1. Application and Scope
1.1 These Terms of Business shall apply to the provision by the Contractor of the Services for Universal Pixels ('UP').
1.2 These Terms of Business shall be read in conjunction with the online form with which they are provided. Definitions contained in the Online form shall apply to these Terms of Business and vice versa.
2. Provision of the Services
2.1 In consideration of the Fees, the Contractor shall provide UP with the Services and Deliverables specified in the Online form in the timeframes specified therein.
2.2 The Contractor warrants that:
2.2.1 it will perform the Services to a high standard, with due care and skill and in accordance with good industry practice;
2.2.2 it will deliver all Deliverables free from defects;
2.2.3 it will comply with all lawful instructions given by UP from time to time;
2.2.4 it will deliver all Deliverables and perform all Services within the timeframes set out in the Online form or as set by UP from time to time;
2.2.5 it shall, to ensure the security and confidentiality of the identity of UP' clients and related data and content, use only computer systems which are authorised, approved or provided by UP during its provision of the Services;
2.2.6 it shall at all times comply with all applicable law;
2.2.7 it has all necessary licences and authorisations to carry out and perform the Services; and
2.2.8 it will not at any time during the term of this Agreement or until the later of either (a) one (1) years following the date of the completion of the Services or (b) one (1) years after this Agreement's expiry make any attempt to solicit or entice away from UP, any person who is, or has been a client of UP during the performance of the Services.
2.3 In order to enable the Contractor to perform the Services in the fashion described in clause 2.1 UP shall endeavour to fulfil the Contractor Dependencies in the timeframes specified in the Online form.
2.4 The parties to this Agreement agree that regarding the performance of the Services time shall be of the essence.
2.5 The Contractor shall be responsible for the content, accuracy and completeness of all documents, data, information or other materials provided to UP during the Engagement and UP shall not be responsible for verifying the same. Where the Contractor becomes aware of any mistake or error in any documents, reports, communications or materials provided by it to UP, it shall immediately inform UP.
3. Fees and Expenses
3.1 The Contractor's fees for providing the Services shall be as set out in the Online form and UP shall pay all fees and other payments at such times and in such manner as set out in this Agreement.
3.2 Where invoices issued by the Contractor are subject to VAT UP accepts that it shall be responsible for payment of the same unless otherwise stated in the relevant purchase order.
3.3 Unless expressly agreed in writing between the Contractor and a director of UP, UP shall not be responsible for any costs or expenses incurred by the Contractor, including but not limited to document production, travel and temporary living expenses in relation to the Engagement.
3.4 All invoices validly issued by the Contractor pursuant to this Agreement shall be payable within 30 days of their date of receipt by UP, unless stated otherwise in the relevant purchase order.
3.5 Where UP requests that the Contractor performs services which fall outside the scope of the Services then:
3.5.1 the parties agree that it is their intention that such services shall be contracted for in a separate purchase order; and
3.5.2 where no such agreement is concluded prior to such services commencing, the Contractor shall not be entitled to invoice UP for such services otherwise than as expressly agreed in writing.
4. Withdrawal of Services
UP reserves the right to terminate the Services and/or the Agreement without notice, liability or penalty if in its reasonable opinion the continuing provision of the Services might expose it to the risk of criminal or civil penalties, in particular (but not exclusively) in respect of the Insolvency Act 1986, the Bribery Act 2010, the Modern Slavery Act 2015 or any environmental or health and safety legislation.
5. Contractor's Status
5.1 The parties declare that it is their intention that the Contractor shall have the status of an independent contractor and nothing in the Agreement or by virtue of performing it
shall be taken as creating a relationship of employer/employee, agent/principal, partnership or joint venture between UP and the Contractor and/or its consultants, sub-contractors or staff.
5.2 For the avoidance of doubt, nothing in this Agreement will make any individuals that the Contractor may make available to UP in connection with the provision of the Services an employee of UP or be construed as having such effect.
5.3 Any views expressed or recommendations made by the Contractor during the Engagement are advisory only and it will be for UP and its board of directors to decide the appropriate course of action to be taken by it in each instance.
