Vizintel Terms and Conditions
This version of these terms and conditions is dated: 01.01.25
1. Definitions
The following definitions and rules of interpretation apply in this Agreement:
“Affiliate” means, in respect of a party to this Agreement, any legal entity which
controls, is controlled by, or is under common control with that party, where “control” has the meaning
given to it in s1124 of the Corporation Tax Act 2010.
“Agreement” has the meaning given in clause 2.1.
“Associates” means a party’s employees, officers, agents, sub-contractors, or authorised
representatives.
“Authorised Client Entity(ies)” means any Affiliates of the Client which are named as
Authorised Client Entities on the Statement of Work.
“Authorised Users” means those officers, employees, agents, and independent contractors of
the Client and each other Authorised Client Entity who are authorised by the Client to use the Services and
the Insights.
“Business Day” means a day (other than a Saturday or a Sunday) on which the clearing banks
in the City of London are open for business.
“Client” means the party specified in the relevant Statement of Work.
“Client Data”
Means:
- a) Data uploaded to a Platform by the Client;
- b) Any survey data owned by or licensed to the Client that is provided to Vizintel and/or its Associates
by or on behalf of the Client for use in the provision of the Services; or
- c) Client Personal Data.
“Client Materials”
Means any data (including the Client Data), equipment, computer systems, software, documents, copy,
Intellectual Property Rights, artwork, logos, and any other materials or information owned by or licensed to
the Client that are provided to Vizintel and/or its Associates by or on behalf of the Client for use in the
provision of the Services.
“Client Personal Data”
Shall mean personal data:
- a) Supplied to Vizintel by or on behalf of the Client; and/or
- b) Obtained by, or created by, Vizintel on behalf of the Client in the course of delivery of Services,
And in each case where such personal data is processed by Vizintel for and on behalf of the Client in the
performance of Services.
“Commencement Date”
Means the date set out in the Statement of Work.
“Created Materials”
Means those materials specifically created for the purposes of the Services by or on behalf of Vizintel
(including any materials adapted, modified, or derived from the Client Materials but excluding any Insights)
and which may be incorporated into Deliverables during the Term.
“Data Controller” (or “controller”), “Data Processor” (or “Processor”), “Data Subject”, “Personal
Data”, “processing”
Have the meanings given to those terms in GDPR (and related terms such as “process” have corresponding
meanings).
“Data Privacy Laws”
Means the following, as amended, extended, re-enacted, or replaced from time to time:
- a) UK Data Protection Act 2018 and the UK GDPR;
- b) EC Regulation 2016/679 of the European Parliament and of the Council of the 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 as applicable as of 25 May 2018, as may be amended from time to time (the “GDPR”);
- c) EC Directive 2002/58/EC on Privacy and Electronic Communications;
- d) All local laws or regulations implementing or supplementing the EU legislation mentioned in (b)-(c)
above (including the UK Privacy and Electronic Communications Regulations 2003); and
- e) All codes of practice and guidance issued by national supervisory authorities, regulators, or EU or
UK institutions relating to the laws, regulations, UK legislation and EU legislation mentioned in (a)-(d)
above.
“Deliverables”
Means any materials which are to be provided by Vizintel as specified in the Statement of Work, including
but not limited to reports, presentations, Questionnaires, Created Materials, Third Party Materials, Survey
Data, and Vizintel Proprietary Materials where applicable.
“Expenses”
Means any expenses and out-of-pocket costs as set out in the Statement of Work or as agreed between the
parties in advance, in accordance with clause 6.
“Fees”
Means any amounts payable to Vizintel (including any Licence Fee) for the Services or as detailed in the
Statement of Work.
“General Terms”
Means these terms and conditions including its Schedules.
“Initial Licence Term”
Means the initial licence term applicable to any Subscription Service specified in the relevant Statement of
Work.
“Insights”
Means content created or collected by Vizintel for the purposes of making available to the Client via any
Platform.
“Intellectual Property Rights” or “IPRs”
Means the following rights, wherever in the world enforceable, including all reversions and renewals and all
applications for registration:
- a) Any patents or patent applications;
- b) Any trademarks (whether or not registered);
- c) Inventions, discoveries, utility models, and improvements whether or not capable of protection by
patent or registration;
- d) Copyright or design rights (whether registered or unregistered);
- e) Database rights;
- f) Performer’s property rights as described in Part II, Chapter X of the Copyright Designs and Patents
Act 1988 and any similar rights of performers anywhere in the world;
- g) Any goodwill in any trade or service name, trading style, or get-up; and
- h) Any and all other intellectual or proprietary rights.
“Licence Fees”
Means the fees payable by the Client to Vizintel for any Subscription Service, as detailed in the Statement
of Work.
“Licence Start Date”
Means the date specified in the Statement of Work.
“Licence Term”
Means the period commencing on the Licence Start Date specified in the Statement of Work and continuing for
the Initial Licence Term and any subsequent Renewal Periods agreed between the parties in accordance with
clause 3.2.
“Malware”
Means a computer program (in any form) or a device, which is designed to cause, or is deployed for the
purpose of causing, or actually has the effect of causing, damage or mischief to any computer or its owner
or operator or any third party, or to suborn or bypass its security, or to retard or degrade its
performance, or to facilitate criminal acts or acts of industrial espionage, digital vandalism, or
“hacktivism”.
“Materials”
Means any reports, presentations, artwork, copy, models, designs, research data, photographs, commercial,
feature film, character, music, voiceover, sound recording, performance, book, painting, logo, or any other
material protected by Intellectual Property Rights, but not including any software.
“Normal Business Hours”
Means 9.00 am to 5.00 pm local UK time, each Business Day.
“Platform(s)”
Means any platform developed and operated by Vizintel, as applicable.
