5.7 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against The Rubicon Agency in order to justify withholding payment of any such amount in whole or in part. The Rubicon Agency may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the The Rubicon Agency to the Client.
6 DATA PROTECTION
6.1.1 Each party shall comply with Data Protection Legislation with regards to the processing of Client Personal Data under this Agreement.
6.1.2 The Client shall only provide the Agency with Client Personal Data to the extent that it is strictly necessary for the Agency’s performance of the Services.
6.1.3 The Client shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to the Agency for the duration and purposes of this agreement.
6.1.4 The Agency is a Data Processor in respect of the Client Personal Data processed under this Agreement. The Agency shall:
184.108.40.206 process the Client Personal Data only on and in accordance with lawful instructions from the Client which may be specific instructions or instructions of a general nature provided directly to the Agency, which may include any instructions from any end client of the Client with respect to that Client Personal Data;
220.127.116.11 process the Client Personal Data only to the extent, and in such manner as is necessary for the provision of services to the Client;
18.104.22.168 inform the Client of any legal requirement under any applicable law that would require the Agency to process the Client Personal Data otherwise than only on the processing instructions, or if any Client instruction infringes, Data Protection Legislation; and
22.214.171.124 not transfer Client Personal Data out of the European Economic Area without the Client’s prior written consent.
6.1.5 The scope, purpose and duration of Personal Data and Processing (including the type of Personal Data, categories of Data Subjects and security details) covered by this Agreement is set out in the Schedule of this Agreement.
6.2.1 The Agency shall implement and maintain, at its cost and expense, appropriate technical and organisational measures in relation to its processing of Client Personal Data so as to ensure a level of security in respect of Client Personal Data processed by it is appropriate to the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Client Personal Data transmitted, stored or otherwise processed.
6.2.2 In respect of any Security Incident involving Client Personal Data, the Agency shall without undue delay notify by telephone to and provide the Client with details of the Security Incident.
6.3 Agency Staff and Other Processors
6.3.1 The Agency shall not engage another person to perform specific processing activities in respect of the Client Personal Data without the Client’s prior written consent. The Agency shall remain fully liable to the Client for the Sub-Processor’s performance, as well as for any acts or omissions of the Sub-Processor as regards its processing of Client Personal Data.
6.3.2 The Agency shall ensure that its personnel processing Client Personal Data have signed agreements requiring them to keep Personal Data confidential, and take all reasonable steps to ensure the reliability of the Agency personnel processing Client Personal Data and that personnel processing Client Personal Data receive adequate training on compliance with the data protection provisions of this Data Processing Schedule and the Data Protection Legislation.
6.4 Other Obligations
6.4.1 The Agency shall forward to the Client and otherwise co-operate with and assist the company with any requests received from data subjects of any Client Personal Data.
6.4.2 The Agency shall provide reasonable assistance, information and cooperation to the Client to ensure compliance with the Client’s obligations under Data Protection Legislation in relation to the processing of Client Personal Data under this Agreement. This includes assistance with any data protection impact assessments and consultations with (or notifications to) relevant data protection regulators.
6.4.3 The Agency shall not transfer any Client Personal Data to any country outside the European Economic Area without the Client’s prior written consent.
6.4.4 The Agency shall make available to the Client on request in a timely manner such information as is required by the Client to demonstrate the Agency’s compliance with its obligations under Data Protection Legislation and this Data Processing Schedule.
6.4.5 The Agency shall permit audits conducted by the Client or another auditor mandated by the Client for the purpose of demonstrating the Agency’s compliance with its obligations under Data Protection Legislation and this Data Protection Schedule. This shall be subject to the Client giving The Agency reasonable prior notice of such audit and/or inspection, and ensuring that any auditor is subject to binding obligations of confidentiality and that such audit or inspection is undertaken so as to cause minimal disruption to the Agency’s business.
6.4.6 The Agency shall without delay, at the Client’s request, either securely delete or return all the Client Personal Data to the Client at the end of this Agreement, or if earlier, as soon as processing by the Agency of any Personal Data is no longer required for the Agency’s performance of its obligations under this Agreement, and securely delete existing copies (unless storage of any data is required by applicable law).
