1. Term

1.1. This Agreement begins on the date specified in the Statement of Work and shall continue until the earlier of:

1.1.1. the Services and Deliverables have been completed;

1.1.2 it is terminated by either party serving on the other not less than 90 days’ prior written notice of termination; or

1.1.3. it is terminated in accordance with clause 12.

2. The Services

2.1. You appoint us to carry out and we agree to provide the Services and Deliverables in the Territory during the Term in accordance with this Agreement.

2.2. We will;

2.2.1. provide the Services and Deliverables in accordance with this Agreement; and

2.2.2. use all reasonable care and skill in the performance and delivery of the Services and Deliverables.

2.3. You will promptly provide all information, approvals, and instructions that we reasonably request.

3. Unfulfilled assumptions and delays

3.1. Our ability to perform the Services or provide the Deliverables specified in the Statement of Work may depend on the fulfilment of assumptions, dependencies, and responsibilities by you described in the Statement of Work.

3.2. In the event of any unmet dependency, incorrect assumption or other failure of/by you to meet a responsibility that impairs the performance of the Services or provision of the Deliverables, then;

3.2.1. we will not be liable for failure to perform our corresponding responsibilities:

3.2.2. you will reimburse us for any charges, Third Party Costs and or Expenses incurred by us to which we are committed, or which are imposed on us by third parties arising from your failure; and

3.2.3. you shall also pay for our time to the date of failure as stated in the Statement of Work, or at our standard rates covering the Services and Deliverables, which also includes our time managing your failure.

4. Amendments

4.1. At any time you may request an amendment to a Statement of Work.

4.2. We will take reasonable steps to comply with any request made under clause 4.1, provided that we are able to do so within our contractual obligations to third party suppliers, which will be recorded as a variation to this Agreement in accordance with clause 14.4.

4.3. In the event of any such amendment in accordance with clause 4.1;

4.3.1. you will reimburse us for any charges, Third Party Costs and or Expenses incurred by us to which we are committed or which are imposed on us by third parties arising from the amendment; and

4.3.2. you shall also pay for our time as stated in the Statement of Work and if not stated, at our standard rates covering the amended Services and Deliverables.

5. Approvals and acceptance

5.1. Any reference in this Agreement to your “approval” shall mean approval signified by:

5.1.1. any letter, proposal, statement of Work or purchase order from you bearing (a wet or electronic) signature on your behalf;

5.1.2. an email emanating from one of your business email addresses providing such approval; or

5.1.3. oral approval given by you provided this is in circumstances where time does not permit written approval and the said oral approval is confirmed within one working day by either a letter, e-mail, purchase order or statement of work.

5.2. Notwithstanding clause 5.3 below, and unless otherwise specified in the Statement of Work, the sole acceptance criteria for any Services or Deliverables shall be that they conform to the specifications and descriptions set forth in the Statement of Work. Services and Deliverables shall be deemed accepted unless rejected by you in writing within three (3) working days, or regardless of any formal acceptance procedure, if used by you for commercial purposes.  We shall have the opportunity to correct and resubmit any rejected Deliverables to you for further acceptance review. 

5.3. Your approval of copy, layouts, artwork, storyboards, scripts and/or mailing lists will be our approval to prepare proofs. Your approval of proofs and/or mailing lists will be our authority to publish and/or mail.

6. Third Parties

6.1. We will secure your approval prior to incurring Third Party Costs and Expenses.

6.2. Notwithstanding clause 7.6, your approval of Third party Costs and Expenses will be our authority to incur such costs on your behalf.

6.3. Prior to delivery of the Deliverables, we shall obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that you can use such Third Party Material in the Territory for the purpose set out in the Statement of Work. We shall notify you of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Material, and you agree to be liable for any losses suffered by us as result of you breaching any such restrictions.

7. Fees, Costs & Terms of payment

7.1. In consideration of our performance of the Services and delivery of the Deliverables, you shall pay the Fees.

7.2. In the absence of a Fees schedule in the Statement of Work;

7.2.1. the Fees payable shall be based on time spent multiplied by the hourly rate; and

7.2.2. 50% of the Fees will be invoiced on agreement of the Statement of Work; 25% of the Fees will be invoiced mid-way through the provision of the Services and Deliverables; and the remaining 25% of the Fees will be invoiced on acceptance of the Services and Deliverables.

7.3. Payment of the Fees will be made within thirty (30) days of the date of invoice.

7.4. We will invoice you in respect of Expenses, such invoices to be paid within 30 days of the date of invoice.

7.5. We will invoice you for all agreed Third Party Costs and you will pay us in advance for all agreed Third Party Costs.

7.6. We will not engage any third parties in respect of Third Party Costs prior to the receipt of cleared funds in respect of such Third Party Costs.

7.7. We reserve the right to charge interest on all invoices properly payable which are not paid by the relevant due date at the annual rate of three (3) per cent above the base rate from time to time of Barclays Bank plc. Such interest will accrue on a daily basis from the date on which payment became overdue up to the date on which we receive the full outstanding amount together with all accrued interest, provided that the rate charged to client will not be higher than the maximum rate allowable under applicable law.

