THIS AGREEMENT is made on [INSERT DATE]
- HOUSE DIGITAL LIMITED, a company incorporated in England and Wales (company number 07414760) whose registered office is 2a Swordfish Business Park, Swordfish Close, Higgins Lane, Burscough, Lancashire, United Kingdom, L40 8JW (House Digital); and
- [COMPANY NAME], a company incorporated in [England and Wales] (company number [company number]) whose registered office is at [address] (the Client),
(each a party and together the parties).
(A) House Digital is a digital agency with the skills and abilities to provide digital and creative services for ongoing marketing projects and technical marketing services.
(B) The Client wishes to engage House Digital to provide such services on the terms and conditions of this Agreement.
The Parties agree as follows:
- DEFINITIONS AND INTERPRETATION
1.1 The following definitions apply in this Agreement.
|Acceptance||acceptance of the Deliverables pursuant to clause 6.3 or clause 6.7 as appropriate;|
|Advertising||means any internet advertising placements to be procured by House Digital on behalf of the Client in connection with the Services;|
|Advertising Regulations||means any present or future applicable code of practice or adjudication of the Advertising Standards Authority and includes any applicable modification, extension or replacement thereof in force from time to time, together with other UK laws, statutes and regulations which are directly applicable to the Services;|
|Brand Guidelines||the Client’s brand guidelines to be provided to House Digital upon signature of the Statement of Work;|
|Confidential Information||all information (whether written or oral) concerning the business and affairs of a party or of its clients which is obtained or received as a result of the discussions leading up to the entering into or performance of this Agreement (including without limitation all technical, financial and non-public information of any nature whatsoever) and which is marked confidential or which ought reasonably to be treated as confidential;|
|Commencement Date||the date of this Agreement|
|Charges||the amount payable by the Client to House Digital for the Services as outlined in a Statement of Work;|
|Data Protection Legislation||all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;|
|Deliverables||the web pages, websites, reports, analyses, statistics, content, documents, products, creatives and campaigns, strategies, solutions and/or other materials as may be required to be delivered by House Digital or its agents, subcontractors, consultants and employees in accordance with this Agreement and a Statement of Work;|
|Digital Media Account(s)||refers to, but is not limited to Social Media, an Adwords account on Google, a BingAds account on Bing, programmatic management tools (eg Double Click; DBM), Amazon Advertising, call tracking packages (eg ResponseTap) and other such platforms managed by House Digital which the Client may be given access to;|
|Description of Services||the description of the Services as set out in a Statement of Work;|
|Domestic Law||the law of the United Kingdom or a part of the United Kingdom.|
|Intellectual Property Rights||patents, rights to inventions, copyright and related 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 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;|
|House Digital Intellectual Property Rights||all documents, works, concepts information, materials or Intellectual Property Rights provided by House Digital relating to the Services which existed prior to the commencement of this Agreement, or which are not bespoke to the Client or were developed for use in relation to House Digital’s business or any or all of its customers generally and not specifically for the provision of the Services or Deliverables to the Client, including but not limited to proprietary software and programs or source code, databases, e-commerce and/or content management systems, reports or specifications, web applications or on page animation and any other materials that may be specified in a Statement of Work;|
|Materials||the content provided to House Digital by the Client from time to time in order to enable House Digital to perform the Services, and where appropriate, incorporate into any website that House Digital may be providing as part of the Deliverables;|
|Scope||means the scope of use set out in the Statement of Work;|
|Services||means some or all of the services listed in Schedule 2 which are to be provided under this Agreement as detailed in the applicable Statement of Work;|
|Social Media||means any social media pages that are owned, controlled or operated by the Client as listed in a Statement of Work, in respect of which the Services/Deliverables will be provided;|
|Specification(s)||the specification for the Services and Deliverables as set out in a Statement of Work;|
|Statement of Work||a document substantially in the form of the template statement of work set out in Schedule 1 – Template Statement of Work, describing the Services and Deliverables to be provided by House Digital to the Client, which is agreed between the parties and signed by their authorised representatives;|
|Term||the period of time from the Commencement Date and ending on the date this Agreement is terminated in accordance with its terms;|
|Third Party Materials||means those materials or Intellectual Property Rights which are either commissioned by House Digital from third parties during the Term and incorporated into the Deliverables, or which have been created by a third party and which are in existence at the time it is desired to make use of them for inclusion in the Deliverables including but not limited to ‘stock’ photographs, illustrations and/or programming code;|
|UK GDPR||has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018;|
|Unsuitable Content||any material or content that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party’s Intellectual Property Rights;|
|Virus||any thing or device (including any software, code, file or program) whose purpose or possible function is to deliberately disable a computer or network or impair or adversely affect its performance or prevent or hinder access to any program or data, or impair the operation of any program or the reliability of any data including a computer virus, trojan horse, worm, logic bomb, back door or similar item;|
|Website||the website or websites, platform or other content channel at the URLs listed in a Statement of Work in respect of which the Services will be provided.|
1.2 The singular includes the plural and the masculine includes the feminine and vice versa. References to persons shall include bodies corporate, unincorporated associations and partnerships.
