As a business we always seek to operate with the utmost of integrity, trust and simplicity. These Terms of Service “Terms” are terms on which we will work together on the “Project”. By by accepting a “Proposal” ( including any amends) you accept these Terms.
If you are acting in a capacity as an Agent or Agency, then you are responsible for payment of our Fees, and it is your responsibility to ensure that the Contract is binding on your clients and/or the brands you work for.
“Confidential Information”: Any protected information which is expressly indicated to be confidential, is imparted to the receiving party in circumstances importing an obligation of confidence or which could reasonably be regarded as confidential in any form transferred or disclosed by either of us. Confidential Information does not include information which is not protected because the recipient can show that (i) it is or has become generally available to the public; (ii) was in the possession of the recipient prior to the Contract and is not otherwise subject to a confidentiality obligation; or (iii) is provided to the recipient by a third party under no obligation or expectation of confidentiality.
“Contract”: These Terms and the Proposal.
“Fee”: The fee for the provision of the Services on any Project as set out in the Proposal, and which may include additional costs not set out in the Proposal which arise because of changes to the Services that are requested by you.
“Intellectual Property Rights”: All our existing copyright, design rights, registered designs, trademarks, patents, confidential information, ideas, moral rights and all other rights whatsoever whether those rights are registered or not arising from the provision of the Services under the Contract.
“Services”: The specified services to be performed by us for you as set out in the Proposal, and where applicable includes additional agreed Services.
“Territory”: The country/countries as set out in the Proposal.
“UK Data Protection Legislation”: All applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018; the Privacy and Electronic Communications Regulations 2003 (as amended); and the regulatory requirements of the ICO; and
“UK GDPR” : the GDPR as retained in UK law pursuant to the European Union (Withdrawal) Act 2018.
1.1 Your acceptance (by email or other means) of our Proposal (and/or any amends) is approval for us to proceed with the Project or the Services at the agree Fee.
1.2 The Services will be performed as set out in the Proposal.
1.3 During a Project, the Services may change at your request and will need to be agreed via a revised Proposal but reasonable additional Fees may be payable even if a revised Proposal is not issued.
1.4 We are not responsible for Services outside of the Proposal unless and until these become agreed.
1.5 We are not able to, and do not provide tax advice either in relation to tax payable by you, your client or any other third party in any country.
2.1 The Fees payable for the Services will be set out in the Proposal.
2.2 When multiple services are contained in a Proposal, the Fee for the Services is based upon the purchase of the specific combination of Services. The Fee represents a discount on our standard pricing due to the purchase of multiple services from us as a package deal. It does not represent the price of any individual services offered by us if services are sold separately.
2.3 Unless we have agreed something different with you:
2.3.1 We will not incur cost on your behalf. This means we will not purchase prizes, or pay legal suppliers or registration costs, and you’ll need to advanced us the Fees or portion of the Fees necessary to cover these costs.
2.3.2 All Fees are payable within thirty (30) days from the date of our invoice. VAT will be due on the Fees at the rate in place on the date of our invoice.
2.3.3 All Fees are payable in Pounds Sterling unless otherwise agreed.
2.4 Late payment may result in us
2.4.1 withholding delivery of all or any part of the Services
2.4.2 levying late payment interest on a daily basis at the rate of 2% over the base rate of The Bank of England
2.4.3 charging you all reasonable costs and expenses (including reasonable legal costs) incurred in the collection of any overdue amount.
2.4.4 choosing to cancel the Contract and/or suspend any further Services. We accept no liability for any losses you may suffer as a result.
2.5 No deduction or set-off or withholding payment in relation to Fees owed is permitted.
3.1 Additional services or changes to agreed services may result in additional costs, which you agree to pay.
3.2 You agree to reimburse us for all out-of-pocket expenses reasonably and necessarily incurred in providing the Services, such as travel, parking, courier services which may be over and above those specified within the Proposal.
3.3 Whilst we will endeavour to amend our Proposal to reflect these changes it may not always be possible to do this before additional costs are incurred.
Term and Termination of the Contract
4.1 The Project will start and end on the dates specified within the Proposal, unless amended by agreement.
4.2 This Contract will start when you accept the Proposal, or upon commencement of the Services, whichever is the earlier, and end when all obligations of both parties have been completed.
