MANY MAKERS LTD STANDARD TERMS & CONDITIONS OF BUSINESS

These Terms & Conditions apply in respect of any Framework Agreement to which they are attached or in respect of any other correspondence, document or terms that incorporate or reference these Terms & Conditions

1. INTERPRETATION

1.1 Unless the context otherwise requires, in the Agreement, capitalised words and phrases shall have the meanings given to them below or in the other sections of the Agreement:

“Advertising Regulation” means any present or future applicable code of practice or adjudication of the Committee of Advertising Practice, Broadcast Committee of Advertising Practice or the Advertising Standards Authority, including any applicable modification, extension or replacement thereof in force from time to time, together with other advertising related laws, statutes and regulations in force in the Territory which are directly applicable to the Services;

“Affiliates” means any company, partnership or other entity which at any time directly or indirectly controls, is controlled by or is under common control with either Party including as a subsidiary, parent or holding company;

“Client Materials” means all information, documents, reports, representations, data, client equipment, IPR, artwork, logos, goods, apparel and other materials of the Client (or its Affiliates or licensees) reasonably required by Supplier or necessary to provide the Services, including any materials and information specified to be provided by the Client to Supplier in a SOW;

“Deliverables” means any advertising, creative and other materials or deliverable item produced by Supplier solely for the Client in the course of performing the Services, as specified in the relevant SOW, including Supplier Materials; Third Party Materials and Supplier Proprietary Materials where applicable;

“Expenses” means reasonable travelling, hotel, subsistence and other expenses incurred by the Supplier in connection with the supply of Services, provided that such Expenses (i) have received the Client’s prior written approval; or (ii) where applicable are in accordance with any expenses policies which have been supplied to the Supplier; or (iii) are set out in the applicable SOW;

“Fees” mean Supplier’s fees for the Services, as specified in the SOWs;

“IPR” means all intellectual property rights in whatever media whether or not registered including: copyright, database and compilation rights, patents, trade marks, service marks, trade names, goodwill, designs, all other industrial commercial or proprietary rights and any applications for the protection or registration of those rights and all renewals, revivals and extensions existing in any jurisdiction;

“Losses” means losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses (including reasonable legal and other professional expenses) (and “Loss” shall be construed accordingly);

“Materials” means any artwork, copy, models, designs, photographs, commercial, film, character, music, voice over, sound recording, performance, book, painting, logo, or any other material protected by IPR, but not including any software;

“Moral Rights” means any rights to be identified as the author of a work, the director of a film, or the performer of a performance, the right to object to or prevent the modification of a work or a performance and/or to withdraw from circulation or control the publication or distribution of a work or performance, including all rights pursuant to the provisions of sections 77, 80, 84, 205C and 205F of the Copyright, Designs and Patents Act 1988, and any similar rights existing under the law, practice or convention of any country in the world;

“Project Managers” means the personnel of Client and Supplier that are responsible for overseeing the receipt and/or provision of the Services and have authority to bind the Client or Supplier (as applicable) in all matters relating to the Services , as specified in the relevant SOW;

“Services” means the services to be provided by Supplier, including delivery of the Deliverables, to the Client, as specified in the relevant SOW;

“SOW” means one or more documents containing a description of the relevant Services and/or Deliverables, the Fees and any Third Party Costs and Expenses that is agreed between the Parties in accordance with clause 2.1;

“SOW Cancellation Notice Period” means the notice period or other right set out in a SOW, if any, pursuant to which Client may terminate some or all of the Services under a SOW;

“SOW Commencement Date” means the date for commencement of the Services, as specified in the relevant SOW;

“SOW Term” means the period commencing on the SOW Commencement Date during which the Services will be provided under a SOW, as specified in the relevant SOW;

“Supplier Materials” means those Materials specifically created by the Supplier for the purposes of providing, and which are incorporated into, the Deliverables (including any Materials adapted, modified or derived from the Client Materials);

“Supplier Proprietary Materials” means all methodology, know-how and processes and Materials in relation to which the IPR are owned by (or licensed to) the Supplier and which are (i) in existence prior to the date on which it is intended to use them in connection with the Services;

“Term” means the period commencing on the Commencement Date and continuing unless and until the Agreement is terminated in accordance with its terms;

“Territory” means the United Kingdom, unless expressly specified otherwise in the applicable SOW;

“Third Party Contracts” has the meaning given in clause 10.1;

“Third Party Costs” means the costs charged by Supplier in connection with the procurement of goods and/or services from the Third Party Suppliers in accordance with the Agreement;

“Third Party Suppliers” has the meaning given in clause 9.1, but excludes any Affiliate of Supplier; and

“Third Party Materials” means those Materials which are either commissioned by the Supplier from third parties during the Term and incorporated into the Deliverables, or which have been created by a third party and which are in existence at the time it is
desired to make use of them for inclusion in the Deliverables (excluding always any goods that are procured from Third Party Suppliers pursuant to clauses 9 and 10).

1.2 In the Agreement, unless the context requires otherwise: clause headings shall not affect the interpretation of the Agreement; words importing one gender shall be treated as

1.3 importing any gender; words importing individuals shall be treated as importing corporations and vice versa; words importing the singular shall be treated as importing the plural and vice versa; a reference to a “clause” or a “Schedule” is a reference to a clause of or a Schedule of these Terms & Conditions; a reference to a statute or other law shall include references to any amendment, modification, extension, consolidation, replacement or re-enactment of it; and references to “include” and “including” (or any similar term), are not to be construed as implying any limitation.

2. AGREEMENT AND SOWS

2.1 The Parties may agree SOWs throughout the Term. To be binding a SOW must be in writing and either:
(a) in the form set out in Schedule 2 (or otherwise in the form of any template that is provided by Supplier to the Client) and signed by each Party; or
(b) in the form of emails and/or other written correspondence (excluding text/SMS messages or similar messages),
and upon execution and/or acceptance, a SOW shall automatically form part of the Agreement and these Terms and Conditions shall apply to it.

2.2 If there is any conflict between these Terms & Conditions and a SOW, the provisions of the SOW shall take precedence.

2.3 The provision of any Services not included in a SOW, or any changes to a SOW, shall be subject to Supplier and Client agreeing, in writing, to the scope of the additional or amended Services, including changes to the Fees payable to Supplier. Once such additional or amended Services are so agreed in writing, they shall automatically form part of the Agreement. Nothing shall oblige Supplier to agree any reduction in the Services or any reduction in the related Fees.