1.3 References to any clause or cub-clause are references to such terms contained in this Agreement, unless otherwise specified. Reference to this Agreement shall include the Recitals. The headings to clauses are for convenience only and shall not affect the interpretation of this Agreement.
1.4 Reference to any party in this Agreement shall be deemed to include a reference to its successors, permitted transferees and permitted assignees.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.6 Any words following the terms including, include, in particular 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.
- STRUCTURE OF AGREEMENT
- This Agreement is structured so that individual Statements of Work will be entered into by the parties and such Statements of Work are governed by and subject to this Agreement. In the event of inconsistency or conflict between this Agreement and any Statement of Work, the terms of this Agreement shall take precedence to the extent of the conflict or inconsistency unless expressly stated otherwise in the Statement of Work. The parties shall be able to change or amend the terms of the Statements of Work by prior agreement in writing.
- This Agreement does not commit the Client to purchase any Services or Deliverables and, likewise, does not commit House Digital to provide any Services or deliver any Deliverables. The Client only becomes committed to purchasing and House Digital only becomes committed to providing any Services or delivering any Deliverables upon both parties accepting a Statement of Work in respect of such Services and Deliverables (in the form of the template at Schedule 1).
- Each Statement of Work shall specify (where relevant) the scope, Description of the Services, the Specification, Deliverables, any obligations of each party additional to those set out in this Agreement and the Charges relevant to each Statement of Work.
- Each Statement of Work unless otherwise agreed by the parties shall constitute a separate contract under this Agreement and any defined terms used in each Statement of Work shall have the same meaning as set out in this Agreement. For the avoidance of doubt any terms and conditions submitted by the Client are expressly rejected and each and every Statement of Work is governed by and subject to the terms of this Agreement.
- HOUSE DIGITAL’S RESPONSIBILITIES
3.1 House Digital shall:
3.1.1 prepare the Statement of Work;
3.1.2 provide the Services;
3.1.3 comply with the Brand Guidelines provided to House Digital by the Client;
3.1.4 comply with the Client’s information and IT security measures as communicated to House Digital when performing the Services; and
3.1.5 deliver the Deliverables to Client,
in accordance with any the terms of this Agreement, an applicable Statement of Work, any other reasonable instructions of the Client and to such standard as might reasonably be expected of an experienced and professional digital agency.
3.2 Where House Digital has access to the Website as part of the Services, House Digital shall include on the Website only the Materials and any other content that it has developed pursuant to the Specifications.
3.3 House Digital is not responsible for changes or alterations made to the Deliverables or Website or Digital Media Accounts, by third parties or the Client, that adversely affect the operation of the Deliverables or Website or Digital Media Accounts, including overwriting actions House Digital has taken as part of the Services, or through the addition or removal of content or in choosing to link to or obtain a link from a particular website without prior consultation with House Digital.