4.3 We each have the right to terminate the Contract, without cause, by giving the other party 90 days written notice.
4.4 In addition, we each have the right to terminate the Contract, with cause, by providing 7 (seven) days written notice of termination if any of the following events occur during the Contract:
4.4.1 if the other commits a material breach of the Contract which (in the case of a breach capable of remedy) is not remedied within fourteen (14) days of its receipt of a written notice identifying the breach and requiring it to be remedied; or
4.4.2 if the other party is declared insolvent and cannot pay its debts, takes steps towards voluntary or involuntary sequestration, winding up, administration or an officer is appointed, or it is ceases to trade or threatens to cease to trade.
4.5 Termination of the Contract or cancellation of the Services will not affect any rights or obligations of either of us which may have accrued before termination.
4.6 You will be liable to us to pay all Fees for all Services performed until the date of termination or cancellation, all third-party costs reasonably and necessarily incurred by us until the end of the termination notice period and the Cancellation Charges.
5.1 We undertake and warrant that:
5.1.1 We have the right to perform the Services as set out in the Proposal.
5.1.2 The Services are fit for the purpose which you have made known to us.
5.1.3 The Services will be performed with due skill and care, in accordance with industry practice and relevant laws and industry codes of practice.
5.1.4 We will allocate sufficient staff, equipment, resources and facilities to perform the Services.
5.1.5 Information and dates proposed by us for the provision of the Services are given in good faith and we will use all reasonable commercial endeavours to ensure that any timescales are met. However, we will not be liable for failure to complete the Services, or any part of them, where such failure is as a result of your delay, or the delay of any third party instructed by you or where the delay is unavoidable.
5.2 You warrant and undertake (and if applicable, you will ensure that your client warrants and undertakes) that:
5.2.1 All necessary rights, consents, permissions and licenses for the use of all materials supplied to us have been obtained.
5.2.2 Where we will be handling Personal Data, that it has been obtained in accordance with all relevant Data Protection laws and that we are approved to process it. Processing may include that we verify entry or winner data and/or that we analyse how the promotion performed and report on it to you.
5.2.3 We shall not be held liable for any third party claims, copyright infringements, proprietary or other property, intellectual property or other rights, royalty claims or any other litigation resulting from such materials or information supplied to us by you.
5.2.4 We shall not be liable for any delay or default in relation to the Services which is due to:
18.104.22.168 failure to provide us with timely instruction or approvals for amended Proposals or Fees.
22.214.171.124 Your act or omission not complying with Industry Laws.
126.96.36.199 Our use of your/your client(s) property and/or any information provided by you or on behalf of your client(s) to us.
5.2.5 That any documentation, facts, opinions or property (including client property) provided by you to us is accurate, is not misleading or defamatory and is authorised to be available to the public and used in any sales promotion communication and otherwise complies with all Industry Laws.
6.1 All existing Intellectual Property belongs to us. Unless otherwise agreed, all future Intellectual Property Rights of whatever nature in all final, selected material arising from a Project will remain with us until the Fee is paid in full at which time the created Intellectual Property Rights will transfer to you.
6.2 Notwithstanding the above, nothing will be deemed to grant any right or licence to you in the existing Intellectual Property Rights insofar as they incorporate any tools, including utility models, know-how, proprietary methodologies, systems, software and programmes as are owned and/or utilised by us to generate the Services, or used or developed otherwise in the course of provision of the Services.
6.3 You hereby grant to us a non-exclusive royalty free licence throughout the world in perpetuity to use the Project as part of our library of works and for the purposes of our own business marketing or promotion.
6.4 If there is a dispute, the infringing party undertakes to indemnify the other party, its officers, directors, employees and agents from and against all actions, proceedings, claims, demands, costs (including reasonable legal costs) awards and damages however arising directly or indirectly or incurred by reason of any unlawful infringement.
Suppliers and Sub-contractors
7.1 You acknowledge that we are an independent business often providing unique solutions to clients. As such we have significant business and intellectual property to protect.
7.2 You agree that you will not be entitled nor will you seek to supervise, direct or control the manner in which we provide the Services or to have access to our contractor or supplier list or the contracts we have with them.
7.3 We are permitted, without limitation, to subcontract or delegate the performance of our obligations under the Contract provided that:
7.3.1 we use reasonable care, skill and due diligence in the selection and appointment of any suppliers required for the provision of the Services
7.3.2 such persons possess the necessary skills to perform the Services to an acceptable level
7.4 When we appoint a supplier, we act as a principal at law and not your agent.
7.5 We will try to negotiate the best terms with third party suppliers, but you acknowledge and accept that we may be bound by the terms imposed on us by those suppliers.
