Last reviewed 14th October 2019
1. The provisions of this document (the Standard Terms), together with any accompanying Quote and / or Proposal, constitute a contract (the Contract) between you and PPC Media which becomes binding as set out in clause 2 below.
2. The Contract becomes binding on the parties on the earliest of the following events:
2.1 your indication of acceptance, whether by email, signature, purchase order or any other means, of a Quote and / or a Proposal during the stated validity period of that Quote and / or Proposal (or, if no such validity period is stated, within 14 days of the date of issue of such Quote and / or Proposal);
2.2 your Acceptance of any Deliverables; or
2.3 PPC Media incurring cost liabilities to third parties in respect of the provision of Deliverables to you, with your prior knowledge (unless you have told PPC Media not to incur such costs).
3. You expressly acknowledge and agree that any Quote and / or Proposal issued to you is expressly subject to (and incorporates) the Standard Terms. Accordingly, any purchase order, order confirmation or other form of acceptance by you of a Quote and / or a Proposal which purports to amend or replace the Standard Terms or any provision of the Quote and / or Proposal in question:
3.1 will constitute valid acceptance of the Contract; but
3.2 will not otherwise have the effect of in any way amending or replacing the provisions of the Contract.
4. A Quote or Proposal may contain Special Terms. If so, those Special Terms form part of the Contract and, to the extent they conflict with the Standard Terms, will prevail over the Standard Terms.
5. As set out more fully in clauses 41 to 45 below, Third Party Terms may also apply, in which case they also form part of the Contract as described in clauses 43 and 44 below and, to the extent they conflict with the Standard Terms, will prevail over the Standard Terms, but only in respect of the specific Deliverables to which they relate.
Interpretation
6. The following words and phrases have the meaning set out against them below:
| Accepted | has the meaning given to it in clause 16 below, and Acceptance will be construed accordingly. |
| Affected Party | has the meaning given in clause 23. |
| Binding Third Party Terms | has the meaning given in clause 43. |
| PPC Media | means PPC Media Ltd, a company registered in England and Wales with company number 12150311. |
| PPC Media Equipment | means any physical item provided or made available to you by PPC Media as part of or in support of provision of the Deliverables, ownership of which does not pass to you. |
| PPC Media Intellectual Property Rights | means all Intellectual Property Rights owned by or licensed to PPC Media which are not Developed Intellectual Property Rights. |
| Confidential Information | means all information, in any form, which either:
· the disclosing party tells the receiving party is confidential (including by marking materials containing the information, for example with the marking “confidential”); or · the receiving party ought reasonably to know is confidential or commercially sensitive, and which is not: · publicly known (without any breach by the receiving party); or · independently (and legitimately) known or held by the receiving party. |
| Contract | has the meaning given to it in clause 1 above. |
| Data Protection Legislation | has the meaning given to the term “the data protection legislation” in the Data Protection Act 2018. |
| Deliverables | means any products and / or services provided or to be provided to you by (or on behalf of) PPC Media pursuant to any Quote and / or Proposal, or the Contract. |
| Dependency Failure | means a failure by you to comply with your obligations under the Contract or to provide or otherwise make available (on time, accurately or otherwise) any item, resource, information, access or other thing which PPC Media reasonably requires from you in order to provide the Deliverables to you, the effect of which is to make it impossible or impractical for PPC Media to perform its obligations under the Contract, either at all or without incurring material additional cost or expenditure. |
| Developed Intellectual Property Rights | means all Intellectual Property Rights subsisting in or attached to materials produced exclusively for you in the provision of the Deliverables. |
| General Data Protection Regulation | means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. |
| Illicit Material | means any imagery or other content that is prohibited by law or otherwise highly likely to cause offence, including material relating to child pornography. |
| Intellectual Property Rights | means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. |
| Proposal | means a proposal document (including emails or a response to a competitive tender exercise run by you or on your behalf) issued by an authorised representative of PPC Media, setting out (in more detail than is appropriate for a Quote) the Deliverables which PPC Media is prepared to provide to you, together with the associated price and any applicable Special Terms or Third Party Terms. |
| Quote | means a quote (or quotation) document (including emails) issued by an authorised representative of PPC Media, setting out the Deliverables which PPC Media is prepared to provide to you, together with the associated price and any applicable Special Terms or Third Party Terms. |
| Special Terms | means any specific and express additions to, amendments of or derogations of the Standard Terms set out in writing in any Quote or Proposal. |
| Standard Terms | has the meaning given to it in clause 1 above. |
| the parties | means you and PPC Media together. |
| Third Party Terms | means any contract provisions applicable to any Deliverable which PPC Media sources from a third party on your behalf or in order to be able to provide the Deliverables to you, as set out in a contract between PPC Media and the third party in question (and as may be varied from time to time in accordance with clause 66 below). |
| Time-Based Charges | means the sum calculated pursuant to clause 36 below. |
| Transferring Employee | means an employee who is the subject of a relevant transfer, within the meaning of TUPE. |
| True-Up Sum | has the meaning given in clause 35.2 below. |
| TUPE | means the Transfer of Undertakings (Protection of Employment) Regulations 2006. |
| Malware | means any hardware-hosted and / or software-hosted virus, worm, Trojan horse, ransomware, malware, spyware, security override or other piece of malicious code of any type. |
| Volume-Based Charges | means the sum calculated pursuant to clauses 33 to 35 below. |
| we, us, our | and related terms refer to you and PPC Media together. |
| you, your | and related terms refer to the company or other legal entity to which a Quote or Proposal is addressed, or (if no Quote or Proposal has been issued) to which Deliverables are provided pursuant to the Contract. |
7. Any words following “including”, “includes”, “for example”, “in particular” or any similar expression are illustrative only and do not change the sense of the wider clause they are used in.
