DIGITAL INVENTORY STANDARD TERMS AND CONDITIONS
Version 1: 12.01.24
1. Definitions and Interpretation
1.1 The following definitions and rules of interpretation in this clause apply in these Standard Terms and Conditions (the Conditions):
Additional Regulations means the regulations and/or terms of use issued by the owner of the applicable Online Platform;
Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity;
Agreement means together the Order Form, these Conditions (including the Schedules and Annex) and the Additional Regulations;
Applicable Laws means all laws, statutes, regulations, directions, guidelines and codes of conduct of any governmental or other body of competent jurisdiction, and any orders of any court or other tribunal of competent jurisdiction, which are applicable to this Agreement or to the performance by either Party of its obligations under this Agreement;
Clarion means the Clarion entity identified in the Order Form;
Clarion Background IPRs means all Intellectual Property Rights in the Clarion Materials and all other Intellectual Property Rights which are owned by or licensed to Clarion and which are or have been developed independently of this Agreement;
Clarion Materials means any and all logos, trademarks, branding, names, information, drawings, specifications, data and/or other information supplied by Clarion to Company in connection with the Services;
Community means collectively, all individuals who are users, viewers, participants or readers of the Digital Campaign and as such authorised to access the Digital Campaign Content, including all individuals who are subscribers to the Online Platform or who are employed or engaged by the Company, any interviewers, interviewees or service providers participating in the Digital Campaign, and including all Company-invited individuals.
Community Data means personal data of or relating to any Community Member.
Community Member means any member of the Community.
Company Staff Data means personal data of or relating to the Company’s personnel, whether employees or contractors, who are involved in the Digital Campaign (whether or not participating in it).
Confidential Information means this Agreement and all information in any medium or format (written, oral, visual or electronic) and whether or not marked or described as confidential which relates to a Party, its Affiliates or their respective businesses, finances, employees, officers, customers or suppliers, and which is directly or indirectly disclosed by a Party to the other Party in the course of their dealings relating to this Agreement, whether before or after the date of the Agreement;
Control means in respect of any corporate entity, the beneficial ownership of more than 50% of the issued share capital of that entity or the legal power to direct or cause the direction of the general management of that entity, and Controls and Controlled shall be construed accordingly;
Company means the entity named as such in the Order Form;
Company Background IPRs means all Intellectual Property Rights in the Company Materials;
Company Materials means any and all logos, trademarks, branding, names, information, drawings, specifications, data and/or other materials supplied by Company to Clarion in connection with the Services and which are or have been developed independently of this Agreement;
Content means all rights in all presentations, materials and documentation published or otherwise made available as part of the Digital Campaign;
Data Protection Laws means any applicable laws or regulations which governs the collection and processing of personal data (as amended or superseded from time to time) including (without limitation and as applicable) the GDPR.
Deliverables means any output of the Services to be provided by Clarion to Company (including any output/deliverables as specified in the Product section of the Order Form);
Deliverables IPRs means all Intellectual Property Rights in the Deliverables, other than the Clarion Background IPRs and the Company Background IPRs;
Digital Campaign means the digital campaign set out in the Product description section of the Order Form.
Digital Campaign Digital Campaign Period means the dates or the date range of the Digital Campaign set out in the Order Form.
Event of Force Majeure means an event beyond the reasonable control of the affected Party which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or industrial disputes (whether involving the workforce of the affected Party or of any other party), acts of God, fire, flood, storm, pandemic (including COVID-19), epidemic, government actions, war, riot, terrorist attack, civil commotion, compliance with any law, rule, regulation or direction, accident, power failure, failure of telecommunication or internet networks, digital platform damage or unfitness or cancellation or unavailability, breakdown of plant or machinery and breach, default or insolvency of sub-contractors or providers of essential technology, services or infrastructure;
Fees means the Fees payable by Company to Clarion for the performance of the Services (including any expenses/disbursements/other sums) as specified in the Order Form;
GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the UK’s Data Protection Act 2018;
Intellectual Property Rights or IPRs means any and all present and future patents, inventions, know-how, trade secrets and other confidential information, trade marks, service marks, logos, emblems, badges, insignia, identifying music and sounds, get-up, domain names, business names, trade names, moral rights, performance rights, registered designs, copyrights, database rights, the sui generis rights of extraction relating to databases, design rights and other intellectual property rights of whatever nature, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world;
Online Platform means the online platform used in the delivery of the Products;
Order Form means the order form at the front of this Agreement which is incorporated into this Agreement and which identifies the contracting parties, and includes, without limitation, the Fees and some or all of the Products, Services and Deliverables.;
Parties means Clarion and Company, and Party means either of them (as applicable);
personal data and processing shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed, and processes shall be construed accordingly) and personal data breach shall have the meaning given to it in the applicable Data Protection Laws.
Product means the product(s) specified in the Order Form.
Services means any input/services to be provided by Clarion as specified in the product section of the Order Form;
Schedule means, in relation to particular Services, any applicable schedule to these Conditions as specified in the Order Form.
Virus means any computer code, programming instruction or set of instructions that is intentionally and specifically constructed with the ability to damage, interfere with or otherwise adversely affect computer programs, data files or hardware.
1.2 References to clauses are to clauses of these Conditions. References to paragraphs are to paragraphs of the Schedules to these Conditions.
1.3 References to words following the terms including, include, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 Clause headings are included for convenience only and shall not affect the interpretation of this Agreement.