“Purchase Order”
Means a purchase order issued by the Client to Vizintel that expressly references this Agreement and which
is accepted by Vizintel either expressly or by commencing performance.
“Questionnaire”
Means a commissioned questionnaire used to collect Survey Data.
“Renewal Period”
Unless otherwise stated in the Statement of Work, means, in respect of a Subscription Service, the period of
12 months commencing on:
- a) The expiry of the Initial Licence Term; and
- b) Each anniversary of the expiry of the Initial Licence Term.
“Vizintel”
Means Vizintel Group Limited, a company incorporated and registered in Scotland with company number SC281352
whose registered office is at C/O Bellwether Green Limited, 225 W George St, Glasgow G2 2ND, trading as
“Vizintel”.
“Vizintel Privacy Policy”
Means the privacy policy set out here, as amended from time to time.
“Vizintel Proprietary Materials”
Means:
- i) the Platforms;
- ii) the Insights; and
- iii) any software (including all programming code in object and source code form), methodology, models,
know-how and processes and Materials in relation to which the Intellectual Property Rights are owned by
(or licensed to) Vizintel and which are:
- a) in existence prior to the date on which it is intended to use them in connection with the
Services; or
- b) created by or for Vizintel outside of the Services and which are intended to be reused across its
business;
“Survey Data”
Means any raw data collected by or on behalf of Vizintel and forming part of the Deliverables, as specified
in the Statement of Work.
“Statement of Work”
Means the Statement of Work document or similar document agreed and signed by both parties containing a
description of the relevant Services and incorporating these Terms.
“Services”
Means the services to be provided by Vizintel under this Agreement, including the provision of any
Deliverables and/or any Subscription Service, as set out in the Statement of Work.
“Special Terms and Conditions”
Means any additional terms and conditions specific to Services, as set out in the Statement of Work.
“Subscription Service”
Means the subscription to any Platform (or any other software as a service product or API) provided by
Vizintel to the Client which allows the Client to access Insights, as specified in the Statement of Work.
“Support Services”
Means Vizintel’s level of support for any Subscription Service (which may include onboarding and training,
and ongoing technical support) as specified in the relevant Statement of Work.
“Term”
Means the duration of the Agreement, being the period of time specified in the Statement of Work and
including any applicable Licence Term.
“Territory”
Means the United Kingdom, unless expressly specified otherwise in the Statement of Work (and publication and
marketing on globally accessible mediums such as the internet shall not mean that the Territory is deemed to
be world-wide).
“Third Party IP Claim”
Has the meaning given in paragraph 21 of Schedule 1.
“Third Party Materials”
Means those Materials which are either commissioned by Vizintel 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 any Deliverables, but which excludes software
which is owned or licensed by a third party.
“UK GDPR”
Has the meaning given in section 3(10) of the Data Protection Act 2018.
“Use”
Means:
- a) in respect of a Platform, only those acts of connecting to it, logging in to it, accessing it and
interacting with it as are consistent with its ordinary intended usage as described in the Statement of
Work; and
- b) in respect of the Insights made available through the Platform(s), only the acts consistent with the
permitted uses set out in the Statement of Work;
- c) and in each and all cases solely for the internal business purposes of the Client and/or (if
applicable) the Authorised Client Entities.
“VAT”
Means value added tax or any equivalent tax chargeable in the UK or any other relevant jurisdiction.
Interpretation
- 1.1 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
- 1.2 A “person” includes a natural person, or corporate or unincorporated body (whether or not having
separate legal personality).
- 1.3 Where the context so requires, words in the singular shall include the plural and vice versa, and
words denoting one gender shall include all genders.
- 1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or
re-enacted from time to time, and includes any subordinate legislation in force made under it.
- 1.5 If there is any conflict or direct inconsistency between any of the documents comprising this
Agreement, they will prevail according to the following order of precedence (unless otherwise expressly
stated in the Statement of Work):
- a) these General Terms; and
- b) the Statement of Work.
- 1.6 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar
expression shall be construed as illustrative and shall not limit the sense of the words, description,
definition, phrase or term preceding those terms.
- 1.7 Except where stated otherwise, a reference to “writing” or “written” does not include email or fax.
2. THE AGREEMENT
2.1 The parties will enter into a Statement of Work for all Services (including any
Deliverables) to be provided by Vizintel, and each Statement of Work will set out the precise nature of the
Services and Deliverables to be provided. Once a Statement of Work is agreed and signed by the parties, a
contract between the parties shall come into existence on the terms and conditions of the Statement of Work
and these General Terms (“Agreement”). The relevant provisions of Schedule 1 shall apply where the Services
comprise or include any Subscription Service.
2.2 The terms and conditions of the Agreement apply to the exclusion of any other terms
that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of
dealing. In particular, no terms or conditions endorsed on, delivered with, or contained in the Client’s
signed Statement of Work, Purchase Order, purchase conditions, order, confirmation of order, specification
or other document shall form part of the Agreement except to the extent that Vizintel otherwise expressly
agrees in writing.
2.3 Vizintel shall have no obligation to provide any Services or Deliverables until a
Statement of Work has been signed by both parties and (if required for invoicing purposes) a valid Purchase
Order has been issued to Vizintel.
2.4 Vizintel shall provide the Services to the Client on the General Terms of this
Agreement during the Term.
2.5 Any dates specified in the Statement of Work for delivery of Services shall be
estimates only and time shall not be of the essence in this Agreement.
3. TERM
3.1 This Agreement shall commence on the Commencement Date and, unless terminated earlier
in accordance with clause 13 or any termination provisions in the Statement of Work, shall continue for the
Term.
3.2 Unless otherwise agreed in a Statement of Work, if the Services include a Subscription
Service, the Initial Licence Term shall automatically renew for successive Renewal Terms at the end of the
Initial Licence Term and each subsequent Renewal Term, unless terminated in accordance with clause 13.
