Terms and Conditions
greenstone terms and conditions
1.1 The following terms will have the following meanings:
Agency: the Customer’s agency (if any) set out in the Service Description.
Agreement: these terms and conditions, any applicable supplementary terms or agreement and the Service Description which together form the contract between greenstone and the Customer.
Business Day: any day (but excluding a Saturday or Sunday) on which the London clearing banks are open for business in the United Kingdom.
Commencement Date: the commencement date as set out in the Service Description.
Confidential Information: the terms and conditions of this Agreement, and information (including Data) that one party (the Receiving Party) has received or will receive from the other party (Disclosing Party) that is proprietary and confidential to the Disclosing Party.
Customer: the Customer named in the Service Description.
Customer Data: any Customer Material that constitutes personal data.
Customer Material: any Data or other material supplied by or on behalf of the Customer for use by greenstone in the provision of the Services.
Data: any and all data that is processed by greenstone pursuant to the Services.
Data Protection Legislation: means all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) (”GDPR”) and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).
End User: any person other than the Customer who Uses any Supplied Data pursuant to clause 14.
Fees: the fees payable to greenstone for the provision of the Services as set out in the Service Description.
greenstone: greenstone data solutions limited (company number 4811241 registered in England and Wales).
greenstone Data: any greenstone Material that constitutes personal data.
greenstone Material: all Data, deliverables, documents, reports, information and other material processed or originated by greenstone in the course of providing the Services, other than the Customer Material and Third Party Material, and including without limitation the IHHA Keys where applicable.
IHHA Keys: where applicable, greenstone’s proprietary reference keys comprising individual numbers, household numbers and address numbers, and used to link records in multiple tables within and between databases.
Inappropriate Content: any Data or other material that:
(a) is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial or religious hatred, menacing, blasphemous;
(b) infringes any applicable laws or regulations; or
(c) infringes any Intellectual Property Rights of any third party.
Initial Period: the initial period of this Agreement as set out in the Service Description or, if there is no Initial Period set out in the Service Description, the Initial Period will be three (3) months.
Intellectual Property Rights: any and all intellectual property rights arising anywhere in the world which subsist or will subsist now or in the future, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
Liability: any and all liability of greenstone in contract, tort (including, without limitation, negligence) or otherwise whether arising out of, in connection with or in relation to the Services or the supply or non-supply of the Services or otherwise under or in connection with this Agreement.
Service Description: the description of the Services, the Fees, the Commencement Date, the Initial Period (if any), the Services Levels (if any) and any other terms applicable to the Services as set out in a quotation, purchase order, statement of work, letter of engagement or other agreed document as varied between the parties in writing.
Service Levels: any service levels (if any) detailed in the Service Description.
Services: the services to be provided by greenstone to the Customer as set out in the Service Description.
Supplied Data: any greenstone Data or Third Party Data that is supplied by greenstone to the Customer pursuant to the Services, including without limitation any such data that is appended to or flagged against Customer Data.
Third Party Data: any Third Party Material that constitutes personal data.
Third Party Material: any material originated by a third party and supplied by greenstone to the Customer pursuant to the Services.
Tools: where applicable, any and all means provided by greenstone pursuant to the Services by which the Customer may interrogate or otherwise access greenstone Material, as set out in the Service Description.
Used: where applicable, in respect of any entry in Supplied Data, when a communication (including without limitation direct mail, email or SMS) is sent or a connected telephone call made to the individual or company to which the Supplied Data relates, and Use and Uses are to be interpreted accordingly.
1.2 Headings in this Agreement are inserted for convenience only and will not effect its construction.
1.3 Where appropriate words importing any gender will be deemed to include all other genders, words importing any person will be deemed to include all bodies and associates, corporate or unincorporate, and visa versa and words importing the singular will be deemed to include the plural and vice versa.
1.4 In the event of conflict between these terms, any supplementary terms or agreement and the Service Description, these terms will prevail unless the terms in the supplementary terms or agreement or Service Description are expressly stated to prevail.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.6 A reference to writing or written includes e-mail.
