GENERAL TERMS AND CONDITIONS

Please see below our Terms & Conditions for the supply of lists & services

  1. Definitions and interpretation
  1. The definitions and rules of interpretation in this clause apply in this agreement (unless the context requires otherwise).

“Business Day”

means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Commencement Date”

has the meaning given in clause 2.2.

“Conditions”

means these terms and conditions as amended from time to time in accordance with clause 19.8.

“Contract”

means the contract between MTW and the Customer for the purchase of the Data Licence and/or supply of Services in accordance with these Conditions.

“Control”

shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

“MTW”

means More Than Words (Marketing) Limited registered in England and Wales with company number 10346363, whose registered address is Unit 21, Albion House, West Percy Street, North Shields, NE29 0DW.

“MTW Materials”

has the meaning given in clause 9.1.10.

“Copywriting Services”

means MTW providing copywriting services based on a brief, supplied by the Customer, in accordance with the Service Specification. The services could include, but are not limited to, blogs, articles, press releases, web content, email content, presentations, business memorandums, business plans, pitch decks, information memorandums, training materials, product descriptions, and brochures.

“Customer”

means the person or firm who purchases the Data Licence and/or Services from MTW.

“Customer Data”

means any data (including personal data) provided by the Customer to MTW for the purposes of supplying Telemarketing Services and/or for the purposes of supplying Email Marketing Services.

“Data Controller”

has the meaning given to that term in Data Protection Law

“Data List Licence”

means the licence to use the Data List as set out in clause 11.2

“Data List Licence”

means the period of twelve months from the date of purchase.

“Data List”

means the data supplied by MTW to the Customer.

“Data List Specification”

means any specification for the Data List that is agreed in writing by the Customer and MTW.

“Data Protection Laws”

means any applicable Law relating to the processing, privacy, and use of Personal Data, as applicable to the Customer, MTW and/or the Telemarketing Services, including the General Data Protection Regulation (EU) 2016/679 (GDPR), and/or any corresponding or equivalent national laws or regulations ( Revised UK DP Law ).

“Data Subject”

has the meaning given to that term in Data Protection Laws.

“Deliverables”

means the deliverables (if any) set out in the Order produced by MTW for the Customer in the course of the provision of the Telemarketing Services.

“Email Marketing Services”

means the services as set out in the Service Specification including but not limited to assisting with and advising upon the Client’s email marketing strategy; designing, in consultation with the Client, the forms, emails and web pages to be used in connection with email marketing lists and campaigns; managing the Client’s email marketing lists; running the Client’s email marketing campaigns, including sending emails to addresses in the Client’s email marketing lists; and providing the Client with written reports about these services detailing numbers of subscriptions and unsubscribes during each calendar month, and numbers of emails sent, returned and opened during each mailing.

“Force Majeure Event”

has the meaning given to it in clause 18.

“Intellectual Property Rights”

including but not limited to patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Marketing”

means the promotion and selling of the Customers own products or services by the Customer. The promotion and selling of any third party products or services is expressly forbidden.

“Marketing Services”

means the provision of Email Marketing Services, Telemarketing Services and/or Social Media Management.

“Order”

means the Customer’s order for the purchase of the Data Licence and/or supply of Services, as set out in the Customer’s written acceptance of MTW’s quotation, or overleaf , as the case may be.

“Personal Data”

has the meaning set out in the Data Protection Laws.

“Processing and Process”

have the meaning given to those terms in Data Protection Law.

“Protected Data”

means any Personal Data received from the other party in relation to the provision of the Telemarketing Services or the Data List.

“Social Media Management”

means creating, posting and managing the Customer’s social media accounts in accordance with the brief submitted by the Customer and Service Specification agreed between the parties.

“Services”

means Copywriting Services, Email Marketing Services, Social Media Management Services and Telemarketing Services offered and provided by MTW to the Customer.

“Service Specification”

means the description or specification for the Marketing Services provided in writing by MTW to the Customer.

