1. INTERPRETATION
1.1 The following definitions shall apply to this Agreement:
Agreement: has the meaning given to it in the Order Form;
Applicable Laws: means all applicable laws, enactments, rules, regulations, orders, regulatory policies, guidelines, industry codes of practice, regulatory permits and licences, and any mandatory instructions or requests of a regulator, in each case which are in force from time to time, including Data Protection Legislation;
The Growth Guys: means The Growth Guys Ltd incorporated and registered in England and Wales with registered number 12577214 whose registered office is at Office 10, Concept Business Centre, Kettlestring Lane, York, England, YO30 4XF;
The Growth Guys Background IPR: means all Intellectual Property Rights owned by or licensed to The Growth Guys, or developed by The Growth Guys, in either case independently of this Agreement (but excluding any Foreground IPR);
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
Client: has the meaning given to it in the Order Form;
Client Background IPR: means all Intellectual Property Rights owned by or licensed to the Client, or developed by the Client, in either case independently of this Agreement (but excluding any Foreground IPR);
Client Data: means information, data, and other content, in any form or medium, excluding personal data that is collected, downloaded, or otherwise received, directly or indirectly, from the Client by or through or in connection with the Marketing Services;
Client Materials: means all documents, information, items and materials in any form, including those containing Client Data and Client Background IPR, whether owned by the Client or a third party, which are provided by the Client to The Growth Guys in connection with the Marketing Services, including those items specified in the Order Form but excluding personal data;
Commencement Date: has the meaning given to it in the Order Form;
Data Protection Legislation: (a) Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) including the recitals (“GDPR”) and any equivalent or implementing legislation; (b) if and to the extent that the UK Data Protection Act 2018 (“DPA 2018”) applies to any processing of Personal Data: (i) the GDPR as applied by the DPA 2018; and (ii) the DPA 2018; and (c) all other applicable laws (including judgments of any relevant court of law) and regulations relating to the processing of personal data, data privacy, electronic communications, marketing and/or data security;
The following terms shall have the meaning given to them in the GDPR: “controller” “data subject”, “personal data”, “personal data breach”, “processing” and “processor”;
Expiry Date: means the date that this Agreement shall expire as set out in the Order Form;
Fees: the fees payable by the Client to The Growth Guys as set out in the Order Form;
Force Majeure Event: means an event, circumstance or cause beyond the reasonable control of either Party (other than the Client’s obligation to pay the Fees);
Foreground IPR: Foreground IPR: means all Intellectual Property Rights (excluding the Client Background IPR, the Growth Guys Background IPR and any IPR that belongs to a third party) which result from or otherwise come into existence as a result of the supply of the Marketing Services or otherwise under or in connection with this Agreement;
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, and all similar or equivalent rights or forms of protection in any part of the world, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights;
Order Form: has the meaning given to it in Clause 2.1;
Marketing Services: the marketing services provided by The Growth Guys to the Client as described in the Order Form;
Marketing Terms: the terms and conditions set out in this document entitled “Marketing Terms” and attached to the Order Form;
Parties: The Growth Guys and the Client, and the term “Party” shall be construed accordingly;
Personal Data means the personal data to be processed by The Growth Guys in connection with this Agreement;
Term: has the meaning given to it in Clause 2.2;
1.2 Clause headings shall not affect the interpretation of this Agreement.
1.3 Unless the context otherwise requires:
1.3.1 words in the singular shall include the plural and in the plural shall include the singular;
1.3.2 any reference to any statute, enactment, order, regulation or other similar instrument will be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment thereof;
1.3.4 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.
1.4 In the case of conflict or ambiguity, the order of precedence for this Agreement will be as follows:
1.4.1 the Order Form; and
1.4.2 the Marketing Terms.
1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
1.6 References to Clauses are to the clauses of these Marketing Terms and references to Sections are to sections of the Order Form and references to Paragraphs are to paragraphs of Schedule 1.
2. STRUCTURE AND TERM
2.1 The attached order form entered into by The Growth Guys and the Client (“Order Form”) is governed by these Marketing Terms and both of these documents form part of the same contract between the Parties.
