Encore Terms and conditions
(EMEA and UK.)

This version of these terms and conditions is dated: February 1st 2026.

1. DEFINITIONS 

1.1 The following definitions and rules of interpretation apply in this Agreement: 

“Affiliate” means in respect of a party to this Agreement, any legal entity which controls, is controlled by or is under common control with that party, where “control” has the meaning given to it in s1124 of the Corporation Tax Act 2010; 

“Service Provider Materials” means those Materials specifically created by the Service Provider for the purposes of the Services by or on behalf of the Service Provider (including any Materials adapted, modified or derived from the Client Materials) and which may be incorporated into Deliverables during the Term; 

“Service Provider Proprietary Materials” means software (including all programming code in object and source code form) methodology, know-how and processes and Materials, in relation to which the Intellectual Property Rights are owned by (or licensed to) the Service Provider and which are: (i) in existence prior to the date on which it is intended to use them in connection with the Services; or (ii) created by or for the Service Provider outside of the Services and which are intended to be reused across its business. If the Services include demand generation services, Service Provider Proprietary Materials’ shall include any separately consented leads, lists or contact data compiled or collected by Service Provider on its own account, whether or not in connection with the Services; 

“Agreement” shall have the meaning given in clause 2.1; 

“Associates” means a party’s employees, officers, agents, sub-contractors or authorised representatives; 

“Business Day” means a day (that is not a Saturday or a Sunday) on which the clearing banks in the City of London are open for business; 

“Campaign Specifications” means the campaign specifications set out at Schedule 2, as may be expressly varied in the Scope of Work; 

“Client’ means the client specified in the relevant Scope of Work; 

“Client Personal Data” shall have the meaning set out at Schedule 1; 

“Client Materials” means any Client Personal Data, data, client equipment, computer systems, software, documents, Intellectual Property Rights and any other Materials or information that are provided to the Service Provider and/or its Associates by or on behalf of the Client; 

“Commencement Date” means the date set out in the Scope of Work; 

“Completion Date” means the date set out in the Scope of Work or otherwise the date of completion of the Services; 

“Data Controller” (or “Controller”), “Data Processor” (or “Processor’), “Data Subject”, “Personal Data”, “Processing” all have the meaning given to those terms in the Data Protection Legislation (and related terms such as ‘process’ have corresponding meanings); 

“Data Protection Legislation” means the following, as amended, extended, re-enacted, or replaced from time to time: 

• (a) UK Data Protection Act 2018 and the UK GDPR; 

• (b) EC Regulation 2016/679 of the European Parliament and of the Council of the 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as applicable as of 25 May 2018, as may be amended from time to time (the “GDPR”); 

• (c) EC Directive 2002/58/EC on Privacy and Electronic Communications; 

• (d) all local laws or regulations implementing or supplementing the EU legislation mentioned in (b) above (including the UK Privacy and Electronic Communications Regulations 2003); and 

• (e) all codes of practice and guidance issued by national supervisory authorities, regulators or EU or UK institutions relating to the laws, regulations, UK legislation and EU legislation mentioned in (a)–(d) above; 

“Deliverables” means any advertising, data, creative and other deliverables which are to be provided by the Service Provider as specified in the Scope of Work, including Service Provider Materials, Third Party Materials and Service Provider Proprietary Materials where applicable; 

“Expenses” means any expenses agreed between the parties in writing; 

“Fees” means the Service Provider fees for the Services as set out in the Scope of Work or otherwise agreed in writing; 

“General Terms” means these terms and conditions including its Schedules; 

"Governing Agreement" means any master services agreement, framework agreement or other pre-existing written agreement between the parties (or their respective Affiliates) that is intended to govern the Services provided under a Scope of Work; 

“Intellectual Property Rights” or “IPRs” means the following rights, wherever in the world enforceable, including all reversions and renewals and all applications for registration: 

• (a) any patents or patent applications;  

• (b) any trade marks (whether or not registered);  

• (c)  inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration;  

• (d) copyright or design rights (whether registered or unregistered);  

• (e) database rights; 

• (f) performer’s property rights as described in Part II, Chapter X of the Copyright Designs and Patents Act 1988 and any similar rights of performers anywhere in the world;  

• (g) any goodwill in any trade or service name, trading style or get-up; and  

• (h) any and all other intellectual or proprietary rights; 

“Materials” means any artwork, copy, models, designs, photographs, commercial, feature film, character, music, voice over, sound recording, performance, book, painting, logo, computer software or any other material protected by Intellectual Property Rights; 

“Scope of Work” means the scope of work document or similar document agreed and signed by both parties from time to time containing a description of the relevant Services and/or Deliverables and incorporating these General Terms; 

“Services” means the services to be provided by the Service Provider under this Agreement, including where relevant, the provision of any Deliverables, as set out in the Scope of Work; 

“Service Provider” means the Service Provider specified in the relevant Scope of Work 

“Territory” means the United Kingdom, unless expressly specified otherwise in the applicable Scope of Work.  Publication and marketing on globally accessible mediums such as the internet shall not mean that the Territory is deemed to be world-wide; 

“Term” has the meaning given in clause 3.1; 

“Third Party Contracts” has the meaning given in clause 7.1; 

“Third Party Costs” means any third party costs incurred by the Service Provider on behalf of the Client in performing the Services, subject to the Client approving all such costs in writing; 

“Third Party Materials” means those Materials created by a third party and included in any Deliverables; 

“VAT” means value added tax or any equivalent tax chargeable in the UK. 

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. 

1.3 A ‘person’ includes a natural person, or corporate or unincorporated body (whether or not having separate legal personality).  

1.4 Where the context so requires, words in the singular shall include the plural and vice versa, and words denoting one gender shall include all genders.  

1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and includes any subordinate legislation in force made under it. 

1.6 Any words following the terms including, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. 

1.7 Except where stated otherwise, a reference to ‘writing’ or ‘written’ does not include email or fax. 

2. APPOINTMENT & SCOPES OF WORK 

2.1 The parties will enter into a Scope of Work for the Services (including any Deliverables) to be provided by Service Provider, and each Scope of Work will set out the precise nature of the Services and (if applicable) Deliverables to be provided. Once a Scope of Work is agreed and signed by the parties, a contract between the parties shall come into existence on the terms and conditions of the Scope of Work and these General Terms (“Agreement”). 