2 commencement and duration
This Agreement will commence on the Commencement Date and subject to termination in accordance with clause 10 or otherwise in accordance with this Agreement will continue for the Initial Period and thereafter until terminated by either party giving the other not less than three (3) month’s notice to end on or after the last day of the Initial Period.
3.1 In consideration of the Customer paying to greenstone the Fees and complying with its obligations in this Agreement, greenstone will provide the Services to the Customer in accordance with, and subject to, the terms of this Agreement.
3.2 greenstone will:
3.2.1 provide the Services with reasonable care and skill;
3.2.2 use reasonable endeavours to provide the Services in accordance with any Service Levels;
3.2.3 where included in the Services, provide security and backup procedures which at a minimum will comply with the provisions of the Data Protection Legislation in maintaining the confidentiality and security of the Data.
3.3 greenstone shall have the right, in its sole discretion, to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and greenstone shall notify the Customer in any such event.
3.4 greenstone shall use all reasonable endeavours to meet any performance dates for the Services specified in the Service Description but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.5 If the Customer postpones the performance date for the provision of the Services or greenstone’s performance of its obligations under the Agreement is otherwise prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, then except where such failure or delay is caused by a Force Majeure Event (as defined in clause 20) or by greenstone’s failure to comply with its obligations under this Agreement, the Customer shall in all circumstances be liable to pay to greenstone on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, and loss of opportunity to deploy resources elsewhere), subject to greenstone confirming such costs, charges and losses to the Customer in writing.
3.6 greenstone shall not in any circumstances be liable to the Customer:
3.6.1 for failure to provide the Services in accordance with any timetable detailed in the Service Description or otherwise;
3.6.2 for a failure or delay in providing the Services caused by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees; or
3.6.3 for a failure or delay in providing the Services caused by any act or omission of a third party.
3.7 Except as expressly set out in the Contract, greenstone:
3.7.1 does not warrant that the Customer’s use of the Services will be uninterrupted or error-free or that the and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
3.7.2 is not responsible for and gives no warranties and makes no representations in relation to the legality, reliability, integrity, accuracy and/or quality of any Data (including, but not limited to, any reports) generated in connection with the Services. For the avoidance of doubt, greenstone shall have no liability to the Customer in the event that the Customer suffers loss as a result of its reliance on such Data.
4.1 The Customer will:
4.1.1 co-operate with greenstone in all matters relating to the Services and will provide greenstone and its personnel with access to such of the Customer’s premises, facilities and equipment as greenstone may reasonably require for the provision of the Services;
4.1.2 provide greenstone in a timely manner with any assistance, information or documentation as greenstone may reasonable require in relation to the performance of the Services and ensure that such information is accurate in all material respects;
4.1.3 where applicable, only use the Supplied Data for its own marketing purposes (or as otherwise specified in the Service Description or agreed in writing by greenstone) and will ensure that it complies with all relevant legislation in relation to the use of such data;
4.1.4 be responsible for the accuracy of any Customer Material (whether supplied by the Customer or by any third party) and for ensuring that the Customer Material is provided in such format as is agreed between the parties;
4.1.5 ensure that all Customer Material is scanned for viruses or other destructive or contaminating programs or disabling devices using commercially-available anti-virus software that has been updated in accordance with good industry practice;
4.1.6 obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and the use of the Customer Material, in all cases before the date on which the Services are to start;
4.1.7 where the Customer provides or makes available to greenstone any third party software, documentation or other materials for use in relation to the Services, the Customer will ensure that it obtains and maintains all necessary licences and consents required for such use;
4.1.8 ensure that the End Users have been appropriately trained and use the Services in accordance with the terms and conditions of this Agreement and shall be solely responsible for any End User’s breach of the Agreement;
4.1.9 keep any security feature including any key, PIN, password, take or smartcard (security feature) confidential and not lend, share, transfer or otherwise misuse such security feature;
4.1.10 comply with all relevant laws and regulations as required to enable greenstone to provide the Services and the use of the Customer Material; and
4.1.11 ensure that it promptly complies with any minimum hardware configuration requirements specified by greenstone for the purposes of establishing connectivity between the Customer’s system and the Services.
