Terms & Conditions
1.1 - These Terms apply to all agreements between Gripped Ltd, registered in England and Wales under company number 10938664, with its registered office at 150 Borough High St, London, SE1 1LB (Gripped), and a Client, together also the Parties. Any other terms, whether a Client seeks to incorporate those or whether they are implied by trade or custom, shall not be applicable. These Terms cannot be varied without the written approval of both Parties.
1.2 - These Terms, in conjunction with the Scope Of Work (SOW) - which includes the Parties’ agreement on Services, Fees, Expenses, Authorised Representatives, Authorisations etc. - constitute the entire agreement between the Parties, to the exclusion of any prior documents and understandings, whether made orally or in writing. Agreement means SOW – including its Schedules - together with these Terms.
1.3 - The Parties shall both appoint an Authorised Representative, authorised to act, to take decisions and to approve requests and services on behalf of that Party. Approval by the Client means approval by its Authorised Representative.
1.4 - The Client may not transfer or assign any of its rights and obligations under this Agreement without Gripped's prior content, such consent not to be unreasonably withheld. Gripped has the right to use subcontractors to provide certain Services to the Client provided that Gripped remains responsible for its obligations under this agreement. Gripped will use reasonable care and diligence in the selection of such subcontractors.
1.5 - This Agreement as well as any disputes arising out of it, are governed by English law. The Parties agree that any disputes arising out of their contractual relationship or in connection therewith shall be adjudicated by the English courts.
2. TERM AND TERMINATION
2.1 - This Agreement commences on the Commencement Date. Further details about the term of this Agreement are set out in the Term section of the SOW.
2.2 - Notwithstanding the former, either Party may terminate this Agreement by written notice with immediate effect and without prejudice to any other rights and remedies available to it, if the other Party:
(a) - materially breaches any of its obligations under this Agreement and fails to remedy such breach within 30 days of it being notified of the breach (if remediable); or
(b) - is or becomes insolvent, enters into liquidation, has presented a petition for winding up, or is otherwise unable to pay its debts or has otherwise lost control over its assets; or
(c) - (threatens to) cease(s) to carry on business.
Failure to pay an invoice on or before its due date is considered a material breach.
3.1 - Gripped shall provide marketing services (Services) to the Client, the details of which are further set out in Schedule 1 of the SOW. Any Services not specified in the SOW shall be subject to an additional fee, to be agreed upon by the Parties in writing as part of a supplemental or revised SOW.
3.2 - Any performance dates are considered to be estimates only. If the performance of a Service is delayed either because of a Force Majeure Event or because the Client fails to timely provide instructions or materials relevant to the provision of the Services, Gripped is not liable for that delay. In the event of a failure of the Client to provide instructions or materials in due time, Gripped may charge and the Client agrees to pay, additional fees which are the result of such failure.
3.3 - If Gripped fails to deliver any Services agreed on within time or if any Services are not in accordance with this Agreement, Gripped will remedy or redeliver such Services, at its sole option. Should the performance remain to be not in accordance with this Agreement while all reasonable attempts have been made to remedy, the Client’s sole and final remedy is to terminate this Agreement. The sole liability of Gripped in such event is to refund the Fees paid for any Services not in accordance with this Agreement, subject to the limitations of liability set out in clause 4.
4. LIMITATION OF LIABILITY
4.1 - Gripped is not liable for any loss or damage whatsoever arising out of or in connection with the provision of the Services or for a claim made against the Client by a third party, including consequential damages, loss of profits, loss of business opportunity and goodwill and loss of data.
4.2 - In any event is the aggregate liability of Gripped under or in connection with this Agreement limited to the total sum invoiced for the provision of the Services, or the total sum paid by Gripped’s professional indemnity insurance provider (if applicable), if the latter is greater.
4.3 - Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from any event beyond the reasonable control of that party (Force Majeure Event), provided that the failing Party notifies the other Party promptly of such Force Majeure Event, including a good faith estimation of its duration.