2.2 This Agreement shall commence on the Commencement Date and, subject to earlier termination in accordance with Clause 10 (Termination), this Agreement will terminate at 23.59 hours on the Expiry Date (the period between such dates being the ”Term”).
3. MARKETING SERVICES
3.1 Subject to the Client paying the Fees and Clause 3.2 below, The Growth Guys shall, during the Term, perform the Marketing Services to conform materially with the description of the Marketing Services set out in the Order Form.
3.2 Notwithstanding any other term of this Agreement:
3.2.1 The Growth Guys’ obligations under Clause 3.1 shall not apply to the extent of any non-conformance which is caused by the Client’s use of the Marketing Services that is not in accordance with The Growth Guys’ advice and/or instructions; and
3.2.2 The Growth Guys is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Marketing Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.3 Except as expressly set out in this Agreement any performance dates specified in the Order Form are estimates for planning purposes only and time shall not be of the essence in respect of the provision of the Marketing Services.
3.4 The Growth Guys warrants that the Marketing Services will be provided with reasonable care and skill to conform materially with the description of the Marketing Services set out in the Order Form. Save for such warranty, The Growth Guys expressly disclaims and excludes all representations or warranties of any kind, whether express or implied, to the maximum extent permitted by Applicable Laws in relation to any aspect of the Marketing Services, including without limitation, those concerning satisfactory quality or fitness for purpose.
3.5 This Agreement shall not prevent The Growth Guys from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
3.6 The Growth Guys may employ subcontractors for carrying out any part of its obligations hereunder provided that The Growth Guys: (i) will not be relieved of any of its obligations under this Agreement by entering into any sub-contract for the performance of any of its obligations; (ii) will at all times remain primarily responsible and liable to the Client for the conduct of the sub-contractors; and (iii) shall comply with the provisions applicable to the appointment of DP Sub-processors set out in this Agreement.
3.7 The Marketing Services provided by The Growth Guys may include financial projections. By their nature, financial projections involve numerous assumptions, known and unknown risks and uncertainties, both general and specific, that contribute to the possibility that the predictions, forecasts, projections and other forward-looking information will not occur, which may cause actual performance and financial results in future periods to differ materially from any estimates or projections or future performance or results expressed or implied by such financial projections. The Growth Guys is under no obligation to update or revise any financial projections, whether as a result of new information, future events or otherwise, after the date on which the projections are produced or to reflect the occurrence of unanticipated events. The Client should not place any reliance on any financial projections.
4. RESTRICTIONS AND EXCLUSIONS
4.1 The Client hereby acknowledges that the Marketing Services may rely upon goods and/or services being provided by third parties who are not subcontractors to The Growth Guys (”Third Party Services”). The Client acknowledges that the Third Party Services may be governed by the relevant third parties’ terms and conditions and that The Growth Guys cannot provide any warranties in respect of the Third Party Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies. Where Third Party Services are required for or utilised by The Growth Guys in the delivery of the Marketing Services, The Growth Guys shall provide reasonable notice of the same to the Client.
4.3 To the extent legally permitted, The Growth Guys shall not be liable for any alterations or adjustments made by the Client or a third party engaged by the Client to (without limitation) domain names, websites, links, technical setup, that detrimentally impact the delivery of the Marketing Services by The Growth Guys. Any work carried out by The Growth Guys in connection with such alterations or adjustments shall be charged to the Client in accordance with The Growth Guys’ then-current price list.
4.4 The Growth Guys shall use reasonable endeavours to deliver those aspects of the Marketing Services (if any) relating to search engine optimisation, links, advertisements, banners, pay per click and Google Analytics in accordance with the guidelines applicable to the relevant search engines, websites or ad accounts (including Facebook) (together the “Online Providers”). Notwithstanding the foregoing, The Growth Guys shall not be liable (to the extent legally permitted) for delayed or non-conforming performance of the Marketing Services due to changes or decisions made by any of the Online Providers to standard terms (including terms of use), advertising policies or other policies, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters outside of The Growth Guys’ reasonable control and The Growth Guys reserves the right to vary the Marketing Services as a result of the same.
