1. CONTRACT TERMS
1.1 The scope of our work will be limited to the matters set out in the contractual letter which incorporates these standard terms and conditions. You agree to appoint us as your marketing services provider and consultant and our advice will be prepared from our work solely for your use and solely for the purpose of assisting you with the marketing requirements. No other party is entitled to rely on our advice for any purpose whatsoever and we accept no responsibility towards any person who is not a party to these terms of agreement. Our advice will be based on the information received from you. You agree to make sure that we are given all information that may have an impact on our advice, including informing us immediately of any circumstances which may alter the position.
2. LIMITATION OF LIABILITY
2.1 The Digital Lookout will perform the assignment with reasonable skill and care and acknowledges that it may be liable to you for losses, damages, costs or expenses (“losses”) caused by its negligence or willful default, subject to the following provisions:
2.1.1 The Digital Lookout will not be so liable if such losses are due to the provision to it of false, misleading or incomplete information or documentation or due to the acts or omissions of any other person other than The Digital Lookout;
2.1.2 Save as set out above in this section, The Digital Lookout shall have no other liability of any nature, whether in contract, tort or otherwise, for any losses whatsoever and howsoever caused arising from or in any way connected with this contract;
2.1.3 The aggregate liability, whether to you or any third party, of whatever nature, whether in contract, tort or otherwise, of The Digital Lookout for any losses whatsoever and howsoever caused arising from or in any way connected with this agreement shall not exceed 150% of retainer fees paid prior to the termination of the agreement and you agree to release The Digital Lookout from all claims arising in connection with any such alleged liability to the extent such claims exceed the aforesaid sum.
2.2 Nothing in this section shall impose on The Digital Lookout any liability of any kind or for any amount which it would not otherwise have had as a matter of law or preclude any defence which The Digital Lookout has as a matter of law.
2.3 Nothing in these standard terms shall exclude or restrict any liability of The Digital Lookout for fraud or dishonesty or to the extent that it cannot do so by law.
2.4 You agree that you have fully considered the provisions of this section and all the other provisions of these standard terms and that they are reasonable in the light of all the factors relating to this contract. If any terms or provisions of this section are or become invalid, illegal or unenforceable, the remainder shall survive unaffected.
3. STAFF
3.1 The client will not offer employment to any The Digital Lookout Director or member of staff or induce or solicit any such person to take up employment with the client; nor will the client use the services of any such person, either independently or via a third party, for a period of six months following the end of any involvement by that person with any engagement for the client. Breach of this condition will render the client liable to pay The Digital Lookout liquidated damages equal to one year’s salary for the person concerned.
4. FEES AND PAYMENT
4.1 The Digital Lookout require that our reasonable out-of-pocket expenses (plus VAT) will be payable monthly in arrears. These will include all travel costs undertaken during the contract, and such other costs as are incurred on behalf of you, our client.
4.2 The Digital Lookout reserves the right to charge interest on overdue amounts at an annual rate of 2% over the National Westminster Bank base rate ruling on the date payment is due.
4.3 All fees and expenses will be subject to VAT in accordance with VAT regulations.
4. CONFIDENTIALITY
4.1. Each Party undertakes that, except as provided by sub-Clause 8.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of this Agreement and for eight years after its termination:
4.1.1. keep confidential all Confidential Information;
4.1.2. not disclose any Confidential Information to any other party;
4.1.3. not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
4.1.4. not make any copies of, record in any way or part with possession of any Confidential Information; and
4.1.5. ensure that none of its directors, officers, employees, agents, sub-contractors or advisors does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 5.1.1 to 5.1.4 above.
4.2. Either Party may:
4.2.1. disclose any Confidential Information to:
4.2.1.1. any sub-contractor or supplier of that Party;
4.2.1.2. any governmental or other authority or regulatory body; or
4.2.1.3. any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
to such extent only as is necessary for the purposes contemplated by this Agreement (including, but not limited to, the provision of the Services), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 5.2.1.2 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of this Clause 5, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
4.2.2. use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge; and
4.3. The provisions of this Clause 5 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
5. FORCE MAJEURE
5.1. No Party to this Agreement shall be deemed to be either in breach of its obligations due to, or liable for, any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the reasonable control of the Party in question.