5. FEES AND EXPENSES
5.1 - In consideration of the provision of the Services, the Client agrees to pay Gripped the Fees, further details of which are set out in Schedule 2 of the SOW. All Fees are in Pound Sterling (£) and exclusive of VAT.
5.2 - Invoices will be sent on a monthly basis in advance. The Client agrees to pay invoices within 30 days of the invoice date by either bank transfer, cheque, BACS or CHAPS, stating the invoice number. The Client may not set-off any amounts against invoices. Any invoices paid after its due date shall accrue interest on a daily basis from the final day of payment until the date of actual payment and shall be calculated at a rate of 4% per year above the Bank of England base rate which is current at the date payment became overdue. Without prejudice to any other remedies, Gripped may also charge £10 per weekly reminder sent after the due date to recover any debts.
5.3 - In addition to the Fees, the Client agrees to reimburse Gripped in respect of all reasonable travel, subsistence and courier expenses incurred by Gripped in the performance of the Services, and in respect of any other reasonable incidental expenses, conditioned upon the prior approval of the Client, unless otherwise agreed and specified in the SOW.
5.4 - The Client agrees to pay all reasonable legal fees related to the creation of marketing materials as well as any fees payable to obtain rights and third-party costs (such as performer’s fees) in connection therewith, provided it is necessary to incur such fees in the proper performance of the Services and the prior approval of the Client has been obtained, unless otherwise agreed and specified in the SOW.
5.5 - Where Gripped purchase software, advertising or other services on behalf of the Client, Gripped reserves the right to markup the purchase by 15% before an onward invoice is provided to the Client.
6. INTELLECTUAL PROPERTY
6.1 - The Client must ensure and warrants that it is the owner of or has obtained all intellectual property rights in any materials provided by it (Client Materials) to be used by Gripped in conjunction with the Services.
6.2 - The Client grants, or procures that a third party grants, Gripped all necessary rights free of charge to use Client Materials for the purpose of providing the Services.
6.3 - The Client indemnifies Gripped in respect of any damages, losses, costs and expenses arising out of a breach of the warranty of clause 6.1.
6.4 - The intellectual property rights in and attached to any materials created or produced by Gripped specifically for the Client in conjunction with the provision of the Services (Frontend Materials) are hereby assigned to and become the exclusive property of the Client after such materials have been delivered to the Client on the condition that full payment has been received by Gripped, including interest and late payment fees.
6.5 - Any rights in and attached to formats, software, frameworks, documentation and other background technology (Backend Materials) used in the provision of the Services and/or incorporated into the Frontend Materials, remain at all times the exclusive property of Gripped and/or its licensors. Gripped grants the Client a limited right to use Backend Materials insofar this is necessary to ensure the proper use and functioning of Frontend Materials.
6.6 - The Client grants to Gripped a limited license to use and publish any Frontend Materials for the sole purposes of showcasing its work and promoting its business.
7. CONFIDENTIAL INFORMATION
7.1 - Each Party agrees that it may use the other Party’s confidential information only in the exercise of its rights and performance of its obligations under this Agreement.
7.2 - During the term of this Agreement and for a period of ten years following termination of this Agreement neither Party shall disclose the other Party’s confidential information including all knowhow, trade secrets, financial, commercial, technical, tactical or strategic information of any kind. However, each Party may disclose such information if this is required on a need-to-know basis to its employees, advisers or representatives, provided such persons are made aware of the confidential character of the information and are put under an obligation of confidentiality. Confidential information may also be disclosed if this is required by law or a court or a similar supervisory authority. If such disclosure is requested, the Party receiving the request shall inform the other Party promptly of the request, unless this is expressly prohibited by the requesting authority.
8. DATA PROTECTION
8.1 - For the purpose of this clause, the following terms have the following meaning:
8.1.1 - 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.