3.4 The Client acknowledges and agrees that:
3.4.1 it can take many months for the Services to have any significant effects upon the ranking of a Website and/or Social Media in the search engine results pages and due to the way paid search algorithms operate, House Digital can give no guarantee that the amount(s) bid by it in respect of any words or phrases will secure or maintain any particular position, at any particular cost, on the relevant search engines, or in respect of Social Media, that the audiences targeted will reach a certain number, or the Services have the desired affect;
3.4.2 House Digital has no control over the policies of search engines with respect to the type of websites and/or content that they accept or the way in which websites are ranked either now or in the future and as a result search engines may stop accepting submissions from House Digital for an indefinite period of time with or without notice or may cease to list a Website at its discretion, and House Digital shall not be liable to Client for any such actions of search engines;
3.4.3 House Digital cannot be held responsible for any fluctuations, perceived non delivery or damage that may have been caused by third party actions or changes including but not limited to:
22.214.171.124 the Website in question being treated differently by the search engines for any reason;
126.96.36.199 the adoption by the Client of any unethical practices related to the Website, Social Media or Advertising accounts or engaged in practices disapproved of by the search engines;
188.8.131.52 the Client not taking the actions required by House Digital within the time frame specified by House Digital including but not limited to implementing on-page changes to the relevant Website;
184.108.40.206 any other search engine marketing provider being instructed by the Client to work on the same Website at the same time;
220.127.116.11 the Client making any unauthorised changes; and
3.4.4 whilst House Digital will use its reasonable endeavours to meet targets or KPIs referred to in a Statement of Work, House Digital does not guarantee that any particular results will be achieved and accordingly a failure to meet such targets will not be a breach of the Agreement,
in such circumstances the Charges are still payable by the Client.
3.5 In planning and securing Advertising House Digital shall use its reasonable endeavours to ensure the accuracy of all estimated and target figures relating to the number, proportion or type of people likely to be exposed to the Advertising and the related costs, notwithstanding this however the Client acknowledges and agrees that this is ultimately beyond House Digital’s control and therefore no warranties are given by House Digital as to the accuracy of such estimates/targets and House Digital excludes all liability to the Client in respect of any Client or third party losses caused by the Client’s reliance on such estimates and targets. The Client acknowledges and agrees that House Digital makes no guarantees with respect to the results generated by any of the Services provided under this Agreement.
3.6 The Client acknowledges and agrees that in the event any monthly projections are included in a Statement of Work, then such projections are not directly linked to the payment of Charges and such Charges remain due and payable should the projections not be achieved for any reason.
3.7 The Client accepts that the Services will be performed hereunder on an “as is” and “as available” basis, without any guarantee of continuous or uninterrupted display or distribution of any content or other products or services or that the Services will be secure, error or Virus free. In the event of interruption of availability, display or distribution of any Services House Digital’s sole obligation will be to restore service as soon as practicable.
3.8 The Client acknowledges that the promotion of the Website may lead to higher traffic levels and bandwidth requirements for the Website, and the Client will be responsible for arranging and paying for such requirements.
3.9 House Digital shall promptly report to the Client any material issues with the performance of the Services and/or Website. Upon the reasonable request of Client, and subject to an agreement on costs between the parties, House Digital shall use reasonable endeavours to correct any such material issues with the performance of the Services and/or Websites.
3.10 Unless expressly agreed otherwise in writing, time shall not be of the essence in relation to this Agreement and/or any Statement of Work.
- THE CLIENT’S RESPONSIBILITIES
4.1 The Client shall:
4.1.1 provide House Digital with such complete and accurate information and documents that House Digital may require for the proper performance of the Services;
4.1.2 approve without undue delay when asked by House Digital, any Services and/or Deliverables that have been carried out in accordance with the Specification;
4.1.3 ensure that the Materials and the Website do not include any Unsuitable Content;
4.1.4 pay the Charges in accordance with clause 5 together with associated costs and expenses.
4.2 Solely for the purposes of House Digital providing the Services, the Client agrees to provide the following when requested by House Digital:
4.2.1. administrative or back-end access to the Website and any other Client IT infrastructure for analysis of its content and structure necessary for the delivery of the Services;
4.2.2 permission for House Digital to make changes to the Website for the purpose of providing the Services;
4.2.3 permission for House Digital to communicate directly with any applicable third parties (for example, Client’s hosting provider) in order to provide the Services, and Client will be responsible for procuring any such third party cooperation reasonably required; and
4.2.4 access to existing traffic statistics for the Website in order for analysis and tracking purposes; and
4.2.5 all reasonable assistance required by enable House Digital to deliver the Services.