2.4 The Agreement shall apply to the exclusion of any other terms and conditions communicated to Supplier (including any terms and conditions which may be printed on, or submitted with, the Client’s purchase order or similar document).

2.5 Each SOW shall commence on the date stated in it and shall continue for the duration of the SOW Term, subject to earlier termination in accordance with the terms of clause 15.

3. PROVIDING THE SERVICES

3.1 Supplier shall perform the Services to the Client in accordance with each SOW.

3.2 Supplier shall apply such time, attention, and reasonable skill and care as may be necessary or appropriate for its proper performance of the Services and the provision of any associated Deliverables.

3.3 Supplier shall allocate suitable personnel with appropriate levels of experience and seniority to provide the Services. The Client acknowledges and agrees that it may be necessary for the Supplier to replace the personnel providing the Services with alternative personnel with similar levels of seniority and experience.

3.4 Subject to clause 4.4, in respect of any Deliverables that are advertising materials, the Supplier shall ensure that, to the best of its knowledge and belief, the relevant Deliverables will comply with Advertising Regulations in the UK, unless the Supplier has warned Client of a risk that such Deliverables may not so comply.

3.5 Nothing in the Agreement shall prevent Supplier from providing services which are the same as or similar to the Services to any other person.

3.6 In the Agreement the “Deliverables” shall mean the final versions of the Deliverables (and, where applicable, as approved by the Client) and shall not include drafts, samples or abandoned concepts.

3.7 Where an SOW provides a timetable, milestones or schedule for delivery of the Services or any Deliverables, Supplier shall use reasonable endeavours to comply with that but time shall not be of the essence. Any Services for which time for performance is not specified shall be performed by Supplier within a reasonable period of time.

4. CLIENT RESPONSIBILITIES

4.1 The Client will give Supplier clear instructions and shall ensure that its personnel, other suppliers and agencies act in willing co-operation with Supplier where necessary to enable Supplier to perform the Services.

4.2 The Client will, and will ensure that its personnel, suppliers and agencies will:
(a) treat all employees, personnel, agents and contractors of Supplier (and such agents’ and contractors’ employees), and the persons referred to in clause 9.1(c) with respect and dignity; and
(b) will not harass, victimise, or otherwise unlawfully discriminate against any such persons.

4.3 The Client will promptly supply to Supplier (at its own expense) the Client Materials. The Client warrants that:
(a) all Client Materials is/are and will be accurate, truthful and complete and not misleading;
(b) the Client is and will be entitled to provide the Client Materials to Supplier for Supplier’s use in the performance of the Services and production of the Deliverables, without the need for any licence from, or consent or approval of, any third party; and
(c) Supplier’s use of the Client Materials in accordance with this agreement will comply with applicable law.

4.4 Notwithstanding clause 3.4, Client shall comply with the Advertising Regulations and, where the Client’s business involves any industry sector which is subject to its own industry specific Advertising Regulations or other code, regulation, statute or law (collectively “Specialist Advertising Regulations”) the Client shall be responsible for ensuring that the Deliverables are compliant with such Specialist Advertising Regulations and the Supplier’s responsibility in respect of Specialist Advertising Regulations shall be limited to following the clear instructions of the Client in respect of ensuring the Services and Deliverables comply with such Specialist Advertising Regulations.

4.5 Unless the SOW indicates otherwise, the Client shall be responsible for sourcing any promotional gifts or prizes being offered to the public or entrants to a promotion (“Promotional Items”) in respect of which the Supplier has agreed to perform Services. As such, the Client shall be liable for, and hereby indemnifies the Supplier against any and all Losses incurred as a result of any such Promotional Items, including any claim by a third party arising out of the use or enjoyment of such Promotional Item.

4.6 The Client shall be liable for and hereby indemnifies the Supplier against any and all Losses suffered as a result of any use of the Client’s products or services, at events or activities hosted by Supplier in fulfilment of the Services, provided that the Supplier has complied with any directions of the Client as to how such products or services are to be offered to the public.

4.7 Unless the SOW indicates otherwise, where the Client’s products are to be used in connection with the Services and include food and/or drink, the Client shall ensure that appropriate allergy information is given to the public at any event or activity involving sampling of the Client’s products.

4.8 Unless the SOW indicates otherwise, and save to the extent the Services are performed at the Supplier’s premises, the Client shall be responsible for:
(a) procuring all necessary rights, premises or regulatory licences, licences required for playing or the performance of music (including PRS and PPL licences), permissions, consents and permits from third parties required in order for Supplier to perform the Services at the applicable location; and
(b) making available to Supplier the location(s) from which the Services are to be provided and ensuring that such locations are a safe place for the Services to be performed. The Client shall provide and facilitate all access reasonably required by Supplier to such location(s) for the performance of the relevant Services.

4.9 The Client shall not take any video footage, photographs or other recording of any events, activities or live performances comprising the Services without the prior written agreement of Supplier. Client acknowledges and agrees that a breach of this clause 4.9 may cause Supplier to incur liability towards a third party (including a third party Supplier) and Client hereby indemnifies the Supplier against such liability incurred as a result of any such breach.

4.10 To the extent that Client’s personnel (or any other individual that Client is responsible for, for example Client’s customers, guests or Client-supplied brand ambassadors) are to be included in photographs or video footage created for the purposes of the Deliverables, Client shall obtain any and all necessary waivers, releases, rights and consents from such person to enable the Deliverable to be freely used as anticipated by the Agreement.

4.11 If an SOW places any further obligations on the Client, or allocates responsibilities to it, the Client shall comply with such obligations and responsibilities using all reasonable skill and care.

5. DELIVERABLES: DELIVERY, RISK AND TITLE

5.1 Physical Deliverables and any goods procured from Third Party Suppliers shall be delivered by or on behalf of the Supplier at the location(s) stated in the relevant SOW or at such other locations as are agreed between the Parties (“Delivery Address”).

5.2 Risk in the relevant physical Deliverables shall pass to Client once the Deliverables arrive at the Delivery Address. Title shall pass to the Client once Supplier receives payment in full (in cleared funds) in respect of the relevant Deliverable.

5.3 Risk in goods procured from Third Party Suppliers shall pass to Client in accordance with the terms of the relevant Third Party Contract. For the avoidance of doubt, as between Supplier and Client, risk in such goods shall at all times be Client’s.

