Mad River Limited process personal data on behalf of their Clients in relation to the marketing services they are instructed to undertake, mainly involving the design, construction and maintenance of websites.
This agreement sets out the understanding, requirements and conditions upon which Mad River will provide services and process personal data on behalf of the Client and the obligations on both Parties (defined below) in connection with the processing of that personal data.
It is therefore acknowledged that the parties will have and will observe the controller and processor responsibilities applicable to them under The General Data Protection Regulation (EU) 2016/679 (GDPR).
The following definitions and rules of interpretation apply in this Agreement:
These Terms and Conditions, together with the approval to proceed or the quotation or order to which they are attached or which refers to them, set out the contractual terms on which the Company will provide marketing and other services to its Clients and will come into effect either on the date agreed between the parties or, if no specific date has been agreed, at the time when the Company begins to provide the services for the Client. These services may include;
a. Website design, development and maintenance;
b. Mail shots and marketing services;
c. Special promotions and arranging events; and
d. Other services as agreed from time to time
and will normally be detailed in project descriptions and an approval to proceed prepared by the Company and issued to the Client for a specific project or projects.
Both parties will comply with all the requirements of the data protection legislation applicable to them. The parties acknowledge that for the purposes of the data protection legislation, the Client is the data controller and the Company is the data processor.
The Client will ensure that it has all necessary appropriate consents, procedures and notices in place to enable the lawful transfer to the Company and the processing of the personal data by the Company for the duration and purposes of this agreement.
The Client acknowledges that the Client is accountable as controller for demonstrating compliance with the data protection principles outlined in the GDPR and ensuring that the Client has a lawful basis for processing personal data in accordance with the GDPR.
In the course of the Company’s activities in relation to personal data processed in connection with the performance of this agreement the Company will;
a. Only process personal data on the written instructions of the Client unless required by law to process personal data;
b. Ensure that it have in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
c. Ensure that all its personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
d. Not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client has been obtained.
f. Notify the Client without undue delay on becoming aware of a personal data breach by it;
g. At the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of this agreement unless required by applicable law to store the personal data; and
h. Maintain complete and accurate records and information to demonstrate its own compliance with data protection legislation.
The Company will not engage a third party processor for processing personal data under this agreement without the written consent of the Client. If it engages a third- party processor, it will only do so on the basis that that processor will be bound by terms, which are substantially similar to these. The Company will remain fully liable for all acts or omissions of any such appointed third-party processor carried out in relation to the Client’s data.
The Client acknowledges that in entering into this agreement and any relevant approval to proceed the Client agrees to work relating to the relevant project being performed by the Company on the terms of the relevant approval to proceed and authorises the Company to enter into commitments with third parties and/or purchase equipment and/or supplies on the Client’s behalf for that purpose.
If the Client fails to dispute the contents of a contact report relating to ay project issued by the Company within 3 working days of receiving it, the Company will be entitled to make changes, further purchases or commitments on the Clients behalf as referred to in the report.
If the Client wishes to change the original brief provided for the purposes of any project which will substantially affect the resources, time or costs dedicated to the project, the Company reserves the right to revise the initial cost estimate and applicable time scale.
Where the Client without a reasonable cause delays the approval of the production schedule set out at the beginning of any project, the Company may charge an additional cost to reflect any increased costs which are incurred as a result.
The Client will provide to the Company in a timely fashion and in the medium and the format reasonably requested by the Company such co-operation and information or access to information related to its business or operations as the Company may from time to time request in connection with any project. It will be the responsibility of the Client to ensure that all such information is accurate and complete.
If the Client wishes to change, reject, defer, or cancel all or any work relating to a project (other than as provided in clause 7.1) the Client shall first notify the Company in writing of its proposals and obtain the prior written approval of the Company but in any event the Client will be liable to indemnify the Company for and against all losses, liabilities and claims suffered by the Company arising from the change, rejection, deferral or cancellation and will be liable to pay the Company any outstanding fees, costs and expenses associated with the Client’s change, rejection, deferral or cancellation of any or all such work.
The Company will provide a billing plan to the Client for any project at the start of a project.
In the event of any pause, change, deferral or delay of the project by the Client, the Company will be entitled to adjust the billing plan and revise the initial cost estimate to take account of the additional work created.
The Company will invoice the Client on the dates and times outlined in the billing plan and the Client will pay the balance of the invoice due as set out in that invoice. In any event, all the Company’s invoices must be paid by the Client within 30 days of the date of the Invoice.
The Client will be liable for all costs incurred by the Company as a result of late payment by the Client.
In the case of expenses to be incurred by the Company for the Client, the Company will be entitled to request payment for the relevant expense prior to incurring it.
Overdue accounts will incur interest at 3% per annum above Lloyds TSB Bank base rate from time to time accruing daily from the due date of payment to the date of actual payment.