“Telemarketing Services”

means the services, including the Deliverables, supplied by MTW to the Customer as set out in the Service Specification.

  1. A person  includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  2. A reference to a party includes its personal representatives, successors and permitted assigns.
  3. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision. Including to the Data Protection Laws and each of them) and to terms defined in such Laws shall be replaced with or incorporate (as the case may be) references to any Laws replacing, amending, extending, re-enacting or consolidating such Law (including particularly the GDPR and/or the Revised UK DP Law) and the equivalent terms defined in such Laws, once in force and applicable.
  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.
  5. A reference to writing or written includes faxes and emails.
  1. Basis of contract
  1. The Order constitutes an offer by the Customer to purchase the Data List subject to the Data List Licence and/or Marketing Services and/or Copywriting Services in accordance with these Conditions.
  2. The Order shall only be deemed to be accepted when MTW issues written acceptance of the Order  at which point and on which date the Contract shall come into existence (Commencement Date).
  3. Any samples, drawings, descriptive matter or advertising issued by MTW and any descriptions or illustrations or descriptions of the Marketing Services contained in MTW’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Marketing Services, Copywriting Services and/or the Data List Licence described in them. They shall not form part of the Contract or have any contractual force.
  4. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
  5. Any quotation given by MTW shall not constitute an offer, and is only valid for a period of 30 days from its date of issue unless reissued by MTW in writing.
  6. All of these Conditions shall apply to the supply of both the Data List Licence, Copywriting Services and Marketing Services except where application to one or the other is specified.
  1. Data list
  1. The Data List is described in the Data List Specification.
  2. MTW reserves the right to amend the Data List Specification if required by any applicable statutory or regulatory requirement, and MTW shall notify the Customer in any such event.
  1. Delivery of data list
  1. MTW shall deliver the Data List to the Customer by way of electronic transfer.
  2. Delivery of the Data List shall be completed upon receipt of a delivery notification by MTW’s electronic transfer service provider..
  3. Any dates quoted for delivery of the Data List are approximate only, and the time of delivery is not of the essence. MTW shall not be liable for any delay in delivery of the Data List that is caused by a Force Majeure Event or the Customer’s failure to provide MTW with adequate delivery instructions or any other instructions that are relevant to the supply of the Data List.
  4. If MTW fails to deliver the Data List, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining a replacement Data List of similar description and quality in the cheapest market available, less the price of the Data Licence. MTW shall have no liability for any failure to deliver the Data List to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide MTW with adequate delivery instructions for the Data List or any relevant instruction related to the supply of the Data List.
  1. Use and integrity of data list
  1. MTW shall use all reasonable endeavours to ensure that the Data List is up to date and that on delivery, the Data List has the following levels of accuracy:
  1. Postal addresses - 98%;
  2. Telephone numbers – 92%;
  3. Email deliverability – 85% (excluding soft bounces).
  1. In the event that the number of non-deliverable email addresses exceeds the threshold set out in clause 5.1.3:
  1. the Customer will provide proof to MTW of the non-deliverable email addresses in Excel format; and
  2. MTW will investigate and within a reasonable period of time, replace or provide alternative email addresses.
  1. Title and risk in the data list
  1. The risk in the Data List shall pass to the Customer on completion of delivery.
  2. Title to the Data List shall not pass to the Customer and use of the Data List shall be subject to the terms of the Data List Licence set out in 11.2.
  1. Supply of marketing services
  1. MTW shall supply the Marketing Services to the Customer in accordance with the Service Specification in all material respects.
  2. MTW shall use all reasonable endeavours to meet any performance dates for the Marketing Services as agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Marketing Services.
  3. MTW reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Marketing Services, and MTW shall notify the Customer in any such event.
  4. MTW warrants to the Customer that the Marketing Services will be provided using reasonable care and skill.