6. APPROVALS AND AUTHORITY

6.1 For the purposes of the Agreement, any reference to “approval” to be given by the Client shall mean the Client giving approval by one of the following methods:
(a) the Client issuing a purchase order bearing the signature of an Authorised Client Approver and/or Client’s Project Manager; or
(b) e-mail from the individual business e-mail address of an Authorised Client Approver and/or Client’s Project Manager; or
(c) the signature of an Authorised Client Approver and/or Client’s Project Managers on the Supplier’s documentation.

6.2 For the purposes of the Agreement, any reference to “approval” to be given by the Supplier shall mean the Supplier giving approval by one of the following methods:
(a) e-mail from the individual business e-mail address of an Authorised Supplier Approver; or
(b) the signature of an Authorised Supplier Approver on the Client’s documentation.

6.3 Where a Party is asked to give approval under or in connection with the Agreement, such approval shall not be unreasonably withheld or delayed.

6.4 The Supplier will seek the Client’s prior approval of any creative treatments, including scripts, storyboards, copy, layouts, design, artwork, proposed marketing activity and the Client’s approval will be the Supplier’s authority to enter into contracts with relevant third parties and to prepare draft Deliverables.

6.5 In the event that the Client does not approve of any matter requiring approval it shall notify the Supplier of its reasons for disapproval within 7 days of the Supplier’s request (or such shorter period specified by the Supplier as is reasonable to enable the Supplier to meet any relevant deadline or milestone). If the Client does not notify the Supplier of its disapproval in accordance with this clause 6.5, it shall be deemed approved.

6.6 In the event of any delay or failure of the Authorised Client Approver and/or Client’s Project Manager giving approvals (or disapprovals) requested under or in connection with the Agreement, the Supplier will not be liable for any resulting delays or adverse impact caused to the delivery of the Services.

7. PROJECT MANAGEMENT

7.1 During each SOW Term, the Parties’ respective Project Managers (as set out in the relevant SOW) shall arrange and attend meetings to review the status and progress of the Services and Deliverables and to seek to resolve any issues that have arisen. Such meetings shall be held at such locations (or via telephone or video conference) and at such intervals as shall be agreed by the Parties.

8. PAYMENT OF FEES, THIRD PARTY COSTS AND EXPENSES

8.1 The Supplier shall invoice the Client in respect of all Fees, Expenses and Third Party Costs, in accordance with the invoicing schedule set out in the SOW or as otherwise set out in the Agreement.

8.2 Notwithstanding any other provision of the Agreement, the Client shall not be obliged to pay Fees and the Supplier shall not be obliged to supply any Services until the applicable SOW has been agreed by the Parties in accordance with clause 2.1. Where relevant, the Supplier shall not be obliged to supply any Services until the Client has supplied a valid purchase order number for such Services.

8.3 The Client will pay all invoices in full on the corresponding payment date set out in the SOW or, if no payment date is specified, within the terms stated on the invoice. Time shall be of the essence in relation to payment of Supplier’s invoices.

8.4 All fees and other sums referred to in the Agreement are exclusive of VAT (or other applicable sales tax). The Client will pay to Supplier such VAT (or other applicable sales tax, if any) as may be chargeable from time to time.

8.5 If the Client fails to pay any sum payable by it by the due date for payment under the Agreement:
(a) Supplier shall have the right, at its option, (i) to suspend performance of the Services, and/or (ii) require that any Deliverables are not used and are withdrawn from circulation, until the Client pays all outstanding payments in full; and
(b) the Client shall pay interest on the overdue sum for the period from and including the due date of payment up to the date of actual payment (after as well as before judgment). Interest shall accrue from day to day and shall be paid on demand at the annual rate of 4 per cent above the base rate from time to time of the Bank of England.

8.6 Supplier reserves the right to increase the Fees agreed in any SOW if the cost to Supplier of performing the relevant Services increases as a result of:
(a) any change made by the Client to the nature or scope of the Services being provided;
(b) any change to the law or any other reason beyond Supplier’s reasonable control;
(c) the failure by the Client to carry out its obligations under the relevant SOW or any other breach of the Agreement by the Client; or
(d) the supply of incorrect, misleading or inadequate information by the Client.

9. THIRD PARTY COSTS

9.1 The Supplier may incur Third Party Costs in connection with goods and/or services that are, as part of the Services, procured from third party suppliers on behalf of the Client, subject to the Client approving all such costs in advance in writing (and such costs shall be deemed approved where they are set out in, or are within budgeted costs set out in, the applicable SOW), including third party suppliers of:
(a) production work required in connection with the Services, including illustrations, film production, artwork, photography, recordings and post-production work;
(b) any musical works or rights relating thereto required in connection with the Services;
(c) the services of talent (including celebrities and/or influencers), models, field workers, brand ambassadors, performers, actors, animation, print;
(d) venues at which Services are to be performed;
(e) third party suppliers of goods that are used in connection with the Services; and
(f) legal and/or other professional service providers whose services are required in connection with the Services (for example to run IPR clearance searches on Deliverables),
(the “Third Party Suppliers”).

9.2 The actual cost to the Supplier of Third Party Costs in respect of materials or services purchased overseas for the Deliverables may be more or less than the cost anticipated at the date when the Supplier ordered the relevant materials or services (or obtained the Client’s approval for such Third Party Costs) as a result of fluctuations in the rate of currency exchange. If so, the Supplier will charge the Client at the rate of currency exchange in operation on the date the Supplier pays for the relevant Third Party Costs, which shall be deemed to be the closing mid-point rate in London for that day as subsequently quoted in the next published edition of The Financial Times.

9.3 In the event that any Third Party Costs require payment in advance or sooner than the payment terms set out in the relevant SOW and clause 8.3, the Supplier will notify the Client as soon as reasonably practicable in advance and the Client shall pay such costs within the period set out in the relevant invoice.

10. THIRD PARTY SUPPLIERS: BUSINESS TERMS & SELECTION

10.1 The Supplier may enter into contracts as principal with the Third Party Suppliers in accordance with such suppliers’ standard or individual conditions and contracts (“Third Party Contracts”).

10.2 The Supplier shall provide the Client with a copy of any relevant Third Party Contract if requested to do so and subject to Supplier’s confidentiality obligations owed to the relevant third party.

10.3 In respect of all Third Party Contracts:
(a) the Client hereby acknowledges that its right to use or otherwise benefit from any Services or Deliverables acquired under such Third Party Contracts shall be as set out in such Third Party Contracts;
(b) any charges or liabilities (to the extent caused by an act or omission of the Client or its Affiliates or any third party acting for or on its behalf) for which the Supplier is liable under such Third Party Contracts (including cancellation payments) shall be the responsibility of the Client; and
(c) the Client hereby indemnifies and shall keep the Supplier indemnified against any Losses caused by any act or omission of the Client which puts the Supplier in breach of any such Third Party Contracts.

