
5.4 The Company shall not be liable for any loss or damage suffered by the Client that results from the Client’s failure to follow any instructions given by the Company.
5.5 Nothing in these Terms and Conditions shall limit or exclude the Company’s liability for death or personal injury.
5.6 Subject to sub-Clause 5.3 the Company shall indemnify the Client against any costs, liability, damages, loss, claims or proceedings arising out of the Company’s breach of these Terms & Conditions.
5.7 The Client shall indemnify the Company against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including that belonging to any third parties appointed by the Company) caused by the Client or its agents or employees.
5.8 Neither Party shall be liable to the other or be deemed to be in breach of these Terms & Conditions by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.
6. Confidentiality
6.1 Each Party undertakes that, except as provided by sub-Clause 7.2 of the Agreement or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and 2 years after its termination:
6.1.1 keep confidential all Confidential Information;
6.1.2 not disclose any Confidential Information to any other party;
6.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;
6.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
6.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 7.1.1 to 7.1.4 of the Agreement.
6.2 Either Party may:
6.2.1 disclose any Confidential Information to:
6.2.1.1 any sub-contractor or supplier of that Party;
6.2.1.2 any governmental or other authority or regulatory body; or
6.2.1.3 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 7.2.1.2 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of Clause 7 of the Agreement, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
6.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.
6.3 The provisions of Clause 7 of the Agreement shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.
7. Force Majeure
7.1 No Party to the Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet Company failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
7.2 In the event that a Party to the Agreement cannot perform their obligations hereunder as a result of force majeure for a continuous period of 3 months, the other Party may at its discretion terminate the Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all Services provided up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of the Agreement.
8. Term and Termination
8.1 This Agreement shall come into force on the commencement date agreed in writing between the Parties and shall be for a Term of 12 months (“the Initial Term”) or upon completion of the Services whichever comes first, subject to the provisions of this Clause 8;
8.2 Following the Initial Term the contract shall continue on a monthly rolling basis until Termination, subject to the provisions of this Clause 8.
8.3 Either Party may terminate this Agreement by giving to the other, in writing, not less than 30 Business Days written notice. During the notice period the Client will be invoiced based on their previous average weekly spend. The calculating method to be used will be based on the Client's last 3 months invoices payable to the Company. Payment of such invoices is due within 14 Business Days of the invoice date.
8.4 Either Party may immediately terminate the Agreement by giving written notice to the other Party if:
8.4.1 any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 7 Business Days of the due date for payment;
8.4.2 the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 14 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
8.4.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
8.4.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
8.4.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);
8.4.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
8.4.7 the other Party ceases, or threatens to cease, to carry on business; or
8.4.8 control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement. For the purposes of Clause 8, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
8.5 For the purposes of sub-Clause 8.4.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
8.6 The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
9. Effects of Termination
Upon the termination of the Agreement for any reason:
9.1 any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable;
9.2 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect;
9.3 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which existed at or before the date of termination;
9.4 subject as provided in this Clause 9 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
9.5 each Party shall (except to the extent referred to in Clause 6 of the Agreement) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
10. Data Protection
The Company will only use the Client’s personal information as set out in the Company’s Privacy Notice available from https://www.jam-pot.com/privacy.
11. Data Processing
11.1 In this Clause 11 and in the Agreement, “personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” shall have the meaning defined in Article 4 of the UK GDPR.
11.2 Both Parties shall comply with all applicable data protection requirements set out in the Data Protection Legislation. Neither this Clause 11 nor the Agreement shall relieve either Party of any obligations set out in the Data Protection Legislation and shall not remove or replace any of those obligations.
11.3 For the purposes of the Data Protection Legislation and for this Clause 11, the Company is the “Data Processor” and the Client is the “Data Controller”.
11.4 The type(s) of personal data, the scope, nature and purpose of the processing, and the duration of the processing shall be set out in the Data Processing Schedule attached hereto.
11.5 The Data Controller shall ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to the Data Processor for the purposes described in these Terms and Conditions.
11.6 The Data Processor shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under these Terms and Conditions:
11.6.1 Process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by law.
11.6.2 Ensure that it has in place suitable technical and organisational measures (as approved by the Data Controller) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures. Measures to be taken shall be agreed between the Data Controller and the Data Processor and set out in the Schedule to these Terms & Conditions.
11.6.3 Ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential; and
11.6.4 Not transfer any personal data outside of the UK without the prior written consent of the Data Controller and only if the following conditions are satisfied:
11.6.4.1 The Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;
11.6.4.2 Affected data subjects have enforceable rights and effective legal remedies;
11.6.4.3 The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and
11.6.4.4 The Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data.
11.6.5 Assist the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects and in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);
11.6.5.1 Notify the Data Controller without undue delay of a personal data breach;
11.6.5.2 On the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of the Agreement unless it is required to retain any of the personal data by law; and
11.6.5.3 Maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this Clause 11and to allow for audits by the Data Controller and/or any party designated by the Data Controller.
