Please read these Terms and Conditions carefully. All contracts that the Provider
may enter into from time to time for the provision of the Provider’s services shall be
governed by these Terms and Conditions, and the Client agrees to these Terms & Conditions upon signing up for any of the services published on this website.
Terms of Service
- Definitions
1.1 In these Terms and Conditions, except to the extent expressly provided
otherwise:
“Advertising Management Services” means the arrangement and
management of internet advertising by the Provider for the Client, which may
include pay-per-click advertising, pay-per-view advertising, banner advertising
and other forms of paid internet advertising, as specified in Section 2 of the
Statement of Work;
“Business Day” means any weekday other than a bank or public holiday in
England;
“Business Hours” means the hours of 09:00 to 17:00 GMT/BST on a Business
Day;
“Charges” means:
(a) the amounts specified in Section 3 of the Statement of Work and
elsewhere in these Terms and Conditions;
“Client” means the person or entity identified as such in Section 1 of the
Statement of Work;
“Client Confidential Information” means:
(a) any information disclosed by or on behalf of the Client to the Provider at
any time before the termination of the Contract (whether disclosed in
writing, orally or otherwise) that at the time of disclosure was marked or
described as “confidential” or should have been understood by the
Provider (acting reasonably) to be confidential; and
(b) the financial terms of the Contract;
“Client Indemnity Event” has the meaning given to it in Clause 22.3;
“Client Materials” means all works and materials supplied by or on behalf of
the Client to the Provider for incorporation into the Deliverables or for some
other use in connection with the Services;
“Client Personal Data” means any Personal Data that is processed by the
Provider on behalf of the Client in relation to the Contract, but excluding
[personal data] with respect to which the Provider is a data controller;
“Client Trade Marks” means the following registered and unregistered trade
marks of the Client: (please provide these via email);
“Client Websites” means any website or websites of the Client in respect of
which the Services are provided or in respect of which the Provider has an
obligation to provide the Services;
“Confidential Information” means the Provider Confidential Information and
the Client Confidential Information;
“Consultancy Services” means the consultancy services specified in Section
2 of the Statement of Work;
“Contract” means a particular contract made under these Terms and
Conditions between the Provider and the Client;
“Data Protection Laws” means the EU GDPR and the UK GDPR and all other
applicable laws relating to the processing of Personal Data;
“Deliverables” means those [deliverables] specified in REFERENCE TARGET
REMOVED that the Provider has agreed to deliver to the Client under these
Terms and Conditions, and such other deliverables as the parties may agree in
writing from time to time;
“Effective Date” means the date of execution of the Contract;
“EU GDPR” means the General Data Protection Regulation (Regulation (EU)
2016/679) and all other EU laws regulating the processing of Personal Data, as
such laws may be updated, amended and superseded from time to time;
“Force Majeure Event” means an event, or a series of related events, that is
outside the reasonable control of the party affected (including failures of the
internet or any public telecommunications network, hacker attacks, denial of
service attacks, virus or other malicious software attacks or infections, power
failures, industrial disputes affecting any third party, changes to the law,
disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist
attacks and wars);
“Intellectual Property Rights” means all intellectual property rights
wherever in the world, whether registrable or unregistrable, registered or
unregistered, including any application or right of application for such rights
(and these “intellectual property rights” include copyright and related rights,
database rights, confidential information, trade secrets, know-how, business
names, trade names, trade marks, service marks, passing off rights, unfair
competition rights, patents, petty patents, utility models, semi-conductor
topography rights and rights in designs);
“Minimum Term” means, in respect of the Contract, the period specified in
REFERENCE TARGET REMOVED;
“Online Account” means any user or customer account on any third party
website, or on any third party software application accessible via the internet,
that is used by the Provider in the course of providing the Services;
“Personal Data” means personal data under any of the Data Protection
Laws;
“Provider” means Polarize Ltd, a company incorporated in England and Wales
(registration number 12944077) having its registered office at 20-22 Wenlock
Road, London, England, N1 7GU;
“Provider Confidential Information” means:
(a) any information disclosed by or on behalf of the Provider to the Client at
any time before the termination of the Contract (whether disclosed in
writing, orally or otherwise) that at the time of disclosure was marked or
described as “confidential” or should have been understood by the
Client (acting reasonably) to be confidential; and
(b) the financial terms of the Contract;
“Provider Indemnity Event” has the meaning given to it in Clause 22.1;
“Search Marketing Services” means any or all of the following services, as
agreed by the parties in Section 2 of the Statement of Work:
(a) researching the history of websites, their structure and their
performance in the search engine results pages;
(b) keyword research in relation to websites;
(c) formulating a search engine optimisation strategy for websites;
(d) modification of websites (including adding, deleting and/or altering text,
images, pages, meta-tags, titles, mark-ups, style sheets, scripts,
applications, internal and external links and website structure);
(e) paid and unpaid submissions to search engines, directories and other
listings websites;
(f) the creation and publication of websites, and of material and
applications relating to the Client on websites;
(g) link building and link baiting;
(h) the use of social media and social networks to generate signals that
may have a direct or indirect effect on search engine rankings; and
(i) other search engine optimisation techniques, whether known on the
Effective Date or devised or disseminated thereafter;
“Services” means any services that the Provider provides to the Client, or has
an obligation to provide to the Client, under these Terms and Conditions;
“Social Media Marketing Services” means the creation of accounts
connected to the Client on Social Media Platforms, the establishment and
growth of user networks associated with such accounts, the creation of
content for publication on and distribution through Social Media Platforms, the
publication of such content on and distribution of such content through Social
Media Platforms, and the monitoring and analysis of the impact of these
services, as detailed in Section 2 of the Statement of Work;
“Social Media Platforms” means Facebook, Twitter, YouTube and LinkedIn,
and any other social media platforms agreed by the parties in writing from
time to time;
“Statement of Work” means a written statement of work agreed by or on
behalf of each of the parties;
“Term” means the term of the Contract, commencing in accordance with
Clause 2.1 and ending in accordance with Clause 2.2;
“Terms and Conditions” means all the documentation containing the
provisions of the Contract, namely the main body of these Terms and
Conditions, Schedule 1 (Acceptable Use Policy) and the Statement of Work,
including any amendments to that documentation from time to time;
“Third Party Materials” means the works and/or materials comprised in the
Deliverables (excluding the Client Materials), the Intellectual Property Rights
in which are owned by a third party, and which are specified in REFERENCE
TARGET REMOVED or which the parties agree in writing shall be incorporated
into the Deliverables;