7.8. We reserve the right to withhold further delivery of Services and/or Deliverables under the Statement of Work until payment in full has been received from you in the event of invoices presented to you not being paid by the relevant due date.

7.9. Each party shall pay all monies which are payable by it to the other without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party.

7.10. Unless otherwise stated in the Statement of Work, all Fees and other costs stated are in pounds sterling (GBP£) and exclusive of VAT.

7.11. The cost to us of materials or services purchased overseas for the supply of the Services and Deliverables may be more or less than the cost anticipated at the date when we ordered the relevant materials or services, (or obtained your approval for such costs) as a result of fluctuations in the rate of currency exchange. If so, we will charge you at the rate of currency exchange we are charged for the relevant materials or services.

7.12. Title to Deliverables will pass to you on payment for those Deliverables.

7.13. Risk in Our Materials and/or Deliverables will pass to you on collection from us by you (or on your behalf).

8. Confidential Information

8.1. Each party acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of Confidential Information.

8.2. Each of the parties undertake to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure. Neither party shall at any time, whether during the Term or at any time thereafter, without the written approval of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the purpose of the exercise of its rights and/or performance of its obligations in connection with this Agreement.

8.3. Each of the parties undertakes to disclose the other party’s Confidential Information only to those of its associates to whom, and to the extent which, such disclosure is necessary for the purposes contemplated under this Agreement.

8.4. Confidential Information shall exclude information which:

8.4.1. at the time of receipt by the recipient is in the public domain;

8.4.2 subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;

8.4.3. is lawfully received by the recipient from a third party on an unrestricted basis;

8.4.4. is already known to the recipient before receipt hereunder; and/or

8.4.5. is required to be disclosed by law or by a court of competent jurisdiction or in accordance with the rules of any recognised stock exchange.

8.5. You acknowledge and agree that any identifiable and original idea or concept presented by us in relation to any promotion or advertising campaign developed by us shall be acknowledged as being available only for such promotion or campaign whether or not used for such promotion or campaign and shall not be used for any other purposes whatsoever without our express prior written approval. Even where no promotion or campaign is agreed, the ideas and concepts presented to you shall remain strictly confidential and shall not be used in any way, including communication to any third party, without our prior written approval and agreement being reached regarding appropriate remuneration for us.

8.6. You acknowledge that nothing in this Agreement shall affect our right to use as we see fit any Residuals gained by us in the course of our appointment.

9. IPR

9.1. We acknowledge that ownership of Your Materials shall remain vested in you or your licensors. You hereby grant to us a non-exclusive, royalty-free, right and licence during the Term to use, copy, operate, process, modify and sub-license Your Materials solely for the purposes of providing the Services and Deliverables.

9.2. Subject to the remaining provisions of this clause 9 and subject to us receiving payment of all Fees attributable to Our Materials, we hereby assign (and in the case of copyright, by way of a present assignment of future copyright) all of the IPR in Our Materials which are capable of being assigned.

9.3. You acknowledge that all IPR in Our Proprietary Materials shall be owned by and remain the property of and vested in us or our licensors. Subject to us receiving payment of the Fees and Third Party Costs attributable to Our Proprietary Materials licensed under this clause, we hereby grant to you a non-exclusive, non-transferrable, perpetual, royalty-free right and licence to use such of Our Proprietary Materials as are included in the Deliverables in the Territory for the purpose agreed by the parties.

9.4. We agree, at your reasonable request and expense, to take all such actions and execute all such documents as are necessary (in your reasonable opinion) to enable you to obtain, defend or enforce your rights in the Deliverable, and shall not do or fail to do any act which would or might prejudice your rights under this clause 9.

9.5. We may create, develop or otherwise provide materials intended to designate origin to you in the form of taglines, slogans, logos, designs or product/brand names (collectively “Marks”) for your use in connection with the Deliverables. If we perform a preliminary trademark search for a Mark, then the cost of such search may be billed to you in addition to our Fees for undertaking the search.  The undertaking of such search by us does not relieve you of the responsibility for clearing use of such Mark and we make no warranty as to the capability of such Mark to be registered.  You are solely responsible for registering any Marks supplied by us and for ensuring that the use of the Marks shall not infringe any third party

10. Warranties

10.1. Each party warrants that it has the full power and authority to enter into this Agreement.

10.2. If there is an error in the Communications as published or publication is delayed or does not occur as planned, we will not be liable unless this is caused by our wilful default or gross negligence.

10.3. Each party shall comply with all Applicable Laws, regulations, and other rules having equivalent force which are applicable to that party in connection with this Agreement.

10.4. We warrant that Our Materials and Our Proprietary Materials used in the Communications will comply with the Advertising Regulations.

10.5. Where your business involves Specialist Advertising Regulations you shall have the sole responsibility for ensuring that Communications are compliant with such Specialist Advertising Regulations.

11. Limitations and Exclusions

11.1. Except in case of liability for fraud, or for death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law;

11.2.1. in no event shall either party’s cumulative liability to the other party under this Agreement, whether arising in contract, tort (including negligence) or otherwise and whether at common law or statute, exceed the total net Fees paid to us hereunder during the preceding twelve (12) months; and

11.2.2. in no event shall either party be liable under this agreement for:

11.2.2.1. any loss of actual or anticipated income or profits, loss of contracts or opportunities, loss of data; or

11.2.2.2. any special, indirect or consequential loss or damage of any kind;

11.2.2.3. any loss relating to goodwill or reputation; whether or not such loss or damage is foreseeable, foreseen or known.