4.3 The Client shall:
4.3.1 back up its computer systems at least every seven (7) days and back up daily in respect of differential updates;
4.3.2 maintain fully licensed Virus check software throughout the Client’s computer system; and
4.3.3 in consultation with House Digital upon signature of this Agreement appoint a key contact who will be the primary point of contact for the Client in respect of the Services.
4.4 Where relevant the Client will be responsible for obtaining suitable licences of third party software (for example email client software) which are required for the full use of the Services.
4.5 Where applicable House Digital shall provide the technical analysis and recommendations set out in the Statement of Work and the Client shall implement the recommendations (the Recommendations) in order to enable House Digital to provide the Services. In the event the Client is unable to implement the Recommendations House Digital shall provide a cost estimate for the work required to enable effective provision of the Services. For the avoidance of doubt House Digital shall not be liable for any failure to provide the Services as a result of the Client’s failure to implement the Recommendations.
- CHARGES AND PAYMENT
5.1 In consideration of the provision of Services under a Statement of Work and this Agreement, the Client shall pay to House Digital the Charges and any expenses in accordance with this clause 5. House Digital shall invoice Client for all the relevant Charges in accordance with the payment schedule set out in the Statement of Work.
5.2 In the event that the Services include any third party services that are sourced, commissioned and/or managed by House Digital, the Client will upon request by House Digital pay the associated Charges in advance before such expenses are due for payment to the relevant third parties. A quote for any such third party costs will be provided by House Digital when preparing the Statement of Work. In respect of those third party costs which recur each month e.g. paid advertising costs, as detailed in a Statement of Work, the Client shall establish a Direct Debit payable to House Digital on a monthly basis, to cover these elements unless the Client is paying such third party costs directly in which event this shall be stated in the relevant Statement of Work. In the event that any additional third party services or materials are required during the course of the provision of the Services then House Digital will discuss these with the Client prior to ordering such third party services and materials. If approved the Client will pay these costs in advance before such expenses are due for payment to the relevant third parties.
5.3 Where the Client requests a change to the scope of the Services or alterations to the Deliverables under a Statement of Work or where House Digital recommends a change to the scope of the Services under a Statement of Work then House Digital shall provide a quote for providing such additional work by giving written notice to the Client. Where the change is recommended by House Digital then House Digital will also provide a brief explanation as to why the change is recommended. The Client shall respond to the quote promptly and approve or reject the quote. Where the Client rejects the quote then House Digital will be under no obligation to alter the scope of the Services or the Deliverables. Where the Client requests a change to the scope of Services which relate to paid advertising costs or Digital Media Accounts the Client acknowledges that a full calendar months’ notice is required to be given due to the way in which such services are structured and charged i.e. the notice must end at the end of a calendar month. By way of example if notice was given on 7 June the Services would continue until 31 July.
5.4 Payment of all Charges due under a Statement of Work shall be made by the Client in accordance with any payment schedule contained in the Statement of Work (as may be amended pursuant to clause 5.3), or in the absence of such a schedule within 30 days of the date of invoice and Client shall pay all invoices in cleared funds free from all withholding tax. Notwithstanding the foregoing where the Client delays completion of a Website design and build project (Project) including (but not limited to) by failing to provide Materials or confirm approval of the design within the timescales requested by House Digital, then House Digital shall be entitled to issue its final invoice in respect of such Project which shall be payable within 30 days of the date of invoice.
5.5 The Client shall be liable to pay interest on the overdue amount at an annual rate of 4% per annum above the prevailing base rate of Handelsbanken Bank plc until House Digital has received payment of the overdue amount. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
5.6 All Charges stated in or in relation to the Agreement are stated exclusive of VAT which shall be payable by the Client at the applicable rate.
5.7 The Client shall have no right of set off, counterclaim or deduction in respect of the Charges.
5.8 House Digital shall be entitled to vary the Charges / its monthly fee as specified in the Statement of Work, upwards or downwards upon no less than 30 days prior written notice to the Client.