Provision of the Deliverables
8. Subject to the terms of the Contract, PPC Media will provide the Deliverables to you:
8.1 in accordance with the applicable Quote and / or Proposal; and
8.2 otherwise, with reasonable skill, care and diligence.
9. Where any times for provision of the Deliverables are set out in any Quote or Proposal:
9.1 PPC Media will use reasonable endeavours to provide the Deliverables in accordance with any such times; and
9.2 unless otherwise expressly set out in any Special Terms, such times are indicative only and are not of the essence of the Contract.
10. Unless otherwise expressly set out in any Special Terms:
10.1 PPC Media’s responsibility in respect of the Deliverables is to provide them in accordance with the applicable Quote and / or Proposal; and
10.2 PPC Media does not warrant that provision of the Deliverables will deliver any specific output or outcome, or achieve any specific performance levels.
11. PPC Media may use sub-contractors and other third party suppliers to support provision of the Deliverables to you, but remains responsible to you for provision of the Deliverables in accordance with the Contract.
12. PPC Media will use suitably qualified and experienced personnel to provide the Deliverables.
13. To the extent that a Dependency Failure impacts on PPC Media’s ability to provide the Deliverables, PPC Media will be relieved from its obligation to provide the affected Deliverables (and any associated liability arising from non-provision of the affected Deliverables), but will be entitled to charge you as if they had been provided.
14. Without prejudice to clause 13 above, PPC Media will ensure that its representatives who are visiting your premises comply with your lawful and reasonable instructions and (where communicated to such representatives) policies whilst at your premises.
15. Unless otherwise expressly agreed in writing, PPC Media will not provide any Deliverables on Christmas Day or New Years’ Day or any Bank Holidays observed in England and Wales.
Acceptance of the Deliverables
16. Except to the extent that other Acceptance criteria have been expressly set out in any applicable Quote and / or Proposal (in which case all relevant Deliverables will be Accepted in accordance with such criteria), you will be deemed to have Accepted a Deliverable on the earliest of the following:
16.1 your express acceptance of the Deliverable, communicated in any form;
16.2 where the Deliverable consists of (or consists primarily of) consumables (including use of bandwidth or storage), immediately on your first use of the Deliverable;
16.3 in cases not covered by clause 16.2 above, 48 hours after your first use of the Deliverable (or any software, hardware or other item in respect of which the Deliverable was provided);
16.4 5 days after provision of the Deliverable or, if it is reasonably practicable for you to identify any shortcomings in the Deliverable within a shorter period, at expiry of such shorter period; or
16.5 where the Deliverable in question is (pursuant to clause 41 below) subject to Third Party Terms and those Third Party Terms deal with the concept of acceptance of the Deliverable, at the time acceptance occurs in accordance with those Third Party Terms.
17. Once you have (or are deemed to have) Accepted a Deliverable you are not entitled to reject it. This does not affect your statutory remedies to the extent that a Deliverable is defective and the defect is such that it could not reasonably have been identified in the applicable time period (or, where set out in a Quote or Proposal, applicable process) for Acceptance.
18. Even if you have Accepted a Deliverable, ownership of it does not pass to you (and therefore, to the extent that such Deliverable is a tangible asset, it constitutes an item of PPC Media Equipment) until you have paid for it in full.
Mutual Rights and Obligations
19. Each of us will at all times fulfil our obligations under or in connection with the Contract in accordance with all applicable law.
20. Neither of us will place (nor allow our respective employees, agents or contractors to place) the other in breach of the Bribery Act 2010, Data Protection Legislation or any other applicable law.
21. Each of us will at all times act reasonably and in good faith in respect of our dealings with each other under the Contract.