4. VIZINTEL’S OBLIGATIONS & WARRANTIES
4.1 Vizintel warrants and undertakes that:
- a) it has full power and authority to enter into this Agreement;
- b) it shall perform the Services with reasonable skill and care, using suitably
qualified personnel, to a standard no less than that to be reasonably expected of a competent agency of
similar size and resources;
- c) the use by the Client of any Insights and other final, approved Deliverables (but
excluding any IPRs in any Client Materials incorporated in the Deliverables or the Insights) will not,
when used in accordance with this Agreement and for the purposes set out in the Statement of Work,
infringe the copyright of any third party.
4.2 Subject to clause 10, Vizintel hereby defends and indemnifies the Client against any
losses, costs or expenses incurred by the Client in the defence or settlement of a third party claim arising
from a breach by Vizintel of its warranty in clause 4.1(c), provided that where the third party claim
relates to any Subscription Service, the indemnity in paragraph 20 of Schedule 1 shall apply instead.
4.3 Save to the extent expressly agreed in the Statement of Work, the relationship between
the parties is non-exclusive and Vizintel shall therefore be entitled to provide any services or
deliverables the same as or similar to the Services to any third party subject always to clause 9
(Confidentiality).
4.4 Subject to clause 10.2, Vizintel shall not be liable for:
- a) any loss or damages arising as a result of any information or materials supplied or
approved by the Client; or
- b) any loss or damages arising from the withdrawal or alteration of any third-party
product or service.
5. CLIENT’S OBLIGATIONS & WARRANTIES
5.1 The Client warrants that:
- a) it has full power and authority to enter into this Agreement;
- b) the Client Materials do not and will not, when used in accordance with this
Agreement and any written instructions given by the Client, infringe any third party Intellectual Property
Rights;
- c) the Client Materials do and will comply with all applicable laws and regulations;
- d) the Client Materials are accurate and complete; and
- e) it is the beneficial owner of, or is otherwise entitled to provide Vizintel with,
the Client Materials.
5.2 The Client undertakes to:
- a) Provide a Purchase Order (if applicable) as soon as reasonably practicable but not
later than five (5) Business Days following mutual agreement of a Statement of Work;
- b) carry out all of its obligations under this Agreement in a timely and efficient
manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties,
Vizintel shall be entitled to adjust any agreed timetable or delivery schedule as reasonably necessary;
- c) provide Vizintel with full and clear instructions as to its requirements for the
Services and all information, materials and assistance required for the proper performance of the
Services;
- d) promptly supply to Vizintel (at no charge) any Client Materials reasonably required
by Vizintel or otherwise necessary to provide the Services and shall ensure that all Client Data is
provided in a secure and encrypted form;
- e) obtain and maintain in force throughout the Term all necessary licences, consents
and permissions necessary for Vizintel, its sub-contractors and agents to use the Client Materials and
perform their obligations under this Agreement, including the Services;
- f) comply with and, where the Services include any Subscription Service, procure that
each Authorised User complies with, all applicable laws and regulations with respect to its activities
under this Agreement;
- g) use the Services only for the purposes for which they were provided, and not modify
or alter any material or information provided by Vizintel without Vizintel’s written consent;
- h) keep Vizintel informed of any matters related to the Client which will, or could,
have an impact on Vizintel’s performance of the Services;
- i) promptly inform Vizintel if the Client considers that any Services or materials
provided to the Client by Vizintel for approval are false or misleading or in any way contrary to
applicable law; and
- j) ensure that the Client’s other suppliers, contractors and agents cooperate with
Vizintel as reasonably necessary to enable Vizintel to perform the Services;
5.3 If the Client does not fulfil its obligations under or in connection with this
Agreement (including its payment obligations), then to the extent that such failure prevents Vizintel from
performing any Services in accordance with this Agreement, Vizintel will be relieved of its obligations to
the Client, and Vizintel shall not be liable for any losses, costs or expenses incurred by the Client as a
result of any such failure.
6. FEES
6.1 In consideration of the provision of the Services by Vizintel, the Client shall pay
the Fees to Vizintel together with any Expenses.
6.2 If it is agreed that work shall be undertaken by Vizintel outside the scope of the
Statement of Work, Vizintel will charge for such work by time spent and in accordance with the hourly rates
listed in Vizintel’s prevailing rate card as may be communicated to the Client from time to time.
6.3 Any Expenses incurred and not set out in the Statement of Work will be agreed in
advance with the Client.
6.4 Unless set out otherwise in the Statement of Work, the Fees and (if applicable) the
Expenses shall be invoiced to the Client monthly in advance. Where applicable, VAT will be charged to the
Client at the prevailing rate.
6.5 Unless set out otherwise in the Statement of Work, the Client shall pay Vizintel in
full and in cleared funds within 30 days of the date of each invoice.
6.6 In the event that the Services are cancelled (including in the event of termination of
the Agreement for convenience in accordance with clause 15), Vizintel will charge the Client an amount
(“Cancellation Charge”) equal to the greater of:
- a) 10% of the total Fee or £2,000 (whichever is lower); or
- b) A fee based on work undertaken up to the date of cancellation, calculated by
incorporating costs incurred (including any cancellation or committed charges payable) and estimated time
committed to date, which shall be payable in accordance with this clause 6.
6.7 In the event of any amendment to the Statement of Work by the Client (as agreed
between the parties):
- a) the Fees payable to Vizintel in respect of the amended Services shall not decrease
below the level of Fees that would have been payable had the Services not been amended, save with the
prior written approval of Vizintel; and
- b) the Client shall reimburse Vizintel for any costs and other charges or expenses to
which Vizintel is committed as a result of the amendment, including but not limited to any cancellation
charges imposed by suppliers.