2.2 The Service Provider  
a) provide the Services during the Term and in the Territory; and
b) perform such Services materially in accordance with the Campaign Specifications if the Services include demand generation services. 

2.3 Any dates specified in the Scope of Work for delivery of Services shall be estimates only and time shall not be of the essence in this Agreement. 

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

2.5 The Service Provider acts in all its contracts with third parties with regard to the provision of Services as a principal at law. 

2.6 In the event of any conflict or inconsistency between the provisions of the following documents, the following descending order of precedence will apply: (a) any Governing Agreement; (b) the Scope of Work; and (c) these General Terms. 

2.7 Subject to clause 14.4(a) the Client may request the Service Provider to cancel any Scope of Work or part thereof, including any plans, schedules or work in progress on no less than three months’ notice. The Service Provider will take all reasonable steps to comply with any such request provided that the Service Provider is able to do so within its contractual obligations to suppliers.   

3. TERM 

3.1 This Agreement shall commence on the Commencement Date and, unless terminated earlier in accordance with clause 14 or any termination provisions in the Statement of Work, shall continue until the Completion Date (‘Term’). 

4. SERVICE PROVIDER OBLIGATIONS & WARRANTIES 

4.1 The Service Provider warrants and undertakes that: 

• (a) it has full power and authority to enter into this Agreement;  

• (b) it shall perform the Services with reasonable skill and care, using suitably qualified personnel, to a standard no less than that to be reasonably expected of a competent Service Provider of similar size and resources; 

• (c) subject to clause 4.3(d), the use by the Client of any final approved Deliverables (excluding any IPRs in any Client Materials incorporated in the Deliverables) will not, when used in accordance with this Agreement and for the purposes set out in the Scope of Work infringe the copyright in UK of any third party. 

4.2 Save to the extent expressly agreed in a Scope of Work, the relationship between the parties is non-exclusive and the Service Provider shall therefore be entitled to provide any services or deliverables the same as, or similar to the Services to any third party. 

4.3 Subject to clause 11.2, the Client releases the Service Provider from any liability under or in connection with this Agreement for: 

• (a) any failure to generate media coverage or public interest for the Client, any failure or delay in publication or transmission in any media, or any third-party error in publication, as these are ultimately out of the Service Providers control, and the Client acknowledges that payment of the Fees, Third Party Costs and Expenses are not conditional upon such; and/or 

• (b) any loss or damages arising as a result of any information or materials supplied or approved by the Client; and/or  

• (c) any loss or damages arising from the withdrawal or alteration of any third-party product or service; and/or 

• (d) the Deliverables infringing third party Intellectual Property Rights or breaching other laws, where the Service Provider had previously notified the Client of a specific risk that the Deliverables infringed third party Intellectual Property Rights or breached laws and the Service Provider had obtained the prior approval of the Client to use such Deliverables notwithstanding such notified risk; 

and Client hereby indemnifies the Service Provider against any losses incurred by the Service Provider to the extent that such losses arise as a result of Client’s breach of clauses 4.3(b) and 4.3(d). 

5. CLIENT'S OBLIGATIONS & WARRANTIES 

5.1 The Client represents and warrants that:  

• (a) it has full power and authority to enter into this Agreement; 

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

• (c) the Client Materials will comply with all applicable laws and regulations;  

• (d) the Client Materials are accurate and complete; and 

• (e) it is the beneficial owner of, or is entitled to provide the Service Provider with, the Client Materials. 

5.2 The Client undertakes to: 

• (a) carry out all of its obligations under this Agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, Service Provider shall be entitled to adjust any agreed timetable or delivery schedule as reasonably necessary; 

• (b) provide the Service Provider with full and clear instructions as to its requirement for the Services and all information, materials and assistance required for the proper performance of the Services;  

• (c) promptly supply to the Service Provider (at no charge), in a form meeting the Service Providers reasonable requirements (such as size or file format), any Client Materials reasonably required by the Service Provider or otherwise necessary to provide the Services and shall ensure that it has all rights and licences in place to enable use by the Service Provider of all Client Materials; 

• (d) comply with all applicable laws and regulations with respect to its activities under this Agreement; 

• (e) use the Services and Deliverables only for the purposes for which they were provided, and not modify or alter any material or information provided by the Service Provider without the Service Providers written consent; 

• (f) keep the Service Provider informed of any matters related to the Client which will, or could, have an impact on the Service Providers performance of the Services;  

• (g) if applicable, keep and maintain the Service Providers equipment in good condition and not dispose of or use such other than in accordance with the Service Providers written instructions; 

• (h) promptly inform the Service Provider if the Client considers that any Services, Deliverables or materials provided to the Client by the Service Provider for approval are false or misleading or in any way contrary to law or applicable advertising regulation; and 

• (i) ensure that the Client’s other suppliers, contractors and agents cooperate with the Service Providers as reasonably necessary to enable the Service Provider to perform the Services. 

5.3 If the Client does not fulfil its obligations under or in connection with this Agreement (including its payment obligations), then to the extent that such failure prevents the Service Provider from performing any Services in accordance with this Agreement, the Service Provider will be relieved of its obligations to the Client, and the Service Provider shall not be liable for any losses, costs or expenses incurred by the Client as a result of any such failure. 

6. FEES 

6.1 In consideration of the provision of the Services by the Service Provider, the Client shall pay the Fees to the Service Provider together with any Third Party Costs and Expenses. 

6.2 If it is agreed that work shall be undertaken by the Service Provider outside of the Scope of Work, the Service Provider will charge for such work by time spent and in accordance with the hourly rates listed in the Service Provider prevailing rate card as may be communicated to the Client from time to time. 

6.3 Unless set out otherwise in the Scope of Work, the Fees and (if applicable) the Third Party Costs and Expenses shall be invoiced to the Client monthly in advance. Where applicable VAT will be charged to the Client at the prevailing rate. 

6.4 Unless set out otherwise in the Scope of Work, the Client shall pay the Service Provider the Fees and (if applicable) Third Party Costs and Expenses in full and in cleared funds within 30 days of the date of each invoice. 

6.5 Where the Client requires invoices to be submitted with a purchase order number or similar identifier, the Client will provide that number or identifier no later than five working days following the date of this Agreement, and the Client’s failure to provide or delay in providing that number or identifier will not entitle the Client to withhold any payment.  