22. To the extent that Confidential Information is not dealt with under a separate agreement between us, each of us will:
22.1 not disclose (or allow to be disclosed) any Confidential Information of the other, without express consent from the other (except where legally compelled to so disclose, in which case the party being compelled to disclose will, as far as it is legally permitted to do so, promptly notify the other party of the request for disclosure and withhold disclosure for as long as is legally permitted);
22.2 use the Confidential Information only for the purpose of fulfilling our respective obligations under the Contract or our legal obligations (but excluding contractual obligations owed to a third party);
22.3 promptly, on either request from the other party or termination (or expiry) of the Contract, return to the other party all their Confidential Information or, where return is impractical, destroy such Confidential Information, provided that nothing in this provision will prevent a party from retaining a copy of any Confidential Information to the extent they are legally required to do so and have notified the other party that this is the case (in which case the restrictions in clauses 22.1 and 22.2 above will continue to apply to such retained copy).
23. To the extent that either party (the Affected Party) is unable to fulfil its obligations under the Contract due to an event or set of circumstances beyond its reasonable control, then:
23.1 provided the Affected Party is continuing to use all reasonable endeavours to overcome such impact, it will be relieved from such obligations for so long as such impact subsists;
23.2 if such impact continues for three months or more, the other party may serve notice on the Affected Party to terminate the Contract, pursuant to clause 57.4 or 56.3 (as relevant) below;
23.3 to the extent that, pursuant to this clause 23, PPC Media is relieved from its obligation to provide the Deliverables, it is not entitled to be paid for any Deliverables not provided; and
23.4 nothing in this clause 23 will relieve you from your obligation to pay for Deliverables provided to you or your obligation to pay interest on late payments as set out in clause 29 below.
Your Payment Obligations
24. You will pay PPC Media as follows:
24.1 to the extent the Quote and / or Proposal indicates that a Deliverable is to be paid on a “fixed sum” basis (or similar language), in accordance with clause 25 below;
24.2 to the extent the Quote and / or Proposal indicates that a Deliverable is to be paid on a “milestone” basis (or similar language), in accordance with clause 26 below;
24.3 to the extent the Quote and / or Proposal indicates that a Deliverable is to be paid on a “volume-based” basis (or similar language), in accordance with clause 27 below; and
24.4 to the extent the Quote and / or Proposal indicates that a Deliverable is to be paid on a “time and materials” basis (or similar language), or Deliverables are provided for which no payment basis is specified, in accordance with clause 28 below.
25. Where this clause applies (pursuant to clause 24 above):
25.1 PPC Media will invoice you the fixed sum in question following your Acceptance of the Deliverables in question;
25.1.1 at the end of each month during provision of the Deliverables in question, and at the same time as invoicing you under clause 25.1 above, PPC Media may also invoice you for the following in respect of provision of the Deliverables in question, as incurred during the preceding month (or part-month), to the extent that such amounts are not expressly covered under the fixed sum in question:
(a) any sums due under applicable Third Party Terms;
(b) any out-of-pocket expenses reasonably and properly incurred by PPC Media or its representatives, including (unless the Quote or Proposal states otherwise) travel, accommodation and subsistence expenses (with travel by car calculated at the rate of £0.50 per mile); and
(c) the cost of any materials used solely in provision of the Deliverables in question to you./p>
2.1.2 OR at the start of each month during the provision of the Deliverables in question, and at the same time as invoicing you under clause 25.1 above, PPC Media may also invoice you for the following in respect of provision of Deliverables in question, which will be incurred as agreed during the following month (or part-month), to the extent that such amounts are not expressly covered under the fixed sum in question:
(a) any sums due under applicable Third Party Terms;
(b) any out-of-pocket expenses reasonably and properly incurred by PPC Media or its representatives, including (unless the Quote or Proposal states otherwise) travel, accommodation and subsistence expenses (with travel by car calculated at the rate of £0.50 per mile); and
(c) the cost of any materials used solely in provision of the Deliverables in question to you; and
25.1.3 you must pay such invoiced sums so that they reach PPC Media’s nominated bank account in cleared funds on or before the due date indicated in the “Payment Terms” section of the applicable Quote and / or Proposal.
26. Where this clause applies (pursuant to clause 24 above):
26.1 PPC Media will invoice you the relevant milestone sum in question following completion or achievement of each milestone (as evidenced in the manner set out in the Quote and / or Proposal or, if no such detail is set out, as objectively evidenced by any reasonable means, including your Acceptance of any Deliverables comprising such milestone) as set out in the Quote and / or Proposal;
26.2 at the end of each month during provision of the Deliverables in question, and at the same time as invoicing you under clause 26.1 above, PPC Media may also invoice you for the following in respect of provision of the Deliverables in question, as incurred during the preceding month (or part-month), to the extent that such amounts are not expressly covered under the milestone sum in question:
(a) any sums due under applicable Third Party Terms;
(b) any out-of-pocket expenses reasonably and properly incurred by PPC Media or its representatives, including travel, accommodation and subsistence expenses (with travel by car calculated at the rate of £0.50 per mile); and
(c) the cost of any materials used solely in provision of the Deliverables in question to you; and
26.3 you must pay such invoiced sums so that they reach PPC Media’s nominated bank account in cleared funds on or before the due date indicated in the “Payment Terms” section of the Quote and / or Proposal.
