General Terms & Conditions of Business
1. We own the copyright and Database Rights in the Good Karma Media Data (as defined below).
2. We have agreed to provide the Services (as defined below) on the terms set out in this agreement.
3. As part of the Services, we have agreed to license to you use of the Good Karma Media Data for a specific business purpose on the terms set out in this agreement.
1.1 In this agreement and the Order Form the words and phrases below shall have the following meaning:-
1.2 The headings to the clauses in this agreement are for ease of reference only and shall not affect the interpretation or construction thereof.
Any Third Party Data or Good Karma Media Data: the databases of names, addresses, email addresses and telephone numbers of individuals, the associated data therein being purchased, derived or imputed by us as part of the Services to be provided.
Authorised Person: the person specified in the Order Form or any other person you notify us of in writing (including but not limited to email) whom we are entitled to rely upon as having full legal authority to enter into this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Business Purpose: the purpose for which you require the Good Karma Media Data as set out in the Order Form
Charges: the charges set out in the Order Form, as varied from time to time in accordance with this agreement.
Commencement Date: the date the Order Form is signed by you.
Confidential Information: all confidential information (however recorded or preserved) disclosed by us to you or your employees, officers, representatives, advisers or sub-contractors involved in the receipt of the Services who need to know the confidential information in question in connection with this agreement, which is either labelled as such or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure [Confidential Information includes, but is not limited to all trade secret, confidential or proprietary information of either Party including information concerning its products, services, customers, personal data, suppliers, business accounts, financial or contractual arrangements or other dealings, computer systems, test data, software, source and object code, business methods and development plans, contained in any format and whether or not communicated orally and whether or not marked “confidential”, including the Input and the Deliverables (as applicable).
Controller: means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data
Data: any data, database or information, in whatever form, the provision of which may comprise part of the Services (wholly or in part), including any personal data.
Database Right: the intellectual property right in a database as defined in section 3A(1) of the Copyright, Designs and Patents Act 1988.
Email Broadcast: the service forming part of the Services if selected by you in the Order Form whereby the Good Karma Media Data is provided by and managed by us for the purposes of conducting an email campaign on your behalf.
External Email Broadcast: the service forming part of the Services if selected by you in the Order Form whereby the Good Karma Media Data for broadcast via e-mail is provided directly to you for the purposes of conducting your own email campaign in accordance with this agreement in contrast to the Email Broadcast.
Goneaway: an address to which an item mailed cannot be delivered by virtue of the intended recipient never having been, or no longer being at the address, or where the address is incomplete and bearing the appropriate Royal Mail failure designation.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks 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, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), the Good Karma Media Data, the Lead Generation and the Product Questions, the Core Questions, 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.
List Rental: the rental by you of any part of the Good Karma Media Database or data acquired on your behalf as set out in the Order Form.
Multi-Use Marketing: a series of mailings (including SMS-Mobile) conducted by you using the Good Karma Media Data. The number of such mailings permitted by us and the timeframe within which they will be conducted are contained in the Order Form.
Single Use Mailing: a mailing (including SMS-Mobile) conducted by you using the Good Karma Media Data on a single occasion.
Single Use Telemarketing: a telephone marketing activity conducted by you using the Good Karma Media Data on a single occasion.
Order Form: the order form which accompanies and forms part of this agreement and which confirms details of Your Order including the constituent details of the Good Karma Media Data to be supplied by us and the Charges payable by you for the Services.
Personal Data means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person
Privacy and Data Protection Requirements: the Data Protection Act General Data Protection Regulation 2016, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or other relevant supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction (whether mandatory or not).
Processing: means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction
Processor: means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.
Security Breach: any security breach relating to: (a) the Good Karma Media Data reasonably determined by us to be sufficiently serious or substantial to justify notification to the Information Commissioner or other relevant supervisory authority within the 72 hour Statutory time limit in accordance with the Privacy and Data Protection Requirements; or (b) the Good Karma Media Data reasonably determined by us to be sufficiently serious or substantial to give rise to a high risk of the rights and freedoms of the individuals whose Data is the subject of the breach that they also need to be notified.
Services: the services relating to the Good Karma Media Data using Our System provided by us to you in consideration of the Charges and as detailed in the Order Form.
Good Karma Media Data: the data owned by us which attracts Database Right and compiled using either Third Party Data or data belonging to Good Karma Media, responses to a Lead Generation programme, or data collated or maintained by us or on our behalf and made available to you only as part of the Services.
Good Karma Media Data Delivery: one copy of any data forming part of the Good Karma Media Data provided by us either in paper, printed or other documentary form or in other electronic format stored on Our System or bureau, pursuant to Your Order and in accordance with the Order Form.
Term: the term set out in the Order Form.