10.4 For the avoidance of doubt, the Third Party Suppliers are not a subcontractor of Supplier and the goods and/or services that such Third Party Suppliers provide are not Services under the Agreement (but the procurement and/or use of such goods and/or services may be Services to the extent the Supplier exercises its judgment and/or skill in procuring, deploying or using such goods or services).

10.5 Save if and to the extent that the relevant Third Party Supplier is used at the request of the Client, the Supplier shall use reasonable care and skill in the selection and appointment of Third Party Suppliers of goods and services, and, where relevant, in the use and deployment of such goods and services in connection with the Deliverables and performance of the Services.

10.6 Subject to clause 10.7, Supplier makes no warranty, express or implied, as to the goods and/or services to be supplied by the relevant Third Party Supplier. Supplier shall have no liability for the acts or omissions of any Third Party Supplier except that, to the extent that Client suffers a Loss as a result of the act or omission of the Third Party Supplier, Supplier shall, where instructed by Client and at Client’s sole cost and expense, use commercially reasonable endeavours to attempt to recover such Loss from the relevant Third Party Supplier. To the extent that Supplier is able to recover such Loss from the relevant Third Party Supplier, the Supplier shall liable to Client in respect of the recovered sums that are attributable to Client’s Loss.

10.7 Where specified as a Supplier responsibility in the relevant SOW, Supplier shall use reasonable skill and care to ensure that the goods and/or services conform to any requirements set out in the relevant SOW. In particular, Supplier shall take care to ensure that talent, models, field workers, brand ambassadors, performers meet any requirements set out in the relevant SOW in particular as to their appearance and/or skills.

11. INTELLECTUAL PROPERTY

11.1 Subject to the Client’s payment of the applicable Fees, the Client hereby grants to Supplier a royalty free, worldwide, non-exclusive licence throughout the Term to use the Client Materials within the Deliverables and for the performance of the Services. All IPR in the Client Materials (“Client IPR”) shall remain vested in the Client or its licensors.

11.2 Subject to the remaining provisions of this clause 11, the Supplier hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the IPR in the Supplier Materials which are capable of being assigned together with the right to sue for past infringement of the IPR in the Supplier Materials.

11.3 The Supplier makes no warranties as to the use of the Deliverables outside the Territory. If the Client wishes to use the Deliverables outside the Territory, the Client shall notify the Supplier and such use shall be subject to agreement of the Supplier, including agreement in respect of further Fees and Third Party Costs which may be payable.

11.4 The Client acknowledges that all IPR in the Supplier Proprietary Materials shall be owned by and remain the property of and vested in the Supplier. The Supplier hereby grants to the Client a royalty free, non-exclusive licence to use such Supplier Proprietary Materials in the Territory, to enable the Client to use the Deliverables in the manner specified in (or evident from) the relevant SOW.

11.5 Prior to delivery of the Deliverables, the Supplier shall obtain such licences or consents in respect of Third Party Materials as shall be necessary in order for the Client to use the Deliverables in which Third Party Materials are included for the purposes specified in (or evident from) the relevant SOW. The Supplier shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Materials, and the Client hereby indemnifies and keeps the Supplier indemnified against any Losses suffered by the Supplier as a result of the Client or its Affiliates breaching any such restrictions.

11.6 The Supplier agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the Deliverables, and shall not do or fail to do any act which would or might prejudice the Client’s rights under this clause 11.

11.7 To the extent permitted by law, the Supplier shall:
(a) ensure that Moral Rights in respect of the Supplier Materials and Supplier Proprietary Materials are waived (or where not lawfully possible to waive Moral Rights, the Supplier agrees not to assert any Moral Rights in respect thereof); and
(b) use reasonable endeavours to ensure that such Moral Rights in respect of Third Party Materials are waived (or where not lawfully possible to waive Moral Rights, to procure that Moral Rights are not asserted in respect of Third Party Materials), but if the Supplier cannot obtain such waiver of (or agreement not to assert) such Moral Rights in respect of any Third Party Materials, the Supplier will notify the Client and agree the approach to take with the Client.

11.8 Notwithstanding any of the above and save as otherwise expressly provided for in a SOW, the Supplier shall:
(a) be able, during and after the Term, to use any Deliverables which have been broadcast, published, distributed or otherwise made available to the public, and use the Client’s name and logo, in each case for the purposes of promoting its work and its business including on the Supplier’s website, in credentials pitches and in its showreel. Any other use by the Supplier shall be subject to the Client’s prior approval; and
(b) retain all know-how obtained in connection with the Services and Deliverables.

11.9 During the Term, if the Supplier is asked to take part in a competitive pitch or other similar process for the Client, notwithstanding any of the previous provisions of this clause11, the Supplier shall retain ownership of all IPR in any Materials forming part of the pitch process, save to the extent that the Supplier is successful in such pitch and the Parties agree that such Materials will be used in respect of a SOW agreed in accordance with the Agreement.

11.10 For the avoidance of doubt, the Supplier shall not be liable under or in connection with the Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client.

11.11 The terms of and obligations imposed by this clause 11 shall survive the termination of the Agreement for any reason.

12. WARRANTIES

12.1 The Supplier warrants that:
(a) it has full power and authority to enter into the Agreement and that by doing so it will not be in breach of any obligation to a third party; and
(b) subject to clause 11.3, the use of the Deliverables by the Client in accordance with the Agreement and for the purposes set out in the SOW will not infringe the copyright of any third party.

12.2 The Client warrants that
(a) it has full power and authority to enter into the Agreement and that by doing so it will not be in breach of any obligation to a third party;
(b) the Client Materials will not, when used in accordance with the Agreement and any written instructions given by the Client, infringe third party copyright;
(c) to the best of its knowledge and belief, the Client Materials will comply with all applicable laws and regulations including all Advertising Regulations; and
(d) the Client Materials are accurate and complete in all material respects.

12.3 All warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise are hereby excluded to the fullest extent permitted by law, including any condition of satisfactory quality or fitness for a particular purpose.