6.6 In the event of any amendment to the Scope of Work by the Client (as agreed between the parties): 

• (a) the Fees payable to the Service Provider in respect of the amended Services shall not decrease below the level of Fees that would have been payable had the Services not been amended, save with the prior written approval of the Service Provider; and 

• (b) the Client shall reimburse the Service Provider for any Fees, Third Party Costs and Expenses to which the Service Provider is committed as a result of the amendment, including but not limited to any cancellation charges imposed by third parties. 

6.7 Without prejudice to any other right or remedy that it may have, the Service Provider may charge interest on any overdue sum from the due date for payment at an annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing daily from the due date for payment until the date on which the Service Provider receives payment together with all accrued interest. Without prejudice to any other right or remedy that it may have, the Service Provider may also without liability to the Client suspend the Services until payment for overdue sums has been made in full (during which period, for the avoidance of doubt, the Fees will remain payable in full). 

6.8 If any payment of the Fees, Third Party Costs or Expenses are subject to tax (whether by way of direct assessment or withholding at its source), the Service Provider shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to the Service Provider of the Fees, Third Party Costs and Expenses after tax in respect of the payment is the same as it would have been were the payment not subject to such tax. 

6.9 If the Service Provider is required to purchase anything other than in pounds sterling, it shall charge the Client at the exchange rate (which shall be the mid-point rate as quoted in the following day’s Financial Times) in operation on the date on which the Service Provider makes the purchase. If the Service Provider is required to invoice the Client other than in pounds sterling, the amounts shall be calculated in pounds sterling, and shall be charged to the Client based on the exchange-rate in operation on the date on which the Service Provider issues the invoice (which shall be the mid-point rate as quoted in the following day’s Financial Times), unless set out otherwise in the Scope of Work. 

6.10 The Service Provider will normally invoice the Client in respect of Third Party Costs monthly in advance and the Client will pay the invoice within 30 days.  Where suppliers require payment in advance or at various stages of a project, or in circumstances where the Service Provider is unable to obtain normal credit terms at short notice, the Client shall pay the Service Provider d invoices in respect of such costs immediately upon presentation.  The Service Provider shall not be obliged to make any material financial commitment to any third party on the Client’s behalf until it has been put in cleared funds by the Client, and shall not be responsible for any delays to the Services in the event of the Client’s delay or failure to remit such funds promptly.  

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

6.12 Subject to clause 6.6, each party shall pay all monies which are payable by it to the other 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 other party.  

6.13 The terms of remuneration set out in this Agreement do not cover:  

• (a) the performance of services which are outside of any Scope of Work; or  

• (b) the performance of services outside the Territory;  

if any such services are required, the terms relating to their provision together with the applicable fees will be agreed in writing by the parties. 

6.14 The Client will have 14 days from the date of invoice to dispute any invoiced amount by notice to Service Provider.  Any such dispute must be raised in good faith and include clearly-stated reasons based on specific terms of this Agreement. If Service Provider does not receive such a notice within that 14 day period, the invoice will be deemed undisputed. 

6.15 Fees may be increased by the Service Provider in line with the Consumer Price Index on each anniversary of the Commencement Date. Service Provider shall give the Client not less than 3 months prior notice in writing of the proposed changes. 

7. THIRD PARTY CONTRACTS 

7.1 The Service Provider enters into contracts with third party suppliers in respect of Services in accordance with such suppliers’ standard or individual conditions and contracts and/or end user licence agreements (“Third Party Contracts”). 

7.2 Provided that the Service Provider has referenced the relevant Third Party Contracts in the Scope of Work or otherwise notified the Client of any significant restrictions or contract terms contained in such Third Party Contracts:  

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

• (b) the Client shall comply with the terms of the Third Party Contracts; 

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

• (d) the Client hereby indemnifies, and keeps indemnified, the Service Provider against any losses, costs and expenses caused by any act or omission of the Client which puts the Service Provider in breach of any such Third Party Contracts.  

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

7.4 The Service Provider reserves the right, without liability or prejudice to its other rights, to immediately suspend or terminate the Client's right to receive the Services in the event that the Client breaches, or the Service Provider suspects that the Client is in breach of, any terms of the Third Party Contracts. 

7.5 The Service Provider shall not need to obtain the Client’s approval before commissioning services from any of its Affiliates.  

8. APPROVALS 

8.1 For the purposes of this Agreement, any reference to ‘written approval’ shall include letter, e-mail, purchase order, or the Client’s signature on a particular document that has been submitted for approval. 

8.2 The Service Provider will seek the Client’s written approval for all draft proofs, copy, layouts, photographs, artwork, articles or announcements, or for any other material that it is to make public on the Client’s behalf, and will not subsequently seek to publish any of the above until it has obtained such written approval. 

8.3 The Service Provider may rely on written approval from any employee of the Client, unless the Client has previously provided written notice that a particular employee is not authorised to give valid written approval.  

8.4 The Client’s written approval of media schedules and estimates will be the Service Providers authority to make reservations and contracts for space, time and other facilities under Third Party Contracts. 

8.5 The Service Provider will advise the Client of any changes in the estimated cost of media or any other material changes to anything previously approved by the Client. 

8.6 The Client will not give written approval for anything which it knows, or ought reasonably to know, contains inaccurate, unlawful or defamatory material. The Client undertakes to notify the Service Provider immediately if it believes that any statement in a document submitted by the Service Provider to the Client for written approval is misleading or could give rise to any claim or action against the Service Provider, whether for defamation, infringement of any right, or otherwise. 

8.7 The Client hereby indemnifies, and keeps indemnified, the Service Provider against any costs, any claims or proceedings, or any demands, arising out of or in connection with anything approved in writing by the Client. 

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

9. INTELLECTUAL PROPERTY RIGHTS 

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

9.2 Subject to clauses 9.3 and 9.4, the Service Provider hereby assigns to the Client by way of present and future assignment of present and future copyright, with full title guarantee, such of the Intellectual Property Rights in the Service Provider Materials as may be owned by the Service Provider and capable of assignment together with the right to sue for damages for past infringement provided all obligations of the Client arising from this agreement (including those relating to payment and the period of notice) have been met. The Service Provider shall also waive any moral rights in Service Provider Material. 

