1.1 In these Conditions, the following definitions apply:
Advertising Spend: means all charges, costs and expenses which are charged by Sub2 in connection with the procurement and supply of the digital advertising as part of the Services and which are payable by the Client.
Business Day: any day (but excluding a Saturday or Sunday) on which the London clearing banks are open for business in England.
Charges: the Management Fee (if set out in the Service Order or otherwise agreed in writing) and the Advertising Spend and any other charges specified and payable for the provision of the Services as set out in the Service Order.
Client: the client named in the Service Order.
Client Material: any documents, manuals, data, materials or other information supplied by or on behalf of the Client to Sub2 for use in the provision of the Services including without limitation, creative and other materials.
Confidential Information: the terms and conditions of this agreement, and information (including data) that one party (the Receiving Party) has received or will receive from the other party (Disclosing Party) that is proprietary and confidential to the Disclosing Party.
Data Protection Law: as applicable the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679), (and any UK law which implements or acts as a domestic equivalent of it in whole or in part), and any applicable laws, regulations or secondary legislation relating to privacy or data protection, as amended or updated from time to time.
Inappropriate Content: any data or other material that: (a) is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial or religious hatred, menacing, blasphemous; (b) infringes any applicable laws or regulations; or (c) is in breach of any third party Intellectual Property Rights.
Intellectual Property Rights: any and all intellectual property rights arising anywhere in the world, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, tradenames, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
Liability: any and all liability of Sub2 in contract, tort (including, without limitation, negligence or breach of statutory duty), misrepresentation, mis-statement, restitution, infringement of Intellectual Property Rights or otherwise, whether arising out of, in connection with or in relation to the Services or the supply or non-supply of the Services or otherwise under or in connection with this agreement.
Management Fee: means(if set out in the Service Order or otherwise agreed in writing) a fee payable by the Client in addition to the Advertising Spend which is calculated in accordance with the Service Order.
Service Order: the order document describing the Services and setting out amongst other things the Charges and the term in a letter of engagement, service order, purchase order, statement of work or other agreed document.
Services: the services to be provided by Sub2 to the Client as set out in the Service Order.
Sub2: Sub2Technologies Ltd (registered number 07783861) Third Floor, 24 Chiswell Street, London, EC1Y 4YX.
Sub2 Material: all documents, manuals, data, materials or other information provided by Sub2 in relation to the Services (excluding any Third Party Material).
Third Party Material: any material originated by a third party and supplied by Sub2 to the Client pursuant to the Services.
1.2 This agreement consists of these Conditions, the Service Order together with all appendices and schedules attached to this agreement. In the event of conflict between these Conditions and the Service Order, these Conditions will prevail.
2 THE SERVICES
2.1 Sub2 shall provide and the Client shall purchase the Services subject to the terms of this agreement. The Client shall ensure that the details set out in the Service Order (including any specifications) are sufficient and appropriate for the Client’s requirements.
2.2 Sub2 reserves the right (but are under no contractual obligation) to make any changes to the Services which are necessary to conform to any applicable safety or other statutory, regulatory, code of conduct or legal requirements. Sub2 reserves the right to make such other changes to the Services (provided they do not materially affect the nature and quality of the Services) if in Sub2’s reasonable opinion such changes assist with the delivery of the Services under the terms of this agreement.
2.3 Sub2 will:
2.3.1 provide the Services with reasonable care and skill; and
2.3.2 use reasonable endeavours to ensure that the Services comply with their specification in the Service Order at the time of delivery.
2.4 Sub2 shall not be liable for any costs, claims, demands, expenses, losses, damages and liabilities or other claims of any nature whatsoever caused by or arising from:
2.4.1 any Client Material, information or instructions supplied by the Client being incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form;
2.4.2 any act or omission of the Client, its personnel, or any other person contracted to the Client;
2.4.3 any failure by the Client to comply with any legal or statutory obligations or regulations;
2.4.4 any failure by the Client to comply with any recommended course of action which Sub2 make to the Client as part of the Services;
2.4.5 any act or omission of any third party person (not within Sub2’s reasonable control); and
2.4.6 any infringement of Intellectual Property Rights or any other rights of any third party arising from the Client Material.
2.5 The parties acknowledge their understanding that Sub2is acting as an independent controller for the purposes of Data Protection Lawin providing the Services. The Client shall ensure that, for any personal data it provides to Sub2, it has obtained all necessary consents and provided all necessary notices to ensure that such provision is compliant with Data Protection Law and that Sub2’s use of such personal data for the purposes of providing the Services is compliant with Data Protection Law.