All charges by the Company will be subject to value added tax at the applicable rate.
The Company may by giving 30 days’ notice to the Client change its standard charge rates from time to time but no such change will apply to any project which has been commenced prior to the time of notification.
Any work which is carried out by the Company at the Client’s request which is not subject to an estimate, proposal or Approval to Proceed, will be charged for on the basis of the Company’s standard charge rates applicable at the time the work is carried out.
Where work is carried out by the Company for the Client where a billing plan has not been provided in advance, the Company may invoice the Client for such work periodically and may require payment in advance. The Company may also apply a credit limit to the work provided for any Client, which credit limit must be observed by the Client, which will ensure that sums due from it to the Company will not exceed that limit..
The Client acknowledges and agrees that all intellectual property rights in the creative ideas, websites, documents, logos and concepts relating to any project will be owned by the Company.
In particular the Company shall retain ownership of the copyright in any/all of the material contained in any presentation or tender made in competition with any other agency (whether successful or not) or otherwise.
All material contained within presentations and/or tenders prepared by the Company for the client’s approval may not be reproduced or circulated without permission from the Company.
On termination of this agreement, any unused plans, designs, ideas and/or work in progress will remain the property of the Company.
The Client must obtain written consent from the Company prior to using any work created by the Company for a project outside of the parameters of the project. The Company may charge additional fees for the use of such work.
Either the Company or the Client may, subject (in the case of termination by the client) to the payment of all fees and expenses due or becoming due in respect of work done or committed to be done by the Company up to the time of termination, terminate this agreement and any current project upon giving at least one month’s written notice at any time to the other party (or such other period of notice as may be agreed by the Company and the Client).
In the event that the Client is in breach of its obligations under this agreement or the data protection legislation, the Company may by notice to the Client:
a. Terminate this agreement and any ongoing project with immediate effect and/or;
b. Temporarily suspend the provision of services for the Client
and any such action will be without prejudice to any other claim or right which the Company may have
In the event that:
7.3.1 the provision of services for the Client by the Company has been temporarily suspended for longer than one month pursuant to clause 7.2;
7.3.2 compliance by either Party with this Agreement would put it in breach of its legal or regulatory obligations in the territory in which it operates;
7.3.3 a petition is presented for the administration or winding up of either party, where such petition is not dismissed within the applicable period for dismissal under the applicable law under which the petition is made;
7.3.4 either party has a winding up order made against it;
7.3.5 either party has a receiver appointed; or
7.3.6 either party commences a company voluntary arrangement;
then the party not subject to or directly involved in such event , without prejudice to any other rights which it may have against the other party, shall be entitled to terminate this agreement immediately upon giving written notice to the other party.
The parties agree that the termination of this agreement does not relieve them from the obligations and/or conditions under this agreement which are expressed to continue after Completion or will not relieve the Client of any obligation to pay any sum due to the Company which is outstanding or incurred at the time of termination.
In order to protect the legitimate business interests of the Company, the Client covenants with the Company that it shall not and shall procure that no member of the client’s group shall (except with the prior written consent of the Company) during the period of this agreement and for a period of 12 months following its termination, employ or engage or offer to employ or engage or otherwise facilitate the employment or engagement of any employee or freelance contractor who is or was employed by or contracted to work for the Company during the period in which the Company provides services for the Client .
All unpublished information relating to concepts, ideas, logos, designs, techniques, working procedures and methods and costs submitted by the Company to the Client is confidential to the Company. The Client may not use or disclose any such confidential information to any third party or be it for any purpose not approved by the Company without the Company’s express written consent.
The Client shall take all reasonable security measures to ensure that there is no such unauthorised or accidental use or disclosure of the confidential information supplied to it by the Company to any person outside the Client’s group.
The Company shall not disclose any confidential information supplied by the Client to any unauthorised third party relating to the Client’s trade secrets, business affairs, financial position, clients or customers or staff unless it is under a legal obligation to do so.
The Company will obtain the Client’s express consent to use any general information relating to the Client (including the fact that the Company has provided or is providing services for the Client) for sales and/or marketing which it has gained during the course of the Project.
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 that 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 its obligations, provided that, if the period of delay or non-performance continues for 1 month or more, the party not affected may terminate this agreement by giving 14 days written notice to the affected party.
This agreement may not be assigned by the Client without the prior written approval of the Company.
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors) pursuant to the Contracts (Rights of Third Parties) Act 1999.
No variation of this agreement shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).
In the case of any variations that require consent or notification to the supervising authority the parties shall notify the supervising authority as soon as practically possible after such variations take effect.
Notices under this agreement must be in writing and sent to the other party by hand delivery or first class or recorded delivery post to the other party at its principal office or such other office as is notified in writing to the party serving the notice for the purposes of this clause.
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non- contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non- contractual disputes or claims).