4.5 The Client acknowledges and agrees that the Marketing Services provided by The Growth Guys relating to search engine optimisation, link building, advertisements, banners or sponsorships do not guarantee a minimum number of views, position or frequency in searches on relevant words or otherwise. Nor do they guarantee a certain volume of traffic, number of clicks, registrations, purchases or similar.
4.6 The Growth Guys shall not be responsible for URLs dropped or excluded by a search engine for any reason.
4.7 The Growth Guys shall not be responsible for any circumstances that arise (directly or indirectly) from the Client’s failure to implement any recommendations made by The Growth Guys as part of the Marketing Services.
5. CLIENT’S OBLIGATIONS
5.1 The Client shall:
5.1.1 be and remain responsible and accountable for: (i) managing its affairs and making management decisions including without limitation in relation to the suitability of the Marketing Services and the outputs therefrom for use in its business; (ii) deciding what to do after receiving the Marketing Services; (iii) any circumstances or events arising from its use of the Marketing Services not contemplated by this Agreement; (iv) implementing any advice or recommendations provided by The Growth Guys; and (v) realising any benefits requiring any activity by the Client;
5.1.2 promptly and at no charge provide The Growth Guys with (i) all necessary cooperation, approvals and comments in relation to this Agreement, including approvals and comments on materials prepared by The Growth Guys such as copy, search terms and graphic materials; and (ii) all necessary access to such information, including Client Materials, Client Background IPR, Client personnel and Client premises, facilities and systems as may be reasonably required by The Growth Guys in order to provide the Marketing Services, in addition to any such access as specified in the Order Form;
5.1.3 be solely responsible for ensuring the accuracy and timely delivery of all information, including the Client Materials, to The Growth Guys;
5.1.4 ensure that its personnel, agents or subcontractors assisting in connection with the Marketing Services have the necessary skills and authority;
5.1.5 be responsible for compliance with all Applicable Laws that are relevant to its particular business and industry, including for the avoidance of doubt those regarding marketing and advertising, with respect to all activities, including receipt and delivery of the Marketing Services, under this Agreement;
5.1.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for The Growth Guys, its agents, personnel or subcontractors to access and use (i) the Client Data, Client Materials and Client Background IPR and (ii) any other products, facilities or services provided to the Client by a third party, in order to perform their obligations under this Agreement, including the Marketing Services;
5.1.7 be solely responsible for procuring and maintaining its network connections, operating environment and telecommunications links from its systems to The Growth Guys and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to The Growth Guys’ network connections, operating environment or telecommunications links or caused by the internet;
5.1.8 remain responsible for the effective and efficient management, co-ordination and performance of all third-party interfaces, accounts and agreements, including continuing compliance with any corresponding advertising policies and/or terms of use, with which The Growth Guys requires usage and contact with to enable it to provide the Marketing Services (including, where applicable, accounts with Shopify, Facebook and any other accounts specified in the Order Form or otherwise agreed by the Parties from time-to-time);
5.1.9 by any agreed deadline as stated in the Order Form (or in the absence of such deadline, acting promptly) implement the changes to its websites, IT systems or as otherwise required in order to receive the Marketing Services;
5.1.10 promptly notify The Growth Guys of changes to domain names, websites, technical setup and any other material information regarding the Client’s technical infrastructure which may affect the performance of the Marketing Services; and
5.1.11 be solely responsible for implementing any changes recommended by The Growth Guys in its performance of the Marketing Services, including recommended optimisation changes.
5.2 The Growth Guys shall not be liable to the Client in relation to delayed completion or performance of any of its obligations under this Agreement to the extent to which such delay or failure is the result of any act or omission, including a failure to comply with the foregoing provisions of this clause 5, of the Client, or a third party (save for any subcontractors used by The Growth Guys in the performance of the Marketing Services).