3 CLIENT OBLIGATIONS
3.1 The Client will:
3.1.1 co-operate with Sub2 in all matters relating to the Services(including but not limited to providing such access and assistance in relation to its relevant accounts and revenue information as required by Sub2);
3.1.2 be responsible for the accuracy of any Client Material(whether supplied by the Client or by any third party) and for ensuring that the Client Material is provided in a timely manner and in such format as is agreed between the parties;
3.1.3 ensure that all Client Material is scanned for viruses or other destructive or contaminating programs or disabling devices using commercially-available anti-virus software that has been updated in accordance with good industry practice;
3.1.4 ensure that the Client Material does not contain material which is contains Inappropriate Content;
3.1.5 obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and the use of the Client Material, in all cases before the date on which the Services are to start; and
3.1.6 retain duplicate copies of any Client Material which the Client provides to Sub2.
3.2 The Client agrees to indemnify and keep indemnified Sub2 from and against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation any direct or indirect consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) arising out of or in connection with any claim that any the Client Material contains or comprises Inappropriate Content or any failure of the Client to comply with Condition3.1.
3.3 Upon delivery of the Services (which for the purpose of this Condition shall include any report) the Client shall be responsible for inspecting the Services and shall notify Sub2 in writing within 14 days of delivery of any allegation that the Services do not comply with this agreement(including the relevant Service Order) or are otherwise incorrect. If the Client fails to give such notice in accordance with this Condition, the Services shall be deemed to comply with the terms of this agreement (and are otherwise correct) and the Client shall not be entitled to make a claim afterwards that the Services do not comply with the terms of this agreement (or are otherwise incorrect) except where such non-compliance would not have been apparent on a reasonable inspection of the Services.
4 PAYMENT OF CHARGES
4.1 In consideration of Sub2 agreeing to provide the Services the Client will pay to Sub2 the Charges.
4.2 Except as set out in the Service Order or as otherwise agreed in writing, the Charges will be invoiced by Sub2 as follows:
4.2.1 any fixed or recurring Charges: monthly in advance; and
4.2.2 any other Charges: monthly in arrears.
4.3 Except as set out in the Service Order or as otherwise agreed in writing, all advance payments will be non-refundable and all Charges are exclusive of VAT and expenses which will be added to invoices.
4.4 Except as set out in the Service Order or as otherwise agreed in writing, all sums due under this agreement will be paid in full within 30 days of the date of the relevant invoice save that Charges which are payable in advance must be paid in full and cleared funds at the start of the month of which they relate.
4.5 If any sum due from the Client to Sub2 under this agreement is not paid by the due date for that sum then (without prejudice to any other rights and remedies available to Sub2) Sub2 reserves the right to suspend or cancel the Services and charge the Client interest on such sum on a day to day basis, compounded monthly, at the annual rate of 8% above the prevailing Bank of England base rate from time to time from the date when payment became due until the date on which payment has been received together with any interest which has accrued under this condition.
4.6 The Client will pay all amounts due under this agreement in full without any deduction or withholding except as required bylaw and the Client will not be entitled to assert any credit, set-off or counterclaim against Sub2 in order to justify withholding payment of any such amount in whole or in part. Sub2 may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Sub2 to the Client.
4.7 Sub2 may revise the Charges at any time by giving by not less than 30 days prior notice in writing to the Client.
4.8 If the Service Order provides that the Client shall pay any Charges directly to a third party service provider the Client acknowledges that it is a material provision of this agreement that it shall pay such Charges to the third party provider promptly and in full.
4.9 Where applicable, the Client shall be liable for Charges upon a click or action occurring regardless of whether or not the Client’s webpage is operational for any reason whatsoever.
4.10 If there is any excess in the sum paid in advance by the Client in any month, Sub2 shall issue a credit note to for the excess sum paid or, at Sub2’s discretion, return any excess payment to the Client or setoff such excess sum paid against Sub2’s subsequent invoices or against any other sums owing by the Client to Sub2.
5.1 Sub2 may terminate this agreement immediately by notice in writing to the Client if any amount payable by the Client under this agreement remains outstanding more than 7 days after the due date for that amount.