4.12 If the Customer becomes aware of any misuse of the Services, including but not limited to, any Data or greenstone Material, or any security breach in connection with this Agreement that could compromise the security or integrity of the Services or otherwise adversely affect greenstone or if the Customer learns or suspects that any security feature has been revealed to or obtained by any unauthorised person:
4.12.1 the Customer shall, at the Customer’s expense, promptly notify greenstone and fully co-operate with greenstone to remedy the issue as soon as reasonably practicable; and
4.12.2 greenstone may suspend the Customer’s rights under this Agreement until the misuse or security breach or unauthorised disclosure of the security feature is remedied.
4.13 The Customer agrees to co-operate with greenstone’s reasonable security investigations.
4.14 greenstone may change security features on notice to the Customer or the End Users for security reasons.
5 QUALITY CONTROL
The Customer acknowledges that it has sole responsibility for ensuring that any Supplied Data or other material or deliverables supplied by greenstone under this Agreement complies with the requirements of the Customer, and (save as expressly set out in this Agreement) greenstone will have no Liability to the Customer in respect of any failure of any such Supplied Data, materials or deliverables to comply with those requirements.
6 NET NAMES ARRANGEMENTS
6.1 This clause 6 applies where the Services include the provision of Supplied Data that is stated in the Service Description to be provided on a “Net Names Arrangement” of a specified percentage (Maximum Deduction).
6.2 Upon receiving the Supplied Data from greenstone, the Customer may run a de-duplication against other data already held by it to establish which entries in the Supplied Data it already holds (Redundant Entries).
6.3 The Customer will (within thirty (30) days of receiving the Supplied Data from greenstone) notify greenstone in writing of the number of Redundant Entries.
6.4 Subject to the Customer complying with clause 6.3, the Customer will be entitled to reduce the price payable to greenstone for the Supplied Data by the lesser of (a) the percentage of Redundant Entries within all entries in the Supplied Data and (b) the Maximum Deduction.
6.5 The Customer will act reasonably and in good faith in exercising its rights under this clause 6, and will provide such evidence in support of its calculation of the Redundant Entries as greenstone may reasonably request.
7.1 greenstone may use the Customer Data:
7.1.1 to discharge its obligations in accordance with the Agreement;
7.1.2 to offer best practice recommendations to the Customer if applicable; and
7.1.3 for sales and marketing activity. The Customer has a right at any time to stop greenstone contacting it for sales and marketing purposes. If the Customer does not wish to receive sales and marketing material, it can contact greenstone at The Data Protection Office, greenstone data solutions ltd., Suite 1, 40 Churchill Square Business Centre, Kings Hill, West Malling, Kent ME19 4YU].
7.2 The Customer or its licensors shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
7.3 If greenstone on its own or through any third party has notice that Customer Data stored by the Customer or its Users is in breach of a law or infringes third party rights, greenstone may in its discretion without liability to the Customer or its Users and without prior notice, immediately suspend the Customer’s access to the Services and the Customer Data. greenstone shall notify the Customer of such action as soon as reasonably practicable.
7.4 Except to the extent otherwise provided in this Agreement, greenstone shall not have any liability for any loss or damage of Customer Data nor for the unreliability or any inaccuracies of such Customer Data and in the event of any loss, damage, unreliability or inaccuracy to Customer Data, the Customer’s sole and exclusive remedy shall be for greenstone to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by greenstone or the third parties that it works with in order to provide the Services. greenstone shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
8 DATA USAGE
This clause 8 applies where the Services include the provision of Supplied Data. Except where the Service Description states otherwise, all Supplied Data is provided on a single-use basis, which means that the Supplied Data can only be Used once.