- ACCEPTANCE TESTING
6.1 Where applicable and once House Digital has completed the development of the Deliverables which include a digital solution House Digital shall carry out the acceptance tests in accordance with the test criteria provided by House Digital and approved by the Client to determine whether the Deliverables conform to the Specification in all material respects.
6.2 If the Deliverables fail to meet the test criteria and/or the Specification House Digital shall remedy the defects and resubmit the Deliverables for acceptance tests promptly. If any set of Deliverables fails to pass an acceptance test after three attempts (or any other number of attempts House Digital and the Client shall agree in writing) these Deliverables shall be deemed incomplete and the Client shall be entitled to reject such Deliverables and terminate this Agreement and the relevant Statement of Work immediately upon providing written notice to House Digital or alternatively the Client may accept such Deliverables with a reasonable reduction in the Charges payable by the Client.
6.3 If the acceptance tests demonstrate that the Deliverables conform fully to both the test criteria and the Specification, the Client shall agree in writing that such Deliverables are accepted by the Client no later than three (3) days following submission of the Deliverables to the Client by House Digital. In the event no written acceptance is received by House Digital within this time period upon expiry of three (3) days from submission to the Client the Deliverables shall be deemed to have been accepted by the Client.
6.4 Where the Deliverables comprise design and/or User Experience (UX) then subject to clauses 6.5 and 6.7 below the Client shall approve the Deliverables in writing immediately upon receipt.
6.5 The Client shall be entitled to request up to two (2) amendments to the Deliverables supplied for approval. Amendments requested by the Client in addition to the two (2) permitted will be charged to the Client in accordance with House Digital’s prevailing rates at the time.
6.6 House Digital shall not be liable for any defects in the Deliverables beyond the reasonable control of House Digital.
6.7 For the purposes of clauses 6.4 to 6.6 in the event the Client believes that the Deliverables do not conform to the Description of Services whether as to content quality or quantity it shall notify House Digital by email within three (3) days of delivery. If no such notification is received then the Deliverables shall be deemed to be accepted by the Client and deemed to conform with the Description of Services in every respect.
6.8 Without prejudice to clause 6.9 for the purposes of clause 6.7 above, House Digital’s liability for defects in the Deliverables shall be limited to the replacement of the Deliverables at no additional cost to the Client provided always that such defect is notified to House Digital in accordance with clause 6.7 above and the Deliverables have been returned to House Digital for inspection.
6.9 In any event the total liability of House Digital for defects or errors in any Deliverables detailed in clause 6.4 above shall be limited to a sum equivalent to the invoice price of those Deliverables in respect of which the claim is made.
6.10 Where a claim is made in respect of the Deliverables detailed at clause 6.4 above alleging the Deliverables to be defective House Digital may suspend work on any further Services or Deliverables under this Agreement or any Statement of Work which may have the same or similar alleged defects until the validity of such claim has been determined and, in such event, the applicable delivery dates shall be postponed accordingly.
- INTELLECTUAL PROPERTY RIGHTS
7.1. Subject to clauses 7.2 and 7.3, and provided always that the Charges for the Services have been paid to and received by House Digital, House Digital hereby grants to the Client a licence to use all such Intellectual Property Rights in the Deliverables at all times in accordance with the Scope. In the event the Client wishes to use the Deliverables or products of the Services for purposes outside the Scope, such use shall be subject to the prior written agreement of House Digital, such agreement to be on commercial terms.
7.1 The Deliverables created for the Client by House Digital as part of the Services (including (but subject always to clauses 7.2 and 7.3) the Intellectual Property Rights therein) shall, upon payment of the Charges to House Digital in accordance with this Agreement, be the property of the Client.
7.2. To the extent that the Deliverables contain any House Digital Intellectual Property Rights then such rights shall remain the property of House Digital and House Digital hereby grants to Client a perpetual, non-transferable, non-exclusive, worldwide royalty free licence to use such House Digital Intellectual Property Rights in accordance with the Scope.
7.3. To the extent that the Deliverables contain any Third Party Materials then House Digital shall use its reasonable endeavours to obtain from the owner of such Third Party Materials, a licence for the Client to use such Third Party Materials (including the Intellectual Property Rights) in accordance with the Scope. House Digital shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Materials and the Client shall abide by such restrictions. In the event that House Digital is not able to obtain for the Client a licence to use the Intellectual Property Rights incorporated within the Third Party Materials contained in the Deliverables, House Digital will inform the Client and give the Client the option not to use such Third Party Materials and/or to obtain its own licence directly from the owner.