8.1.2 - Data Protection Laws means the EU General Data Protection Regulation 2016/679 (GDPR), the UK Data Protection Act 2018, any laws which implement any such laws, and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing.
8.1.3 - Protected Data means e-mail addresses, telephone numbers, names and addresses of (prospective) customers of the Client to which Gripped has access - either directly or via third-party providers or tools used by the Client - in connection with the performance of Gripped’s Services under this Agreement.
8.2 - The Parties agree that the Client is a Controller and that Gripped is a Processor for the purposes of processing Protected Data pursuant to this Agreement. Gripped shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Client shall ensure all instructions given by it to Gripped in respect of Protected Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Laws.
8.3 - Gripped shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.
8.4 - The Client shall indemnify and keep indemnified Gripped 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 the Client of its obligations under this clause.
8.5 - Gripped shall:
(a) - only process the Protected Data if the Client instructs Gripped to perform a Service which requires Gripped to access the Client’s own systems or third-party platforms or tools used or engaged by the Client in which Protected Data are stored and to perform an act of processing in respect of such data;
(b) - only process the Protected Data in respect of the specific purpose of the Service requested in relation to which Gripped has been given access to the Protected Data;
(c) - only process the Protected Data for as long as is necessary for a proper performance of the Services requested by the Client;
(d) - only process the Protected Data in accordance with this Agreement and not otherwise unless alternative processing instructions are agreed between the Parties in writing, except where otherwise required by applicable law and shall inform the Client of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest; and
(e) - without prejudice to clauses 8.2 to 8.4, if Gripped believes that any instruction received by it from the Client is likely to infringe Data Protection Laws it shall promptly inform the Client and be entitled to cease to provide the relevant Services until the Parties have agreed appropriate amended instructions which are not infringing;
8.6 - The Client’s grant of access to the Client’s own systems or third-party tools in order to enable Gripped to perform the requested Service involving the processing of the Protected Data, is the Client’s instruction to process such Protected Data for the purpose of the Service requested by it.
8.7 - The Client understand and agrees that it is the responsibility of the Client or the third-party provider engaged or used by the Client to implement appropriate technical and organisational security measures appropriate to the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed.
8.8 - Gripped shall not permit the processing of Protected Data by any agent, subcontractor or other third party (sub-processor) without the prior specific written authorisation of the Client
8.9 - Gripped shall (at the Client's cost):
(a) - assist the Client in ensuring compliance with the Client’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to the Client; and
(b) - taking into account the nature of the processing, assist the Client (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Client’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
8.10 - The Client understands and agrees that Protected Data processed by Gripped for the purpose of the Service requested by the Client may be transferred to countries outside the United Kingdom (including to countries in or outside the European Economic Area) or to any International Organisation(s) (an International Recipient), if this is necessary to properly perform the Service requested and provided the systems or tools used for the processing allow for such transfers. The appropriate safeguards applicable to such transfers to an International Recipient (and any onward transfer) shall to the extent required under Data Protection Laws be the responsibility and liability of the Client and/or the third-party provider used to process the Protected Data.
8.11 - Gripped shall, in accordance with Data Protection Laws, make available to the Client such information that is in its possession or control as is necessary to demonstrate Gripped’s compliance with the obligations placed on it under this clause and to demonstrate compliance with the obligations on each Party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Client (or another auditor mandated by the Client) for this purpose, subject to a maximum of one audit request in any 12 month period under this clause 8.10.
8.12 - Gripped shall notify the Client without undue delay and in writing (which may include by e-mail to the Authorised Representative) on becoming aware of any Personal Data Breach in respect of any Protected Data.
8.13 - On the end of the provision of the Services relating to the processing of Protected Data, at the Client’s cost and the Client’s option, Gripped shall not access or process any Protected Data, except to the extent that any applicable law requires Gripped to store such Protected Data.
8.14 - This clause shall survive termination or expiry of this Agreement.