Your Order: our confirmation of order form, signed and accepted by you setting out without limitation the details of the data to be supplied by us pursuant to the Business Purpose and the Charges payable by you for the Services. Or, your email confirming acceptance of our terms of business, and the terms that are set out in the order form.
2 Agreement Acceptance
Your agreement to these terms and conditions, the related Order Form or the related Order Confirmation constitutes your acceptance of these terms and conditions. However, for the avoidance of doubt, if you do not explicitly sign the related Order Form or the related Order Confirmation, then your continued instructions to us shall constitute your acceptance of these terms and conditions.
During the Term we shall supply the Services to you and you shall pay the charges agreed according to the payment terms agreed.
4.1 During the Term we shall supply the Services to you by providing the Good Karma Media Data in accordance with your instructions contained in the Order Form.
4.2 We shall not act on any specific instructions given by you from time to time during the Term unless they are:
4.1.1 in writing; and
4.1.2 given by an Authorised Person.
4.3 We shall provide the Good Karma Media Data for the Business Purpose only and in compliance with your instructions from time to time as set out in the Order Form.
4.4 In the event that any delivery date shall be agreed between us in the Order Form, you acknowledge that such date shall be indicative only and that we shall not be liable for any loss or damage suffered by you as a result of late delivery of the Good Karma Media Data.
5.1 As part of the Services and in further consideration of the Charges payable by you, we grant to you a non-exclusive, non-transferable and revocable license for the Business Purpose only during the Term, to:
5.1.1 access and view the Good Karma Media Data (but not to Manipulate or create Derived Data);
5.1.2 store the Good Karma Media Data on Your System for a maximum period of 60 days;
5.1.3 distribute the Good Karma Media Data to Your Users on Your System.
5.1.4 to use the Good Karma Media Data for the purpose specified
5.2 You shall not distribute or redistribute the Good Karma Media Data (wholly or in part) to any party save where you are acting as agent for a client and provided always (unless stated otherwise in the Order Form):
5.2.1 that prior to any such distribution or re-distribution you shall notify us of the identity of your client (failure to so notify shall constitute a breach of this agreement entitling us to terminate this agreement); and
5.2.2 for the avoidance of doubt you shall remain fully liable under this circumstance.
5.3 You shall:
5.3.1 only make copies of the Good Karma Media Data to the extent reasonably necessary for the Business Purpose (which includes, but is not limited to back-up, mirroring (and similar availability enhancement techniques), security, disaster recovery and testing of the Good Karma Media Data);
5.3.2 not extract, re-utilise, use, exploit, redistribute, re-disseminate, copy or store the Good Karma Media Data other than for the Business Purpose;
5.3.3 not do or say or omit to do or say anything (or allow anything to do done or said or omitted to be done or said) that may materially damage our reputation or the reputation of any of our directors or senior employees (whether defamatory or otherwise); and
5.3.4 ensure that none of your employees, agents or directors (as applicable) do, say or omit to do or say anything which, if done by you, would or may constitute a breach of clause 5.3.3.
5.3.5 take reasonable steps to ensure the reliability of all your employees who have access to the Good Karma Media Data.
5.4 Your right to use the Good Karma Media Data shall be non-exclusive and for single use only, unless stated otherwise in the Order Form.
5.5 Single Use Mailing and External Email Broadcast permits you to dispatch or broadcast a single mailing piece or SMS to each name supplied as part of Your Order. Single Use Telemarketing permits a single contact to be made with the specified name at the telephone number supplied as part of Your Order within a period of 28 days, but subject to a maximum of three call attempts being made to reach them: if a name cannot be reached after three call attempts, (regardless of the call disposition), the name cannot be called again by you.
5.6 Multi-Use Marketing requires you to remain solely responsible for maintaining compliance with all laws, rules and regulations of whatever nature including Privacy and Data Protection Requirements and the telephone preference service and mail preference service) and you must immediately report to us any opt outs on the part of contacts which you become aware of.
5.7 We have the right to provide any of the Data supplied to you under the Services at any time to any third party unless the same are subject to any exclusivity period governing the supply of responses to Product Questions contained in the Order Form.
5.8 We shall securely deliver the Good Karma Media Data to the address specified on the Order Form.
5.9 In the event you breach this agreement or any provision in the Order Form including but not limited to your use of the Good Karma Media Data beyond the 28 day use window (which period shall apply to all use of the Good Karma Media Data unless stated otherwise in the Order Form), we shall be entitled to levy a re-use charge of 100% of the value of the Your Order on each occasion of such breach. We shall be entitled to audit your use of the Good Karma Media Data to ensure your compliance with the 28 day use restriction and to verify you have deleted the Good Karma Media Data (which shall include the right to enter your premises) after such period which for the avoidance of doubt shall include whether the same is used for Multi-Use Marketing or single use.