  5. In accordance with the Service Specification, MTW shall not proceed to publish any social media post without the prior written approval of the Customer.
  6. The Customer shall ensure that any Customer Data provided by or on behalf of the  Customer for use in connection with the Marketing Services has been collected in accordance with applicable law, and that the use of such information by the Provider in accordance with these Terms and Conditions or the instructions of the Client will not breach any applicable law.
  7. MTW cannot guarantee the delivery of emails to any recipient under the Marketing Services as this is dependent upon accurate and up to date recipient contact information, suitable internet availability and connectivity, on various anti spam and junk mail policies adopted by recipient service providers as well as restrictions regarding the content, wording and graphics of any email. MTW may use reasonable endeavours to assist the Client with methods to maximise the delivery rate of emails, however MTW makes no representations or warranties whatsoever about the speed or number of emails sent that will be received by recipients.
  1. Supply of Copywriting Services
  1. MTW shall supply the Copywriting Services to the Customer in accordance with the Service Specification in all material respects.
  2. MTW shall use all reasonable endeavours to meet any performance dates for the Copywriting Services as agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Copywriting Services.
  3. MTW reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Copywriting Services, and MTW shall notify the Customer in any such event.
  4. MTW warrants to the Customer that the Copywriting Services will be provided using reasonable care and skill.
  5. In accordance with the Service Specification, MTW shall not proceed to publish any copywriting without the prior written approval of the Customer.
  1. Customer’s obligations
  1. The Customer shall:
  1. ensure that the terms of the Order and any information it provides in the Marketing Services Specification are complete and accurate;
  2. Co-operate with MTW in all matters relating to the Marketing Services;
  3. use all reasonable endeavours to act in accordance with the timescales set out in the Services Specification.
  4. provide MTW, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities to the extent necessary or as required by MTW to provide the Marketing Services and/or Copywriting Services;
  5. provide MTW with such information and materials as MTW may reasonably require in order to supply the Marketing Services, and ensure that such information is complete and accurate in all material respects including but not limited to the Customer Data where applicable;
  6. obtain and maintain all necessary licences, permissions and consents which may be required for the Marketing Services and/or Copywriting Services before the date on which the Services are to start;
  7. comply with all applicable laws;
  8. ensure that it is appropriately registered with any applicable data protection authority;
  9. take appropriate steps to incorporate organisational and technical measures to aid against unauthorised or unlawful processing;
  10. keep full records of opt-out/unsubscribe/remove requests resulting from the use of the Data List and/or Marketing Services provided by MTW and inform MTW of these within 30 days of receipt;
  11. keep all materials, equipment, documents and other property of MTW (MTW Materials) at the Customer’s premises in safe custody at its own risk, maintain MTW Materials in good condition until returned to MTW, and not dispose of or use MTW Materials other than in accordance with MTW’s written instructions or authorisation; and
  12. comply with any additional obligations as set out in the Services Specification and the Data Licence Terms if applicable.
  1. If MTW’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
  1. without limiting or affecting any other right or remedy available to it, MTW shall have the right to suspend performance of the Marketing Services and/or Copywriting Services as the case may be until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays MTW’s performance of any of its obligations;
  2. MTW shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from MTW’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
  3. the Customer shall reimburse MTW on written demand for any costs or losses sustained or incurred by MTW arising directly or indirectly from the Customer Default.
  1. Charges and payment
  1. The price for the Data List Licence:
  1. shall be the price set out in the Order or, if no price is quoted, the price set out in MTW’s published price list as at the date of the order; and
  2. shall be exclusive of all costs and charges of packaging, insurance, transport of the Data List.
  1. The charges for the Marketing Services shall be set out in the Order.
  2. The charges for the Copywriting Services shall be set out in the Order.
