SUBMERGE LIMITED TERMS AND CONDITIONS
Last updated: 22/01/2025
1. DEFINITIONS AND INTERPRETATION
1.1. In these terms and conditions the following definitions apply unless otherwise stated:
‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
‘Company’ means Submerge Limited a company incorporated in England and Wales under company number 9174203 whose registered office is at 1A The Broadway, Old Hatfield, Hertfordshire, AL9 5BG, trading as Submerge.
‘Contract’ means the contract between the Company and the Client for the supply of Services governed by these Terms and the Order.
‘Client’ means the individual or business entity who purchases Services from the Company and whose details are set out in the Order.
‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
‘Group Company’ means a company which is a subsidiary or holding company of the Company, as defined in section 1159 of the Companies Act 2006.
‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
‘Order’ means the order placed by the Client through counter-signing the Company’s Quotation form.
‘Order Form’ means a Quotation Form counter-signed by the Client which together with these terms and conditions shall form a binding contract.
‘Price’ the agreed fee payable by the Client for the provision of Services by the Company.
‘Quotation’ means the written quotation prepared by the Company which contains its proposals for providing Services to the Clients.
‘Services’ means the services the Company will provide to the Client as specified in the Order.
‘Specification’ means the description or specification of the Services in the Order.
‘Terms’ means these terms and conditions as updated from time to time by the Company.
‘VAT’ means value added tax chargeable under English law for the time being and any similar additional tax.
‘White Label Work’ means Services provided by the Company to a Client who rebrands these Services as their own for the benefit of their Client.
1.2. Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Terms use words which denote a particular gender, they shall be also read to include all genders and vice versa.
1.3. The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.
1.4. A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
2. DEFINITIONS AND INTERPRETATION
2.1. These Terms shall apply to all agreements between the Company and the Client to the exclusion of any other terms that the Company or the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2. These Terms and the Order may only be varied by express written agreement between the Company and the Client.
2.3. This Agreement is made between Submerge Limited (the “Company”) and the Client named on the Order (the “Client”) under which the Company agrees to perform the services (the “Services”) set out in the Order or a letter containing a fee proposal (and other commercial terms, if any) issued by the Company which the Client will purchase on the terms and conditions set out below.
3. THE CONTRACT
3.1. The Order constitutes an offer by the Client to purchase the Services in accordance with these Terms. The Client shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
3.2. The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order by counter-signing the Order Form, or when the Company has started to provide the Services having issued the Order, whichever happens first, at which point the Contract shall come into existence.
3.3. The Contract constitutes the entire agreement between the Company to provide the Services to the Client and for the Client to purchase those Services, in accordance with these Terms.
3.4. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions or illustrations contained in the Company’s marketing materials are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any other contract between the Company and the Client for the supply of Services.
3.5. A Quotation for the supply of Services given by the Company shall not constitute an offer. A Quotation shall only be valid for a period of fifteen (15) Business Days from its date of issue.
4. THE COMPANY’S OBLIGATION AND PROVISION OF SERVICES
4.1. The Company warrants that it will provide the Services as stipulated in the Order using all reasonable care and skill, and to conform to all material aspects of the Specification.
4.2. The Company agrees not to make available to the public any content or Services without the prior approval of the Client.
4.3. The Company shall use all reasonable endeavours to meet any delivery dates specified in the Order but that any such dates shall be estimates only and time shall not be of the essence for the provision of the Services. The Company shall not be liable for any delay in delivery of the Services caused by a Force Majeure event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions, information or materials relevant to the supply of the Services.
4.4. Any times or dates specified in the Order or otherwise for the provision of the Services are given and intended as an estimate only and the Company shall not be liable for any loss, damage or expense suffered by the Client arising from early or late performance. The Company will endeavour to take all reasonable steps to provide the Client as much notice as is possible in the event of early or late delivery.
4.5. The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
4.6. The Company shall be entitled to use a Group Company or other subcontractor for the provision of the Services provided always that the Company shall remain liable to the Client for the performance of the Services as if it had carried them out itself.