9.1 In consideration of greenstone agreeing to provide the Services and comply with its other obligations under this Agreement, the Customer will pay to greenstone the Fees.
9.2 Where a price has been quoted, this is a best estimate based on the information given to greenstone by the Customer and/or which is available at that time and may be based on a number of assumptions. If it materialises that in greenstone’s reasonable opinion, the information provided and/or assumptions made are incorrect, inaccurate or have changed and/or that the proposed scope of Services is not feasible, greenstone shall be entitled to charge the Customer for any additional Services provided and/or additional Users to those detailed in the Service Description together with all related costs and expenses incurred by greenstone.
9.3 Except as set out in the Service Description or as otherwise agreed in writing, the Fees will be invoiced by greenstone:
9.3.1 as regards any fixed or recurring Fees: monthly in advance; and
9.3.2 as regards any other Fees: monthly in arrears.
9.4 All Fees are exclusive of value added taxes and disbursements which will be added to invoices at the standard rate.
9.5 Except as set out in the Service Description or as otherwise agreed in writing, all sums due under this Agreement:
9.5.1 will be paid within thirty (30) days of the date of the relevant invoice.
9.5.2 will be paid in pounds sterling by electronic transfer to greenstone’s bank account as notified to the Customer from time to time.
9.6 If any sum due from the Customer to greenstone under this Agreement is not paid by the due date for that sum then (without prejudice to any other rights and remedies available to greenstone) greenstone reserves the right:
9.6.1 to charge, and the Customer agrees to pay, interest and compensation in respect of such sum on a day to day basis at the rates specified from time to time under the Late Payment of Commercial Debts (Interest) Act 1998 from the date when payment became due until the date on which payment has been received together with any interest which has accrued under this clause 9.6, together with greenstone’s legal, administrative and enforcement costs in respect of such overdue sums on an indemnity basis; and/or
9.6.2 if such sum is more than seven (7) days overdue for payment, to suspend the provision of the Services until all such sums are paid in full.
9.7 All amounts payable under this Agreement will be paid in full without set-off, deduction or other withholding of any amount which may be due to the Customer. If any such amount is subject to withholding or other taxes, the Customer will ensure that such sum is paid to greenstone as will, after deduction of such withholding or other tax, be equivalent to the amount otherwise payable under this Agreement.
9.8 greenstone may revise the Fees at any time by giving by not less than thirty (30) days prior notice in writing to the Customer.
9.9 All payments payable to greenstone under the Agreement shall become due immediately on termination of the Agreement, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under the Agreement.
9.10 Time for payment shall be of the essence of the Agreement.
10.1 greenstone may terminate this Agreement immediately by notice in writing to the Customer if any amount payable by the Customer under this Agreement remains outstanding more than thirty (30) days after the due date for that amount.
10.2 Either party may terminate this Agreement immediately by notice in writing to the other party for any of the following reasons:
10.2.1 upon a material breach by the other party of any part of this Agreement (other than non-payment) which is incapable of remedy or which, if capable of remedy, is not remedied within thirty (30) days of the defaulting party receiving notice of such breach from the non-defaulting party;
10.2.2 upon an order or resolution being made for the purposes of liquidation or winding-up of the other party (save for the purposes of solvent voluntary reconstruction or amalgamation);
10.2.3 upon the other party becoming subject to an administration order or a receiver or administrative receiver is appointed over or an encumbrancer takes possession of any of the other party’s property or equipment; or
10.2.4 the other party ceases or threatens to cease to carry on business.
11.1 Upon termination of this Agreement:
11.1.1 the licences granted by each party under this Agreement will terminate immediately, save to the extent necessary for each party to fulfil its obligations under this clause 11; and
11.1.2 the Customer will pay greenstone all outstanding invoices and greenstone will be entitled to raise an invoice for any Services provided prior to termination in respect of which an invoice has not been raised and such invoice will be payable immediately upon receipt.
11.2 Without limitation to clause 11.1, the Customer will (and will procure that the Agency will) immediately cease using any Supplied Data and any greenstone Materials and will ensure that all Supplied Data and greenstone Materials are deleted from the systems of the Customer and the Agency.