1.5 A person includes a natural person, company, corporation, other body corporate or unincorporated body (whether or not having separate legal personality and wherever and however incorporated or established) and that person's personal representatives, successors and permitted assigns.
1.6 A reference to any Party shall include that Party's personal representatives, successors and permitted assigns.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
2. Clarion’s Obligations
2.1 In consideration of and subject to Company’s payment of the Fees and its compliance with its obligations under this Agreement, Clarion shall:
a) perform the Services and provide the Deliverables with reasonable care and skill;
b) hold and maintain all licences and consents necessary to provide the Services and Deliverables;
c) perform the Services and provide the Deliverables in accordance with all Applicable Laws; and
d) use its reasonable commercial endeavours to meet any performance dates specified in the Order Form (or, if no such performance dates are specified, within a reasonable time).
2.2 If Clarion's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Company, its agents, sub-contractors, consultants or employees, Clarion shall not be liable for any costs, charges or losses sustained or incurred by Company that arise directly or indirectly from such prevention or delay and, without prejudice to any other right or remedy it may have, Clarion shall be allowed an extension of time to perform its obligations equal to the delay caused by Company.
3. Company’s Obligations
3.1 Company represents, warrants and undertakes that:
a) it shall co-operate with Clarion as required for the performance of the Services;
b) it shall promptly observe and comply with all reasonable instructions issued by or on behalf of Clarion in relation to the performance of the Services;
c) it shall comply with all Applicable Laws in performing its obligations under this Agreement;
d) the Company Materials shall comply with all Applicable Laws, are accurate, complete and not misleading;
e) the Company Materials shall not infringe the Intellectual Property Rights of any third party;
f) it shall hold and maintain all licences and consents necessary to receive the Services and Deliverables;
g) it shall provide to Clarion in a timely manner all data, documents, information, and materials (including all relevant Company Materials) required by Clarion in connection with the Services and shall ensure that they are accurate and complete in all material respects; and
h) to the extent necessary to allow Clarion to perform the Services, it shall provide to Clarion, in a timely manner and at no charge, access to its agents, sub-contractors, consultants and employees and such materials as is reasonably required by Clarion; and
i) it shall not, and shall ensure that its directors, employees and other members of staff shall not take part in any activities or use the Deliverables in any manner which might be derogatory to or otherwise be detrimental to the reputation, image or goodwill of Clarion.
3.2 If Company fails to comply with any of its obligations under clause 3.1, whether by act or omission, Clarion shall not be liable for failing to meet any standards, specifications and/or performance dates specified in the Order Form.
4. Fees and Payment
4.1 Company shall pay the Fees to Clarion in cleared funds, as invoiced by Clarion and, unless expressly stated otherwise in the Order Form, within thirty (30) days of receipt of Clarion’s invoice for the same. Clarion shall invoice Company for the Fees (or any instalment of the Fees) at such times and in such amounts as specified in the Order Form or as otherwise agreed by the parties in writing.
4.2 Save as otherwise set out in this Agreement, all amounts payable under this Agreement:
a) are exclusive of value added tax and any other equivalent sales taxes or duties, which shall be paid by Company at the applicable rate at the time of making the relevant payment; and
b) shall be paid in full by electronic bank transfer, without any set-off, deduction or withholding (to the fullest extent permitted by law), to the bank account specified by Clarion from time to time.
4.3 If Company is required by law to make deductions or withholdings from any payment due to Clarion, Company shall increase the gross amount payable so that, after the deduction or withholding, the net amount received by Clarion shall be the same as the amount Clarion would have received had no deduction or withholding been required by law.
4.4 Without prejudice to any other rights and remedies Clarion may have under this Agreement or at law, if Company fails to pay any amount due under this Agreement by the due date for payment, Clarion may, at its discretion:
a) suspend the provision of the Services (and if applicable provision of the Deliverables) and refuse to let the Company enjoy the benefits of the Product including access to any Community Data until Company has made such payment in full; and/or
b) charge Company interest on the overdue amount, payable immediately on demand, from the due date for payment of the same up to the date of actual receipt, at the rate of 5% per annum above the Bank of England base rate from time to time.
4.5 Company shall not be entitled, under this Agreement or at law, to set off any amount owed to it by Clarion against any present or future amount which Company owes to Clarion under or in connection with this Agreement.
5. Cancellation
5.1 Company acknowledges that there are costs associated with cancellation after contracting and agrees to the following cancellation terms set out in this clause 4. If Company wishes to cancel the Digital Campaign or any other service being provided to it by Clarion, it must notify Clarion in writing and the Company will be liable for the following costs on cancellation: (a) 25% of the Fees if an approved cancellation request is received less than 9 months and more than 6 months prior to the start of the Digital Campaign Period; (b) 50% of the Fees if an approved cancellation request is received 6 months or less and more than 3 months prior to the start of the Digital Campaign Period; and (c) 100% of the Fees if an approved cancellation request is received 3 months or less prior to the start of the Digital Campaign Period.
5.2 If Company is entitled to a refund, Clarion will make the reimbursement using the same means of payment as Company used for the initial transaction and Company will not incur any fees as a result of the reimbursement save for Clarion reserving the right to deduct any bank charges payable by it as a result of the reimbursement.
5.3 Notwithstanding that Clarion may re-sell or re-allocate the cancelled Product, Service or Deliverable after cancellation by the Company, Clarion shall be under no obligation to reimburse all or any part of a cancellation charge.