6. Employment
6.1 The Contractor shall not, at any time from the date of this Agreement to twelve (12) months after its expiry make any attempt to solicit or entice away from UP, or otherwise employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of UP in the provision of the Services.
6.2 If the Contractor (or any of its affiliates or group companies) employs or contracts with any person who is or has been engaged as an employee, consultant or subcontractor of UP in the provision of the Services, either during such provision or within the period of twelve (12) months after termination or expiry of this Agreement, the Contractor shall pay UP within 30 days an amount equal to two (2) times the gross salary (or annual contracted fees) of that person in their final year of engagement at UP.
7. Limit of Our Liability
7.1 UP' aggregate liability in respect of any losses, damages, liabilities, costs, interest, charges or expenses that the Contractor may suffer or incur and which are occasioned by or result from or are attributable to the Services provided for UP under this Agreement or any transaction to which the Services relate ('Losses'), shall be limited to the value of the Fees paid by UP in the twelve (12) month period immediately prior to the date on which the Contractor's right to claim damages first arose.
7.2 In any event, UP shall not be liable to the Contractor (in breach of contract, tort, breach of statutory duty or otherwise) for any indirect or consequential losses, nor for any loss of profit, revenue, business, data, failure to make anticipated savings, damage to reputation or goodwill, howsoever arising and whether reasonably foreseeable or not and even if UP had been advised of the possibility of such loss in advance.
7.3 Nothing in this clause 7 shall or is intended to have the effect of excluding or limiting any liability of UP that cannot be lawfully excluded or limited.
8. Confidentiality
8.1 For the purpose of this clause the term 'Confidential Information' shall mean all information of a confidential nature (which is either clearly marked as confidential or which a reasonable individual would recognise as having the quality of confidentiality) disclosed by or on behalf of UP to the Contractor in any medium and by any method including all business and financial information.
8.2 The Contractor shall treat as confidential and shall not without UP' prior written consent disclose any Confidential Information that it receives from UP concerning its business or affairs, or that of its clients, other than to those persons engaged by it in the provision of the Services, who need to know the same for the provision of the Services and who have given suitable undertakings in respect of confidentiality and; except to the extent that such information is already in the public domain or is required to be disclosed by law, court proceedings or regulations. The Contractor shall not use any Confidential Information for any commercial purpose, nor to gain any commercial advantage, outside of its performance of its obligations pursuant to this Agreement.
8.3 The Contractor specifically acknowledges that UP' working methodologies, proprietary software and tools are highly sensitive to its business and shall be considered to be Confidential Information for the purposes of this Agreement.
9. Data Protection
9.1 For the purpose of this clause the following terms shall have the following meanings:
9.1.1 Data Controller: shall have the meaning of ‘data controller' set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(7) of the GDPR or the equivalent clause of such legislation which may implement the same in the UK.
9.1.2 Data Processor: shall have the meaning of ‘data processor' set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning of ‘processor' set out in Article 4(8) of the GDPR or the equivalent clause of such legislation which may implement the same in the UK.
9.1.3 Data Protection Legislation: means, for such time as they are in force in England and Wales, the DPA, the GDPR and all related legislation which may supplement, amend or replace them and which relates to the protection of individual's rights in their personal data and the protection of their privacy.
9.1.4 Data Subject: an individual who is the subject of Personal Data.
9.1.5 DPA: means the Data Protection Act 1998.
9.1.6 EEA: means the European Economic Area and also includes the United Kingdom whether or not it is a member of the European Economic Area.
9.1.7 GDPR: means Regulation (EU) 2016/679 and/or such legislation as may give effect to its terms in England and Wales.
9.1.8 Personal Data: has the meaning set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(1) of the GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this Agreement to the other.
9.1.9 Processing and Process: have the meaning set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(2) of the GDPR.
9.2 UP and the Contractor agree that for the Purposes of Data Protection Legislation that UP shall be the Data Controller and the Contractor shall be the Data Processor in respect of any Personal Data which is transferred from UP to the Contractor under the terms of this Agreement.
