TERMS AND CONDITIONS
TERMS AND CONDITIONS
1.1 – The following definitions and rules of interpretation apply in this Agreement:
- Additional Services means any services provided by Briefed to the Client pursuant to this Agreement which are not included in the Agreed Services;
- Agreed Services means the agreed services set out in the Services Proposal;
- Agreement means the Services Proposal together with these Terms and Conditions;
- Annual Subscription Fee means any fees payable per annum as set out in the Services Proposal;
- Briefed means Briefed Limited, a private limited company registered in Northern Ireland with registered number NI609305 and address at 19 Ravenhill Park, Belfast, BT6 0DE;
- Briefed Content means any and all data, information and content provided by Briefed as part of the Services;
- Briefed Documentation means any documents, reports, policies and/or literature which is provided by Briefed as part of the Services;
- Briefed IPR means any IPR subsisting in the Briefed Software, the Briefed Content and the Briefed Documentation and/or any part thereof, whether existing at the commencement of this Agreement or created as part of the Services (and including the ‘Briefed’ brand and all associated logos and get-up used by Briefed) in each case to the extent owned by Briefed;
- Briefed Software means any software provided by Briefed for use by the Client and/or Permitted Users in connection with the Services;
- Business Day means from 9am to 5pm on a day other than a Saturday, Sunday or public holiday in Northern Ireland;
- Client means the client named as such in the Services Proposal;
- Client Business means the business of the Client, as set out in the Services Proposal;
- Commencement Date means the date specified as such in the Services Proposal;
- Confidential Information means all information (however recorded or preserved) disclosed by or on behalf of a party to the other party whether before or after the date of this Agreement in connection with the provision of the Services, which information is expressly stated to be confidential, or may reasonably be construed as such. For the avoidance of doubt, Briefed’s Confidential Information shall include the Briefed Documentation, Briefed Content and the Services Proposal;
- Controller has the meaning given to it in the Data Protection Legislation;
- Data Protection Legislation means the Data Protection Act 2018, the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (the Data Protection Regulations), the General Data Protection Regulation (EU) 2016/679 (as applicable), the UK GDPR (as defined in the Data Protection Regulations); and the Privacy and Electronic Communications Regulations 2003 (as the same may be implemented or replaced from time to time);
- Fees means the fees payable for the Services as set out in the Services Proposal (and subject to clause 9);
- GDPR means the UK GDPR (as defined in the Data Protection Regulations);
- Good Industry Practice means the exercise of that degree of professionalism, skill, diligence, care, prudence, judgment, and integrity reasonably to be expected of a skilled and experienced person engaged in the same type of activity under the same or similar circumstances;
- Hourly Rate means the amount identified as such in the Services Proposal;
- ICO means the Information Commissioner’s Office or such other supervisory authority as may replace it in the UK from time to time;
- Initial Term has the meaning given to it in the Services Proposal;
- IPR means intellectual property rights, including copyright, moral rights, database rights, patents, patent applications, patent rights, rights to inventions, rights in designs, trademarks, trademark applications, trademark registrations, trademark rights, business names, rights in get-up and trade dress, goodwill and the right to sue for passing off, domain names, knowhow, methodology, confidential information, trade secrets, in each case whether registered or unregistered, and all other intellectual property and proprietary information rights as may exist now or hereafter come into existence, all modifications, continuations, renewals and extensions of the foregoing, and all claims, actions, causes of action, damages, costs, expenses, profits, penalties, recoveries and remedies relating to any past, present or future infringement of any of the foregoing, arising under the laws of any country, state or jurisdiction in the world (and including any goodwill in any of the aforementioned);
- Maximum Number means the number set out in the Services Proposal;
- party means a party to this Agreement and parties means both of them;
- Payment Terms has the meaning given to it in the Services Proposal;
- Personal Data means has the meaning given to it in the Data Protection Legislation;
- Permitted User has the meaning given to it in the Services Proposal;
- Processor has the meaning given to it in the Data Protection Legislation;
- Regulatory Obligations means any legal or regulatory obligations to which the Client or any third party may be subject or by which they may be bound;
- RPA means the recurring payment authority to be provided by the Client to enable Briefed to collect Fees due from the Client;
- Services means the Agreed Services and any Additional Services provided by Briefed to the Client under this Agreement;
- Services Proposal means the document provided by Briefed to the Client setting out an overview of the Services and Fees payable, into which document these Terms and Conditions are expressly incorporated;
- Subscription Year has the meaning given to it in the Services Proposal;
- Term means the duration of this Agreement, as determined in accordance with clause 2;
- Terms and Conditions means these terms and conditions (including its schedule);
- Third Party IPR means all IPR in the Briefed Content, the Briefed Documentation and the Briefed Software other than Briefed IPR;
- User means any user receiving and/or using the benefit of the Services provided to the Client in accordance with this Agreement;
- User Content shall have the meaning given in clause 7.5; and
- VAT means value added tax.