7.6 We will ensure that when necessary, third parties contracted by us in the provision of the Services will enter into written agreements with us and
7.6.1 assign intellectual property specifically created during the course of a Project to us, and waive any non-transferable rights if and when required
7.6.2 are made aware of their data processing obligations.
Data Protection and Data Processing
8.1 Both Parties, and those who you act for or represent, such as the brand agreed to and shall comply with the provisions of Schedule A.
8.2 The provisions of the UK Data Protection Legislation and UK GDPR (in this section referred to collectively as Data Protection Legislation or ‘DPL’) apply to this Contract.
9.1 We conduct our businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with this.
9.2 We will not participate in any corrupt conduct, including, without limitation, any bribery, extortion, fraud, cartels, abuse of power, embezzlement, money-laundering and other similar activities, and are committed to upholding the UK Bribery Act 2010.
10.1 Except as permitted by the Contract, we each agree we will not disclose the other’s Confidential Information, to any third party and will use all Confidential Information solely for the Project.
10.2 We each agree to receive only Confidential Information that is necessary for accomplishing the Project and will take all reasonable steps to limit disclosure of Confidential Information to just those who need to know it and to staff who are bound by confidentiality and non-use obligations substantially similar to those within this section.
10.3 We each agree to use reasonable care to safeguard each other’s Confidential Information against disclosure and misuse.
10.4 We each agree we may disclose Confidential Information if required to do so by law or by a competent court or legitimate government agency only to the extent legally required.
10.5 The recipient of any Confidential Information has no claim, right, title, property or other interest of any kind in the discloser’s Confidential Information.
10.6 We each acknowledge that any disclosure of any Confidential Information in breach of this section may cause the other harm, the amount of which may be difficult to determine. We will each have the right to apply to a court for an order restraining any threatened or further disclosure of Confidential Information, along with any other relief available at law.
11.1 We maintain with reputable insurers suitable policies of insurance to cover our obligations and liabilities under the Contract, including but not limited to global Professional Indemnity Insurance, which covers negligent advice or direction, with a limit of not less than £10 Million.
11.2 We do not provide insurance cover for your materials, equipment and personal effects and are not liable for any loss or damage to your materials, equipment and personal effects including accident, theft, fire, flood, explosion or any other circumstances when loss or damage may occur unless specifically stated within a Proposal.
Limitation of Liability
12.1 Nothing in the Contract will exclude or in any way limit liability for fraud, or for death or personal injury caused by negligence, or any other liability to the extent such liability may not be excluded or limited as a matter of law.
12.2 Neither party will be liable for any loss of actual or anticipated income or profits, loss of contracts, special, indirect or consequential loss or damage of any kind, unless these are specifically covered under our insurance, including our Professional Indemnity Insurance Policy.
13.1 You acknowledge that we have invested significant time, expertise and expense in recruiting and training our staff, and engaging sub-contractors and suppliers to build our business and our intellectual property and you acknowledge that we have a legitimate interest in wanting to protect this.
13.1.1 You agree that, during and for a period of 6 (six) months after the period of the Contract, you will not, nor any person, firm, company, business entity or other organisation, directly or indirectly employ, solicit, entice away, offer employment to or engage the services of our employee.
13.1.2 If you fail to keep this commitment to us, you agree to
188.8.131.52 paying us the equivalent of that person’s annual gross salary/earnings as that person earned in the preceding six (6) month period.
13.1.3 You also agree that you will not approach any third party with whom we have a business relationship with a view to establishing or participating in any business or service which may be competitive with us while we are providing Services to you on this Project and for a period of six (6) months afterwards.
Cancellation of a Project
14.1 If you decide to cancel the Project, after a Proposal has been accepted by, you must do so in writing, and we reserve the right to levy Cancellation Charges.
14.2 These will depend on:
14.2.1 the nature of the Project
14.2.2 whether the Proposal included multiple services and if any discounts were applied
14.2.3 the amount of time and costs already committed to the Project, and
14.2.4 any third-party costs incurred, or which might be incurred, committed or be payable at the time of cancellation or as a result of the cancellation.
15.1 Neither party will be liable for any delay in performing or for failure to perform obligations under the Contract from any event of force majeure.