6. DATA PROTECTION
6.1. All personal information that The Digital Lookout may use will be collected, processed, and held in accordance with the provisions of the Data Protection Legislation and the Client’s and third parties’ rights thereunder; and
6.2. For complete details of the Provider’s collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of the Client’s rights and how to exercise them, and personal data sharing (where applicable), please refer to the Provider’s Privacy Notice available from https://thedigitallookout.co.uk/privacy-policy.
7. DATA PROCESSING
7.1. In this Clause 8, “personal data”, “processing”, “data subject”, “controller”, “processor”, and “personal data breach” shall have the meanings defined in Article 4 of the UK GDPR, and the terms “Data Processor” and “Data Controller” shall have the same meanings as “processor” and “controller” respectively.
7.2. The Parties hereby agree that they shall both comply with all applicable data protection requirements set out in the Data Protection Legislation. This Clause 8 shall not relieve either Party of any obligations set out in the Data Protection Legislation and does not remove or replace any of those obligations.
7.3. For the purposes of the Data Protection Legislation and for this Clause 8, the Provider is the “Data Processor” and the Client is the “Data Controller”.
7.4. The Data Controller shall ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to the Data Processor for the purposes described in this Agreement.
7.5. The Data Processor shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under this Agreement:
7.5.1. Process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by law;
7.5.2. Ensure that it has in place suitable technical and organisational measures (as approved by the Data Controller) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures.
7.5.3. Ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential;
7.5.4. Not transfer any personal data outside of the UK without the prior written consent of the Data Controller and only if the following conditions are satisfied:
7.5.4.1. The Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;
7.5.4.2. Affected data subjects have enforceable rights and effective legal remedies;
7.5.4.3. The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and
7.5.4.4. The Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data;
7.5.5. Assist the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects and in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);
7.5.6. Notify the Data Controller without undue delay of a personal data breach;
7.5.7. On the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of this Agreement unless it is required to retain any of the personal data by law; and
7.5.8. Maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this Clause 8 and to allow for audits by the Data Controller and/or any party designated by the Data Controller.
7.6. The Data Processor shall not sub-contract any of its obligations with respect to the processing of personal data under this Clause 8.
7.6.1. Enter into a written agreement with the sub-processor, which shall impose upon the sub-processor the same obligations as are imposed upon the Data Processor by this Clause 8 and which shall permit both the Data Processor and the Data Controller to enforce those obligations; and;
7.6.2. Ensure that the sub-processor complies fully with its obligations under that agreement and the Data Protection Legislation.
7.7. Either Party may, at any time, and on at least 30 calendar days’ notice, alter this Clause 8, replacing it with any applicable data processing clauses or similar terms that form part of an applicable certification scheme. Such terms shall apply when replaced by attachment to this Agreement.
8. INTELLECTUAL PROPERTY
8.1. The client shall keep confidential any methodologies and technology used by The Digital Lookout to carry out the services outlined in the agreement.
9. OFFER OF SERVICES
9.1. The offer contained in the contractual letter may only be accepted by written confirmation that the terms are accepted as received within 28 days from the date of issue, unless otherwise indicated, otherwise the offer shall lapse.
10. GOVERNING LAW AND JURISDICTION
10.1. You agree on your own behalf that this agreement shall be governed by, and interpreted and construed in accordance with, English law.
10.2. You irrevocably agree that the Courts of England shall have exclusive jurisdiction to settle any disputes (including claims for set-off and counterclaims) which may arise in connection with the validity, effect, interpretation or performance of the legal relationship established by this agreement or otherwise arising in accordance with this agreement.
11. COMPLAINTS PROCEDURE
11.1. We seek to ensure that our service is satisfactory at all times. If at any time you are dissatisfied with our service, please let us know by telephoning Cheryl Causebrook, Non-Executive Director. We undertake to look into any complaint promptly and to do what we can to resolve the position.
12. WHOLE AGREEMENT
12.1. The terms of the contractual letter set out the entire agreement between the client and The Digital Lookout in connection with the agreement.
12.2. No person has been authorised to give any representations on behalf of The Digital Lookout as regards the subject matter or terms of the contractual letter and any representations which have been or may be given shall not be relied upon unless expressly set out in the contractual letter.
12.3. In the event that any of the terms or provisions of the contractual letter are or shall become invalid, illegal or unenforceable, the remainder shall survive unaffected.