Terms and Conditions

Further Agreed Terms

1. Interpretation

The following definitions and rules of interpretation apply in this agreement.

1.1 Definitions:

Law – any applicable law, regulations or standards relating to the operation of this Agreement including but not limited to the General Data Protection Regulation (GDPR) and Data Protection Act 2018; the Privacy and Electronic Communication Regulations 2003 as amended (PECR); any laws applicable to advertising and marketing and any generally accepted self-regulatory codes of practice, and related guidance or best practice advice.

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

Claimed Transaction – means the Transaction by a New or Returning Customer which (i) was not recorded by the Tracking Code and/or not approved by the Supplier as a Transaction; and (ii) the Publisher can demonstrate to the Supplier’s reasonable satisfaction ought to be have been recorded by the Tracking Code and/or approved by the Supplier as a Transaction.

Code of Conduct –  the Code of Conduct included within Schedule 2 of this Agreement.

Direct Marketing – the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals

Fee – the fee payable to the Publisher as set out in section 13 of the Special Terms

Group –  in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a group is a member of the group.

Intellectual Property –  patents, utility models, rights to inventions, copyright and neighbouring rights and related rights, moral 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,  rights in computer software, database rights, rights  to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and  rights to apply for and be granted, renewals or extensions of, and rights  to claim priority from, such rights and all similar or equivalent rights or  forms of protection which subsist or will subsist now or in the future in  any part of the world.

Advertise – the advertisement of the Promotional Offer to persons who are eligible to redeem or to purchase the Services from the Supplier and AdvertiseAdvertises and Advertised – shall be interpreted accordingly.

Minimum Term – the minimum term of this agreement as set out at section 12 of the Special Terms.

Promotional Code – a code, which enables the New and Returning Customer to redeem a Promotional Offer in order to access the Supplier’s Services

Promotional Offer – the promotional offer as set out at Schedule 1 of this agreement.

Network Partners – the partners approved in writing in advance by the Supplier and used by the Publisher to promote the Offer and for whom the Publisher is entirely responsible to ensure they comply with this Agreement

New Customer – persons that use the Promotional Code and redeem the Promotional Offer by visiting the Supplier’s websites to whom the Supplier has not at any time previously provided the Services and who does not exist on any of the Supplier’s databases of existing members.

Returning Customer – persons that use the Promotional Code and redeem the Promotional Offer by visiting the Supplier’s websites to whom the Supplier has previously provided the Services and who already exists on any of the Supplier’s databases of existing members.

Services – the services provided by the Supplier including providing an online membership redemption page and Promotional Codes, together with any other services offered by the Supplier from time to time and which the Supplier, by express written notice to the Publisher includes within the scope of this agreement.

Special Terms – the special terms agreed between the parties on the Supplier’s standard pro forma.

Start Date – has the meaning given to it in section 11 of the Special Terms.

Supplier’s Statement – has the meaning set out in clause 4.2 of these General Terms and Conditions.

Target Customers – all persons to whom the Promotional offer has been advertised and made available by the Publisher to accept and redeem by the Publisher.

Third Party Tracking Pixel – means the software code of anyone other than the Supplier, which may be used to record any Transaction, only with the written consent of the Supplier.

Tracking Code – means the Supplier’s software code which records any Transaction.

Transaction – means any transaction, lead, click or other event on which a Fee is payable under this Agreement.         

1.2          A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3          A reference to a statute or statutory provision is a reference to it as amended, extended or re- enacted from time to time.

1.4          A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.5         A reference to writing or written includes fax and e-mail.

1.6          Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.7          The Special Terms, Schedules and these General Terms and Conditions each form a part of this agreement. Any reference to this agreement includes the Special Terms, the Schedules and these General Terms and Conditions.  In the event of any conflict between the any of the provisions of the Special Terms or the General Terms and Conditions of this agreement, the provisions of the Special Terms shall prevail.

1.8          References to sections are to the sections of the Special Terms of this agreement, references to paragraphs are to the paragraphs of the Schedules of this agreement and references to clauses are to the clauses of the General Terms and Conditions of this agreement.

2. Commencement and Duration

Subject to clause 10, the Services supplied under this agreement shall be supplied for the Minimum Term and, after that, shall continue until terminated on 30 days’ notice in writing from either party, provided such notice may not be served before the end of the Minimum Term.

3. Advertising Promotional Offer and Code

3.1            The Supplier appoints the Publisher on a non-exclusive basis to advertise the Promotional Offer to all Target Customers and to make the Promotional Codes available to all Target Customers for redemption on the terms of this agreement.

