1.1) In this agreement the following words and expressions shall (except where the context otherwise requires) have the following meanings:
"Claim" means potential or issued legal proceedings against a third party for any pecuniary losses.
“Data Protection Legislation” means:
(a) the Data Protection Act 2018;
(b) the Data Protection Directive 95/46/EC;
(c) the Electronic Communications Data Protection Directive 2002/58/EC;
(d) the Privacy and Electronic Communications (EC Directive) Regulations 2003;
(e) the Regulation of Investigatory Powers Act 2000 and its successor legislation The Investigatory Powers Act 2016;
(f) the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699);
(g) the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011, and all applicable laws which replace the above, including the GDPR, together with all other applicable laws relating to processing of personal data and privacy that may exist in any relevant jurisdiction, including, where applicable, the guidance and codes of practice issued by the regulatory body responsible for privacy and data protection;
“GDPR” means the General Data Protection Regulation (EU) 2016/679 as in force from time to time as transposed into domestic legislation and as amended, replaced or superseded from time to time, including by the GDPR and by laws implementing or superseding the GDPR;
“Invoice” means any application for payment issued by Icon to the Client (whether issued before, on or after the date these terms are signed) in respect of any services carried out setting out the applicable fees or any fees agreed between Icon and the Client on an individual basis.
“Personal Data” as set out in the GDPR which is any information relating to an identified or identifiable natural person: an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
“Sensitive Personal Data” shall be considered to be any data which falls into one of the Special Categories of Personal Data as is referenced in the Data Protection Act 2018 and GDPR;
The fees charged by Icon Marketing Communications Ltd (Icon) in respect of all marketing and advertising services offered (Standard Icon Fees) which at the date hereof are as follows and which may be amended by Icon from time to time.
Standard Daily Rate £250 per day
Hourly Rate £31.25 per hour
Strategic Business Development £31.25 per hour
Marketing Delivery £31.25 per hour
Advertising £POA per hour
Media Relations £31.25 per hour
Social Media Marketing £31.25 per hour
Database Management & Procurement £POA per hour
Website Development £31.25 per hour
Events £31.25 per hour
All other marketing services Icon standard charges, unless agreed otherwise between the parties.
In all cases, Icon ’s is not registered for VAT and therefore the figures quoted are gross.
3. DUTIES AND PAYMENT
On all Standard Instructions, Icon will agree the fees with the Client prior to instruction and the Client agrees to be liable to Icon for the full amount of such fees in their entirety.
Icon will raise each invoice to the Client at the Standard Icon Fees rates listed in the table above.
The Client will pay to Icon the fees set out in each Invoice by no later than 5 business days from the date of the invoice.
Unless and until Icon agrees otherwise in writing, the Client will remain liable to pay Icon’s fees in full notwithstanding the transfer of any services to another marketing and advertising company and/or if the client is no longer instructing Icon to act on their behalf;
Icon will provide the Client with a monthly statement showing the Invoices outstanding should the client make such a request in writing.
Icon shall have in place and maintain adequate professional indemnity and public liability insurance.
4. DATA PROTECTION
4.1 During the term of this agreement and after termination or expiration of this agreement for any reason whatsoever, Icon and the Client shall comply with all Data Protection Legislation.
4.2 In its performance of the Services, Icon shall, at all times:
4.2.1 process Personal Data only on documented instructions from the Client;
4.2.2 only process Personal Data in the European Economic Area and shall not transfer, transmit or otherwise store Personal Data outside of the European Economic Area without fully complying with Articles 44-49 of the GDPR;
4.2.3 ensure that persons authorised to process Personal Data have committed themselves to confidentiality in respect of Personal Data on terms no less onerous than those set out in this agreement;
4.2.4 take all measures required relating to data security. For the avoidance of doubt this may include (but not be limited to):
(a) the pseudonymisation and encryption of Personal Data;
(b) redundancy and back-up facilities;
(c) regular security testing; and
(d) on-going reviews of security measures.