12.4 The Client releases the Supplier from any liability under or in connection with the Agreement as a result of:
(a) the Deliverables infringing third party IPR, breaching Advertising Regulations or other laws and regulations where the Supplier had previously notified the Client of a specific risk in respect of the same and the Supplier had obtained the prior approval of the Authorised Client Approver and/or Client’s Project Manager to use such Deliverables notwithstanding such notified risk; and/ or
(b) the incorporation of Client Materials into the Deliverables, provided that the Supplier has incorporated and used such Client Materials in the Deliverables in accordance with any instructions given by the Client from time to time.

13. LIABILITY

13.1 Nothing in the Agreement will limit or exclude either Party’s liability (or the other Party’s remedies) for: (a) death or personal injury arising from its negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability to the extent that such liability may not be excluded or limited as a matter of applicable law.

13.2 Subject to clause 13.1 the Supplier’s maximum aggregate liability under or in relation to each SOW (howsoever arising and including as a result of breach of contract, tort (including negligence) or statutory duty) shall not exceed an amount equivalent to 100% the Fees paid or payable to the Supplier in respect of the applicable SOW.

13.3 Subject to clause 13.1 Supplier shall have no liability under or in relation to the Agreement (howsoever arising and including as a result of breach of contract, tort (including negligence) or statutory duty) for any:
(a) direct or indirect: (i) loss of profits; (ii) loss of contracts; (iii) loss of business; (iv) loss of goodwill; or (v) loss or corruption of data; or
(b) indirect or consequential loss or damage of whatever nature and howsoever caused, even if Supplier has been advised of the possibility of such damages or losses.

13.4 All warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise are hereby excluded to the fullest extent permitted by law, including any condition of satisfactory quality or fitness for a particular purpose.

13.5 Supplier shall not be liable for any delay or failure in the performance of its obligations caused by:
(a) a failure of or delay by the Client to perform its obligations under the Agreement;
(b) faults, technical or logistical difficulties or other issues with equipment, locations or other items supplied by Client in connection with the Services; or
(c) the compliance of Supplier with any instructions issued by the Client where Supplier has raised a concern about such instructions.

13.6 Where the Client is a consumer, nothing in the Agreement shall exclude or limit Client’s statutory rights (in particular those afforded to the Client pursuant to the Consumer Rights Act 2015).

14. INSURANCE

14.1 Each Party shall take out and maintain insurance policies sufficient to meet the liabilities it reasonably anticipates may arise under or in connection with the Agreement, and any insurance policies required to be carried as set out in the applicable SOW.

14.2 Nothing in the Agreement shall place any obligation on Supplier to obtain insurance cover in relation to:
(a) risks arising from terrorism or military action or any threat of terrorism or military action;
(b) any risk of Loss arising in respect of Covid-19 disruption (and/or any disruption caused by any other endemic or pandemic for which insurance is not readily available); or
(c) any risk of Loss in respect of the Client Materials (including through accident, theft, fire, flood or explosion),

and the Supplier shall not be liable to the Client under the Agreement for any Loss arising in respect of such risk.

15. VARIATIONS TO AND CANCELLATION OF A SOW

15.1 In the event that either Party wishes to make any material amendment to a SOW, any such amendment shall be subject to the agreement of both Parties in writing.

15.2 Pending approval (in accordance with clause 6) of any amendments to a SOW, the Supplier shall (unless otherwise agreed) continue to perform and be paid for the Services as if such change had not been requested.

15.3 Subject to clause 15.4, 15.5 and 16.3 the Client may request the Supplier to cancel any SOW or part thereof, including any plans, schedules or work in progress in respect of any SOW. The Supplier will take all reasonable steps to comply with any such request provided that the Supplier is able to do so within its contractual obligations to suppliers.

15.4 In the event of any such cancellation the Client will reimburse the Supplier for all Fees up to the date of cancellation, together with any Third Party Costs or Expenses incurred by the Supplier or to which the Supplier has paid or is committed to, as well as any charges or other Expenses or costs imposed on the Supplier by third parties arising from the cancellation, provided that the Supplier shall use reasonable endeavours to mitigate any such third party charges or expenses wherever possible.

15.5 In addition to the above, in the event of cancellation of a SOW or part thereof, including any and all plans or work in progress, at the request of the Client:
(a) if and to the extent that a SOW Cancellation Notice Period is set out in the relevant SOW, the Client shall pay the Supplier’s Fees for the length of the SOW Cancellation Notice Period or such other cancellation fees set out in the relevant SOW (notwithstanding the fact that the Services have been cancelled and may not have been performed). Where Supplier’s Fees are not of equal amount each month during the SOW Term, the calculation of Fees payable for the SOW Cancellation Notice Period shall be based on the average monthly fees for the project during the preceding 6 months or the actual duration of the SOW whichever is the shorter period; or
(b) where no SOW Cancellation Notice Period is set out in the relevant SOW, the Client shall pay the Supplier’s entire Fees for the SOW that has been cancelled (notwithstanding the fact that the Services may not have been performed)

16. TERMINATION

16.1 Either Party may terminate the Agreement at any time without cause by giving not less than three months’ written notice to the other Party.

16.2 Termination of the Agreement pursuant to clause 16.1 shall not apply in respect of any SOW that is in effect as at the date that such notice is served. For the avoidance of doubt, the Agreement shall remain in full force and effect with respect to such SOW and shall expire in respect of such SOW on expiry of the SOW Term.

16.3 The Client may terminate a SOW subject to clause 15.

16.4 Either Party may terminate the Agreement (including all SOWs made under the Agreement) with immediate effect by notice in writing to the other if the other Party:
(a) commits a material breach of the Agreement which is incapable of remedy or, in the case of a breach capable of remedy, the other Party fails to remedy such breach within 30 days of receipt of written notice from the other Party giving full particulars of the breach and requesting that the same be remedied;
(b) becomes insolvent, enters into liquidation or bankruptcy, makes any composition or arrangement with its creditors, or takes or suffers any similar action in consequence of its debt;
(c) (being a company) passes a resolution for its winding up (other than for the purposes of a solvent amalgamation or reconstruction), (being a partnership) is dissolved, (being a natural person) dies, has a receiver, administrator, administrative receiver, trustee or similar officer appointed over the whole or any part of its assets; or
(d) ceases, or threatens to cease, to carry on business (other than a temporary cessation which arises in circumstances beyond that Party’s control).

16.5 The Client shall be deemed to be in fundamental breach of the Agreement entitling Supplier to terminate the Agreement with immediate effect by written notice to the Client, if:
(a) any sum due to the Supplier under the Agreement or any other current agreement between the Parties is not paid on the due date and that sum remains unpaid within 14 days of a demand being sent to Client requiring payment of the unpaid sum;
(b) the Client is in breach of clause 4 (dignity and respect); or
(c) the Client makes any defamatory or derogatory statements or engages in any conduct which in the reasonable opinion of the Supplier is likely to harm or bring into disrepute the name, goodwill, reputation or image of the Supplier.

