1. PRIMARY OBLIGATIONS AND WARRANTIES
1.1. The Audience Agency shall:
1.1.1. provide the Services in the Territory in accordance with the Specification;
1.1.2. use all reasonable care and skill in the performance of the Services, and in the collection and collation of any data on which the Services are based, or which is comprised within the Services.
1.2. The Client shall use all reasonable endeavours to ensure that any information provided to The Audience Agency is complete, accurate and in the agreed format.
1.3. Each of the parties shall:
1.3.1. use all reasonable endeavours to perform its obligations under this Agreement in accordance with any written timetable for delivery of the Services agreed between the parties;
1.3.2. ensure that its personnel, whilst on the premises of the other party, comply with that party's reasonable regulations governing security and health and safety as have been notified to it.
1.4. Each party warrants that:
1.4.1. it has the full power and authority to enter into this Agreement;
1.4.2. the use by the other party as permitted by this Agreement of any information, data, software, documentation, scorecards and/or services which it provides to the other party shall not infringe any third-party Intellectual Property Rights.
2. TERM
2.1. This Agreement shall be deemed to have commenced on the Start Date and, subject to the provisions for early termination set out in this Agreement will automatically be extended at each anniversary of the Start Date.
3. PAYMENTS AND INVOICING
3.1. The Client shall pay the fees set out in and/or referred to in the Separate License Agreement or Subscription Agreement. All sums referred to in this Agreement are exclusive of VAT.
3.2. The Audience Agency will invoice the Client as stated in the Separate License Agreement or Subscription Agreement.
3.3. All invoices are payable in cleared funds within 30 days after receipt of invoice by the Client. If any sum payable by the Client to The Audience Agency is not paid by its due date, The Audience Agency shall be entitled to charge interest on the overdue amount at 4% above CAF Bank Ltd.’s base rate from time to time. Interest will accrue on a daily basis from the due date up to the date of actual payment. It would be compounded quarterly and payable on demand.
3.4. Unless stated otherwise, the fees set out in the Separate License Agreement or Subscription Agreement will be fixed unless notified before the anniversary of each Start Date. Any such increase shall not exceed the percentage increase over the 12 months prior to the increase taking effect in the Retail Prices Index published by the Central Statistical Office (in the case of all other fees).
3.5. If the Retail Price Index referred to in Clause 3.4 ceases to be published then a broadly equivalent index as may be agreed by the parties will be used as a substitute.
4. NATURE OF THE SERVICES
4.1. The Audience Agency's services are not intended to be used as the sole basis for any business decision and are based upon data which is provided by third parties, the accuracy and/or completeness of which it would not be possible and/or economically viable for The Audience Agency to guarantee. The Audience Agency's services also involve models and techniques based on statistical analysis, probability and predictive behaviour.
The Audience Agency is therefore not able to accept any liability, other than under Clause 1.1, for:
4.1.1. any inaccuracy, incompleteness or other error in The Audience Agency’s Data which arises as a result of data provided to The Audience Agency by the Client or any third party;
4.1.2. any failure of the Services to achieve any particular result for the Client or any Additional User.
5. COMPLIANCE
5.1. Each party shall in connection with the provision or use of the Services (as appropriate) comply with all legislation, regulations, and other rules having equivalent force which are applicable to that party.
5.2. In order to protect the integrity of the data used in connection with the Services, the Client shall:
5.2.1. comply with The Audience Agency's reasonable instructions and guidelines relating to data security;.2.2. not copy, interfere with and/or use in any unauthorised way any digital certificate, web certificate or any other security device provided by The Audience Agency.
5.2.2. not copy, interfere with and/or use in any unauthorised way any digital certificate, web certificate or any other security device provided by The Audience Agency.