6.4.7 The Agency shall enter into the Controller-To-Processor EU Model Clauses in [Schedule 2] where Client Personal Data is processed outside the EU; or in countries which do not ensure adequate level of data. In the event of any inconsistency between this Data Processing Schedule and the Controller-To-Processor EU Model Clauses, the Controller-To-Processor EU Model Clauses shall override this Data Processing Schedule.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 As between the Client and The Rubicon Agency, all Intellectual Property Rights in the Deliverables and the Pre-existing Materials shall be owned by The Rubicon Agency. At no point will the Intellectual Property Rights in the Pre-Existing Materials be transferred, assigned or licensed to the Client. Subject to clauses 3.8 and 3.9 (including for the avoidance of doubt the condition precedent of full payment of the Charges) the Intellectual Property Rights in the Deliverables but not the Pre-Existing Materials will be deemed to transfer to the Client.
7.2 The Rubicon Agency will use reasonable endeavours to ensure that any third party which is either engaged by it to produce (or which otherwise owns) any creative works or materials in respect of the Deliverables shall agree to assign to the Client any Intellectual Property Rights owned by them in relation to the Deliverables upon payment of their fees.
7.3 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on The Rubicon Agency obtaining a written licence from the relevant licensor on such terms as will entitle The Rubicon Agency to license such rights to the Client.
7.4 Whilst respecting the terms of any Confidentiality Agreements in place to cover programmes undertaken by the Rubicon Agency, the client accepts the right for The Rubicon Agency to showcase projects undertaken for the client, whilst taking steps to ensure no commercially sensitive or confidential material is shared in the process. This includes, but is not restricted to, promotion on the agency website, social channels and customer presentations. The agency will take every reasonable step to respect sensitivity, and will not use identified customer testimonials without express permission.
8.1 A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
9 LIMITATIONS OF LIABILITY
9.1 The Client will indemnify and keep indemnified The Rubicon Agency from and against any and all proceedings, claims, damages, losses, expenses or liabilities which The Rubicon Agency may incur or sustain as a direct or indirect result of or in connection with the use of any information, representation, reports, data or materials supplied to it by the Client including but not limited to the Consumer Protection from Unfair Trading Regulations 2008.
9.2 The Rubicon Agency does not warrant or guarantee the success of any marketing exercise or program and the Client is responsible for checking the proposed Services and ensuring their accuracy and the veracity of the statements therein. The Rubicon Agency is not responsible for checking the accuracy of any information or data provided to it by the Client.
9.3 The Client warrants that it is not a consumer as defined under the Unfair Terms in Consumer Contract Regulations 1999.
9.4 Nothing in these Conditions shall limit or exclude The Rubicon Agency’s liability for:
9.4.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
9.4.2 fraud or fraudulent misrepresentation; or
9.4.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.5 Subject to clause 9.4:
9.5.1 The Rubicon Agency shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.5.2 The Rubicon Agency total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £1 million.
9.6 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.7 The Client acknowledges that the limitations and exclusions contained in these Conditions are reasonable and if they had not been included, the Charges would have been increased significantly.
9.8 This clause 8 shall survive termination of the Contract.
10.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
10.1.1 the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach;
10.1.2 an order is made or a resolution is passed for the dissolution or winding-up of the other party or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the other party or its trustees, officers, directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver to which entitle the Court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt.
10.2 Without limiting its other rights or remedies, The Rubicon Agency may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
10.3 Without limiting its other rights or remedies, if the Client becomes subject to any of the events listed in clause 9.1.2 or if The Rubicon Agency reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the Due Date for payment then The Rubicon Agency shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and The Rubicon Agency and may demand payment of the Charges in full which shall be payable forthwith.