“UK GDPR” means the EU GDPR as transposed into UK law (including by the
Data Protection Act 2018 and the Data Protection, Privacy and Electronic
Communications (Amendments etc) (EU Exit) Regulations 2019) and all other
UK laws regulating the processing of Personal Data, as such laws may be
updated, amended and superseded from time to time; and
“Web Content Services” means the design, development, creation,
adaptation and delivery of content (which may include text, images, designs,
audio material, video material and/or software) for use online by the Client, in
accordance with Section 2 of the Statement of Work. - Term
2.1 The Contract shall come into force upon the Effective Date.
2.2 The Contract shall continue in force until cancellation, upon which the
Contract shall terminate automatically, subject to termination in accordance
with Clause 25 or any other provision of these Terms and Conditions.
2.3 Unless the parties expressly agree otherwise in writing, each Statement of
Work shall create a distinct contract under these Terms and Conditions. - Consultancy Services
3.1 The Provider shall provide the Consultancy Services to the Client during the
Term.
3.2 The Provider shall keep the Client informed about the progress of the
Consultancy Services and, in particular, shall promptly provide information
about such progress following receipt of a written request from the Client to
do so.
3.3 The Provider shall comply with all reasonable requests and directions of the
Client in relation to the Consultancy Services. - Web Content Services
4.1 The Provider shall provide the Web Content Services to the Client during the
Term.
4.2 The Client must promptly, following receipt of a written request from the
Provider to do so, provide written feedback to the Provider concerning the
Provider’s proposals, plans, designs and/or preparatory materials for
Deliverables to be supplied through the Web Content Services and made
available to the Client with that written request. - Search Marketing Services
5.1 The Provider shall provide the Search Marketing Services to the Client during
the Term.
5.2 The Provider undertakes to the Client that it will not, in the course of providing
the Search Marketing Services, use any technique that is in clear breach of
the Google Webmaster Guidelines (in the form published at the time the
relevant technique is actively used).
5.3 The Client acknowledges and agrees that:
(a) search engine algorithms will change from time to time, which may
affect website rankings in the search engine results pages, and the
Provider has no control over such changes;
(b) it can take months for the Search Marketing Services to have any
significant effects upon the ranking of a website in the search engine
results pages;
(c) website promotion is an ongoing task and, should the Client terminate
the Contract and/or stop promoting a website, that may have a negative
impact upon the effects of the Search Marketing Services;
(d) the Provider will not be responsible for any alterations to a website
made by the Client or any third party that reverse or otherwise affect
changes made to that website by the Provider in connection with the
Search Marketing Services; and
(e) notwithstanding the Search Marketing Services, a website’s search
engine results page rankings and traffic levels may decrease as well as
increase.
5.4 Subject to Clause 23.1, and save as expressly provided elsewhere in these
Terms and Conditions, the Provider does not give any guarantees in relation to
the outcomes of the Search Marketing Services, and in particular does not
guarantee that the Search Marketing Services will result in higher search
engine results page rankings, increased website traffic, increased revenue or
increased profits. - Advertising Management Services
6.1 The Provider shall provide the Advertising Management Services to the Client
during the Term.
6.2 The Provider shall ensure that the Advertising Management Services are
provided in such a way as to meet, or have a reasonable prospect of meeting,
the marketing objectives set out in the Statement of Work or otherwise
agreed by the parties in writing.
6.3 The Client shall supply to the Provider such marketing materials as the parties
may have agreed in writing will be supplied by the Client, and such other
marketing materials as the Provider may reasonably request from the Client.
Such marketing materials shall be supplied in accordance with any timetable
agreed by the parties, or promptly if no such timetable has been agreed. The
parties acknowledge and agree that such marketing materials shall constitute
Client Materials for the purposes of these Terms and Conditions.
6.4 The Provider shall give to the Client written notice of the form of each new or
modified advertisement created by the Provider on behalf of the Client
through the Advertising Management Services. Such notice shall be given at
least 10 Business Days before the proposed first publication date of the new
or modified advertisement.
6.5 The Client shall, within 10 Business Days following receipt of notice of a new
or modified advertisement, either approve, reject or request modifications to
the advertisement, in each case in writing. The Provider must not publish an
advertisement unless it has received the Client’s approval in writing.
6.6 Without prejudice to any other rights the Client may have, the Client may at
any time request (in writing) that the Provider arrange for an advertisement
published through the Advertising Management Services to be removed from
publication; and following receipt of such a request the Provider must seek to
remove the relevant advertisement from publication as soon as reasonably
practicable.
6.7 The Client shall be responsible for paying third party services providers in
respect of fees for advertisements published through the Advertising
Management Services. - Social Media Marketing Services
7.1 The Provider shall provide the Social Media Marketing Services to the Client
during the Term.
7.2 Each party must comply with the terms and conditions of the Social Media
Platforms in respect of its activities relating to the Social Media Marketing
Services and the Contract more generally.