27. Where this clause applies (pursuant to clause 24 above):
27.1 PPC Media will invoice you:
(a) for Deliverables which are stated in the Quote and / or Proposal as being billable in arrears, at the end of each month of provision of the Deliverables in question, the Volume-Based Charges for the preceding month; and
(b) for all other Deliverables to which this clause applies, at the start of each month of provision of the Deliverables in question, the Volume-Based Charges for that month based on the level of consumption deemed under clause 34 below, with the True-Up Sum element of such Volume-Based Charges to be separately invoiced at the end of such month or, at PPC Media’s discretion, included in the invoice for the following month.
27.2 at the same time as invoicing you under clause 27.1 above, PPC Media may also invoice you for the following in respect of provision of the Deliverables in question, as incurred during the preceding month, to the extent that such amounts are not expressly covered under the Volume-Based Charges:
(a) any sums due under applicable Third Party Terms;
(b) any out-of-pocket expenses reasonably and properly incurred by PPC Media or its representatives, including travel, accommodation and subsistence expenses (with travel by car calculated at the rate of £0.50 per mile); and
(c) the cost of any materials used solely in provision of the Deliverables in question to you; and
27.3 you must pay such invoiced sums so that they reach PPC Media’s nominated bank account in cleared funds on or before the due date indicated in the “Payment Terms” section of the applicable Quote and / or Proposal.
28. Where this clause applies (pursuant to clause 24 above):
28.1 PPC Media will invoice you at the end of each month of provision of the Deliverables in question for the Time-Based Charges for the preceding month;
28.2 at the same time as invoicing you under clause 28.1 above, PPC Media may also invoice you for the following in respect of provision of the Deliverables in question, as incurred during the preceding month, to the extent that such amounts are not expressly covered under the Time-Based Charges:
(a) any sums due under applicable Third Party Terms;
(b) any out-of-pocket expenses reasonably and properly incurred by PPC Media or its representatives, including travel, accommodation and subsistence expenses (with travel by car calculated at the rate of £0.50 per mile);
(c) the cost of any materials used solely in provision of the Deliverables in question to you; and
(d) any other cost reasonably, properly and directly incurred by PPC Media in providing the Deliverables in question to you; and
28.3 you must pay such invoiced sums so that they reach PPC Media’s nominated bank account in cleared funds on or before the due date indicated in the “Payment Terms” section of the applicable Quote and / or Proposal.
29. To the extent that you do not pay any sums due under the Contract by the relevant due date, you must also pay interest to PPC Media on such sums at the annual rate of 5% above the base lending rate from time to time of Barclays Bank, accruing on a daily basis until payment is made, whether before or after any judgment. This is without prejudice to any other remedies PPC Media may have in respect of such late payment, including entitlement to recover from you PPC Media’s costs (including legal costs) of enforcing payment.
30. To the extent that you do not pay any sums due under the Contract by the relevant due date, and any such sum remains unpaid 20 days after the relevant due date and after at least 2 requests (by any method) for payment, on separate days, we may suspend provision of any and all ongoing or outstanding Deliverables without incurring any liability to you in respect of such suspension. Any such suspension will not relieve you of your obligation to pay any sums due under applicable Third Party Terms in respect of the suspended Deliverables, and is without prejudice to our wider rights and remedies (including the right to commence formal legal proceedings against you for recovery of the sums due (plus interest pursuant to clause 29 above) and any other losses we suffer as a result of your non-payment or the suspension of the Deliverables).
31. Unless otherwise expressly stated, all amounts shown in the Quote and / or Proposal are exclusive of VAT, which PPC Media will add to its invoices and which shall be payable by you at the prevailing rate.
32. You must raise any disputes in respect of invoices issued to you under the Contract by the earlier of:
32.1 the due date for payment of the disputed sum(s); or
32.2 the date falling 14 days after the date of issue of the invoice in question.
33. The Volume-Based Charges for a month (or such other period as may be specified in the Quote and / or Proposal) will be calculated as follows:
33.1 your consumption of units of the Deliverable in question for the period in question (for example, monthly amount spent on Google Ads) will be ascertained (or deemed in accordance with clause 34 below);
33.2 that level of consumption will be multiplied by the applicable unit price, or otherwise used to establish the applicable price (for example, where a fixed price is payable for all consumption falling within a particular band of consumption) to give the total amount payable for the Deliverable in question for the period in question;
33.3 the steps in clauses 33.1 and 33.2 will be repeated for each relevant Deliverable, with the results the aggregated; and
33.4 any True-Up Sum due, as identified pursuant to clause 35.2 below will be added on.