15.2 However the affected party will use reasonable endeavours to minimise the effects of any event of force majeure and to communicate, promptly, the likely impact on the Project, Services or Fees.
16.1 A third party who is not a party to this Contract has no right to enforce it under the Contracts (Rights of Third Parties) Act 1999.
16.2 Any failure by either party to enforce any provision of the Contract and/or any Proposal will in no way constitute a waiver or affect the rights of either of us to require performance by the other party.
16.3 The Contract shall in no way suggest a partnership, association, joint venture or other co-operative entity between us, and no actions by us shall be taken to suggest same, additionally neither of us have any authority to bind the other in any way except as provided in the Contract.
16.4 If any part of this Contract is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
16.5 This Agreement and any disputes arising out of or in connection with it or its subject matter shall be construed in accordance with and governed exclusively by the laws of, and the courts of England & Wales.
16.6 We each declare that we have the right, power and authority and have taken all action necessary to execute and deliver and to exercise our respective rights and perform our obligations under the Contract.
DATA SHARING & PROCESSING AGREEMENT
This is a Data Sharing & Processing Agreement (“Agreement”) that is required for the Services being provided by us on the Project.
We agree that we both:
• respect the privacy of Consumers and entrants and their personal data;
• comply with the provisions of the relevant data protection legislation, and that PromoVeritas abides by ‘DPL’;
• protect the fundamental rights and freedoms of individuals and respect their right to privacy in the processing of their personal data including where an international transfer of personal data or a restricted transfer of personal data under the DPL applies.
• If you are acting in a capacity as an Agent or Agency, for a brand, they are the Data Controller and all obligations of the DPL apply to you.
Client means our client is the Data Controller, who is the Promoter or their appointed Agency.
Purpose means PromoVeritas is a promotional compliance company providing promotional services to the world’s biggest brands and their agencies. PromoVeritas is providing Services including administering a promotion under the Contract, and is the Data Processor. The Services include administering aspects of the promotion and processing the personal data of Consumers / entrants who have entered promotions and provide statistical analysis and reporting on how the promotion performed. The purpose of the processing is for us to provide the Services under the Contract.
Data means Project related consumer data, gathered during the Services or shared by the Data Controller or its nominee with us.
Legal Basis means the Legal basis for the processing of the personal data is usually a) consumer consent or b) the performance of a consumer facing contract i.e., the promotional specific Terms & Conditions. This is the contractual agreement between Consumers who enter promotions and the Promoter.
TRANSFER AND PROCESSING
We provide the Services to the the Client who instructs us to processing the Data.
The Services and the Purpose may require an international transfer of personal data to us, including when UK has left the European Union. The Purpose may also require that we send the personal data to you or your client who may be located in the EEA, or elsewhere during the promotion. For this reason, we have incorporated UK approved clauses as per the DPL.
In consideration for the exchange, provision and/or receipt of the personal data for the Purpose and intending to be legally bound by the DPL, we agree as follows:
Definitions and Interpretation
17.1. Unless the context otherwise requires, the following words and expressions have the following meanings:
17.1.1. Data Controller, data, data breach, data protection officer (“DPO”), data subject, personal data, processing, Data Processor, representative, sensitive personal data, subject access request, and supervisory authority shall have the same meaning as in and for the DPL.
17.1.2. EEA means the European Economic Area. EU GDPR means the General Data Protection Regulation 2016/679 (EU) which is the governing legislation for collecting and processing personal data in the EU. Following the end of the Brexit transition period on 31 December 2020, most of the EU GDPR was retained in UK law by the European Union (Withdrawal) Act 2018. The retained GDPR is known as the “UK GDPR”. The UK GDPR is supplemented by the Data Protection Act 2018.