6.1 In consideration of the performance of the Services, you shall pay the Charges to us.
6.2 The Charges shall be due and payable in accordance with the payment structure and invoicing procedure set out in the Order Form.
6.3 Time shall be of the essence regarding your obligations to make payments in respect of the Charges in accordance with the Order Form and such obligations are material obligations for the purpose of this agreement.
6.4 If you fail to make any payment due to us under this agreement by the due date for payment, then, without limiting our remedies under this agreement, you shall pay interest on the overdue amount at the rate of 4% per annum above HSBC Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
6.5 All Charges are exclusive of VAT, which shall be paid by you at the rate and in the manner for the time being prescribed by law.
6.6 Good Karma Media will either request payment from you on a Pro-Forma basis or, where credit terms are provided, will invoice you upon receipt of a signed order confirmation with payment terms agreed and as outlined on the order confirmation.
6.9 If Good Karma Media agree to cancel an order before data is delivered then Good Karma Media will expect full payment for any third party data orders placed prior to the cancellation request being received.
7. Unauthorised Use
If any unauthorised use is made of the Good Karma Media Data or Materials and such use is attributable to an act or default of you or of a third party that has acquired the Good Karma Media Data or Materials from you then, without prejudice to our other rights and remedies, you shall immediately be liable to pay us an amount equal to the Charges that we would have charged in accordance with the costs agreed at the point of supply, together with interest at the rate provided for in clause 6.4. For the avoidance of doubt the sum we may charge hereunder shall be exclusive of any discount which may have been applied to the supply of the Good Karma Media Data so that in assessing the said Charges we may multiply the total number of invoices which comprise the Charges by the total number of unauthorised uses to the date of payment. Unauthorised processing of Personal Data is also a breach of Privacy and Data Protection Requirements therefore you may also be subject to ICO enforcement.
8. Intellectual Property Rights
8.1 You acknowledge and agree we have made and will continue to make substantial investment in the obtaining, verification, selection, co-ordination, development, presentation and supply of the Good Karma Media Data and the Good Karma Media Data attracts Database Right.
8.2 You acknowledge that:
8.2.1 all Intellectual Property Rights in the Good Karma Media Data are and will remain our property and nothing in this agreement shall constitute a transfer, assignment or license of any copyright or intellectual property right of ours; and
8.2.2 you shall have no rights in or to the Good Karma Media Data other than the right to use it for the Business Purpose in accordance with this agreement;
8.2.3 you shall have no rights in or to the Good Karma Media Data other than a non-exclusive, royalty-free, personal, non-assignable, non-sub-licensable licence (coterminous with this agreement) to process (but not adapt, alter, Manipulate or create Derived Data) the Good Karma Media Data in the United Kingdom to the extent reasonably necessary for you to process the Good Karma Media Data for the Business Purpose in accordance with this agreement;
9.1 You acknowledge Confidential Information includes the Good Karma Media Data.
9.2 You shall keep our Confidential Information confidential and shall not:
9.2.1 use any Confidential Information except for the Business Purpose; or
9.2.2 disclose any Confidential Information in whole or in part to any third party.
9.3 The term Confidential Information does not include any information that:
9.3.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its representatives in breach of this clause 9;
9.3.2 was available to you on a non-confidential basis before disclosure by us;
9.3.3 was, is, or becomes, available to you on a non-confidential basis from a person who, to your knowledge, is not bound by a confidentiality agreement with us or otherwise prohibited from disclosing the information to you;
9.3.4 was known to you before the information was disclosed to you by us;
9.4 You may disclose the Confidential Information to those of your representatives who need to know that Confidential Information for the Business Purpose, provided that:
9.4.1 you inform those representatives of the confidential nature of the Confidential Information before disclosure; and
9.4.2 at all times, you are responsible for the representatives’ compliance with the confidentiality obligations set out in this clause.
9.5 We or you may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, as far as we are legally permitted to do so, we respectively give the other as much notice of the disclosure as possible.
9.6 The provisions of this clause 9 shall continue to apply after termination of this agreement.
10. Data Security
10.1 You shall ensure that the Good Karma Media Data is kept secure and in an encrypted form, and shall use all reasonable security practices and systems applicable to the use of the Good Karma Media Data to prevent, and take prompt and proper remedial action against unauthorised access, copying, modification, storage, reproduction, display or distribution of the Good Karma Media Data in accordance with Privacy and Data Protection Requirements.