6.8 Without prejudice to any other right or remedy that it may have, Vizintel may charge
interest on any overdue sum from the due date for payment at an annual rate of 4% above the base lending
rate from time to time of Barclays Bank plc, accruing daily from the due date for payment until the date on
which Vizintel receives payment together with all accrued interest. Vizintel may also, without liability to
the Client, suspend the Services (including, with respect to any Subscription Service, disabling the
Client’s and/or the Authorised Users’ passwords, account and access to all or part of the Platform) until
payment for overdue sums has been made in full, during which period, the Fees will remain payable in full.
6.9 If any payment of the Fees (including any Cancellation Charge) and Expenses is subject
to tax (whether by way of direct assessment or withholding at its source), Vizintel shall be entitled to
receive from the Client such amounts as shall ensure that the net receipt to Vizintel of the Fees (including
any Cancellation Charge) and Expenses after tax in respect of the payment is the same as it would have been
were the payment not subject to such tax.
6.10 If Vizintel is required to purchase anything other than in pounds sterling, it shall
charge the Client at the exchange rate (which shall be the mid-point rate as quoted in the following day’s
Financial Times) in operation on the date on which Vizintel makes the purchase. If Vizintel is required to
invoice the Client other than in pounds sterling, the amounts shall be calculated in pounds sterling, and
shall be charged to the Client based on the exchange-rate in operation on the date on which Vizintel issues
the invoice (which shall be the mid-point rate as quoted in the following day’s Financial Times), unless set
out otherwise in the Statement of Work.
7. APPROVALS
7.1 For the purposes of this Agreement, any reference to “written approval” shall include
letter, e-mail, purchase order, or the Client’s signature on a particular document that has been submitted
for approval.
7.2 Vizintel may rely on written approval from any employee of the Client, unless the
Client has previously provided written notice in the manner stipulated by clause 7 that a particular
employee is not authorised to give valid written approval.
7.3 The Client hereby indemnifies, and keeps indemnified, Vizintel against any costs,
claims or proceedings, or demands, arising out of or in connection with anything approved in writing by the
Client.
7.4 In the event of any delay or failure of the Client giving approvals (or disapprovals)
requested under or in connection with this Agreement, Vizintel will not be liable for any resulting delays
or adverse impact caused to the delivery of any Services.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Vizintel acknowledges that ownership of Client Materials and ownership of all
Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such
Client Materials produced in the course of providing the Services) shall remain vested in the Client or its
licensors. The Client hereby grants to Vizintel a non-exclusive licence during the Term to use the Client
Materials solely for the purposes of providing the Services.
8.2 Subject to the remaining provisions of this clause 8 and Vizintel receiving payment of
all Fees attributable to Created Materials, Vizintel hereby assigns to the Client (and in the case of
copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in
Created Materials which are capable of being assigned together with the right to sue for past infringement
of the Intellectual Property Rights in Created Materials.
8.3 The Client acknowledges that all Intellectual Property Rights in Vizintel Proprietary
Materials shall be owned by and remain the property of and vested in Vizintel. Subject to Vizintel receiving
payment of all Fees attributable to Vizintel Proprietary Materials licensed under this clause 8, Vizintel
hereby grants to the Client a licence to use such Vizintel Proprietary Materials as are included in the
final, approved Deliverables provided by Vizintel under the Statement of Work, in the Territory, for the
period of time and for the purposes set out in the Statement of Work. Except as expressly stated, this
Agreement does not grant the Client any rights to, or in, patents, copyright, database rights, trade
secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in
respect of the Services or the Insights.
8.4 Prior to delivery of any materials to be provided by Vizintel under the Statement of
Work, Vizintel shall obtain such licences or consents in respect of Third Party Materials as shall be
necessary in order that the Client can use such Third Party Materials for the purposes set out in the
Statement of Work. Vizintel shall notify the Client of any restrictions on usage and any other contractual
restrictions arising in respect of such Third Party Materials, and the Client hereby indemnifies, and keeps
indemnified, Vizintel against any losses, costs, and expenses suffered by Vizintel as a result of the Client
or its Affiliates breaching any such restrictions.
8.5 Vizintel agrees, at the Client’s request and expense, to take all such actions and
execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to
obtain, defend, or enforce its rights in the Deliverables, and shall not do or fail to do any act which
would or might prejudice the Client’s rights under this clause 8.
8.6 Notwithstanding any of the above and save as otherwise expressly provided for in the
Statement of Work, Vizintel shall:
- a) be able during and after the Term to use any Deliverables which have been broadcast,
published, distributed, or otherwise made available to the public, and the Client’s name and logo for the
purposes of promoting its work and its business including on Vizintel’s website, in credentials pitches,
and in its showreel. Any other use by Vizintel shall be subject to the Client’s prior approval; and
- b) retain all know-how obtained in connection with the Services, and the Client
acknowledges that nothing in this Agreement shall affect Vizintel’s right to use as it sees fit any
general intelligence or any aggregated data gained by Vizintel in the course of its appointment.
8.7 For the avoidance of doubt, Vizintel shall not be liable under or in connection with
this Agreement for any modifications, adaptations, or amendments to any Deliverables made by the Client or
by a third party on the Client’s 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 the acts or omissions of the
Client and/or its Associates.
9. CONFIDENTIALITY
9.1 Each of the parties acknowledges that, whether by virtue of and in the course of this
Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party,
its clients, customers, businesses, staff, business plans, or affairs, which information is proprietary and
confidential to the other party (“Confidential Information”).
9.2 Confidential Information shall include any document marked “Confidential”, or any
information which the recipient has been informed is confidential or which it ought reasonably to expect the
other party would regard as confidential.