6. Intellectual Property
Clarion Background IPRs and Deliverables IPRs
6.1 The Clarion Background IPRs shall at all times remain owned by Clarion and/or its licensors (as applicable).
6.2 Unless expressly specified otherwise in the Order Form and/or an applicable Schedule, and excluding any Company Background IPRs incorporated therein, the Deliverables IPRs shall be retained and owned by Clarion.
6.3 Clarion grants to Company a fully paid-up, limited, non-exclusive, royalty-free, non-transferable licence to use the Deliverables IPRs (and, to the extent incorporated in the Deliverables, the Clarion Background IPRs) solely to the extent necessary to use and receive the Services and the Deliverables for the purpose for which they were provided and in accordance with all Applicable Laws and the terms of this Agreement.
6.4 Should any right, title or interest in or to the Clarion Background IPRs and/or the Deliverables IPRs become vested in Company (by the operation of law or otherwise), Company hereby assigns to Clarion all such rights in all media now or hereafter known worldwide in perpetuity. All goodwill associated with Company’s use of the Clarion Background IPRs and/or the Deliverables IPRs shall belong to and is hereby assigned to Clarion.
Company Background IPRs
6.5 The Company Background IPRs shall at all times remain owned by Company and/or its licensors (as applicable).
6.6 Company grants to Clarion a worldwide, perpetual, fully paid-up, non-exclusive, royalty-free licence to publish, transmit, copy, modify and otherwise the Company Background IPRs in any format and on any applicable platform (whether now known or hereafter invented) for the purposes of:
a) performing the Services and delivering the Deliverables to Company; and
b) any other purpose that may be specified in the Order Form or agreed by the Parties in writing.
6.7 Notwithstanding clause 6.6, Clarion may refuse to incorporate Company Background IPRs into the Deliverables or otherwise use any of Company Background IPRs, and may remove or delete any such Company Background IPRs from the Deliverables, if Clarion becomes aware or reasonably suspects that such use would or might constitute an infringement of any third party’s rights and/or breach any Applicable Laws.
6.8 All goodwill associated with Clarion’s use of the Customer Background IPRs shall belong to and is hereby assigned to Company.
7. Indemnification
7.1 Company shall indemnify, defend and hold harmless Clarion and all connected persons from and against any claims, liabilities, costs, expenses (including reasonable outside legal fees), judgments, proceedings or losses arising out of or in connection with:
a) any claim that Clarion’s use of any Company Materials and/or Company Background IPRs in accordance with this Agreement infringes a third party’s rights, including a third party’s Intellectual Property Rights;
b) any failure by the Company to comply with Data Protection Laws including, without limitation, due to any failure by the Company to implement and maintain appropriate technical and organisational measures to protect personal data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access; and
c) any breach by Company of any of its obligations, representations, warranties and/or undertakings in this Agreement.
8. Limitation of Liability
8.1 Nothing in this Agreement shall exclude or restrict either Party’s liability for death or personal injury resulting from the negligence of that Party or of its employees while acting in the course of their employment or any other liability which cannot be excluded by law.
8.2 Subject to clause 8.1, neither Party shall be liable to the other for any loss of profits; loss of business; loss of goodwill; loss of anticipated savings; loss of contract; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, howsoever arising out of or in connection with the performance of its obligations under this Agreement, even if the other Party was advised in advance of the possibility of such loss or damage occurring.
8.3 Subject to clauses 8.1 and 8.2, and save in the case of an indemnity given under clause 7, a Party’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise under or in connection with this Agreement shall not exceed an amount equal to a ten times multiple (x10) of the Fees paid or payable during the 12 months preceding the event giving rise to the liability.
9. Termination
9.1 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other if:
a) the other Party commits a material breach of this Agreement, and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so;
b) the other Party repeatedly breaches any provision of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to this Agreement; or
c) the other Party goes into liquidation, has an administrator, administrative receiver, receiver or manager appointed over the whole or part of its assets or business, makes a composition or arrangement with its creditors generally, becomes insolvent or ceases trading, or threatens to do any of the foregoing.
9.2 Without affecting any other right or remedy available to it, Clarion may terminate this Agreement with immediate effect by giving written notice to Company if:
a) Company fails to pay any amount due under this Agreement on the due date for payment; or
b) there is a change of Control of Company.
9.3 Upon expiry or termination of this Agreement:
a) any and all Fees and (if applicable) other sums payable to Clarion shall become immediately due;
b) any and all licences or rights granted under this Agreement shall terminate, save for those that are expressly stated to be perpetual;
c) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected; and
d) any provision of this Agreement that expressly or impliedly is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect, including clauses 3, 4, 7, 8 and 13.
10. Confidentiality and Announcements
10.1 Neither Party shall at any time disclose to any person any Confidential Information of the other Party except as permitted by clause 10.2.
10.2 A Party may disclose the other Party’s Confidential Information solely:
a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out that Party's obligations under this Agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other Party's Confidential Information comply with the terms of this clause 10; and
b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority (including any relevant securities exchange).
10.3 Neither Party shall use the other Party's Confidential Information for any purpose other than to perform its obligations under this Agreement or as set out in clause 10.2.
10.4 Company shall not make, or authorise any person to make, any public announcement concerning this Agreement without the prior written consent of Clarion (such consent not to be unreasonably withheld), except as required by Applicable Law.
