AGENT3 GROUP TERMS AND CONDITIONS (APAC)

This version of these terms and conditions is dated: 15 November 2023. Previous terms and conditions can be found here.

1. DEFINITIONS

1.1 The following definitions and rules of interpretation apply in this Agreement:

“Affiliate” means in respect of a party to this Agreement, any legal entity which controls, is controlled by or is under common control with that party, where “control” has the meaning given to it in Section 50AA of the Corporations  Act 2001(Cth) ;

“Agency” means the agency specified in the relevant Scope of Work;

“Agency Materials” means those Materials specifically created by the Agency for the purposes of the Services by or on behalf of the Agency (including any Materials adapted, modified or derived from the Client Materials) and which may be incorporated into Deliverables during the Term;

“Agency Proprietary Materials” means software (including all programming code in object and source code form) methodology, know-how and processes and Materials, in relation to which the Intellectual Property Rights are owned by (or licensed to) the Agency and which are: (i) in existence prior to the date on which it is intended to use them in connection with the Services; or (ii) created by or for the Agency outside of the Services and which are intended to be reused across its business. If the Services include demand generation services, ‘Agency Proprietary Materials’ shall include any separately consented leads, lists or contact data compiled or collected by Agency on its own account, whether or not in connection with the Services;

“Agreement” shall have the meaning given in clause 2.1;

“Associates” means a party’s employees, officers, agents, sub-contractors or authorised representatives;

“Business Day” means a day that is not a Saturday or a Sunday or a public holiday or a bank holiday in Sydney, New South Wales, Australia;

“Campaign Specifications” means the campaign specifications set out at Schedule 2, as may be expressly varied in the Scope of Work;

“Client’ means the client specified in the relevant Scope of Work;

Client Personal Data” shall have the meaning set out at Schedule 1;

“Client Materials” means any Client Personal Data, data, client equipment, computer systems, software, documents, Intellectual Property Rights and any other Materials or information that are provided to the Agency and/or its Associates by or on behalf of the Client;

“Commencement Date” means the date set out in the Scope of Work;

“Completion Date” means the date set out in the Scope of Work or otherwise the date of completion of the Services; “Data Controller” (or “Controller”), “Data Processor” (or “Processor’), “Data Subject”, “Personal Data”, “Processing” all have the meaning given to those terms in the Data Protection Legislation (and related terms such as ‘process’ have corresponding meanings);

  • “Data Protection Legislation” means the following, as amended, extended, re-enacted, or replaced from time to time:
  • (a) UK Data Protection Act 2018 and the UK GDPR;
  • (b) EC Regulation 2016/679 of the European Parliament and of the Council of the 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as applicable as of 25 May 2018, as may be amended from time to time (the “GDPR”);
  • (с) EC Directive 2002/58/EC on Privacy and Electronic Communications;
  • (d) all local laws or regulations implementing or supplementing the EU legislation mentioned in (b)above (including the UK Privacy and Electronic Communications Regulations 2003); and
  • (e) all codes of practice and guidance issued by national supervisory authorities, regulators or EU or UK institutions relating to the laws, regulations, UK legislation and EU legislation mentioned in (a)–(d) above;

“Deliverables” means any advertising, data, creative and other deliverables which are to be provided by the Agency as specified in the Scope of Work, including Agency Materials, Third Party Materials and Agency Proprietary Materials where applicable;

“Expenses” means any expenses agreed between the parties in writing;

“Fees” means the Agency’s fees for the Services as set out in the Scope of Work or otherwise agreed in writing;

“General Terms” means these terms and conditions including its Schedules;

  • “Intellectual Property Rights” or “IPRs” means the following rights, wherever in the world enforceable, including all reversions and renewals and all applications for registration:
    1. any patents or patent applications; 
    2. any trade marks (whether or not registered); 
    3. inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; 
    4. copyright or design rights (whether registered or unregistered); 
    5. database rights;
    6. performer’s and author’s  rights as described in Part IX of the Copyright  Act 1968 and any similar rights of performer anywhere in the world; 
    7. any goodwill in any trade or service name, trading style or get-up; and 
    8. any and all other intellectual or proprietary rights;
    any patents or patent applications; any trade marks (whether or not registered); inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; copyright or design rights (whether registered or unregistered); database rights;performer’s and author’s  rights as described in Part IX of the Copyright  Act 1968 and any similar rights of performer anywhere in the world; any goodwill in any trade or service name, trading style or get-up; and any and all other intellectual or proprietary rights;

“Materials” means any artwork, copy, models, designs, photographs, commercial, feature film, character, music, voice over, sound recording, performance, book, painting, logo, computer software or any other material protected by Intellectual Property Rights;

“Scope of Work” means the scope of work document or similar document agreed and signed by both parties from time to time containing a description of the relevant Services and/or Deliverables and incorporating these General Terms;

“Services” means the services to be provided by the Agency under this Agreement, including where relevant, the provision of any Deliverables, as set out in the Scope of Work;

Territory means the territory of Australia, unless expressly specified otherwise in the applicable Scope of Work.  Publication and marketing on globally accessible mediums such as the internet shall not mean that the Territory is deemed to be world-wide;

“Term” has the meaning given in clause 3.1;

“Third Party Contracts” has the meaning given in clause 7.1;

“Third Party Costs” means any third party costs incurred by the Agency on behalf of the Client in performing the Services, subject to the Client approving all such costs in writing;

“Third Party Materials” means those Materials created by a third party and included in any Deliverables;

“GST” means Goods and Service Tax or any other equivalent tax chargeable in Australia.

  • Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
  • A ‘person’ includes a natural person, or corporate or unincorporated body (whether or not having separate legal personality). 
  • Where the context so requires, words in the singular shall include the plural and vice versa, and words denoting one gender shall include all genders. 
  • A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and includes any subordinate legislation in force made under it.
  • 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.
  • Except where stated otherwise, a reference to ‘writing’ or ‘written’ does not include email or fax. 
2. APPOINTMENT & SCOPES OF WORK
  • The parties will enter into a Scope of Work for the Services (including any Deliverables) to be provided by Agency, and each Scope of Work will set out the precise nature of the Services and (if applicable) Deliverables to be provided. Once a Scope of Work is agreed and signed by the parties, a contract between the parties shall come into existence on the terms and conditions of the Scope of Work and these General Terms (“Agreement”). 
  • The Agency shall, subject to the Client’s compliance with the terms of this Agreement, supply the Deliverables during the Term, in the Territoryand, if the Services include demand generation services, in accordance with the Campaign Specifications.
  • Any dates specified in the Scope of Work for delivery of Services shall be estimates only and time shall not be of the essence in this Agreement. 
  • No modification or variation of the Agreement shall be valid unless it is in writing and signed by each of the parties to this Agreement.
  • The Agency acts in all its contracts with third parties with regard to the provision of Services as a principal at law.
  • If, in relation to any given Scope of Work, there is a conflict between the express terms in the Scope of Work and the terms of these General Terms, then to the extent of the conflict the terms of the Scope of Work will take precedence.  
  • Subject to clause 14.4(a) the Client may request the Agency to cancel any Scope of Work or part thereof, including any plans, schedules or work in progress on no less than three months’ notice. The Agency will take all reasonable steps to comply with any such request provided that the Agency is able to do so within its contractual obligations to suppliers.   
3. TERM
  • This Agreement shall commence on the Commencement Date and, unless terminated earlier in accordance with clause 14 or any termination provisions in the Statement of Work, shall continue until the Completion Date (‘Term’).
4 .AGENCY'S OBLIGATIONS & WARRANTIES
  • The Agency warrants and undertakes that:
  • it has full power and authority to enter into this Agreement; 
  • it shall perform the Services with reasonable skill and care, using suitably qualified personnel, to a standard no less than that to be reasonably expected of a competent agency of similar size and resources;
  • subject to clause 4.3(d), the use by the Client of any final approved Deliverables (excluding any IPRs in any Client Materials incorporated in the Deliverables) will not, when used in accordance with this Agreement and for the purposes set out in the Scope of Work infringe the copyright in Australia of any third party.
  • Save to the extent expressly agreed in a Scope of Work, the relationship between the parties is non-exclusive and the Agency shall therefore be entitled to provide any services or deliverables the same as, or similar to the Services to any third party.
  • Subject to clause 11.2, the Client releases the Agency from any liability under or in connection with this Agreement for:
  • any failure to generate media coverage or public interest for the Client, any failure or delay in publication or transmission in any media, or any third-party error in publication, as these are ultimately out of the Agency’s control, and the Client acknowledges that payment of the Fees, Third Party Costs and Expenses are not conditional upon such; and/or
  • any loss or damages arising as a result of any information or materials supplied or approved by the Client; and/or 
  • any loss or damages arising from the withdrawal or alteration of any third-party product or service; and/or
  • the Deliverables infringing third party Intellectual Property Rights or breaching other laws, where the Agency had previously notified the Client of a specific risk that the Deliverables infringed third party Intellectual Property Rights or breached laws and the Agency had obtained the prior approval of the Client to use such Deliverables notwithstanding such notified risk;

and Client hereby indemnifies the Agency against any losses incurred by the Agency to the extent that such losses arise as a result of Client’s breach of clauses 4.3(b) and 4.3(d).

5. CLIENT'S OBLIGATIONS & WARRANTIES

5.1 The Client represents and warrants that: 

  • it has full power and authority to enter into this Agreement;
  • the Client Materials will not, when used in accordance with this Agreement and any written instructions given by the Client, infringe any third party Intellectual Property Rights;
  • the Client Materials will comply with all applicable laws and regulations; 
  • the Client Materials are accurate and complete; and
  • it is the beneficial owner of, or is entitled to provide the Agency with, the Client Materials.

5.2 The Client undertakes to:

  • carry out all of its obligations under this Agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, Agency shall be entitled to adjust any agreed timetable or delivery schedule as reasonably necessary;
  • provide the Agency with full and clear instructions as to its requirement for the Services and all information, materials and assistance required for the proper performance of the Services; 
  • promptly supply to the Agency (at no charge), in a form meeting the Agency’s reasonable requirements (such as size or file format), any Client Materials reasonably required by the Agency or otherwise necessary to provide the Services and shall ensure that it has all rights and licences in place to enable use by the Agency of all Client Materials;
  • comply with all applicable laws and regulations with respect to its activities under this Agreement;
  • use the Services and Deliverables only for the purposes for which they were provided, and not modify or alter any material or information provided by the Agency without the Agency’s written consent;
  • keep the Agency informed of any matters related to the Client which will, or could, have an impact on the Agency’s performance of the Services; 
  • if applicable, keep and maintain the Agency's equipment in good condition and not dispose of or use such other than in accordance with the Agency's written instructions;
  • promptly inform the Agency if the Client considers that any Services, Deliverables or materials provided to the Client by the Agency for approval are false or misleading or in any way contrary to law or applicable advertising regulation; and
  • ensure that the Client’s other suppliers, contractors and agents cooperate with the Agency as reasonably necessary to enable the Agency to perform the Services.
  • If the Client does not fulfil its obligations under or in connection with this Agreement (including its payment obligations), then to the extent that such failure prevents the Agency from performing any Services in accordance with this Agreement, the Agency will be relieved of its obligations to the Client, and the Agency shall not be liable for any losses, costs or expenses incurred by the Client as a result of any such failure.
6. FEES

6.1 In consideration of the provision of the Services by the Agency, the Client shall pay the Fees to the Agency together with any Third Party Costs and Expenses.

6.1 If it is agreed that work shall be undertaken by the Agency outside of the Scope of Work, the Agency will charge for such work by time spent and in accordance with the hourly rates listed in the Agency’s prevailing rate card as may be communicated to the Client from time to time.

6.2 Unless set out otherwise in the Scope of Work, the Fees and (if applicable) the Third Party Costs and Expenses shall be invoiced to the Client monthly in advance. Where applicable GST will be charged to the Client at the prevailing rate.

6.3 Unless set out otherwise in the Scope of Work, the Client shall pay the Agency the Fees and (if applicable) Third Party Costs and Expenses in full and in cleared funds within 30 days of the date of each invoice.

6.4 Where the Client requires invoices to be submitted with a purchase order number or similar identifier, the Client will provide that number or identifier no later than five working days following the date of this Agreement, and the Client’s failure to provide or delay in providing that number or identifier will not entitle the Client to withhold any payment. 

6.5 In the event of any amendment to the Scope of Work by the Client (as agreed between the parties):

  • (a) the Fees payable to the Agency in respect of the amended Services shall not decrease below the level of Fees that would have been payable had the Services not been amended, save with the prior written approval of the Agency; and
  • (b) the Client shall reimburse the Agency for any Fees, Third Party Costs and Expenses to which the Agency is committed as a result of the amendment, including but not limited to any cancellation charges imposed by third parties.