3.2             The Supplier will inform the Publisher of any information relevant to the Promotional Offer which it needs to advertise.  The parties shall agree in writing the format of the Promotion before the agreed start date, which shall forthwith become Schedule 1.

3.3            The Publisher and its Network Partners will comply at all times with the Code of Conduct when advertising the Promotional Offer.

3.4          The Publisher and its Network Partners shall present the Supplier with details of the communication channels and Network Partners it proposes to use to advertise the Promotional Offer, for the Supplier to approve in writing at their own discretion and once approved, specified in Schedule 1. This will include the Supplier issuing any due diligence required to be completed by the Publisher before the activation of this type of activity.

3.5          The Publisher shall:

3.5.1          serve the Supplier faithfully and diligently and not to allow their interests to conflict with their duties under this agreement;

3.5.2         comply with all reasonable and lawful instructions of the Supplier.

3.6          The Publisher shall have no authority, and shall not hold itself out, or permit any person to hold itself out, as being authorised to bind the Supplier in any way, and shall not do any act which might reasonably create the impression that the Publisher is so authorised.

3.7          The Publisher shall not make or enter into any contracts or commitments or incur any liability for or on behalf of the Supplier including for the provision of the Services or the price for them, and shall not negotiate any terms for the provision of the Services with Target Customers.

3.8          The Publisher must not do anything to hold themselves out as being the owner of any Supplier product or do anything to devalue the Supplier’s products or brands.

3.9          The Publisher must disclose to each Target Customer that it is an introduction agent of the Supplier and that it has no authority or ability to negotiate or vary the Services or the terms of the Services or enter into any contract on behalf of the Supplier.

3.10        The Publisher shall not, without the prior written consent of the Supplier:

3.10.1     produce any marketing material for the Promotional Offer or the Services or use a Supplier’s or group company’s brand name, logos or trade marks on such marketing material; or

3.10.2     give any representations, warranties or other promises concerning the Promotional Offer or the Services which are not contained in the Supplier’s marketing material.

Network Partners

3.11 The Supplier will:

3.11.1 specify and approve in writing the appropriate Network Partners to the Publisher for each Campaign as set out within Schedule 1; and

3.11.2 be entitled to prevent any party from acting as a Network Partner and ask the Publisher to assist   in this regard; and

3.11.3 be entitled to procure that Network Partners remove any reference to the Promotional Offer  from Network Partner Websites.

3.12 The Publisher will:

3.12.1 permit Network Partners to market the Promotional Offer, subject to receiving the written consent of the Supplier under clause 3.11.1;

3.12.2 inform Network Partners of any:

3.12.2.1 information relevant to the Promotional Offer;

3.12.2.2 Law applicable to the Promotional Offer;

3.12.2.3 terms and conditions, or other requirements, applicable to the Promotional Offer;

3.12.3 immediately inform the Supplier of any complaints made to the Publisher in respect of any Network Partners.

4. Fee and Payment

Tracking Code

 4.1         The Publisher shall be entitled to a Fee for each New Customer and Returning Customer which will be calculated using the Tracking Code; and the  Supplier is only responsible for paying the Publisher directly and to the supplied invoice address.

4.2         The Supplier is under no obligation to use any Third Party Tracking Pixels.  The Publisher may request use of a Third Party Tracking Pixel, however the Supplier must agree to this in writing, in advance of this being used.  The Supplier gives no warranties or guarantees that any Third Party Tracking Pixels will function in conjunction with the Tracking Code.  The Supplier will not be responsible for any discrepancies in signup figures when a Third Party Tracking Pixel is used.

4.3         The Supplier shall within 14 days from the date of the expiry of the campaign, send to the Publisher a written statement setting out, in respect of the previous month the following:

4.3.1         the aggregate numbers of New Customers and Returning Customers; and

4.3.2         the Fee payable to the Publisher (the “Supplier’s Statement”).

The Supplier’s Statement will be produced following a reconciliation against the Supplier’s internal performance reports to ensure accuracy of any Fees payable.

4.4         The Publisher will not be entitled to any Fee in respect of:

4.4.1         Transactions which were cancelled in accordance with applicable statutory consumer rights of cancellation or terms of business; or

4.4.2         Transactions relating to invalid claim, not last referrer, retailer issue, order not completed; or

4.4.3         Transactions which were generated in breach of any terms and conditions, Law or other requirements specified by the Supplier in relation to the Promotional Offer; or

4.4.4         Transactions generated as a result of a fraud committed by the Publisher and/or a Network Partner.

4.5         In the event the Supplier notifies the Publisher that it has paid the Publisher any Fees in respect of the Transactions set out in clause 4.4 above, the Publisher will repay the Fees immediately to the Supplier.