11 CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract for any reason:
11.1.1 the Client shall immediately pay to The Rubicon Agency all of The Rubicon Agency’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, The Rubicon Agency shall submit an invoice, which shall be payable by the Client immediately on receipt;
11.1.2 the Client shall return all of The Rubicon Agency Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then The Rubicon Agency may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
11.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, 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; and
11.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12.1 All communications between the parties about this Contract must be in writing and delivered: by hand; or sent by pre-paid first class post; or by email; or by facsimile transmission to its registered office or such changed address as shall be notified to the other party from time to time.
12.2 Communications shall be deemed to have been received:
12.2.1 if sent by pre-paid inland first class post, 2 days after posting (exclusive of the day of posting);
12.2.2 if delivered by hand, on the day of delivery;
12.2.3 if sent by facsimile transmission or email on a working day (in the UK) prior to 4.00pm at the time of transmission and otherwise on the next working day provided the sender can provide a fax delivery confirmation.
13 FORCE MAJEURE
13.1 Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 3 months the party not affected may terminate this agreement by giving 14 days’ written notice to the other party.
13.2 Any party that is subject to a force majeure event shall not be in breach of this agreement provided that it promptly notifies the other parties in writing of the nature and extent of the force majeure event causing its failure or delay in performance.
13.3 Under no circumstances shall the Client be entitled to delay payment because of a force majeure event.
14 GENERAL PROVISIONS
14.1 Any variation of the Contract must be in writing and signed on behalf of both parties. If a court decides that any part of the Contract cannot be enforced, that particular part of the Contract will not apply, but the rest of the Contract will. A waiver by a party of a breach of any provisions shall not be deemed a continuing waiver or a waiver of any subsequent breach of the same or any other provisions. Failure or delay in exercising any right under the Contract shall not prevent the exercise of that or any other right. The Client may not assign or transfer any benefit, interest or obligations under the Contract but The Rubicon Agency may assign or transfer any benefit, interest or obligation under this Contract without the consent of the Client. The provisions of the Contract (Rights of Third Parties) Act 1999 shall not apply to any person not a party to this Contract.
15 GOVERNING LAW AND JURISDICTION
15.1 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
15.2 The parties remotely agree that the courts of England and Wales shall have exclusive jurisdiction to settle any disputes or claims that arise out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
APPENDIX 1 – MEDIA BUYING TERMS AND CONDITIONS
1 THE SERVICES
1.1 The Agency shall provide media and production buying services to the Client in accordance with the Agreement and good industry practice.
1.2 Unless set out otherwise in the Agreement and the Quotation and Statement of Works, the Agency shall not in any way be responsible for the preparation, content, production or supply of copy for any of the Client’s advertising.
1.3 The Agency acts in all its contracts as a principal at law.
1.4 The Agency shall, after obtaining the Client’s general written approval of its campaign plans, submit to the Client for its specific written approval:
1.5 media schedules, advertising artworks and marketing executions for time, space and other facilities, recognising that these are liable to change and evolution from campaign optimisation once the campaign is live; and
1.6 estimates or quotations of the cost of the various items of advertising and other services covered by this Agreement together with terms of payment.
1.7 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 the terms and conditions required by media or suppliers.
1.8 The Client acknowledges that the Agency shall not be obliged to make reservations and contracts, unless and to the extent that the Client has provided the Agency with a valid PO number.
1.9 The Agency will advise the Client promptly of any changes in the estimated cost of media or any significant changes in plans, schedules or work in progress previously approved in writing by the Client.
2 FEES AND PAYMENT
2.1 In consideration for the Agency’s performance of the Services, the Client acknowledges that the Agency shall be entitled to retain the agency commission amount negotiated between the Agency and the relevant publisher or supplier (“Agency Commission”). In the event that (a) no Agency Commission is agreed between the Agency and the relevant publisher (e.g., in the case of Google Adservices); or (b) the agreed Agency Commission amount is below 15% of the gross equivalent media spend, the Agency shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to the Agency of commission is 15% of the gross equivalent media spend. For the avoidance of doubt, the Client’s obligation to pay any commission amount shall be in addition to its obligation to repay the Agency for the cost of all media time and space.