11.3. The parties agree that any condition, warranty representation or other term concerning the delivery of the Deliverables and/or the performance of the Services which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise, including without limitation those of satisfactory quality and fitness for purpose, is excluded to the maximum extent permitted by law.

11.4. Nothing in the foregoing provisions shall preclude either party obtaining injunctive or other non-financial relief to which it is entitled.

11.5. You will be liable for any claims made against us relating to any use of Your Materials or otherwise which are approved by you, as well as those arising out of the nature and use of your products or services.

11.6. We shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by you or by a third party on your behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to your acts or omissions.

12. Termination & Consequences of/Post Termination

12.1. Either party may terminate this Agreement immediately by notice in writing to the other if the other party:

12.1.1. is in material breach of any of the terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within thirty (30) days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or

12.1.2. if the other party; i) stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so; ii) is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case; iii) becomes subject to a moratorium under Part A1 of the Insolvency Act 1986; iv) becomes subject to a company voluntary arrangement under the Insolvency Act 1986; v) becomes subject to a restructuring plan under Part 26A Companies Act 2006; vi) becomes subject to a scheme of arrangement under Part 26 Companies Act 2006; vii) has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income; viii) has a resolution passed for its winding up; ix)has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it; x) is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven (7) days of that procedure being commenced; xi) has a freezing order made against it; xii) is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items; or xiii) is subject to any events or circumstances analogous to those in clauses i)- xii) in any jurisdiction.

12.2. The parties’ rights, duties and responsibilities shall continue in full force during the agreed period of notice and, you shall pay all sums due in respect of work done, any Fees due and Third Party Costs and Expenses committed by us until the end of the Term.

12.3. Provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive termination, shall remain in full force and effect notwithstanding such termination.

12.4. Termination or expiry of this Agreement will not affect any accrued rights and liabilities of either party at any time up to the date of termination.

13. Non-solicitation

13.1. Neither party shall, during the term of this Agreement and for a period of six (6) months from the Termination Date, (except with the prior written consent of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment or engagement of that party, any employee, worker or independent contractor of that party who is employed or engaged in providing or receiving any services from/to the other party within three (3) months prior to the activity prohibited by this clause 1;

13.2. A party shall not be in breach of clause 1 as a result of running a national advertising campaign open to all comers and not specifically targeted at any of the staff or contractors of the other party.

13.3. If either party commits any breach of clause 1, the breaching party shall, without prejudice to any other rights or remedies of the claiming party, on demand, pay to the claiming party a sum equal to six (6) month’s basic salary or the fee that was payable by the claiming party to that employee, worker or independent contractor for six (6) months plus the recruitment costs incurred by the claiming party in replacing such person or contractor.

14. General

14.1. Any notices to be sent by one party to the other in connection with this Agreement except for the service of Court proceedings shall be in writing and shall be delivered personally or sent by special delivery post (or equivalent service offered by the postal service from time to time) to the addresses of each party as set out in the Statement of Work or as otherwise notified in accordance with the provisions of this Agreement. Notices shall be deemed to have been duly given: if delivered personally, upon delivery; if sent by post, two clear days after the date of posting.

14.2. If any part of this Agreement is found to be invalid or unenforceable by any Court or other competent body, such invalidity or unenforceability shall not affect the other provisions of this Agreement and such other provisions shall remain in full force and effect.

14.3. Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement if such delay or failure is due to an event of Force Majeure.

14.4. Variations of this Agreement shall not be effective unless recorded in writing signed by the parties;

14.5. This Agreement sets out all the terms agreed between the parties relating to the subject matter of this Agreement and supersedes any previous agreement between the parties relating to the same subject matter.

14.6. The failure of either party to enforce or to exercise at any time or for any period any term of or any right pursuant to this Agreement shall not be construed as a waiver of any such term or right and shall in no way affect that party’s right later to enforce or exercise it.

14.7. We are entitled to sub-contract performance of the Services. We will not be released from our obligations under this Agreement by virtue of the appointment of any sub-contractor and will be fully responsible for any acts or defaults, of any sub-contractor.

14.8. Neither party may assign, transfer, charge, sub-contract or deal in any other manner with this Agreement or any of its rights or obligations under it or purport to do any of the same, save where it is an intra-group activity, without having obtained the prior written consent of the other party, not to be unreasonably withheld or delayed.

14.9. Unless expressly specified otherwise in the Statement of Work, the parties hereby agree that nothing in this Agreement shall be construed as creating a right which is enforceable by any person who is not a party to this Agreement or a permitted assignee of such a party.

14.10. This Agreement and the documents referred to in it constitute the entire agreement and understanding of the parties in relation to the provision of the Services and Deliverables and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.

14.11. It is a condition of this Agreement that neither of the parties shall be bound by, or liable to the other party for any representation, promise or inducement (other than fraudulent misrepresentation) made by it or by any agent or person on its behalf which is not expressly contained in this Agreement.