11. Force Majeure
11.1 A Party shall have no liability or responsibility to the other Party for any failure to perform, or delay in performance of, any of its obligations under this Agreement (excluding only Company’s obligation to pay the Fees when due) to the extent caused by an Event of Force Majeure. The defaulting Party shall promptly notify the other Party of the nature and reasons for the delay or failure and both parties shall use reasonable endeavours to mitigate the effects of any default as soon as possible.
11.2 Where an Event of Force Majeure has or may have (in Clarion's sole discretion) an adverse impact on: (i) the ability of Clarion to provide the Services and/or Product in the date range set out in the Order Form; or (ii) the Services and/or Product generally, then Clarion shall be entitled but not obliged (in its sole discretion) to either: (i) provide an alternative format, facility, timings for the Services and/or Product; and/or (ii) reschedule the Services and/or Product; or (iii) cancel the Services and/or Product. Any of the Fees paid by the Company and received by Clarion shall be applied to any amended or rescheduled Services, any applicable Deliverables and/or Product delivered pursuant to this clause 10 and the Company shall not be entitled to object to such amended or rescheduled Services and/or Product or have any right to claim any compensation in respect thereof. If Clarion is unable, or elects not to, amend or reschedule pursuant to this clause 10, then the Company will (as its sole remedy) be entitled to receive either a refund or credit note in respect of the Fees received in cleared funds by Clarion with regard to such cancelled Services and/or Product.
11.3 Clarion’s obligations under this Agreement shall be suspended and the time for performance of its obligations shall be extended for the duration of the Event of Force Majeure.
11.4 If the Company is the defaulting party and an Event of Force Majeure continues for a period of more than 30 days, Clarion may terminate this Agreement by written notice to the Company without prejudice to the rights of the Parties existing prior to such termination.
12. Anti-Bribery
12.1 Each Party shall:
a) comply with all laws, codes and sanctions relating to anti-bribery and anti-corruption, including the Bribery Act 2010 (Relevant Requirements);
b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
c) have and shall maintain in place its own policies and procedures to ensure compliance with the Relevant Requirements and shall enforce them where appropriate; and
d) promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received by it in connection with this Agreement.
13. Data Protection
13.1 Each Party shall, at all times during the term of this Agreement, comply with all obligations to which it is subject under applicable Data Protection Laws.
13.2 If and to the extent that the Data Protection Laws apply to processing by a party of personal data under this Agreement, then the parties hereby agree that: (a) in respect of any disclosure by either party to the other of any Community Data (excluding Company Staff Data), each party shall be a separate controller and Annex 1 of these Conditions shall apply. In respect of any disclosure by the Company to Clarion of any Company Staff Data in connection with the operation of the Services or which is required to enable Clarion to perform its obligations under this Agreement, the Company shall be the controller and Clarion shall be the processor of such Company Staff Data, and Clarion shall process Company Staff Data only in accordance with the lawful instructions given by the Company from time to time.
14. Status
14.1 Notwithstanding that Company may be acting directly or indirectly for another party, Company warrants that it is contracting with Clarion as a principal. All rights and obligations under this Agreement shall be solely between Clarion and Company (and not any third party on whose behalf Company may be acting) and Company shall be responsible for the payment of all Fees and any other amounts due to Clarion and the performance of all its other obligations under this Agreement.
14.2 Notwithstanding that the Company may engage another party (including but not limited to a PR or design agency) to act directly or indirectly on its behalf, all rights and obligations under this Agreement shall be solely between Clarion and Company (and not any third party who may be acting on Company’s behalf) and Company shall be responsible for the payment of all Fees and any other amounts due to Clarion and the performance of all its other obligations under this Agreement
15. Miscellaneous
15.1 This Agreement contains the entire understanding and agreement of the Parties relating to its subject matter and supersedes in all respects any previous or other existing Parties, agreements or understandings between the Parties whether oral or written in relation to its subject matter.
15.2 This Agreement is personal to Company and Company shall not assign, transfer, mortgage, charge, sub-contract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without Clarion’s prior written consent. Clarion may at any time assign, mortgage, charge, sub-contract, delegate or declare a trust over any or all of its rights and obligations under this Agreement to or for the benefit of any person.
15.3 Each Party represents, warrants and undertakes to the other that: (a) it is duly incorporated and has all the necessary power, authority and rights to enter into and to perform its obligations and grant any relevant rights under this Agreement; and (b) the execution and delivery of this Agreement by such Party has been duly authorised by all necessary corporate action
15.4 Each Party acknowledges that in entering into this Agreement it does not rely on, and irrevocably waives any right it has or may have in respect of, any representation which is not expressly set out in this Agreement, and each Party irrevocably and unconditionally waives any right or remedy it has or may have to rescind this Agreement or to claim damages for any misrepresentation not contained in this Agreement, provided that nothing in this Agreement shall limit or exclude any liability for fraud. Each Party agrees that the only remedy available to it for breach of this Agreement shall be for breach of contract and no Party shall be liable in tort or otherwise in respect of such breach.
15.5 No variation or agreed termination of this Agreement shall be effective unless made in writing and signed by or on behalf of each of the Parties. For the avoidance of doubt, Clarion shall be entitled to update the Conditions from time to time in its discretion and without notice to Company provided that any such update will not apply to the Conditions forming this Agreement at the time the Order Form was signed by the Parties.
15.6 In the event that any provision or part of a provision of this Agreement shall be, or shall be held to be, illegal, invalid, unenforceable or against public policy pursuant to a final adjudication by a court of competent jurisdiction such provision shall be severed and the remainder of this Agreement shall be deemed in full force and effect.