4.7. The Company shall provide two revisions for supplied content to the Client as part of its provision of the Services defined by the Order. For clarity, a “Revision” is not a change to the defined Services as per the Order, and is limited to changes such as sentence construction, facts or copy flow, or to post-production edits to imagery. Any Revisions will be collated and communicated via a single representative of the Client, with Revisions supplied to the Company by the Client representative within the agreed deadline.
5. CLIENT OBLIGATIONS
5.1. The Client shall provide assistance and technical information to the Company, as reasonably required by the Company in sufficient time to facilitate the execution of an Order in accordance with any estimated delivery dates. The Client shall have sole responsibility for ensuring the accuracy of all information provided to the Company and the Client shall ensure that the Client’s employees assisting in the execution of an Order have the necessary skills and authority.
5.2. The Client shall be obliged within a reasonable period and before the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) content, marketing and other documents and graphic material submitted by the Company.
5.3. In the event that the Client fails to undertake those acts or provide those materials required under Clause 5 within any agreed deadline and at least within thirty (30) Business Days of the date requested by the Company, the Company shall be entitled to invoice for the Services that it has supplied to date.
5.4. Notwithstanding Clauses contained in this Agreement, the Company shall not be liable to the Client for:
- any failure to perform the Services where the Company’s performance was dependent on the Client performing some act and the Client failed to perform that act or took more than one (1) month doing so; or
- any defective or imperfect Services which is due to incorrect, inaccurate or inadequate Client Materials; or
- loss including but not limited to, loss or corruption of data, loss of profits, revenues or goodwill (including any such loss or damage payable by you to a third party as a result of an action brought by a third party); or
- any indirect or consequential loss (including any such loss or damage payable by you to a third party as a result of an action brought by a third party) even if the loss was reasonably foreseeable and whether arising from negligence, breach of contract or a statutory duty or otherwise; or
- any claims which have not been notified to the Company within thirty (30) days on which the Client was aware.
5.5. The Client and the Company both undertake to comply with all applicable rules, regulations, codes of practice and laws relating to the Services, including without limitation its obligations with respect to Intellectual Property Rights, under the Data Protection Act 2018, the General Data Protection Regulation, the Regulation of Investigatory Powers Act 2000, Competition Act 1998 and the E-Commerce Directive and equivalent legislation and hereby agrees to indemnify and to keep the other party indemnified in respect of any and all costs, claims or proceedings whatsoever brought against the party by any third party in connection with any breach by the party.
5.6. The express terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are excluded to the fullest extent permitted by law.
5.7. The Client shall allow the Company use of the Client’s analytics, IT systems or content management system as required for the provision of Services. The Company shall take all due care with respect to confidential access including usernames and passwords. The Company is not responsible for any loss or damage, howsoever caused, by the Company’s access and operation of the Client’s content management or IT systems if the access by the Company is within the written guidelines supplied by the Client.
6. VARIATIONS
6.1. The Company may, at its discretion, accept any reasonable variation in scope, specification, quantity or delivery in relation to the Services requested by the Client. The Price shall be adjusted and agreed in writing by both parties to reflect the variation having regard to the rates and prices used in the Order or, where these are not relevant, to what is fair and reasonable.
6.2. Neither party shall be bound by any variation to the Order unless and until it is confirmed by an official Order amendment issued by the Company and signed by both parties.
7. PRICES
7.1. Unless otherwise expressly stated, all prices shall be in Pounds Sterling and shall be exclusive of VAT and all other levies, duties and taxes for which the Client shall become liable. In the event that duties are introduced or changed after the conclusion of an Order, the Company shall be entitled to adjust the agreed prices accordingly.
7.2. The Company reserves the right to increase the price for the Services from time to time if the costs in providing the Services should be increased as a result of legislative or regulatory changes or taxation. If the legislative, regulatory or taxation changes materially affects the price, the Client reserves the right to terminate the contract with all fees incurred for the Services payable to date to the Company.
7.3. The Company reserves the right to amend any estimate, should an error or omission have been made. In the event of an error or omission that materially affects the price, the Client shall have the right to terminate the contract with all fees incurred for the Services payable to date to the Company by the Client.