34. Whilst PPC Media reserves the right to take steps to ascertain your level of consumption of units of Deliverables which are subject to Volume-Based Charges (and you must promptly on request provide PPC Media with such information and access to premises, systems, people and records as PPC Media may reasonably require to verify the same), it is your responsibility to notify PPC Media of any changes to such consumption as against the baseline level set out in the Quote and / or Proposal or the level for the previous month (or other relevant period), as the case may be. In the absence of any such notification or PPC Media ascertaining your level of consumption, your consumption will (without prejudice to clause 35 below) be deemed to be the same as the baseline level set out in the Quote and / or Proposal or, if different, the level for the previous month (or other relevant period).
35. Where it is subsequently identified that any deemed level of consumption pursuant to clause 34 above is inaccurate, then:
35.1 to the extent that the deemed level of consumption was too high, there will be no adjustment to previous Volume-Based Charges; and
35.2 to the extent that the deemed level of consumption was too low, PPC Media will be entitled to invoice you an amount to be included as Volume-Based Charges (the True-Up Sum) reflecting, for each month (or other relevant period) in which the previously-invoiced Volume-Based Charges were affected by the deemed level of consumption being too low, the difference between Volume-Based Charges based on the relevant deemed level of consumption and Volume-Based Charges based on the (subsequently-identified) true level of consumption.
36. The Time-Based Charges for a month (or such other period as may be specified in the Quote and / or Proposal) will be calculated by reference to PPC Media’s standard daily fee rates, as amended from time to time in accordance with clause 37 below (and subject to any amendments to such rates set out in any Special Terms), and in accordance with the following principles:
36.1 PPC Media’s standard daily fee rates for each individual engaged by PPC Media shall be calculated on the basis of an eight-hour working day, falling entirely within Standard Hours for the Deliverable in question, pro-rated as necessary using 30-minute units (or such other unit as is specified in the Quote and / or Proposal);
36.2 where any individual is (without prejudice to clause 15 above) required to work outside of Standard Hours for the Deliverable in question, the fee rates used to calculate the Time-Based Charges will be uplifted as follows:
(a) 200% of the standard daily fee for work carried out on a Sunday or Bank Holiday or other statutory holiday in England, pro-rated as necessary using 30-minute units (or such other unit as is specified in the Quote and / or Proposal); and
(b) 150% of the standard daily fee for work carried out Monday to Saturday inclusive, pro-rated as necessary using 30-minute units (or such other unit as is specified in the Quote and / or Proposal); and
36.3 PPC Media will ensure that every individual whom it engages to provide any Deliverables that are subject to Time-Based Charges will complete time sheets recording time spent providing those Deliverables, and these will be used to calculate the Time-Based Charges.
37. PPC Media may, on up to 2 occasions in any calendar year, amend its standard daily fee rates as used to calculate Time-Based Charges, with such amendment to be treated as an update to these Standard Terms in accordance with (and subject to) clause 64 below.
Your Other Obligations
38. You are responsible for ensuring that all information provided by you (or on your behalf) to PPC Media in support of or in relation to PPC Media’s provision of the Deliverables, whether such information was provided before the date of the Contract or is provided after that date, is complete and accurate in all material respects.
39. You must:
39.1 ensure a safe working environment for all PPC Media personnel attending your premises;
39.2 inform PPC Media of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the your premises;
39.3 except to the extent that this is expressly PPC Media’s responsibility (as an express Deliverable), obtain and maintain all necessary software licences and consents for the systems used by you for the duration of the Contract;
39.4 except to the extent that responsibility for this is expressly PPC Media’s (as an express Deliverable), take all reasonable steps to keep your systems free of Malware and, in particular, ensure that no PPC Media Equipment is infected with any Malware.
40. You must take all necessary steps to ensure that your systems and all PPC Media Equipment remain at all times free of Illicit Material. Where, despite this obligation, a PPC Media representative or item of PPC Media Equipment is exposed to Illicit Material, you:
40.1 acknowledge and accept that PPC Media or its representative may report this to the police or any other relevant oversight organisation without that constituting a breach of clause 22 or any other obligation owed to you under the Contract or otherwise;
40.2 acknowledge and accept that this may constitute a Dependency Failure; and
40.3 agree to take full legal and financial responsibility for all liabilities or costs arising from the same.
Third Party Terms
41. Where any Quote and / or Proposal indicate(s) that any Deliverable is subject to Third Party Terms, those Third Party Terms will apply to the Contract as set out in clauses 43 and 44 below.
42. PPC Media will provide to you copies of any Third Party Terms (or relevant extracts of them) that apply to you.
43. Where a Quote and / or Proposal indicates that specific provisions of the Third Party Terms are to be directly binding on you (the Binding Third Party Terms), those provisions will be deemed to be incorporated into the Contract, with:
43.1 references to PPC Media (under whatever terminology) replaced with references to you;
43.2 references to the third party supplier in question replaced with references to PPC Media; and
43.3 any other changes made to the extent necessary to make such provisions work in the context of the Contract.
