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Terms & Conditions

Between CLIENT and KOMI GROUP LTD.

 

PARTIES

(1)             Client.

(2)             KOMI GROUP LTD incorporated and registered in England and Wales with company number 09817343 whose registered office is at 2d Beehive Mill, Jersey Street, Manchester, England, M4 6JG.

 

BACKGROUND

(A)            KOMI Group LTD is engaged in the business of providing Services that enhance social media reach, and Client wishes to engage KOMI Group LTD to provide Services as more particularly described in this Agreement and a Statement of Work.

(B)             Client may purchase Services and Deliverables from time to time by entering into a Statement of Work with KOMI Group LTD.

 

AGREED TERMS

 

INTERPRETATION

1.1            The definitions and rules of interpretation in this clause apply in this Agreement and in any other agreement between the parties.
Brand Guidelines: Client’s brand guidelines provided to KOMI Group LTD from time to time.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Charges: the charges in respect of the Services set out in a Statement of Work.

Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together its Representatives: ) to the other party and that party’s Representatives in connection with this Agreement or any Statement of Work that is either labelled as such or else that should reasonably be considered as confidential because of its nature and the manner of its disclosure.

Client Content: the content provided to KOMI Group LTD by Client from time to time in order for KOMI Group LTD to generate the SEO Pages and otherwise perform the Services.

Deliverables: Reports, analyses, statistics, content and other Client Content required to be delivered by KOMI Group LTD in accordance with this Agreement and a Statement of Work.

Description of Services: the description of the Services as set out in a Statement of Work.

Effective Date: the date of this Agreement.

Following Term: the period of 12 months commencing from either the end of the Initial Term or any subsequent anniversaries of the end of the Initial Term.

Initial Term: the period of 12 months from the Effective Date, subject to earlier termination in accordance with this Agreement.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, rights to goodwill or to sue for passing off (or unfair competition), rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of,  confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, and renewals or extensions of, and rights to claim priority from such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses: all directly-incurred and reasonably-foreseeable losses, damages, costs, expenses incurred by the relevant party. The term Loss shall have a corresponding meaning.

Pre-Existing Work: the works, concepts, items and content either developed or procured to be developed by KOMI Group LTD or its personnel at any time for use in relation to KOMI Group LTD’s business or any or all of KOMI Group LTD’s customers generally, and not specifically for the provision of the Services or Deliverables to Client.

Services: such services required to be provided by KOMI Group LTD pursuant to a Statement of Work, and all other services reasonably necessary to be performed by KOMI Group LTD in order to carry out its obligations under this Agreement and any applicable Statement of Work.

Statement of Work: a document substantially in the form of the template statement of work set out in the Schedule describing the Services and Deliverables to be provided by KOMI Group LTD to Client, which is agreed between the parties and signed by their authorised representatives.

Term: the Initial Term and any subsequent Following Term.

Unsuitable Content: any material or content that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party’s Intellectual Property Rights.

Profile: the social media profile or profiles at the URLs listed in a Statement of Work.

1.2            Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement or any Statement of Work.
1.3            A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4            A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5            Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6            Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7            A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8            Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms
1.9            Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
1.10         If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedule, the provisions in the main body of this Agreement shall prevail.
1.11         This Agreement shall be binding on, and ensure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.

STRUCTURE OF AGREEMENT

2.1            This Agreement is structured so that individual Statements of Work will be entered into by the parties and a project-by-project basis, and such Statements of Work are governed by and subject to this Agreement. In the event of inconsistency or conflict between this Agreement and any Statement of Work, the terms of the Statement of Work shall take precedence to the extent of the conflict or inconsistency.
2.2            This Agreement does not commit Client to purchase any Services or Deliverables and, likewise, does not commit KOMI Group LTD to provide any Services or deliver any Deliverables.  Client only becomes committed to purchasing and KOMI Group LTD only becomes committed to providing any Services or delivering any Deliverables upon signature by both parties of a Statement of Work in respect of such Services and Deliverables.
2.3            Each Statement of Work shall specify (as applicable) the scope and Specification of the Services and Deliverables, any obligations of each party additional to those set out in this Agreement and the Charges relevant to each Statement of Work.
2.4            Each Statement of Work unless otherwise agreed by the parties shall constitute a separate contract under this Agreement and any defined terms used in each Statement of Work shall have the same meaning as set out in this Agreement.
3.              SERVICES
3.1            KOMI Group LTD shall:
(a)             assist in the preparation of any Statement of Work;
(b)             provide the Services;
(c)             comply with the Brand Guidelines when:
(i)              preparing and providing the Deliverables; and
(ii)             performing the Services;
(d)             deliver any Deliverables to Client,
all in accordance with the terms of this Agreement, an applicable Statement of Work and any other instructions of Client with the objective of enhancing and optimising the reach of the Client’s social media profiles and content, whether by using Client Content provided to KOMI Group LTD or through the creation of Deliverables to be posted on their behalf.