4.2.5 not appoint a sub-contractor to process Personal Data without:
(a) a general written authorisation (set out in Clause 6.1) from the Client that Icon may approach such sub-contractors as outlined in any authorisation or instructions to Icon ; and
(b) imposing contractual data protection obligations on such sub-contractor that are no less onerous than those set out in this agreement;
4.2.6 assist the Client by implementing appropriate technical and organisational measures, including for the fulfilment of the Client’s own obligations to respond to requests for exercising data subjects’ rights under Data Protection Legislation;
4.2.7 assist the Client in ensuring compliance with Data Protection Legislation (where reasonably requested) including but not limited to assisting with the carrying out of data protection impact assessments;
4.2.8 at the choice of the Client, delete or return all Personal Data to the Client after the end of the provision of services relating to processing subject to Icon ’s right to retain any such Personal Data in order to comply with its legal obligations and as set out in the Icon Information Lifecycle Management Policy; and
4.2.9 make available to the Client all information reasonably necessary to demonstrate compliance with the obligations laid down in this clause 4.2 and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client (including any regulatory bodies or accrediting bodies).
4.3 In the event of any Personal Data breach which requires notification under GDPR to the relevant regulatory body or the data subject as defined in GDPR (howsoever caused), Icon shall, after becoming aware of it, notify the Client of such Personal Data breach. Icon shall ensure that any notice they give the Client under this clause shall (where such information is known at the time and is available):
4.3.1 describe the nature of the Personal Data breach including, where possible, the categories and approximate number of data subjects concerned, and the categories and approximate number of Personal Data records concerned;
4.3.2 communicate the name and contact details of Icon ’s data protection officer or other contact point where more information can be obtained;
4.3.3 describe the likely consequences of the Personal Data breach;
4.3.4 describe the measures taken or proposed to be taken by Icon to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
4.4 Icon and its representative shall maintain a record of all categories of data processing activities it carries out on behalf of the Client, containing:
4.4.1 the name and contact details of Icon, any sub-contractors processing data on Icon ’s behalf, the Client (on whose behalf Icon is acting), and, where applicable, the Client's and/or Icon‘s representative, and the data protection officer;
4.4.2 the categories of processing carried out on behalf of the Client;
4.4.3 where applicable, transfers of Personal Data to a third country or an international organisation, including the identification of that third country or international organisation and, where applicable under Data Protection Legislation, the documentation of suitable safeguards;
4.4.4 where possible, a general description of the technical and organisational security measures that it has taken.
4.5 Icon shall notify the Client as soon as it receives a request from a data subject wishing to exercise one or more of its rights in respect of its Personal Data under Data Protection Legislation.
4.6 Icon shall provide the Client with full co-operation and assistance in relation to any request under clause 4.5 made by a data subject.
4.8 The Client warrants and represents that all third parties that they recommend to Icon and/or provide contact details to Icon, have given their consent to the transfer of their Personal Data and Sensitive Personal Data by the Client to Icon and to the processing of their Personal Data and Sensitive Personal Data by Icon in order for Icon to provide the services, which shall include the transfer of Personal Data and Sensitive Personal Data to third party providers of services.
5. LIMITATION OF LIABILITY
5.1 Nothing in this agreement shall limit or exclude Icon ’s liability for:
5.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
5.1.2 fraud or fraudulent misrepresentation; or
5.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
5.2 Subject to clause 5.1 above, Icon shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
i) loss of profits;
ii) loss of sales or business;
iii) loss of agreements or contracts;
iv) loss of anticipated savings;
v) loss of use or corruption of software, data or information;
vi) loss of damage to goodwill; and
vii) any indirect or consequential loss.
5.3 Subject to this clause 5.1, Icon ’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement (other than in respect of the provision of Pagination Services) shall be limited to £500,000.
5.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
5.5 This clause 5 shall survive termination of this agreement.
6. ASSIGNMENT AND SUB-CONTRACTING
6.1 The Client acknowledges and hereby provides a general written authorisation that Icon has the right to sub-contract the provision of the services to suitably qualified sub-contractors / third parties.
6.2 Subject to clause 6.1, neither party shall assign or transfer or purport to assign or transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
7.1 For the purposes of this clause, "Confidential Information" means all information of a confidential
nature disclosed (whether disclosed or held in writing, verbally or by any other means and whether directly or indirectly) by Icon to the Client or by the Client to Icon (the disclosing party being the "Disclosing Party" and the receiving party being the "Receiving Party" for the purposes of this clause) whether before or after the date of this agreement including, without limitation, any information relating to the Disclosing Party's business affairs.