14.12. This Agreement may be executed in any number of counterparts, and by the parties on separate counterparts, each of which so executed and delivered will constitute an original, but all the counterparts will together constitute one and the same instrument. Transmission of an executed counterpart of this Agreement (but not just a signature page) by e-mail (in PDF, JPEG or other agreed format) will take effect as delivery of an executed counterpart of this Agreement.

14.13. This Agreement shall be governed by and construed in accordance with the laws of England. Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England over any claim or matter arising under or in connection with this Agreement or the legal relationships established by this Agreement.

14.14, In the event of any conflict between the documents that form this Agreement, the following order of priority shall apply: (1)the Media Plan (if relevant), (2) the Statement of Work, (3) the Service specific appendices to these Terms & Conditions and (4) the main body of these Terms & Conditions.

14.15. In this Agreement:

14.15.1. references to clauses are to the clauses of this Agreement;

14.15.2. the singular includes the plural and vice versa;

14.15.3. the headings are for ease of reference only and shall not affect the construction or interpretation of this Agreement;

14.15.4. the following words shall have the following meanings:

Advertising Regulations	means any existing and relevant legal requirements of any Advertising Regulator;
Advertising Regulator	means the UK Office of Communications (“Ofcom”), the UK Broadcast Committee of Advertising Practice (“BCAP”), the UK Committee of Advertising Practice (“CAP”), the UK Advertising Standards Authority (“ASA”), the UK ASA (Broadcast);
Applicable Law	means applicable laws of the United Kingdom, including any modifications, amendments, extensions, considerations, re-enactments and/or replacements of them in force from time to time;
Communications	means final Deliverables which are broadcast, published, printed or uploaded or otherwise distributed to the public or other intended audience;
Confidential Information	means information concerning the other’s business, its business plans or affairs, customers, clients, marketing and sales information, which information may be in or on any medium or format, whether or not specifically designated as such, is proprietary and confidential to the other party;
Deliverables	means those deliverables stated in the Statement of Work;
Expenses	means any additional cost incurred by us providing the Services (e.g. travel) excluding Media Costs and Third Party Costs;
Force Majeure Event	means any circumstance not within a party’s reasonable control;
IPR	means the following intellectual property rights, wherever in the world enforceable including all reversions and renewals: any patents or patent applications; any trade marks (whether or not registered) including any applications for registration of the same; inventions, discoveries; copyright or design rights (whether registered or unregistered); database rights; any goodwill in any trade or service name, trading style or get-up; and any and all other intellectual or proprietary rights;
Our Materials	means those materials owned and created by us specifically and exclusively for you for the purposes of the Services or Deliverables but shall not include any material prepared or proposed by us but not accepted by you (including, without limitation, rejected or unused programs, campaigns, materials, plans and ideas);
Our Proprietary Materials	means content, materials, information, software, methodology, know-how and processes provided to you as part of the Services or Deliverables excluding Our Materials and Third Party Materials;
Residuals	means information in intangible form, which may be retained by persons performing the Services, including, without limitation, ideas, concepts, know-how, and techniques;
Services	means those services set out in the Statement of Work;
Specialist Advertising Regulations	Means those industry specific advertising regulations, or other codes, regulations or Applicable Laws, which may apply to your business;
Statement of Work	means the document detailing the Services, Deliverables and Fees forming part of this Agreement;
Term	means the period from the Commencement Date until the termination of this Agreement, including any notice period if applicable;
Termination Date	means the date that this Agreement terminates or expires;
Territory	means the United Kingdom unless expressly stated otherwise in the Statement of Work;
Third Party Costs	means all relevant charges and costs payable by you for Third Party Materials used in delivery of the Services and Deliverables by Transmission as approved by you in writing, but excluding Media Costs and Expenses;
Third Party Materials	means those materials which are either commissioned by us from third parties during the Term and incorporated into the Deliverables, or which have been created by a third party and which are in existence at the time it is desired to make use of them for inclusion in the Deliverables;
Transmission, or we/us:	means Pulse Comms Ltd, trading as Transmission a company incorporated in England with company number 08724506and whose registered office is at 75 Park Lane, Croydon, Surrey CR9 1XS;
Your Materials	means any content, materials, information, and data in any form which is provided by you to us (whether owned or licensed) in order to provide the Services or Deliverables; you shall obtain any third-party releases, licenses, permits and other authorisations required to enable us use such content, materials, information and data to provide the Services or Deliverables.

Appendix for Media Services

1. Amendments or cancellations

1.1.  At any time you may request us to cancel or amend a Media Plan.

1.2. We will take reasonable steps to comply with any request made under clause 1.1 of this Appendix 1, provided that we are able to do so within our contractual obligations to Media Owners and other third party suppliers, which will be recorded as a variation to this Agreement in accordance with clause 14.4 of the main body of the Terms and Conditions.

1.3. In the event of any such cancellation or amendment in accordance with clause 1.1 of this Appendix 1:

1.3.1. you will reimburse us for any charges, Media Costs, Third Party Costs and or Expenses incurred by us to which we are committed or which are imposed on us by third parties arising from the cancellation or amendment; and

1.3.2. you shall also pay for our time as stated in the Statement of Work and if not stated, at our standard rates or pro-rated commission covering the cancelled or amended Services and Deliverables.

