Now it is agreed as follows –
Base Data: The data fields chosen by The Client during set up of their CPO Campaign. These must be chosen on the basis that they are needed to fulfill the request of the user (data subject) and that the user would reasonably accept this data to be processed to fulfill the request.
Client Data: Qualifying Opted in records containing the Base Data and answers to the creative design questions supplied by the client. Approved by TDP.
Publisher Network: A network of website authorised by THE DATAPLATFORM to deliver and promote the clients CPO Campaig
Creative design: A question, or group of questions, each question or group of questions placed on the Publisher Network on behalf of the Client;
CPO Campaign: The creative and campaign details selected by the client to collect opt-in records.
The Client: The Company/individual who set up the account – conduction CPO Marketing on the publisher network.
Data: Any data provided to the Client pursuant to this agreement (whether Base Data, Client Data or otherwise) which consists of information relating to a Data Subject however presented whether comprising names, addresses, telephone or fax numbers, email addresses or reference numbers. An identifiable person, for these purposes, is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his identity;
Data Requirements: The data requirement for qualifying opted in records as specified by the Client during the set-up of the campaign.
Data Subject: An identified or identifiable natural living person;
Partners: Third parties contracted by dmri/TDP to fulfill (or help fulfil) a campaign.
Qualifying Criteria: The basis on which TDP will determine which records will be classed as Qualifying Leads and passed through as Client Data;
Qualifying Leads: Details of individuals who have responded to the creative design and who satisfy the Qualifying Criteria
User: Any User who registers with the publisher Network
Term: As defined in section 2.
1.2.1. The headings to the clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
This agreement shall commence upon the creation of account by the client and shall continue thereafter until terminated in accordance with clause 9. TDP and the Client agree to be bound by the Terms and Condition of this Agreement
3.1. For each Creative Design submission subject to approval from the publisher, display the [Qualifying Criteria] as set out in the Creative Design set up, on the Publisher Network until the earlier of: (a) The date upon which the number of Qualifying Leads has been received by TDP; (b) The date specified in the Order or (C) The budget has been reached.
3.2. Provide to the Client, in a timely fashion thereafter, all Client Data
3.3. Provide to the Client each month a summary for its charges and a count of all Qualifying Leads
3.4. Warrant that it will comply with the Data Protection Act 1998 and all other regulations and legislations governing TDP’s use and handling of personal data pursuant to this Agreement
3.5. The publisher shall be entitled to select (at its sole discretion) which creative designs to promote across their website. TDP retains the right (at its sole discretion) to refuse to include all or any part of the Client’s creative design in any circumstances and/or withdraw all or any part of a Client’s creative design
3.6. The Client acknowledges that TDP is under no obligation to supply a minimum number of Qualifying Leads or any other kind of data either under this agreement or otherwise. Whilst TDP aim to provide the Client Data within the Timescale, if the requested number of records is not achieved, the creative design will remain on the publisher Network until the requested number of records is fulfilled, the date specified in the agreement has elapsed, or the budget has been reached. whichever is sooner. If the requested number of records is fulfilled before the end of the Timescale, the Client will be notified and will have the option to continue to receive further records which additional records shall be paid for at the Cost per opt-in set out in the campaign details.
3.7. TDP reserve the right to use the Client’s logo, promotional material and to publish case studies relating to its activities pursuant to this Agreement for TDP’s promotional purposes.
3.8. Once an individual has opted in to receive information from the client and the data is transferred. Then the client is the data controller and must act in accordance with all areas of law (UK) when processing and communicating with the data.
3.10. TDP reserves the right to change and/or refuse to use any wording and/or imagery supplied by the Client in connection with the Services where it believes such wording and/or imagery provided is in breach of this Agreement or is otherwise inappropriate. Notification of any such changes will be made to the Client.
3.11. TDP undertakes regular personal and company checks and can refuse services to individual or company without giving reason at any time.