7.3 Subject to Clause 23.1, but notwithstanding any plans or projections
communicated by the Provider to the Client, the Provider does not give any
guarantees in relation to the outcomes of the Social Media Marketing
Services, and in particular does not guarantee that the Social Media Marketing
Services will result in increased website traffic, user engagement, revenue or
profits. - Deliverables
8.1 The Provider shall deliver the Deliverables to the Client.
8.2 The Provider shall use reasonable endeavours to ensure that the Deliverables
are delivered to the Client in accordance with the timetable set out in
REFERENCE TARGET REMOVED or agreed by the parties in writing.
8.3 The Provider warrants to the Client that:
(a) the Deliverables will conform with the requirements of REFERENCE
TARGET REMOVED as at [date];
(b) the Deliverables will be free from material defects; and
(c) the Deliverables when used by the Client in accordance with these
Terms and Conditions will not infringe the Intellectual Property Rights or
other legal rights of any person, and will not breach the provisions of
any law, statute or regulation, in any jurisdiction and under any
applicable law.
8.4 To the extent that the Deliverables are used or intended to be used by the
Client for any purpose regulated by the UK Code of Non-broadcast Advertising
and Direct & Promotional Marketing (the CAP Code), the Provider warrants to
the Client that those Deliverables will comply with that code in the context of
such use, providing that the Provider shall not be in breach of this warranty to
the extent that such breach arises out of any breach of the Contract by the
Client. - Client obligations
9.1 Save to the extent that the parties have agreed otherwise in writing, the
Client must provide to the Provider, or procure for the Provider, such:
(a) co-operation, support and advice;
(b) information and documentation; and
(c) governmental, legal and regulatory licences, consents and permits,
as are reasonably necessary to enable the Provider to perform its obligations
under the Contract.
9.2 The Client shall provide to the Provider:
(a) assistance in determining appropriate keywords and keyword phrases to
be targeted using the Services;
(b) such articles, blog posts and other written materials as the Provider may
reasonably request in connection with the performance of the Services;
(c) direct access to analytical data concerning the Client’s relevant
websites, such as data concerning referral sources, visitor activity,
website usage, conversion rates and similar; and
(d) an email account using a relevant Client domain name.
9.3 The Client acknowledges that the promotion of a website may lead to
increased bandwidth, processing capacity and/or storage requirements for the
website, and the Client shall be responsible for arranging and paying for any
services required to meet such requirements. - Client Materials
10.1 The Client must supply to the Provider the Client Materials specified in
REFERENCE TARGET REMOVED, in accordance with any timetable specified in
REFERENCE TARGET REMOVED.
10.2 The Client hereby grants to the Provider a non-exclusive licence to copy,
reproduce, store, distribute, publish, export, adapt, edit and translate the
Client Materials to the extent reasonably required for the performance of the
obligations of the Provider and the exercise of the rights of the Provider under
these Terms and Conditions, together with the right to sub-license these
rights.
10.3 The Client warrants to the Provider that the Client Materials when used by the
Provider in accordance with these Terms and Conditions will not infringe the
Intellectual Property Rights or other legal rights of any person, and will not
breach the provisions of any law, statute or regulation, in any jurisdiction and
under any applicable law.
10.4 To the extent that the Client Materials are used by the Provider, with the
knowledge of the Client, for any purpose regulated by the UK Code of Nonbroadcast Advertising and Direct & Promotional Marketing (the CAP Code), the
Client warrants to the Provider that those Client Materials will comply with
that code in the context of such use. - Client Websites
11.1 The Client shall provide to the Provider, promptly following receipt of a written
request from the Provider, the facilities to access and make changes to the
Client Websites to the extent reasonably necessary to enable the Provider to
fulfil its obligations under these Terms and Conditions.
11.2 The Client must not reverse, revert or materially alter any changes to the
Client Websites made by or upon the instructions of the Provider in the course
of providing the Services without notifying the Provider in writing in advance.
11.3 The Client must not use the Client Websites:
(a) to host, store, send, relay or process any material; or
(b) for any purpose,
which is unlawful, illegal or fraudulent, or which breaches any applicable laws,
regulations or legally binding codes, or infringes any third party rights, or may
give rise to any form of legal action against any person. - Online Accounts
12.1 The Provider shall have and retain all rights to any Online Accounts that were
created by or on behalf of the Provider before the Effective Date or were used
by the Provider in the connection with the fulfilment of the Provider’s
obligations under these Terms and Conditions only after they had been used
by the Provider to provide services to one or more third parties. The Provider
shall have no obligation to provide to the Client any access to such Online
Accounts, whether during or after the Term.
12.2 The Client shall have and retain all rights to any Online Accounts that are
created by the Client or by any third party on behalf of the Client, whether or
not the Client provides to the Provider login details to enable the Provider to
utilise those Online Accounts. The Provider must not take any action that will
prevent the Client from continuing to access and use such Online Accounts.
The Provider must not without the prior written consent of the Client use such
Online Accounts after the end of the Term.
12.3 If the Provider creates any Online Accounts after the Effective Date (excluding
accounts that the Provider uses to provide services to a third party customer
before use in connection with the fulfilment of the Provider’s obligations under
these Terms and Conditions), then the Client shall have and retain all rights to
such Online Accounts. The Provider must promptly following receipt of a
written request from the Client supply to the Client login details for such
Online Accounts. If the Provider has not previously done so, the Provider must
promptly following the end of the Term supply to the Client login details for
such Online Accounts, and the Provider must not itself use any such Online
Accounts after the end of the Term without the prior written consent of the
Client.
12.4 The parties may from time to time agree in writing derogations from the rules
set out in this Clause 12 relating to the Online Accounts. - Client Trade Marks
13.1 Within 10 Business Days following the Effective Date, the Client shall provide
or make available to the Provider representations of the Client Trade Marks in
a digital format reasonably satisfactory to the Provider.
13.2 The Client grants to the Provider a non-exclusive licence to use the Client
Trade Marks during the Term for the purposes (and only for the purposes) of
enabling the provision of the Services to the Client, and providing that the
Client has given its prior written consent in relation to the type of use in
question, or the Client has not objected to the type of use within the period of
10 Business Days following receipt of a written notice from the Provider
detailing the type of use in question.