9.3 All Intellectual Property Rights in the Service Provider Proprietary Materials shall be owned by and remain the property of the Service Provider. Subject to the Service Provider receiving payment of all Fees, the Service Provider hereby grants to the Client a perpetual, irrevocable, non-exclusive, assignable, royalty-free licence to use such Service Provider Proprietary Materials to the extent that is necessary for the Client to receive the benefit of the Services and the Deliverables strictly for the purposes and in the Territory for which they were originally intended to be used, as set out in this Agreement or the Scope of Work. 

9.4 In the event that any Third Party Material is incorporated in the Deliverables, the Service Provider shall, at the Client’s cost, procure for the Client an assignment or licence of such usage rights in Third Party Material, subject to the Client’s prior Written Approval of the terms of such use.  In the event that the Client continues to use such Third Party Material beyond any specified licence term or uses (or authorises others to use) the Third Party Material outside of the scope of the licence or its restrictions, the Client will be responsible and liable for any fees, charges, interest or penalties payable to the licensor and shall indemnify the Service Provider against any loss, damages, costs or compensation in respect of infringement or other claims by the licensor or any other third party. 

9.5 The Service Provider agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the Deliverables, and shall not do or fail to do any act which would or might prejudice the Client’s rights under this clause 9. 

9.6 Notwithstanding any of the above and save as otherwise expressly provided for in the Scope of Work, the Service Provider shall:  

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

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

9.7 During the Term, if the Service Provider is asked to take part in a competitive pitch or other similar process for the Client, then notwithstanding any of the previous provisions of this clause 9, the Service Provider shall retain ownership of all Intellectual Property Rights in any Materials forming part of the pitch process, save to the extent that the Service Provider is successful in such pitch and the parties agree that such Materials will be used in accordance with Services to be provided under the Scope of Work. 

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

10. CONFIDENTIALITY  

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

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

10.3 Confidential Information shall exclude information which: 

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

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

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

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

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

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

10.6 The Client acknowledges that nothing in this Agreement shall affect the Service Provider right to use as it sees fit any general intelligence gained by the Service Provider in the course of its appointment.  

10.7 Neither party shall be in breach of this clause 10 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that, to the extent practicable and permissible, the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.  

10.8 The terms of and obligations imposed by this clause 10 shall survive the termination of this Agreement for any reason. 

11. LIMITATION OF LIABILITY  

11.1 Subject to clause 11.2, the Service Provider maximum aggregate liability under or in connection with this Agreement (including all Scopes of Work) whether in contract, tort (including negligence) or otherwise, but excluding under any indemnity, shall in no circumstances exceed the lower of (i) £1,000,000; and (ii) the Fees paid or payable by the Client to the Service Provider in the 12 month period preceding any event giving rise to liability. 

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

11.3 Subject to clause 11.2, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement (and including for the avoidance of doubt any indemnity contained in this Agreement) for: 

• (a) any loss (whether direct, indirect or consequential) of profits, sales or business, agreements or contracts, anticipated savings or goodwill; 

• (b) loss of use or corruption of software, data or information; or 

• (c) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses. 

11.4 Where one party (“Indemnifying Party“) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under this Agreement, the Indemnified Party shall comply with the following process in the event that a third party claim arises:  

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

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

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

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

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

11.5 Save as expressly set out in this agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement. 

11.6 The Service Provider shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Service Provider by the Client in connection with the Services, or any actions taken by the Service Provider at the Client’s direction.

12. DATA PROTECTION 

12.1 Each of the Client and the Service Provider will, in performing this Agreement, comply with the Data Protection Legislation applicable to it.  

12.2 In the course of providing the Services, Service Provider may process Personal Data. If in the course of providing the Services, the Service Provider (acting as a Processor) processes Personal Data on behalf of the Client, then the data processing agreement set out in Schedule 1 will apply to the Processing concerned.  

12.3  Service Provider may also, in the course of providing the Services, process certain Personal Data as a Controller (rather than as the Client’s Processor). Where that is the case: 

• (a) Schedule 1 shall not apply to such Personal Data when processed by the Service Provider; and 

• (b) the Client is not responsible for Service Providers processing of that Personal Data, it being for Service Provider to ensure that it does so in accordance with the Data Protection Legislation. 

13. ANTI-BRIBERY AND ANTI-SLAVERY 

13.1 Both parties: 

• (a) shall comply with the Bribery Act 2010 and any guidance issued by any governmental department relating to such legislation (“Bribery Act”); 

• (b) shall not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the Bribery Act if such activity, practice or conduct had been carried out in the UK; 

• (с) shall maintain in place throughout the Term (and enforce where appropriate) its own policies and procedures to ensure compliance with the Bribery Act; 

• (d) shall promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement; and 

• (e) shall ensure that it imposes written terms on any sub-contractor connected with the matters arising under this Agreement which are at least equivalent to those set out in in this clause. 

13.2 Each party shall comply, and procure that all its employees, contractors, agents and representatives comply, with Anti-Slavery Law, as relevant to the provision and receipt of the Services and the activities of the parties under this Agreement. Each party shall use reasonable endeavours on a continuing basis to ensure that Slavery is not taking place in its supply chains. For the purpose of this clause: “Anti-Slavery Law” means all applicable laws relating to the prevention, prohibition and/or outlawing of Slavery in the Territory or any other jurisdiction relevant to the performance of this Agreement, including the Modern Slavery Act 2015; and “Slavery” means all forms of modern slavery, human trafficking, forced labour, child labour, involuntary servitude and debt bondage.  

14. TERMINATION 

14.1 Without prejudice to any other rights or remedies which either party may have, either party may terminate this Agreement for convenience by providing the other party with at least 90 days’ written notice. 

14.2 Without prejudice to any other rights or remedies which either party may have, either party may terminate this Agreement immediately on giving notice to the other if the other party: 

• (a) fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;  

• (b) commits a material breach of this Agreement and such breach is not capable of remedy; 

• (с) commits a material breach of this Agreement that is capable of remedy but  fails to remedy it within 30 days of being notified in writing of the breach; 

• (d) suspends (or threatens to suspend) payment of its debts or the continuation of all or a substantial part of its business, is unable or deemed unable to pay its debts as they fall due, begins negotiations with any class of its creditors with a view to rescheduling any of its debts, is the subject of a court order for winding-up, has a receiver appointed over its assets (or entitles any person to appoint one), or enters into any compromise or arrangement with its creditors or is the subject of a notice, resolution or order for or in connection with its winding-up (other than for the sole purpose of a solvent amalgamation or solvent reconstruction); or 

• (e) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to those outlined in clause 14.3(d) 

• (f) if there is a change of control of the Client (where “control” has the meaning given to it in s1124 of the Corporation Tax Act 2010), and the person gaining control of the Client is, or controls, a direct competitor of Service Provider.  