5.2 Either party may terminate this agreement immediately by notice in writing to the other party for any of the following reasons:
5.2.1 upon a material breach by the other party of any part of this agreement which is incapable of remedy or which, if capable of remedy, is not remedied within seven (7) days of the defaulting party receiving notice of such breach from the non-defaulting party; or
5.2.2 if the other party becomes subject to an administration order; a receiver or administrative receiver or similar is appointed over, or an encumbrancer takes possession of any of the other party's property or assets; the other party enters into an arrangement or composition with its creditors, ceases or threatens to cease to carry on all or a substantial part of its business, goes into liquidation or bankruptcy, becomes insolvent, or suspends or threatens to suspend payments of its debts or is unable to pay its debts as they fall due.
5.3 Sub2 may, at its discretion, and without limitation to any other rights or remedies it may have, suspend provision of all or any part of the Services if:
5.3.1 any amount payable by the Client under this agreement remains outstanding after the due date for that amount; or
5.3.2 upon a breach by the Client of any part of this agreement, until that breach is remedied.
6 EFFECTS OF TERMINATION
6.1 In the event that this agreement is terminated for any reason whatsoever:
6.1.1 Sub2 shall be entitled to issue an invoice for any un-invoiced Charges in respect of Services which are provided prior to the date of termination and for any other sums payable by the Client under this agreement, and such invoice shall be immediately due and payable by the Client;
6.1.2 the Client shall pay to all sums then owing to in respect of invoices already issued prior to the date of termination; and
6.1.3 each party shall return to the other any Confidential Information (including Sub2 Material (which for the purposes of this Condition will include Third Party Material) and Client Material) belonging to such party and all copies of the whole or any part thereof or, if requested by the disclosing party, shall destroy the same and certify in writing to the disclosing party that it has been destroyed.
6.2 In the event that this agreement is terminated by Sub2under condition 5, Sub2 shall be entitled to issue an invoice for all Charges in respect of Services which would have been provided during the remainder of the term had this agreement not been terminated, and such invoice shall be immediately due and payable by the Client.
6.3 Any termination or expiry of this agreement (howsoever occasioned)shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
7.1 Nothing in this agreement will limit Sub2's liability for :
7.1.1 personal injury or death caused by its negligence; or
7.1.2 fraudulent misrepresentation.
7.2 Subject to Condition7.1, Sub2 will have no Liability for any of the following losses or damage(whether such losses or damage were foreseen, foreseeable, known or otherwise):
7.2.1 loss of revenue, loss of actual or anticipated profits (including for loss of profits on contracts),loss of the use of money, loss of anticipated savings, loss of business or business contracts, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data or goods; or
7.2.2 any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, whether or not such loss or damage is of a type specified in Condition 7.2.1).
7.3 Subject to Conditions7.1 and 7.2 above, Sub2’s total aggregate Liability in any 12 month period beginning on the commencement date of this agreement or any anniversary thereof will be limited to £250,000.
7.4 The Client acknowledges that it has assessed for itself the suitability of the Services for its requirements, and (for the avoidance of doubt) Sub2 does not warrant that the Services will meet such requirements.
7.5 The warranties and conditions stated in this agreement replace all other warranties, conditions or other terms, whether express or implied, statutory or otherwise, all of which are expressly excluded, including, without limitation, any implied warranties or conditions as to satisfactory quality, fitness for a particular purpose or as to the use of reasonable skill and care.
8 Intellectual Property Rights
8.1 All Intellectual Property Rights in the Services and the Sub2 Material shall be the sole property of Sub2. The Client shall not during or at any time after the term of this agreement in any way question or dispute the ownership by Sub2 of the same, and the Client shall not at any time transfer, sell or distribute the same.
8.2 Subject to payment in full of all Charges and compliance with the other terms and conditions of this agreement, Sub2 grants the Client a non-exclusive licence during the term of the applicable Service Order to use Sub2’s Intellectual Property Rights in the Services and the Sub2 Material to such extent as is necessary to enable the Client to make reasonable use of the Sub2 Material and Services delivered pursuant to the applicable Service Order.
8.3 All Intellectual Property Rights in any Client Material shall belong to the Client (save to the extent that they contain any Sub2Material) and the Client hereby grants Sub2 and its service providers anon-exclusive licence to use all Intellectual Property Rights in the Client Material for the purpose of providing the Services.
8.4 The Client agrees to comply with any additional licensing requirements notified to it in respect of Third Party Material supplied to it by Sub2.