9.3 Confidential Information shall exclude information which:
- a) at the time of receipt by the recipient is in the public domain;
- b) subsequently comes into the public domain through no fault of the recipient, its
officers, employees or agents;
- c) is lawfully received by the recipient from a third party on an unrestricted basis;
and/or
- d) is already known to the recipient before receipt hereunder.
9.4 Each of the parties undertakes 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 thereafter, without the prior 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 sole purpose of the exercise of its
rights and/or the performance of its obligations in connection with this Agreement.
9.5 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 to which, such disclosure is necessary for the
purposes contemplated under this Agreement.
9.6 Neither party shall be in breach of this clause 9 if it discloses the other party’s
Confidential Information in circumstances where such disclosure is required by law, regulation or order of a
competent authority, provided that, to the extent practicable and permissible, the other party is given
reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
9.7 The terms of and obligations imposed by this clause 9 shall survive the termination of
this Agreement for any reason.
10. LIMITATION OF LIABILITY
10.1 Subject to clause 10.2, Vizintel’s maximum aggregate liability under or in connection
with this Agreement (including all Statements of Work):
- a) whether in contract, tort (including negligence) or otherwise, but excluding under
any indemnity, shall in no circumstances exceed the lower of (i) £1,000,000; and (ii) the Fees paid or
payable by the Client to Vizintel in the 12-month period preceding any event giving rise to liability; and
- b) in the case of any indemnity contained in this Agreement, shall in no circumstances
exceed £1,000,000.
10.2 Nothing in this Agreement shall exclude or in any way limit either party’s liability
for fraud, death or personal injury caused by negligence or any other liability to the extent such liability
may not be excluded or limited as a matter of law.
10.3 Subject to clause 10.2, neither party shall be liable to the other, whether in
contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in
connection with this Agreement (and including for the avoidance of doubt any indemnity contained in this
Agreement) for:
- a) any loss (whether direct, indirect or consequential) of profits, sales or business,
agreements or contracts, anticipated savings or goodwill;
- b) loss of use or corruption of software, data or information; or
- c) any special, indirect, consequential or pure economic loss, costs, damages, charges,
or expenses (provided that nothing in this clause 10.3(c) shall be construed as an exclusion of liability
for direct loss, costs, damages, charges, or expenses).
10.4 Where one party (“Indemnifying Party”) agrees to indemnify and keep the other party
(“Indemnified Party”) indemnified under this Agreement, the Indemnified Party shall comply with the
following process in the event that a third-party claim (“Claim”) arises:
- a) the Indemnified Party must promptly notify the Indemnifying Party in writing of such
Claim;
- b) the Indemnified Party must not make any admission of liability, settlement, or
compromise without the prior written consent of the Indemnifying Party;
- c) the Indemnified Party must give the Indemnifying Party express authority to conduct
all negotiations and litigation and to defend and/or settle all litigation arising from such Claim,
provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence
of the Claim;
- d) the Indemnified Party must provide the Indemnifying Party with all available
information and assistance in relation to such Claim as the Indemnifying Party may reasonably require at
the Indemnifying Party’s cost and expense; and
- e) if within ninety (90) days after the Indemnifying Party’s receipt of notice of any
such claim, the Indemnifying Party fails to take action to defend or settle such claim, the Indemnified
Party may at the Indemnifying Party’s expense undertake the defence, compromise, or settlement of the
Claim as it sees fit.
10.5 The Client acknowledges that any Subscription Service and the Insights are provided
to the Client on an "as is" basis, and accordingly, the Client assumes sole responsibility for the results
obtained from its use of the Subscription Service and the Insights, and for conclusions drawn from such use.
10.6 Vizintel shall have no liability for any damage caused by errors or omissions in any
information, instructions or scripts provided to Vizintel by the Client in connection with the Services, or
any actions taken by Vizintel at the Client’s direction.
10.7 Save as expressly set out in this Agreement, all warranties, representations,
conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest
extent permitted by applicable law, excluded from this Agreement.
11. DATA PROTECTION
11.1 Each party shall comply with Data Privacy Laws with regards to any processing of
Personal Data under this Agreement and shall comply with the terms of the Data Processing Schedule at
Schedule 2 of this Agreement.
12. ANTI-BRIBERY AND ANTI-SLAVERY
12.1 Both parties:
- a) shall comply with the Bribery Act 2010 and any guidance issued by any governmental
department relating to such legislation (“Bribery Act”);
- b) shall not engage in any activity, practice, or conduct anywhere in the world which
would constitute an offence under the Bribery Act if such activity, practice, or conduct had been carried
out in the UK;
- c) shall maintain in place throughout the Term (and enforce where appropriate) its own
policies and procedures to ensure compliance with the Bribery Act;
- d) shall promptly report to the other any request or demand for any undue financial or
other advantage of any kind received by it in connection with the performance of this Agreement; and
- e) shall ensure that it imposes written terms on any sub-contractor connected with the
matters arising under this Agreement which are at least equivalent to those set out in this clause.
12.2 Each party shall comply, and procure that all its employees, contractors, agents, and
representatives comply, with Anti-Slavery Law, as relevant to the provision and receipt of the Services and
the activities of the parties under this Agreement. Each party shall use reasonable endeavours on a
continuing basis to ensure that Slavery is not taking place in its supply chains. For the purpose of this
clause:
- a) “Anti-Slavery Law” means all applicable laws relating to the prevention,
prohibition, and/or outlawing of Slavery in the Territory or any other jurisdiction relevant to the
performance of this Agreement, including the Modern Slavery Act 2015; and
- b) “Slavery” means all forms of modern slavery, human trafficking, forced labour, child
labour, involuntary servitude, and debt bondage.