44. To the extent that a Quote and / or Proposal indicates that Third Party Terms apply, but does not indicate that they are Binding Third Party Terms:
44.1 you must not do (or omit to do) anything which places PPC Media in breach of the Third Party Terms;
44.2 the amount payable by you in respect of Deliverables covered by the Third Party Terms, in accordance with clause 25.2(a), 26.2(a), 27.2(a) and / or 28.2(a) (as relevant), will be the amount which PPC Media is obliged to pay for such Deliverables under such Third Party Terms;
44.3 any limitations, conditions or qualifications in the Third Party Terms on or of what the third party supplier in question is obliged to do, provide or be liable for will be deemed to be included in the Contract as limitations on what PPC Media is obliged to do, provide or be liable for;
44.4 PPC Media has no liability to you in respect of the quality, fitness for purpose, characteristics or workmanship of any Deliverables governed by Third Party Terms beyond that of the third party supplier in question;
44.5 where the Third Party Terms set out a process for PPC Media’s exercise of any remedies against the third party supplier in question, you must do everything within your control to enable PPC Media to comply with such remedy in order to exercise any equivalent remedy against PPC Media under the Contract;
44.6 any minimum term for provision of the Deliverables that is set out in the Third Party Terms (including any extension of that minimum term, by auto-renewal or otherwise, subject to your compliance with clause 44.7 below) will be binding on you, notwithstanding the duration of the Minimum Term; and
44.7 to the extent that PPC Media is required, under the Third Party Terms, to give the third party supplier in question advance notice of:
(a) any change to the Deliverables or other change in the requirements (including ceasing provision of any Deliverables); or
(b) any opt-out from auto-renewal of provision of Deliverables,
and you wish to make such a change under the Contract, it is your responsibility to notify PPC Media of such a change or opt-out at least 7 days before the last day on which PPC Media can give such notice under the Third Party Terms.
45. You are liable to PPC Media for any failure to comply with any Binding Third Party Terms or any of the provisions of clause 44 above.
Personnel
46. During the term of the Contract and for a period of 6 months afterwards, you will not (and will not cause or incite any third party to) solicit any PPC Media employee away from their employment. You will be deemed to be in breach of this clause 46 where:
46.1 within the period described above, any PPC Media employee leaves PPC Media’s employment to employment by you or any third party associated with you (including members of your corporate group); and
46.2 you are not able to demonstrate, to PPC Media’s reasonable satisfaction, that such change in employment arose as a result of the employee in question responding to a genuine and openly-advertised vacancy which neither you nor any third party associated with you took any steps to bring to the specific attention of such employee.
47. You warrant that no employees (either your own or those of one of your other suppliers) will transfer to employment by PPC Media as a Transferring Employee as a result of PPC Media committing to provide the Deliverables (or accepting any change to the Deliverables). If such a situation nonetheless arises, you hereby indemnify and hold PPC Media harmless from and against all costs, charges, damages, penalties, losses, expenses (including reasonable legal expenses) and liabilities arising from:
47.1 any and all claims and liabilities based on or arising from events or circumstances that occurred or prevailed before the date of the relevant transfer (as such term is defined in TUPE);
47.2 any claim for dismissal (whether unfair or otherwise) brought by the Transferring Employee at any time in respect of a dismissal (or purported dismissal) occurring within 6 months after the date of the relevant transfer (as such term is defined in TUPE).
Intellectual Property
48. At no time will you gain ownership of any PPC Media Intellectual Property Rights under this Contract.
49. PPC Media hereby grants to you (to the extent any third party licence terms imposed on PPC Media permit it to do so) at no additional charge a worldwide, non-exclusive licence to use the PPC Media Intellectual Property Rights to the extent necessary to enable you to receive, use and / or derive the intended benefit from the Deliverables provided by PPC Media, provided that:
49.1 you may only sub-license such licence in accordance with and subject to the restrictions of this clause 49; and
49.2 nothing in this clause 49 permits you or any sub-licensee to use any PPC Media Intellectual Property Rights in competition with PPC Media or any other party identified to you by PPC Media.
50. You acknowledge that, without prejudice to its rights to enforce clause 49 above (and its remedies under that clause), PPC Media may take reasonable steps, including the use of security controls, monitoring software and user account controls, to monitor and pro-actively promote compliance with the provisions of clause 49 above.
51. Until you have paid PPC Media in full all sums payable under the Contract, PPC Media licenses the Developed Intellectual Property Rights to you on terms equivalent to those set out in clause 49 above. Immediately on full payment of all sums payable under the Contract, PPC Media hereby assigns to you (by way of present assignment of future rights) ownership of the Developed Intellectual Property Rights, subject to the provisions of clause 52 below.