3.2            Client acknowledges and agrees that KOMI Group LTD does not guarantee any level of reach of any Client Content or Deliverables once posted, as this is solely at the discretion of the social media platforms and Profiles upon which they are posted, and the reaction of other users to them.
3.3            Client acknowledges that KOMI Group LTD has no control over the policies of social media platforms with respect to the type of content that they accept, either now or in the future. As a result, social media platforms may:
(a)             stop accepting submissions from KOMI Group LTD or from the Client via any Profile for an indefinite period of time with or without notice; or
(b)             remove Client Content or Deliverables at its discretion, however should any Client Content or Deliverables not reappear within thirty (30) days of it being removed, then KOMI Group LTD will liaise with the applicable social media platform based on its current policies at a cost to be agreed between the parties with a view to its being amended or reposted and to resolve any complaints or concerns,
and KOMI Group LTD shall not be liable to Client for any such actions of social media platforms.

3.4            KOMI Group LTD is not responsible for changes made to the Profile by:
(a)             other parties; or
(b)             Client in choosing to make changes to any particular Profile without prior consultation with KOMI Group LTD,
that adversely affect the following or reach of the Profile, the Client Content or any Deliverables.

3.5            KOMI Group LTD shall not be responsible for Client overwriting or undoing actions it has taken as part of the Services on the Profile.
3.6            KOMI Group LTD shall promptly report to Client any material issues with the performance of the Services and/or Profiles. Upon the reasonable request of Client, and subject to an agreement on costs between the parties, KOMI Group LTD shall use reasonable endeavours to correct any such material issues with the performance of the Services and/or Profiles.

 

CONTENT OF DELIVERABLES

4.1            KOMI Group LTD warrants, represents and undertakes that all content (excluding the Client Content) that it develops for the Deliverables pursuant to this Agreement or any applicable Statement of Work will not contain Unsuitable Content. KOMI Group LTD shall notify Client immediately if it becomes aware that any content in the Deliverables may be Unsuitable Content.
4.2            KOMI Group LTD shall indemnify Client from and against all Losses arising as a result of any action or claim that the Deliverables constitute Unsuitable Content.

 

CREATIVE CONTROL

5.1            The parties will meet or participate in discussions or virtual meetings from time to time over the term of the Agreement as agreed between the parties to consult in good faith with each other over the editorial content and artistic direction of the Deliverables provided that the Client will, in its absolute discretion but in full consultation with KOMI Group LTD and giving good faith consideration to KOMI Group LTD’s views as a professional creative and design agency, have final editorial and artistic control over the final content of the Deliverables.
5.2            The parties will appoint a representative as specified in clause 15 below who will have the right on behalf of the Client to accept the Deliverables as satisfactory, and the Client will be responsible for the cost of any increase to the Charges necessitated by the exercise of such right, other than the cost of changes arising from acts or omissions of KOMI Group LTD. The Client Representative will also be available to provide hands-on assistance during filming, where necessary.
5.3            KOMI Group LTD will submit to the Client draft versions of the Deliverables for review and acceptance by not later than the Delivery Date and the Client will confirm either its acceptance or non-acceptance with reasons in writing within five Business Days after receipt of such details. If KOMI Group LTD does not receive notice of such acceptance or non-acceptance within that period of five Business Days, the Client will be deemed to have accepted such details, which will then form part of the Deliverables.
5.4            If the Client declines to accept any of the Deliverables, KOMI Group LTD will then have seven days in which to make all necessary changes to them, in consultation with the Client, the Client having given written reasons for non-acceptance (such acceptance not to be unreasonably withheld or delayed). KOMI Group LTD will then submit to the Client any revised or replaced materials and the provisions of clause 5.3 and this clause 5.4 will apply again save that any further request for amendment by the Client after the second review will be subject to charge by KOMI Group LTD to cover reasonable costs necessarily incurred as a result of the second non-acceptance, such costs to be paid within 30 days of the Client’s receipt of a valid invoice for them.