16.6 The expiry or termination of the Agreement shall be without prejudice to any rights or remedies available to, or any obligations or liabilities accrued to, either Party at the effective date of termination.

16.7 Without prejudice to clause 16.3, upon termination of the Agreement for any reason:
(a) unless otherwise stated, all SOWs shall also be terminated;
(b) the Client shall pay to Supplier all sums due to Supplier up to and including the effective date of termination including:
(i) any Fees, calculated on a proportional basis, for Services received by the Client prior to termination;
(ii) any Third Party Costs and Expenses properly incurred or committed to by Supplier; and
(c) provisions of the Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.

17. CONFIDENTIALITY

17.1 Each Party shall keep secret and confidential all information disclosed to it (whether in writing, verbally or otherwise) under or in connection with the Agreement which is of a confidential or proprietary nature. The receiving Party shall not use, disclose, exploit, copy or modify such confidential information except for the purposes of the proper performance of the Agreement or with the prior written consent of the other Party. Any such disclosure shall be made subject to obligations equivalent to those set out in the Agreement.

17.2 Upon request of the disclosing Party, the receiving Party shall promptly return or destroy, as instructed, any confidential information of the disclosing Party.

17.3 The obligations of confidentiality in this clause 17 shall not extend to any information that a Party can show:
(a) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under the Agreement;
(b) was developed by it independently of any confidential information disclosed by the other Party;
(c) was independently disclosed to it by a third Party entitled to disclose the same; or
(d) is legally required to be disclosed under any applicable law.

18. DATA PROTECTION

18.1 The rights and obligations of the Parties set out in Schedule 1 (Data Protection Agreement) shall apply to the Agreement.

19. NON-SOLICITATION

19.1 During the Term and for a further period of 12 months after its termination, neither Party shall (except with the prior written approval of the other Party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other Party any person employed or engaged (whether as an officer, manager, consultant, sub-contractor, agent or otherwise) by such other Party either in the provision or receipt of any Services, other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other Party.

19.2 During the Term and for a further period of 12 months after its termination, Client shall not directly or indirectly engage or entice away from Supplier any Third Party Supplier that has been used in connection with the Agreement, provided that nothing in this clause shall prevent Client from engaging any Third Party Supplier with whom it had a contractual relationship with prior to the date of the Agreement.

20. TUPE

20.1 Each Party agrees that it is of the understanding that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended or replaced) (“Transfer Regulations”) will not apply as a result of either Supplier’s appointment to provide the Services or Supplier ceasing to provide the Services. Further, it is the intention of the Parties that the Supplier will not incur any liability under the Transfer Regulations in connection with its appointment to provide the Services and that neither the Client nor any replacement service provider will incur any liability as a result of Supplier ceasing to provide the Services.

20.2 If either Party has reason to believe that the Parties understanding set out in clause 20.1 is incorrect, such Party will notify the other Party and the Parties shall seek to agree, acting reasonably and in good faith, an amendment to the Agreement to give effect to the Parties intention set out in clause 20.1.

21. COMPLIANCE

21.1 Each Party confirms that it has at all times in the past and shall throughout the Term comply with all applicable laws and regulations relating to:
(a) anti-bribery and anti-corruption, including the Bribery Act 2010;
(b) modern slavery, including the Modern Slavery Act 2015; and
(c) anti-tax evasion, including the Criminal Finances Act 2017.

21.2 Each Party confirms that it has, and shall maintain, in place adequate procedures designed to prevent it, and persons associated with it, from committing offences under the applicable laws and regulations referred to in clause 21.1 above, and that, if it becomes aware, or has reason to believe, that it has breached any of its obligations arising out of this clause 21, it shall notify the other Party immediately.

22. NOTICES

22.1 Unless expressly provided otherwise, all notices and other communications to be given under the Agreement must be in writing and shall be delivered (a) by hand (including by courier); (b) pre-paid first class post or other next day delivery service; (c) pre-paid airmail; or (d) email (sent with a delivery receipt request), to the other Party’s address for notices as set out in the Agreement (or such other address as that Party may notify to the other from time to time). Such notice shall be treated as having been given and received:
(a) if delivered by hand, at the time of delivery;
(b) if sent by UK pre-paid first class post or other next day delivery service to a UK postal address, at 9.30 a.m. on the second clear day after the date of posting;
(c) if sent by pre-paid airmail, at 9.30 a.m. on the fifth clear day after the date of posting; and
(d) if sent by email, at the time recorded in the delivery receipt.

23. FORCE MAJEURE

23.1 Neither Party shall be liable to the extent that it is delayed in or prevented from performing its obligations under the Agreement to the extent that it is delayed in or prevented from doing so due to any act, event, non-happening, omission or accident beyond its reasonable control, including but not limited to the following events affecting either party:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, war (whether declared or not), terrorism, or threat of or preparation for war or terrorist attack;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) compliance with any law or governmental order, rule, regulation or direction (including without limitation acts of any government).

24. DISPUTE RESOLUTION

24.1 It is the intention of Supplier and Client to resolve issues arising out of or relating to the Agreement (a “Dispute”) in a constructive and bona-fide way that reflects the concerns and commercial interests of each Party at the appropriate levels of authority within each Party by escalating issues in accordance with the dispute procedure set out below, prior to the initiation of court proceedings. Either Party may initiate the dispute procedure by giving written notice to the other Party.

24.2 Disputes will be referred to the following representatives of the Parties:
(a) first, to Client’s head of marketing (or similar) and Account Manager for Supplier; and
(b) if the dispute cannot be resolved within five (5) working days following the date of the notice referred to in clause 24.1, the Dispute may be escalated by either Party to Client’s CEO (or person of similar authority) and Managing Director for Supplier.

24.3 The Parties’ representatives will use commercially reasonable efforts to discuss the Dispute and attempt to resolve the Dispute as soon as practicable and without the necessity of any formal proceeding.

24.4 Nothing in this section will restrict or delay either Party’s freedom to initiate court proceedings to seek:
(a) any interim relief; or
(b) to preserve a superior position with regard to other creditors of the other Party.

25. ENTIRE AGREEMENT

25.1 The Agreement constitutes the entire agreement between the Parties relating to the Services to be provided under the SOWs and supersedes any prior drafts, agreements, undertakings, representations, warranties and arrangements, whether or not in writing, between the Parties in relation to such Services.