11.3 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, shall remain in full force and effect including, but not limited to, 1, 11, 12, 16, 18, 21, 23 and 24 along with any other provision of this Agreement whose survival is necessary to give effect to that provision.
11.4 Termination or expiry of this Agreement at any time for any reason will be without prejudice to any rights or liabilities of either party that have accrued up to and including such termination.
12.1.1 personal injury or death caused by its negligence; or
12.1.2 fraudulent misrepresentation; or
12.1.3 any other matter in respect of which it would be unlawful for greenstone to exclude or restrict liability.
12.2 greenstone’s Liability for loss or damage to any tangible property caused by the negligence of greenstone’s employees will be limited to a maximum amount of one million pounds (£1,000,000) per event or series of connected events.
12.3 Subject to clause 12.1, greenstone will have no Liability for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise):
12.3.1 loss of revenue, loss of actual or anticipated profits (including for loss of profits on contracts), loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data; or
12.3.2 any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, whether or not such loss or damage is of a type specified in clause 12.3.1).
12.4 Subject to clauses 12.1 to 12.3 above, greenstone’s total Liability for any one claim or series of connected claims will be limited to an amount equal to the total amounts paid or payable by the Customer in the period of three (3) months ending on the date that claim (or first in the series of connected claims, as the case may be) arises or twenty five thousand pounds (£25,000) whichever is the greater.
12.5 The Customer acknowledges that it has assessed for itself the suitability of the Services for its requirements, and (for the avoidance of doubt) greenstone does not warrant that the Services will meet such requirements.
12.6 The warranties and conditions stated in this Agreement replace all other warranties, conditions or other terms, whether express or implied, statutory or otherwise, all of which are expressly excluded, including, without limitation, any implied warranties or conditions as to satisfactory quality, fitness for a particular purpose or as to the use of reasonable skill and care.
13.1 The Customer (or its licensors, as the case may be) will retain all the Intellectual Property Rights in Customer Material, save to the extent any Customer Material incorporates any greenstone Material.
13.2 greenstone (or its licensors, as the case may be) will own all the Intellectual Property Rights in all greenstone Material and Supplied Data, including without limitation all such greenstone Material and Supplied Data as appended to or flagged against any Customer Material.
13.3 The Customer grants greenstone a personal, non-transferable, non-exclusive and royalty-free licence to process and otherwise use the Customer Material for the purposes of providing the Services.
13.4 Subject to clause 14, greenstone grants the Customer a personal, non-transferable, non-exclusive, revocable and royalty-free licence to process and otherwise use the greenstone Material in accordance with this Agreement using the Tools (and to use the Tools for this purpose) or to otherwise use the greenstone Material which has been created by greenstone for the Client as part of the Services, to the extent that such use is necessary to enable the Client to make reasonable use of the Services in accordance with this Agreement.
13.5 Except as expressly provided in this Agreement, the Customer shall not:
13.5.1use the Services (wholly or in part) in its products or services; or
13.5.2redistribute the Services (wholly or in part).
13.6 The Customer agrees to comply with any additional licensing requirements notified to it in respect of Third Party Material supplied to it by greenstone.
13.7 Without limitation to any of greenstone’s other rights whether under this Agreement or otherwise, the Customer will not:
13.7.1 exceed any usage limits for Supplied Data set out in the Service Description;
13.7.2 subject to clause 14, resell or allow any Supplied Data to be resold for any purpose;
13.7.3 make any copies of the IHHA Keys without the express written consent of greenstone, other than through reasonable use of the Tools for the purpose for which those Tools are provided;
13.7.4 use its access to the IHHA Keys in order to recreate (or enable or assist any third party to recreate) the whole or any part of the IHHA Keys or the database structures underlying the IHHA Keys, or to attempt to do so;
13.7.5 use, or allow any other person to use, the IHHA Keys for any purpose other than pursuant to this Agreement, including without limitation any use in relation to the supply by any other person of any other services to the Customer.