7.4 To the extent that the Deliverables include Open-Source Software, then the Client may use the same in accordance with the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed and the Client acknowledges that this is provided “as is” and expressly subject to the disclaimer in clause 8.5.
7.5. House Digital will use its reasonable endeavours to include in the Statement of Work the Third Party Materials which are to be included in the Deliverables.
7.6 The Client grants House Digital a limited, non-exclusive, non-transferrable, revocable and worldwide licence to access and use the Materials and name, logo, company name and trade mark of the Client solely to provide the Services to the Client in accordance with this Agreement and the Brand Guidelines during the Term. In addition, the Client irrevocably consents to House Digital, using the Client’s name (including any trade name and trade mark), in its marketing and sales materials and on its website in perpetuity.
8.1 The Client warrants, represents and undertakes that:
8.1.1 it has the legal right, and authority to enter into and perform its obligations under the Agreement and any Statement of Work;
8.1.2 any Materials provided to House Digital are owned by the Client or it has received the necessary consents or permissions to use the Materials in accordance with this Agreement and any Statement of Work from the applicable owner(s);
8.1.3 the Materials will not, when used in accordance with this Agreement and any written instructions given by the Client, infringe a third party’s Intellectual Property Rights;
8.1.4 the Materials will comply with all applicable laws and regulations including all Advertising Regulations; and
8.1.5 (without prejudice to the generality of Clause 9) any marketing list (including any email marketing list) provided to House Digital for the provision of the Services has been collected and collated in accordance with all applicable laws and regulations, and the use of any such list by House Digital for the purposes of the Services will not:
18.104.22.168 breach any applicable laws including Data Protection Legislation;
22.214.171.124 infringe any third party’s legal rights; or
126.96.36.199 give rise to any cause of action whether against House Digital, the Client, or otherwise.
8.2 House Digital warrants that:
8.2.1 it has the legal right, and authority to enter into and perform its obligations under the Agreement and any Statement of Work;
8.2.2 it shall perform the Services with reasonable skill and care;
8.2.3 the Deliverables will materially conform to their description set out in the Specification(s) [and with all applicable laws, statutes and regulations from time to time in force];
8.2.4 where the Deliverables comprise or include a product, digital content or website designed and developed by House Digital then such product, digital content or website will perform substantially in accordance with the Specification for a period of one (1) month from Acceptance. If the Deliverables do not so perform, House Digital shall, for no additional charge, carry out any work necessary in order to ensure that the Deliverables substantially complies with the Specification.
8.3 The warranty set out in clause 8.2 shall not apply to the extent that any failure of the Deliverables to materially conform to their description set out in the Specification(s) [or comply with applicable laws, statutes and regulations from time to time in force] is caused by the Materials or through any act or omission by the Client (including for the avoidance of doubt the installation of new or updated browsers or programming code), or any third party.
8.4 House Digital warrants that all content (excluding the Materials) that it develops for the Deliverables pursuant to this Agreement or any applicable Statement of Work will not contain Unsuitable Content.
8.5 Clauses 8.2, 8.3 and 8.4 set out the full extent of House Digital’s obligations and liabilities in respect of the Services and Deliverables. All conditions, warranties or other terms which might otherwise be implied into this Agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
- DATA PROTECTION
9.1 For the purposes of this clause 9, Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures shall mean as defined in the Data Protection Legislation.
9.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
9.3 The parties agree that the Client is a Controller and that House Digital is a Processor for the purposes of Processing the Client Personal Data pursuant to this Agreement. Schedule 3 sets out the scope, nature and purpose of processing by House Digital, the duration of the processing and the types of Personal Data and categories of Data Subject.
9.4 Without prejudice to the generality of clause 9.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to House Digital and/or lawful collection of the Personal Data by House Digital on behalf of the Client for the duration and purposes of this Agreement.