1.2 – Clause and schedule headings do not affect the interpretation of this Agreement, and references to a clause or the schedule are to clauses of and the schedule to these Terms and Conditions. Words in the singular include the plural and in the plural include the singular, and references to any gender include all genders. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it. References to including and include(s) shall be deemed to mean respectively including without limitation and include(s) without limitation.
2.1 – Subject to early termination in accordance with clause 13, this Agreement shall commence on the Commencement Date and endure for the Initial Term and thereafter for successive one year periods (or such longer periods as may be agreed in writing between the parties, any such period, Renewal Term) until terminated.
2.2 – If a Renewal Term is agreed between the parties, the terms of this Agreement shall continue to apply and (unless otherwise expressly agreed in writing between the parties) any references to the “Initial Term” shall be deemed to refer to the “Renewal Term” and where the context requires it, references to the “Commencement Date” shall mean the commencement of the Renewal Term, for the purposes of such period.
3. PERFORMANCE OF THE SERVICES
3.1 – In consideration of the payment of the Fees by the Client, Briefed shall perform the Services for the Client.
3.2 – From time to time the Client may request Briefed to provide Additional Services and Briefed may at its discretion agree to provide such Additional Services. Unless specifically agreed in writing to the contrary, any such Additional Services shall be provided at the Hourly Rate.
3.3 – The Client acknowledges that unless the Client provides Briefed (in advance and in writing) with a named authorised representative or representatives permitted to use the Services, Briefed shall be entitled to assume that any requests received from a member, employee or associate of the Client (whether in respect of any Additional Services, additional Users, data breach helpline request services or otherwise) has been duly authorised by the Client to be submitted on its behalf and that Briefed has the Client’s authority to discuss any of the issues raised in the request with the individual making the request.
3.4 – Briefed shall:
- 3.4.1 – perform the Services in accordance with Good Industry Practice;
- 3.4.2 – use reasonable endeavours to ensure that the Services are provided in accordance with any timelines agreed with the Client in writing, or otherwise as reasonably quickly as possible. The Client recognises that the nature of the Services may mean that Briefed cannot predict how long it may take to assist with any issues raised; and
- 3.4.3 – comply with all applicable laws in the performance of its obligations imposed by this Agreement.
4. CLIENT RESPONSIBILITIES
4.1 – The Client shall:
- promptly upon receipt of a request for the same, provide Briefed with full, accurate and up-to-date information and such documentation as Briefed may reasonably require in order to complete its Services and procure that any and all consents and authorisations necessary to enable Briefed to have access to the same for the purposes set out in this Agreement have been duly obtained;
- not permit, authorise, nor enable anyone to access the Briefed Software, Briefed Content nor Services other than the Permitted Users (up to the Maximum Number, unless otherwise agreed with Briefed in writing);
- provide Briefed with a complete and accurate list of names and work email addresses for the Permitted Users;
- promptly inform Briefed if any individual named as a Permitted User (in accordance with the sub-clause above) ceases to be a Permitted User;
- ensure that the Permitted Users: are made aware about the availability of the Services and have the necessary equipment and infrastructure required to access the Services remotely. For the avoidance of doubt, the Client shall remain liable for payment for the Services whether or not any Permitted Users actually access the Services (or any element of them);
- procure the Permitted User’s understand the scope of the Services, extent of use of the Briefed IPR and Briefed Awards and accept the limitations of Briefed’s liability imposed by clause 12; and
- indemnify and hereby indemnifies Briefed on demand against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Briefed as a result of a third party claim arising out use of, or in connection with, the Services by a Permitted User.