13.8 The Customer acknowledges that the IHHA Keys are critical proprietary information for greenstone, and the Customer agrees that any breach of the provisions of clause 13.7, and any other infringement by the Customer (or by any third party granted access to the greenstone Material by the Customer) of the Intellectual Property Rights in the IHHA Keys, will constitute a fundamental breach of this Agreement by the Customer that will be deemed to be incapable of remedy for the purposes of clause 10.2.
14 END USERS
14.1 The Customer will not allow any third party to Use the Supplied Data unless the Service Description states that the Customer is entitled to supply the Supplied Data to an End User or End Users.
14.2 If any unauthorised use is made of the Services and such use is attributable to the act or default of, or through, the Customer or any End User then, without prejudice to greenstone’s other rights and remedies:
14.2.1 the Customer shall immediately be liable to pay greenstone an amount equal to the Fees that greenstone would have charged, had greenstone or the Customer (as the case may be) authorised the unauthorised user at the beginning of the period of that unauthorised use together with interest at the rate provided for in clause 9.6.1 from the date of that unauthorised use to the date of payment; and
14.2.1 greenstone may require the Customer to discontinue the supply of the Services to a third party reasonably suspected by greenstone of that unauthorised use or breach.
14.3 The Customer will ensure that each End User complies strictly with all obligations of the Customer under this Agreement (other than the Customer’s obligation to pay the Fees).
14.4 The Customer will be liable for all acts or omissions of an End User as if they were the acts or omissions of the Customer.
15.1 Where the Agency is a party to this Agreement:
15.1.1 the Agency will comply with the terms of this Agreement as if references to the Customer were references to the Agency. All obligations on the Agency and the Customer under this Agreement will be joint and several; and
15.1.2 the Agency acknowledges and accepts that any data provided to it under this Agreement is being provided for use by the Agency in relation to the Customer. The Agency will not be permitted to use any data provided by greenstone for its own internal business purposes or for the purposes of providing any services to any customer other than the Customer.
15.2 Whether or not the Agency is a party to this Agreement, the Customer will procure that the Agency complies with all obligations of the Customer or of the Agency under this Agreement, and will indemnify greenstone and keep greenstone indemnified in respect of any breach by the Agency of any such obligations.
15.3 The Customer will not supply any Supplied Data to any third party (including without limitation any agency of the Customer not named in the Service Description) without greenstone’s prior written consent.
16.1 The Customer agrees to indemnify and keep indemnified greenstone from and against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation any direct or indirect consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) arising out of or in connection with any claim that any the Customer Material contains or comprises Inappropriate Content.
16.2 Subject to clause 16.3, greenstone agrees to indemnify and keep indemnified the Customer from and against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation any direct or indirect consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) arising out of or in connection with any claim that any greenstone Material contains or comprises Inappropriate Content.
16.3 greenstone shall not have any liability for any claim of infringement of Intellectual Property Rights of any third party to the extent that such claim is caused or contributed to by: (a) the Customer’s use of the greenstone Material in combination with any software or materials not supplied or approved in writing by greenstone; or (b) any feature of the greenstone Material which is designed or specified by the Customer.
The Customer will maintain records sufficient to demonstrate its compliance with its obligations under this Agreement, and will permit (and procure that its Agency and End Users permit) greenstone or its licensors or its or their authorised representatives to have access to such records and to any premises where Supplied Data or greenstone Material is stored or used and to any hardware or software used in connection with the Supplied Data to the extent necessary to ensure the Customer’s compliance with the terms of this Agreement.
18.1 Each party will keep confidential and will ensure that its employees and sub-contractors keep confidential and will not (except as expressly authorised by the other party) use or disclose or attempt to use or disclose the others’ Confidential Information which comes to the knowledge of any party during this Agreement. Each party undertakes to the others that any sub-contractors engaged by it in relation to the Services to be provided under this Agreement will first enter into obligations of confidentiality on no less onerous terms than those specified in this clause.