8. PAYMENT
8.1. The Company may invoice the Client for the Services from the date(s) or at the intervals stated in the Order. Otherwise, the Client shall be invoiced on completion of the Services.
8.2. The Client shall pay each invoice submitted by the Company within thirty (30) Calendar Days of the date of the invoice and in cleared funds in accordance with clause 8.3 below. The invoice number shall be stated on all payments and payment made by BACS, Cheque or Bank Transfer.
8.3. The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part.
8.4. In the event of overdue payment, interest shall accrue on the invoice amount at the statutory rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 or at the rate of two (2) per cent over the Base Rate of the Bank of England (whichever is higher) at the Company’s discretion. The Company reserves all rights at all times to initiate any legal action it considers appropriate to recover any unpaid and overdue sums. The Client will be liable for any reasonable legal costs incurred by the Company in respect to recovering any outstanding debt incurred by the Company for the provision of its Services to the Client.
8.5. Late payment shall constitute a material breach of the Contract entitling the Company to cancel the Contract at its discretion with immediate effect. The Client will remain liable for all fees due in relation to the provision or preparation of Services up to the date of termination.
9. DELAYS AND COMPLAINTS
9.1. In the event that the Client proves that the Services are delayed or not in accordance with the Contract, the Company shall be obliged at its discretion to remedy or redeliver Services without undue delay. In the event that the Services continue to be not in accordance with the Contract after reasonable attempts to remedy, the Client shall be entitled to cancel the Order in accordance with clause 15.2 (a), provided that the breach is material.
9.2. Complaints concerning delays or breach of Contract shall be submitted with no undue delay after the time when the Client became aware of the matter. If the Client fails to bring the defect to the attention of the Company within five (5) Business Days the Client shall be deemed to have accepted the Services.
9.3. The Client’s exclusive remedies for late delivery or Services not conforming with the Contract are as specified in this Clause 9 and, if the remedies set out in these Terms have been exhausted, the Client’s final remedy is limited to termination of the Contract and the Company’s sole liability is to refund any payments for Services not conforming with the Contract, subject to the limitations set out in Clause 10 below.
10. LIABILITY
10.1. Except as expressly stated in Clause 5, Clause 10 and Clause 12, the Company shall have no liability to the Client for any loss or damage whatsoever arising from or in connection with the provision of the Services or for any claim made against the Client by any third party and for the avoidance of doubt with the exception of any loss or damage whatsoever arising from or in connection with any claim made against the Client for actual or alleged infringement of a third party’s intellectual property rights arising out of the provision of the Services by the Company.
10.2. Without prejudice to the generality of Clause 10.1 above, the Company shall have no liability for any losses or damages which may be suffered by the Client whether the same are suffered directly or indirectly or are immediate or consequential, including but not limited to:
- Any indirect or consequential loss arising under or in relation to the Contract even though the Company was aware of the circumstances in which such loss could arise; or
- Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill; or
- Loss of data.
10.3. To the extent such liability is not excluded by sub-clauses 10.1, 10.2, either parties total liability (whether in contract, tort (including negligence or otherwise)) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed the total sum payable by the Client for the Services provided.
11. LIMITATIONS OF LIABILITY
11.1. The Company shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links and technical setup that directly or indirectly affect the Services delivered by the Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of the Company’s price list applicable from time to time at the Company’s discretion.
11.2. The Company shall undertake to use all reasonable skill to ensure its Services achieve Key Performance Indicators (“KPIs”) and Targets (“Targets”) agreed with the Client. However, the Company is not liable for ensuring that Services achieve the KPIs or Targets including, but not limited to, traffic volume, number of clicks, registrations, purchases, conversions or retention, numbers of views, position or frequency in searches on relevant words or otherwise.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image or representation (“Materials”) to the Company for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) a non-exclusive revocable licence to the Company to use such Materials for the purposes of providing the Services for the duration of the Contract.
12.2. Each party shall be responsible for ensuring that the contents of Materials which that party has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. Either party shall be entitled to reject and delete such material without incurring any liability, and that party shall be entitled to cancel the Order and terminate the contract.