5. SCOPE OF THE SERVICES
5.1 – The Client acknowledges that the Services provided by Briefed are intended to raise awareness among Permitted Users about certain Regulatory Obligations which may be applicable to them. Accordingly the Client acknowledges and agrees that:
- Briefed does not provide a legal service; any information provided by Briefed should not be treated or used (by the Client or anyone else) as legal advice and the Services should not be used to resolve any potential or actual disputes, litigation and/or claims made by third parties;
- it shall be the sole responsibility of the Client (or any third party) to assess how best to use any information received in connection with the Services, and to ensure that it (and/or any third party) complies with any Regulatory Obligations. Briefed accepts no responsibility for any finding by any regulatory body nor any court of competent jurisdiction that the Client (or any third party) has not complied with its Regulatory Obligaitons;
- the Client is responsible for managing any deadlines required under any Regulatory Obligaitons. While Briefed will try to meet any response times agreed, Briefed cannot accept any responsibility for deadlines missed by the Client or any third party;
- any policies, documents or reports provided by Briefed are templates only. It is the responsibility of the Client to properly integrate, amend and populate any such documents as it may require, and ensure that such documents are appropriate for the Client’s business, are kept up to date and are in line with any Regulatory Obligations; and
- the content or information provided by Briefed is not exhaustive, nor does not include any regulatory frameworks nor legislation applicable outside the UK. It is the Client (or third party’s) responsibility to ensure that they are aware of and understand all regulatory and legal requirements applicable to them.
- The Client acknowledges that the Briefed Documentation and the Briefed Content has been created by Briefed and forms part of its Confidential Information and that disclosure of the Briefed Documentation and the Briefed Content by the Client to third parties would be harmful to the business of Briefed. The Client also acknowledges that it may cause harm to share the Briefed Documentation and the Briefed Content with any third party or use the Briefed Documentation and the Briefed Content in any other situation save as intended (including a future matter which may arise in the same organisation). As such, the Client undertakes:
- only to use the Briefed Documentation and the Briefed Content for its own internal purposes in the Client Business (save as may be otherwise expressly agreed in writing with Briefed);
- (unless otherwise expressly agreed in writing between the parties) not to disclose, share, transfer and/or distribute by any means the Briefed Documentation and the Briefed Content (or any part thereof) to or with any third party whatsoever (and whether for commercial and/or non-commercial purposes); and
- not to use, represent and/or hold out in any way to any third party the Briefed Documentation and the Briefed Content (or any part thereof) as constituting legal advice and/or advice relevant to such third party’s circumstances and/or relevant to any future data protection requirements within the same organisation.
- The Client agrees to be liable for any acts and/or omissions of the Permitted User which if carried out by the Client in connection with the use of the Briefed Documentation would amount to a breach of this Agreement and the Client hereby indemnifies Briefed against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Briefed whether as a result of a third party claim or otherwise arising out of any breach of clause 5.2 by the Client (its personnel and/or any Permitted Users).
6. BRIEFED AWARDS – ONLINE TRAINING MODULES
6.1 – Each year, Briefed shall send a digital certificate of completion and a ‘Trained Professionals’ badge (Briefed Awards) to any Permitted User who achieves the pass mark or higher in the course exam accessible upon completion of its online training modules. The Client acknowledges and understands that neither the course content nor the course exam has been moderated by a regulator nor any other third parties.