The Client will:
4.1. Pay for all Qualifying Leads and all Client Data and for any or all other services supplied by TDP pursuant to this Agreement in accordance with clause
4.2. Act as data controller in respect of the Client Data and throughout the Term, will comply with all relevant provisions of the Data Protection Act 1998 (“the Act”) and of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“the Privacy Regulations”) General data Protection Guidance ( GDPR) and all other current governing legislation. Withoutlimiting the foregoing, the Client will:
(a) Obtain any necessary consent of any Data Subject to the transfer of the Data to any jurisdiction outside the United Kingdom;
(b) Promptly provide all necessary notifications to the Data Subjects informing them of itsprocessinof theData as data controller;
(c) Have in place appropriate technical and organisational measures to protect the Client Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and which provide a level of security appropriate to the risk represented by the Client’s proposed use of the Client Data (which shall remain at all times within the permitted use as provided in Clause 4.2(d); and
(d) Use the Client Data only to contact the Users for marketing purposes where the permission of the User has been given for such purposes and for the Client’s own internal research purposes;
(e) Comply with any marketing preferences of the Data Subjects as notified by TDP to the Client from time to time and provide the Data Subjects with the opportunity to object to the receipt of any subsequent marketing communications
4.2.1. endeavor to comply with all applicable guidelines and current best practices -including but not limited to the ICO’s Electronic Communications Guidance, the British Code of Advertising Practice, the ICSTIS Code and the British Code of Sales Promotion Practice (as appropriate).
4.3. The Client warrants and undertakes that:
(a) The Client will have in place procedures so that any third party whom the Client authorises to have access to the Client Data, including processors, will respect and maintain the confidentiality and security of the Client Data;
(b) The Client will use the Client Data solely for the permitted use as provided in Clause 4.2(d) of this agreement;
(c) It will identify to TDP a contact person within its organisation authorised to respond to enquiries concerning processing of the Client Data and will cooperate in good faith with (1) TDP, (2) the Data Subject; and (3) the Office of the Information Commissioner, concerning all such enquiries within a reasonable time;
(d) Upon TDP’s reasonable request, the Client will submit its Client Data processing facilities, Client Data files and documentation needed for processing to reviewing, auditing and/or certifying by TDP (or any independent or impartial inspection agents or auditors, selected by TDP and not reasonably objected to by the Client) to ascertain compliance with the obligations, warranties and undertaking in this Clause 4, with reasonable notice and during regular business hours;
(e) Upon TDP’s reasonable request, the Client will cooperate as requested by TDP with any exercise of rights by a Data Subject under the Act in respect of Client Data processed by the Client under this Agreement or comply with any assessment, enquiry, notice or investigation by the Office of the Information Commissioner (in request of the said processing) which shall include the provision of all Client Data requested by TDP within the timescale reasonably specified by TDP in each case to enable TDP to comply with any timescale imposed on TDP by the Office of the information Commissioner; and
(f) It has full authority to give the warranties and fulfil the undertakings set out in this clause.
(g) It will reasonably notify TDP of any changes to the Client company or purpose of contacting Data records.
4.4. The Client will:
(a) Keep TDP fully and effectually indemnified against any and all losses, claims and demands arising from its breach of regulation or failure to comply with any legislation or any term of this Agreement.
(b) Not assign, transfer, give, license, resell, or otherwise part with possession of any Client dat[owned by TDP and partners or data owned by TDP and the Client jointly].
(c) Ensure all technical aspects required for delivery of Client Data will be set-up in line with TDP’s reasonable requests. An unreasonable level of rejections will be investigated by TDP. Any Client Data which in the reasonable opinion of TDP unreasonably rejected will still be liable for payment.
(d) Acknowledges that it has no right to any data acquired by TDP that has not been acquired in connection with the Client's creative design and related Qualifying Lead.
4.5. The Client undertakes that it will not work and will procure that none of its Associates will procure services from a source introduced to the Client by TDP via ‘The Publisher Network’ or ‘The Data Platform’’ during the term of this agreement and for a period of 12 months following its termination, which services are the same as or similar to the services which the Client has previously acquired from TDP
4.6. The Client accepts and acknowledges that the Data maybe include any number of seeded control entries to allow TDP to track subsequent use and misuse of the Data
4.7. The Client acknowledges that TDP cannot control or guarantee the number of consumer registrations and may therefore from time to time collect more or less than the quantity of Data specified in thecontract. Unless and until the Client gives TDP not less than 10 working days’ notice to the contrary, TDP may supply Data to the Client in excess of or less than the amount of Data specified in the Contract. and the Client undertakes that it shall pay TDP Fees (to be calculated pro-rata with the Fees) in respect of all Data so supplied.
5.1. The Client is entitled to use the Client Data under the strict terms of this Agreement and by express license only
The Client will pay for all data and services in advance.