5.3. If as a result of any changes in any legislation, regulations, codes or other rules having equivalent force (including any reasonable interpretation thereof), The Audience Agency considers in its reasonable opinion that it is no longer desirable or commercially viable for The Audience Agency to continue to provide the Services at all or in accordance with this Agreement, or if any third party data or software becomes unavailable to The Audience Agency, The Audience Agency shall be entitled to do one of the following on giving one month (30 days) prior notice to the Client:
5.3.1. modify the affected Services as necessary to accommodate such changes or unavailability; or
5.3.2. terminate this Agreement (without liability) in respect of those Services which are affected by such changes or unavailability.
5.4. In exercising its rights under Clause 5.3, The Audience Agency will consult with the Client, and act reasonably and in a way which is consistent with its treatment of its other clients.
6. LICENSE AND USE
6.1. The Audience Agency grants the Client a non-exclusive, non-transferable licence to use any The Audience Agency Data and/or The Audience Agency Materials provided as part of the Services.
6.2. The licence granted under Clause 6.1 will automatically expire on termination of this Agreement for any reason (unless the licence is expressed in the Separate License Agreement or Subscription Agreement to be perpetual in which case the licence and any terms relating to the extent and/or exercise of that licence shall remain in force notwithstanding termination of the Agreement, except if termination is by The Audience Agency under Clause 8.1).
6.3. The Audience Agency shall not be in breach of its obligations under Clause 1.1.1 with regard to any software provided to the Client under this Agreement to the extent that any failure of the software to comply with its Specification has no material effect upon the functionality of the software or upon the ability of the Client to use the software.
7. UPDATES
7.1. The Audience Agency will from time to time at its own cost and expense and in its absolute discretion update the various elements contained in The Audience Agency Materials and/or The Audience Agency Data and agrees to make available such updates to the Client as soon as reasonably practicable after The Audience Agency has produced the updates. Use by the Client of such updates will be subject to this Agreement. The Audience Agency reserves the right to charge for new updates of such The Audience Agency Materials and/or The Audience Agency Data if those updates contain enhancements to functionality, such charges to be at The Audience Agency's then currently applicable rates.
8. TERMINATION
8.1. Either party shall be entitled to terminate this Agreement immediately by serving written notice on the other party in the following circumstances:
8.1.1. if the other party commits a material breach of any of its obligations under this Agreement which is not capable of remedy;
8.1.2. if the other party commits a material breach of any of its obligations under this Agreement which is not remedied within 28 days after receipt of a notice from the party not in breach specifying the breach, requiring its remedy and making clear that failure to remedy may result in termination;
8.1.3. if the other party has passed a resolution for its winding up (save for a voluntary winding-up for the purpose of a voluntary reconstruction or amalgamation), is subject to a petition presented to any court for its winding-up (save for a voluntary winding-up for the purpose of a voluntary reconstruction or amalgamation), is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator given by any person, or is the subject of a notice to strike off the register at Companies House, or is dissolved or declared bankrupt, or has a receiver, administrator or administrative receiver appointed over all or part of its assets, or enters into an arrangement with its creditors, or is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, or ceases to trade or takes or suffers any similar action.
8.2. Termination of this Agreement (or of any element of it) shall not affect any rights, obligations or liabilities of either party which have accrued before termination or which are intended to continue to have effect beyond termination.
9. GENERAL
9.1. Any notices to be sent by one party to the other in connection with this Agreement except for the service of Court proceedings shall be in writing and shall be delivered personally or sent by special delivery post (or equivalent service offered by the postal service from time to time) to the addresses of each party as set out on the front page of the Separate License Agreement or Subscription Agreement or as otherwise notified in accordance with the provisions of this Clause.
9.2. Notices shall be deemed to have been duly given: if delivered personally, upon delivery; if sent by post, two clear days after the date of posting;
9.3. Except as provided in Clause 9.4 neither party may assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
9.4. The Audience Agency shall be entitled to sub-contract any or all of its obligations under this Agreement to a sub-contractor but by doing so The Audience Agency shall be responsible for the acts and omissions of the sub-contractor to the same extent as if it had carried out the obligations itself pursuant to this Agreement.