1.4. Notwithstanding clause 7.6 of the main body of the Terms and Conditions, your approval of Media Costs, Third party Costs and Expenses will be our authority to make reservations and contracts for space, time and other facilities under the terms and conditions required by Media Owners or suppliers.

1.5. We enter into all Third-Party Contracts as principal (unless otherwise specified) in accordance with such terms that are agreed between that supplier and us. You acknowledge that your right to use or otherwise benefit from any services acquired by us under any relevant Third-Party Contracts shall be subject to the terms and conditions of such Third-Party Contracts. You will be liable for any losses caused by any act or omission of you which puts us in breach of any such Third-Party Contracts. We shall provide a copy of the relevant Third-Party Contract to you if requested and to the extent permitted by existing confidentiality provisions with the relevant supplier. 

2. Fees & Payment

2.3 In consideration of our performance of the Services and delivery of the Deliverables, you shall pay the Fees, which may include commissions agreed with

2.4. We will invoice you in respect of Fees monthly and you will pay the invoice within thirty (30) days of the date of invoice.

2.5. You will pay us in advance for all agreed Media Costs.

2.6. We will not make any Media Placements prior to the receipt of cleared funds in respect of such Media Costs.

2.7. Where we are holding money on your account, we will allocate such monies to pay Fees, Media Costs and charges, Third Party Costs and Expenses as they fall due in our sole discretion and will provide reconciliations as reasonably requested by you.  We will roll forward any excess funds to set off against future Fees, Media Costs and charges, Third Party Costs and Expenses as they fall due.

2.8. Where a surcharge is levied by a Media Owner or Third Party Platform against us due to late payment and this results from late payment by you, you shall immediately reimburse to us the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.

2.9. If late copy charges are levied by a Media Owner or Third Party Platform against us as a result of delay by you, you shall immediately reimburse the amount of such late copy charges to us.

2.10. You warrant that: (i) you are the owner, licensor or have the right to authorise use of all the Advertising and Advertising will not infringe the Intellectual Property Rights of any third party; (ii) the Advertising will not contain any material which is obscene, offensive, defamatory and will comply in all respects with all relevant laws, rules and regulations; (iii) in the event that we grant you access to any third party services (including, without limitation, any Technology or Third Party Platforms) as part of the Services, you shall comply with all applicable privacy policies, terms and conditions and/or any other instructions, prohibitions or requests communicated to you by us or the applicable third party (it being acknowledged by you that, for example, third party providers such as Google’s DoubleClick Bid Manager may use data gathered from our and your use thereof in a manner that does not identify us, you, or end users as the source of such data); (iv) we are entitled to place cookies, pixel tags, pixel-less techniques or web beacons and related technologies and other relevant tags on, and collect information from, your websites and other relevant sources of data;  (v) each source of data collected by or on your behalf and/or otherwise made available or supplied to you shall be in compliance with all applicable laws, rules and regulations (including but not limited to the Privacy and Electronic Communications (EC Directive) Regulations 2003) and shall not contain any Personal Data; and (vi) it will throughout the Term, enable or link to a page that enables the user to opt out of having data used for online behavioural advertising or, in the case of an application running on a mobile device, it will include clear instructions that explain how device users can opt-out of receiving online behavioural advertising in such application. You shall be liable in the event of any losses, costs and expenses (including reasonable legal costs) of whatsoever nature are suffered by us in connection with a breach or an alleged breach of this clause 2.10.

2.11. You confirm that it is expressly understood and agreed that in planning and buying your Media Placements, we shall use our reasonable endeavours to ensure the accuracy of all estimated and target figures relating to:

2.11.1. the number, proportion or type of people likely to be exposed to the Advertising;

2.11.2. the number of exposures each person is likely to receive; and

2.11.3. the cost of achieving these exposures;

but as these are matters which are ultimately beyond our control, no warranties can be given by us as to the accuracy of such estimates/targets or as to the figures actually occurring and no liability shall attach to us in respect of any losses suffered by you or by any third party by reason of your reliance on such estimates/targets.

2.12. Where we provide Search Engine Optimization (SEO) as part of the Services you acknowledge and agree that we:

2.12.1. do not guarantee first position, first page or consistent top ten positions for any particular keyword and/or phrase as it is solely at the discretion of the search engines themselves to list a website; and

2.12.2. as no control over any changes made to the Search Engine Policies and Procedures with respect to the type of websites and/or content that they accept or the way in which websites are ranked in the future.

2.13. We are not responsible for changes made to your website by:

2.13.1. you or any third party, except where such changes are made at our direction; or

2.13.2. you choose to link to or obtain a link from a particular Website without prior consultation with us,

that adversely affects the search engine rankings of the website.

2.14. On termination, payments due include commission on media booked during any notice period but where transmission falls outside such period. 

2.15. Upon the termination of this Agreement and payment by you of all items properly chargeable to you hereunder, we will give you reasonable co-operation in transferring, subject to the approval of third parties where required, all reservations, contracts and arrangements with media owners, third parties or others for space or time yet to be used and subject to, all rights and claims thereto.

2.16. The following additional definitions shall apply:

Advertising	means all your advertising (whether or not generated by us) for which we perform media buying and planning activity for you under this Agreement;
Media Costs	means all relevant charges and media costs payable by you for Media Placement booked by Transmission as approved by you on the relevant Media Plan;
Media Owner	means any third party with whom Transmission or Transmission Group contracts or places an order for the purchase of Media Placements;
Media Placement	means the advertising, sponsorship or promotional space and/or time in a publication, broadcast stream, press insert, transmission, Video on Demand (VOD), website or any other on or off-line platform which is purchased from third parties by us in connection with the provision of Services;
Media Plan	means one or more documents approved and signed by you detailing proposed Media Placements and Media Costs;
Technology	means one or more proprietary or third-party technologies used by us in delivering the Services;
Third Party Contracts	Means all third-party contracts including those with Media Owners
Third Party Platforms	means exchanges, demand side platforms, websites, networks or companies run by third parties such as Google, Facebook, Yahoo, Twitter, AOL or others used by us to purchase media and/or services through or from;
Transmission Group	means any company that is a direct or indirect subsidiary undertaking of Pulse Comms Ltd;

Appendix 2 for Social Media, Moderation & Sales Activation Services

1. Social Media Services

1.1. The Social Media and/or Sales Activation Services detailed in the Statement of Work shall be provided by us.

1.2. We shall use reasonable endeavours to ensure that we understand the Terms and Conditions of Social Media Sites upon which Social Media Services are provided. We shall inform you of any material risk of which we become aware, that any of the Deliverables as part of the Social Media Services provided may not comply with the incumbent Terms and Conditions of Social Media Sites to which it relates.

1.3. We will use reasonable endeavours to ensure that in providing the Social Media Services, we:

1.3.1. ensure that any Deliverables posted on Social Media Sites by us will be reasonably regarded as being so transparent to users as being for marketing purposes in accordance with respective Advertising Regulations, such acknowledgement to be supported by the use of hashtags such as #ad or #spon where reasonably required; and

1.3.2. ensure that we change administrative passwords for Social Media Sites, and keeps such passwords safe and secure from any unauthorised access. We will keep you informed of any changes to the administrative passwords for the Social Media Sites.

1.4. We will use reasonable endeavours to enter into written terms approved in advance by you in the event we are required to identify and/or appoint Brand Ambassadors as part of the provision of the Social Media Services. Such terms are required to be entered into with such Brand Ambassadors (or their agents as required) on your behalf and contain obligations that said Brand Ambassadors will:

1.4.1. not, without your prior written approval, post any Content on Social Media Sites;

1.4.2. ensure that all Content posted on Social Media Sites is lawful, complies with Advertising Regulations and does not infringe any third party rights;

1.4.3. not feature or refer to third party individuals without the prior consent of such individuals;

1.4.4. engage in activity for or on your behalf solely in a transparent manner which is evident to users that the Brand Ambassador has a commercial relationship with you;

1.4.5. not make any statements or otherwise post Content which is reasonably likely to be seen to be derogatory of you, or your products, services or brands, or which is likely to offend or shock; and

1.4.6. use all reasonable efforts to ensure that it will not have any photograph, film or other form of recording taken showing the Brand Ambassador using any competing products or services to those which are part of the Accounts.

1.5. ou acknowledge that:

1.5.1. if we are unable to use a specific Brand Ambassador requested by you, or in circumstances where a prospective Brand Ambassador refuses to enter into written terms as itemised above, we shall not be in breach of this Agreement; and

1.5.2. we shall not be liable for any act or omission of any Brand Ambassador including any breach of written terms between the Brand Ambassador and us as set out above.

2. Moderation Services

2.1. We will mutually agree moderation guidelines as to how the Social Media Sites should be moderated, including guidance for us on:

2.1.1. offensive UGC;

2.1.2. UGC which is critical, derogatory of third parties or which could give rise to adverse publicity;

2.1.3. UGC which is unlawful or appears to be contrary to any law;

2.1.4. use of Content where the IPR in such Content are known to belong to a third party (or where it is reasonably obvious that the IPR will belong to a third party); and

2.1.5. how often the UGC should be moderated (and whether pre moderated, post moderated or merely reactive).

2.2. We shall only issue Content in accordance with your written instructions and shall use reasonable endeavours to promptly remove Content and/or UGC if: (i) so reasonably requested by you in writing; and/or (ii) the Content results in an actual or suspected breach of this Agreement and/or Applicable Laws.

2.3. You shall provide us with sufficient and continued access to any computer systems, software programs and/or Social Media Site(s) used by or belonging to you which we may require in order to provide the Social Media Services and/or Moderation Services. Failure to do so shall relieve us from our obligations to provide those aspects of the Social Media Services and/or Moderation Services which are affected during such period that we cannot access such systems or software.

2.4. To the extent you have your own Social Media Policy, we shall procure that all personnel working on the Services are aware of the Social Media Policy.