13. TERMINATION
13.1 Without prejudice to any other rights or remedies which either party may have, either
party may terminate any Services for convenience on three months’ written notice provided that, with respect
to the Subscription Services, such notice to terminate cannot expire until the expiry of the Initial Licence
Term or, if applicable, the relevant Renewal Period.
13.2 Without prejudice to any other rights or remedies which either party may have, either
party may terminate this Agreement immediately on giving notice to the other if the other party:
- a) fails to pay any amount due under this Agreement on the due date for payment and
remains in default not less than 15 days after being notified in writing to make such payment;
- b) commits a material breach of this Agreement and such breach is not capable of
remedy;
- c) commits a material breach of this Agreement that is capable of remedy but fails to
remedy it within 30 days of being notified in writing of the breach;
- d) suspends (or threatens to suspend) payment of its debts or the continuation of all
or a substantial part of its business, is unable or deemed unable to pay its debts as they fall due,
begins negotiations with any class of its creditors with a view to rescheduling any of its debts, is the
subject of a court order for winding-up, has a receiver appointed over its assets (or entitles any person
to appoint one), or enters into any compromise or arrangement with its creditors or is the subject of a
notice, resolution or order for or in connection with its winding-up (other than for the sole purpose of a
solvent amalgamation or solvent reconstruction); or
- e) any event occurs, or proceeding is taken, with respect to the other party in any
jurisdiction to which it is subject that has an effect equivalent or similar to those outlined in clause
13.2(d);
- f) if there is a change of control of the Client (where “control” has the meaning given
to it in s1124 of the Corporation Tax Act 2010), and the person gaining control of the Client is, or
controls, a direct competitor of Vizintel.
13.3 The termination or expiry of any Service shall not affect the continuation of any
other Services under the Statement of Work or this Agreement.
13.4 On termination of this Agreement for any reason:
- a) the Client shall immediately pay Vizintel for all Vizintel’s outstanding unpaid
invoices, and, in respect of Services supplied and Expenses and costs incurred but not yet invoiced, or
any Cancellation Charge, Vizintel may submit invoices, which shall be payable immediately on receipt;
- b) on request, each party shall return all the other party’s materials, equipment, and
other property;
- c) the accrued rights and liabilities of the parties as at termination shall not be
affected;
- d) all licences granted under this Agreement shall immediately terminate;
- e) on request, Vizintel shall provide the Client with copies of any Survey Data in a
reasonably readable format;
- f) Vizintel may destroy or otherwise dispose of any of the Client Data in its
possession unless Vizintel receives, no later than 60 days after the effective date of the termination of
this Agreement, a written request for the delivery to the Client of the then most recent back-up of the
Client Data. Vizintel shall use reasonable commercial endeavours to deliver the back-up to the Client
within 30 days of its receipt of such a written request. The Client shall pay all reasonable expenses
incurred by Vizintel in returning or disposing of Client Data.
13.5 Provisions of this Agreement which are either expressed to survive its termination or
which from their nature or context are contemplated to survive termination shall remain in full force and
effect notwithstanding termination of this Agreement. Notwithstanding the generality of the foregoing,
clauses 10, 11, 12, 15, 16, and 20 shall survive and continue to have full force and effect following
termination.
14. NON-SOLICITATION
14.1 During this Agreement and for 12 months after its termination, neither party shall,
without the other party’s written consent, solicit or entice, or attempt to solicit or entice (or encourage
a third party to solicit or entice), any person who, at any point in either the preceding six months or the
six months before termination (as applicable), was employed or engaged by the other party in the provision
or receipt of the Services other than by means of a national advertising campaign open to all comers and not
specifically targeted at any of the staff of the other party.
14.2 A party recruiting a person in breach of clause 14.1 above shall immediately pay to
the other party a sum representing 30% of the gross annual salary of the person recruited (calculated in
relation to the salary that the employee was earning while employed by the non-defaulting party). If, for
reasons of confidentiality, Vizintel requires the employee not to work during the notice period, the Client
will additionally pay Vizintel a sum representing the salary payable in respect of the unfulfilled portion
of the notice period.
14.3 The parties confirm that the sums referred to in clause 14.2 are reasonable and
proportionate to protect each party’s legitimate interest in ensuring each party’s performance of the
Agreement and its strict compliance with clause 14.1.
15. FORCE MAJEURE
15.1 A party shall not be in breach of this Agreement, or be liable for any failure or
delay in performance of any obligations under this Agreement (except in the case of a failure to pay), where
such failure or delay arises or is attributable to acts, events, omissions, or accidents beyond its
reasonable control (“Force Majeure”), including but not limited to fire, accidental damage, natural
disaster, epidemic, pandemic, war, terrorist attack, riots, failure of machinery, computers or vehicles,
industrial action, non-performance by suppliers or subcontractors (excluding companies in the same group as
the party seeking to rely on this clause), or interruption or failure of utility service.
15.2 A party subject to Force Majeure shall not be in breach of this Agreement provided it
could not have avoided the effect of Force Majeure by taking precautions which it ought reasonably to have
taken, and provided it promptly notifies the other party of the existence and nature of the Force Majeure,
and uses reasonable endeavours to mitigate the effect of Force Majeure.
15.3 If Force Majeure continues for more than 30 consecutive days, either party may
terminate this Agreement immediately by giving written notice to the other party. Such termination shall be
without prejudice to the rights of the parties in respect of any breach of this Agreement occurring before
such termination.
16. NOTICES
16.1 A notice (other than a notice in any legal proceedings) given by one party to the
other under this Agreement will be properly served if it is in English and sent to the appropriate address
noted below.
16.2 The following list sets out methods by which a notice may be sent and, if sent by
that method, the corresponding deemed delivery date and time:
- a) Delivery by hand: On signature of a delivery receipt.
- b) Pre-paid first-class recorded delivery post or other next working day delivery
service providing proof of postage: 9.00 am on the second Business Day after posting.