18.2 The restriction contained in clause 18.1 will apply both during and after the term of this Agreement but will not apply to information or knowledge which:
18.2.1 has in its entirety become public knowledge otherwise than through any unauthorised disclosure or other breach of such restriction;
18.2.2 has already come into the possession of a party from an independent third party without breach of any obligation of confidentiality; or
18.2.3 the party whose Confidential Information it is has consented in writing to being disclosed.
18.3 Nothing in this Agreement will restrict disclosure:
18.3.1 to third parties to the extent necessary to comply with legal, accounting or regulatory requirements; or
18.3.2 to the professional advisers of the parties in connection with the interpretation and operation of this Agreement and any dispute arising therefrom.
18.4 The provisions of this clause 18 replace any existing non-disclosure undertakings between the parties, any and all of which are hereby terminated.
19.2 The terms “data subject”, “data controller”, “data processor”, “processing”, and “personal data” bear the respective meanings given them in the Data Protection Legislation.
19.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation (the General Obligations).
19.4 Without prejudice to the General Obligations, if greenstone processes any Customer Data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and greenstone shall be a data processor.
19.5 Without prejudice to the General Obligations:
19.5.1 the Customer will ensure that it has all necessary appropriate consents and notices in place as required by the Data Protection Legislation to enable the lawful transfer of Customer Data to greenstone and third parties that greenstone works with to provide the Services for the duration and purposes of this Agreement, so that greenstone and the third parties greenstone works with may lawfully use, process, store and transfer the Customer Data in accordance with this Agreement on the Customer’s behalf; and
19.5.2 the Customer acknowledges that the processing, transferring and storage of the Customer Data is necessary to enable greenstone to provide the Services in accordance with this Agreement.
19.6 Without prejudice to the General Obligations, greenstone shall in relation to any Customer Data processed in connection with the performance by greenstone of its obligations under this Agreement:
19.6.1 process the Customer Data only in accordance with this Agreement and on any written instructions of the Customer, unless greenstone is required by the laws of any member of the European Union or by the laws of the European Union applicable to greenstone to process personal data (“Applicable Laws”). Where greenstone is relying on laws of a member of the European Union or European Union law as the basis for processing personal data, greenstone shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit greenstone from so notifying the Customer;
19.6.2 shall only transfer any Customer Data outside of the European Economic Area under the following conditions:
(i) greenstone is processing Customer Data in a territory which is subject to a current finding by the European Commission under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals; or
(ii) greenstone participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that greenstone (and, where appropriate, the Customer) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the GDPR; or
(iii) the transfer otherwise complies with the Data Protection Legislation;
19.6.3 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Customer Data and against accidental loss or destruction of, or damage to, Customer 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 Customer Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Customer 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);
19.6.4 ensure that access to the Customer Data to meet greenstone’s obligations under this Agreement is limited to those personnel or authorised sub contractors who need access to and/or process Customer Data to meet greenstone’s obligations under this Agreement and that such personnel or authorised sub contractors are obliged to keep the Customer Data confidential;
19.6.5 ensure that all personnel or authorised sub contractors who have access to and/or process Customer Data do so only in accordance with this Agreement and any the instructions from the Customer for such processing;
19.6.6 assist the Customer 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;
19.6.7 allow for and contribute to audits (at the Customer’s cost), including, inspections, conducted by the Customer or another auditor mandated by the Customer regarding compliance with the Data Protection Legislation;
19.6.8 notify the Customer without undue delay on becoming aware of a Customer Data breach;
19.6.9 at the written direction of the Customer, delete or return Customer Data and copies thereof to the Customer on termination of this Agreement unless required by Applicable Law to store the Customer Data; and
19.6.10 inform the Customer immediately if, in greenstone’s opinion, any instruction given to it by the Customer infringes Data Protection Legislation,
19.7 greenstone shall maintain complete and accurate records and information to demonstrate its compliance with greenstone’s Commitments and make them available to the Customer on demand.