CLIENT OBLIGATIONS

Solely for the purposes of KOMI Group LTD providing the Services, Client agrees to provide the following:

(a)             access to the Client’s personnel and instruct them to assist and support KOMI Group LTD wherever possible, to comply with KOMI Group LTD’s reasonable requests in relation to the creation and development of Deliverables and in particular to provide such information as KOMI Group LTD may request;
(b)             it will provide access to Client content, digital information, graphics, video content, imagery, social media profiles and websites for use in the Deliverables or to provide the Services;
(c)             it will provide, in a timely manner, such information and approvals as KOMI Group LTD may reasonably require in connection with the Services, and ensure that it its accurate and complete in all material respects.
(d)
(e)             administrative or back-end access to the Profile to allow KOMI Group LTD to post Client Content and any Deliverables;
(f)              permission for KOMI Group LTD to make changes to the Profile for the purpose of optimisation;
(g)             permission for KOMI Group LTD to communicate directly with any applicable third parties connected with the Profile (for example, Client’s Public Relations, Marketing and Design Agencies) in order to provide the Services; and
(h)             access to existing traffic statistics for the Profile in order for analysis and tracking purposes.

CHARGES AND PAYMENT

7.1            KOMI Group LTD shall invoice Client for all the relevant Charges monthly in arrears[/advance]. Provided that KOMI Group LTD has performed the Services in accordance with this Agreement and any applicable Statement of Work Client shall pay all properly due and submitted invoices within 30 days of their receipt by Client.
7.2            All Charges are exclusive of VAT which shall be payable by Client at the applicable rate.
7.3            If Client fails to make any payment due to KOMI Group LTD under this Agreement by the due date for payment, then, without limiting KOMI Group LTD’s remedies under clause 12:
1.
(a)             Client shall pay interest on the overdue amount at the rate of 4% per annum above Barclay’s 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. Client shall pay the interest together with the overdue amount; and
(b)             KOMI Group LTD may suspend the provision of any and all Services until payment has been made in full.
7.4            In relation to payments disputed in good faith, interest under clause 7.3 is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.
7.5            Suspend provision for non-payment

LICENCES AND INTELLECTUAL PROPERTY RIGHTS

8.1            Subject to clause 8.3, all Intellectual Property Rights in the Deliverables shall vest in and belong to Client absolutely, and KOMI Group LTD hereby assigns with full title guarantee and free from all encumbrances and rights of third parties all such Intellectual Property Rights in the Deliverables to Client. KOMI Group LTD shall execute all documents and take all actions necessary or reasonably requested by Client to document, obtain, maintain, perfect or assign its rights to the Deliverables.
8.2            KOMI Group LTD shall hereby, and shall procure that its personnel shall, waive any and all moral rights (including rights of integrity and attribution) in and to the Deliverables.
8.3            To the extent that any Pre-Existing Work is incorporated into the Deliverables it shall remain the property of KOMI Group LTD. KOMI Group LTD hereby grants (and if the Pre-Existing Work shall include any third-party Client Content, procure the grant from these third parties) to Client a non-exclusive, transferable, irrevocable, worldwide and perpetual licence to use such Pre-Existing Work as part of the Deliverables.
8.4            Client grants KOMI Group LTD a limited, non-exclusive, non-transferable, revocable and worldwide licence to access and use the:
2.
(a)             Profiles;
(b)             Client Content; and
(c)             name, logo, company name and trademark of Client,
to provide the Services and any Deliverables to Client in accordance with this Agreement and the Branding Guidelines during the Term and in relation to pre-agreed publicity materials, showreels and award entries in accordance with clause 16 below.