9.3 As a Data Processor the Contractor shall Process the Personal Data only in accordance with UP' instructions and shall not Process the Personal Data for any purpose other than enabling it to fulfil its obligations pursuant to this Agreement or to perform any other activity which it may be expressly authorised to perform by UP from time to time.
9.4 Where a party is a Data Processor pursuant to this Agreement it shall take steps to ensure that its employees and agents are informed of its obligations in relation to Personal Data and that they hold, and shall Process such information in accordance with the Data Processor's obligations, in confidence and in accordance with all relevant Data Protection Legislation.
9.5 The types of Personal Data that the parties foresee will be given by the Data Subjects, or someone acting on their behalf, and then collected, transferred and held by the parties in pursuance of the activities contemplated by this Agreement will include, but not be limited to:
9.5.1 Passport details;
9.5.2 Names; E-mail addresses; Date of Birth; Postal addresses; Medical conditions;
9.5.3 Next of kin information;
9.5.4 Bank details; and
9.5.5. Any other records required to be held for relevant legal compliance.
9.6 The Data Processor shall only Process the Personal Data identified in 9.5 to the extent necessary to:
9.6.1 perform its obligations pursuant to the terms of the Agreement;
9.6.2 pass information to end clients for booking travel arrangements and contacting the Data Processor directly; and / or
9.6.3 in accordance with the Data Controller's reasonable, lawful instructions from time to time;
and it shall not Process the Personal Data for any purpose other than enabling it to fulfil its obligations pursuant to this Agreement or to perform any other activity which may be authorised by the Data Controller from time to time.
9.7 The Data Processor will delete or destroy any Personal Data when it is no longer necessary for the purpose(s) for which it was shared.
9.8 Each Party warrants to the other that it will Process the other's Personal Data in compliance with all applicable Data Protection Legislation.
9.9 Where a party to this Agreement becomes a Data Processor pursuant to it, it warrants in relation to the Personal Data in respect of which it is a Data Processor that:
9.9.1 the Data Processor shall take technical and organisational measures to secure relevant Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction, or damage;
9.9.2 it will not transfer any Personal Data outside of the EEA without the prior authorisation of the Data Controller;
9.9.3 it will assist the Data Controller in responding to any requests made by any relevant Data Subject which concern the exercise of that Data Subject's rights under the GDPR;
9.9.4 it will notify the Data Controller, insofar as reasonably possible, of any relevant requests for the disclosure of Personal Data which may be made to it and which it considers that it is legally obliged to respond to;
9.9.5 it shall promptly report to the Data Controller any actual or suspected data breach concerning the Personal Data that relates to this Agreement which comes to its attention and shall in relation to such breaches:
9.9.5.1 do all such things as reasonably necessary to assist the Data Controller in mitigating the effects of the data breach;
9.9.5.2 implement any measures necessary to restore the security of any compromised Personal Data;
9.9.5.3 work with the Data Controller to make any required notifications to the Information Commissioner's Office and affected Data Subjects in
accordance with the Data Protection Legislation (including the timeframes set out therein); and
9.9.5.4 not do anything which may damage the reputation of the Data Controller or that party's relationship with the relevant Data Subjects, save as required by law;
9.9.6 it shall demonstrate to the Data Controller that it complies with Data Protection Legislation; and
9.9.7 it shall hold all Personal Data in confidence, subject to security measures no less rigorous than those which it uses to safeguard its own confidential information.
9.10 Each Party agrees to indemnify and keep indemnified and defend at its own expense the other Party against all costs, claims, damages or expenses incurred by the other Party or for which the other Party may become liable due to any failure by the first Party or its employees or agents to comply with any of its obligations pursuant to this clause 9. In order to avail itself of this indemnity the claiming party must: promptly notify the indemnifier of any relevant claim of which the indemnified party becomes aware; not make any admission of liability or offer to settle in respect of any relevant claim without the prior written permission of the indemnifier; grant the indemnifier full control of all relevant proceedings on request, and provide the indemnifier with such assistance in dealing with such claims as it may reasonably request.