6.2 – Permitted Users may use the Briefed Awards for the purposes of indicating that they have completed an online training course provided by Briefed for a particular year and that they have taken the online course exam and have attained a pass mark or higher (the Permitted Purposes). The Client shall procure that Briefed Awards are used solely and strictly for the Permitted Purposes only. The Client shall not (and shall procure that no Permitted User shall) use any Briefed Award as evidence of ‘compliance’ nor as evidence of endorsement by Briefed (or any third parties) of any business, trade or activity of any kind.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 – The Client acknowledges and agrees that Briefed owns all legal right, title and interest in the Briefed IPR and that nothing in this Agreement shall be deemed to assign or transfer any ownership or (save as expressly provided in this Agreement) rights of use in respect of the same.
7.2 – Briefed acknowledges and agrees that the Client and/or its licensors own all legal right, title and interest in the User Content and that nothing in this Agreement shall be deemed to assign or transfer any ownership or (save as expressly provided in this Agreement) rights of use in respect of the same.
7.3 – Briefed grants the Client (and, to the extent that the same are not employees of the Client, each Permitted User) the non-exclusive, non-transferable, non-assignable and non-sublicenseable right to use the Briefed IPR solely in accordance with this Agreement.
7.4 – Briefed undertakes to use all reasonable endeavours to procure the grant to the Client (and, to the extent that the same are not employees of the Client, each Permitted User) of a non-exclusive, non-transferable, non-assignable and non-sublicenseable right for to use the Third Party IPR solely in accordance with this Agreement. If Briefed, acting reasonably, determines that any part of the Third Party IPR has infringed or may infringe the IPR of any third party it may in its own discretion either replace the relevant IPR or procure a licence properly to provide the IPR, and this shall be Briefed’s sole liability in relation thereto.
7.5 – From time to time, a Permitted User may upload content onto the Briefed Software (any such content, User Content). The Client grants Briefed the non-exclusive right an irrevocable non-exclusive, royalty free, sub-licensable licence to use the User Content as required for the provision of the Services and to collect and retain aggregate data (generated through Permitted Users’ use of the Briefed Software) for its own business purposes (provided such aggregate data does not include Personal Data).
7.6 – The Client may not use (and shall procure that no Permitted User shall use) any of the fonts, trademarks, trade names, service marks, copyrights, logos, domain names and other distinctive brand features belonging to Briefed or any third party unless the Client has first obtained valid written permission from Briefed to do so. The Client agrees not to (and to procure that no Permitted User shall) alter, remove or obscure any proprietary rights notices (including copyright and trade mark notices) which may appear in or be held within any other Briefed Documentation or Briefed Software.
7.7 – Each of Briefed and the Client undertakes to indemnify, keep indemnified and hold harmless the other party against any and all losses, liabilities, costs, claims and expenses (including reasonable legal expenses) actually incurred by the indemnified party as a result of any claim by a third party that (where Briefed is the indemnifying party) the use of the Briefed IPR, or (where the Client is the indemnifying party) the use of the User Content, infringes the IPR or rights of any third party provided that the indemnified party promptly notifies the indemnifying party in writing of the claim, allows the indemnifying party exclusive control of the defence, and reasonably cooperates with the indemnifying party in the defence at the indemnifying party’s reasonable expense.