Deduplication

4.6 Any measures to prevent or reduce the Fees, which are implemented by the Supplier on the basis that the New or Returning Customer also visited the Supplier’s websites not through the Publisher’s or Network Partner’s sales channels or sources of web traffic, are referred to as “Deduplication”.

4.7         At its own discretion, the Supplier may implement Deduplication practices, the details of which will be agreed between the Supplier and Publisher and outlined within Schedule 1..

Claimed Transactions and Discrepancies

4.8         The Supplier will resolve within 75 days any Publisher’s questions regarding Claimed Transactions.

4.9          The Supplier may only decline:

4.9.1       Claimed Transactions which the Supplier can evidence to the Publisher were a result of error, or cancelled in accordance with applicable statutory consumer rights of cancellation or terms of business; or

4.9.2      Claimed Transactions which the Supplier can evidence to the Publisher were generated in breach of any terms and conditions, Law, or other requirements, applied by the Publisher to the Promotional Offer; or

4.9.3      Claimed Transactions which the Supplier can evidence to the Publisher were generated as a result of fraud committed by the Publisher and/or Network Partners.

4.10       The Publisher shall invoice the Supplier for the Fee payable as per the Supplier’s Statement submitted pursuant to clause 4.3, together with any applicable VAT and the due date for payment by such Supplier of such Fee shall be 30 days from date of receipt of invoice.

4.11       All sums payable under this agreement are exclusive of value added tax or other applicable sales tax, which shall be added to the sum in question.

4.12       If any bona fide dispute arises as to the amount of Fee payable by a Supplier to the Publisher the disputing party shall notify the other party of the nature of such dispute in writing as soon as possible and in any event within 7 days of the Publisher receiving the Supplier’s Statement. The parties shall co-operate in good faith to resolve any such dispute as amicably and promptly as possible. If the dispute is not resolved within 30 days of the disputing party notifying the other party of the nature of the dispute, the matter shall be referred to the Supplier’s auditors for settlement and their decision, save in the case of manifest error, shall be final and binding on both parties.

5. Co-operation

5.1             The Publisher must at all times act in good faith towards the Supplier.

5.2            The Supplier shall:

5.2.1         provide the Publisher at all material times with the Promotional Code and material applicable to the Promotional Offer and other information the Publisher reasonably requires to carry out its duties, including marketing information for and details of the Services, and information about the Supplier.

5.2.2        inform the Publisher immediately if the Supplier suspends or ceases to perform the Services;

5.2.3        not be responsible for any costs incurred by the Publisher or any Network Partner unless such costs have been agreed by the Supplier in writing, in advance.

6. Confidentiality 

6.1          Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 6.2.

6.2         Each party may disclose the other party’s confidential information:

6.2.1       to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 6; and

6.2.2       as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

6.3          No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.

6.4          All documents and other records (in whatever form) containing Confidential Information supplied to or acquired by the Publisher from the Supplier shall be returned promptly to such Supplier on termination of this agreement, and no copies shall be kept.

7. Intellectual Property

 7.1          The Publisher acknowledges and agrees that the Supplier and its group companies and/or their licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, this agreement does not grant the Publisher any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.

7.2          Save as set out in clause 7.3, neither party will make any use of the other party’s trade mark, logo or business name or other Intellectual Property Rights under any circumstances without the other party’s prior written approval. Any goodwill arising from the use of a party’s Intellectual Property Rights shall belong to the owner of the Intellectual Property Rights. Either party may, at any time, call for a confirmatory assignment of that goodwill and the other party will immediately execute or procure the execution of it.

7.3          To the extent necessary for the parties to perform their obligations under this agreement, each party grants to the other a non-exclusive, worldwide, fully paid up, licence to use and reproduce its Intellectual Property Rights for use pertaining to the Promotion only during the term of this agreement.

7.4          Each party agrees that it shall not do, cause or authorise to be done, anything which in the other party’s reasonable opinion will or may in any way impair, damage or be detrimental or otherwise adversely affect the reputation or goodwill associated with the other party and its provision of the Services.

7.5          Each party agrees not to use any Intellectual Property Rights owned by the other party in any manner likely to cause harm to the validity of those Intellectual Property Rights concerned, nor shall either party challenge the other party’s Intellectual Property Rights or seek to acquire any rights in the same.