13.3 The Provider must ensure that all uses of the Client Trade Marks will be in
accordance with any style guide supplied or made available by the Client to
the Provider.
13.4 The Provider shall ensure that all instances of the use of the Client Trade
Marks will be of a reasonable professional standard.
13.5 Notwithstanding any other provision of these Terms and Conditions, the
Provider must not use the Client Trade Marks in any way that:
(a) may invalidate or lead to the revocation of or otherwise jeopardise any
registered trade mark protection benefiting the Client Trade Marks;
(b) may assist with any application to cancel or invalidate any registered
Client Trade Mark or any opposition to any application by the Client to
register any Client Trade Mark;
(c) is likely to cause harm to the goodwill attaching to any of the Client
Trade Marks;
(d) may prejudice the right or title of the Client to the Client Trade Marks; or
(e) is liable to bring the Client or any Client Trade Mark into disrepute.
13.6 All goodwill arising as a result of, or in relation to, the use of the Client Trade
Marks will accrue exclusively to the Client.
13.7 If the Client considers that a use of the Client Trade Marks by the Provider
breaches the provisions of this Clause 13 or is otherwise undesirable, the
Client may issue a notice to the Provider requesting that such usage cease,
and the Provider must ensure that such usage will cease within 5 Business
Days following receipt of such a notice.
13.8 The Client warrants to the Provider that the use by the Provider of the Client
Trade Marks in accordance with these Terms and Conditions will not infringe
any person’s Intellectual Property Rights in any jurisdiction and under any
applicable law.
13.9 The Provider will not by virtue of the Contract obtain or claim any right, title or
interest in or to the Client Trade Marks except as expressly set out in these
Terms and Conditions.
13.10Within 10 Business Days following the termination of the Contract, the
Provider must cease to use the Client Trade Marks and must:
(a) remove or permanently obscure Client Trade Marks that appear on any
works and materials in the possession or control of the Provider; and
(b) to the extent that neither removal nor permanent obscuring is
practicable, deliver to the Client or destroy (as the Provider shall
determine) all those works and materials in the possession or control of
the Provider on which the Client Trade Marks appear. - Intellectual Property Rights
14.1 The Provider hereby grants to the Client a non-exclusive, worldwide, perpetual
and irrevocable licence to copy, store, distribute, publish, adapt, edit and
otherwise use the Deliverables (excluding the Third Party Materials and the
Client Materials) for the following purposes: social media/website content.
14.2 The Provider shall ensure that the Third Party Materials are:
(a) licensed to the Client in accordance with the relevant licensor’s
standard licensing terms;
(b) licensed to the Client on reasonable terms notified by the Provider to
the Client;
(c) sub-licensed by the Provider to the Client on reasonable terms notified
in writing by the Provider to the Client; or
(d) sub-licensed by the Provider to the Client on the basis of a nonexclusive, worldwide, perpetual and irrevocable licence to use the Third
Party Materials in connection with the Deliverables,
as reasonably agreed between the parties from time to time.
14.3 To the maximum extent permitted by applicable law:
(a) the Provider irrevocably and unconditionally waives all moral rights
(including rights of paternity and rights of integrity) in respect of the
Deliverables to which the Provider may at any time be entitled; and
(b) the Provider undertakes to ensure that all individuals involved in the
preparation of the Deliverables will irrevocably and unconditionally
waive all moral rights (including rights of paternity and rights of
integrity) in respect of the Deliverables to which they may at any time
be entitled.
14.4 The Provider must use reasonable endeavours to:
(a) do or procure the doing of all acts; and
(b) execute or procure the execution of all documents,
that the Client may reasonably request from time to time in order to perfect or
confirm the Client’s ownership of the rights assigned by these Terms and
Conditions. - Reputation and goodwill
15.1 The Provider undertakes that it will not, during the Term and without the prior
written consent of the Client, take any action that will or is reasonably likely to
have a material negative impact on the reputation and/or goodwill of the
Client.
15.2 The Client undertakes that it will not, during the Term and without the prior
written consent of the Provider, take any action that will or is reasonably likely
to have a material negative impact on the reputation and/or goodwill of the
Provider. - Charges
16.1 The Client shall pay the Charges to the Provider in accordance with these
Terms and Conditions.
16.2 If the Charges are based in whole or part upon the time spent by the Provider
performing the Services, the Provider must obtain the Client’s written consent
before performing Services that result in any estimate of time-based Charges
given to the Client being exceeded or any budget for time-based Charges
agreed by the parties being exceeded; and unless the Client agrees otherwise
in writing, the Client shall not be liable to pay to the Provider any Charges in
respect of Services performed in breach of this Clause 16.2.
16.3 All amounts stated in or in relation to these Terms and Conditions are, unless
the context requires otherwise, stated exclusive of any applicable value added
taxes, which will be added to those amounts and payable by the Client to the
Provider.
16.4 The Provider may elect to vary any element of the Charges by giving to the
Client not less than 30 days’ written notice of the variation expiring on any
anniversary of the date of execution of the Contract, providing that no such
variation shall constitute a percentage increase in the relevant element of the
Charges that exceeds 2% over the percentage increase, since the date of the
most recent variation of the relevant element of the Charges under this
Clause 16.4 (or, if no such variation has occurred, since the date of execution
of the Contract), in the Retail Prices Index (all items) published by the UK
Office for National Statistics. - Timesheets
17.1 The Provider must:
(a) ensure that the personnel providing Services, the Charges for which will
be based in whole or part upon the time spent in the performance of
those Services, complete reasonably detailed records of their time spent
providing those Services; and
(b) retain such records during the Term, and for a period of at least 12
months following the end of the Term.