8. BRIEFED SOFTWARE AND USER CONTENT
8.1 – The Client undertakes to, and warrants and represents to Briefed that it shall, procure that each Permitted User:
8.1.1 – shall keep any access details which they use to access the Briefed Software secure and confidential and shall not permit anyone else to use the access details or access the Briefed Software via the account of the Permitted User;
8.1.2 – shall not:
- delete, amend or otherwise alter any copyright or other ownership notices or legends displayed, contained in, or attached to the Briefed Software;
- save as expressly agreed with Briefed in writing permit any third party to use the Briefed Software, nor shall they use the Briefed Software on behalf of any such third party, without, in either case, obtaining the prior written consent of Briefed;
- take any action that imposes, or may impose (in each case in Briefed’s sole discretion) an unreasonable or disproportionately large load on the Briefed Software’s infrastructure;
- copy, duplicate, reproduce, rent, lease, operate a service bureau, transfer, redistribute, sub-licence, loan, sell, trade, resell, modify, create derivative works, distribute or publicly display, all or any part of the Briefed Software without Briefed’s prior written consent;
- interfere or attempt to interfere with the proper working of the Briefed Software or any activities conducted via the Briefed Software;
- bypass any measures Briefed may use to prevent or restrict access to the Briefed Software;
- attempt to reverse engineer, decompile or otherwise seek to obtain access to the source code in the Briefed Software;
- engage in any activity that interferes with or disrupts the Briefed Software, or the servers and networks which are connected to the Briefed Software;
- use nor allow anyone else to use, any automated software, process, programme, robot, web crawler, spider, data mining, trawling or other “screen scraping” software in respect of the Briefed Software; nor
- upload (or permit, authorise or enable any other person to upload) any User Content which: (a) is misleading, harmful, threatening, abusive, harassing, defamatory, offensive, violent, obscene, pornographic, vulgar, libellous, racially, ethnically, religiously or otherwise objectionable; (b) constitutes unauthorised disclosure of personal or confidential information; (c) violates the rights of any party (including but not limited to any patent, trade mark, trade secret, publicity right, privacy right, copyright or other IPR) or otherwise create liability or violate any local, state, national or international law; (d) contains viruses, trojans, worms, corrupted files or code, files and programs designed to impede or destroy the functionality of any computer software or hardware; spyware and malware designed for phishing and with a view to compromise the data security and integrity, and obtain sensitive personal or financial information; and/or (e) constitutes or encourages a criminal offence.
9. FEES AND EXPENSES
9.1 – The Client shall pay the Fees to Briefed in accordance with the Payment Terms and with this clause 9.
9.2 – All amounts and rates quoted to the Client are (unless expressed to the contrary) exclusive of any VAT or any other sales tax or duties, which, where applicable, shall be payable by the Client to Briefed; and and all amounts due under this Agreement shall be paid in GBP pounds sterling (or such other currency as the parties may agree in writing from time to time) to the credit of Briefed’s bank account, details of which shall be notified to the Client as and when necessary.
9.3 – The Client hereby grants to Briefed the RPA to permit Briefed to take payment on a continuing and recurring basis from the account designated by the Client of all sums due to Briefed under the terms of this Agreement. The Client will upon Briefed’s demand provide all required consents, permissions, co-operation and information as may be reasonably required by Briefed to take payment under the RPA, and the Client will inform Briefed as soon as reasonably practicable in advance of any change which may impact on the RPA. The Client undertakes to keep its payment details current and valid throughout the Term and undertakes to meet any and all additional costs Briefed may incur as a result of the Client’s failure to keep these details current.
9.4 – The Client has the right to withdraw the RPA, and undertakes that it will notify Briefed promptly in writing if it does so. If Briefed is unable to take payment from the Client’s account, the Client will use all reasonable endeavours promptly to take such steps as may be required to enable Briefed to take payment from the Client’s account within 48 hours of Briefed’s notification to the Client.
9.5 – If the Client fails to make any payment due to Briefed under this Agreement by the due date for payment, then, without limiting remedies available to Briefed, Briefed:
- may charge interest on the overdue amount at the rate of 4% per annum above the Danske Bank base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount;
- shall have the right to suspend the provision of the Services, with no liability to the Client and the Client shall remain liable for any Fees payable during that period;
- Briefed shall be entitled to terminate this Agreement with immediate effect and with no liability to the Client, and the Client shall promptly pay all outstanding amounts in accordance with the Payment Terms and the early termination provisions set out in the Services Proposal (if any); and
- the Client shall have no right to any refund, whether in whole or in part in respect of any Services paid for and not received.