7.2 During the term of this agreement and after termination or expiration of this agreement for any reason whatsoever the Receiving Party shall:
7.2.1 keep the Confidential Information confidential;
7.2.2 not disclose the Confidential Information to any other person, other than with the prior written consent of the Disclosing Party or in accordance with the clause 7.3; and
7.2.3 not use the Confidential Information for any purpose other than the performance of its obligations under this agreement.
7.3 During the term of this agreement, Icon may disclose the Confidential Information to its employees, clients, suppliers and advisors, including, without limitation, and any applicable regulatory bodies, to the extent that such disclosure is necessary for the purposes of the performance of this agreement or required by Icon as a matter of law.
8. TERM AND TERMINATION
8.1 This agreement shall remain in force from the date hereof until terminated as provided in this clause 8.
8.2 The client may terminate this agreement provided they act in compliance with the break clause as agreed in the order form, but Icon reserves the right to terminate this agreement by giving one months’ notice in writing to the other party.
8.3 Either party may immediately terminate this agreement by giving written notice to the other following the occurrence of any of the following events (the recipient of such notice being the "Defaulting Party" for the purposes of this clause 8.3):
8.3.1 the Defaulting Party committing a material breach of any of its obligations under this agreement and, if that breach is capable of remedy, failing to remedy the same within 14 days of the other party giving written notice to the Defaulting Party requiring remedy of that breach;
8.3.2 the Defaulting Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed either unable to pay its debts or as having no reasonable prospect of doing so, in either case, within the meaning of sections 123 and 268 (as applicable) of the Insolvency Act 1986 or has any partner to whom any of the foregoing apply;
8.3.3 the Defaulting Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
8.3.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Defaulting Party (being a company);
8.3.5 the holder of a qualifying floating charge over the assets of the Defaulting Party (being a company) has become entitled to appoint or has appointed an administrative receiver;
8.3.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Defaulting Party (being a company);
8.3.7 a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the Defaulting Party;
8.3.8 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Defaulting Party's assets and such attachment or process is not discharged within 14 days;
8.3.9 any event occurs, or proceeding is taken, with respect to the Defaulting Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.3.2 to clause 8.3.8 (inclusive); or
8.3.10 the Defaulting Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
8.4 Any cancellation agreed by Icon will be subject to a cancellation fee of 35% of the
remaining order value not including any discounts (i.e the portion of the order that has not been fulfilled) and this fee will be charged to and is payable by the client before the cancellation will become effective.
9. CONSEQUENCES OF TERMINATION
9.1 All rights and obligations of the parties shall cease to have effect immediately upon the termination of the agreement except that termination shall not affect:
9.1.1 the accrued rights and obligations of the parties at the date of termination (including but not limited to the obligations upon the Client to pay Icon ’s Invoices in accordance with clause 3); and
9.1.2 the continued existence and validity of the rights and obligations of the parties under those clauses which are expressed to survive termination and any provisions of this agreement necessary for the interpretation or enforcement of this agreement.
9.2 Upon termination of this agreement by Icon where the Client is the Defaulting Party in accordance with clause 8.3 above, the Client shall immediately pay to Icon all unpaid Icon Invoices and, in respect of services supplied but for which no invoice has been submitted, Icon may submit a Icon Invoice, which shall be payable immediately on receipt.
10.1 No variation to these terms and conditions is permitted unless agreed in writing by both parties. No one other than a director of Icon (including, without limitation, members of the sales team, finance team or any operational staff, including sub-contractors) has the authority to bind Icon, or to vary the terms of this agreement. Any proposed variation must be communicated to a director of Icon in order for Icon to consider such variation.
10.2 A waiver of any right under these terms and conditions is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under these terms and conditions or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
10.3 These terms represent the entire agreement between the parties in respect of the provision by Icon of the services to which these terms relate and supersede any previous agreement in respect of the provision by Icon of such services. These terms prevail over any inconsistent terms or conditions contained or Referred to in any document produced by either party.
10.4 These terms will be governed by English Law and the courts of England shall have exclusive jurisdiction to settle any dispute arising out of these terms.