14.3 Without prejudice to any other rights or remedies which Service Provider may have, Service Provider may terminate this Agreement immediately on giving notice to the Client if the Client has not paid an invoice by its due date for payment, Service Provider has sent the Client a reminder to pay the relevant invoice (email sufficient) and the invoice remains unpaid a further 7 days after sending that reminder. 

14.4 On termination or expiry of this Agreement for any reason:  

• (a) the Client shall immediately pay the Service Provider for all the Service Providers Fees, Expenses and Third Party Costs including during any notice period, and, in respect of Services performed and Expenses and costs incurred but not yet invoiced, or any cancellation charges, the Service Provider may submit invoices, which shall be payable immediately on receipt; 

• (b) subject to clause 14.4(e), on request, each party shall return all the other party’s materials, equipment and other property; and 

• (с) the accrued rights and liabilities of the parties as at termination or expiry shall not be affected. 

• (d) all licences granted under this agreement shall immediately terminate; and 

• (e) Service Provider may destroy or otherwise dispose of any of the Client’s materials, equipment and other property in Service Providers possession unless Service Provider receives, no later than 60 days after the effective date of the termination or expiry of this Agreement, a written request for the delivery to the Client of such of the Client’s materials, equipment and other property in Service Providers possession. The Client shall pay all reasonable expenses incurred by Service Provider in returning or disposing such materials, equipment and other property. 

14.5 Provisions of this Agreement which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination shall remain in full force and effect notwithstanding termination of this Agreement. Notwithstanding the generality of the foregoing, 10, 11, 12, 14 and 20 shall survive and continue to have full force and effect following termination.  

15. NON-SOLICITATION 

15.1 During this Agreement and for 12 months after its termination, Client shall not, without the Service Providers written consent, solicit or entice, or attempt to solicit or entice (or encourage a third party to solicit or entice), any person who, at any point in either the preceding six months or the six months before termination (as applicable), was employed or engaged by the Service Provider in the provision or receipt of the Services other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the Service Provider. 

15.2 If the Client breaches clause 15.1 above the Client shall immediately pay to the Service Provider a sum representing 30% of the gross annual salary of the person recruited (calculated in relation to the salary that the employee was earning while employed by the Service Provider). If, for reasons of confidentiality, the Service Provider requires the employee not to work during the notice period, the Client will additionally pay the Service Provider a sum representing the salary payable in respect of the unfulfilled portion of the notice period. 

15.3 The parties confirm that the sums referred to in clause 15.2 are reasonable and proportionate to protect each party’s legitimate interest in ensuring each party’s performance of the Agreement and its strict compliance with clause 15.1.  

16. FORCE MAJEURE 

16.1 A party shall not be in breach of this Agreement, or be liable for any failure or delay in performance of any obligations under this Agreement (except in the case of a failure to pay), where such failure or delay arises or is attributable to acts, events, omissions or accidents beyond its reasonable control (‘Force Majeure’), including but not limited to fire, accidental damage, natural disaster, war, terrorist attack, riots, failure of machinery, computers or vehicles, industrial action, non-performance by suppliers or subcontractors (excluding companies in the same group as the party seeking to rely on this clause), or interruption or failure of utility service.  

16.2 A party subject to Force Majeure shall not be in breach of this Agreement provided it could not have avoided the effect of Force Majeure by taking precautions which it ought reasonably to have taken, and provided it promptly notifies the other party of the existence and nature of the Force Majeure, and uses reasonable endeavours to mitigate the effect of Force Majeure. 

16.3 If Force Majeure continues for more than 30 consecutive days, either party may terminate this Agreement immediately by giving written notice to the other party. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring before such termination.  

17. NOTICES 

17.1 A notice (other than a notice in any legal proceedings) given by one party to the other under this Agreement will be properly served if it is in English and sent to the appropriate address noted below. 

17.2 The following table sets out methods by which a notice may be sent and, if sent by that method, the corresponding deemed delivery date and time: 

17.3 For the purpose of this clause and calculating deemed receipt all references to time are to local time in the place of deemed receipt. 

17.4 The addresses for service of notice to the Client are as set out in the Scope of Work, and in the case of notices to the Service Provider to the registered office address, with a copy to:  
Address: Next15 Group plc, 
60 Great Portland Street. London, W1W 7RT,  
For the attention of: the UK General Counsel. 

17.5 This clause 17 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. 

18. ASSIGNMENT AND SUBCONTRACTING 

18.1 The Service Provider shall be entitled to sub-contract its performance of the Services provided that any sub-contracting shall not relieve the Service Provider from its obligations to the Client under this Agreement  

18.2 Subject to clause 18.1, neither party may assign, transfer or charge or otherwise dispose of this Agreement or any of its rights or obligations arising hereunder without the prior written approval of the other party. The Service Provider is, however, entitled to perform any Services under this Agreement through any Affiliate. 

19. MISCELLANEOUS  

19.1 The Service Provider may update this Agreement and/or the Services for legal or regulatory reasons, or to reflect changes in its services or business practices. Subject to the foregoing, no variation of the Scope of Work shall be valid unless it is in writing and signed by a duly authorised officer of each of the parties. The Service Provider shall provide notice of any significant changes to these General Terms in accordance with clause 17 above.  

19.2 A party’s failure to exercise, or delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of such, or preclude any further exercise of that or any other right or remedy.  

19.3 If any provision or part-provision of this Agreement is found to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions and part-provisions of the Agreement shall not be affected. 

19.4 A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of it. 

19.5 If any dispute arises under or in connection with this Agreement, the parties will first attempt in good faith to settle such through negotiation rather than through legal proceedings. If the dispute is not resolved within 21 days of either party’s attempt to instigate such negotiations, it may be settled by the courts of competent jurisdiction under this Agreement.  