52. Immediately on your assumption of ownership of the Developed Intellectual Property Rights pursuant to clause 51 above, unless the Special Terms expressly say otherwise you hereby grant to PPC Media (by way of present grant of future rights) a worldwide, royalty-free, non-exclusive and perpetual licence to use the Developed Intellectual Property Rights to promote PPC Media and to enable PPC Media to provide products and / or services to others, provided that:
52.1 PPC Media may only sub-license such licence in accordance with and subject to the restrictions of this clause 52; and
52.2 nothing in this clause 52 permits PPC Media or any sub-licensee to use any Developed Intellectual Property Rights in competition with you.
Data Protection
53. Where, in the course of providing the Deliverables, PPC Media processes any personal data made available by you or resident on your systems, it does so as your sub-processor. Accordingly:
53.1 you hereby authorise and instruct PPC Media to process all such personal data as required to provide the Deliverables and comply with all applicable law;
53.2 it is your responsibility to ensure that all such processing by PPC Media is (assuming it is duly performed in accordance with clause 53.1 above) is permitted by Data Protection Legislation and that, in particular, a lawful basis for such processing exists and you have complied with your transparency obligations owed to data subjects; and
53.3 you hereby indemnify and hold PPC Media harmless from and against all costs, charges, damages, penalties, losses, expenses (including reasonable legal expenses) and liabilities arising from:
(a) any breach of clause 53.2 above; and
(b) PPC Media’s compliance with the provisions incorporated by clause 54 below.
54. Without prejudice to clause 53 above, where, pursuant to the Contract, PPC Media processes any personal data on your behalf, the Contract is deemed to incorporate all clauses required to give effect to Article 28(3) of the General Data Protection Regulation in respect of such processing.
Term and Termination
55. The Contract will commence on the date it becomes binding pursuant to clause 2 above and will end on the earlier of:
55.1 its termination in accordance with any provision of clause 56 or 57 below; or
55.2 the expiry date set out in the Quote and / or Proposal (or, if no such date is specified, the date of PPC Media’s provision of the last Deliverable).
56. You may terminate the Contract as follows:
56.1 immediately by written notice to PPC Media where PPC Media has committed a material breach of a material provision of the Contract and, where such breach is capable of remedy, you have previously notified PPC Media of the breach in writing and afforded PPC Media a reasonable period within which to remedy such breach;
56.2 immediately by written notice to PPC Media where PPC Media is subject to any proceedings in bankruptcy, insolvency or winding-up, or the appointment of an assignee for the benefit of creditors or of a receiver, or any similar situation arising;
56.3 by provision of at least 10 days’ advance written notice to PPC Media where PPC Media is the Affected Party and the provisions of clause 23.2 above permit termination; or
56.4 after the Minimum Term has expired, for convenience by provision of at least 10 days’ advance notice in writing to PPC Media (provided that any notice served before expiry of the Minimum Term will be deemed to be served on the first day following expiry of the Minimum Term).
57. PPC Media may terminate the Contract as follows:
57.1 immediately by written notice to you where you have committed a material breach of a material provision of the Contract and, where such breach is capable of remedy, PPC Media has previously notified you of the breach in writing and afforded you a reasonable period within which to remedy such breach;
57.2 immediately by written notice to you where:
(a) you have failed to pay any sum to PPC Media by its due date and such sum remains unpaid following at least 3 written overdue payment reminders by PPC Media, the last of which must have been served on you at least 30 days previously and reminded you that termination of the Contract is a possible remedy; or
(b) the total amount of sums not paid by you to PPC Media by their due date (including interest on such sums as applied pursuant to clause 29 above) at any time exceeds £10,000 or 50% of all sums payable over the term of the Contract (or, if such term exceeds or could exceed one year, over one year of the Contract), whichever is the lower.
57.3 immediately by written notice to you where you are subject to any proceedings in bankruptcy, insolvency or winding-up, or the appointment of an assignee for the benefit of creditors or of a receiver, or any similar situation arising;
57.4 by provision of at least 10 days’ advance written notice to you where you are the Affected Party and the provisions of clause 23.2 above permit termination; or
57.5 after the Minimum Term has expired, for convenience by provision of at least 10 days’ advance notice in writing to you (provided that any notice served before expiry of the Minimum Term will be deemed to be served on the first day following expiry of the Minimum Term).
Consequences of Termination
58. Termination of the Contract will not affect any rights or liabilities accrued before such termination and will not affect the continued application of any provision of the Contract to the extent it is, expressly or implicitly, is intended to survive termination of the Contract, including clauses 19 to 22, 24 to 26, 39.5 to 39.8, 46, 48. 49 (subject to clause 62), 51 (subject to clause 62), 52, 53.3, 60 to 63, 68 to 70, 76 and 77, together with any other provision required to give effect to the same.