8. Indemnity and Liability

8.1          The Publisher shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses suffered or incurred by it or any member of its group, arising out of or in connection with:

8.1.1       fraud, negligence, breach, failure to perform or delay in the performance of any of its obligations under this agreement by the Publisher or any of its Network Partners or their agents or subcontractors; and

8.1.2       the contravention or alleged contravention by the Publisher or any of its Network Partners or their agents or subcontractors of the provisions of:

(a) clause 6 (Confidentiality);

(b) clause 7 (Intellectual Property Rights); and

(c) clause 16 (Compliance; Security and Data Protection).

8.2          If any third party makes a claim, or notifies an intention to make a claim, against the Supplier which may reasonably be considered likely to give rise to a liability under the indemnity as set out at clause 8.1 (a Claim), the Supplier shall as soon as reasonably practicable, give written notice of the Claim to the Publisher specifying the nature of the Claim in reasonable detail.

8.3          The Supplier disclaims any express or implied warranties, or liability in relation to the Tracking Code.   In any event, the total liability of the Supplier whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to, in respect of all claims (connected or unconnected) the total Fee in the preceding 12 month period, paid by the Supplier to the Publisher and the Supplier excludes all liability for any consequential or indirect loss.

9. Anti-bribery Compliance

9.1          The Publisher shall:

9.1.1       comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);

9.1.2       not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

9.1.3       have and shall maintain in place throughout the term of this agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and clause 9.1.2, and will enforce them where appropriate;

9.1.4       promptly report to a Supplier any request or demand for any undue financial or other advantage of any kind received by the Publisher in connection with the performance of this agreement;

9.1.5       immediately notify Supplier in writing if a foreign public official becomes an officer or employee of the Publisher or acquires a direct or indirect interest in the Publisher and the Publisher warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the Start Date;

9.1.6       within 1 month of the Start Date, and annually thereafter, certify to a Supplier in writing signed by an officer of the Publisher compliance with this clause 9 by the Publisher and all persons associated with it under clause 9.2. the Publisher shall provide such supporting evidence of compliance as such Supplier may reasonably request.

9.2          The Publisher shall ensure that any person associated with the Publisher who is performing services in connection with this Agreement, including its Network Partners, does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Publisher in this Agreement (Relevant Terms) the Publisher shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Supplier for any breach by such persons of any of the Relevant Terms.

9.3          For the purpose of this clause 9, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purpose of this clause 9, a person associated with the Publisher includes any agent, delegate or subcontractor.

10. Termination

10.1        After the expiry of the Minimum Term, either party may terminate this agreement on not less than 30 days’ written notice to the other party.

10.2        Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

10.2.2     the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

10.2.3     the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;

10.2.4     the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

10.2.5     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 (being 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;

10.2.6     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;

10.2.7     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);

10.2.8    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;

10.2.9    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;

10.2.10  a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

10.2.11  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 clause 10.2.4 to clause 10.2.10 (inclusive);

10.2.12  the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

10.2.13  there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).

10.3       For the avoidance of doubt, a breach of clause 3.3, clause 16 (Compliance with Laws and Data Protection) clause 6 (Confidentiality) or clause 7 (Intellectual Property) shall be a material breach of obligations for the purposes of clause 10.2.2.

11. Consequences of Termination

11.1        On termination of this agreement:

11.1.1     the Publisher will, and will ensure that its Network Partners immediately stop Advertising the Promotional Offer and remove all references to the Promotional Offer and the Promotional Code from the communication channels used for Advertising; and

11.1.2     the following clauses shall continue in force: clause 1 (Interpretation), clause 3.8, clause 3.9, clause 6 (Confidentiality), clause 7 (Intellectual Property), clause 8 (Indemnity) and clause 11 to clause 20 (inclusive).

11.2        Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

12. No Partnership or Agency

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

12.2       Each party confirms it is acting on its own behalf and not for the benefit of any other person.

13. Entire Agreement

13.1        The Special Terms, the Schedules and these General Terms and Conditions constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

13.2        Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

13.3        Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

13.4       Nothing in this clause shall limit or exclude any liability for fraud.

14. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

15. Assignment and Other Dealings

The Publisher shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.  The Supplier may assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

16. Compliance; Security and Data Protection

16.1       The Publisher warrants that it and its Network Partners perform their obligations under this Agreement in accordance with the Law and will evidence such compliance on the written request of the Supplier.

16.2       The Publisher agrees to implement and monitor technical and organisational measures in accordance with the requirements of the GDPR; PECR and ISO27001:2013 for itself and its Network Partners.

16.3       The Publisher and its Network Partners will ensure that any direct marketing work requested by the Supplier will be in line with PECR and GDPR and will ensure any consents obtained comply with both PECR and GDPR

16.4       The Supplier will at their discretion complete due diligence before any agreed email campaign to ensure consents comply PECR and GDPR.