  3. MTW reserves the right to:
  1. increase the price of the Data List Licence, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Data List to MTW that is due to:
  1. any factor beyond the control of MTW (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
  2. any request by the Customer to change the delivery date(s), quantities or types of Data List ordered, or the Data List Specification; or
  3. any delay caused by any instructions of the Customer in respect of the Data List or failure of the Customer to give MTW adequate or accurate information or instructions in respect of the Data List Specification.
  1. In respect of the Data List, MTW shall invoice the Customer prior to delivery and payment shall be due in full and in cleared funds to a bank account nominated in writing by MTW.
  2. In respect of the Marketing Services, MTW shall invoice the Customer prior to commencement of the Marketing Services and payment shall be due in full and in cleared funds to a bank account nominated in writing by MTW.
  3. In respect of the Copywriting Services, MTW shall invoice the Customer prior to commencement of the drafting and payment shall be due in full and in cleared funds to a bank account nominated in writing by MTW.
  4. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by MTW to the Customer, the Customer shall, on receipt of a valid VAT invoice from MTW, pay to MTW such additional amounts in respect of VAT as are chargeable on the supply of the Marketing Services, Copywriting Services or the Data List at the same time as payment is due for the supply of the Marketing Services, Copywriting Services or the Data List.
  5. We require payment to terms. Payment must be made on time, in full, and without any deduction, set off or counterclaim. In the event that an account is outstanding over the agreed terms, we will without hesitation refer the matter to our debt collection agents, Direct Recovery Associates, which will incur a charge of 15% of the total debt. This will be added  to the debt, plus VAT at the prevailing rate. You agree that you will be legally liable to pay us that surcharge, and that payment of the same can be enforced against you in court. You also agree to pay interest at the relevant reference rate provided for under the Late Payment of Commercial Debts (Interest) Act 1998, on which interest is payable both after and before any judgment of the court and continues to accrue.
  6. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
  1. Intellectual property rights
  1. All Intellectual Property Rights in or arising out of or in connection with the Data List, the Marketing Services and/or Copywriting Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by MTW.
  2. MTW grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid up, worldwide, non-exclusive, royalty free licence during the Data List Licence Term to use the Data List for the Term for the purposes of Marketing only.
  3. The Customer shall not (and shall procure that its employees, officers and agents shall not):
  1. sub-license, assign or otherwise transfer the rights granted by clause 11.2;
  2. copy, record, modify or in any way alter the contents of the Data List;
  3. send out emails to the same email addresses more than twice in any four week period, or 12 times annually;
  4. continue to use the Data List upon expiry of the Data List Term.
  5. send out emails to the same email address more than twelve times in a year.
  1. The Customer agrees that any breach of the terms set out in Clause 11.3 will entitle MTW to invoice the Customer for a further 12 month Data Licence and the Customer agrees to pay the sum immediately. If the Client has breached clause 11.3.1 then MTW shall be entitled to issue such number of invoices as to equal the number of third parties that the Customer has sub-licensed, assigned or otherwise transferred rights arising out of clause 11.2. The Customer will then immediately cease use of the Data List but if the Customer persists, then each breach will result in a further invoice. The License rate for unauthorised usage is the greater of £400 per one thousand records, or 120% of the original license fee.
  2. The Customer grants MTW a fully paid up, non-exclusive, royalty free non-transferable licence to copy and modify any materials provided by the Customer (including any Customer Data) to MTW for the term of the Contract for the purpose of providing the Marketing Services and or Copywriting Services to the Customer.
  1. Data protection
  1. Controller  and MTW shall be the Data Processor.
  2. The parties acknowledge and agree that, should the Order consist of Email Marketing Services and/or Telemarketing Services then the Customer is the Data Controller and MTW is the Data Processor for the purposes of Data Protection Laws. The parties further acknowledge and agree that the Data Processing Agreement required for processing of the Customers data by MTW is set out in Appendix A