6.6 Without prejudice to any other right or remedy that it may have, the Agency may charge interest on any overdue sum from the due date for payment at an annual rate of 4% above the base lending rate as determined by the Reserve Bank of Australia from time to time, accruing daily from the due date for payment until the date on which the Agency receives payment together with all accrued interest. Without prejudice to any other right or remedy that it may have, the Agency may also without liability to the Client suspend the Services until payment for overdue sums has been made in full (during which period, for the avoidance of doubt, the Fees will remain payable in full).

6.7 If any payment of the Fees, Third Party Costs or Expenses are subject to tax (whether by way of direct assessment or withholding at its source), the Agency shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to the Agency of the Fees, Third Party Costs and Expenses after tax in respect of the payment is the same as it would have been were the payment not subject to such tax.

6.8 If the Agency is required to purchase anything other than in Australian Dollars(“AUD”), it shall charge the Client at the exchange rate (which shall be the mid-point rate as quoted in the following day’s Financial Times) in operation on the date on which the Agency makes the purchase. If the Agency is required to invoice the Client other than in AUD, the amounts shall be calculated in AUD, and shall be charged to the Client based on the exchange-rate in operation on the date on which the Agency issues the invoice (which shall be the mid-point rate as quoted in the following day’s Financial Times), unless set out otherwise in the Scope of Work.

6.9 The Agency will normally invoice the Client in respect of Third Party Costs monthly in advance and the Client will pay the invoice within 30 days.  Where suppliers require payment in advance or at various stages of a project, or in circumstances where the Agency is unable to obtain normal credit terms at short notice, the Client shall pay the Agency’s invoices in respect of such costs immediately upon presentation.  The Agency shall not be obliged to make any material financial commitment to any third party on the Client’s behalf until it has been put in cleared funds by the Client, and shall not be responsible for any delays to the Services in the event of the Client’s delay or failure to remit such funds promptly. 

6.10 Where a surcharge is levied by a supplier against the Agency due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to the Agency the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount. 

6.11 Subject to clause 6.6, each party shall pay all monies which are payable by it to the other without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party.

6.12 The terms of remuneration set out in this Agreement do not cover: 

  • (a) the performance of services which are outside of any Scope of Work; or 
  • (b) the performance of services outside the Territory;

if any such services are required, the terms relating to their provision together with the applicable fees will be agreed in writing by the parties.

6.13 The Client will have 14 days from the date of invoice to dispute any invoiced amount by notice to Agency.  Any such dispute must be raised in good faith and include clearly-stated reasons based on specific terms of this Agreement. If Agency does not receive such a notice within that 14 day period, the invoice will be deemed undisputed.

6.14 Fees may be increased by the Agency in line with the Consumer Price Index on each anniversary of the Commencement Date. Agency shall give the Client not less than 3 months prior notice in writing of the proposed changes.

7. THIRD PARTY CONTRACTS

7.1 The Agency enters into contracts with third party suppliers in respect of Services in accordance with such suppliers’ standard or individual conditions and contracts and/or end user licence agreements (“Third Party Contracts”).

7.2 Provided that the Agency has referenced the relevant Third Party Contracts in the Scope of Work or otherwise notified the Client of any significant restrictions or contract terms contained in such Third Party Contracts: 

  • (a) the Client hereby acknowledges that its right to use or otherwise benefit from any Services or deliverables acquired under such Third Party Contracts shall be as set out in such Third Party Contracts; 
  • (b) the Client shall comply with the terms of the Third Party Contracts;
  • (с) any charges or liabilities (to the extent caused by an act or omission of the Client or its affiliates or any third party acting for or on its behalf) for which the Agency is liable under such Third Party Contracts (including cancellation payments) shall be the responsibility of the Client; and 
  • (d) the Client hereby indemnifies, and keeps indemnified, the Agency against any losses, costs and expenses caused by any act or omission of the Client which puts the Agency in breach of any such Third Party Contracts. 

7.3 The Agency shall provide the Client with a copy of any relevant Third Party Contract if requested to do so and if authorised by the relevant third party.  

7.4 The Agency reserves the right, without liability or prejudice to its other rights, to immediately suspend or terminate the Client's right to receive the Services in the event that the Client breaches, or the Agency suspects that the Client is in breach of, any terms of the Third Party Contracts. 

7.5 The Agency shall not need to obtain the Client’s approval before commissioning services from any of its Affiliates.   

8. APPROVALS

8.1 For the purposes of this Agreement, any reference to ‘written approval’ shall include letter, e-mail, purchase order, or the Client’s signature on a particular document that has been submitted for approval.

8.2 The Agency will seek the Client’s written approval for all draft proofs, copy, layouts, photographs, artwork, articles or announcements, or for any other material that it is to make public on the Client’s behalf, and will not subsequently seek to publish any of the above until it has obtained such written approval.

8.3 The Agency may rely on written approval from any employee of the Client, unless the Client has previously provided written notice that a particular employee is not authorised to give valid written approval. 

8.4 The Client’s written approval of media schedules and estimates will be the Agency’s authority to make reservations and contracts for space, time and other facilities under Third Party Contracts.

8.5 The Agency will advise the Client of any changes in the estimated cost of media or any other material changes to anything previously approved by the Client.

8.6 The Client will not give written approval for anything which it knows, or ought reasonably to know, contains inaccurate, unlawful or defamatory material. The Client undertakes to notify the Agency immediately if it believes that any statement in a document submitted by the Agency to the Client for written approval is misleading or could give rise to any claim or action against the Agency, whether for defamation, infringement of any right, or otherwise.

8.7 The Client hereby indemnifies, and keeps indemnified, the Agency against any costs, any claims or proceedings, or any demands, arising out of or in connection with anything approved in writing by the Client.

8.8 In the event of any delay or failure of the Client giving approvals (or disapprovals) requested under or in connection with this Agreement, the Agency will not be liable for any resulting delays or adverse impact caused to the delivery of any Services. 

9. INTELLECTUAL PROPERTY RIGHTS

9.1 The Agency acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services) shall remain vested in the Client or its licensors. The Client hereby grants to the Agency a non-exclusive licence during the Term to use the Client Materials solely for the purposes of providing the Services

9.2 Subject to clauses 9.3 and 9.4, the Agency hereby assigns to the Client by way of present and future assignment of present and future copyright, with full title guarantee, such of the Intellectual Property Rights in the Agency Materials as may be owned by the Agency and capable of assignment together with the right to sue for damages for past infringement provided all obligations of the Client arising from this agreement (including those relating to payment and the period of notice) have been met. The Agency shall also waive any moral rights in Agency Material.