19.6 Nothing in this Agreement shall restrict or exclude the right of either party to seek injunctive relief against the other party.   

19.7 Subject to clause 2.6, this Agreement, and any documents annexed to it and signed or initialled by the parties, constitutes the entire agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject-matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance, undertaking or warranty, whether negligently or innocently made (‘Representation’), of any person (whether a party to this Agreement or not), other than as expressly set out in this Agreement. Client agrees that the only remedy available to it arising out of or in connection with a Representation shall be for breach of contract. Nothing in this clause 19.7 shall limit or exclude any liability for fraud.

19.8 This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement. 

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

20. GOVERNING LAW AND JURISDICTION 

20.1 This Agreement, and any dispute or claim arising out of or in connection with it or its subject-matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales. 

20.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject-matter or formation (including non-contractual disputes or claims).  

SCHEDULE 1 

DATA PROCESSING AGREEMENT (“DPA”) 

BACKGROUND: 

(A) In order to supply all or part of the Services, Service Provider may be required to process certain personal data on behalf of Client; 

(B) The parties are entering into this DPA to comply with data privacy laws and to set out their respective rights and obligations in respect of such processing. 

1. Definitions and interpretation 

1.1 In this DPA the following words shall have the following meanings: 

“Client Personal Data” means personal data: 

• (a) supplied to the Service Provider by or on behalf of the Client; and/or 

• (b) obtained by, or created by, the Service Provider on behalf of the Client in the course of delivery of Services, 

and in each case where such personal data is processed by the Service Provider for and on behalf of the Client in the performance of Services. 

“Data Protection Legislation” has the meaning given in the Agreement; 

“EEA” means the European Economic Area; 

“European Law” means any law in force in the EEA or the United Kingdom, including the Data Protection Legislation; 

“International Transfer Requirements” means the requirements of Chapter V of the GDPR (Transfers of Personal Data to third countries or international organisations); 

“Losses” means losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs, and expenses (including reasonable legal and other professional expenses); 

“Restricted Country” means a country, territory or jurisdiction which is not considered by the EU Commission (or in respect of personal data transfers caught by the requirements of UK Data Protection Legislation, the relevant UK governmental or regulatory body as applicable) to offer an adequate level of protection in respect of the processing of personal data pursuant to Article 45(1) of the GDPR; 

“Restricted Transfer” means a transfer of personal data from an entity whose processing of personal data under the Agreement is caught by the requirements of the GDPR and/or UK Data Protection Legislation (as applicable), to an entity that processes the relevant personal data in a Restricted Country; 

“Scope of Work” has the meaning given in the Agreement; 

“Services” has the meaning given in the Agreement;  

“Sub-processors” has the meaning given in paragraph 3.9; 

“UK” means the United Kingdom; and 

“UK GDPR” has the meaning given in the Agreement. 

1.2 References in this DPA to “processor”, “controller”, “personal data”, “process”, “processing”, “personal data breach”, “data subject” or “supervisory authority” shall have the same meanings as defined in the GDPR. 

1.3 References in this Agreement to the GDPR and/or an Article or Chapter of the GDPR shall, where the context so requires and insofar as the Data Protection Legislation is that of the UK, be construed as a reference to the equivalent Data Protection Legislation of the UK and/or the corresponding provision of such Data Protection Legislation. 

1.4 In the event of any conflict or inconsistency between the terms of this DPA and any other part of the Agreement, this DPA will take precedence. 

2. Roles of the parties and processing activities 

2.1 The parties acknowledge and agree that, to the extent that the Service Provider processes Client Personal Data on behalf of the Client in connection with the provision of Services, the Service Provider shall be the processor and the Client shall be the controller with respect to such processing. 

2.2 Each of the parties acknowledges and agrees that the subject-matter and duration of the processing carried out by the Service Provider on behalf of the Client, the nature and purpose of the processing, the type of personal data and categories of data subjects are accurately documented in the Scope of Work (which may from time to time be updated by the written agreement of the parties). 

3. Obligations of the Service Provider 

3.1 The Service Provider shall only process the Client Personal Data in accordance with the documented instructions of the Client (including those documented in accordance with Scope of Work, as updated from time to time), unless required to do so by European Law to which the Service Provider is subject, in which event the Service Provider shall inform the Client of such legal requirement unless prohibited from doing so by European Law on important grounds of public interest. 

3.2 The Service Provider shall ensure that any persons authorised by it to process the Client Personal Data are subject to an obligation of confidentiality. 

3.3 The Service Provider shall implement appropriate technical and organisational measures to ensure that the Client Personal Data is subject to a level of security appropriate to the risks arising from its processing by the Service Provider, taking into account the factors and measures referred to in Article 32 of the GDPR. Such security measures may include: 

• (a) the pseudonymisation and encryption of personal data; 

• (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; 

• (c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and 

• (d) a process for regularly testing, assessing, and evaluating the effectiveness of the security measures. 

3.4 Taking into account the nature of the processing and the information available to the Service Provider, the Service Provider shall assist the Client with regard to the Client’s compliance with its obligations under the following Articles of the GDPR: 

• (a) Article 32 (Security of processing); 

• (b) Articles 33 and 34 (Notification and communication of a personal data breach); 

• (c) Article 35 (Data protection impact assessment); and 

• (d) Article 36 (Prior consultation by the Client with the supervisory authority). 

3.5 Without prejudice to the generality of paragraph 3.4, the Service Provider shall notify the Client without undue delay (and in any event within 48 hours) after becoming aware of a personal data breach. The Service Provider shall provide such co-operation, assistance and information as the Client may reasonably require in respect of any personal data breach. Without prejudice to the generality of this requirement, the Service Provider shall provide the Client with the following information in respect of any personal data breach (insofar as it is possible, at the time of notifying the Client of the relevant personal data breach, or where such information is not available at the point of notification as soon as such information is available): 

• (a) the nature of the Client Personal Data, including where possible the categories and approximate number of data subjects concerned and the categories and number of personal data records concerned; 

• (b) the likely consequences of the personal data breach; 

• (с) the measures taken or proposed to be taken by the Service Provider to address the personal data breach, including where appropriate measures to mitigate the possible adverse effects; and 

• (d) the details of a contact point where more information concerning the personal data breach can be obtained. 

3.6 Without prejudice to the generality of paragraph 3.5, the Service Provider will notify the Client without undue delay (and in any event within 48 hours) of any rights request it receives from a data subject pursuant to Service Provider III of the GDPR. Unless otherwise agreed between the parties, the Service Provider shall not respond to or fulfil such requests itself. Taking into account the nature of the processing, the Service Provider shall assist the Client by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Client’s obligation to respond to such requests for exercising a data subject's rights under the GDPR. 

3.7 Upon the earlier of: 

• (a) termination or expiry of the Agreement; or 

• (b) the date on which the Client Personal Data is no longer relevant to, or necessary for, the purposes of providing the relevant Services;  

the Service Provider shall deliver up or destroy (at the Client’s request) such Client Personal Data which is in the possession of, or under the control of, the Service Provider unless European Law requires the Service Provider to store such Client Personal Data. 

3.8 Notwithstanding any other provision of the Agreement, the Service Provider shall be entitled to appoint further processors to process the Client Personal Data (“Sub-processors”). The following shall apply in respect of the appointment of Sub-processors: 

• (a) the Client shall be deemed to have approved the appointment of the Sub-processors documented in accordance with the Scope of Work; 

• (b) the Service Provider shall notify the Client in writing of its intention to engage any additional Sub-processor. Such notice shall give details of the identity of such Sub-processor and the services to be supplied by it; 

• (с) the Service Provider shall only use a Sub-processor that has provided sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Data Protection Legislation and ensures the protection of the rights of data subjects; 

• (d) the Service Provider shall impose, through a legally binding contract between the Service Provider and the Sub-processor, data protection obligations on the Sub-processor that are in all material respects equivalent to those set out in this DPA (including, to the extent applicable, the requirements of paragraph 5) and which in any event meet the requirements set out in the Data Protection Legislation; 

• (e) the Client shall be entitled to object to the proposed appointment of the Sub-processor where it reasonably considers that such appointment will not comply with the requirements of this paragraph 3.9. The Client shall be deemed to have approved the engagement of the Sub-processor if it has not served a notice in writing on the Service Provider objecting to such an appointment within 14 days of the date that the notice is deemed to be received by the Client in accordance with paragraph 3.8(b); 

• (f) where the Client objects to the proposed appointment, the Service Provider will use commercially reasonable efforts to continue to provide the Services without the use of the relevant Sub-processor. Where the Service Provider is unable to continue to provide the Services despite having used such commercially reasonable efforts, the Service Provider shall have no liability for any failure to provide the Services in accordance with the Agreement; and 

• (g) the Service Provider shall remain fully liable for all acts or omissions of the Sub-processors as if they were acts or omissions of the Service Provider. 

3.9 The Service Provider shall keep at its normal place of business a written record of its processing of Client Personal Data and of its compliance with its obligations set out in this DPA (“Records”). The Service Provider shall permit the Client, its third party representatives or a supervisory authority or its third party representatives access to inspect, and take copies of, the Records and any other relevant information held at any premises or on systems used in connection with the processing of the Client Personal Data, for the purpose of auditing compliance with the Service Provider obligations under this paragraph 3. The Service Provider shall give any and all necessary assistance in respect of the conduct of such audits.  Audits may be performed no more than once a year and must be conducted during regular business hours and must not unreasonably interfere with the Service Provider business. 

4. Obligations of the Client 

4.1 The Client shall ensure that: 

• (a) the supply to the Service Provider of Client Personal Data by or on behalf of the Client for the purposes of processing undertaken by the Service Provider and its permitted Sub-processors shall comply with the Data Protection Legislation; 

• (b) there is a lawful basis in respect of the Service Providers (and any permitted Sub-processor’s) processing of the Client Personal Data and data subjects have been provided with a privacy policy or notice that complies with the requirements of Article 13 and/or 14 of the GDPR in respect of such processing; and 

• (c) the instructions given by the Client to the Service Provider by operation of paragraph 3.1 shall comply with the Data Protection Legislation. 

5. Restricted Transfers 

Between the parties 

5.1 The parties acknowledge and agree that the transfer from the Client to the Service Provider of Client Personal Data does not constitute a Restricted Transfer. If and to the extent that such a transfer or processing of Client Personal Data becomes a Restricted Transfer, the parties shall enter into a separate addendum to implement a transfer mechanism to ensure that the Restricted Transfer complies with the International Transfer Requirements. 

By the Service Provider 

5.2 The Client acknowledges and agrees that Client Personal Data may be transferred by the Service Provider to Sub-processors located in a Restricted Country, which may be considered a Restricted Transfer. In the event of the transfer being considered a Restricted Transfer, the Service Provider shall enter into a transfer mechanism to ensure that the Restricted Transfer meets the International Transfer Requirements, and the Service Provider shall provide details of the relevant transfer mechanism on request. 

Failure of transfer mechanism 

5.3 The parties acknowledge and agree that to the extent either party considers (acting reasonably) that the use of the relevant lawful transfer mechanism relied on in respect of a Restricted Transfer under paragraph 5.2 is no longer an appropriate lawful transfer mechanism to legitimise the relevant Restricted Transfer pursuant to the International Transfer Requirements, the Restricted Transfer shall be suspended and the parties shall work together in good faith to agree and put in place an alternative lawful transfer mechanism or such other supplementary measures to enable the Restricted Transfer to continue. 

5.4 In addition to paragraph 5.3, the parties will each use commercially reasonable efforts to ensure that the Services can continue to be provided in all material respects in accordance with the Agreement despite the suspension of the Restricted Transfer.    

5.5 Without prejudice to Service Providers obligations under paragraphs 5.3 and 5.4, the Service Provider shall have no liability under the Agreement for any inability to provide the relevant Services in accordance with the Agreement as a result of the suspension of a Restricted Transfer pursuant to paragraph 5.3. 

6. Costs 

The Client acknowledges and agrees that the remuneration in respect of the Services does not take into account costs that may be incurred by the Service Provider in complying with its obligations under this DPA. Accordingly, the Client will pay the Service Provider in respect of any costs that are (or are to be) reasonably incurred by the Service Provider outside the ordinary course of the Service Providers business in respect of the performance by the Service Provider of its obligations in this DPA, except where such performance is required as a result of a breach by the Service Provider of its obligations under this DPA. Where practicable to do so, the Service Provider will seek the Client’s written approval prior to incurring such costs. 