6. FEES AND PAYMENT
6.1 The Client shall pay the Fees and any expenses to The Growth Guys in accordance with the Order Form. All sums due to The Growth Guys under this Agreement shall be paid by the Client in Pounds Sterling and are exclusive of any VAT and any other applicable taxes which may from time to time be introduced.
6.2 The Client acknowledges that the Marketing Services may require (i) the purchase of media from a third party and/ or (ii) the licensing of third-party Intellectual Property Rights in order to include certain third party content, such as pictures, in the Client’s marketing materials. As such, the Client may be required to enter into an agreement and/ or licence/licences directly with such third party, at its cost. Unless otherwise expressly stated, the Fees are exclusive of any costs to obtain such media or licences.
6.3 Unless otherwise expressly stated in the Order Form, The Growth Guys shall invoice the Client at the beginning of each month. If the Client does not pay an invoice when it is due, pursuant to Clause 6.4 below, The Growth Guys may suspend the performance of the Marketing Services until the invoice has been paid in full.
6.4 All sums due to The Growth Guys under this Agreement will be payable by the Client by cheque or by electronic bank transfer within fourteen (14) days of receipt of an invoice.
6.5 The Client shall pay all amounts due under this Agreement in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against The Growth Guys in order to justify withholding payment of any such amount in whole or in part.
6.6 In the event of late payment, The Growth Guys may charge interest on the invoice amount at the statutory rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 or at the rate of 2 per cent over the base rate of Barclays Bank Plc (whichever is the higher).
6.7 All additional fees under this Agreement shall be calculated in accordance with The Growth Guys’ then current price list.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All Client Background IPR shall remain vested in and be owned by the Client or its licensors and all The Growth Guys Background IPR shall remain vested in and be owned by The Growth Guys or its licensors. Client Background IPR includes any Intellectual Property Rights that subsist in the Client Materials.
7.2 All Foreground IPR shall immediately vest in and be owned by the Client.
7.3 The Growth Guys hereby assigns to the Client with full title guarantee any Foreground IPR that does not automatically vest in the Client under Clause 7.2, together with the right to sue for and recover damages or other relief in respect of any infringement of that Foreground IPR.
7.4 To give effect to Clause 7.3, The Growth Guys hereby irrevocably assigns, transfers and conveys, or shall procure the assignment, transfer or conveyance of the Foreground IPR to the Client with full title guarantee and free from all third party rights and agrees to undertake all additional necessary acts promptly upon creation of such rights, at no cost to The Growth Guys, to give effect to the assignment of such rights.
7.5 Subject to the Client’s compliance with this Agreement, The Growth Guys grants to the Client a limited, non-exclusive and non-transferable revocable licence for the Term to use any The Growth Guys Background IPR that is incorporated in the outputs from the Marketing Services solely to receive the Marketing Services for use in accordance with this Agreement.
7.6 The Client shall not be entitled under Clause 7.5 to use any of The Growth Guys’ or its licensors’ Intellectual Property Rights:
7.6.1 to create or build a product or service which competes with any of the Marketing Services;
7.6.2 in any way which circumvents any licence granted in this Agreement or reduces the amount of, or replaces the requirement to pay any Fees;
7.6.3 to license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Marketing Services available to any third party;
7.6.4 to attempt to obtain, or assist third parties in obtaining, access to the Marketing Services;
7.6.5 for any purposes other than those explicitly permitted herein, without The Growth Guys’ prior written consent; or
7.6.6 to create or use any derived work.
7.7 The Client hereby grants to The Growth Guys, a non-exclusive, irrevocable, royalty-free, world-wide, perpetual and assignable licence to use the Client Background IPR which are necessary to enable The Growth Guys to provide the Marketing Services.
7.8 This Clause 7 shall survive the expiry or termination for any reason of the Agreement.
7.9 At its own expense, each Party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Clause 7.
8. DATA PROTECTION AND CLIENT DATA
8.1 The Parties agree to comply with their respective obligations under Schedule 1 (Data Protection).
8.2 Without prejudice to Clause 8.1, the Client:
8.2.1 shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data; and
8.2.2 acknowledges that it should not rely on the Marketing Services to store the Client Data and the Client should separately backup the Client Data.