9.3 All Intellectual Property Rights in the Agency Proprietary Materials shall be owned by and remain the property of the Agency. Subject to the Agency receiving payment of all Fees, the Agency hereby grants to the Client a perpetual, irrevocable, non-exclusive, assignable, royalty-free licence to use such Agency Proprietary Materials to the extent that is necessary for the Client to receive the benefit of the Services and the Deliverables strictly for the purposes and in the Territory for which they were originally intended to be used, as set out in this Agreement or the Scope of Work

9.4 In the event that any Third Party Material is incorporated in the Deliverables, the Agency shall, at the Client’s cost, procure for the Client an assignment or licence of such usage rights in Third Party Material, subject to the Client’s prior Written Approval of the terms of such use.  In the event that the Client continues to use such Third Party Material beyond any specified licence term or uses (or authorises others to use) the Third Party Material outside of the scope of the licence or its restrictions, the Client will be responsible and liable for any fees, charges, interest or penalties payable to the licensor and shall indemnify the Agency against any loss, damages, costs or compensation in respect of infringement or other claims by the licensor or any other third party.

9.5 The Agency agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the Deliverables, and shall not do or fail to do any act which would or might prejudice the Client’s rights under this clause 9.

9.6 Notwithstanding any of the above and save as otherwise expressly provided for in the Scope of Work, the Agency shall: 

  • (a) be able during and after the Term to use any Deliverables which have been broadcast, published, distributed or otherwise made available to the public, and the Client’s name and logo for the purposes of promoting its work and its business including on the Agency’s website, in credentials pitches and in its showreel.  Any other use by the Agency shall be subject to the Client’s prior approval; and 
  • (b) retain all know how obtained in connection with the Services.

9.7 During the Term, if the Agency is asked to take part in a competitive pitch or other similar process for the Client, then notwithstanding any of the previous provisions of this clause 9, the Agency shall retain ownership of all Intellectual Property Rights in any Materials forming part of the pitch process, save to the extent that the Agency is successful in such pitch and the parties agree that such Materials will be used in accordance with Services to be provided under the Scope of Work.

9.8 For the avoidance of doubt, the Agency shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client and/or its Associates.

10. CONFIDENTIALITY 

10.1 Each of the parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).

10.2 Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential.

10.2 Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential.

  • (a) at the time of receipt by the recipient is in the public domain;
  • (b) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
  • (с) is lawfully received by the recipient from a third party on an unrestricted basis; and/or
  • (d) is already known to the recipient before receipt hereunder.

10.4 Each of the parties undertakes to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure. Neither party shall at any time, whether during the Term or at any time thereafter, without the prior written approval of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement.  

10.5 Each of the parties undertakes to disclose the other party’s Confidential Information only to those of its Associates to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement.

10.6 The Client acknowledges that nothing in this Agreement shall affect the Agency’s right to use as it sees fit any general intelligence gained by the Agency in the course of its appointment. 

10.7 Neither party shall be in breach of this clause 10 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that, to the extent practicable and permissible, the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same. 

10.8 The terms of and obligations imposed by this clause 10 shall survive the termination of this Agreement for any reason.

11 .LIMITATION OF LIABILITY 

11.1 Subject to clause 11.2, the Agency’s maximum aggregate liability under or in connection with this Agreement (including all Scopes of Work) whether in contract, tort (including negligence) or otherwise, but excluding under any indemnity, shall in no circumstances exceed the lower of (i) AUD 1,000,000; and (ii) the Fees paid or payable by the Client to the Agency in the 12 month period preceding any event giving rise to liability.

11.2 Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.

11.3 Subject to clause 11.2, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement (and including for the avoidance of doubt any indemnity contained in this Agreement) for:

  • (a) any loss (whether direct, indirect or consequential) of profits, sales or business, agreements or contracts, anticipated savings or goodwill;
  • (b) loss of use or corruption of software, data or information; or
  • (с) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

11.4 Where one party (“Indemnifying Party“) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under this Agreement, the Indemnified Party shall comply with the following process in the event that a third party claim arises: 

11.4 Where one party (“Indemnifying Party“) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under this Agreement, the Indemnified Party shall comply with the following process in the event that a third party claim arises: 

  • (a) the Indemnified Party must promptly notify the Indemnifying Party in writing of such claim; 
  • (b) the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party;
  • (с) the Indemnified Party must give the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence of the claim; 
  • (d) the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such claim as the Indemnifying Party may reasonably require at the Indemnifying Party’s cost and expense; and 
  • (e) if within ninety (90) days after the Indemnifying Party’s receipt of notice of any such claim, the Indemnifying Party fails to take action to defend or settle such claim, the Indemnified Party may at the Indemnifying Party’s expense undertake the defence, compromise or settlement of the claim as it sees fit.  

11.5 Save as expressly set out in this agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.

11.6 The Agency shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Agency by the Client in connection with the Services, or any actions taken by the Agency at the Clients direction.

12. DATA PROTECTION

12.1 Each of the Client and the Agency will, in performing this Agreement, comply with the Data Protection Legislation applicable to it. 

12.2 In the course of providing the Services, Agency may process Personal Data. If in the course of providing the Services, the Agency (acting as a Processor) processes Personal Data on behalf of the Client, then the data processing agreement set out in Schedule 1 will apply to the Processing concerned.  

12.3 Agency may also, in the course of providing the Services, process certain Personal Data as a Controller (rather than as the Client’s Processor). Where that is the case:  

  • (a) Schedule 1 shall not apply to such Personal Data when processed by the Agency; and
  • (b) the Client is not responsible for Agency’s processing of that Personal Data, it being for Agency to ensure that it does so in accordance with the Data Protection Legislation.
13. ANTI-BRIBERY AND ANTI-SLAVERY

13.1 Both parties:

  • (a) shall comply with the Bribery Act 2010 and any guidance issued by any governmental department relating to such legislation (“Bribery Act”);
  • (b) shall not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the Bribery Act 
  • (с) shall maintain in place throughout the Term (and enforce where appropriate) its own policies and procedures to ensure compliance with the Bribery Act;
  • (d) shall promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement; and
  • (e) shall ensure that it imposes written terms on any sub-contractor connected with the matters arising under this Agreement which are at least equivalent to those set out in in this clause.