 

INDEMNITY

9.1            The parties shall indemnify each other as follows:
3.
(a)             KOMI Group LTD (Indemnifying Party) shall indemnify the Client (Indemnified Party) from and against all Losses arising as a result of any action or claim that (as applicable) the Client’s use, possession and/or ownership rights to the Deliverables, receipt of the Services and use or possession of any Pre-Existing Works in accordance with this Agreement or any applicable Statement of Work (Claim) constitute an infringement of Intellectual Property Rights of a third party.
(b)             The Client (Indemnifying Party) shall indemnify KOMI Group LTD (Indemnified Party) from and against all Losses arising as a result of any action or claim that (as applicable) KOMI Group LTD’s use and possession of the Client Content in accordance with this Agreement or any applicable Statement of Work (Claim) constitutes an infringement of Intellectual Property Rights of a third party.
9.2            The Indemnified Party (under clause 9.1(a) or clause (b) as the case may be) shall:
(a)             notify the Indemnifying Party in writing of the Claim upon becoming aware of it;
(b)             make no admissions or settlements of the Claim without the Indemnifying Party’s prior written consent;
(c)             give the Indemnifying Party all reasonable information and assistance that the Indemnifying Party may reasonably require (at the Indemnifying Party’s cost) in relation to a Claim; and
(d)             allow the Indemnifying Party complete control over the litigation and settlement of any Claim.
9.3            The Indemnifying Party (under clause 9.1(a) or clause (b) as the case may be) shall control the litigation and settlement of any Claim and keep the Indemnified Party informed at reasonable intervals of the Claim.

WARRANTIES

10.1         Each of the parties warrants to the other that it has full power and authority to enter into and perform this Agreement and any Statement of Work.
10.2         Client warrants, represents and undertakes that:
4.
(a)             it is fully entitled to enter into an to perform this Agreement;
(b)             it will cooperate with KOMI Group LTD in all matters relating to the Services and Deliverables;
(c)             any Client Content provided to KOMI Group LTD is and will be owned by Client; or
(d)             it has received the necessary consents or permissions to use the Client Content in accordance with this Agreement and any Statement of Work from the applicable owner(s).
10.3         If KOMI Group LTD’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, KOMI Group LTD will:
(a)             not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
(b)             be entitled to payment of the Charges despite any such prevention or delay; and
(c)             be entitled to recover any Losses KOMI Group LTD sustains or incurs that arise directly from such prevention or delay.
10.4         KOMI Group LTD warrants, represents and undertakes that:
5.
(a)             it shall perform the Services:
(i)              with all reasonable skill and care and in accordance with the Client’s reasonable instructions and requests;
(ii)             in willing cooperation with the Client and, where requested, its other professional and service providers such as the Client’s Public Relations, Marketing or Design Agencies;
(b)             the Deliverables will conform to their description set out in this Agreement or any Statement of Work;
(c)             in providing the Services and Deliverables it will not use any techniques or commit any act or do anything that breaches any applicable laws, regulation or social media platform terms of use, content guidelines or policies in force from time to time;
(d)             it will use personnel to provide the Services who are suitably skilled, trained and experienced;
(e)             it will ensure that the manner in which the Services are performed or provided does not adversely affect the name, reputation or business of Client;
(f)              it shall only access the Profiles in a manner and to an extent necessary for the purposes of performing its obligations under this Agreement or any applicable Statement of Work and it shall not modify (or do anything that would have the effect of modifying) the Profiles except for as permitted by the terms of this Agreement; and
(g)             the Deliverables will, in so far as they do not comprise Client Content or Pre-Existing Works, be original works of authorship by KOMI Group LTD and the use or possession thereof by Client will not be subject or give rise to any claim for infringement of any Intellectual Property Rights of any third parties.

LIMITATION OF LIABILITY AND INSURANCE

11.1         Nothing in this Agreement or any Statement of Work shall operate to exclude or limit either party’s liability for:
6.
(a)             death or personal injury caused by its negligence;
(b)             fraud or fraudulent misrepresentation;
(c)             a breach of clause 13;
(d)             the indemnity in clause 9.1(a); or
(e)             any other liability that cannot be excluded or limited under applicable law.
11.2         Subject to clause 11.1, the following types of loss are wholly excluded:
7.
(a)             loss of profits;
(b)             loss of sales or business;
(c)             loss of agreements or contracts;
(d)             loss of anticipated savings;
(e)             loss of use or corruption of software, data or information;
(f)              loss of or damage to goodwill, publicity or reputation; and
(g)             indirect or consequential loss.
11.3         Subject to clause 11.1 and clause 11.2, each party’s aggregate liability to the other party in respect of claims arising out of or in connection with this Agreement, any Statement of Work or any collateral contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed 100% of the Charges paid or payable by Client in the 12 months preceding the claim.