9.5. Each party agrees to act reasonably in considering a request to cooperate with publicity-related releases or other promotional activity made by the other party.
9.6. If any part of this Agreement is found to be invalid or unenforceable by any Court or other competent body, such invalidity or unenforceability shall not affect the other provisions of this Agreement and such other provisions shall remain in full force and effect.
9.7. Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement if such delay or failure is due to an event of Force Majeure.
9.8. If either party fails to exercise a right or remedy that it has or which arises in relation to this Agreement, such failure shall not prevent that party from exercising that right or remedy subsequently in respect of that or any other incident.
9.9. A waiver of any breach or provision of this Agreement shall only be effective if it is made in writing and signed on behalf of the party who is waiving the breach or provision. Any waiver of a breach of any term of this Agreement shall not be deemed a waiver of any subsequent breach and shall not affect the enforceability of any other term of this Agreement.
9.10. This Agreement and all matters arising out of it shall be governed by, and construed in accordance with, the laws of England. The English courts shall have exclusive jurisdiction over any claim or matter which may arise out of or in connection with this Agreement.
9.11. Variations of this Agreement shall not be effective unless recorded in writing signed by the parties. However, variations to the Separate License Agreement or Subscription Agreement made in accordance with any agreed change control procedure shall be effective.
9.12. This Agreement sets out all the terms agreed between the parties relating to the subject matter of this Agreement and supersedes any previous agreement between the parties relating to the same subject matter. Neither of the parties shall be bound by, or liable to the other party for, any representation, promise or inducement (other than fraudulent misrepresentations) made by it or by any agent or person on its behalf which is not expressly contained in this Agreement.
9.13. The parties hereby agree that nothing in this Agreement shall be construed as creating a right which is enforceable by any person who is not a party to this Agreement or a permitted assignee of such a party.
9.14. Each party shall, at the reasonable request and cost of the other party, do whatever is reasonably required to give the other party the full benefit of all the provisions of this Agreement.
9.15. Nothing in this Agreement is intended to, or shall, operate to:
9.15.1. create a partnership or joint venture of any kind between the Client and The Audience Agency;
9.15.2. authorise either party to act as agent for the other party;
9.15.3. authorise either party to act in the name or on behalf of, or otherwise to bind, the other party in any way.
9.16. In this Agreement:
9.16.1. any reference to a statutory provision includes a reference to any modification or re-enactment of it from time to time;
9.16.2. the singular includes the plural and vice versa;
9.16.3. the headings are for ease of reference only and shall not affect the construction or interpretation of this Agreement;
9.16.4. where any matter is to be agreed, such agreement must be recorded in writing;
9.16.5. wherever the words , “including”, “include”, “includes” or “included” are used they shall be deemed to be followed by the words “without limitation” unless the context otherwise requires.
9.17. The contents of the Separate License Agreement or Subscription Agreement (but not any job specification attached thereto) shall prevail over the contents of these Terms and Conditions to the extent of any conflict or inconsistency.