15.7 No failure or delay by any Party in exercising any right or remedy under this Agreement shall operate as a waiver of that right or remedy, and no single or partial exercise by any Party of any right or remedy shall preclude any further exercise of that right or remedy or the exercise of any other right or remedy. No waiver or discharge of any breach shall be effective unless made in writing and signed by the Party giving the waiver. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights and remedies provided in law or otherwise.
15.8 At its own expense, each Party shall execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement and the rights expressed to be granted under this Agreement.
15.9 Nothing in this Agreement creates or shall be deemed to have created a partnership or a joint venture or an agency agreement between the Parties. Neither Party shall do anything to bind the other to any contract or to pledge the credit of the other Party or to bind it to any obligation, commitment or liability, nor shall represent itself as able to do so.
15.10 A person who is not a Party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement. Notwithstanding the foregoing, it is intended that all Clarion’s Affiliates may enforce the benefits conferred on them under this Agreement in accordance with the Contracts (Rights of Third Parties) Act 1999.
15.11 Any notice given to a Party under or in connection with this Agreement shall be in writing, delivered by pre-paid first-class post and deemed to have been received at 9.00am on the second business day after posting. Notices may also be given to a Party by email (provided such email clearly states that it is served as a notice under this Agreement) and shall be deemed to have been received when transmitted unless the sender receives notification that the email has not been received by the recipient.
15.12 This Agreement is governed by and shall be construed in accordance with the laws of England and Wales and the parties hereby irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales as regards any claim, dispute or matter arising under or in relation to this Agreement. w
SCHEDULE 1
HIGH INPUT PRODUCTS
1. Where Clarion is providing Product Services and/or Company is providing any Company Product Contribution (both as defined below), the terms of this Schedule shall apply in addition to the Conditions.
2. In this Schedule, the following capitalised terms shall have the following meanings:
Company Product Contribution means Company’s contribution to the Product in whatever form (e.g., written, oral, visual, audio-visual, etc.) including as specified in the Order Form or as otherwise agreed between the Parties, and including all drafts and feedback in relation to the same;
Product Deadline means any deadline specified in the Order Form or as otherwise communicated to Company in writing by Clarion for receipt by Clarion of any element of the Company Product Contribution including all drafts and feedback in relation to the same;
Product Deliverables means the output of the Product Services;
Product Launch Date means, if/as applicable, the date of the broadcast/publication/go-live/launch of the Product as specified in the Order Form or as otherwise communicated to Company in writing by Clarion;
Product Recording Date means, if/as applicable, the date of the recording of the Product, if the Product is to be recorded in advance of the Product Launch Date; and
Product Services means those certain Services performed by Clarion in connection with the Product.
Intellectual Property Rights
3. Save as otherwise expressly stated below and/or in the Order Form, IPR ownership shall be as set out in clause 6 of the Conditions.
4. Where the Company Product Contribution contains any third party Intellectual Property Rights (other than Company Background IPRs), Company warrants, represents and undertakes that it has obtained from such third party the unrestricted, perpetual and worldwide permission for Clarion and its licensees and assigns to use such Intellectual Property Rights in the Company Product Contribution for the purpose of providing the Product Services (including the recording, broadcasting and/or publishing the Product) and for use in accordance with this Agreement. Company shall identify and provide details of any such third party Intellectual Property Rights to Clarion so that, to the extent necessary, these can be acknowledged in the Product.
Approvals
5. All Company Product Contributions must be approved by Clarion in writing (if/as applicable):
a) prior to any Product Recording Date or Product Launch Date; and
b) in accordance with any approvals process set out in the Order Form.
6. Clarion shall not unreasonably withhold or delay its approval of any Company Product Contributions. Unless and until such time as Clarion provides its express written approval, Company Product Contributions shall not be deemed approved.
Deadlines
7. The supply by Company to Clarion of the Company Product Contribution and any additional information/materials reasonably required by Clarion in connection with the Product Services (including a Company synopsis and a presenter/author biography and photo) within any applicable Product Deadline is of the essence and is the sole responsibility of Company.
8. In the event of failure by Company to meet an applicable Product Deadline, Clarion reserves the right in its discretion to:
a) charge Company for the full Fees for the Product; and/or
b) charge Company for any extra costs incurred by Clarion as a result of such failure; and/or
c) postpone to Product Launch Date; and/or
d) re-sell or re-allocate the relevant Product.
Company representatives/participants
9. Company shall ensure that all of Company’s representatives participating in the Product provide all required input and appearances at the date/s and (if applicable) times stipulated in the Order Form or as otherwise reasonably required by Clarion.
10. Company warrants, represents and undertakes, and shall procure that each of its nominated representatives participating in the Product warrant, represent and undertake, that the Company Product Contribution (and Clarion’s exploitation of the same as permitted in this Agreement) shall not infringe the rights of any third party, including any Intellectual Property Rights.
11. Company warrants that it has obtained all necessary consents (including a waiver of any moral rights) from any of Company’s representatives participating in the Product to ensure that Clarion may use the Product in accordance with this Agreement, and will provide evidence of the same on Clarion’s request.
12. The views expressed by any of Company’s representatives participating in the Product are their own. Clarion shall not be liable for the views, acts or omissions of any such representative or any other attendee or participant at the Product. Any information provided or distributed as part of the [Product] shall not constitute advice and should not be relied upon by Company.
Miscellaneous
13. The date and agenda for the Product and any applicable Product Recording Date and/or Product Launch Date are indicative only. Clarion reserves the right to alter these in its sole discretion.
14. Clarion reserves all rights in and to the Product which are not expressly granted to Company under this Agreement.
SCHEDULE 2
ADVERTISING/SPONSORSHIP/MARKETING INVENTORY AND SERVICES
1. Where Clarion is providing Campaign Content Services and/or Company is providing any Campaign Content (both as defined below), the terms of this Schedule 2 shall apply in addition to the Conditions.
2. In this Schedule 2, the following capitalised terms shall have the following meanings:
Campaign means Company's advertising campaign specified in the Order Form and which includes Campaign Content;
Campaign Change has the meaning given to it in paragraph 11 of this Schedule 2;
Campaign Content means any advertising material/content/copy that Company submits to be published by Clarion pursuant to the Order Form, including any linked website, area and/or information specified in the Order Form;
Campaign Content Fees means the total amount payable by Company to Clarion in respect of the provision of Campaign Content Services under this Agreement;
Campaign Content Guidelines means any Clarion guidelines for the content of Campaign Content as notified to Company by Clarion from time to time;
Campaign Content Services means those certain Services performed by Clarion for Company to deliver and promote Campaign Content in accordance with this Agreement;
Campaign Start Date means the start date specified in the Order Form;
Campaign Window means the period from the Campaign Start Date up to and including the last date of publication of Campaign Content specified in the Order Form;
Click-through(s) means the initiation of a user presence on any website that originates from Campaign Content published by Clarion as recorded by any tracking system operated by or on behalf of Clarion;
Deadline means any deadline specified in the Order Form or as otherwise communicated to Company in writing by Clarion for receipt by Clarion of Campaign Content and all related artwork and copy;
FSMA means the Financial Services and Markets Act 2000;
Impressions means an interaction by any person with Campaign Content on the Publication as recorded by any tracking system operated by or on behalf of Clarion;
Preferred Position means a position (if any) on a Publication specified in the Order Form as Company’s preferred position for the display or inclusion of Campaign Content;
Publication means any Clarion owned or operated digital publication(s) specified in the Order Form;
Technical Specifications means any Clarion technical specifications for Campaign Content as provided in writing to Company from time to time;
Volume Delivered means the number of Impressions, Click-throughs or other agreed performance metric on any Publication(s) actually achieved during the Campaign Window; and
Volume Order means a minimum volume of Impressions, Click-throughs or other agreed performance metric on any Publication(s) as set out in the Order Form.
3. Clarion reserves all rights in and to Campaign Content which are not expressly granted to Company under this Agreement.
Submission of Campaign Content
4. Campaign Content including all related artwork and copy must comply with, and be received by Clarion in accordance with, the Technical Specifications and any Deadline.
5. Where Company does not meet any Deadline, Clarion shall be under no obligation to publish the relevant Campaign Content and/or provide Campaign Content Services and Clarion reserves the right to charge (and Company undertakes to pay) the Campaign Content Fees in full.
Publication of Campaign Content
6. Company acknowledges that Clarion is responsible for ensuring that all content, including Campaign Content, displayed on the Publication(s) complies with Applicable Laws. If Clarion determines that any Campaign Content is not suitable for inclusion in any Publication(s) because it does not meet the requirements of paragraph 13 of this Schedule 2, Clarion shall notify Company as soon as is reasonably practicable. Company may supply alternative Campaign Content but if such alternative Campaign Content is delivered by Company later than the Campaign Start Date (or such other date as may be agreed between the Parties), Company agrees that Clarion shall be under no obligation to publish such Campaign Content on the Publication(s) and that Clarion shall have no liability to Company in relation to such Campaign Content.
7. Clarion shall use its reasonable commercial endeavours to:
a) place Campaign Content on all agreed and available advertising units on the Publication; and
b) publish Campaign Content in the Preferred Position.
8. Clarion reserves the right in its discretion and without incurring any liability to Company to:
a) control where and when any Campaign Content is displayed;
b) change the form and manner of any Campaign Content (including, altering the length of pre-roll or changing the size of any banners) so that Campaign Content remains compatible with any changes to Clarion’s platforms or suitable for any new delivery media from time to time; and
c) decline to display or otherwise make available any Campaign Content pursuant to paragraph 13 of this Schedule 2.
9. Unless expressly stated otherwise in the Order Form, Campaign Content Fees are calculated on the basis of the volume of Campaign Content to be published, and not on the resulting value of the Volume Delivered.
Rejection and changes
10. It is the responsibility of Company to check that Campaign Content (and, if applicable, each insertion of Campaign Content) is correct. Clarion assumes no responsibility or liability for the repetition of an error in any Campaign Content unless notified immediately after the error occurs. Any other complaint, claim or query in relation to Campaign Content must be raised with Clarion in writing within five (5) days following publication of Campaign Content or of the date on which it is claimed Campaign Content should have appeared.
11. Clarion may, in its sole discretion, accept a written notice of change to Campaign Content or the Preferred Position from that specified in the Order Form, or to the length of Campaign (Campaign Change), where such notice is received less than eight (8) weeks prior to the Campaign Start Date. In such event, Clarion and Company shall agree revised Campaign Content Fees in respect of the Campaign Change.
12. Clarion may, in its sole discretion, accept a Campaign Change after the Campaign Start Date. In such event, Clarion and Company shall agree revised Campaign Content Fees in respect of the Campaign Change and the publication of any further Campaign Content shall be subject to the agreement and payment of such revised Campaign Content Fees.
13. Without prejudice to the representations, warranties and undertakings of Company in clause 3 of the Conditions, Clarion may in its sole discretion decline to publish, omit, suspend, or remove Campaign Content or require Campaign Content to be amended at any time where Clarion (in its sole discretion) believes that Campaign Content:
a) breaches this Agreement;
b) would expose Clarion to any liability;
c) would bring Clarion into disrepute;
d) does not comply with Campaign Content Guidelines; and/or
e) does not comply with any legal, regulatory, compliance or moral obligations placed on Clarion or Company.
14. No complaint, attempted cancellation, claim or query by Company (whether in relation to Campaign Content or otherwise) shall affect the liability of Company to pay Campaign Content Fees in accordance with this Agreement.
Cancellation
15. If Company cancels publication of Campaign Content 3 months or less prior to the Campaign Start Date, Clarion reserves the right to charge Campaign Content Fees in full or, if Company has already paid Campaign Content Fees, Clarion shall not be liable to refund any part of Campaign Content Fees.
16. Clarion shall have no liability to Company if Clarion cancels publication of Campaign Content due to an Event of Force Majeure or because Clarion ceases to have the right to publish Campaign Content on the Publication(s), in which case Clarion shall not be liable to refund any amount of Campaign Content Fees.
Delivery of Impressions, Click-throughs or other agreed performance metrics
17. If any part of Campaign Content and/or any related artwork and copy is delivered to Clarion after the Deadline, Clarion shall use reasonable commercial endeavours to achieve the Volume Order during the Campaign Window. Notwithstanding the foregoing, Clarion reserves the right to charge Company the value of the Volume Order in full if such late delivery occurs.
18. Except as set out in paragraph 19 of this Schedule 2, the Volume Delivered as recorded by Clarion shall be deemed to be the correct and final figure.
19. If any Campaign Content is served or delivered to Publication(s) by a rich media vendor, the Volume Delivered recorded by such rich media vendor shall be deemed to be the correct and final figure.
Company’s obligations
20. Company represents, warrants and undertakes that:
a) it shall comply with Campaign Content Guidelines, all Applicable Laws and industry codes of practice (including those issued by the Advertising Standards Authority);
b) it shall hold and maintain all necessary authorisations to permit the use, reproduction, display, transmission and distribution of Campaign Content;
c) it shall be solely liable for any links to other websites, areas and/or information contained in any Campaign Content, and Clarion shall have no liability in respect of the same;
d) in respect of any Campaign Content submitted for publication which contains the name and pictorial representation (photographic or otherwise) of any person, it has obtained the authority of such person to make use of their name, representation and/or copy;
e) in relation to any Campaign Content which falls within scope of FSMA, the contents of such Campaign Content have been approved by an authorised person within the meaning of FSMA or the publication of Campaign Content is otherwise permitted under FSMA;
f) all Campaign Content submitted to Clarion shall not contain or give access to any Viruses; and
g) all Campaign Content submitted to Clarion shall not constitute false or misleading advertising, be defamatory, obscene or otherwise breach any right of any person.
21. In the event of any enquiry, investigation or other correspondence by or from any supervisory or regulatory authority in connection with the display of Campaign Content, Company shall at its own cost co-operate fully with Clarion and provide such assistance as may be required by Clarion.
Intellectual Property Rights
22. Save as otherwise expressly stated below and/or in the Order Form, IPR ownership shall be as set out in clause 6 of the Conditions.
23. Company grants to Clarion an irrevocable, royalty-free, fully paid-up, perpetual, transferable, sub-licensable and worldwide licence to:
a) reproduce, display, publish, distribute, transmit (or permit each of the foregoing) Campaign Content in all formats (whether now known or otherwise), including in electronic, digital and all other media, and to permit readers of the Publication(s) and users of its website(s) to access Campaign Content;
b) use parts of Campaign Content to market itself and the services which it provides; and
c) use and reproduce the Company Background IPRs in the provision of Campaign Content Services.
ANNEX 1
Controller – Controller transfers of Community Data between the parties
This Annex 1 applies, in circumstances set out in clause 12 of the Conditions, to the sharing between the parties of Community Data excluding Company Staff Data (referred to as the Shared Personal Data in this Annex 1). This Annex 1 sets out the framework for the sharing of the Shared Personal Data from one party (the Data Discloser) to the other party (the Data Recipient).
1. Agreed Purpose
1.1 The Parties may share and process Shared Personal Data as follows:
(a) Clarion may share Shared Personal Data to the Company relating to Community Members who have registered directly or subscribed via Clarion’s online portal in connection with the Digital Campaign. Such Shared Personal Data is shared for the purpose of enabling the Company to contact each Community Member for direct marketing purposes.
(b) the Company may share Shared Personal Data to Clarion relating to Company-invited Community Members. Such Shared Personal Data is shared for the purposes of enabling Clarion to provide Digital Campaign registration services to the Community Members in question and/or otherwise to perform its obligations under the Agreement.
The parties shall not process Shared Personal Data in a way that is incompatible with the purposes described in this paragraph 1 (Agreed Purpose).