2.5. The following additional definitions shall apply:

Brand Ambassador(s)	means individuals (including, but not limited to bloggers, vloggers and other influencing individuals) who are engaged by or on your behalf to communicate to the public via various Social Media Sites;
Content	means any image, text, video, audio file, tweet, status update, or any other Materials which are distributed, shared or otherwise published on a Social Media Site
Moderation Services	means the moderation services to be provided by us as identified in the Statement of Work;
Sales Activation Services	means the sales activation services to be provided by us as identified in the Statement of Work;
Social Media Policy	means any social media governance policy, to the extent that they are relevant and a copy of which has been provided to us;
Social Media Services	means the services to be provided by us in respect of social media which are itemised in a Statement of Work;
Social Media Site	means any social media websites in respect of which we have agreed to provide such Social Media Services in a Statement of Work;
Terms and Conditions of Social Media Sites	means the terms and conditions of the Social Media Sites as published and as amended from time to time on such Social Media Sites;

Appendix 3 for Web Dev

1. Development of the Specification

1.1. We shall commence the preparation of the Specification for the Software, Website or App (as appropriate) in conjunction with you immediately following agreement to a Statement of Work. We shall subsequently submit to you such completed Specification for approval.

1.2. Upon approval of the Specification by you, we shall develop the Software and/or Website and/or App based upon the Specification.

1.3. When developing an App, we shall use reasonable endeavours to ensure that the App complies with any relevant platform operating system terms and conditions and to obtain the relevant permissions from the platform operators in order that the App may be published and used on such platform operating system.

1.4. Any approval required by you in relation to Outputs shall occur strictly in accordance with this paragraph 1.4:

1.4.1. Promptly, and in any event within five (5) days of a stage completion for the Outputs or at any other period as agreed between the parties, you shall accept usage of the Outputs by issuing a notice to us to highlight that effect (the “Acceptance / Rejection Notice” as appropriate).

1.4.2. The Notice shall contain full details of any material deviation from the Specification. You shall be entitled to issue a Rejection Notice only in circumstances whereby the Outputs exhibit a fault which materially affect the functionality of the Outputs; to such an extent that a user’s ability to use the Outputs is materially impaired.

1.5. You hereby acknowledge that acceptance of the Outputs shall be deemed to occur on the earliest of the following events:

1.5.1. receipt by us of an Acceptance Notice; or

1.5.2. if you put any of the Outputs to any live operational use, other than for the purposes of testing.

1.6. If you serve a valid Rejection Notice in accordance with paragraph 1.4 of this Appendix 3, we shall correct and/or replace the defective Deliverables within the timeframe agreed by the parties in writing so that they perform in accordance with the relevant Specifications in all material respects and re-deliver the same to you.

1.7. You shall not be entitled to reject such Output Deliverables by reason of any failure to provide any facility or function not specified in a Specification or on account of deviations from their Specifications which do not materially affect a user’s ability to use the Outputs (“Minor Discrepancies”). We shall co-operate with one another to try to rectify such Minor Discrepancies.

1.8. We assign (by way of present assignment of future copyright in respect of copyright) all of the IPR in the Front-Facing Software which are capable of being assigned, subject to us receiving all Fees in relation to said Front-Facing Software.

1.9. We are authorised to use Open Source Software as part of the Deliverables, and may do so on the following conditions:

1.9.1. we shall have supplied to you details of which Deliverable(s) and/or part(s) thereof it is proposed shall include such Open Source Software and in what manner, together with full details of which licence(s) apply to such Open Source Software; and

1.9.2. you have approved as such, such approval not to be unreasonably withheld or delayed.

1.10. You will use the Open Source Software in accordance with the terms of the applicable open source licence(s).

2. Liability for IPR Infringement

2.1. In circumstances whereby any Deliverable comprising one or more Outputs infringes the IPR of a third party, we shall at our option:

2.1.1. procure for you the right to continue use of the Deliverable in question, free of any potential liability for IPR infringement;

2.1.2. modify the Deliverables in question so that they become so compliant and do not infringe IPR while otherwise complying with the requirements of this Agreement; or

2.1.3. substitute the Deliverable(s) in question with other Deliverable(s) which perform equivalent functions and do not infringe IPR.

2.2. We warrant that on the date of delivery to you, to the extent that the Deliverables comprise one or more Outputs such Deliverables will comply in all material respects with their Specifications and/or this Agreement.

2.3. The following additional definitions shall apply:

App	means the software application which is to be developed as per the Statement of Work and Specification
Front-Facing Software	means Software created or commissioned to be created by a third party by the us in connection with the Services (including any Software adapted, modified, or derived from Your Materials) together with the Interface which is incorporated into the Deliverables during the Term but not including Our Proprietary Materials
Interface	means the graphical user interface of any Software application or asset consisting of any textual, graphical and design elements, including the positions of such elements on a Website but excluding the functionality of any such Website and the software underlying such textual, graphical, and design elements;
Open Source Software	means any Software which is developed, tested, or improved through collaboration with the public and distributed with the idea that it must be shared with others, ensuring any future open collaboration;
Outputs	means Deliverables which consist of Software, a Website and/or Apps;
Software	means the software to be developed as identified in the Statement of Work and Specification;
Specification	means the functional specification for the Software, App and/or Website (as applicable) as is agreed between the parties in writing;
UGC	means user-generated content of any kind which is posted, shared, commented on, or otherwise submitted by a user on Social Media Sites; and
Website	means the website to be developed (including graphical user interface) as identified in the Statement of Work and Specification.