10.2 If you:
10.2.1 become aware of any unauthorised or unlawful Processing of any Good Karma Media Data or that Good Karma Media Data is lost or destroyed or has become damaged, corrupted or unusable;
10.2.2 become aware of any Security Breach; or
10.2.3 learn or suspect that any Security Feature has been revealed to or obtained by any unauthorised person, you shall notify us immediately so that the ICO can be notified within the Statutory time limit if necessary and fully cooperate with us to remedy the issue as soon as reasonably practicable.
10.3 You shall retain the Good Karma Media Data under your sole control for the Term and take reasonable precautions to preserve the integrity of any Good Karma Media Data and to prevent any use, copying, manipulation, corruption or loss of the Good Karma Media Data.
10.4 We shall monitor your usage of the Good Karma Media Data for the purposes of enforcing this agreement by the deployment of a small percentage of dummy contacts embedded with the Good Karma Media Data.
11. External Email Broadcast
When deploying the Good Karma Media Data for the purpose of External Email Broadcasting:
11.1 we shall inform you of a test email address for Good Karma Media that you should use during the entire testing phase of your email campaign.
11.2 you shall upon receipt of the Good Karma Media Data adopt, for the purpose of your own unsubscribe mechanism, the unsubscribe wording provided by us. You must also use any header and footer information provided by us to ensure compliant use of the data provided.
11.3 no later than 7 days after you have broadcast your campaign, all unsubscribes must be sent to Good Karma Mediaby SFTP. Thereafter any additional unsubscribes must be sent upon receipt from the consumer.
11.4 you must be able to provide to us all necessary information on the type of email broadcasting system that will be used and its compliance with current Privacy and Data Protection Requirements applying to data processing in the UK.
12. Your Obligations
12.1 Your legal obligations and responsibilities in respect of the Good Karma Media Data and this agreement shall include your outsourced partners.
12.2 You undertake that your use of the Good Karma Media Data is for the Business Purposes only.
12.3 If the Good Karma Media Data is contained in electronic format you alone will be permitted to extract information from the Good Karma Media Data and to print the same in documentary form on condition that any such printed materials produced and any copies of the same shall be retained solely and securely in your possession, use and control and shall not be disclosed or otherwise communicated to any third party in line with Privacy and Data Protection Requirements.
12.4 If the Good Karma Media Data is held in electronic form it together with any copies must be deleted and destroyed within 12 weeks from the date of the Order Form and evidence of this produced to Good Karma Media if requested.
12.5 You undertake to us that you will notify us immediately of any notice or other communication in respect of the Good Karma Media Data you receive from the Information Commissioner’s office or any other official or legislative body.
12.6 You undertake to us that you will at all times comply with the provisions of all prevailing data protection and data processing regulations (including all of the provisions within the European Data Protection Directive (95/46/EC) and the European Privacy and Electronic Communications Directive (as amended from time to time) and any legislation implementing those Directives) in respect of your use and storage of the Good Karma Media Data.
12.7 You undertake to us that you will supply to us forthwith the name and address of any partners which you have retained for the purpose of carrying out mailing, fulfilment, email broadcast or telemarketing whom will be holding the Good Karma Media Data both inside and outside the EU and you confirm such partners shall hold the Good Karma Media Data securely and have adequate data protection safeguards in place that mirror those of the GDPR and you shall remain fully liable for their failure a) so to maintain and b) to adhere to the Privacy and Data Protection Requirements.
12.8 We accept no responsibility for any breach by you of any legislation as a result of communication to the contacts within the Good Karma Media Data and supplied to you under the Services.
13.1 You warrant:
13.1.1 that you are entitled to and will process the Good Karma Media Data in compliance with the Privacy and Data Protection Requirements and you are not aware of any circumstances which would mean that you are in breach of any of the Privacy and Data Protection Requirements or which are likely to give rise to breach of any of the Privacy and Data Protection Requirements in the future (including any Security Breach);
13.1.2 you will take all appropriate technical and organisational measures against the unauthorised or unlawful Processing of the Good Karma Media Data and against the accidental loss or destruction of, or damage to, the Good Karma Media Data to ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful Processing or accidental loss, destruction or damage;
13.1.3 you will take reasonable steps to ensure compliance with those measures; and discharge your obligations under this agreement with all due skill, care and diligence;
13.1.4 as far as you are aware, the Processing of the Good Karma Media Data under this agreement will not infringe the Intellectual Property Rights of any third party;
13.1.5 any documents or other items you mail or email by use of the Good Karma Media Data will at all times comply with the British Code of Advertising Practice, the British Code of Sales Promotion Practice and contain nothing which infringes copyright or any other right of any third party, shall not be defamatory, obscene, indecent or otherwise illegal or unlawful. You shall upon our request forthwith supply to us copies of any such documents or materials;
13.1.6 you, or those calling on your behalf, shall at all times adhere to telemarketing legislation and good industry practice as set out in the prevailing Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Communications Act 2002 as may alter from time to time according to changes in European Law.