9.5 Without prejudice to the generality of clause 9.2 House Digital shall, in relation to any Personal Data processed in connection with the performance by House Digital of its obligations under this Agreement:
(a) process that Personal Data only on the documented written instructions of the Client which are set out in Schedule 3 unless House Digital is required by Domestic Law to otherwise process that Personal Data. Where House Digital is relying on Domestic Law as the basis for processing Personal Data, House Digital shall promptly notify the Client of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits House Digital from so notifying the Client;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the UK unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(i) the Client or House Digital has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) House Digital complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) House Digital complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
(e) assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Client without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Agreement unless required by Domestic Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 9.
9.6 The Client does not consent to House Digital appointing any third party processor of Personal Data under this Agreement. OR The Client consents to House Digital appointing [THIRD-PARTY PROCESSOR] as a third-party processor of Personal Data under this Agreement. House Digital confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement [substantially on that third party’s standard terms of business OR incorporating terms which are substantially similar to those set out in this clause 9] and in either case which House Digital confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Client and House Digital, House Digital shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 9 in accordance with the terms of this Agreement.
9.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms adopted under the Data Protection Legislation or forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement) provided that where House Digital is not prepared to accept such revisions it shall be entitled to terminate this Agreement by providing written notice to the Client.
- LIMITATION OF LIABILITY
10.1 Nothing in this Agreement limits or excludes House Digital’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or any liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1, House Digital shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for any loss of profits, loss of sales, loss of anticipated savings, loss of or damage to goodwill or reputation, loss of business, contracts or commercial opportunities, loss of use or corruption of software, data or information or any indirect or consequential loss.
10.3 Subject to clauses 6.8, 6.9, 10.1 and clause 10.2, House Digital’s total liability to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement any Statement of Work or any collateral contract shall be limited to, in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period, the equivalent of the total Charges paid by the Client (excluding Charges paid for third party services) in that period.
10.4 For the avoidance of doubt House Digital shall not be liable for third party acts or omissions in relation to the Deliverables including third party use or interference with the Deliverables.
11.1 The Client shall indemnify House Digital against all damages, losses and expenses arising as:
11.1.1 a result of any action or claim that House Digital’s use and possession of the Materials in accordance with this Agreement or any applicable Statement of Work constitutes an infringement of Intellectual Property Rights of a third party; or
11.1.2 a breach or alleged breach of the warranties at clause 8.1.
11.2 The Client shall indemnify House Digital against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute or contain Unsuitable Content.
- TERM AND TERMINATION
12.1 This Agreement shall come into force on the Commencement Date and subject to earlier termination in accordance with its terms shall remain in full force and effect.
12.2 Subject to clause 12.3 either Party may terminate this Agreement (including all Statements of Work) by giving sixty (60) days’ prior written notice to the other.
12.3 In the event that a Statement of Work is entered into for a fixed term (the Fixed Term) by way of example only, nine (9) months, then the term cannot be terminated for convenience pursuant to clause 12.2 prior to the expiry of the Fixed Term. In such circumstances a commencement date and termination date of the Fixed Term shall be set out within the Statement of Work. In the event the parties wish the term of the Statement of Work to continue after the Fixed Term, the parties shall enter into a new Statement of Work no later than thirty (30) days prior to the expiry of the Fixed Term. However, where a Statement of Work is not entered into prior to the expiry of the Fixed Term, and the Client wishes the Services to continue and House Digital is happy to continue to provide the Services, then the term of the Statement of Work will roll on and the Services shall be provided at the same rates as set out in Statement of Work until terminated by either party on sixty (60) days’ written notice.
12.4 Without prejudice to clause 9.7, either Party may terminate this Agreement forthwith by written notice to the other if the other Party:
12.4.1 commits any material or persistent breach of its obligations under this Agreement or any Statement of Work, which in the case of a breach capable of remedy shall not have been remedied within thirty (30) days of receipt by that Party of notice identifying the breach and requiring its remedy; and
12.4.2 convenes a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition, scheme or arrangement with, or assignment for the benefit of, its creditors, or if the other shall be unable to pay its debts within the meaning of Section 123 or Section 268 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other, or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other, or for the making of an administrative order (otherwise than for the purpose of an amalgamation or reconstruction).