Appendix 5 for Data Processing

1. Compliance with Data Protection Laws

1.1. The parties agree that you are a Controller and that we are a Processor for the purposes of processing Protected Data pursuant to this Agreement. You shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. You shall ensure all instructions given by you to us in respect of Protected Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Laws. Nothing in this Agreement relieves you of any responsibilities or liabilities under any Data Protection Laws.

1.2. We shall process Protected Data in compliance with the obligations placed on us under Data Protection Laws and the terms of this Agreement.

1.3. Each party shall indemnify and keep indemnified the other party against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by them of their obligations under this appendix 5.

2. Instructions

2.1. We shall:

2.1.1. only process the Protected Data in accordance with the Schedule and this Agreement (including with regard to any transfer to which clause 6 relates), except to the extent:

2.1.1.1. that alternative processing instructions are agreed between the parties in writing; or

2.1.1.2. otherwise required by applicable law (and we shall inform you of that legal requirement before processing, unless applicable law prevents us doing so on important grounds of public interest); and

2.1.2. without prejudice to clause 1.3 of this Appendix 5, if we believe that any instruction received by us from you is likely to infringe the Data Protection Laws we shall promptly inform you and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.

3. Security

3.1. We shall implement and maintain the technical and organisational measures set out in Part B of the Schedule to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

3.2. During the period in which we process any Protected Data, you shall undertake a documented assessment at least every 12 months of whether the security measures implemented in accordance with clause 3.1 are sufficient (taking into account the state of technical development and the nature of processing) to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access. You shall notify us within 10 days of full details of the assessment and its outcome and of any additional measures you believe are required as a result of the assessment. We shall not be obliged to implement any further or alternative security measures except as agreed as a binding variation of this Agreement in accordance with clause 14.4 of the main body of this Agreement.

4. Sub-processing and personnel

4.1. We shall:

4.1.1. not permit any processing of Protected Data by any Sub-Processor without your prior specific written authorisation;

4.1.2. prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, ensure each Sub-Processor is appointed under a binding written contract containing materially the same obligations as under this Appendix 5 (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) and ensure each such Sub-Processor complies with all such obligations;

4.1.3. remain fully liable to you under this Agreement for all the acts and omissions of each Sub-Processor as if they were our own; and

4.1.4. ensure that all natural persons authorised by us or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.

4.2. You shall reply to any communication from us requesting any further prior specific authorisation of a Sub-Processor pursuant to clause 4.1.1 of this Appendix 5 promptly and in any event within 14 days of request from time to time. You shall not unreasonably withhold, delay or condition any such authorisation.

5. Assistance

5.1. We shall(at your reasonable cost and expense):

5.1.1. assist you in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to us; and

5.1.2. taking into account the nature of the processing, assist you (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of your obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR.

5.2. We shall (at your reasonable cost and expense) refer to you all requests we receive for exercising any Data Subjects’ rights under Chapter III of the GDPR which relate to any Protected Data. It shall be your responsibility to reply to all such requests as required by applicable law.

6. International transfers

6.1. We shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without your prior written authorisation except where required by applicable law (in which case the provisions of clause 2.1.1 of Appendix 5 shall apply).

7. Audits and processing

7.1. We shall, in accordance with Data Protection Laws, make available to you on request such information that is in its possession or control as is necessary to demonstrate our compliance with the obligations placed on us under this Appendix 5 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR, and allow for and contribute to audits, including inspections, by you (or another auditor mandated by you for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 7. In no case shall you be entitled to review our Confidential Information.

8. Breach

8.1. We shall notify you without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.

9. Deletion/return and survival

9.1. On the end of the provision of the Services relating to the processing of Protected Data (the Processing End Date), (at your reasonable cost and expense) and your option, we shall either return all of the Protected Data to you or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires us to store such Protected Data. To the extent you do not notify us within 45 days of the Processing End Date that you require the return of any Protected Data we are irrevocably authorised to securely dispose of the Protected Data at your reasonable cost and expense.

9.2. This Appendix 5 shall survive termination or expiry of this Agreement:

9.2.1. indefinitely in the case of clauses 1.3 and 9.1 of this Appendix 5; and

9.2.2. in the case of all other provisions of this Appendix 5, until the later of:

9.2.2.1 the termination or expiry of this Agreement; or

9.2.2.2. return or secure deletion or disposal of the last of the Protected Data in our (or any of our Sub-Processor’s) possession or control in accordance with this Agreement.

10. In this Appendix 5 the following definitions will apply:

Controller,  Data Subject,  International Organisation,  Personal Data,  Personal Data Breach,  Processor and  processing	shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed and  processes shall be construed accordingly)
Data Protection Laws	means, as binding on either party or the Services: a)     the GDPR b)     the Data Protection Act 2018 c)     any laws which implement any such laws; and d)     any laws that replace, extend, re-enact, consolidate or amend any of the foregoing
GDPR	means the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time);
Protected Data	means Personal Data received from you or on your behalf in connection with the performance of our obligations under this Agreement; and
Sub-Processor	means any Processor engaged by us (or by any other Sub-Processor) for carrying out any processing activities in respect of the Protected Data on your behalf