14. Quality Assurance
14.1 You accept that the Good Karma Media Data may contain a number of Goneaways.
14.2 If the level of Goneaways exceeds the relevant % (See 14.9) or if any other fault arises in the Good Karma Media Data, we shall have the right to remedy such fault by re-supply of erroneous data. In the event that you do not advise us of any defect in the data within thirty (30) days from the date of receipt of the data supply concerned you shall be deemed to have accepted the Good Karma Media Data.
14.3 Where the Good Karma Media Data contains name elements (such as salutation, forename, initials, surname or other requested information fields) you accept that not all elements will necessarily be present for each record and that no replacement Good Karma Media Data or refund will be provided for incompleteness of the Good Karma Media Data in such instance.
14.4 We shall provide de-duplication on a ‘best efforts’ basis only and you accept that no replacement Good Karma Media Data or refund will be provided for marginal or partial duplication, where this may not be obvious to our systems or where the level of duplicates is less than 3% per file supplied.
14.5 You acknowledge and agree that in a limited number of circumstances (e.g. a postcode changes or a building changes to multi-occupancy) the Royal Mail Address may change over time, in such event we are unable to recognise such addresses as being the same and are unable to remove the duplicate. You accept that no replacement Good Karma Media Data or refund will be provided in such circumstances.
14.6 You acknowledge and agree that email addresses are prone to frequent change, as well as being unreachable for a number of technical and other reasons including but not limited to, account disabled, mailbox full, limit on message size, anti-spam policy, firewall). Accordingly a much higher percentage of undeliverable email is to be expected than mail, phone or fax. Where Hard Bounces exceed 15% of the Good Karma Media Data, replacement Good Karma Media Data or a refund will be provided.
14.7 You accept and agree that no replacement Good Karma Media Data or refund will be given for undeliverable email addresses in the Good Karma Media Data for any other reason for non-delivery, or for hard bounces below the level in clause 14.6 above.
14.8 Before you may make a claim for replacement Good Karma Media Data or a refund for Goneaways, you must mail or phone a minimum of 1,000 records or 20% of the total number of records in the Good Karma Media Data whichever is the greater. In the event that there are less than 1,000 records in the Good Karma Media Data, you must mail or phone all the records in the Good Karma Media Data.
14.9 The percentages of records which must qualify as Goneaways before replacement Good Karma Media Data or refund for Goneaways will be given are:
a) Addresses: 10%
b) Telephone Numbers: 10%
14.10 Claims for replacement Good Karma Media Data or refund for Goneaways must be made with supporting documentation (e.g. returned envelopes, call records) within thirty (30) days of date of purchase.
14.11 Replacement Good Karma Media Data or refund will not be given where supporting documentation is not provided by you. Only one claim may be made for each purchase. A separate claim must be made for each purchase.
14.12 Until and unless a refund has been agreed by us, payment for the full amount shall remain due to us and we reserve the right to use all and any applicable legal remedies to recover payment from you as well as any additional costs incurred by us in connection with the same.
15. Limitation of Liability
15.1 Neither party excludes or limits liability to the other party for:
15.1.1 fraud or fraudulent misrepresentation;
15.1.2 death or personal injury caused by negligence; or
15.1.3 any matter for which it would be unlawful for the parties to exclude liability.
15.2 We shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
15.2.1 any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
15.2.2 any loss or corruption of the Good Karma Media Data (whether direct or indirect) of Data or your information;
15.2.3 loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
15.2.4 any loss or liability (whether direct or indirect) under or in relation to any other contract; or
15.2.5 any loss (whether direct or indirect) as a result of the actual quantity of response which constitute the Good Karma Media Data being less than the estimated quantity.
15.3 Our total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract shall in all circumstances be limited to 50% of that element of the total Charges paid by you which govern the erroneous element of the Services during a one month period immediately before the date on which the cause of action first arose.
15.4 Any dates quoted for delivery of the Services are approximate only, and the time of delivery is not of the essence. We shall not be liable for any delay in delivery of the Services that is caused by an event or circumstance or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Services.
15.5 You agree that you are a Processor for the purpose of the Privacy and Data Protection Requirements. You shall indemnify us against any and all claims, losses, damages, costs (including but not limited to legal fees) and expenses incurred by, or awarded against, us arising out of or in connection with you:
15.5.1 agreeing, or being found or deemed, not to be a Processor; or,
15.5.2 carrying out or agreeing to carry out any act(s) which a Processor is not permitted to carry out or which a reasonable Data Processor would not carry out or agree to carry out; or,
15.5.3 omitting to carry out, or agreeing to omit to carry out, any act which a Processor is obliged to carry out or which a reasonable Data Processor would carry out or agree to carry out.