10. DEFINITIONS
In this Agreement the following words and expressions shall have the following meanings:
Additional User: The persons or organisations as set out in the Separate License Agreement or Subscription Agreement to whom The Audience Agency supplies the Services, The Audience Agency Materials and/or The Audience Agency Data in addition to the Client;
Additional User Rights: The rights granted to Additional Users as set out in the Separate License Agreement or Subscription Agreement;
Client: The party named as the Client in this Agreement;
Client Data: Any of the data and/or databases owned by the Client and/or any Additional Users and provided to The Audience Agency in connection with this Agreement;
Client Materials: Any of the items provided to The Audience Agency by the Client and/or any Additional Users in connection with this Agreement and includes Client Data;
Client Products: Those products or services currently sold by the Client as at the Start Date or as The Audience Agency and the Client may otherwise agree in writing from time to time in respect of which the Services are provided;
Confidential Information: Any and all information relating to the trade secrets, operations, processes, plans, intentions, product information, prices, know-how, designs, customer lists, market opportunities, transactions, affairs and/or business of the parties and/or to their customers, suppliers, clients or Group Companies in or on any medium or format;
Contract Year: A twelve calendar month period from the Start Date or any anniversary of the Start Date;
Derivative Output: Information, data and materials that are derived, prepared or generated by The Audience Agency and/or the Client and/or their sub-contractors in connection with (and/or as a consequence of) the Services, but excluding the Client Materials themselves;
Documentation: Any or all of the Specification, user documentation, product documentation, technical documentation including guidelines relating to data security and access and/or statements of functionality;
DPA: The Data Protection Act 2018 and any subordinate legislation having effect in England;
Force Majeure: Any act of government or state, civil commotion, epidemic, fire, flood, industrial action or organised protests by third parties, natural disaster, war, failure of payment systems, or any event beyond the reasonable control of the party claiming to be excused from performance of its obligations;
Group Company: any company which is in relation to The Audience Agency or (as the case may be) the Client a subsidiary, holding company or subsidiary of a holding company as the terms “subsidiary” and “holding company” are defined by section 1159 of the Companies Act 2006;
ICO: The Information Commissioner's Office (or any other title under which such office subsequently operates);
Initial Contract Value: The greater of any minimum fee (and/or any fixed fees) and the actual amounts due and payable by the Client as specified in the Separate License Agreement or Subscription Agreement in the first Contract Year (excluding VAT);
Initial Term: The period specified as such in the Separate License Agreement or Subscription Agreement;
Intellectual Property Rights: Copyright, database right, domain names, patents, registered and unregistered design rights, registered and unregistered trademarks, and all other industrial, commercial or intellectual property rights existing in any jurisdiction in the world and all the rights to apply for the same;
Live Date: The date set out in the Separate License Agreement or Subscription Agreement or, if none, the date on which The Audience Agency Data and/or The Audience Agency Materials or the Services are first available for use in a live operating or production environment other than for the purposes of testing;
Minimum Notice Period: The minimum period of notice to be served by either party to terminate this Agreement as set out in the Separate License Agreement or Subscription Agreement (and if none is specified 12 months);
Permitted Purpose: Unless otherwise stated in the Separate License Agreement or Subscription Agreement, the internal business purposes of the Client and/or any Additional Users (as the case may be) in connection with the Client Products in the Territory and not in any event for the provision of any bureau services to any third parties other than to any Additional Users and not in any event for the purposes of promoting, marketing or advertising (or similar activities), either directly or indirectly, any products or services other than Client Products;
Personal Data: The meaning specified in the Data Protection Act 2018;
Processing: The meaning specified in the Data Protection Act 2018;
Separate License Agreement or Subscription Agreement: The Separate License Agreement or Subscription Agreement(s) containing the specific terms relating to this Agreement;
Services: The services as specified in the Separate License Agreement or Subscription Agreement and all other services supplied by The Audience Agency to the Client under or in connection with this Agreement, including the provision and grant of licences in respect of any The Audience Agency Data and/or The Audience Agency Material;
Specification: Any description contained within the Separate License Agreement or Subscription Agreement that sets out details of the agreed functionality to be provided by any The Audience Agency Materials or a detailed description of the Services;
Start Date: The Start Date set out in the Separate License Agreement or Subscription Agreement in respect of the Services covered by the Separate License Agreement or Subscription Agreement or in the absence of such date then the date that the individual signature sheet identifying this Agreement is signed by both parties;
Territory: The United Kingdom or such other territory as is specified in the Separate License Agreement or Subscription Agreement;
The Audience Agency Data: Any of the data and/or databases supplied by The Audience Agency to the Client in connection with this Agreement but excluding the Client Data;
The Audience Agency Materials: Any of the items developed and/or licensed by The Audience Agency to the Client in connection with this Agreement and includes software and Documentation but excluding The Audience Agency Data.