Alternatively, there may be separate arrangement reached and recognised on the Quotation and Statement of Works whereby the Client pays for the media services directly to the publisher or media owner (e.g. Google, Facebook, LinkedIn)
2.2 Any additional Fees for additional Services, including reporting, optimisation and campaign management, shall be as agreed in writing in the Quotation and Statement of Works between the parties.
2.3 Media charges will be based on the current published rates for Advertising in all media.
2.4 The cost to the Agency of media, materials or services purchased overseas for the advertising may be more or less than the cost anticipated at the date when the Agency ordered the relevant media, materials or services, (or obtained the Client’s approval for such costs) as a result of fluctuations in the rate of currency exchange. If so, the Agency will charge the Client at its prevailing rate of currency exchange in operation on the date the Agency pays for the relevant media, materials or services.
2.5 The Agency will invoice the Client in respect of Agency in accordance with the billing schedule section of this Addendum and the Client will pay the invoice within 30 days of the date of invoice.
2.6 In the event that the Agency incurs any form of charges from its suppliers due to late payment by the Client, the Client shall immediately reimburse to the Agency the amount of such charge, together with any accrued interest charged by the supplier in respect of the overdue amount.
2.7 If late copy charges or late payment charges are levied by a media owner against the Agency the Client shall reimburse the amount of such late charges to the Agency.
3.1 In the event that the Client amends or cancels the scope of any media booking (as agreed between the parties in writing), (a) the Client shall reimburse the Agency for any charges or expenses to which the Agency is committed or that arise as a result of such cancellation or amendment, including but not limited to any cancellation charges imposed by a publisher; and (b) the Agency may at its discretion charge the Client a fee in lieu of any commission that would otherwise have been received by the Agency.
4 AGENCY’S RESPONSIBILITY
4.1 The Agency shall use reasonable care and skill in the selection and appointment of media supplier and the agreement of the terms and conditions of such appointment.
4.2 The Client confirms that it is expressly understood and agreed that in planning and buying the Client’s media activity, the Agency shall use its reasonable endeavours to ensure the accuracy of all estimated and target figures relating to:
4.3 the number, proportion or type of people likely to be exposed to the advertising;
4.4 the number of exposures each person is likely to receive; and
4.5 the cost of achieving these exposures.
4.6 Since these are matters which are ultimately beyond the Agency’s control, no warranties can be given by the Agency as to the accuracy of such estimates/targets or as to the figures actually occurring and no liability shall attach to the Agency in respect of any losses suffered by the Client or by any third party by reason of the Client’s reliance on such estimates/targets.
4.7 For the avoidance of doubt the Agency is not responsible for copy content or late delivery of the advertising provided by the Client or a third party creative agency or for advising the Client about compliance issues.
5.1 Both parties shall comply with applicable law and advertising regulation.
5.2 The Client shall inform the Agency without delay if the Client discovers that any advertising is false or misleading or in any way contrary to law or to any applicable code or advertising regulation.
5.3 In order to fund the UK self-regulatory system, a levy of 0.1% is payable:
5.4 to the Advertising Standards Board of Finance (“ASBOF”) in relation to non-broadcast advertising, and applies to the gross media cost of outdoor, cinema and press display advertisements (excluding classified lineage, semi-display and any displays, screenings and publications outside the UK), the postage cost of direct mailings in the UK, and the cost of advertising in paid for digital space, including mobile, search and affiliate marketing; and
5.5 to the Broadcast Advertising Standards Board of Finance (“BASBOF”) in relation to broadcast advertising, and applies to the gross media cost of broadcast advertisements in the UK.
5.6 The Agency shall add such levies to all relevant invoices submitted to the Client, but no Agreed Commission (if applicable) shall be payable on the amount of such levies. The parties agree that the Client shall be solely liable for payment of any such levy.
5.7 Each party shall ensure that any mailing list or customer database supplied to the other party shall comply with the requirements of all legislation in force from time to time including, without limitation, the General Data Protection Regulations.