For Personal Data that the Data Controller or its Agency (as the case may be) shares with us, we warrant to
18.1 Keep the personal data confidential and process the personal data only for the Purpose;
18.2 Process personal data only on the instructions of the Data Controller;
18.3 Use reliable staff and professional advisors, who have committed to confidentiality in writing and understand their obligations in the processing of the personal data;
18.4 At our own expense comply with obligations equivalent to those imposed on the Data Controller by Articles 5(1)(f) (i.e. processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures), and 32 (security of processing) of the DPL (“Security Obligations”);
18.5 On request by the Data Controller, or its Agency we will promptly complete and return an information security questionnaire intended to confirm our compliance or continued compliance with the DPL, such request not to be made more than once per calendar year for personal data, or more than once per six months for sensitive personal data, except in the case of a data breach where such requests may be made as required until the Data Processor has reasonably satisfied you of compliance with the DPL;
18.6 On reasonable written notice provide necessary access and reasonable assistance to enable the Data Controller to audit the Data Processor’s compliance with its obligations under this data protection clause, such audit not to be made more than once per calendar year except in the case of a data breach where such an audit may be made as required until the Data Processor has reasonably satisfied the Data Controller of compliance with its obligations under this data protection clause;
18.7 Have a general written record of processing including instructions received from the Data Controller, processing carried out on behalf of Data Controller, transfers to third parties or third States, and a general description of technical and organisational security measures (“Processing Records”);
18.8 At our own expense assist the Data Controller to comply with data subject access requests;
18.9 Notify the Data Controller of any relevant data breach immediately upon becoming aware of same, co-operate with any investigation conducted by the Data Controller in respect of the data breach, and promptly provide to the Data Controller all information required to be notified to data subjects and/or supervisory authorities (“Breach Information”);
10.10 Not transfer personal data outside the EEA without Data Controller’s instruction or when necessary to perform the Purpose and the Services.
18.11 On request by the Data Controller we will delete and/or destroy the Data in compliance with our Security Obligations; and
18.12 On request by the Data Controller we will notify and keep the Data Controller updated as to the Data Processor’s organisation name, registration number, registered address, and primary place of business, the name and contact details for the Data Processor’s current data protection officer and any representative (“Data Processor Contact Details”).
18.13 If the Project requires this, the Data Controller specifically consents or instructs us to the transfer of personal data to us, and that we transfer it including outside the EEA.
For Personal Data that the Data Controller (or its Agency as the case may be) collects and shares with the Data Processor, the Data Controller, directly or indirectly via its appointed agency warrants to:
19.1 Control and/or process and/or transfer all personal data strictly in accordance with the terms of the Contract and its direct obligations as well as any industry related guidance or best practice.
19.2 Control and/or process and/or transfer any personal data in a manner consistent with the requirements of DPL and with any guidance issued or any other competent authorities.
19.3 Implement appropriate due diligence, technical and organisational security measures, policies and procedures to safeguard all personal data from all and any form of unauthorised, unlawful or accidental processing, loss, alternation, destruction or damage as well as ensuring against unauthorised access or disclosure including while personal data is being transferred over a network.
19.4 Maintain adequate documentation to evidence the policies and procedures implemented consistent with the requirements of the DPL.
19.5 Prior to sharing any personal data in a manner consistent with the requirements of the DPL, and in accordance with its obligations:
19.5.1 notify the Data Processor regarding the scope and extent of its responsibilities and activities in relation to the personal data, including but not limited to, the purpose for which the personal data was collected, what contract/consents were obtained from the data subject and the manner in which consent was obtained, and any time limits after which personal data can no longer be processed.
19.5.2 appoint a data protection officer if required under the DPL and conduct a data protection impact assessment for any sensitive and/or high-risk processing you require us to undertake.
19.5.3 in relation to any data breach impacting personal data we process on its behalf and, at Data Controller’s option, in accordance with the DPL
184.108.40.206 To notify the reevant Supervisory Authority, without undue delay and, within 72 hours of becoming aware of the breach.
220.127.116.11 To notify the data subject (as defined under the DPL) without undue delay.
19.6 The Data Controller or its Agency as the case may be will fully indemnify and keep us indemnified against all claims, demands, actions, costs, expenses, losses and damages (including reasonable legal fees) arising from or incurred by reason of any loss, damage or distress suffered by any person as a direct result of your breach of any of your obligations under this section or any of the provisions of the. You will have conduct of the defence of any claim which falls within this indemnity. We will supply you with all information relating to such claim as soon as we become aware of the same (including any notice or warning of such claim received by us).
No Party may assign this Agreement to any other person other than a member of that Party’s Group without the prior written consent of the other Party, such consent not to be unreasonably withheld, delayed or conditioned. Any purported assignment in breach of this clause shall be deemed null and void.
No rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.
Annexure to Agreement
This is an annexure to the Contract, and the Contract constitutes the entire agreement between the Parties. Each Party acknowledges that in entering into this Agreement it has not relied on any warranty, representation or other promise of any nature not contained in this Agreement.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, that provision will be severed from this Agreement and the remainder of the Agreement shall continue in full force and effect to the maximum extent permitted by law.