25.2 Each of the Parties acknowledges and agrees that it has not entered into the Agreement in reliance on any statement or representation of any person other than as expressly incorporated in the Agreement and that the only cause of action available to it under the terms of the Agreement shall be for breach of contract.

26. GENERAL

26.1 Supplier shall be entitled to assign its rights and obligations set out in the Agreement. Supplier may also subcontract or delegate any of its obligations under the Agreement. The Client shall not transfer its rights and/or obligations to third parties, whether in whole or in part, without Supplier’s prior written consent.

26.2 The failure of either Party to enforce or to exercise at any time or for any period of time Party term of or any right, power, privilege or remedy pursuant to the Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that Party’s right later to enforce or to exercise it.

26.3 Where either Party has incurred any liability to the other, whether under the Agreement or otherwise, the Party incurring such liability shall not be entitled to set off the amount of such liability against any sum or sums that would otherwise be due to it under the Agreement.

26.4 If any provision of the Agreement is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of the Agreement will remain in full force and effect and will not in any way be impaired. If any provision of the Agreement is held to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.

26.5 Nothing in the Agreement is intended to or shall be construed as establishing or implying any partnership, joint venture or agency of any kind between the Party, and neither Party shall have authority to act in the name of or to otherwise bind the other Party in any way.

26.6 Any variation to the Agreement will only be valid if it is in writing and signed by or on behalf of each Party.

26.7 The Parties do not intend that any term of the Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 (or otherwise) by any person who is not a Party to the Agreement.

26.8 The Agreement and any dispute or claim arising out of or in connection with it, shall be governed by and construed in accordance with the laws of England and Wales.

26.9 The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with the Agreement.

26.10 If applicable, the Client irrevocably appoints the person set out in its SOW as its agent to receive on its behalf in England or Wales service of any proceedings under 26.8

26.11 above. Such service shall be deemed completed on delivery to such agent (whether or not it is forwarded to and received by the Client) and shall be valid until such time as the Supplier has received prior written notice that such agent has ceased to act as agent. If for any reason such agent ceases to be able to act as agent or no longer has an address in England or Wales, the Client shall forthwith appoint a substitute acceptable to the Supplier and deliver to the Supplier the new agent’s name and address within England and Wales.

SCHEDULE 1

DATA PROTECTION AGREEMENT

1. DEFINITIONS

1.1 Unless otherwise defined in this Schedule 1 (this “DPA”), words and expressions shall be interpreted in accordance with the Agreement. In this DPA the following words shall have the following meanings:

Client Data
means the Personal Data provided by or on behalf of the Client or otherwise obtained, supplied or generated by the Supplier in connection with the provision of the Services that Supplier processes for and on behalf of the Client;

Data Protection Legislation
means any applicable data protection related laws and regulations, as amended, extended or re-enacted from time to time, including the following:
(a) Data Protection Act 2018 and any legislation relating to the processing of personal data effective in the UK that is intended to replicate or maintain some or all of the provisions, rights and obligations set out in the GDPR in circumstances where the GDPR is no longer applicable in the UK because the UK is no longer a member of the European Union;
(b) EC Directive 2002/58/EC on Privacy and Electronic Communications;
(c) EC Regulation 2016/679 (the “GDPR”) on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
(d) all local laws or regulations implementing or supplementing the EU legislation mentioned in (b) and (c) above; and
(e) all codes of practice and guidance issued by national regulators relating to the laws, regulations and EU legislation mentioned in (a)–(d) above;

International Transfer Requirements
means the requirements of Chapter V of the GDPR (Transfers of personal data to third countries or international organisations);

Personnel
means all persons engaged or employed from time to time by Supplier in connection with the Agreement, including employees, consultants, contractors and permitted agents;

Restricted Country
means a country, territory or jurisdiction which is not considered by the EU Commission (or in respect of personal data transfers caught by the requirements of UK Data Protection Legislation, the relevant UK governmental or regulatory body as applicable) to offer an adequate level of protection in respect of the processing of personal data pursuant to Article 45(1) of the GDPR (or analogous provisions under UK Data Protection Legislation (as applicable));

Restricted Transfer
means a transfer of personal data from an entity whose processing of personal data under the Agreement is caught by the requirements of the GDPR (and/or UK Data Protection Legislation (as applicable)), to an entity located in a Restricted Country;

Supplier Affiliate
means any entity that owns or controls, is owned by or controlled by, or is under common control or ownership with Supplier; and
UK
means the United Kingdom.

1.2 References in this DPA to “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Process”, “Processing”, and “Supervisory Authority” shall have the same meaning as defined in GDPR.

1.3 References to a clause are a reference to a clause of this DPA.

1.4 References in this DPA to the GDPR and/or an Article of the GDPR shall, where the context so requires and insofar as the Data Protection Legislation is that of the UK, be construed as a reference to the equivalent Data Protection Legislation of the UK and/or the corresponding provision of such Data Protection Legislation.

2. RELATIONSHIP OF THE PARTIES

2.1 In relation to all Client Data, the Parties acknowledge and agree that, to the extent the Supplier Processes Client Data in connection with the provision of the Services, the Client shall be considered a Controller and Supplier shall be considered a Processor.

2.2 Each of the Parties acknowledges and agrees that, in respect of Supplier’s Processing of the Client Data, the Processing shall take place during the SOW Term and that the subject-matter and duration of the Processing, the nature and purpose of the Processing, the type of Personal Data and categories of Data Subjects shall be documented in the relevant SOW, together with details of any sub processor that Supplier uses in connection with the Services pursuant to clause 5.1.

3. GENERAL OBLIGATIONS

3.1 Each Party shall, in respect of its Processing of Client Data comply with its obligations under the Data Protection Legislation. In particular, the Client shall solely be responsible for ensuring compliance with the obligations of Controllers under the Data Protection Legislation, including ensuring that there is a lawful basis for, and that adequate notices have been provided to Data Subjects, in respect of Supplier’s Processing of the Client Data.