11.7 The Data Processor shall not sub-contract any of its obligations to a sub-contractor with respect to the processing of personal data under this Clause 11 without the prior written consent of the Data Controller (such consent not to be unreasonably withheld). In the event that the Data Processor appoints a sub-contractor, the Data Processor shall:
11.7.1 Enter into a written agreement with the sub-contractor, which shall impose upon the sub-contractor the same obligations as are imposed upon the Data Processor by this Clause 11 and which shall permit both the Data Processor and the Data Controller to enforce those obligations; and
11.7.2 Ensure that the sub-contractor complies fully with its obligations under that agreement and the Data Protection Legislation.
11.8 Either Party may, at any time, and on at least 30 Business Days notice, alter the data protection provisions of the Agreement, replacing them with any applicable data processing clauses or similar terms that form part of an applicable certification scheme. Such terms shall apply when replaced by attachment to the Agreement.
12. No Waiver
No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
13. Further Assurance
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
14. Costs
Subject to any provisions to the contrary each Party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.
15. Set-Off
Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.
16. Assignment and Sub-Contracting
16.1 Subject to sub-Clause 16.2 The Agreement shall be personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
16.2 Subject to the provisions of Clause 11, the Company shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of the Agreement, be deemed to be an act or omission of the Company.
17. Time
The times and dates referred to in the Agreement shall be for guidance only and shall not be of the essence of the Agreement and may be varied by mutual agreement between the Parties.
18. Relationship of the Parties
Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
19. Non-Solicitation
19.1 Neither Party shall, for the Term of the Agreement and for a period of 12 months after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Agreement without the express written consent of that Party.
19.2 Neither Party shall, for the Term of the Agreement and for a period of 12 months after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.
19.3 If the Client decides to solicit or entice away from the Company any person who is or was employed or otherwise engaged by the Company as described in sub-Clause 19.1 above the Client shall pay to the Company an amount representing 15% of the annual salary payable to the person solicited or enticed away. For avoidance of doubt this fee will be incurred whether consent is sought or not.
20. Third Party Rights
20.1 No part of the Agreement shall confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
20.2 Subject to this Clause 20 the Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
21. Notices
21.1 All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
21.2 Notices shall be deemed to have been duly given:
21.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
21.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
21.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
21.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
22. Entire Agreement
22.1 Subject to the provisions of Clause 11, this Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
22.2 Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
23. Counterparts
The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
24. Severance
In the event that one or more of the provisions of the Agreement and/or of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement and/or these Terms and Conditions. The remainder of the Agreement and/or these Terms and Conditions shall be valid and enforceable.
25. Intellectual Property
25.1 All Intellectual Property Rights subsisting in any materials provided by the Client shall at all times remain the Client’s property (or its licensors, as appropriate). Nothing in these Terms and Conditions shall vest any rights in any material provided by, or otherwise belonging to the Client (or its licensors, as appropriate) in the Company. The Client hereby grants to the Company, a non-exclusive, non-transferable, revocable, worldwide licence to use any and all client materials for the purposes of providing the Services under these Terms and Conditions.
25.2 The Company shall retain the ownership of any and all Intellectual Property Rights that may subsist in the processes, methodologies, codes used or anything produced by the Company that is used in the course of the Company's business for providing the Services. The Company shall be deemed to automatically grant a royalty-free, non-exclusive licence of any and all such rights to the Client to use the same in accordance with these Terms and Conditions and the Services.
25.3 Subject to sub-Clause 25.5, upon receipt in full by the Company of all sums due, the copyright and any and all other Intellectual Property Rights subsisting in Services (save for where the Services include web design or legal Services) created by the Company for the Client shall be assigned to the Client and the Company shall be deemed to have waived any and all moral rights in respect of the same. The Company shall execute all documents and take all actions necessary or reasonably requested by the Client to document, obtain, maintain, perfect or assign its rights in such content.
25.4 Once assigned the Client hereby grant a royalty-free, non-exclusive licence to the Company, which shall continue after the termination of this Agreement, to use any of the Services works in promotional material. The Client may revoke the licence by giving the Company notice in writing of not less than 30 days.
Web Design and Legal Services
25.5 The Client understands that where the Services provided include web design or legal services the intellectual property cannot be assigned to the Client. The Company provides these Services by means of third party Intellectual Property Rights which remain with the third-party provider. Therefore, the Client shall be granted a non-exclusive, non-transferable, revocable, worldwide licence to use the output work derived from Services under these Terms and Conditions.
26. Law and Jurisdiction
26.1 The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
26.2 Any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
DATA PROCESSING SCHEDULE
Data Processing
Scope
What you are actually doing on behalf of the client. We collect all relevant data required to carry out this service for you.
Nature
Collection, Recording, Manipulating, Storing We will only collect the minimum required information to enable us to carry out these services.
Purpose
To enable us to carry out the services as outlined in Schedule 1.
Duration
Throughout the duration of the service and for a maximum of 12 months thereafter unless longer retention is required by Statute.
Types of Personal Data
Name
Address
Telephone Number
Date of birth
Categories of Data Subject
Suppliers
Customers
Contractors
Organisational and Technical Data Protection Measures
Password protection
Anti-virus software
VPN