9. INDEMNITY
9.1 The Client shall indemnify The Growth Guys against all liabilities, costs, expenses, damages and losses and all other reasonable professional costs and expenses) suffered or incurred by The Growth Guys arising out of or in connection with:
9.1.1 any breach of Clause 5.1.1, Clause 5.1.5, and/or Clause 5.1.6 by the Client ;
9.1.2 any claim made against The Growth Guys for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Client Background IPR, Client Data or Client Materials used (directly or indirectly) under or in connection with this Agreement.
9.2 The Growth Guys shall indemnify the Client against all liabilities, costs, expenses, damages and losses and all other reasonable professional costs and expenses) suffered or incurred by the Client arising out of or in connection with any actual or alleged infringement of a third party’s Intellectual Property Rights by the Foreground IPR or the Growth Guys Background IPR.
9.3 In the event of the Client being notified of a claim to which the indemnity in clause 9.1.2 would apply, or in the event of The Growth Guys being notified of a claim to which the indemnity in clause 9.2 would apply, the party receiving such notification (the “Indemnitee”) shall promptly notify the other (the “Indemnitor”) and offer it the opportunity to defend such claim at the Indemnitor’s own cost. In the event of the Indemnitor electing to defend such claim, the Indemnitee shall provide all reasonable assistance to such defence, at the Indemnitor’s cost.
10. TERMINATION
10.1 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if the other Party:
10.1.1 fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment; or
10.1.2 commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so.
10.2 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement, which existed at or before the date of termination or expiry.
10.3 On termination of this Agreement for any reason:
10.3.1 all rights granted to the Client or The Growth Guys under this Agreement shall cease, except where specifically provided otherwise;
10.3.2 the Client and The Growth Guys shall cease all activities authorised by this Agreement, except where specifically provided otherwise;
10.3.3 the Client shall immediately pay to The Growth Guys any sums due to The Growth Guys under this Agreement;
10.3.4 each Party shall return and make no further use of any property belonging to the other Party;
10.3.5 without prejudice to Clause 8.1, The Growth Guys may destroy or otherwise dispose of any of the Client Data in its possession; and
10.3.6 any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced.
10.4 Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement including Clauses 1,4, 5.1, 6, 7, 8, 9, 10.2, 10.3, 10.4, 11, 12.1, 12.2, 12.4, 12.5, 12.7, 12.9, 12.14 to 12.18 shall remain in full force and effect.
11. LIMITS OF LIABILITY
11.1 Nothing in this Agreement will exclude or limit either Party’s liability for:
11.1.1 death or personal injury caused by its negligence, or the negligence of its partners, officers, personnel, subcontractors or agents;
11.1.2 fraud or fraudulent misrepresentation;
11.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
11.1.4 any other liability which cannot be limited or excluded by law.
11.2 Subject to Clause 11.1, The Growth Guys shall not be liable to the Client for any of the following loss or damage, in each case arising out of or connection with this Agreement (as a result of breach of contract, negligence or any other tort, under statute or otherwise), and regardless of whether The Growth Guys knew or had reason to know of the possibility of the loss, injury or damage in question:
11.2.1 any loss (whether direct or indirect) of revenue or profits;
11.2.2 any loss (whether direct or indirect) of anticipated savings;
11.2.3 any loss (whether direct or indirect) of business opportunity;
11.2.4 any loss (whether direct or indirect) of or corruption to data (excluding Personal Data); or
11.2.5 indirect or consequential loss or damage.
11.3 Subject to Clauses 11.1 and 11.2, the aggregate liability of each party (including its respective officers, personnel, contractors, directors, subcontractors and agents) under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise will not exceed the greater of: (i) five thousand pounds sterling (£5,000); and (ii) one hundred percent (100%) of the total Fees paid and payable by the Client under this Agreement.