17.2 Within 10 Business Days following receipt of a written request, the Provider
shall supply to the Client copies of such of the timesheets referred to in
Clause 17.1 and in the Provider’s possession or control as the Client may
specify in that written request. - Payments
18.1 The Provider shall issue invoices for the Charges to the Client in advance of
the delivery of the relevant Services to the Client.
18.2 The Client must pay the Charges to the Provider within the period of 7 days
following the issue of an invoice in accordance with this Clause 18.
18.3 The Client must pay the Charges by debit card, credit card, direct debit, bank
transfer or cheque (using such payment details as are notified by the Provider
to the Client from time to time).
18.4 If the Client does not pay any amount properly due to the Provider under
these Terms and Conditions, the Provider may:
(a) charge the Client interest on the overdue amount at the rate of 8% per
annum above the Bank of England base rate from time to time (which
interest will accrue daily until the date of actual payment and be
compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Client pursuant to
the Late Payment of Commercial Debts (Interest) Act 1998. - Confidentiality obligations
19.1 The Provider must:
(a) keep the Client Confidential Information strictly confidential;
(b) not disclose the Client Confidential Information to any person without
the Client’s prior written consent, and then only under conditions of
confidentiality approved in writing by the Client;
(c) use the same degree of care to protect the confidentiality of the Client
Confidential Information as the Provider uses to protect the Provider’s
own confidential information of a similar nature, being at least a
reasonable degree of care;
(d) act in good faith at all times in relation to the Client Confidential
Information; and
(e) not use any of the Client Confidential Information for any purpose other
than the service.
19.2 The Client must:
(a) keep the Provider Confidential Information strictly confidential;
(b) not disclose the Provider Confidential Information to any person without
the Provider’s prior written consent, and then only under conditions of
confidentiality approved in writing by the Provider;
(c) use the same degree of care to protect the confidentiality of the
Provider Confidential Information as the Client uses to protect the
Client’s own confidential information of a similar nature, being at least a
reasonable degree of care;
(d) act in good faith at all times in relation to the Provider Confidential
Information; and
(e) not use any of the Provider Confidential Information for any purpose
other than the service.
19.3 Notwithstanding Clauses 19.1 and 19.2, a party’s Confidential Information
may be disclosed by the other party to that other party’s officers, employees,
professional advisers, insurers, agents and subcontractors who have a need to
access the Confidential Information that is disclosed for the performance of
their work with respect to the Contract and who are bound by a written
agreement or professional obligation to protect the confidentiality of the
Confidential Information that is disclosed.
19.4 No obligations are imposed by this Clause 19 with respect to a party’s
Confidential Information if that Confidential Information:
(a) is known to the other party before disclosure under these Terms and
Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the other
party; or
(c) is obtained by the other party from a third party in circumstances where
the other party has no reason to believe that there has been a breach of
an obligation of confidentiality.
19.5 The restrictions in this Clause 19 do not apply to the extent that any
Confidential Information is required to be disclosed by any law or regulation,
by any judicial or governmental order or request, or pursuant to disclosure
requirements relating to the listing of the stock of either party on any
recognised stock exchange.
19.6 Upon the termination of the Contract, each party must immediately cease to
use the other party’s Confidential Information.
19.7 Following the date of effective termination of the Contract, and within 5
Business Days following the date of receipt of a written request from the other
party, the relevant party must:
(a) irreversibly delete from its media and computer systems all copies of
the other party’s Confidential Information (and ensure that the other
party’s Confidential Information is irreversibly deleted from the media
and computer systems of all persons to whom the relevant party has
directly or indirectly disclosed that Confidential Information);
(b) ensure that no other copies of the other party’s Confidential Information
remain in the relevant party’s possession or control (or the possession
of control of any person to whom the relevant party has directly or
indirectly disclosed the other party’s Confidential Information);
(c) certify in writing to the other party that it has complied with the
requirements of this Clause 19.7,
subject in each case to any obligations that the relevant party has under the
Contract to supply or make available to the other party any data or
information, and providing that the relevant party shall have no obligation
under this Clause 19.7 to delete or to cease to possess or control any of the
other party’s Confidential Information to the extent that the relevant party is
required by applicable law to retain that Confidential Information.
19.8 The provisions of this Clause 19 shall continue in force indefinitely following
the termination of the Contract. - Data protection
20.1 Each party shall comply with the Data Protection Laws with respect to the
processing of the Client Personal Data.
20.2 The Client warrants to the Provider that it has the legal right to disclose all
Personal Data that it does in fact disclose to the Provider under or in
connection with the Contract.
20.3 The Client shall only supply to the Provider, and the Provider shall only
process, in each case under or in relation to the Contract, the Personal Data of
contact data of the following types: name, email, business name, phone
number, website, service credentials, social media accounts, etc.; and the
Provider shall only process the Client Personal Data for the following purposes:
the service.
20.4 The Provider shall only process the Client Personal Data during the Term and
for not more than 30 days following the end of the Term, subject to the other
provisions of this Clause 20.
20.5 The Provider shall only process the Client Personal Data on the documented
instructions of the Client (including with regard to transfers of the Client
Personal Data to a third country under the Data Protection Laws), as set out in
these Terms and Conditions or any other document agreed by the parties in
writing.
20.6 The Client hereby authorises the Provider to make the following transfers of
Client Personal Data:
(a) the Provider may transfer the Client Personal Data internally to its own
employees, offices and facilities in England, UK, providing that such
transfers must be protected by appropriate safeguards, namely email or
other encrypted internal communication platform;
(b) the Provider may transfer the Client Personal Data to its third party
processors in the jurisdictions identified elsewhere in this Clause 20 and
may permit its third party processors to make such transfers, providing
that such transfers must be protected by any appropriate safeguards
identified therein;
(c) the Provider may transfer the Client Personal Data to a country, a
territory or sector to the extent that the competent data protection
authorities have decided that the country, territory or sector ensures an
adequate level of protection for Personal Data;
(d) the Provider may transfer the Client Personal Data from the UK to the
EEA, and may permit its third party processors to do so, in any period
during which EEA states are not treated as third countries under the UK
GDPR or during which EEA states benefit from adequacy regulations
under the UK GDPR; and
(e) the Provider may transfer the Client Personal Data from the EEA to the
UK, and may permit its third party processors to do so, in any period
during which the UK is not treated as a third country under the EU GDPR
or during which the UK benefits from an adequacy decision under the
EU GDPR.