- c) Pre-paid airmail providing proof of postage: 9.00 am on the fifth Business Day after
posting.
- d) Email sent to compliance@Vizintel.com: at the time of transmission, or, if this time
falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume.
16.3 For the purpose of this clause and calculating deemed receipt, all references to time
are to local time in the place of deemed receipt.
16.4 The addresses for service of notice to the Client are as set out in the Statement of
Work, and in the case of notices to Vizintel to the registered office address, with a copy to:
- Address: Next 15 Group plc, 60 Great Portland Street, London, W1W 7RT
- For the attention of: the UK General Counsel
16.5 This clause 16 does not apply to the service of any proceedings or other documents in
any legal action or, where applicable, any arbitration or other method of dispute resolution.
17. ASSIGNMENT AND SUBCONTRACTING
17.1 Vizintel shall be entitled to sub-contract its performance of the Services provided
that any sub-contracting shall not relieve Vizintel from its obligations to the Client under this Agreement.
17.2 Subject to clause 17.1, neither party may assign, transfer, charge, or otherwise
dispose of this Agreement or any of its rights or obligations arising hereunder without the prior written
approval of the other party. Vizintel is, however, entitled to perform any Services under this Agreement
through any company which is its holding company or the subsidiary of such holding company, and any act or
omission of such company shall be deemed to be the act or omission of Vizintel. For the purposes of this
clause, “holding company” and “subsidiary” shall be construed in accordance with the definition in section
1159 of the Companies Act 2006.
18. MISCELLANEOUS
18.1 Vizintel may amend this Agreement and/or the Services for legal or regulatory
reasons, or to reflect changes in its services or business practices. Subject to the foregoing, no variation
of the Statement of Work shall be valid unless it is in writing and signed by a duly authorised officer of
each of the parties. Vizintel shall provide notice of any significant changes to this Agreement and/or the
Services in accordance with clause 16 above.
18.2 A party’s failure to exercise, or delay in exercising, any right or remedy provided
under this Agreement or by law shall not constitute a waiver of such, or preclude any further exercise of
that or any other right or remedy.
18.3 If any provision or part-provision of this Agreement is found to be invalid, illegal
or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part
of the Agreement, and the validity and enforceability of the other provisions and part-provisions of the
Agreement shall not be affected.
18.4 A person who is not a party to this Agreement shall have no rights under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of it.
18.5 If any dispute arises under or in connection with this Agreement, the parties will
first attempt in good faith to settle such through negotiation rather than through legal proceedings. If the
dispute is not resolved within 21 days of either party’s attempt to instigate such negotiations, it may be
settled by the courts of competent jurisdiction under this Agreement.
18.6 Nothing in this Agreement shall restrict or exclude the right of either party to seek
injunctive relief against the other party.
18.7 This Agreement, and any documents annexed to it and signed or initialled by the
parties, constitutes the entire agreement between the parties and supersedes any previous arrangement,
understanding, or agreement between them relating to the subject matter of this Agreement. Each party
acknowledges that, in entering into this Agreement, it does not rely on any statement, representation,
assurance, undertaking, or warranty, whether negligently or innocently made (“Representation”), of any
person (whether a party to this Agreement or not), other than as expressly set out in this Agreement. Each
party agrees that the only remedies available to it arising out of or in connection with a Representation
shall be for breach of contract. Nothing in this clause 18.7 shall limit or exclude any liability for fraud.
18.8 This Agreement may be executed in any number of counterparts, each of which when
executed shall constitute a duplicate original, but all the counterparts shall together constitute the one
Agreement.
18.9 Nothing in this Agreement is intended to or shall operate to create a partnership or
joint venture of any kind between the parties or to authorise either party to act as agent for the other,
and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in
any way.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement, 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.
19.2 The parties irrevocably agree that the courts of England and Wales shall have
exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this
Agreement or its subject-matter or formation (including non-contractual disputes or claims).
SCHEDULE 1
Subscription Service Terms
The terms of this Schedule 1 shall apply in relation to any Subscription Service supplied under this
Agreement. References in this Schedule to the “Platform” are references to the Platform or Platforms
specified in the relevant Statement of Work.
- Subject to the Client’s full compliance with the terms of this Agreement, Vizintel hereby grants to the
Client a non-exclusive, non-transferable, revocable right to permit the Authorised Users to Use the
Platform during the Licence Term.
- Except as expressly agreed in the Statement of Work, the rights provided under this Schedule 1 are
granted to the Client only, without the right to grant sub-licences, and shall not be considered granted
to any subsidiary or holding company of the Client, save for any Authorised Client Entities.
- Vizintel reserves the right to implement and maintain technical measures to control access to and detect
unauthorised use of the Subscription Service at any time, provided that such measures shall not adversely
affect the Client’s and Authorised Users’ Use of the Subscription Service in accordance with this
Agreement.
- The Client shall ensure that the Authorised Users:
- (i) use the Platform and the Insights in accordance with the terms and conditions of
this Agreement,
- (ii) comply with the permitted uses in accordance with the relevant Statement of
Work,
- (iii) use all reasonable endeavours to prevent any unauthorised access to, or use of,
the Platform and, in the event of any such unauthorised access or use, promptly notify Vizintel, and
- (iv) comply with any other reasonable instructions given by Vizintel to the Client.
The Client shall be responsible for any Authorised User’s breach of this Agreement and/or any applicable
end user licence agreement.
- The Client shall procure that each Authorised User shall select a secure password for use of the
Platform and that each Authorised User shall keep such password secret, not share it with any other person
and treat it as the Confidential Information of Vizintel. The Client will procure that each Authorised
User changes its password on at least a monthly basis.