12. GENERAL
12.1 Each Party shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other disclose to any third party (except any subcontractors engaged by The Growth Guys (or their subcontractors) on a need to know basis for the performance of the Marketing Services (or services related to the Marketing Services), its professional advisors or as may be required by any law or any legal or regulatory authority), all information that is either marked as, or could reasonably be expected to be, confidential (including know how, trade secrets and information of commercial value) which may become known to such Party from the other Party and which relates to the other Party, unless that information is public knowledge or already known to such Party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such Party from a third party, or unless otherwise stated in this Agreement. Each Party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
12.2 Notwithstanding Clause 12.1 above, The Growth Guys may make or issue publicity announcements and other marketing collateral relating to: (i) the existence of this Agreement; (ii) the nature of the services being provided hereunder; and/or (iii) that the Client is a customer of The Growth Guys (“Publicity Activity”). Client hereby grants to The Growth Guys a royalty-free, non-exclusive, worldwide licence to use the Client’s logo in connection with the Publicity Activity.
12.3 A variation of this Agreement shall not be effective unless in writing and signed by both Parties.
12.4 No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
12.6 Neither party shall, without the prior written consent of the other (i) sub-license, assign or novate the benefit or burden of this Agreement in whole or in part; or (ii) deal in any other manner with any or all of its rights and obligations under this Agreement.
12.7 This Agreement contains the whole agreement between the Parties relating to the subject matter hereof and supersedes and extinguishes all prior agreements, arrangements and understandings between the Parties relating to that subject matter (including any confidentiality agreement(s) or any non-disclosure agreement(s) entered into by the Parties prior to the Commencement Date which relate to the subject matter hereof).
12.8 Each Party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a Party to this Agreement or not) other than as expressly set out in this Agreement. Nothing in this Clause shall limit or exclude any liability for fraud.
12.9 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause 12.9 shall not affect the validity and enforceability of the rest of this Agreement.
12.10 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
12.11 A person who is not a Party to this Agreement will have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any of its terms. The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any person that is not a Party to this Agreement.
12.12 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
12.13 Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for four (4) weeks, the Party not affected may terminate this Agreement by giving ten (10) days' written notice to the affected Party.
12.14 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 laws of England and Wales.
12.15 Any notice shall be deemed to have been received:
12.15.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or
12.15.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
12.16 Clauses 12.14 and 12.15 do not apply to the service of any proceedings or other documents in any legal action or, where applicable, other method of dispute resolution.
12.17 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 laws of England and Wales.
12.18 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
1. DATA PROTECTION
1.1 Each of the Parties acknowledges and agrees that for the purposes of the Data Protection Legislation:
1.1.1 Client is the controller; and
1.1.2 The Growth Guys is the processor in relation to the processing by The Growth Guys of any Personal Data.
1.2 The types of Personal Data, categories of data subject to whom it relates, and the subject matter, duration, nature and purposes of the processing to be carried out under this Agreement are set out in Annex A.
1.3 If Client wishes The Growth Guys to process different data and/or for different purposes, it will promptly notify The Growth Guys of the proposed changes to this Agreement and will at the same time notify The Growth Guys in writing of any amendment to Annex A required to ensure that it remains accurate, up-to-date and complete. If The Growth Guys approves the proposed amendment, the then current version of this Agreement will be replaced by the amended version as approved by The Growth Guys. If The Growth Guys and Client do not agree the proposed amendment, The Growth Guys will continue to process Personal Data in accordance with the then current version of this Agreement.