Each party shall comply with all Data Protection Laws in connection with the processing of Protected Data, the Marketing Services, the Data List Licence and the exercise and performance of their respective rights and obligations under this Contract.

  1. Customer indemnity
  1. The Customer shall indemnify and hold MTW harmless from and against any losses, claims, damages, liability, costs (including legal and other professional fees) and expenses incurred by MTW as a result of or in connection with any action, demand or claim that use or possession of any of the Customer Data supplied to MTW for the purposes of providing the Marketing Services and/or Copywriting Services infringes the Intellectual Property Rights of any third party.
  2. The Customer shall indemnify and hold MTW harmless from and against any losses, claims, damages, liability, costs (including legal and other professional fees) and expenses incurred by MTW as a result of or in connection with any action, demand or claim that any act, omission, use or possession of any of the Customer Data supplied to MTW for the purposes of providing the Marketing Services and/or Copywriting Services, breaches the Data Protection Laws.
  1. Confidentiality
  1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause.
  2. Each party may disclose the other party’s confidential information:
  1. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 14; and
  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  1. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
  1. Limitation of liability:
  1. Nothing in these Conditions shall limit or exclude either parties liability for:
  1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
  2. fraud or fraudulent misrepresentation;
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
  4. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
  5. defective products under the Consumer Protection Act 1987.
  1. Subject to clause 14.1, MTW shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
  1. loss of profits;
  2. loss of sales or business;
  3. loss of agreements or contracts;
  4. loss of anticipated savings;
  5. loss of use or corruption of software, data or information;
  6. loss of or damage to goodwill; and
  7. any indirect or consequential loss.
  1. Subject to clause 14.1, MTW’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to the price paid for the Data Licence or the total charges actually paid to MTW for the Marketing Services and/or Copywriting Services in the twelve months immediately preceding the cause of action.
  2. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
  3. This clause 15 shall survive termination of the Contract.
  1. Termination
  1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
  1. the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within ten days after receipt of notice in writing to do so;
  2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
  1. Without affecting any other right or remedy available to it, MTW may terminate the Contract with immediate effect by giving written notice to the Customer if:
  1. the Customer fails to pay any amount due under the Contract on the due date for payment; or
  2. there is a change of control of the Customer.
  1. Without affecting any other right or remedy available to it, MTW may suspend the supply of Marketing Services and/or Copywriting Services and/or the delivery of the Data List under the Contract, or any other contract between the Customer and MTW if:
  1. the Customer fails to pay any amount due under the Contract on the due date for payment,
  2. the Customer becomes subject to any of the events listed in clause 16.1.2 to clause 16.1.4, or MTW reasonably believes that the Customer is about to become subject to any of them.
  1. Consequences of termination
  1. On termination of the Contract:
  1. the Customer shall immediately pay to MTW all of MTW’s outstanding unpaid invoices and interest and, in respect of telemarketing Services and the Data List supplied but for which no invoice has been submitted, MTW shall submit an invoice, which shall be payable by the Customer immediately on receipt;
  2. the Customer shall immediately cease use of and irrevocably delete the Data List from all systems and shall ensure that all officers, agents and employees do the same;
  3. the Customer shall return all MTW Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then MTW may upon giving reasonable notice enter the Customer’s premises and take possession of them. Until all MTW Materials have been returned, the Customer shall be solely responsible for their safekeeping and will not use them for any purpose not connected with this Contract.
  1. Termination or expiry of the Contract shall not affect any rights, remedies, obligations and 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 the Contract which existed at or before the date of termination or expiry of this Contract.
  2. Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
  1. Force majeure

Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

  1. General
  1. Assignment and other dealings
  1. MTW may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
  2. The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of MTW.
  1. Notices.
  1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address specified in the Order.
  2. Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; 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; or, if sent by fax or email, at 9.00 am on the next Business Day after transmission.
  3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
  1. Severance.

If any provision or part-provision of the Contract 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 shall not affect the validity and enforceability of the rest of the Contract.

  1. Waiver.
  1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
  2. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
  1. No partnership or agency.