8.5 Without limitation to any of Sub2’s other rights whether under this agreement or otherwise, the Client will not:
8.5.1 make any copies of the whole or any part of the Sub2 Material or Third Party Material without the express written consent of Sub2 other than in accordance with this agreement;
8.5.2 use its access to the Sub2 Material or Third Party Material in order to recreate (or enable or assist any third party to recreate) the whole or any part of the Sub2 Material or the Third Party Material or the database structures underlying the same, or to attempt to do so; or
8.5.3 use, or allow any other person to use, the Sub2Material or Third Party Material for any purpose other than pursuant to this agreement, including without limitation any use in relation to the supply by any other person of any other services to the Client.
9.1 Both parties will keep confidential and will ensure that its employees and sub-contractors keep confidential and will not (except as expressly authorised by the other party) use or disclose or attempt to use or disclose the other’s Confidential Information which comes to the knowledge of either party during this agreement. Each party undertakes to the other that any sub-contractors engaged by it in relation to the Services to be provided under this agreement will first enter into obligations of confidentiality on no less onerous terms than those specified in this Condition.
9.2 The restriction contained in Condition 9.1 will apply both during and after the term of this agreement but will not apply to information or knowledge which:
9.2.1 has in its entirety become public knowledge otherwise than through any unauthorised disclosure or other breach of such restriction;
9.2.2 has already come into the possession of a party from an independent third party without breach of any obligation of confidentiality; or
9.2.3 the party whose Confidential Information it is has consented in writing to being disclosed.
9.3 Nothing in this agreement will restrict disclosure:
9.3.1 to third parties to the extent necessary to comply with legal, accounting or regulatory requirements;
9.3.2 to the professional advisers of the parties in connection with the interpretation and operation of this agreement and any dispute arising therefrom; or
9.3.3 by Sub2 to third parties involved the provision of the Services.
9.4 The provisions of this Condition 9 replace any existing non-disclosure undertakings between the parties, any and all of which are hereby terminated.
10 FORCE MAJEURE
10.1 Neither party will be liable to the other for a failure or delay in the performance of any of its obligations hereunder (other than any obligation to pay money) if the delay or failure was due to any cause beyond the affected party's reasonable control Including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, telecommunications, network and internet disruptions, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractor (a Force Majeure Event)
10.2 Upon either party becoming affected by a Force Majeure Event, that party will notify the other in writing immediately of that Force Majeure Event and provide all relevant information pertaining to the Force Majeure Event, followed by written notice of when the Force Majeure Event has ceased.
10.3 In the event that the Force Majeure Event subsists for a period of more than three months, either party may terminate this agreement by notice in writing.
11.1 Any notice or other communication given under this agreement will be in writing and will be served by one of the following methods:
11.1.1 delivering it personally;
11.1.2 sending it by registered first-class post; or
11.1.3 sending by email to the address of the relevant party set out in the Service Order (or as otherwise notified by that party to the other party in writing from time to time).
11.2 Subject to Condition 11.3, any such notice or other communication will be deemed to have been received:
11.2.1 if delivered personally, at the time of delivery;
11.2.2 in the case of registered first-class post, 48 hours from the time of posting;
11.2.3 in the case of email, twelve hours after sending.
11.3 If deemed receipt under Condition 11.2 occurs other than between the hours of 9am and 5pm (at the recipient’s local time) on a Business Day, then the notice will be deemed to be received at 9am on the next Business Day.
11.4 Notice under this agreement may not be validly given by fax.
11.5 This Condition 11 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.
12.1 Assignment and Sub-Contracting
The Client may not assign, transfer or sub-license any of its rights or obligations under this agreement in whole or in part without the prior written consent of Sub2.
The failure of either party to enforce or to exercise any term of this agreement does not constitute a waiver of such term and will in no way affect that party’s right later to enforce or to exercise it.
12.3 Entire agreement
This agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this agreement.
12.4.1 If any provision of this agreement will be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of this agreement which will remain in full force and effect.
12.4.2 If any provision of this agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question will apply with such modification(s) as may be necessary to make it valid and enforceable.
No variation of, or amendment to, this agreement will bind either party unless made in writing and signed by an authorised representatives of both parties.
12.6 Third Party Rights
No term of this agreement will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.
12.7 Governing Law and JurisdictionThe construction, validity and performance of thisagreement will be governed by English law and the parties irrevocably submit tothe exclusive jurisdiction of the English courts.