7.1. TDP does not warrant that the Client Data will be fit for any particular purpose.
7.2. Except as expressly stated in these terms and conditions, all conditions, warranties, terms, stipulations and other statements whatsoever (except as to title to goods) that would otherwise be implied or imposed by statute, at common law, by a course of dealing or otherwise howsoever are excluded to the fullest extent permitted by law.
7.3. The Client hereby undertake to indemnify and keep TDP and its Publishers indemnified with respect to any liabilities, losses, damages, fines, penalties, expenses (including reasonable legal expenses) or claims whatsoever arising or incurred by TDP and/or its Publishers as a result of any breach by the Client of the Client’s obligations hereunder or arising out of any use by the Client of the Client Data (except to the extent arising as a direct result of any breach of TDP’s obligations hereunder).
7.4. The Client Data is supplied from the publisher network via TDP. Accordingly, TDP do not guarantee the correctness or accuracy of the Client Data and TDP shall have no liability to the Client for any error therein or omissions there from for Qualified Leads delivered. TDP will not be responsible for any client data sourced directly through the clients own suppliers.
7.5. TDP shall not be liable to the Client for any loss or damage whatsoever or howsoever caused, whether direct, indirect, consequential or economic loss (including loss of profit, business, revenue, goodwill or anticipated savings or other economic loss or damage) arising from:
7.5.1. Any inaccuracy of or errors or defects in the whole or any part of the Data or any use of or
reliance upon any of them, in whole or in part, and, in particular (but without prejudice to the general nature of the foregoing), TDP shall not be liable to the Client in respect of any Data which have not been correctly De-Duped provided that no such Data shall be counted towards the Total Quantity.
7.6. TDP wish to limit their financial liability to the clients on reasonable commercial terms and agree (save as otherwise provided in this agreement) that the maximum in respect of any breach of this agreement (whether a breach of condition or warranty) will not exceed the amount of the fees paid by the Client pursuant to this Agreement in the 12 months immediately preceding the date of notification of the relevant claim or the date of determination of the relevant claim (whichever is the lower).
7.7. Neither party will be liable for any consequential, economic, or indirect or special loss not within the reasonable contemplation of either of them at the date of this agreement, nor for any loss of business or profits.
7.8. TDP reserves the right to use, and permit the use of, the Data for any purpose.
8.1. This Agreement may be terminated by either party in writing forthwith:
(a) If the other commits a material breach of any term of this contract and which (in the case of a breach which is capable of being remedied) shall not have been remedied within fourteen days of a written request to remedy same.
(b) If an order is made for the winding up of the other party or for the appointment of an administrator or if a receiver is appointed over any of the other party’s assets or undertaking or if the other party takes or suffers any similar or analogous action in consequence of debt.
8.2. If no funds are available TDP has the right to remove the CPO campaign from the publisher network.
8.3. Any termination of this Agreement howsoever occasioned shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force after such termination.
8.4. Clauses 4 shall continue to apply notwithstanding termination or expiry of this Agreement.
8.5. The Client may terminate this Agreement or the Services at any time. This can take upto 5 working days to take effect.
9.1. Neither party shall be entitled to assign this Agreement or any right or rights hereunder without the prior written consent of the other party.
9.2. This Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorized representative of each of the parties.
9.3. TDP makes no guarantee that either its own websites, the data Platform, or any of the publisher websites relevant to the Services will be accessible at any given times
10.1. The obligations of each party under this Agreement shall be suspended during the period and to the extent that such party is prevented from complying therewith by any cause beyond its reasonable control.
10.2. Any party whose obligations have been suspended as aforesaid shall resume the performance of such obligations as soon as reasonably possible after the removal of the cause and shall notify the other party. In the event that such cause continues for more than two weeks either party may terminate immediately this Agreement on expiry of one week’s prior written notice.
All notices which are required to be given shall be in writing and shall be sent to the address of the recipient set out at the start of this Agreement or such other address in the United Kingdom as the recipient may designate by notice given in accordance with the provisions of this clause. Any such notice may be delivered personally or by recorded first class pre-paid letter, e-mail or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by recorded first class post forty-eight hours after posting and if by e-mail or facsimile transmission when dispatched.
This agreement shall be governed by and construed in accordance with English law and each party hereby irrevocably submits to the exclusive jurisdiction of the English courts.