59. Termination of the Contract will not, unless expressly stated otherwise in the Third Party Terms or the Special Terms, affect the continued application of the Third Party Terms in accordance with clauses 43 to 45.
60. Where the Contract terminates for any reason:
60.1 PPC Media will be entitled to invoice for payment against all Deliverables provided but not yet invoiced for as at the date of termination;
60.2 you must promptly return to PPC Media (or, at PPC Media’s choice, destroy in accordance with PPC Media’s reasonable instructions or make available for collection by PPC Media) all PPC Media Equipment in your possession or at premises occupied or used by you; and
60.3 clause 22.3 above will apply.
61. Where the Contract is terminated pursuant to clause 56.4, 57.1, 57.2 or 57.3:
61.1 all invoiced sums will become immediately due at the point of such termination; and
61.2 you must, before or immediately following such termination, pay to PPC Media all sums (including cancellation costs and charges where relevant) payable under any applicable Third Party Terms for the remainder of any applicable minimum term under such Third Party Terms.
62. Where the Contract is terminated pursuant to clause 57.2 or 57.3, all licences granted to you (and all sub-licences under them) pursuant to clauses 49 and 51 will also terminate with effect from the date of termination of the Contract.
63. The provisions of clauses 60 to 62 above are without prejudice to the wider rights and remedies of either party in respect of termination of the Contract or the events or circumstances giving rise to such termination.
Changes to Contract
64. PPC Media may from time to time update these Standard Terms, subject to providing you with at least 45 days’ prior written notice (setting out the changes to apply). If you do not accept the changes in question you must notify PPC Media before expiry of that notice period, failing which the Standard Terms updated will apply from the end of that notice period. If you object to the changes in question and you and PPC Media are not able to agree on alternative terms before expiry of the notice period stated above, the Contract will, at expiry of that notice period, terminate without further notice (and be treated as having been terminated pursuant to clause 57.5 above, notwithstanding that such termination may take place prior to the expiry of any Minimum Term).
65. PPC Media may at any time (without clause 64 above applying) make changes to the way in which the Deliverables are provided which do not adversely or materially change the features or functionality of the Deliverables and do not materially and adversely affect your rights and remedies under the Contract (including, for example, changes to resources used or hours of operation). If we agree to any other changes to the applicable Quote and / or Proposal, including any Special Terms, they are not valid unless and until expressly agreed by our respective authorised representatives in writing (including emails). Any such change is an amendment to the existing Contract and does not create a new Contract.
66. The Third Party Terms (including any increases to prices thereunder) may be varied in accordance with the Third Party Terms, and any such variation will become binding at the same time it becomes binding under the Third Party Terms or, if later, the earliest of:
66.1 the date on which the variation is communicated to you by PPC Media;
66.2 the date on which the variation is communicated to you by any other third party; or
66.3 the date on which you ought reasonably to have otherwise become aware of it.
67. PPC Media will give as much advance notice as reasonably possible of any such variations to the Third Party Terms (including any increases to prices thereunder), but no failure to do so will prevent the variation from becoming binding as set out in clause 66 above.
Other Legal Terms
68. You will at no time obtain any lien or other right over any PPC Media Equipment, and will at all times ensure that all PPC Media Equipment is clearly marked as the property of PPC Media and is, as far as possible, kept separate from your own property.
69. You hereby grant PPC Media (or its appointed representatives) such immediate and unimpeded access to any premises where PPC Media Equipment is located as PPC Media may require to verify compliance with clause 68 above or to enforce compliance with clause 60.2 above.
70. Nothing in the Contract limits or excludes PPC Media’s liability for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation, or in any other manner not permitted by law, but otherwise PPC Media will in no circumstances be liable under or in connection with the Contract for:
70.1 any loss of profits, loss of business, loss of contract, loss or corruption of data or information;
70.2 any other special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
70.3 any amount exceeding the total sums paid or payable by you for provision of the Deliverables, either:
(a) in total, where the term of the Contract is less than one year; or
(b) where the term of the Contract is one year or more, as an annual mean average (based on historic values, pro-rated as necessary, to the extent that the sums payable by you for any unexpired portion of the term of the Contract are uncertain); or
70.4 any liability relating to or arising from defects in any PPC Media Equipment, to the extent that such liability exceeds the liability to PPC Media of the third party which supplied such PPC Media Equipment to PPC Media.
71. Neither party may assign or otherwise transfer the Contract or any part of it without the express consent of the other.
72. The Contract constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of the Contract.
73. Each party acknowledges that, in entering into the Contract, it does not rely on any statement, representation, assurance or warranty of any person (whether or not that person is a party to the Contract) other than as expressly set out in the Contract.
74. Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other.
75. All notices and other communications in respect of the Contract must be in English.
76. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
77. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) that arises out of or in connection with the Contract or its subject matter or formation.
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