20.7 The Provider shall promptly inform the Client if, in the opinion of the Provider,
an instruction of the Client relating to the processing of the Client Personal
Data infringes the Data Protection Laws.
20.8 Notwithstanding any other provision of the Contract, the Provider may process
the Client Personal Data if and to the extent that the Provider is required to do
so by applicable law. In such a case, the Provider shall inform the Client of the
legal requirement before processing, unless that law prohibits such
information on important grounds of public interest.
20.9 The Provider shall ensure that persons authorised to process the Client
Personal Data have committed themselves to confidentiality or are under an
appropriate statutory obligation of confidentiality.
20.10The Provider and the Client shall each implement appropriate technical and
organisational measures to ensure an appropriate level of security for the
Client Personal Data.
20.11The Provider must not engage any third party to process the Client Personal
Data without the prior specific or general written authorisation of the Client. In
the case of a general written authorisation, the Provider shall inform the Client
at least 3 days in advance of any intended changes concerning the addition or
replacement of any third party processor, and if the Client objects to any such
changes before their implementation, then the Provider must not implement
the changes. The Provider shall ensure that each third party processor is
subject to equivalent legal obligations as those imposed on the Provider by
this Clause 20.
20.12The Provider shall, insofar as possible and taking into account the nature of
the processing, take appropriate technical and organisational measures to
assist the Client with the fulfilment of the Client’s obligation to respond to
requests exercising a data subject’s rights under the Data Protection Laws.
20.13The Provider shall assist the Client in ensuring compliance with the obligations
relating to the security of processing of personal data, the notification of
personal data breaches to the supervisory authority, the communication of
personal data breaches to the data subject, data protection impact
assessments and prior consultation in relation to high-risk processing under
the Data Protection Laws. The Provider may charge the Client at its standard
time-based charging rates for any work performed by the Provider at the
request of the Client pursuant to this Clause 20.13.
20.14The Provider must notify the Client of any Personal Data breach affecting the
Client Personal Data without undue delay and, in any case, not later than 72
hours after the Provider becomes aware of the breach.
20.15The Provider shall make available to the Client all information necessary to
demonstrate the compliance of the Provider with its obligations under this
Clause 20 and the Data Protection Laws. The Provider may charge the Client
at its standard time-based charging rates for any work performed by the
Provider at the request of the Client pursuant to this Clause 20.15, providing
that no such charges shall be levied with respect to the completion by the
Provider (at the reasonable request of the Client, not more than once per
calendar year) of the standard information security questionnaire of the
Client.
20.16The Provider shall, at the choice of the Client, delete or return all of the Client
Personal Data to the Client after the provision of services relating to the
processing, and shall delete existing copies save to the extent that applicable
law requires storage of the relevant Personal Data.
20.17The Provider shall allow for and contribute to audits, including inspections,
conducted by the Client or another auditor mandated by the Client in respect
of the compliance of the Provider’s processing of Client Personal Data with the
Data Protection Laws and this Clause 20. The Provider may charge the Client
at its standard time-based charging rates for any work performed by the
Provider at the request of the Client pursuant to this Clause 20.17, providing
that no such charges shall be levied where the request to perform the work
arises out of any breach by the Provider of the Contract or any security breach
affecting the systems of the Provider.
20.18If any changes or prospective changes to the Data Protection Laws result or
will result in one or both parties not complying with the Data Protection Laws
in relation to processing of Personal Data carried out under the Contract, then
the parties shall use their best endeavours promptly to agree such variations
to the Contract as may be necessary to remedy such non-compliance. - Warranties
21.1 The Provider shall provide the Services in accordance with the standards of
skill and care reasonably expected from a leading service provider in the
Provider’s industry.
21.2 The Provider warrants to the Client that:
(a) the Provider has the legal right and authority to enter into the Contract
and to perform its obligations under these Terms and Conditions;
(b) the Provider will comply with all applicable legal and regulatory
requirements applying to the exercise of the Provider’s rights and the
fulfilment of the Provider’s obligations under these Terms and
Conditions; and
(c) the Provider has or has access to all necessary know-how, expertise and
experience to perform its obligations under these Terms and Conditions.
21.3 The Client warrants to the Provider that it has the legal right and authority to
enter into the Contract and to perform its obligations under these Terms and
Conditions.
21.4 All of the parties’ warranties and representations in respect of the subject
matter of the Contract are expressly set out in these Terms and Conditions. To
the maximum extent permitted by applicable law, no other warranties or
representations concerning the subject matter of the Contract will be implied
into the Contract or any related contract. - Indemnities
22.1 The Provider shall indemnify and shall keep indemnified the Client against any
and all liabilities, damages, losses, costs and expenses (including legal
expenses and amounts reasonably paid in settlement of legal claims) suffered
or incurred by the Client and arising directly or indirectly as a result of any
breach by the Provider of these Terms and Conditions (a “Provider
Indemnity Event”).
22.2 The Client must:
(a) upon becoming aware of an actual or potential Provider Indemnity
Event, notify the Provider;
(b) provide to the Provider all such assistance as may be reasonably
requested by the Provider in relation to the Provider Indemnity Event;
(c) allow the Provider the exclusive conduct of all disputes, proceedings,
negotiations and settlements with third parties relating to the Provider
Indemnity Event; and
(d) not admit liability to any third party in connection with the Provider
Indemnity Event or settle any disputes or proceedings involving a third
party and relating to the Provider Indemnity Event without the prior
written consent of the Provider,
without prejudice to the Provider’s obligations under Clause 22.1.