15.6 You shall indemnify us against any and all claims, losses, damages, costs (including but not limited to all legal fees) and expenses incurred by or awarded against us arising out of or in connection with the Processing by you of the Good Karma Media Data under this agreement except to the extent that the same have arisen out of or in connection with any negligence or wilful default of ours. For clarity, this exception shall include any claim or action claiming that the provision, receipt or use of the Good Karma Media Data (wholly or in part) infringes any Intellectual Property Right of a third party.
15.7 You shall not institute proceedings for damages for breach of this agreement after the expiration of one year from the date on which you became aware of the same or the date on which you ought reasonably to have become aware of the same.
16. Term and Termination
16.1 This agreement shall commence on the Commencement Date (or Order Date). Unless terminated earlier in accordance with this agreement, this agreement shall continue for the period set out in the Order Form.
16.2 You may terminate this agreement in respect of the Services upon thirty (30) days notice in writing.
16.3 We may terminate this agreement with immediate effect by giving written notice to you (including by email) if you fail to pay any amount due under this agreement (including the Charges) on the due date for payment and remain in default for 30 days after being notified in writing to make that payment.
16.4 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
16.4.1 the other party commits a material breach of any material term of this agreement and (if that breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
16.4.2 the other party:
18.104.22.168 suspends, or threatens to suspend, payment of its debts;
22.214.171.124 is unable to pay its debts as they fall due or admits inability to pay its debts;
126.96.36.199 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
188.8.131.52 (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or
184.108.40.206 (being a partnership) has any partner to whom any of clause 16 applies
220.127.116.11 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (in the case of a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
18.104.22.168 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
22.214.171.124 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
126.96.36.199 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
188.8.131.52 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
184.108.40.206 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other similar process is levied or enforced on or sued against, the whole or any part of the other party’s assets and that attachment or process is not discharged within 14 days;
220.127.116.11 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause 16 (inclusive);
18.104.22.168 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
16.5 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
16.6 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of either of us that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
16.7 On any termination of this agreement for any reason or expiry of the Term, you shall immediately pay any outstanding amounts owed to us under this agreement.
16.8 On any termination of this agreement for any reason or expiry of the Term you shall as soon as reasonably practicable return or destroy (as directed in writing by us) all Good Karma Media Data, information, software, and other materials provided to you by us in connection with this agreement including all Materials, and our Confidential Information.
16.9 If you are required or requested by any law, regulation, or government or regulatory body to retain any documents or materials that you would otherwise be required to return or destroy under this clause, you shall notify us in writing of that retention, giving details of the documents or materials that you must retain. You shall not be in breach of clause with respect to the retained documents or materials.
17. Force Majeure
Neither of us shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of our respective obligations under this agreement if such delay or failure result from events, circumstances or causes beyond our reasonable control. 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.
18. Contract Assignment
18.1 This agreement is personal to you and expressly excludes any parent, subsidiary or other affiliated company of yours and you shall not assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any of your rights and obligations under this agreement without our prior written consent.
18.2 In the event of a transfer of your assets to a third party, the Good Karma Media Data remains our property and any use of the Good Karma Media Data so transferred shall be unlawful allowing us to claim against both you and the third party for such unlawful use.
18.3 You confirm you are acting on your own behalf and not for the benefit of any other person.
18.4 We may at any time assign, transfer, mortgage, charge, subcontract, novate, declare a trust of or deal in any other manner with any of our rights and obligations under this agreement without your consent.
19. Contract Waiver
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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
20. Rights and Remedy
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.
Any notice or other communication given to a party under or in connection with this agreement 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).
22. Notices and Communications
22.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
22.2 otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
23. This clause 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. For the purposes of this clause, writing shall not include email.
24. Entire Agreement
24.1 This agreement constitutes the entire agreement between us and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between us relating to its subject matter.
24.2 Each of us acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this agreement.
25. Agreement Variations
Except as expressly provided in this agreement, no variation of this agreement shall be effective unless it is in writing in the form of a schedule and signed by each of us (or our Authorised Representatives).
26.1 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 shall not affect the validity and enforceability of the rest of this agreement.
26.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, we shall respectively negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
27. No Partnership or Agency
27.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between us, constitute either of us the agent of the other, or authorise either of us to make or enter into any commitments for or on behalf of any other.
27.2 Each of us confirms it is acting on its own behalf and not for the benefit of any other person.
28. Third Party Rights
A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
29. Governing Law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each of us irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual).