TERM AND TERMINATION

12.1         This Agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with this clause 12, for the Initial Term, when it shall terminate automatically without notice unless, no later than 3 months before the end of the Initial Term (or any Following Term agreed under this clause 12), the parties agree in writing that the term of the agreement shall be extended for a Following Term. Unless it is further extended under this clause or terminated earlier in accordance with this clause 12, the agreement shall terminate automatically without notice at the end of a Following Term.
12.2         Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
8.
(a)             the other party commits a material breach of any term of this Agreement or any Statement of Work which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b)             if 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 as if the words “it is proved to the satisfaction of the court” did not appear in section 123(1)(e) or 123(2) of the IA 1986), or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(c)             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 any of its creditors other (being a company) than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d)             a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e)             an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party;
(f)              the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(g)             a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(h)             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;
(i)              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 clause 12.2(c) to clause 12.2(i) (inclusive); or
(j)              the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.3         On expiry or termination of this Agreement or a Statement of Work:
9.
(a)             all applicable licences granted to KOMI Group LTD under this Agreement or a Statement of Work (as the case may be) shall terminate immediately;
(b)             KOMI Group LTD shall at Client’s request, either promptly return, destroy or irretrievably delete all Confidential Information and/or Client Content belonging to Client and connected with this Agreement or a Statement of Work (as the case may be) in its possession and control;
(c)             the Client will immediately pay to KOMI Group LTD all of KOMI Group LTD’s outstanding unpaid invoices and details of sums that KOMI Group LTD is, up to the date of termination, contractually obliged to pay third parties in relation to the provision of the Services and Deliverables, interest and, in respect of Services supplied but for which no invoice has been submitted, KOMI Group LTD may submit an invoice, which will be payable immediately on receipt;
(d)             any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement will remain in full force and effect;
(e)             neither party will have any further obligation to the other under this Agreement except as stated in this Agreement; and
(f)              termination or expiry of this Agreement will not affect any of the 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 this Agreement which existed at or before the date of termination or expiry.
12.4         On termination of this Agreement or a Statement of Work (however arising) the accrued rights and liabilities of the parties as at termination, and the following clauses, shall survive and continue in full force and effect: clause 1, clause 2, clause 4.2, clause 8.1, clause 8.2, clause 8.3, clause 9, clause 11, clause 12.3, clause 12.4, clause 12.5, clause 13, clause 15 and clause 16 to clause 28.
12.5         Termination of this Agreement or any Statement of Work shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

DATA PROTECTION & CONFIDENTIALITY

10.                              Applicable Laws: (for so long as and to the extent that they apply to KOMI Group LTD) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
11.                              Data Protection Legislation:  the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications);
12.                              UK Data Protection Legislation:  all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
13.1         Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13.1 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
13.2         The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and KOMI Group LTD is the Processor. Without prejudice to the generality of Clause 10.1 (a), the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to KOMI Group LTD and/or lawful collection of the Personal Data by KOMI Group LTD on behalf of the Client for the duration and purposes of this agreement.
13.3         Without prejudice to the generality of Clause 10.1 (a), KOMI Group LTD will, in relation to any Personal Data processed in connection with the performance by KOMI Group LTD of its obligations under this agreement:
(a)             process that Personal Data only on the documented written instructions of the Client unless KOMI Group LTD is required by Applicable Laws to otherwise process that Personal Data. Where KOMI Group LTD is relying on Applicable Laws as the basis for processing Personal Data, KOMI Group LTD will promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit KOMI Group LTD from so notifying the Client;
(b)             ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal 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 Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal 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);
(c)             ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d)             not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
13.                              (i)              the Client or KOMI Group LTD has provided appropriate safeguards in relation to the transfer;
14.                              (ii)             the data subject has enforceable rights and effective legal remedies;
1.                                                  (iii)            KOMI Group LTD complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
15.                              (iv)            KOMI Group LTD complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
(e)             assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f)              notify the Client without undue delay on becoming aware of a Personal Data Breach;
(g)             at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h)             maintain complete and accurate records and information to demonstrate its compliance with this clause 13 and allow for audits by the Client or the Client’s designated auditor and immediately inform the Client if, in the opinion of KOMI Group LTD, an instruction infringes the Data Protection Legislation
13.4         The Client does not consent to KOMI Group LTD appointing any third party processor of Personal Data under this agreement.
13.5         Either party may, at any time on not less than 30 days’ notice, revise this clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which will apply when replaced by attachment to this agreement).
13.6         Each party undertakes that it shall not at any time disclose to any third party any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 7.
13.7         Each party may disclose the other party’s Confidential Information:
16.
(a)             to its employees, officers, representatives or advisers who need to know such Confidential Information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement or a Statement of Work. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 13; and
(b)             as may be required by law, court order or any governmental or regulatory authority.
13.8         No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement or any Statement of Work.