9.11 The Data Processor may not authorise any third party to Process Personal Data provided by the Data Controller without first receiving the Data Controller's explicit and written permission to do so.
9.12 The Data Controller will not authorise any third party to Process Personal Data provided pursuant to this Agreement without first requiring it to agree to terms no less onerous than those in this clause 9 and will only do so for the purposes of verifying the Contractor's identity and to further the provision of the Services.
10. Intellectual Property Rights
10.1 For the purpose of this clause the term 'Intellectual Property Rights' shall mean all patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
10.2 All Intellectual Property Rights arising as a result of performance of the Services and/or any Intellectual Property Rights which may be inherent in any Deliverables created by the Contractor pursuant to this Agreement shall vest in and/or shall be transferred to UP immediately on creation.
10.3 The Contractor hereby acknowledges that UP will retain all Intellectual Property Rights in its own materials and any Intellectual Property Rights which may be inherent in any methodologies, tools and techniques which it may make accessible to the Contractor in the performance of the Services. The Contractor waives any rights or claims which it may have to such Intellectual Property Rights.
11. Term and Termination
11.1 This Agreement will continue and will be extended for a Renewal Term after the expiry of the Initial Term or the then current Renewal Term unless and until this Agreement is terminated in accordance with the provisions of this clause 11.
11.2 UP may, during any Renewal Term, terminate this Agreement by giving the Contractor no less than thirty (30) days' written notice.
11.3 Unless an alternative period is specified in the Online form, the Contractor may terminate this Agreement by giving UP no less than ninety (90) days' written notice, whereby this Agreement shall terminate at the conclusion of the Initial Period or then current Renewal Term.
11.4 Either party may terminate this Agreement forthwith by giving written notice in the event that the other is in material breach of its terms and, that breach being remediable, has failed to remedy that breach within thirty (30) days of being given written notice to do so.
11.5 Either party may terminate this Agreement immediately by providing notice in the event that the other is unable to pay its debts as and when they fall due, is in or is entering into liquidation proceedings, is the subject of bankruptcy proceedings, or is due to be the subject of any analogous event or proceedings in any jurisdiction.
11.6 Termination shall not affect the legal rights and remedies, which may already have accrued prior to termination (including, for the avoidance of doubt, the Contractor's entitlement to receive the Fees in consideration of its performance of the Services prior to the date of termination).
12. General
12.1 This Agreement together with the Online form, any relevant purchase order and any other documents referred to in this Agreement constitutes the entire agreement and understanding between the parties and supersedes all other agreements both written and oral between UP and the Contractor (other than those expressly referred to herein).
12.2 Neither party shall be liable in any way for any delay, or other liability, arising from any failure or delay in performing any of its obligations under this Agreement caused by
any force majeure event. Force majeure shall mean any circumstances which are beyond a party's reasonable control including without limitation war, terrorism, riot, sabotage, vandalism accident, fire, flood, acts of God, strikes, lock-out or other industrial disputes.
12.3 This Agreement and the relationship between the parties shall be governed by and interpreted in accordance with English law.
12.4 The parties agree that the Courts of England are to have exclusive jurisdiction to settle any dispute (including claims for set-off and counterclaim) which may arise in connection with the creation, validity, effect, interpretation or performance of, or the legal relationships established by this Agreement or otherwise arising in connection with this Agreement and for such purposes irrevocably submit to the exclusive jurisdiction of the English Courts.
12.5 No amendments shall be made to this Agreement unless agreed to by the parties in writing.
12.6 Neither party shall be entitled to assign or sub-contract any of its rights under this Agreement without the prior written consent of the other party.
12.7 No third party shall have any rights under the Contract (Rights of Third Parties) Act 1999 in connection with this Agreement.
12.8 Waivers of rights under this Agreement shall only be effective if given in writing. Failures to exercise rights in full or at all shall not be deemed to constitute a waiver.
12.9 Each clause or term of this Agreement constitutes a separate and independent provision. If any of the provisions of this Agreement are judged by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect.
TERMS OF BUSINESS ENDS