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

  1. Entire agreement.
  1. The Contract constitutes the entire agreement between the parties and supersedes        and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
  3. Nothing in this clause shall limit or exclude any liability for fraud.
  1. Third parties rights

The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

  1. Variation

Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

  1. Arbitration All disputes, differences or questions at any time arising between the parties as to the construction of these Conditions or as to any matter or thing arising out of the same or in any way connected therewith, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (LCIA) Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. The seat, or legal place, of arbitration shall be London.
  2. Governing law and Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

                                                 Appendix A

This Data Processing Agreement ("Agreement") forms part of the Contract for Services under the More Than Words Terms and Conditions (the "Principal Agreement"). This Agreement is an amendment to the Principal Agreement and is effective upon its incorporation to the Principal Agreement, which incorporation may be specified in the Principal Agreement or an executed amendment to the Principal Agreement. Upon its incorporation into the Principal Agreement, this Agreement will form a part of the Principal Agreement.

The term of this Agreement shall follow the term of the Principal Agreement. Terms not defined herein shall have the meaning as set forth in the Principal Agreement.

WHEREAS

  1. Your Company acts as a Data Controller.
  2. The Company wishes to subcontract certain services, which imply the processing of personal data, to More Than Words (Marketing) Ltd, acting as a Data Processor (the "Processor").
  3. The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 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, and repealing Directive 95/46/EC (General Data Protection Regulation).
  4. The Parties wish to lay down their rights and obligations.

IT IS AGREED AS FOLLOWS:

  1. Definitions and Interpretation

  1. Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:

  1. " Agreement " means this Data Processing Agreement and all Schedules;

  1. " Company Personal Data " means any Personal Data Processed by a Contracted Processor on behalf of Company pursuant to or in connection with the Principal Agreement;

  1. " Contracted Processor " means a Subprocessor;
  2. " Data Protection Laws " means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

  1. " EEA " means the European Economic Area;

  1. " EU Data Protection Laws " means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

  1. " GDPR " means EU General Data Protection Regulation 2016/679;

  1. "Data Transfer" means:

  1. a transfer of Company Personal Data from the Company to a Contracted Processor; or

  1. an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor,

in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);

  1.       "Services"  means the email marketing and/or telemarketing services the Processor provides and the company has purchased pursuant to the Principal Agreement;
  2. " Subprocessor " means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the Agreement.

  1. The terms, " Commission ", " Controller ", " Data Subject ", " Member State ", " Personal Data ", " Personal Data Breach ", " Processing " and " Supervisory Authority " shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

  1. Processing of Company Personal Data

  1. Processor shall:

  1. comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and

  1. not Process Company Personal Data other than on the relevant Company’s documented instructions.

  1. The Company instructs Processor to process Company Personal Data.

  1. Processor Personnel

Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

  1. Security

  1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

  1. In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

  1. Subprocessing

  1. Processor shall not appoint (or disclose any Company Personal Data to) any Subprocessor unless required or authorized by the Company.

  1. Data Subject Rights

  1. Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

  1. Processor shall:

  1. promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and

  1. ensure that it does not respond to that request except on the documented instructions of Company or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.

  1. Personal Data Breach

  1. Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

  1. Processor shall co-operate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

  1. Data Protection Impact Assessment and Prior Consultation

Processor shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

  1. Deletion or return of Company Personal Data

  1. Subject to this section 9 Processor shall promptly and in any event within

10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the " Cessation Date "), delete and procure the deletion of all copies of those Company Personal Data.

  1. Processor shall provide written certification to Company that it has fully complied with this section 9 within 10 business days of the Cessation Date.

  1. Audit rights

  1. Subject to this section 10, Processor shall make available to the Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Contracted Processors.

  1. Information and audit rights of the Company only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

  1. Data Transfer

  1. The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of the Company. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.

  1. General Terms

  1. Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“ Confidential Information ”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:

  1. disclosure is required by law;

  1. the relevant information is already in the public domain.

  1. Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.

  1. Governing Law and Jurisdiction

  1. This Agreement is governed by the laws of England and Wales.

  1. Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of England and Wales.

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