22.3 The Client shall indemnify and shall keep indemnified the Provider against any
and all liabilities, damages, losses, costs and expenses (including legal
expenses and amounts reasonably paid in settlement of legal claims) suffered
or incurred by the Provider and arising directly or indirectly as a result of any
breach by the Client of these Terms and Conditions (a “Client Indemnity
Event”).
22.4 The Provider must:
(a) upon becoming aware of an actual or potential Client Indemnity Event,
notify the Client;
(b) provide to the Client all such assistance as may be reasonably
requested by the Client in relation to the Client Indemnity Event;
(c) allow the Client the exclusive conduct of all disputes, proceedings,
negotiations and settlements with third parties relating to the Client
Indemnity Event; and
(d) not admit liability to any third party in connection with the Client
Indemnity Event or settle any disputes or proceedings involving a third
party and relating to the Client Indemnity Event without the prior
written consent of the Client,
and the Client’s obligation to indemnify the Provider under Clause 22.3 shall
not apply unless the Provider complies with the requirements of this Clause
22.4.
22.5 The indemnity protection set out in this Clause 22 shall be subject to the
limitations and exclusions of liability set out in the Contract. - Limitations and exclusions of liability
23.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from
negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable
law; or
(d) exclude any liabilities that may not be excluded under applicable law.
23.2 The limitations and exclusions of liability set out in this Clause 23 and
elsewhere in these Terms and Conditions:
(a) are subject to Clause 23.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating
to the subject matter of these Terms and Conditions, including liabilities
arising in contract, in tort (including negligence) and for breach of
statutory duty, except to the extent expressly provided otherwise in
these Terms and Conditions.
23.3 The Provider shall not be liable to the Client in respect of any losses arising
out of a Force Majeure Event.
23.4 The Provider shall not be liable to the Client in respect of any loss of profits or
anticipated savings.
23.5 The Provider shall not be liable to the Client in respect of any loss of revenue
or income.
23.6 The Provider shall not be liable to the Client in respect of any loss of use or
production.
23.7 The Provider shall not be liable to the Client in respect of any loss of business,
contracts or opportunities.
23.8 The Provider shall not be liable to the Client in respect of any loss or
corruption of any data, database or software.
23.9 The Provider shall not be liable to the Client in respect of any special, indirect
or consequential loss or damage. - Force Majeure Event
24.1 If a Force Majeure Event gives rise to a failure or delay in either party
performing any obligation under the Contract (other than any obligation to
make a payment), that obligation will be suspended for the duration of the
Force Majeure Event.
24.2 A party that becomes aware of a Force Majeure Event which gives rise to, or
which is likely to give rise to, any failure or delay in that party performing any
obligation under the Contract, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure
or delay will continue.
24.3 A party whose performance of its obligations under the Contract is affected by
a Force Majeure Event must take reasonable steps to mitigate the effects of
the Force Majeure Event. - Termination
25.1 The Provider may terminate the Contract by giving to the Client not less than
7 days’ written notice of termination, expiring at the end of any calendar
month. The Client may terminate the Contract by giving to the Provider not
less than 30 days’ written notice of termination, expiring after the end of the
Minimum Term.
25.2 Either party may terminate the Contract immediately by giving written notice
of termination to the other party if:
(a) the other party commits any breach of the Contract, and the breach is
not remediable;
(b) the other party commits a breach of the Contract, and the breach is
remediable but the other party fails to remedy the breach within the
period of 30 days following the giving of a written notice to the other
party requiring the breach to be remedied; or
(c) the other party persistently breaches the Contract (irrespective of
whether such breaches collectively constitute a material breach).
25.3 Subject to applicable law, either party may terminate the Contract
immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any
arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee,
manager or similar is appointed over any of the assets of the other
party;
(c) an order is made for the winding up of the other party, or the other
party passes a resolution for its winding up (other than for the purpose
of a solvent company reorganisation where the resulting entity will
assume all the obligations of the other party under the Contract); or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes
incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
25.4 The Provider may terminate the Contract immediately by giving written notice
to the Client if:
(a) any amount due to be paid by the Client to the Provider under the
Contract is unpaid by the due date and remains unpaid upon the date
that that written notice of termination is given; and
(b) the Provider has given to the Client at least 30 days’ written notice,
following the failure to pay, of its intention to terminate the Contract in
accordance with this Clause 25.4. - Effects of termination
26.1 Upon the termination of the Contract, all of the provisions of these Terms and
Conditions shall cease to have effect, save that the following provisions of
these Terms and Conditions shall survive and continue to have effect (in
accordance with their express terms or otherwise indefinitely): Clauses 1, 12,
13.10, 14.1, 14.2, 14.4, 17, 18.2, 18.4, 19, 20, 22, 23, 26, 27.2, 30 and 31.
26.2 Except to the extent expressly provided otherwise in these Terms and
Conditions, the termination of the Contract shall not affect the accrued rights
of either party.
26.3 Within 10 Business Days following the date of effective termination of the
Contract, the Provider shall provide to the Client a copy of each non-trivial
dataset directly relating to the Client that is reasonably available and
accessible to the Provider and has been generated by the Provider in the
course of performing its obligations under these Terms and Conditions in a
format determined by the Provider acting reasonably, providing that the Client
must pay, in advance if so requested by the Provider, the reasonable costs
and expenses of the Provider in relation to the performance of the obligations
of the Provider under this Clause 26.3. - Status of Provider
27.1 The Provider is not an employee of the Client, but an independent contractor.
27.2 The termination of the Contract will not constitute unfair dismissal; nor will
the Provider be entitled to any compensation payments, redundancy
payments or similar payments upon the termination of the Contract. - Notices
28.1 Any notice given under these Terms and Conditions must be in writing,
whether or not described as “written notice” in these Terms and Conditions.