9.6 – The Client recognises and agrees that:
- the Annual Subscription Fee has been calculated on the basis that the number of Permitted Users authorised to access the Services shall not exceed the Maximum Number in any Subscription Year. Should the Client wish to or authorise Users in additional to the Maximum Number to access the Services, an additional amount per User (as detailed in the Services Proposal) shall become due and owing by the Client to Briefed which additional amount shall apply in respect of the entirety of the Subscription Year in question (and thereafter for the remainder of the Term);
- any fees payable for Additional Services shall be calculated on the basis of any time spent by Briefed in providing the Additional Services. This may include undertaking consultations with the relevant individuals in the Client organisation, reviewing documentation provided by the Client, carrying out any research in connection with the Client Business, drafting any reports and/or other documentation and providing any follow-up discussions including telephone calls and/or ad hoc support. Time is recorded by the minute and any time provided which is less than an hour will be billed on a pro rata basis. Briefed may (at its discretion) estimate charges for Additional Services in advance, whereupon (a) the estimated charges shall be payable in advance and (b) any duly incurred charges in excess of the estimated charges will be charged by Briefed monthly in arrears;
- save to the extent expressly stated in this Agreement, the Client shall only be required to pay expenses incurred by Briefed where it has expressly been agreed between the parties in advance and such payment shall be subject to Briefed providing reasonable evidence to the Client that such expenses were incurred by Briefed personnel in the provision of the Services. The Client acknowledges that all travel expenses shall be calculated on the basis that travel originates in Northern Ireland.
9.7 – Notwithstanding any other provision herein, Briefed reserves the right (with written notice to its Client or no fewer than 45 days) to increase its fees and rates on an annual basis in line with the percentage increase in the Retail Prices Index in the preceding 12-month period, which increases shall take effect from the commencement of the next Subscription Year.
10.1 – The provisions of this clause 10 shall not apply to any Confidential Information that: (i) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its personnel in breach of this clause); (ii) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party; (iii) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or (iv) the parties agree in writing is not confidential or may be disclosed.
10.2 – Each party shall keep the other party’s Confidential Information confidential and shall not: (i) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement; and/or (ii) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 10.
10.3 – A party may disclose the other party’s Confidential Information to those of its personnel who need to know such Confidential Information for the purposes of the Services, provided that: (i) it informs such personnel of the confidential nature of the Confidential Information before disclosure; and (ii) at all times, it is responsible for such personnel’s compliance with the confidentiality obligations set out in this clause.
10.4 – A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including a court or other authority of competent jurisdiction) provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.5 – Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this Agreement are granted to the other party, or to be implied from this Agreement.
10.6 – The provisions of this clause 10 shall continue to apply after termination of this Agreement.
11. DATA PROTECTION
11.1 – For the purposes of this Agreement, the following terms shall have the following meaning:
- Client Contacts Data means any Personal Data relating to the Client’s employees or staff and/or any Permitted User which the Client shares with Briefed in order to set up and manage the Services; and
- Client Business Data means any Personal Data relating to individuals gathered by the Client in the course of the Client Business which is disclosed to Briefed for the purpose of receiving the Services.
11.2 – The parties agree that Briefed is acting as:
- a Controller in respect of its use of the Client Contacts Data; and
- a Processor in respect of any Client Business Data.
11.3 – Each party agrees to comply with its obligations under the applicable Data Protection Legislation in respect of any Personal Data transferred between the parties pursuant to this Agreement. Where Briefed acts as a Processor, the provisions of the schedule to this Agreement shall apply.
11.4 – The Client:
- warrants and represents to Briefed that it shall not transfer (or permit anyone else to transfer, including any Permitted User) any Personal Data to Briefed unless it has all necessary consents, authority and right required at law to do so and authorise Briefed to use such Personal Data as set out in this Agreement; and
- acknowledges that notwithstanding any information provided by Briefed from time to time in respect of the Client Business Data, the Client is the Controller of the Client Business Data and nothing in this Agreement shall relieve the Client (or any third party) of its obligations as a Controller in respect of the Client Business Data.
12. REPRESENTATIONS, WARRANTIES AND LIMITATION OF LIABILITY
12.1 – Each party represents and warrants to the other that it has the authority and requisite corporate power to enter into this Agreement without obtaining any additional consent of any third party.
12. 2 – Nothing in this Agreement shall limit or exclude either party’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its personnel or subcontractors; (ii) fraud or fraudulent misrepresentation; and/or (iii) any other liability which cannot be limited or excluded by applicable law.