General Terms & Conditions – Agency Services
1 Agreement to Act as Agency
1.1 The “Client”, the company named in any relevant statement of work, media schedule, estimate or invoice to which these Terms & Conditions apply (the “SoW”), appoints Good Karma Media Limited (the “Agency”) to carry out, and the Agency agrees to provide, the services outlined in the SoW (the “Services”) to the Client during the Term (as defined below) in accordance with these Terms & Conditions.
1.2 Any changes or additions to the Services provided by the Agency must be agreed in writing between the Agency and the Client. The Agency will take all reasonable steps to comply with any such request from the Client provided that the Agency is able to do so within its contractual obligations to suppliers.
1.3 In the event of any such cancellation, amendment or addition to the Services provided the Client will reimburse the Agency for any charges or expenses committed to or incurred by the Agency. The Client shall also pay the Agency’s remuneration covering the cancelled or amended Services as well as any charges imposed on the Agency by third parties arising from the cancellation or amendment.
1.4 The Agency will allocate suitable personnel with appropriate levels of experience and seniority to provide the Services. The Client acknowledges and agrees that it may be necessary for the Agency to replace the personnel with alternative personnel with similar levels of seniority and experience.
1.5 The Agency acts in all its contracts as a principal at law and the Client appoints the Agency as sole provider to perform the Services.
1.6 The Agency may outsource or sub-contract its performance of the Services or part thereof whilst ensuring that the quality of the delivered work remains on par with its contractual obligations.
1.7 In the event the Client requests the Agency to provide any of the services as set out in Schedule I (“Specialist Media Services”) the supplemental terms set out in Schedule 1 shall apply pursuant to which the Agency and/or Agency Affiliates (as defined in Schedule 1) may provide such Specialist Media Services.
2 Term of Appointment
2.1 These Terms & Conditions shall be effective from the date of the first relevant SoW and shall continue until all Services are completed and delivered pursuant to any and all relevant SoW, or unless terminated pursuant to Clause 7 (the “Term”).
3.1 The Agency will co-operate fully with the Client and use reasonable care and skill to make the Materials (as defined below) as successful as is to be expected from a competent marketing agency. The Client will help the Agency do this by making available to the Agency all relevant information and co-operating with the Agency including clear briefings and ensure that all the facts provided are accurate.
4 Fees and Production Costs
4.1 The Client shall pay the Agency the fee for the Services as set out in any relevant SoW, or as otherwise agreed between the parties in writing, (the “Fee”). Unless otherwise stated in the SoW, the Fee is earned on a fixed and non-reconcilable basis and shall be payable in addition to all production, studio, data science, media and other disbursements and expenses committed to or incurred.
4.2 All production costs and expenses are normally invoiced at the value of estimates set out in the relevant SOW.
4.3 The Client will pay all Fees and other production costs and expenses within 30 days of the date of the invoice, or as otherwise agreed between the parties in writing. Where suppliers require payment in advance or at various stages of production, the Agency will notify and obtain the Client’s written agreement in advance and payment will be made immediately upon presentation of invoice or by the date specified thereon.
4.4 POs will be issued in advance for all work to be paid for by the Client. Should this not be possible, the Client must approve the estimate in writing in advance and this will serve as sufficient authority until the PO is issued.
4.5 All Fees and other charges issued by Agency shall be exclusive of VAT or other taxes. In addition to the charges issued by Agency, Client shall be solely responsible to pay all VAT and other tax charges that are levied or imposed by reason of the transactions contemplated by these Terms & Conditions.
5. Media Charges
5.1 In respect of media buying Services, the Agency shall invoice media costs payable by the Client for media space booked by the Agency based on the negotiated gross cost of media less the standard agency discount given by the media owner or as otherwise approved by the Client on the relevant SoW (“Media Charges”) together with the associated Fee and any industry related charges as set out in Clause 5.5.
5.2 The Client acknowledges and understands that media costs, ratings and/or other campaign metrics as set out in any SoW represent estimates based on market predictions and that the final actual pricing, channel share and/or ratings performance may therefore differ from that set out in any SoW.
5.3 The Agency purchases media on behalf of its clients as principal and at its own risk and may, on occasion, receive from the media owners volume or other discounts, bonuses, free or discounted media space or any other equivalent benefit (“AVBs”) derived from the Agency’s aggregate spend across many clients. The Client hereby agrees that the Media Charges incurred by the Agency for the Client pursuant to this agreement/schedule may be aggregated in any such Agency AVB arrangements with media suppliers. The Agency reserves the right to utilise such AVBs to discount media costs to the Agency and, in such instances, the final media costs payable by the Agency to relevant media owners may differ from the Media Charges payable pursuant to these Terms and Conditions. The Agency will always act in media neutral manner in the delivery of the media buying and planning Services hereunder.