12.3. Each party shall indemnify the other party against all damages, losses and expenses suffered or incurred by that party as a result of the Materials which the party has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.
12.4. The parties shall be obliged to notify the other party without undue delay of any claims raised against either party that may directly or indirectly affect the other party.
12.5. All Intellectual Property Rights created in the provision of the Services shall be owned by the Client. The Company hereby assigns absolutely to the Client with full title guarantee and free from all encumbrances and rights of third parties, with effect from payment in full of all sums payable in relation to the Services, all present and future copyright in any original work and any other Intellectual Property Rights created by the Company or any subcontractors or Group Company exclusively for the Client in its performance of the Services which may be owned by the Company, Group Company or subcontractors.
12.6. The Client grants the Company a non-exclusive, royalty free licence to use the Client’s trademarks, trade names, information, data, software, documents and other materials or information owned by or licensed to the Client that are provided to the Company by or on behalf of the Client in connection with the provision of the Services to enable the Company to perform the Services.
13. INSURANCE
13.1. The Client and the Company shall ensure that they have and maintain during the Term and for three (3) years thereafter in respect of their liabilities under or in connection with this Agreement a policy(ies) of insurance sufficient to meet their obligations and liabilities under this Agreement.
13.2. In the event of a claim either party will have the right, but not an obligation, to audit and mitigate the costs associated with a claim by, for or against either party before settlement.
14. CONFIDENTIALITY AND PERSONAL DATA
14.1. A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
14.2. During the term of the Contract and for a period ending three (3) years from the date of its conclusion, the Company shall take the same care as the Company uses with its own confidential information, to avoid, without the Client’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Client’s business or operational information which the Client has designated as confidential.
14.3. The obligation in Clause 14.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into the Company’s possession without an accompanying obligation of confidence, is independently developed by the Company, or which the Company is required to disclose by law.
14.4. During the term of the Contract and for a period ending three (3) years from termination thereof, the Client will not disclose to any persons within its organisation that do not have a need to know, or to any third party, any information and non-Client materials provided by the Company concerning the method or approach the Company uses in providing the Services.
14.5. Each party agrees to comply with its respective obligations under the Data Protection Act 2018 as detailed in Schedule 1.
15. TERM, TERMINATION AND ASSIGNMENT
15.1. The Client may cancel the Company’s performance of the Services by giving the Company no less than thirty (30) days’ written notice. The Client shall remain liable for all charges and expenses incurred in connection with the performance of the Services up to that date and such amounts that shall become due on receipt of the notice by the Company and until the end of the notice period.
15.2. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
- commits a material breach of the Contract or a series of breaches of this Contract and collectively the breaches constitute a material breach of this Contract and fails to remedy that breach within thirty (30) days of that party being notified in writing of the breach; or
- becomes or is insolvent or is unable to pay its debts (within the meaning of the Insolvency Act 1986) or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.
15.3. The Company shall, in addition to all other rights and remedies under these Terms be entitled to terminate this Contract with thirty (30) days’ notice in the event that any of its charges for the Services are not paid in accordance with these Terms.
15.4. In the event of a material breach of this Agreement by the Client, the Company may cease to perform the Services immediately and may terminate this Agreement with immediate effect. In addition, the Company may at its discretion charge the Client for all charges and expenses incurred in performing the Services up to that date.
15.5. Upon termination, for whatever reason, the parties shall be obliged to return all materials received from the other pursuant to the Contract without undue delay.
15.6. The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under the Contract and these Terms whatsoever without the prior written consent of the Company which shall not be unreasonably withheld.
15.7. The Company shall be entitled to assign or subcontract any of its rights or obligations under the Contract and these Terms and the Client acknowledges that certain elements of the Services will be provided by third parties.
16. FORCE MAJEURE
16.1. Neither party shall be held liable for a Force Majeure Event.
16.2. If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party in writing of the start and end of the Force Majeure Event.
16.3. Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party in the event that the performance of the Contract is impeded for more than three (3) months due to a Force Majeure Event.
17. GENERAL TERMS
17.1. The Company reserves the right to modify or discontinue, temporarily or permanently, the Services with notice in writing to the Client and the Company shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.