12. 3 – Briefed make no warranties or representations not expressly set forth in this Agreement. To the maximum extent permitted by law, and except for the warranties expressly set forth in this Agreement, Briefed disclaims any and all other warranties and conditions, whether express, implied, or statutory, including but not limited to implied warranties (if any) of quiet enjoyment, merchantability, fitness for a particular purpose, non-infringement and satisfactory quality; and no information, whether oral or written, obtained by the Client from Briefed shall create any warranty not expressly stated in this Agreement. In particular but without limitation Briefed makes no representations nor gives any warranties that by following any information received from Briefed, the Client or any third party will not incur any damages, further expenses, judgments nor penalties.
12.4 – Client acknowledges and agrees that the Services are (a) provided solely as general information on good procedure and practice relating to certain Regulatory Obligations; (b) in no sense intended to comprise legal advice on any aspect of any Regulatory Obligations, whether general or specific; and (c) provided “as is” and without any warranties, representations or conditions of any kind. Briefed is not licensed nor insured to provide legal advice and/or services, and Client hereby confirms that it will not regard the Services as such. Briefed shall not be under any liability whatsoever in respect of any inaccuracies or omissions in, or incompleteness of, the Briefed Documentation and/or any failure to update it to then current law. All such liability relating to inaccuracies, omissions, timeliness or incompleteness of data is excluded by Briefed to the fullest extent permitted by law.
12.5 – The Client acknowledges that Briefed’s provision of the Services may depend upon the quality and completeness of the information given to Briefed by the Client. Briefed excludes all liability to the extent that the same arises as a result of information and/or any circumstance which was not expressly made known to Briefed.
12.6 – Subject to clause 12.2, Briefed shall have no liability to the Client (nor any other third party) whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for: (i) any indirect, special, incidental or consequential loss or damage which may arise in connection with the Services and/or their non-availability; (ii) loss of profit, business revenue, goodwill and/or anticipated savings; (iii) any trading or other losses which the Client (or any third party) may incur as a result of reliance upon any content received from Briefed; (iv) the deletion of, corruption of, or failure to store any content and other data maintained or transmitted by or through the Briefed Software; and/or (v) for the performance and/or failure of any third party software, hardware, goods and/or services.
12.7 – In no circumstances shall Briefed be liable to the Client nor any third party for any fees, penalties, costs or other damages incurred by the Client or any third party whether incurred owing to a breach by the Client or such third party of any applicable Regulatory Obligations or otherwise.
12.8 – Subject to clause 12.2, Briefed’s aggregate liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the Fees paid by the Client under this Agreement in the 12 months preceding the Client’s claim in connection with the Services.
12.9 – The Client agrees and acknowledges that the Client is in a better position than Briefed to foresee and evaluate any potential damage or loss which the Client (or any business which it represents) may suffer in connection with the Services, and that Briefed cannot adequately insure its potential liability to the Client and that, accordingly, the exclusions and limitations contained in this clause 12 are reasonable. The Client also undertakes at all times to mitigate any such damage or loss.
12.10 – Each provision of this clause 12 shall be construed separately and shall continue and survive even if for any reason one or other of those provisions is held invalid or unenforceable in any circumstances.
13. TERM AND TERMINATION
13.1 – This Agreement shall commence on the Commencement Date and shall continue until terminated in accordance with this clause 13, clause 9.5, or in accordance with the early termination provisions set out in the Services Proposal (if any).
13.2 – Without affecting any other right or remedy available to it, either party may, without any liability to the other party, terminate this Agreement with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so; or
- (i) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; (ii) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its; (iii) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company); (iv) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company); (v) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver; (vi) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; (vii) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; (viii) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause 13.2; or (ix) the other party suspends or ceases, or threatens to suspend or cease, carrying on all its business.
13.3 – Either Party may terminate the Agreement by written notice to be given at least 90 days’ written notice prior to the expiry of the Initial Term or any subsequent Subscription Year.