Each party shall comply, and procure that all its employees, contractors, agents and representatives comply, with Anti-Slavery Law, as relevant to the provision and receipt of the Services and the activities of the parties under this Agreement. Each party shall use reasonable endeavours on a continuing basis to ensure that Slavery is not taking place in its supply chains. For the purpose of this clause: “Anti-Slavery Law” means all applicable laws relating to the prevention, prohibition and/or outlawing of Slavery in the Territory or any other jurisdiction relevant to the performance of this Agreement, including the Modern Slavery Act 2015; and “Slavery” means all forms of Modern Slavery, human trafficking, forced labour, child labour, involuntary servitude and debt bondage. 

14. TERMINATION 

14.1 Without prejudice to any other rights or remedies which either party may have, either party may terminate this Agreement for convenience by providing the other party with at least 90 days’ written notice.

14.2 Without prejudice to any other rights or remedies which either party may have, either party may terminate this Agreement immediately on giving notice to the other if the other party:

  • (a) fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; 
  • (b) commits a material breach of this Agreement and such breach is not capable of remedy;
  • (с) commits a material breach of this Agreement that is capable of remedy but  fails to remedy it within 30 days of being notified in writing of the breach; 
  • (d) suspends (or threatens to suspend) payment of its debts or the continuation of all or a substantial part of its business, is unable or deemed unable to pay its debts as they fall due, begins negotiations with any class of its creditors with a view to rescheduling any of its debts, is the subject of a court order for winding-up, has a receiver appointed over its assets (or entitles any person to appoint one), or enters into any compromise or arrangement with its creditors or is the subject of a notice, resolution or order for or in connection with its winding-up (other than for the sole purpose of a solvent amalgamation or solvent reconstruction); or
  • (e) 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 those outlined in clause 14.3(d)
  • (f) if there is a change of control of the Client (where “control” has the meaning given to it in Section 50AAof the Corporations Act 2001 (Cth)), and the person gaining control of the Client is, or controls, a direct competitor of Agency. 

14.3 Without prejudice to any other rights or remedies which Agency may have, Agency may terminate this Agreement immediately on giving notice to the Client if the Client has not paid an invoice by its due date for payment, Agency has sent the Client a reminder to pay the relevant invoice (email sufficient) and the invoice remains unpaid a further 7 days after sending that reminder.

14.4 On termination or expiry of this Agreement for any reason: 

  • (a) the Client shall immediately pay the Agency for all the Agency's outstanding unpaid invoices, and, in respect of Services performed and Expenses and costs incurred but not yet invoiced, or any cancellation charges, the Agency may submit invoices, which shall be payable immediately on receipt;
  • (b) subject to clause 14.4(e), on request, each party shall return all the other party’s materials, equipment and other property; and
  • (с) the accrued rights and liabilities of the parties as at termination or expiry shall not be affected.
  • (d) all licences granted under this agreement shall immediately terminate; and
  • (e) Agency may destroy or otherwise dispose of any of the Client’s materials, equipment and other property in Agency’s possession unless Agency receives, no later than 60 days after the effective date of the termination or expiry of this Agreement, a written request for the delivery to the Client of such of the Client’s materials, equipment and other property in Agency’s possession. The Client shall pay all reasonable expenses incurred by Agency in returning or disposing such materials, equipment and other property.

14.5 Provisions of this Agreement which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination shall remain in full force and effect notwithstanding termination of this Agreement. Notwithstanding the generality of the foregoing, 10, 11, 12, 14 and 20 shall survive and continue to have full force and effect following termination.  

15. NON-SOLICITATION

15.1 During this Agreement and for 12 months after its termination, Client shall not, without the Agency’s written consent, solicit or entice, or attempt to solicit or entice (or encourage a third party to solicit or entice), any person who, at any point in either the preceding six months or the six months before termination (as applicable), was employed or engaged by the Agency in the provision or receipt of the Services other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the Agency.

15.2 If the Client breaches clause 15.1 above the Client shall immediately pay to the Agency a sum representing 30% of the gross annual salary of the person recruited (calculated in relation to the salary that the employee was earning while employed by the Agency). If, for reasons of confidentiality, the Agency requires the employee not to work during the notice period, the Client will additionally pay the Agency a sum representing the salary payable in respect of the unfulfilled portion of the notice period.

15.3 The parties confirm that the sums referred to in clause 15.2 are reasonable and proportionate to protect each party’s legitimate interest in ensuring each party’s performance of the Agreement and its strict compliance with clause 15.1.

16. FORCE MAJEURE

16.1 A party shall not be in breach of this Agreement, or be liable for any failure or delay in performance of any obligations under this Agreement (except in the case of a failure to pay), where such failure or delay arises or is attributable to acts, events, omissions or accidents beyond its reasonable control (‘Force Majeure’), including but not limited to fire, accidental damage, natural disaster, war, terrorist attack, riots, failure of machinery, computers or vehicles, industrial action, non-performance by suppliers or subcontractors (excluding companies in the same group as the party seeking to rely on this clause), or interruption or failure of utility service. 

16.2 A party subject to Force Majeure shall not be in breach of this Agreement provided it could not have avoided the effect of Force Majeure by taking precautions which it ought reasonably to have taken, and provided it promptly notifies the other party of the existence and nature of the Force Majeure, and uses reasonable endeavours to mitigate the effect of Force Majeure.

16.3 If Force Majeure continues for more than 30 consecutive days, either party may terminate this Agreement immediately by giving written notice to the other party. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring before such termination. 

17. NOTICES

17.1 A notice (other than a notice in any legal proceedings) given by one party to the other under this Agreement will be properly served if it is in English and sent to the appropriate address noted below.

17.2 The following table sets out methods by which a notice may be sent and, if sent by that method, the corresponding deemed delivery date and time:

17.3 For the purpose of this clause and calculating deemed receipt all references to time are to local time in the place of deemed receipt.

17.3 For the purpose of this clause and calculating deemed receipt all references to time are to local time in the place of deemed receipt.

17.4 The addresses for service of notice to the Client are as set out in the Scope of Work, and in the case of notices to the Agency to the registered office address, with a copy to: 
Address: Agent3 Pty Ltd
For the attention of: Roger Marshall
Level 3, 10-14 Waterloo Street, Surry Hills NSW 2010

17.5 This clause 17 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.

18. ASSIGNMENT AND SUBCONTRACTING 

18.1 The Agency shall be entitled to sub-contract its performance of the Services provided that any sub-contracting shall not relieve the Agency from its obligations to the Client under this Agreement 

18.2 Subject to clause 18.1, neither party may assign, transfer or charge or otherwise dispose of this Agreement or any of its rights or obligations arising hereunder without the prior written approval of the other party. The Agency is, however, entitled to perform any Services under this Agreement through any Affiliate.