FORCE MAJEURE

Neither party shall be in breach of this Agreement or any Statement of Work nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement or any applicable Statement of Work if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 30 days, the party not affected may terminate this Agreement or any applicable Statement of Work by giving 30 days’ written notice to the affected party.

 

NOTICES

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:
17.
(a)             delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
(b)             sent by email to the following email addresses:
1.                                                  KOMI Group LTD Representative:
2.                                                  Client Representative:
15.2         Any notice or communication shall be deemed to have been received:
18.
(a)             if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(b)             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; and.
(c)             if sent by  email, at the time of transmission, or if this time falls outside Business Hours at 9.00 am on the next Business Day after transmission.
15.3         This clause 15 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

ANNOUNCEMENTS

No party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of this Agreement, the wider transactions contemplated by it, or the relationship between the parties, or any Statement of Work, without the prior written consent of the other party, except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction. The parties agree in good faith to consult throughout the term of this Agreement on publicity and promotional plans for KOMI Group LTD that involve use of the Deliverables. All public relations, promotional and press activities undertaken by KOMI Group LTD in relation to the Services or Deliverables will be subject to the Client’s prior written approval (such approval not to be unreasonably withheld or delayed).

ASSIGNMENT AND SUBCONTRACTING

This Agreement and any Statement of Work is personal to the parties and neither party shall assign, transfer, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement or any Statement of Work without the prior written consent of the other party.

NO PARTNERSHIP OR AGENCY

18.1         Nothing in this Agreement or any Statement of Work is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute that any party is the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
18.2         Each party confirms it is acting on its own behalf and not for the benefit of any other person.

 

ENTIRE AGREEMENT

19.1         This Agreement and any Statement of Work 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 its subject matter.
19.2         Each party acknowledges that in entering into this Agreement or any Statement of Work 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 or any Statement of Work.
19.3         Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement or any Statement of Work.

 

INDEPENDENT CONTRACTORS

No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

WAIVER

No failure or delay by a party to exercise any right or remedy provided under this Agreement, any Statement of Work or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

 

VARIATION

No variation of this Agreement or any Statement of Work shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

SEVERANCE

23.1         If any provision or part-provision of this Agreement or any Statement of Work is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement or any Statement of Work.
23.2         If any provision or part-provision of this Agreement or any Statement of Work is deemed deleted under clause 23.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

FURTHER ASSURANCE

At any time after the date of this Agreement each of the parties shall, at the request and cost of the requesting party, execute or procure the execution of such documents and do or procure the doing of such acts and things as the party so requiring may reasonably require for the purpose of giving to the party so requiring the full benefit of all the terms and conditions of this Agreement and any Statement of Work.

 

INVALIDITY

If any provision of this Agreement or any Statement of Work shall be held to be illegal, void, invalid or unenforceable under the applicable laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Agreement or any Statement of Work in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Agreement or any Statement of Work in any other jurisdiction shall not be affected

COSTS

Subject to any express provision in this Agreement or any Statement of Work to the contrary, each party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Agreement and any Statement of Work.

 

COUNTERPARTS

This Agreement or any Statement of Work may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement or a Statement of Work, but all the counterparts shall together constitute the same agreement or Statement of Work. No counterpart shall be effective until each party has executed at least one counterpart.

 

GOVERNING LAW

This Agreement, any Statement of Work and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.

 

JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement, any Statement of Work or their subject matter or formation.

 

This Agreement has been entered into on the date stated at the beginning of it.

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