13.4 – On termination of this Agreement:
- the licences granted by Briefed in accordance with clause 6 and 7.3 shall cease;
- Briefed shall immediately cease all further performance of the Services and Permitted Users shall no longer have access to any of the Services;
- the Client shall promptly cease (and procure that all Permitted Users promptly cease) to make any further use of any Briefed Documentation (save to the extent expressly agreed between the parties thereafter in writing);
- Briefed shall be entitled to invoice the Client, and the Client shall promptly pay, all outstanding Fees and expenses in accordance with the Payment Terms along with any Early Termination costs applicable (as set out in the Services Proposal); and
- each party shall erase all the other party’s Confidential Information from its computer systems (to the extent possible).
13.5 – Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and the provisions of clauses 4.1.7, 5, 6.2, 6.3, 7.5, 7.6, 8, 9, 10, 12, 13, 16 and 17 shall continue in force.
14. FORCE MAJEURE
14.1 – Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 1 month the party not affected may terminate this Agreement by giving 7 days’ written notice to the affected party.
15.1 – Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be (i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or (ii) sent by email to an email address notified to the other party in writing.
15.2 – Any notice or communication shall be deemed to have been received: (i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; (iii) if sent by email, at 9.00 am on the next Business Day after transmission.
16.1 – If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
16.2 – No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.3 – This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to the provision of the Services. For the avoidance of doubt, nothing in this clause 16.3 shall prevent the parties from subsequently entering into a separate written agreement for the provision of services which do not form part of this Agreement. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
16.4 – No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.5 – Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
16.6 – The Client shall not assign or transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of
16.7 – Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
16.8 – Where this Agreement is executed as a document, the Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
16.9 – A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.
17. GOVERNING LAW AND JURISDICTION
17.1 – This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Northern Ireland.
17.2 – Each party irrevocably agrees that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
SCHEDULE: DATA PROCESSING SCHEDULE
1) Briefed shall:
a) process the Client Business Data only in accordance with the Client’s written instructions unless prevented by the Data Protection Legislation, in which case Briefed shall promptly notify the Client of this unless the Data Protection Legislation prohibits Briefed from so notifying the Client;
b) ensure that all personnel who have access to and/or process Client Business Data are obliged to keep the Client Business Data confidential;
c) ensure that Briefed has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Business Data and against accidental loss or destruction of, or damage to, Client Business Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Client Business Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Client Business Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
d) (where Briefed uses any sub-processor, as that term is defined in the Data Protection Legislation) Briefed shall:
- enter into a legally binding written agreement that places the equivalent data protection obligations as those set out in this Agreement to the extent applicable to the nature of the services provided by such sub-processor, 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;
- remain liable for the performance of the sub-processor; and
- procure that any transfers by Briefed to a sub-processor outside the EEA shall be carried out in accordance with Chapter 5 of the Data Protection Legislation
and the Client consents to Briefed appointing sub-processors subject to the provisions of this paragraph 1 (d);
e) at the Client’s written direction, promptly delete or return Client Business Data to the Client on termination of this Agreement unless required by the Data Protection Legislation to store the Client Business Data;
f) maintain complete and accurate records and information to demonstrate Briefed’s compliance with this schedule and, where deemed necessary by Briefed acting reasonably, allow for audits by the Client or its designated auditor in respect of the processing of the Client Business Data by Briefed or its sub-processors (upon receiving reasonable notice from the Client).
g) save as otherwise permitted by this data processing schedule, not transfer any Client Business Data outside of the United Kingdom and/or the European Economic Area without obtaining the Client’s prior written consent;
h) provide such assistance as may be required under the Data Protection Legislation to the Client in responding to any request from a Data Subject and in ensuring compliance with the Client’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
i) notify the Client without undue delay on becoming aware of a breach of the Client Business Data; and
j) not disclose or transfer the Client Business Data to any third party unless necessary for the provision of the Services and/or proper compliance with any legal requirement.
2) In the event of the United Kingdom being deemed by the European Commission to have inadequate levels of protection, in accordance with Article 45 of the GDPR, the Client and Briefed shall act in good faith and promptly enter into the appropriate versions of such model standard data protection clauses as the European Commission may from time to time publish in accordance with Article 46 (2) of the GDPR.