19. MISCELLANEOUS

19.1 The Agency may update this Agreement and/or the Services for legal or regulatory reasons, or to reflect changes in its services or business practices. Subject to the foregoing, no variation of the Scope of Work shall be valid unless it is in writing and signed by a duly authorised officer of each of the parties. The Agency shall provide notice of any significant changes to these General Terms in accordance with clause 17 above. 

19.2 A party’s failure to exercise, or delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of such, or preclude any further exercise of that or any other right or remedy. 

19.3 If any provision or part-provision of this Agreement is found to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions and part-provisions of the Agreement shall not be affected.

19.4 A person who is not a party to this Agreement shall have no rights under The Contracts Act, 1981(Cth) or under any applicable law of Australia to enforce any terms of this Agreement.

19.5 If any dispute arises under or in connection with this Agreement, the parties will first attempt in good faith to settle such through negotiation rather than through legal proceedings. If the dispute is not resolved within 21 days of either party’s attempt to instigate such negotiations, it may be settled by the courts of competent jurisdiction under this Agreement. 

19.6 Nothing in this Agreement shall restrict or exclude the right of either party to seek injunctive relief against the other party.

19.7 This Agreement, and any documents annexed to it and signed or initialled by the parties, constitutes the entire agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject-matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance, undertaking or warranty, whether negligently or innocently made (‘Representation’), of any person (whether a party to this Agreement or not), other than as expressly set out in this Agreement. Client agrees that the only remedy available to it arising out of or in connection with a Representation shall be for breach of contract. Nothing in this clause 19.7 shall limit or exclude any liability for fraud. 

19.8 This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.

19.9 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way. 

20. GOVERNING LAW AND JURISDICTION

20.1 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 New South Wales, Australia.

20.2 The parties irrevocably agree that the courts of Sydney, New South Wales, Australia shall have the exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject-matter or formation (including non-contractual disputes or claims). 

SCHEDULE 1

DATA PROCESSING AGREEMENT (“DPA”)

BACKGROUND:

(A) In order to supply all or part of the Services, Agency may be required to process certain personal data on behalf of Client;

(B) The parties are entering into this DPA to comply with data privacy laws and to set out their respective rights and obligations in respect of such processing.

1. Definitions and interpretation

1.1 In this DPA the following words shall have the following meanings:

Client Personal Data” means personal data:

  • (a) supplied to the Agency by or on behalf of the Client; and/or
  • (b) obtained by, or created by, the Agency on behalf of the Client in the course of delivery of Services, and in each case where such personal data is processed by the Agency for and on behalf of the Client in the performance of Services.

Data Protection Legislation” has the meaning given in the Agreement;

EEA” means the European Economic Area;

European Law” means any law in force in the EEA or the United Kingdom, including the Data Protection Legislation;

International Transfer Requirements” means the requirements of Chapter V of the GDPR (Transfers of Personal Data to third countries or international organisations);

Losses” means losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs, and expenses (including reasonable legal and other professional expenses);

Restricted Country” means a country, territory or jurisdiction which is not considered by the EU Commission (or in respect of personal data transfers caught by the requirements of UK Data Protection Legislation, the relevant UK  governmental or regulatory body as applicable) to offer an adequate level of protection in respect of the processing of personal data pursuant to Article 45(1) of the GDPR;

Restricted Transfer” means a transfer of personal data from an entity whose processing of personal data under the Agreement is caught by the requirements of the GDPR and/or UK Data Protection Legislation (as applicable), to an entity that processes the relevant personal data in a Restricted Country;

Scope of Work” has the meaning given in the Agreement;

Services” has the meaning given in the Agreement; 

Sub-processors” has the meaning given in paragraph 3.9;

UK” means the United Kingdom; and

UK GDPR” has the meaning given in the Agreement.

1.2 References in this DPA to “processor”, “controller”, “personal data”, “process”, “processing”, “personal data breach”, “data subject” or “supervisory authority” shall have the same meanings as defined in the GDPR.

1.3 References in this Agreement to the GDPR and/or an Article or Chapter of the GDPR shall, where the context so requires and insofar as the Data Protection Legislation is that of the UK, be construed as a reference to the equivalent Data Protection Legislation of the UK and/or the corresponding provision of such Data Protection Legislation.

1.4 In the event of any conflict or inconsistency between the terms of this DPA and any other part of the Agreement, this DPA will take precedence.

2. Roles of the parties and processing activities

2.1 The parties acknowledge and agree that, to the extent that the Agency processes Client Personal Data on behalf of the Client in connection with the provision of Services, the Agency shall be the processor and the Client shall be the controller with respect to such processing.

2.2 Each of the parties acknowledges and agrees that the subject-matter and duration of the processing carried out by the Agency on behalf of the Client, the nature and purpose of the processing, the type of personal data and categories of data subjects are accurately documented in the Scope of Work (which may from time to time be updated by the written agreement of the parties).

3. Obligations of the Agency

3.1 The Agency shall only process the Client Personal Data in accordance with the documented instructions of the Client (including those documented in accordance with Scope of Work, as updated from time to time), unless required to do so by European Law to which the Agency is subject, in which event the Agency shall inform the Client of such legal requirement unless prohibited from doing so by European Law on important grounds of public interest. 

3.2 The Agency shall ensure that any persons authorised by it to process the Client Personal Data are subject to an obligation of confidentiality.

3.3 The Agency shall implement appropriate technical and organisational measures to ensure that the Client Personal Data is subject to a level of security appropriate to the risks arising from its processing by the Agency, taking into account the factors and measures referred to in Article 32 of the GDPR. Such security measures may include:

  • (a) the pseudonymisation and encryption of personal data;
  • (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
  • (с) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and
  • (d) a process for regularly testing, assessing, and evaluating the effectiveness of the security measures.

3.4 Taking into account the nature of the processing and the information available to the Agency, the Agency shall assist the Client with regard to the Client’s compliance with its obligations under the following Articles of the GDPR:

  • (a) Article 32 (Security of processing);
  • (b) Articles 33 and 34 (Notification and communication of a personal data breach);
  • (с) Article 35 (Data protection impact assessment); and
  • (d) Article 36 (Prior consultation by the Client with the supervisory authority).

3.5 Without prejudice to the generality of paragraph 3.4, the Agency shall notify the Client without undue delay (and in any event within 48 hours) after becoming aware of a personal data breach. The Agency shall provide such co-operation, assistance and information as the Client may reasonably require in respect of any personal data breach. Without prejudice to the generality of this requirement, the Agency shall provide the Client with the following information in respect of any personal data breach (insofar as it is possible, at the time of notifying the Client of the relevant personal data breach, or where such information is not available at the point of notification as soon as such information is available):

  • (a) the nature of the Client Personal Data, including where possible the categories and approximate number of data subjects concerned and the categories and number of personal data records concerned;
  • (b) the likely consequences of the personal data breach;
  • (с) the measures taken or proposed to be taken by the Agency to address the personal data breach, including where appropriate measures to mitigate the possible adverse effects; and
  • (d) the details of a contact point where more information concerning the personal data breach can be obtained.

3.6 Without prejudice to the generality of paragraph 3.5, the Agency will notify the Client without undue delay (and in any event within 48 hours) of any rights request it receives from a data subject pursuant to Chapter III of the GDPR. Unless otherwise agreed between the parties, the Agency shall not respond to or fulfil such requests itself. Taking into account the nature of the processing, the Agency shall assist the Client by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Client’s obligation to respond to such requests for exercising a data subject's rights under the GDPR.

3.7 Upon the earlier of:

  • (a) termination or expiry of the Agreement; or  
  • (b) the date on which the Client Personal Data is no longer relevant to, or necessary for, the purposes of providing the relevant Services;  

the Agency shall deliver up or destroy (at the Client’s request) such Client Personal Data which is in the possession of, or under the control of, the Agency unless European Law requires the Agency to store such Client Personal Data.

3.8 Notwithstanding any other provision of the Agreement, the Agency shall be entitled to appoint further processors to process the Client Personal Data (“Sub-processors”). The following shall apply in respect of the appointment of Sub-processors:

  • (a) the Client shall be deemed to have approved the appointment of the Sub-processors documented in accordance with the Scope of Work;
  • (b) the Agency shall notify the Client in writing of its intention to engage any additional Sub-processor. Such notice shall give details of the identity of such Sub-processor and the services to be supplied by it;
  • (с) the Agency shall only use a Sub-processor that has provided sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Data Protection Legislation and ensures the protection of the rights of data subjects;
  • (d) the Agency shall impose, through a legally binding contract between the Agency and the Sub-processor, data protection obligations on the Sub-processor that are in all material respects equivalent to those set out in this DPA (including, to the extent applicable, the requirements of paragraph 5) and which in any event meet the requirements set out in the Data Protection Legislation;
  • (e) the Client shall be entitled to object to the proposed appointment of the Sub-processor where it reasonably considers that such appointment will not comply with the requirements of this paragraph 3.9. The Client shall be deemed to have approved the engagement of the Sub-processor if it has not served a notice in writing on the Agency objecting to such an appointment within 14 days of the date that the notice is deemed to be received by the Client in accordance with paragraph 3.9(b);
  • (f) where the Client objects to the proposed appointment, the Agency will use commercially reasonable efforts to continue to provide the Services without the use of the relevant Sub-processor. Where the Agency is unable to continue to provide the Services despite having used such commercially reasonable efforts, the Agency shall have no liability for any failure to provide the Services in accordance with the Agreement; and
  • (g) the Agency shall remain fully liable for all acts or omissions of the Sub-processors as if they were acts or omissions of the Agency.

3.9 The Agency shall keep at its normal place of business a written record of its processing of Client Personal Data and of its compliance with its obligations set out in this DPA (“Records”). The Agency shall permit the Client, its third party representatives or a supervisory authority or its third party representatives access to inspect, and take copies of, the Records and any other relevant information held at any premises or on systems used in connection with the processing of the Client Personal Data, for the purpose of auditing compliance with the Agency’s obligations under this paragraph 3. The Agency shall give any and all necessary assistance in respect of the conduct of such audits.  Audits may be performed no more than once a year and must be conducted during regular business hours and must not unreasonably interfere with the Agency’s business.

4. Obligations of the Client

4.1 The Client shall ensure that:

  • (a) the supply to the Agency of Client Personal Data by or on behalf of the Client for the purposes of processing undertaken by the Agency and its permitted Sub-processors shall comply with the Data Protection Legislation;
  • (b) there is a lawful basis in respect of the Agency’s (and any permitted Sub-processor’s) processing of the Client Personal Data and data subjects have been provided with a privacy policy or notice that complies with the requirements of Article 13 and/or 14 of the GDPR in respect of such processing; and
  • (с) the instructions given by the Client to the Agency by operation of paragraph 3.1 shall comply with the Data Protection Legislation.
5. Restricted Transfers

Between the parties

5.1 The parties acknowledge and agree that the transfer from the Client to the Agency of Client Personal Data does not constitute a Restricted Transfer. If and to the extent that such a transfer or processing of Client Personal Data becomes a Restricted Transfer, the parties shall enter into a separate addendum to implement a transfer mechanism to ensure that the Restricted Transfer complies with the International Transfer Requirements.

By the Agency

5.2 The Client acknowledges and agrees that Client Personal Data may be transferred by the Agency to Sub-processors located in a Restricted Country, which may be considered a Restricted Transfer. In the event of the transfer being considered a Restricted Transfer, the Agency shall enter into a transfer mechanism to ensure that the Restricted Transfer meets the International Transfer Requirements, and the Agency shall provide details of the relevant transfer mechanism on request.

Failure of transfer mechanism

5.3 The parties acknowledge and agree that to the extent either party considers (acting reasonably) that the use of the relevant lawful transfer mechanism relied on in respect of a Restricted Transfer under paragraph 5.2 is no longer an appropriate lawful transfer mechanism to legitimise the relevant Restricted Transfer pursuant to the International Transfer Requirements, the Restricted Transfer shall be suspended and the parties shall work together in good faith to agree and put in place an alternative lawful transfer mechanism or such other supplementary measures to enable the Restricted Transfer to continue.

5.4 In addition to paragraph 5.3, the parties will each use commercially reasonable efforts to ensure that the Services can continue to be provided in all material respects in accordance with the Agreement despite the suspension of the Restricted Transfer.   

5.5 Without prejudice to Agency’s obligations under paragraphs 5.3 and 5.4, the Agency shall have no liability under the Agreement for any inability to provide the relevant Services in accordance with the Agreement as a result of the suspension of a Restricted Transfer pursuant to paragraph 5.3.   

6. Costs

The Client acknowledges and agrees that the remuneration in respect of the Services does not take into account costs that may be incurred by the Agency in complying with its obligations under this DPA. Accordingly, the Client will pay the Agency in respect of any costs that are (or are to be) reasonably incurred by the Agency outside the ordinary course of the Agency’s business in respect of the performance by the Agency of its obligations in this DPA, except where such performance is required as a result of a breach by the Agency of its obligations under this DPA. Where practicable to do so, the Agency will seek the Client’s written approval prior to incurring such costs.

7. Liability for Losses

7.1 Where in accordance with the provisions under Article 82(3) of the GDPR, both parties are responsible for the act, or omission to act, resulting in the payment of Losses by a party or both parties then a party shall only be liable for that part of such Losses which is in proportion to its respective responsibility.

7.2 Any exclusions and limitations of liability set out in the Agreement shall apply in respect of the Agency’s liability under or in connection with this Schedule

8. Use of Cookies

(a) Where the Services require Agency to collect Personal Data via the deployment of pixels, tags and/or similar tracking technologies ("Tags") ("Interest Based Data") from any digital property owned and/or operated by Client (or by a third party on Client's behalf) ("Client Digital Property"), as neither Agency nor the relevant data vendor that provides the Tag has a direct relationship with the relevant data subjects, Client shall provide Agency with such cooperation and assistance as Agency and/or the data vendor may reasonably require to enable Agency and/or the data vendor to comply with its legal obligations. In particular, Client shall:

(i) assist Agency and/or the data vendor in ensuring there is a legal basis to enable Agency and/or the data vendor to process the Interest Based Data in connection with the provision of the Services; and 

(ii) have in place, on each relevant Client Digital Property:

(1) a 'cookie banner' (or other appropriate mechanism) that complies with the requirements of Data Protection Legislation and obtains consent (within the meaning of the GDPR) for and on behalf of Agency and/or the data vendor for (i) the deployment of Tags on the data subject's device(s), and (ii) Agency's and/or the data vendor’s collection and processing of the Interest Based Data; and  

(2) a privacy policy and cookie policy or notice that (i) expressly names Agency and/or the data vendor (as required) as a party that collects and/or receives the data subject's Personal Data for the purposes anticipated by the Agreement and/or the applicable parts of the Agency's and/or the data vendor’s privacy notice, and (ii) contains a clear and prominent link to Agency 's and/or the data vendor’s privacy notice.

SCHEDULE 2

 Demand Generation Campaign – Standard Campaign Specifications

The Standard Campaign Specifications are as follows:

1. Definitions

Client Requirements” means the Client’s criteria for appropriate leads, and any specific requirements identified by the Client as to how the Services should be conducted, such as email content and phone scripts, as set out in the Scope of Work; 

A “Prospect” is an individual who meets the lead criteria set out in the Client Requirements and who does not appear on a suppression list.

A “Lead” is a Prospect who has provided specific consent to be contacted by the Agency, the Client and/or its agency (as applicable), according to the opt-in or invitation wording provided as part of the applicable Client Requirements.

Conversion” occurs when a Prospect becomes a Lead, and “Convert” will be interpreted accordingly.

2. Lead generation, enrichment and validation
a) Agency will identify Prospects from publicly available sources and its own and its sub-contractors’ first party data, and will seek to Convert them to Leads through communication with them over the relevant engagement channels.
b) Agency will capture from publicly available sources additional business contact information for Leads, record it and associate it with the Lead, using reasonable efforts to ensure that the additional information is accurate.
c) Agency will also collect, record and associate with each Lead the additional information required by the Client Requirements (such as information to be captured digitally or through questions during a phone call).
d) Unless the Scope of Work provides otherwise, the Deliverables must include all of the above information for each Lead.
e) Any Prospect indicating a wish not to be contacted further will be added to Agency’s suppression list and not contacted further.
f) A Lead will be a valid Lead (and Fees will be payable in respect of it) if it is provided with validated business card data and provable opt-in consent to receive further communication from the Client (or its agency on its behalf), and it meets any other specific Lead validation requirements in the Client Requirements (such as an expressed interest in a call back).
g) Any Lead who unsubscribes or opts out within 72 hours of opt-in will not be a valid Lead and should not be submitted as part of any Deliverable.

3. Suppression lists
a) Agency will operate a suppression list of persons who must not be contacted.  Agency will ensure that its suppression list is honoured and will not contact any person appearing on a suppression list.
b) Agency will screen all UK phone numbers against the Telephone Preference Service.
c) The Client will provide to Agency a list of any Prospects which the Client knows or ought to know should be added to the suppression lists for the Services.

4. Frequency and brand protection
a) Agency will limit communications:
i. to any one Prospect to no more than two per week; and
ii. to any one business, to no more than 20 per week (or two per week for SMEs).
b) Agency will inform the Client promptly of any complaints raised by any Prospect.

5. Rules for specific engagement channels
a) Emails
i. Emails should be sent to business email addresses only.  Filters will be applied against common personal email domains such as gmail, Yahoo! and outlook.com.
ii. All emails must include a functional “unsubscribe” link which will have the effect of adding the Prospect to the applicable suppression list.
iii. Email content must comply with the Client Requirements and use the Client Materials if applicable. The Client has the right to require prior inspection and sign-off on email templates.

b) Phone
i. Phone calls must be to business numbers only. Mobile numbers should not be used unless obviously provided in a business context, such as on a corporate website.
ii. All phone calls must represent the Client brand but make clear where the caller is calling from (e.g. “I’m calling from [Agent3 or subcontractor] and we’re working with [Client] …”) and otherwise follow any phone scripts or talking points included in the Client Requirements.
iii. Phone calls may be recorded. Those recordings will be used for no purpose other than demonstrating compliance with applicable laws (for example, to evidence consent) or the agreement between Agency and the Client (for example, adherence to phone scripts).

6. Security and storage requirements
a) Agency will provide the Deliverables to the Client using its standard secure data transfer mechanisms, unless otherwise agreed.
b) Agency will limit access to the personal data of Prospects and Leads to those of its and its subcontractors’ personnel who have a need to access it for the purpose of the Services, on the basis of “least possible access”.

7. Reporting
a) Agency will provide to the Client periodic reporting on the Services (approximately weekly unless otherwise agreed) as it progresses, including information on Prospects contacted, Conversion rates, and any problems or difficulties encountered.

8. Campaign conclusion
a) Agency will, within 10 days after the conclusion of the Services, remove all Client Materials from public accessibility unless Agency and the Client agree otherwise in writing.