19.8 greenstone shall keep such records as necessary to comply with Articles 30(2) and 30(3) (ignoring Article 30(5)) of the GDPR.
19.10 greenstone may, at any time on not less than thirty (30) days’ notice, revise this clause 19 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme which shall apply when replaced by attachment to this Agreement.
20.1 Neither party will be liable to the other for a failure or delay in the performance of any of its obligations hereunder (other than any obligation to pay money) for any period and to the extent that such party is prevented from performing any of its obligations hereunder arising in whole or in part from an act of God, strikes (save for a strike involving its own personnel), unavoidable accidents or circumstances outside of the party’s control, laws, rules, regulations or orders of any national or municipal or other governmental body, acts of war or terrorism, or civil disturbance (a Force Majeure Event)
20.2 Upon either party becoming affected by a Force Majeure Event, that party will notify the other in writing immediately of that Force Majeure Event and provide all relevant information pertaining to the Force Majeure Event, followed by written notice of when the Force Majeure Event has ceased.
20.3 In the event that the Force Majeure Event subsists for a period of more than three (3) months, either party may terminate this Agreement by notice in writing.
21.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then, except as expressly provided in this Agreement, the parties will follow the dispute resolution procedure set out in this clause:
21.1.1 either party will give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documentation. On service of the Dispute Notice a representative of greenstone and a representative of the Customer (each of whom have knowledge of the Services) will attempt in good faith to resolve the Dispute;
21.1.2 if the representatives of the parties are for any reason unable to resolve the Dispute within fourteen (14) days of service of the Dispute Notice, the Dispute will be referred to a director of greenstone and a director of the Customer who will attempt in good faith to resolve it.
22.1 Any notice given under this Agreement will be in writing and will be served by one of the following methods:
22.1.1 delivering it personally;
22.1.2 sending it by registered first-class post or by registered airmail; or
22.1.3 subject to clause 22.4, by email
to the address of the relevant party set out in the Service Description (or as otherwise notified by that party to the other party in writing from time to time).
22.2 Subject to clause 22.3, any such notice or other communication will be deemed to have been received:
22.2.1 if delivered personally, at the time of delivery;
22.2.2 in the case of registered first-class post, forty eight (48) hours from the time of posting;
22.2.3 in the case of registered airmail, seventy two (72) hours from the time of posting; or
22.2.4 in the case of email, twelve hours after sending.
22.3 If deemed receipt under clause 22.2 occurs other than between the hours of 9am and 5pm (at the recipient’s local time) on a Business Day, then the notice will be deemed to be received at 9am on the next Business Day.
22.4 Notice under the following clauses may not be validly given by email: 10, 20.
22.5 Notice under this Agreement may not be validly given by fax.
Neither party will (except with the prior written consent of the other) during the term of this Agreement, and for a period of one (1) year thereafter, solicit the services of any staff of the other party who has been engaged in the provision of the Services or the management of this Agreement or any significant part thereof either as principal, agent, employee, independent contractor or any other form of employment or engagement other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of the other party.
24.1 Assignment and Sub-Contracting
Neither party will assign, transfer or sub-license this Agreement in whole or in part without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. greenstone may sub-contract the provision of the Services to a consultant or other contractor of greenstone.
The failure of either party to enforce or to exercise any term of this Agreement does not constitute a waiver of such term and will in no way affect that party’s right later to enforce or to exercise it.
24.3 Entire Agreement
This Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.
24.4.1 If any provision of this Agreement will be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of this Agreement which will remain in full force and effect.
24.4.2 If any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question will apply with such modification(s) as may be necessary to make it valid and enforceable.
24.5 No Partnership
Nothing in this Agreement is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
No variation of, or amendment to, this Agreement will bind either party unless made in writing and signed by an authorised representative of each party.
24.7 Third Party Rights
No term of this Agreement will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.
24.8 Governing Law and Jurisdiction
The construction, validity and performance of this Agreement will be governed by English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts.