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The parties agree:


1 Interpretation


1.1 Definitions:


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

"Charges" means the charges payable by the Customer for the supply of the Services by the Supplier, as set out in each Statement of Work:

“Communication Channel” means the method of communication (e.g email, phone or text) by which the End User will conduct the End User Campaign as set out in each Statement of Work.

"Conditions" means these terms and conditions set out in clause 1 (Interpretation) to clause 11 (General) (inclusive);

"Contract" means the contract between the Customer and the Supplier for the supply of the Services in accordance with this Master Services Agreement and any Statement of Work;

"Control" means has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly;

“Controller” as defined in the Data Protection Legislation.

"Data Protection Legislation" means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998;  

“Data Subjects” the individuals whose data is contained within the Deliverables.

"Deliverable(s)" means all data sets, documents and materials prepared by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation data, reports and specifications (including drafts) as further defined in any Statement of Work;

“End User” means the client of the Customer on whose behalf the Deliverables are been obtained by the Customer;

“End User Campaign” means the End User’s marketing or promotional campaign communicated via a specified Communication Channel(s) in respect of which the Deliverables are being provided as further described in a Statement of Work;

"GDPR" means European Union General Data Protection Regulation ((EU) 2016/679);

"Intellectual Property Rights" means patents, rights to inventions, copyright and related rights, trade marks business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, 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;

“Personal Data” as defined in the Data Protection Legislation.

“Processor” as defined in the Data Protection Legislation.

"Services" means the services, including without limitation any Deliverables, to be provided by the Supplier pursuant to the Contract, as set out in more detail in a Statement of Work;

"Services Start Date" means the day on which the Supplier is to start provision of the Services, as set out in each Statement of Work;

“Statement of Work” means the statement of work, agreed in accordance with clause 3, describing the services and any Deliverables to be provided by the Supplier, the timetable for their performance and the related matters listed in the template statement of work set out in Schedule One.

1.2 This Contract is made up of this Master Agreement and each Statement of Work. If there is any conflict or ambiguity between the terms of this Master Agreement and any Statement of Work, this Master Agreement shall take precedence.

1.2.1 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.

1.2.2 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.

1.2.3 A reference to writing or written includes email.


2 Commencement and term


2.1 This agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with clause 9 (Termination), until either party gives to the other party written notice to terminate.

2.2 The Customer may procure any of the Services and Deliverables by agreeing a Statement of Work with the Supplier pursuant to clause 3 (Statements of Work).

2.3 The Supplier shall provide the Services and Deliverables from the date specified in the relevant Statement of Work.

2.4 The Customer may terminate any Statement of Work at any time for convenience by providing notice in writing to the Supplier provided that if the Customer exercises this right then it will be obliged to pay for any leads that it has requested prior to the date of termination which are delivered by the Supplier whether or not such delivery is after the date of such termination notice.
 


3 Statement of Work


3.1 Each Statement of Work shall be agreed in the following manner:

3.1.1 the Customer shall ask the Supplier to provide any or all of the Services and provide the Supplier with as much information as the Supplier reasonably
requests in order to prepare a draft Statement of Work for the Services requested;

3.1.2 following receipt of the information requested from the Customer the Supplier shall, as soon as reasonably practicable provide the Customer with a draft Statement of Work.

3.1.3 if the Supplier provides the Customer with a draft Statement of Work, the Supplier and the Customer shall discuss and agree that draft Statement of Work; and

3.1.4 both parties shall sign the draft Statement of Work when it is agreed.

3.2 Each Statement of Work shall be part of this agreement and shall not form a separate contract to it.
 
3.3          ORDER DETAILS:
Lead / Data Quantity = [] leads per [month]
Lead/ Data Type (fields required)
Lead / Data Targeting
Lead / Data Unique On
Lead / Data Output Format
Lead / Data Delivery Date
Communication Channel = [email] [telephone] [SMS]
Services Start Date = [Date]
Duration of Statement of Work = [] months
Charges: = [INSERT] per Valid Lead – see clause 8 of the Master Services Agreement
Special Terms: = [insert]


 
4 Supply of services

4.1 The Supplier shall supply the Services to the Customer from the Services Start Date in accordance with the Contract.

4.2 In supplying the Services, the Supplier shall:

4.2.1 perform the Services with reasonable care and skill;

4.2.2 perform the Services in accordance with the Contract Details and the applicable Statement of Work;

4.2.3 ensure that the Deliverables are of satisfactory quality and are fit for purpose;

4.2.4 deliver the Services, including all Deliverables, by any delivery date or milestone set out in the applicable Statement of Work.

4.2.5 comply with all applicable laws, statutes, regulations and codes from time to time in force

4.2.6 have in place professional indemnity insurance with a cover limit of at least £5M in aggregate.



5 Customer’s obligations

5.1 The Customer shall provide reasonable co-operation to the Supplier in all matters relating to the Services.



6 Intellectual property

6.1 The Supplier hereby assigns to the Customer (or such third party as the Customer shall nominate) all existing and future intellectual property rights (including, without limitation, patents, copyright, database and related rights) and inventions arising from the Services. The Supplier agrees promptly to execute all documents and do all acts as may, in the opinion of the Customer, be necessary to give effect to this Clause 6.

6.2 The Supplier hereby irrevocably waives all moral rights under the Copyright, Designs and Patents Act 1988 (and all similar rights in other jurisdictions) which it has or will have in any existing or future works and Deliverables.

6.3 The Supplier irrevocably appoints the Customer to be its attorney in its name and on its behalf to execute documents, use the Supplier’s name and do all things which are necessary or desirable for the Customer to obtain for itself or its nominee the full benefit of this clause.



7 Data Protection

7.1 Without prejudice to the Supplier’s obligations pursuant to this clause, both parties will comply with all requirements of the Data Protection Legislation applicable to them. This clause is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.


7.2 The parties acknowledge that for the purposes of the Data Protection Legislation:

7.2.1 the Supplier is a Controller in respect of any Personal Data that forms part of any Deliverable; and

7.2.2 the End User is a Controller in respect of any Personal Data that forms part of any Deliverable;

7.2.3 the Customer is a Processor on behalf of the End User in respect of any Personal Data that forms part of any Deliverable;

7.2.4 the Supplier shall in the course of this Contract share Personal Data with the End User.

7.3 Without prejudice to the generality of clause 7.1, the Supplier undertakes to:

7.3.1 obtain all necessary consents from the Data Subjects in compliance with the Data Protection Legislation to enable the lawful transfer and use of any Personal Data contained within any Deliverable by the Customer, its sub-processors and each End User for the purposes of each End User Campaign and for any other purpose set out in any Statement of Work;

7.3.2 indemnify the Customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Customer (including claims made against the Customer by any End User or Data Subject) arising out of or in connection with any breach of clause 7.3.1.

7.4 The Supplier shall allow the Customer or the Customer's authorised representatives or agents to have access to the Supplier's premises and records at all reasonable times for the purpose of inspecting and taking copies of the Supplier's books and records related to this agreement including for the purpose of confirming the Supplier’s compliance with this clause 7.



8 Charges and payment


8.1 In consideration for the provision of the Services, the Customer shall pay the Supplier the Charges in accordance with this clause 8 and any Statement of Work.

8.2 The Customer shall pay for “Valid Leads” only which are defined as individual pieces of data with an active email address (and/or) live telephone number that meet the campaign criteria as specified in each Statement of Work. Invalid leads (which will be excluded from the Charges) are defined as individual pieces of data that don’t meet such campaign criteria, dedupe against the Customer’s existing database, are classified as hoax/salacious or invalid data (such as hard bounce email addresses or dead telephone numbers).

8.3 All amounts payable by the Customer exclude amounts in respect of value added tax ("VAT"), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.

8.4 The Customer will provide the Supplier with a report by the 15th day of each calendar month of the number of valid leads supplied by the Supplier in the previous calendar (the “Lead Report”).

8.5  The Supplier shall submit an invoice for the Charges in accordance with the Lead Report at any time after receipt of the Lead Report.

8.6  The Customer shall pay each invoice due and submitted to it by the Supplier in accordance with clause 8.5 within 30 days of receipt to a bank account nominated in writing by the Supplier.



9 Termination


9.1 Subject to earlier termination in accordance with the Contract, the Statement of Work will terminate when all Services have been delivered to the Customer by the Supplier.

9.2 Without affecting any other right or remedy available to it, either party to the Contract may terminate it (or any Statement of Work) with immediate effect by giving written notice to the other party if:

9.2.1 the other party commits a material breach of any term of the Contract (or any Statement of Work) which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ten days after being notified in writing to do so. For this purpose any breach whatsoever of clause 7 (Data Protection) by the Supplier shall be treated as an irremediable material breach of this agreement entitling the Customer to immediately terminate this Agreement or any Statement of Work;

9.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

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

9.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.3 Without affecting any other right or remedy available to it, the Customer may terminate the Contract and any Statement of Work with immediate effect by giving written notice to the Supplier if there is a change of control of the Supplier.

9.4 On termination of the Contract, or any Statement of Work, for whatever reason:

9.4.1 the Customer and the End User shall have the right to continue to use the Deliverables as they see fit;

9.4.2 any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and

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


10 Non Solicitation

10.1The Supplier agrees that, during the term of the Contract and for a period of 12 months after this agreement terminates or expires, it will not supply services which are the same as or similar to the Services directly or indirectly to, or solicit any such services from, any End User.


 
11 General


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

11.2 Assignment and other dealings

11.2.1 The Supplier shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Supplier’s prior written consent.

11.2.2 The Customer may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

11.3 Confidentiality

11.3.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3.

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

11.3.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and

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

11.3.3 Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.

11.4 Entire agreement

11.4.1The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances,
warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

11.4.2 Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

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

11.6 Waiver

11.6.1 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

11.6.2 A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

11.7 Severance If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

11.8 Notices

11.8.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

11.8.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

11.8.1.2 sent by email to the address specified in the Contract Details.

11.8.2 Any notice or communication shall be deemed to have been received:

11.8.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and

11.8.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and

11.8.2.3 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.8.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

11.8.3 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.

11.9 Third party rights

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

11.10 Governing law The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.

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