16.5       The Publisher and its Network partners ensures in particular that they have implemented the appropriate measures to:

16.5.1    Prevent unauthorised persons from gaining access to data processing systems with which personal data or confidential information is processed or used;

16.5.2    Prevent data processing systems from being used without authorisation;

16.5.3    Ensure that personal data or information cannot be read, copied, modified or removed without authorisation during electronic transmission or transport and that it is impossible to check and establish to which bodies the transfer of personal data by means of data transmission facilities is envisaged;

16.5.4    Ensure that, for commissioned processing of personal data and/or confidential information, the data/information is processed strictly in accordance with the instructions of the Supplier.

16.6       Significant changes of the above technical and organisational measures by the Publisher shall be agreed by the Parties in writing.

16.7       The Publisher agrees that the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the Personal Data/Confidential Information to be protected having regard to the state of the art and the cost of their implementation.

16.8       The Publisher further warrants that the processing of any personal data by itself or its Network Partners has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection and privacy and electronic communication laws and does not violate the relevant provisions.

16.9       The Supplier is entitled to appoint a third-party independent auditor in the possession of the required professional qualifications and bound by a duty of confidentiality, which auditor must be reasonably acceptable to the Publisher, to inspect the Publisher’s compliance with this Agreement. The Supplier’s right to audit shall be subject to giving the Publisher at least (1) weeks prior written notice of any such audit.

16.10      Under this Agreement, the Publisher has the obligation to:

16.10.1   Only act on the written instructions of the Supplier (unless required by law to act without such instructions);

16.10.2   Process the Personal Data/Confidential information only on behalf of the Supplier and in compliance with its instructions;

16.10.3   Ensure that only appropriately trained personnel have access to the Personal Data/Confidential Information;

16.10.4   Notify the Supplier immediately of any monitoring activities and measures undertaken by the relevant authority that supervises the applicable data protection legislation;

16.10.5   Ensure that the Personal Data/Confidential information is not in any way used, manipulated, distributed, copied or processed for any other purposes than for the fulfilment of the contractual obligations as explicitly agreed upon and arising from this Agreement.

16.11       Following an actual or suspected security breach of personal data or confidential information, the Publisher will (within 24 hours) make the following information available to the supplier:

16.11.1    nature of the breach

16.11.2    scale of the breach

16.11.3    perceived risk associated with the breach

17. 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18.  Severance

18.1        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.

18.2        If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall 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.

19. Notices

19.1       A notice given to a party under or in connection with this agreement:

19.1.1     shall be in writing and in English;

19.1.2     shall be signed by or on behalf of the party giving it;

19.1.3     shall be sent to the party for the attention of the contact and to the email address set out in the “Parties” part of this agreement or to the address set out at the “Parties” part of this agreement, or for the attention of such other contact or to such other email address or address as may have otherwise been notified by one party to the other party from time to time, not less than 5 Business Days prior to the sending of the notice in question;19.1.4     shall be sent by a method listed in clause 19.2 below; and

19.1.5     unless proved otherwise is deemed received as set out in clause 19.2 below if prepared and sent in accordance with this clause.

19.2        The table below sets out:

19.2.1     delivery methods for sending a notice to a party under this agreement; and

19.2.2    for each delivery method, the corresponding delivery date and time when delivery of the notice is deemed to have taken place provided that all other requirements in this clause have been satisfied and subject to the provisions in clause 19.3 below:

Delivery by hand – On signature of a delivery receipt or at the time the notice is left at the address

Pre-paid first class post or other next working day delivery service providing proof of postage – 9.00 am on the second Business Day after posting

Pre-paid airmail providing proof  of postage – 9.00 am on the fifth Business Day after posting 

Email – At the time of transmission

19.3       For the purpose of clause 19.2 above and calculating deemed receipt:

19.3.1    all references to time are to local time in the place of deemed receipt; and

19.3.2    if deemed receipt would occur in the place of deemed receipt on a Saturday or Sunday or a public holiday when banks are not open for business, deemed receipt is deemed to take place at 9.00 am on the day when business next starts in the place of receipt.

19.4       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.

20. Third Party Rights

No one other than a party to this agreement shall have any right to enforce any of its terms.

21. Force Majeure

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from 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. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 7 days’ written notice to the affected party.

22. Conflict

If there is an inconsistency between any of the provisions of the Special Terms or the General Terms and Conditions of this agreement, the provisions of the Special Terms shall prevail.

23. Governing Law and Jurisdiction

23.1        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.

23.2        Each party 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 disputes or claims).