28.2 Any notice from one party to the other party under these Terms and
Conditions must be given by one of the following methods (using the relevant
contact details set out in REFERENCE TARGET REMOVED):
(a) sent by courier, in which case the notice shall be deemed to be received
upon delivery;
(b) sent by recorded signed-for post, in which case the notice shall be
deemed to be received 2 Business Days following posting; or
(c) sent by email, in which casethe recipient must acknowledge receipt
within 2 Business Days following such receipt, and the notice shall be
deemed to be received upon the sending of such acknowledgement
(which, for the avoidance of doubt, shall not require further
acknowledgement),
providing that, if the stated time of deemed receipt is not within Business
Hours, then the time of deemed receipt shall be when Business Hours next
begin after the stated time.
28.3 The addressee and contact details set out in REFERENCE TARGET REMOVED
may be updated from time to time by a party giving written notice of the
update to the other party in accordance with this Clause 28. - Subcontracting
29.1 Subject to any express restrictions elsewhere in these Terms and Conditions,
the Provider may subcontract any of its obligations under the Contract.
29.2 The Provider shall remain responsible to the Client for the performance of any
subcontracted obligations. - General
30.1 No breach of any provision of the Contract shall be waived except with the
express written consent of the party not in breach.
30.2 If any provision of the Contract is determined by any court or other competent
authority to be unlawful and/or unenforceable, the other provisions of the
Contract will continue in effect. If any unlawful and/or unenforceable provision
would be lawful or enforceable if part of it were deleted, that part will be
deemed to be deleted, and the rest of the provision will continue in effect
(unless that would contradict the clear intention of the parties, in which case
the entirety of the relevant provision will be deemed to be deleted).
30.3 The Contract may not be varied except by a written document signed by or on
behalf of each of the parties.
30.4 Neither party may without the prior written consent of the other party assign,
transfer, charge, license or otherwise deal in or dispose of any contractual
rights or obligations under these Terms and Conditions.
30.5 The Contract is made for the benefit of the parties, and is not intended to
benefit any third party or be enforceable by any third party. The rights of the
parties to terminate, rescind, or agree any amendment, waiver, variation or
settlement under or relating to the Contract are not subject to the consent of
any third party.
30.6 Subject to Clause 23.1, these Terms and Conditions shall constitute the entire
agreement between the parties in relation to the subject matter of these
Terms and Conditions, and shall supersede all previous agreements,
arrangements and understandings between the parties in respect of that
subject matter.
30.7 The Contract shall be governed by and construed in accordance with English
law.
30.8 The courts of England shall have exclusive jurisdiction to adjudicate any
dispute arising under or in connection with the Contract. - Interpretation
31.1 In these Terms and Conditions, a reference to a statute or statutory provision
includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or reenacted from time to time; and
(b) any subordinate legislation made under that statute or statutory
provision.
31.2 The Clause headings do not affect the interpretation of these Terms and
Conditions.
31.3 References in these Terms and Conditions to “calendar months” are to the 12
named periods (January, February and so on) into which a year is divided.
31.4 In these Terms and Conditions, general words shall not be given a restrictive
interpretation by reason of being preceded or followed by words indicating a
particular class of acts, matters or things.
SCHEDULE 1 (ACCEPTABLE USE POLICY) - Introduction
1.1 This acceptable use policy (the “Policy”) sets out the rules governing:
(a) the use of the website at [*.polarize.digital], any successor website, and
the services available on that website or any successor website (the
“Services”); and
(b) the transmission, storage and processing of content by you, or by any
person on your behalf, using the Services (“Content”).
1.2 References in this Policy to “you” are to any customer for the Services and any
individual user of the Services (and “your” should be construed accordingly);
and references in this Policy to “us” are to Polarize Ltd (and “we” and “our”
should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before you
upload or submit any Content or otherwise use the Services.
1.5 You must be at least 18 years of age to use the Services; and by using the
Services, you warrant and represent to us that you are at least 18 years of
age. - No spam
2.1 Content must not constitute or contain spam, and you must not use the
Services to store or transmit spam – which for these purposes shall include all
unlawful marketing communications and unsolicited commercial
communications.
2.2 You must not send any spam or other marketing communications to any
person using any email address or other contact details made available
through the Services or that you find using the Services.
2.3 You must not use the Services to promote, host or operate any chain letters,
Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing
schemes, “get rich quick” schemes or similar letters, schemes or programs. - General usage rules
3.1 You must not use the Services in any way that causes, or may cause, damage
to the Services or impairment of the availability or accessibility of the
Services.
3.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful
purpose or activity.
3.3 You must ensure that all Content complies with the provisions of this Policy. - Unlawful Content
4.1 Content must not be illegal or unlawful, must not infringe any person’s legal
rights, and must not be capable of giving rise to legal action against any
person (in each case in any jurisdiction and under any applicable law).
4.2 Content, and the use of Content by us in any manner licensed or otherwise
authorised by you, must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right,
design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data
protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the
commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination
legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
4.3 You must ensure that Content is not and has never been the subject of any
threatened or actual legal proceedings or other similar complaint. - Graphic material
5.1 Content must be appropriate for all persons who have access to or are likely
to access the Content in question, and in particular for children over 12 years
of age.
5.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
5.3 Content must not be pornographic or sexually explicit. - Monitoring
6.1 You acknowledge that we may actively monitor the Content and the use of the
Services. - Harmful software
7.1 The Content must not contain or consist of, and you must not promote,
distribute or execute by means of the Services, any viruses, worms, spyware,
adware or other harmful or malicious software, programs, routines,
applications or technologies.
7.2 The Content must not contain or consist of, and you must not promote,
distribute or execute by means of the Services, any software, programs,
routines, applications or technologies that will or may have a material
negative effect upon the performance of a computer or introduce material
security risks to a computer.