7. Liability for Losses 

7.1 Where in accordance with the provisions under Article 82(3) of the GDPR, both parties are responsible for the act, or omission to act, resulting in the payment of Losses by a party or both parties then a party shall only be liable for that part of such Losses which is in proportion to its respective responsibility.  

7.2 Any exclusions and limitations of liability set out in the Agreement shall apply in respect of the Service Providers liability under or in connection with this Schedule. 

8. Use of Cookies 

• (a) Where the Services require Service Provider to collect Personal Data via the deployment of pixels, tags and/or similar tracking technologies ("Tags") ("Interest Based Data") from any digital property owned and/or operated by Client (or by a third party on Client's behalf) ("Client Digital Property"), as neither Service Provider nor the relevant data vendor that provides the Tag has a direct relationship with the relevant data subjects, Client shall provide Service Provider with such cooperation and assistance as Service Provider and/or the data vendor may reasonably require to enable Service Provider and/or the data vendor to comply with its legal obligations. In particular, Client shall: 

• (i) assist Service Provider and/or the data vendor in ensuring there is a legal basis to enable Service Provider and/or the data vendor to process the Interest Based Data in connection with the provision of the Services; and  

• (ii) have in place, on each relevant Client Digital Property: 

• (1) a 'cookie banner' (or other appropriate mechanism) that complies with the requirements of Data Protection Legislation and obtains consent (within the meaning of the GDPR) for and on behalf of Service Provider and/or the data vendor for (i) the deployment of Tags on the data subject's device(s), and (ii) Service Providers and/or the data vendor’s collection and processing of the Interest Based Data; and 

• (2) a privacy policy and cookie policy or notice that (i) expressly names Service Provider and/or the data vendor (as required) as a party that collects and/or receives the data subject's Personal Data for the purposes anticipated by the Agreement and/or the applicable parts of the Service Provider and/or the data vendor’s privacy notice, and (ii) contains a clear and prominent link to Service Provider 's and/or the data vendor’s privacy notice. 

SCHEDULE 2 

 Demand Generation Campaign – Standard Campaign Specifications 

The Standard Campaign Specifications are as follows: 

1. Definitions 

“Client Requirements” means the Client’s criteria for appropriate leads, and any specific requirements identified by the Client as to how the Services should be conducted, such as email content and phone scripts, as set out in the Scope of Work;  

A “Prospect” is an individual who meets the lead criteria set out in the Client Requirements and who does not appear on a suppression list. 

A “Lead” is a Prospect who has provided specific consent to be contacted by the Service Provider, the Client and/or its Service Provider (as applicable), according to the opt-in or invitation wording provided as part of the applicable Client Requirements. 

“Conversion” occurs when a Prospect becomes a Lead, and “Convert” will be interpreted accordingly. 

2. Lead generation, enrichment and validation 

a) Service Provider will identify Prospects from publicly available sources and its own and its sub-contractors’ first party data, and will seek to Convert them to Leads through communication with them over the relevant engagement channels. 

b) Service Provider will capture from publicly available sources additional business contact information for Leads, record it and associate it with the Lead, using reasonable efforts to ensure that the additional information is accurate. 

c) Service Provider will also collect, record and associate with each Lead the Service Provider information required by the Client Requirements (such as information to be captured digitally or through questions during a phone call). 

d) Unless the Scope of Work provides otherwise, the Deliverables must include all of the above information for each Lead. 

e) Any Prospect indicating a wish not to be contacted further will be added to Service Provider suppression list and not contacted further. 

f) A Lead will be a valid Lead (and Fees will be payable in respect of it) if it is provided with validated business card data and provable opt-in consent to receive further communication from the Client (or its Service Provider on its behalf), and it meets any other specific Lead validation requirements in the Client Requirements (such as an expressed interest in a call back). 

g) Any Lead who unsubscribes or opts out within 24 hours of opt-in will not be a valid Lead and should not be submitted as part of any Deliverable. 

3. Suppression lists 

a) Service Provider will operate a suppression list of persons who must not be contacted.  Service Provider will ensure that all reasonable efforts are made to honour the suppression list and will not contact any person appearing on a suppression list. 

b) The Client will provide to Service Provider a list of any Prospects which the Client knows or ought to know should be added to the suppression lists for the Services. 

4. Frequency and brand protection 

a) Service Provider will limit communications: 
i. to any one Prospect to no more than two per week; and 
ii. to any one business, to no more than 20 per week (or two per week for SMEs) 

b) Service Provider will inform the Client promptly of any complaint to the Client. 
c)  The Client shall promptly inform Service Provider of any complaint relating to an activity engaged by Service Provider. 

5. Rules for specific engagement channels 

a) Emails 
i. Emails will be sent to business email addresses only, except where a Prospect or Lead explicitly provides another email address for this purpose.  Filters will be applied against common personal email domains such as gmail, Yahoo! and outlook.com. 
ii. All emails will include a functional “unsubscribe” link which will have the effect of adding the Prospect to the applicable suppression list. 
iii. The Client has the right to request prior inspection and sign-off on email content that represents the Client. 

b) Phone 
i. Phone calls will be to business numbers only. Where a Prospect or Lead asks for a number to be reclassified as a non business number, Service Provider will make reasonable effort to ensure this is respected. 
ii. All phone calls must represent the Client brand but make clear where the caller is calling from (e.g. “I’m calling from [Service Provider or subcontractor] and we’re working with [Client] …”) and otherwise follow any phone scripts or talking points included in the Client Requirements. 
iii. Phone calls may be recorded. Those recordings will be used for no purpose other than demonstrating compliance with applicable laws (for example, to evidence consent) or the agreement between Service Provider and the Client (for example, adherence to phone scripts). 

6. Security and storage requirements 

a) Service Provider will provide the Deliverables to the Client using its standard secure data transfer mechanisms, unless otherwise requested by the client. 

b) Service Provider will limit access to the personal data of Prospects and Leads to those of its and its subcontractors’ personnel who have a need to access it for the purpose of the Services, on the basis of “least possible access”. 

7. Reporting

a) Service Provider will provide to the Client periodic reporting on the Services (approximately weekly unless otherwise agreed) as it progresses, including information on Prospects contacted, Conversion rates, and any problems or difficulties encountered.