1.4 The Growth Guys will:
1.4.1 in relation to the processing of Personal Data, comply with its obligations under the Data Protection Legislation and ensure the protection of the rights of data subjects;
1.4.2 process (and will procure that its personnel will process) the Personal Data (including the transfer to an international organisation or a country (other than the United Kingdom) outside the European Union) only:
(a) in accordance with Client’s written instructions from time-to-time; or
1.4.5 not transfer or otherwise process Personal Data (or direct the transfer or processing of Personal Data) to and by an international organisation or to and in any country (other than the United Kingdom) outside the European Union without the express prior written consent of Client unless:
(a) such transfer is to, and processing is by, an international organisation or in a country which at the time of transfer or processing (as appropriate) is formally recognised by the European Commission (or the UK Information Commissioner’s Office if the UK is no longer a member of the European Union) as providing an adequate level of data protection; or
(b) The Growth Guys has put in place appropriate safeguards to protect such Personal Data and ensure that the relevant Data Subjects have enforceable subject access rights and effective legal remedies as required by Data Protection Legislation;
1.4.6 implement appropriate technical and organisational measures to ensure a level of security appropriate to the data security risks presented by processing the Personal Data, including the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;
1.4.7 notify Client without undue delay if it becomes aware that it (or any of its sub-contractors) suffers a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to any Personal Data; where and insofar as The Growth Guys cannot provide all the relevant information at the same time, it may provide this information in phases without undue further delay; and
1.4.8 when The Growth Guys ceases to provide Services relating to processing pursuant to this Agreement, The Growth Guys will:
(a) at Client’s option, delete or return to Client all Personal Data; and
(b) delete all copies of the Personal Data except insofar as The Growth Guys reasonably considers it is required by law to continue to store such copies.
1.5 The Growth Guys will take appropriate technical and organisational measures to assist Client in fulfilling Client’s obligations to respond to any request by any data subject to exercise any data subject right under articles 12-23 inclusive of the GDPR or any equivalent or implementing legislation, in each case only to the extent that the data subject’s request relates to the processing of Personal Data by The Growth Guys pursuant to this Agreement.
1.6 The Growth Guys will at Client’s request assist Client in complying with Client’s obligations under articles 32-36 inclusive of the GDPR or any equivalent or implementing legislation, in each case only to the extent that Client’s request relates to the processing of Personal Data by The Growth Guys pursuant to this Agreement.
1.7 The Growth Guys will:
1.7.1 at Client’s request, make available to Client all information required to demonstrate:
(a) The Growth Guys’ compliance with this Agreement;
(b) the compliance by each of its DP Sub-processor with the agreement between The Growth Guys and such DP Sub-processor referred to in Paragraph 1.8.3; and
(c) Client’s compliance with its obligations under this Agreement and/or with the Data Protection Legislation in relation to the engagement of a processor; and
1.7.2 on reasonable notice during business hours allow Client, its statutory or regulatory auditors, and in each case their authorised agents, access to the information referred to in Paragraph 1.7.1 as Client may require in order to verify The Growth Guys’ compliance with its obligations in relation to data processing under this Agreement. Unless Client has reasonable grounds to believe The Growth Guys has committed a material breach of this Schedule 1, Client may not exercise its audit right more than once in any twelve (12) month period. Client shall use all reasonable endeavours to ensure that the conduct of any audit by Client or its authorised agents does not unreasonably disrupt The Growth Guys or its business. Any audit by Client or its authorised agents will be limited to an audit of the Personal Data and the processes relating to the Personal Data and will not include any information relating to any other customer of The Growth Guys or any other third party (other than a DP Sub-processor).
1.8 SUB PROCESSORS
1.8.1 Client acknowledges and agrees that The Growth Guys may sub-contract the processing of Personal Data pursuant to this Agreement to third parties as reasonably determined by The Growth Guys in order to perform The Growth Guys’ duties under this Agreement (each a “DP Sub-processor”).
The Growth Guys will not appoint or replace any third party to process Personal Data pursuant to this Agreement without first giving the Client the opportunity to object to such appointment or replacement. The Growth Guys will give the Client not less than thirty days’ prior notice of the proposed appointment or replacement of any DP Sub-processor. Client must notify The Growth Guys of any objection to such appointment or replacement within five days of receiving notice of The Growth Guys’ notice; if the Client’s objection is reasonable, The Growth Guys will re-arrange the processing arrangements so the proposed appointee or replacement is not used to process Personal Data or will make such other amendment to the terms of this Agreement as the Parties (acting reasonably and in good faith) agree is appropriate to reflect the change in the sub-processing arrangements or if neither of these options is practicable, The Growth Guys will so notify the Client which shall be entitled to terminate this Agreement by giving The Growth Guys not less than thirty days’ notice, such notice being given within thirty days following the Client’s receipt of The Growth Guys’ notice that it is not practicable either to re-arrange the processing to avoid the need to use the proposed sub-processor or to agree appropriate amendments to this Agreement; if the Client does not exercise this right to terminate this Agreement, The Growth Guys shall be entitled to appoint the proposed Sub-processor subject to Paragraphs 1.8.2 and 1.8.3.