17.2. The Company shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.
17.3. The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.
17.4. If any term of these Terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Contract.
17.5. Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties by duly authorised officers.
17.6. A person who is not a party to the Contract shall not have any rights under or in connection with it.
17.7. All notices must be in writing to Submerge Limited, 1A The Broadway, Old Hatfield, Hertfordshire, AL9 5BG or such address as is advised by the Company and to the Client’s address as stated in the Order or such address as is advised by the Client from time to time.
17.8. Any notices shall be considered to have been received by the addressee as follows: two (2) business days’ following the date of dispatch of the notice or other document by post; immediately upon delivery where delivery is by hand; or on the next business day following email. To prove that a notice or other document was received it shall be sufficient to show that it was properly addressed and dispatched or successfully received electronically by the recipient.
18. ENTIRE AGREEMENT
The parties acknowledge and agree that the Contract supersedes any prior agreement, understanding or arrangement between the parties, whether made orally or in writing and constitute the entire agreement between the Company and the Client relating to these Services.)
19. LAW AND JURISDICTION
19.1. The Company and the Client shall be obliged to attempt to settle any disputes arising between them including disputes relating to the existence or validity of the Contract through negotiation provided always that either party shall be entitled at all times to exercise any of its other remedies including through taking legal action.
19.2. The Contract shall be governed by and construed in accordance with English law and the parties hereby agree to submit to the non-exclusive jurisdiction of the English courts.
Schedule 1
Data Protection
1 DEFINITIONS AND INTERPRETATION
In relation to these Data Protection Requirements, unless the context otherwise requires:
Customer Group means the Client and any subsidiary undertaking or parent undertaking of the Client as those terms are defined in the Companies Act 2006.
Data Protection Legislation means all applicable laws and regulations relating to the processing of personal data and privacy including the Data Protection Act 2018, the General Data Protection Regulation (EU 2016/679) (GDPR), the Law Enforcement Directive (EU 2016/680) (LED), and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated;
“data controller”, “data processor”, “data subject”, “process”, “processing” and “personal data” have the meanings given to those terms in Data Protection Legislation;
Data Protection Impact Assessment means an assessment by the Customer of the impact of the envisaged processing by the Company under the Contract on the protection of personal data;
EU Standard Contractual Clauses means the clauses published by the European Commission pursuant to Article 26(2) of Directive 95/46/EC) or such other equivalent clause as may be approved under Article 46 of GDPR or any other equivalent approved clauses under Data Protection Legislation;
Personal Data Breach means any breach of security leading to the accidental or unauthorised destruction, loss, alteration, disclosure of, or access to, personal data;
Sub-processor means any third party or sub contractor appointed to process personal data on behalf of the Company.
2 DATA PROTECTION REQUIREMENTS
2.1. The Parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Company is the data processor unless otherwise specified in the Annex to this Schedule. The only processing that the Company is authorised to do is listed in the Annex to this Schedule by the Client and may not be determined by the Company.
2.2. The Parties shall at all times comply with applicable Data Protection Legislation and the Company shall maintain complete and accurate records and information to demonstrate compliance with the Data Protection Requirements.
2.3. The Company shall notify the Client immediately if it considers that any of the Client’s instructions infringe the Data Protection Legislation.
2.4. If requested to do so, the Company shall assist the Client in the preparation of any Data Protection Impact Assessment prior to commencing any processing.