12.5 On expiry or termination of this Agreement or a Statement of Work, the Client shall pay all Charges for such work as has been conducted by House Digital pursuant to the Services up to the date of termination, and shall further reimburse House Digital for any Charges and/or expenses which have been paid and/or irrevocably agreed to as of the date of termination. In the event that the Client fails to pay the Charges in accordance with this clause 12.5 all applicable licences granted to the Client under this Agreement shall terminate immediately.
12.6 On termination of this Agreement or a Statement of Work (however arising) save as expressly agreed otherwise pursuant to the terms of this Agreement or relevant Statement of Work the accrued rights and liabilities of the parties as at termination, and the following clauses, shall survive and continue in full force and effect: clause 1, clause 2, clause 5.5, clause 7.1, clause 7.2, clause 10, clause 11, clause 12.5, clause 12.6, clause 12.7, clause 13 and clause 14.
12.7 Termination of this Agreement or a Statement of Work shall not prejudice any of the parties’ rights and remedies which have accrued as at termination.
13.1 Each party undertakes that it shall not at any time disclose to any third party any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this clause 13.
13.2 Each party may disclose the other party’s Confidential Information:
- to its employees, officers, representatives or advisers who need to know such Confidential Information for the purposes of carrying out the party’s obligations under this Agreement or a Statement of Work. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 13; and
- as may be required by law, court order or any governmental or regulatory authority.
13.3 No party shall use any other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement or any Statement of Work.
- GENERAL PROVISIONS
14.1 This Agreement and any Statement of Work constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement or any Statement of Work. Each party acknowledges that it has not been induced to enter into this Agreement or any Statement of Work by any representation or warranty other than those contained in this Agreement or any Statement of Work and having negotiated and freely entered into this Agreement or any Statement of Work, agrees that it shall have no remedy in respect of any other such representation or warranty except in the case of fraud.
14.2 No modification, alteration or waiver of the provisions of this Agreement shall be effective unless in writing and executed by or on behalf of each of the Parties.
14.3 In the event that any clause of this Agreement is held to be invalid by an authority having jurisdiction over this Agreement, that clause may be deleted from this Agreement and the remaining clauses shall continue to be, to the extent that they are unaffected by the deletion, valid and binding on the Parties.
14.4 All notices to be given under this Agreement shall be in writing and may be served upon or delivered to a party at the address stated in this Agreement or at such other address as may have been notified for the purpose or sent by email to the email addresses notified by the respective parties from time to time. Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or if sent by email at 9:00 am on the next working day after transmission, or otherwise at 9:00 am on the second working day after posting.
14.5 No delay, omission or failure by either party to exercise any right or remedy shall operate as a waiver. Any partial exercise of a right or remedy shall not preclude any other or further exercise of any such right of action.
14.6 The Client shall not assign, transfer, subcontract or deal in any other manner with any of its rights and obligations under this Agreement or any Statement of Work without the prior written consent of House Digital. House Digital shall be entitled to use subcontractors to perform any of its obligations under this Agreement [provided that House Digital shall be responsible for the performance of such sub-contractors].
14.7 Nothing in this Agreement is intended for the benefit of any third party, and the parties do not intend that any term of this Agreement should be enforceable by a third party either under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14.8 Neither party shall be in breach of this Agreement or any Statement of Work nor liable for a delay in performing, or failure to perform, any of its obligations under this Agreement or any applicable Statement of Work if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 30 days, the party not affected may terminate this Agreement or any applicable Statement of Work by giving 30 days’ written notice to the other party.
14.9 Nothing in this Agreement or any Statement of Work is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute that any party is the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
14.10 This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Executed signature pages of this Agreement transmitted electronically in Portable Document Format (PDF), or signature pages executed and transmitted electronically via DocuSign, shall be treated as originals, fully binding and with full legal force and effect, and the parties waive any rights they may have to object to such treatment, provided that this treatment shall be without prejudice to the obligation of the parties to exchange original counterparts as quickly as practicable after execution of this agreement if requested by House Digital.
14.11 This Agreement, any Statement of Work and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement, any Statement of Work or their subject matter or formation (including non-contractual disputes or claims).