2. Types of Shared Personal Data
2.1 The following types of Personal Data may be shared between the parties during the Term of this agreement:
(a) Community Data: name, email, job title, employer
(b) Company Community Data: as above (and being a sub-set of the above)
2.2 Special categories of Personal Data (as set out in the applicable Data Protection Laws) will not be shared between the parties.
2.3 Criminal offence data (namely, personal data relating to criminal convictions and offences or related security measures) will not be shared between the parties.
2.4 The Shared Personal Data must not be irrelevant or excessive with regard to the Agreed Purpose.
3. Lawful, fair and transparent processing
3.1 Each party shall ensure that it processes the Shared Personal Data fairly and lawfully in accordance with this Agreement.
3.2 Each party shall ensure that it has legitimate grounds under the Data Protection Laws for the processing of Shared Personal Data, and where the legitimate ground relied on is consent, the data subject has provided unambiguous, informed consent in writing and by clear affirmative action.
3.3 The Data Discloser shall, in respect of Shared Personal Data, ensure that it provides clear and sufficient information to the relevant data subjects, in accordance with the Data Protection Laws, of the purposes for which it will process their personal data.
3.4 The Data Recipient undertakes to inform the data subjects, in accordance with the Data Protection Laws, of the purposes for which it will process their personal data, the legal basis for such purposes and such other information as is required by the Data Protection Laws.
3.5 Shared Personal Data must be limited to the Personal Data described in section 2 above of this Annex 1.
4. Data subjects' rights
4.1 Each party shall provide such assistance as is reasonably required to enable the other party to comply with requests from data subjects to exercise their rights under the Data Protection Laws within the time limits imposed by the Data Protection Laws.
4.2 Each party shall maintain a record of individual requests for information, the decisions made and any information that was exchanged. Records must include copies of the request for information, details of the data accessed and shared and where relevant, notes of any meeting, correspondence or phone calls relating to the request.
5. Data retention and deletion
5.1 The Data Recipient shall not retain or process Shared Personal Data for longer than is necessary to carry out the Agreed Purposes. Notwithstanding the foregoing, the parties may continue to retain Shared Personal Data in accordance with any statutory or professional retention periods under Applicable Law.
5.2 The Data Recipient shall ensure that the Shared Personal Data is returned to the Data Discloser or destroyed in accordance with its agreed data retention and deletion policy, once processing of the Shared Personal Data is no longer necessary for the Agreed Purposes.
6. Transfers
6.1 For the purposes of this paragraph, transfers of personal data shall mean any sharing of personal data by the Data Recipient with a third party, and shall include, but is not limited to, the following:
(a) subcontracting the processing of Shared Personal Data;
(b) granting a third party controller access to the Shared Personal Data.
6.2 If the Data Recipient appoints a third party processor to process the Shared Personal Data it shall comply with the applicable Data Protection Laws and shall remain liable to the Data Discloser for the acts and/or omissions of the processor.
6.3 The Data Recipient may not transfer Shared Personal Data to a third party other than in accordance with all Data Protection Laws.
7. Security and training
7.1 The Data Recipient shall implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Shared Personal Data and against accidental loss or destruction of, or damage to, such Shared Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
7.2 It is the responsibility of each party to ensure that its staff members are appropriately trained to handle and process the Shared Personal Data in accordance with the technical and organisational security measures set out above together with any other applicable national data protection laws and guidance and have entered into confidentiality agreements relating to the processing of personal data.
8. Personal data breaches and reporting procedures
8.1 The parties shall each comply with its obligation to report a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Shared Personal Data (a “Personal Data Breach”) to the appropriate supervisory authority and (where applicable) data subjects under the applicable Data Protection Laws and shall each inform the other party of any Personal Data Breach irrespective of whether there is a requirement to notify any supervisory authority or data subject(s). The parties agree to provide reasonable assistance as is necessary to each other to facilitate the handling of any Personal Data Breach in an expeditious and compliant manner.
9. Resolution of disputes with data subjects or the relevant supervisory authority
9.1 In the event of a dispute or claim brought by a data subject or the supervisory authority concerning the processing of Shared Personal Data against either or both parties, the parties shall inform each other about any such disputes or claims, and shall reasonably cooperate with a view to settling them amicably in a timely fashion.
9.2 The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the relevant supervisory authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes. Each party shall abide by a decision of a competent court of the Data Discloser's country of establishment or of the relevant supervisory authority.
10. Warranties
10.1 Each party warrants and undertakes that it will:
(a) process the Shared Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments that apply to its personal data processing operations.
(b) respond within a reasonable time and as far as reasonably possible to enquiries from the relevant supervisory authority in relation to the Shared Personal Data.
(c) respond to subject access requests in accordance with the applicable Data Protection Laws;
(d) where applicable, pay the appropriate fees with all relevant supervisory authorities to process all Shared Personal Data for the Agreed Purpose; and
(e) take all appropriate steps to ensure compliance with the security measures set out in this Annex 1.
10.2 The Data Discloser warrants and undertakes that it is entitled to provide the Shared Personal Data to the Data Recipient, and that it shall ensure that all Shared Personal Data is accurate.
11. Direct marketing
11.1 If the Data Recipient processes the Shared Data for the purposes of direct marketing, the Data Recipient shall ensure that:
(a) the appropriate level consent has been obtained from the relevant data subjects to allow the Shared Data to be used for the purposes of direct marketing in compliance with the Data Protection Law; and
(b) effective procedures are in place to allow the data subject to "opt-out" from having their Shared Personal Data used for such direct marketing purposes.