4. SUPPLIER OBLIGATIONS

4.1 Without prejudice to clause 3, the Supplier shall in respect of its Processing of the Client Data:
(a) process Client Data only in accordance with the written instructions of Client, this DPA, or as communicated in writing to the Supplier from time to time, and shall not Process Client Data for any other purpose;
(b) unless prohibited by law, notify Client without undue delay in writing if it believes that

• (i) it is required by applicable law to act other than in accordance with the instructions of Client; or
• (ii) the instructions for the Processing of Client Data provided by Client infringe or have the potential to infringe the Data Protection Legislation;

(c) process the Client Data in a manner that ensures appropriate security of the data in accordance with the requirements regarding the security of the Personal Data, as set out in the Data Protection Legislation (including, in particular, the measures set out in Article 32(1) of the GDPR (taking due account of the matters described in Article 32(2) of the GDPR)) as applicable;
(d) keep Client Data strictly confidential at all times and shall not disclose Client Data to any third party unless Client or this DPA specifically authorises the disclosure, or as required by law. If a law, court, regulator, or law enforcement authority or Supervisory Authority requires the Supplier to disclose Client Data, the Supplier must first inform Client of the legal or regulatory requirement and give Client an opportunity to object or challenge the requirement, unless the law prohibits such notice;
(e) take all reasonable steps to ensure the reliability and integrity of any of the Personnel who shall have access to Client Data, and ensure that each member of Personnel is subject to an appropriate duty of confidentiality;
(f) without undue delay (and in any event within forty-eight (48) hours), notify the Client and provide such co-operation, assistance and information as the Client may reasonably require if:

• (i) it receives any complaint, notice or communication which relates directly or indirectly to the Processing of the Client Data or to either Party’s compliance with Data Protection Legislation (“Complaint”); or
• (ii) it becomes aware of any Personal Data Breach relating to Client Data;

(g) shall provide Client with co-operation and assistance, and take such organisational and technical measures as may be reasonably required by Client, in relation to Client’s compliance with the following obligations under Data Protection Legislation:

• (i) comply with any request made by a Data Subject to have access to their personal data, or respond where a Data Subject exercises any of their other rights under Data Protection Legislation, including right to be informed, right to rectification, right to erasure, right to restriction of processing, right to data portability, right to object to processing and right not be subject to a decision based solely on automated processing;
• (ii) report a Personal Data Breach to the Supervisory Authority and in Client’s dealings with Supervisory Authorities (including the Information Commissioner’s Office (“ICO”));
• (iii) report a Personal Data Breach to Data Subjects, when the Security Breach is likely to result in a high risk to the rights and freedoms of the Data Subjects;
• (iv) demonstrate that the processing of Client Data complies with Data Protection Legislation;
• (v) conduct data protection impact assessments (“DPIAs”) in relation to Client Data where the processing is likely to result in a high risk to the rights and freedoms of Data Subjects; and
• (vi) consult with the Supervisory Authority where required as a result of the DPIA, prior to the processing of Client Data;

(h) except to the extent required by applicable law, upon the earlier of:

• (i) termination or expiry of the Agreement and/or this DPA (as applicable); and/or
• (ii) the date on which Client Data is no longer relevant to, or necessary for, the purposes of providing the Services under the Agreement,

the Supplier shall cease Processing all Client Data and return and/or permanently and securely destroy so that it is no longer retrievable (as directed in writing by Client) all Client Data and all copies in its possession or control; and

5. APPOINTMENT OF PROCESSORS

5.1 The Supplier may engage a sub processor to process Client Data (or otherwise sub-contract or outsource the processing of Client Data to a third party), provided that Supplier notifies Client of any new or replacement sub processors. If Client objects to the appointment of a new or replacement sub processor, it shall notify Supplier within five business days.

5.2 The Supplier shall, where it engages any processor in accordance with clause 5.1:
(a) only use a processor that has provided sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the Processing will meet the requirements of the Data Protection Legislation and this Agreement and ensure the protection of the rights of Data Subjects;
(b) impose, through a legally binding contract between the Supplier and processor that, in respect of the Client Data (i) terminates automatically on termination or expiry of the Agreement and/or relevant SOW for any reason, and (ii) includes data protection obligations that comply with the requirements of the Data Protection Legislation (in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the Processing will meet the requirements of the Data Protection Legislation); and
(c) subject to clause 8, remain fully liable for all acts or omissions of the processors as if they were acts or omissions of Supplier.

5.3 Client acknowledges and agrees that Client Data may be processed in Restricted Countries, subject to Supplier:
(a) prior to the relevant Restricted Transfer, carrying out appropriate due diligence on the relevant third party (and the relevant third party’s jurisdiction) to assess the adequacy of the third party and its jurisdiction in light of the Court of Justice of the European Union judgment in the case of C-311/18 Facebook Ireland and Schrems (Schrems ii) and International Transfer Requirements and provided Client with evidence of the results;
(b) prior to the relevant Restricted Transfer, putting in place a lawful transfer mechanism and applicable supplementary measures to enable such Restricted Transfer to comply with the International Transfer Requirements, and provides Client with evidence of the relevant measures taken;
(c) complying, and procuring that the relevant third party complies, with Supplier’s or the relevant third party’s respective obligations under the transfer mechanism and applicable supplementary measures and notifies the Client of any reason why the mechanism and/or measures put in place to legitimise the Restricted Transfer may no longer comply with International Transfer Requirements.

5.4 To the extent either Party determines that the lawful transfer mechanism relied on by the Supplier no longer complies the International Transfer Requirements,

6. RECORDS OF PROCESSING AND AUDIT

6.1 Supplier shall keep at its normal place of business a written record of its processing of Client Data and of its compliance with its obligations set out in this DPA (“Records”) and permit (and procure that its processors permit) Client, its third-party representatives or a Supervisory Authority or its third party representatives, on reasonable notice during normal business hours, access to inspect, and take copies of, the Records and any other relevant information held at any premises or on systems used in connection with the processing of the Client Data, for the purpose of auditing compliance with data protection related obligations. Supplier shall give, and procure that its processors give, any and all necessary assistance in respect of the conduct of such audits.

7. COSTS OF COMPLIANCE

7.1 Where, pursuant to this DPA, Supplier is obliged to provide co-operation, information and/or assistance to Client, or to third parties at the request of the Client (including submission to an audit or inspection and/or the provision of information), Client shall reimburse Supplier in respect of costs and expenses reasonably incurred by the Supplier in respect of the provision of such co-operation, information and/or assistance, save where such assistance directly arises from Supplier’s breach of its obligations under this DPA, in which event the Supplier shall be responsible for such costs and expenses.

8. LIABILITY AND PAYMENT OF COMPENSATION

8.1 Any limitation of liability set forth in the Agreement will apply to the Supplier’s obligations under this DPA.

SCHEDULE 2

TEMPLATE STATEMENT OF WORK

[Template to be provided separately]

‍