1.8.2 The Growth Guys will ensure that each DP Sub-processor provides sufficient guarantees to implement appropriate technical and organisation measures in such a way that its processing will comply with the Data Protection Legislation.
1.8.3 If The Growth Guys sub-contracts the processing of any Personal Data to any third party on behalf (directly or indirectly) of the Client, The Growth Guys will enter into a written agreement with such DP Sub-processor and include in that agreement at least:
(a) obligations on the DP Sub-processor which are no less onerous than the obligations on The Growth Guys in relation to Personal Data under this Agreement; and
(b) an obligation on the DP Sub-processor not to sub-contract the processing of any Personal Data on behalf (directly or indirectly) of the Client to any third party without giving each of The Growth Guys and the Client the right (no less beneficial to The Growth Guys and Client than Paragraph 1.8.1) to object to such sub-contracting.
1.8.4 If The Growth Guys sub-contracts the processing of any Personal Data on behalf (directly or indirectly) of the Client, The Growth Guys will:
(a) veto any such DP Sub-processor further sub-contracting the processing of any Personal Data on behalf (directly or indirectly) of the Client unless the Client has been given, and has not exercised, a right to veto such sub-contracting on terms equivalent to those in Paragraph 1.8.1; and
(b) will ensure that such DP Sub-processor enters into a written agreement with its sub-sub-processor including provisions equivalent to those in Paragraph 1.8.3.
1.8.5 The Growth Guys remains fully liable to Client for the performance of each of its DP Sub-processors and their sub-contractors in relation to processing Personal Data.
1.9 Client will:
1.9.1 comply with its obligations under the Data Protection Legislation which arise in relation to this Agreement and the receipt of the Marketing Services;
1.9.2 not do or omit to do anything which causes The Growth Guys (or any DP Sub-processor) to breach any of its obligations under the Data Protection Legislation; and
1.9.3 reimburse The Growth Guys for any reasonable costs reasonably incurred by The Growth Guys in performing its obligations under Paragraphs 1.4.8, 1.5, 1.6, 1.7.1(c) and 1.7.2, in each case except to the extent that such costs were incurred as a result of any breach by The Growth Guys of any of its obligations under this Schedule 1 or Data Protection Legislation.
1.10 Client represents, warrants and undertakes to The Growth Guys that:
1.10.1 Client (and any other sub-contractor of Client) has obtained the Personal Data in accordance with the Data Protection Legislation and has provided (or will provide) all necessary notices to data subjects whose personal data comprises part of the Personal Data; and
1.10.2 it has (or will at the required time have) one or more valid grounds for The Growth Guys’ (and any DP Sub-processor and their sub-sub-processors’) processing of the Personal Data in accordance with this Agreement
so that The Growth Guys’ (and any DP Sub-processors and their sub-sub-processors) processing of the Personal Data in accordance with this Agreement complies with the Data Protection Legislation.
1.11 Except as expressly provided in Paragraph 1.9.3 each Party will comply with its obligations in this Schedule 1 at no additional charge or cost to the other Party.
Annex A to Schedule 1
1. The subject matter and duration of the processing of the Personal Data
Client employee contact details to be used in the performance of the Marketing Services by The Growth Guys
The processing will continue for the duration of the Agreement
2. The nature and the purpose of the processing of the Personal Data
The Personal Data will be processed in order to
set up and provide the Marketing Services
provide technical support
provide customer support
3. A description of the types of Personal Data
The Personal Data will be
personal details such as contact details
4. A description of the categories of data subjects
The data subjects will be
present employees and contractors of Client and/or Client group companies
5. The obligations and rights of Client as controller.
As set out in this Agreement.