5.4 In the absence of any agreement between us whereby the Agency verifies the placement of advertisements it is the clients’ responsibility to notify the Agency in writing within 30 days of date of insertion if the Client advertisement does not appear or is to a different specification than that agreed in accordance with this Media Schedule. In the absence of such notification the advertisements will be deemed to have appeared as specified and are payable in full by the Client.
5.5 The Agency shall also invoice the Client, as applicable, the following industry related charges: Charges for Donovan Data Systems Limited at 0.175% of the sum of Media Charges, or such other rate as advised by the Agency to the Client in advance from time to time (only if this platform is stipulated by the client). The ASBOF levy will be a percentage to be determined by ASBOF from time to time (currently 0.1%) of the Media Charges for outdoor, cinema, paid-for search, mobile and press display advertisements (excluding classified lineage, semi-display and any displays, screenings and publications outside the UK), the postage cost of direct mailings in the UK, and internet advertising in paid for space.
5.5 Payment terms are 28 days from date of invoice, with the exception of data provision which is due within 14 days of the date of invoice. Surcharges applied by media owners may be levied in the case of late payment. The Client accepts it will be liable for such late copy charges if we, the Agency, are not responsible for providing such copy or at fault for failing to do so on time.
6 Intellectual Property Rights and Warranties
6.1 When the Agency is providing creative services the Agency shall discuss with Client on a case by case basis, which usage rights in pre-existing materials and commissioned materials are required and negotiate to obtain these on Client’s behalf at the Client’s cost.
6.2 At the end of the Term or relevant SOW the Agency shall, upon the Client's request, and provided all material obligations of the Client arising from these Terms & Conditions have been met, assign to the Client the intellectual property rights capable of assignment in the material created solely by the Agency specifically for the Client (the "Materials"). To the extent that any intellectual property rights in the Materials are not capable of assignment pursuant to this clause, the Agency shall procure for the Client an agreed and most appropriate licence.
6.3 The Agency warrants that its own work in the Materials is original work of the Agency and does not infringe any third party rights and that where work is commissioned or licenced that appropriate licences are obtained.
6.4 Notwithstanding the above the Agency shall, with the Client's written consent, be able during and after the relationship to use the materials created for the purpose of promoting its own business and for purposes associated with the entry and conduct of advertising industry awards schemes.
6.5 Where the Agency is providing media services the Client warrants that it is the owner, licensor or has the right to authorise use of all the advertising content provided by it or its authorised third parties and agents to the Agency (The Advertising) and this will not infringe copyright, trademarks, trade names, design rights or data base rights (the Intellectual Property Rights) of any third party and will not contain any material which is obscene, offensive, defamatory and will comply in all respects with all relevant laws, rules and Regulations. It is understood that Agency Group Companies may use their proprietary pixel management system together with third party pixel tags, web beacons, technology and other relevant tags (“Tags”) to collect and/or use IP Addresses, cookies, non-personal data or anonymous user data from one or more of Client owned and/or operated websites (“Data”) with their express permission.
6.6 The Client shall indemnify the Agency and keep the Agency indemnified in the event of any losses, costs and expenses (including reasonable legal costs) of whatsoever nature suffered by the Agency in connection with a breach or an alleged breach of Clause 6.5. If there is an error in Advertising as published or publication is delayed or does not occur as planned, the Agency will not be liable unless this is caused by the wilful default or gross negligence of the Agency.
7.1 Either party may terminate these Terms & Conditions by giving the other party written notice as set out in the relevant SoW. In the absence of a specific notice period in the relevant SoW, the terminating party shall provide such notice as is reasonable having regard to the relevant SoW but not less than one calendar month.
7.2 Either party may terminate these Terms & Conditions immediately by notice in writing to the other if the other party is in material breach of any of these Terms & Conditions and, in the case of a breach capable of remedy, fails to remedy such breach within 30 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it.
8.1 The Agency’s maximum aggregate liability under these Terms & Conditions is no greater than the total Fees paid to the Agency under the relevant SoW. Neither party shall be liable for any indirect or consequential losses.
9.1 The cost to the Agency of materials or services purchased overseas may be more or less than the cost anticipated as a result of fluctuations in the rate of currency exchange. If so, the Agency will charge the Client at HSBC Bank’s exchange rate on the date the Agency pays for the relevant materials or services.
9.2 A person who is not a party to these Terms & Conditions has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms & Conditions.
9.3 These Terms & Conditions constitute the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of these Terms & Conditions. No variation of these Terms & Conditions or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties. Unless specifically stated in these Terms & Conditions or in any relevant SoW, where there is any discrepancy between the terms contained herein and those stated on any relevant SoW the terms of these Terms & Conditions shall take precedence.
9.4 The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales and agree that these Terms & Conditions will be governed by and construed in accordance with the laws of England and Wales.