2.5. The Company shall in relation to personal data that it processes on behalf of the Client as a data processor:
2.5.1. act only in accordance with the Contract (including this Schedule and Annex 1) and in accordance with any written instructions of the Customer in relation to the return or destruction of personal data. In the event that a legal requirement prevents the Company from complying with such instructions or requires the Company to disclose the personal data to a third party the Company shall, unless such legal requirement prohibits it from doing so, inform the Customer of the relevant legal requirement before carrying out the relevant processing activities;
2.5.2. take reasonable steps to ensure the reliability and integrity of staff having access to the personal data and that all staff to whom it discloses personal data:
2.5.2.1. have undergone adequate training in the use, care and protection and handling of personal data,
2.5.2.2. are subject to appropriate confidentiality undertakings,
2.5.2.3. are made aware that the personal data is confidential information of the Client and subject to these Data Protection Requirements and any confidentiality obligations set out in the Contract;
2.5.3. have and maintain appropriate technical and organisational measures (in accordance with Data Protection Legislation and taking into account relevant circumstances including the nature of the personal data to be protected), to prevent unauthorised or unlawful access to or processing of personal data and accidental loss or destruction of, or damage to, personal data, including operating a security strategy. The Company shall maintain such security measures for as long as it is processing the personal data;
2.5.4. before allowing any Sub-processor to process any personal data related to this Contract the Company must:
2.5.4.1. notify the Client in writing of the intended Sub-processor;
2.5.4.2. obtain the Client’s prior written consent;
2.5.4.3. enter into a written agreement with the Sub-processor which gives effect to the terms in this Schedule so that they apply to the Sub-processor.
2.5.5. remain fully liable for all acts or omissions of any of its Sub-processors;
2.5.6. not transfer, or otherwise permit access to, any personal data outside of the European Union without the Client’s prior written consent which consent shall be dependent on the transfer satisfying relevant Data Protection Legislation requirements. the Company shall, and shall also procure that any third party to whom the personal data is to be transferred shall, promptly execute and deliver such documents (including entering into an agreement with the Client which included the EU Standard Contractual Clauses) and perform such acts as may reasonably be required to ensure the transfer complies with the Data Protection Legislation;
2.5.7. afford to the Client (and procure that its permitted Sub-processors afford to the Client) access on reasonable notice and at reasonable intervals to any premises, facilities or equipment used to process relevant personal data to enable the Client to ensure that the Company is complying with its obligations under these Data Protection Requirements and/or that the Company’s permitted Sub-processors are complying with the equivalent contractual obligations imposed on them;
2.5.8. immediately (or within any longer timescales specified by the Client) and at no additional cost, provide such information and assistance to the Client as the Client may reasonably require, in order to allow the Client to comply with:
2.5.8.1. the rights of data subjects under Data Protection Legislation, including subject access rights;
2.5.8.2. notices or other communications from the Information Commissioner or any other regulator of Data Protection Legislation; and
2.5.8.3. Articles 32 – 36 (inclusive) of GDPR;
2.5.9. notify the Client immediately and provide ongoing information to the Client:
2.5.9.1. of any Personal Data Breach and provide the Client with reasonable assistance in the Client’s compliance with Data Protection Legislation in relation to the Personal Data Breach;
2.5.9.2. of any request it receives to rectify, block or erase any personal data;
2.5.9.3. of any other request, complaint or communication it receives relating to either Party’s obligations under the Data Protection Legislation;
2.5.9.4. if it receives any communication from the Information Commissioner’s Office or any other regulatory authority in connection with personal data processed under the Contract; and/or
2.5.9.5. if it receives a request from any third party to disclose personal data where compliance with the request is required or purported to be required under any applicable law; and
2.5.10. on termination of the Contract (or as otherwise instructed by the Client) erase or return the personal data to the Client (as instructed by the Client) save that the Company shall be entitled to retain personal data to the extent required by applicable law.
Customer Group
Each member of the Client Group shall have the benefit of, and the right to enforce in its own capacity, the provisions of this Schedule including its Annex (as if references to the Client were references that included each of those companies).
Customer Group
The Company shall fully indemnify, keep indemnified and hold harmless the Client and each member of the Client Group on demand from and against any and all losses arising out of or in connection with the Company’s (or its Sub-processor’s) failure to comply with the provisions of this Schedule (including its Annex) or Data Protection Legislation. Losses shall include (without limitation) investigative and remediation expenses, legal fees and costs, costs of mailing notice of a Personal Data Breach, expenses incurred in responding to the Information Commissioner’s Office or any other regulatory authority in connection with personal data, public relations consulting expenses, expenses to set up a call centre, credit monitoring services expenses and regulatory fines or penalties. Any limitations or exclusions of liability in the Contract shall not apply to this indemnity.