- The Client shall not, and shall procure that each Authorised User shall not, during the course of its
Use of the Platform, access, store, distribute or transmit any:
- (a) Malware; or
- (b) Material that is subject to legal restrictions and penalties or generally
offensive due to its nature and potential harm including but not limited to content prohibited by law,
making false statements, or content offensive or indecent.
- As a particular condition of Use of the Subscription Services, the Client shall not and shall not
attempt to (and shall procure that each Authorised User shall not and shall not attempt to):
- (a) Except to the extent expressly permitted by this Agreement or any applicable law
which is incapable of exclusion by agreement between the parties:
- (i) copy, modify, duplicate, create derivative works from, frame, mirror,
republish, download, display, transmit, or distribute all or any portion of the Platform (including
all or any portion of the software that operates the Platform) and/or the Insights in any form or
media or by any means; or
- (ii) attempt to decompile, reverse compile, disassemble, reverse engineer, or
otherwise reduce to human-perceivable form all or any part of the software that operates the Platform,
including its associated configurations, file formats, and data structures.
- (b) During the Licence Term and for 12 months thereafter, access all or any part of
the Platform in order to build or assist any third party to build a product or service which competes
with the Subscription Service or any software program offering similar functionality to the fundamental
functional and technical aspects of the Subscription Service;
- (c) Resell access to the Platform, or use the Platform in any provision of services
to third parties by way of an outsourced service, service bureau, or similar arrangement;
- (d) License, sell, rent, lease, transfer, assign, distribute, display, disclose, or
otherwise commercially exploit, or otherwise make the Platform available to any third party; or
- (e) Obtain, or assist third parties in obtaining, access to the Platform, other than
as expressly permitted in this Schedule 1.
- Notwithstanding any other provision of this Agreement, in the event that the Client is permitted in
writing by Vizintel to resell access to, or otherwise make available, the Platform to a third party, the
Client shall ensure that it enters into a binding written agreement with such third party with respect to
the Platform materially equivalent to the terms of this Agreement.
- Vizintel shall use reasonable endeavours to make the Subscription Service available for Use in
accordance with this Agreement, subject to:
- (a) Client-caused outages or disruptions;
- (b) Disruptions due to Force Majeure;
- (c) Planned and/or unscheduled maintenance undertaken outside Normal Business Hours;
- (d) Unscheduled maintenance undertaken during Normal Business Hours, provided that
Vizintel has used reasonable endeavours to give the Client reasonable notice in advance of such
unscheduled maintenance,
and the Client’s sole and exclusive remedy in respect of a breach of this paragraph 9 shall be to receive
the Support Services.
- The Client shall ensure that its network and systems comply with the relevant specifications provided by
Vizintel from time to time.
- The Client undertakes to be solely responsible for procuring and maintaining its network connections and
telecommunications links, and all problems, conditions, delays, delivery failures, and all other loss or
damage arising from or relating to the Client’s network connections or telecommunications links.
- Vizintel:
- a) does not warrant that the Client’s Use of the Subscription Service will be
uninterrupted or error-free, or that the Subscription Service and/or Insights and/or any information
and/or results obtained through the Subscription Service will meet the Client’s requirements; and
- b) is not responsible for any delays, delivery failures, or any other loss or damage
resulting from the transfer of data over communications networks and facilities outside of its
reasonable ability to control, including the Internet, and the Client acknowledges that the Subscription
Service may be subject to limitations, delays, and other problems inherent in the use of such
communications facilities.
- The Client acknowledges and agrees that, notwithstanding any other provision of this Agreement, it is
inherent to the nature of the Subscription Service that the particular range of Insights available to the
Client during the Licence Term may vary from time to time as the Subscription Service evolves and
different data sources become or cease to be available. The availability or not of a particular range of
Insights will not be a breach of this Agreement by Vizintel.
- The Client acknowledges that the Platform and/or the Insights may enable it to access the website
content of, correspond with, and purchase products and services from, third parties via third-party
websites and that it does so solely at its own risk. Vizintel has no control over such third-party
products and services and shall have no liability or obligation whatsoever.
- Vizintel will treat any Client Data as the Confidential Information of the Client, and will not use or
exploit it for its own commercial purposes. However, the Client acknowledges and agrees that the
Subscription Service is not a zero-knowledge service, that Vizintel’s security measures may not be
impregnable, and that the Subscription Service is not designed to be used as a repository of highly
confidential materials. The Client therefore agrees that it shall not, and shall procure that Authorised
Users shall not, upload to the Subscription Service any Client Data the disclosure of which to any third
party would be likely to cause significant harm to the business of the Client, its Affiliates or its or
their respective clients or suppliers.
- While Vizintel may, in the course of its own internal processes, incidentally take backups of the Client
Data, the Client acknowledges and agrees that the Subscription Service is not a backup or disaster
recovery service, and is not designed to hold the only copy of any Client Data. Therefore, the Client is
solely responsible for ensuring that it has access to a backup copy of the Client Data in the event of any
unavailability of the Platform.
- Vizintel reserves the right, without liability or prejudice to its other rights, to immediately suspend
or terminate the Client’s and/or any or all of the Authorised Users’ right to Use the Subscription Service
if the Client or any Authorised User breaches any of the provisions of this Agreement.
- Subject to clause 10 of the General Terms, the Client hereby defends, indemnifies, and holds harmless
Vizintel against claims, actions, proceedings, losses, damages, expenses, and costs (including without
limitation court costs and reasonable legal fees) arising out of or in connection with:
- a) the use of the Subscription Service (including the Platform and Insights) by the
Client and the Authorised Users other than in accordance with this Agreement; and
- b) the use of the Client Data by Vizintel in accordance with this Agreement and the
use of the Client Data by the Client and the Authorised Users.
- Subject to clause 10 of the General Terms and 12.9 below, Vizintel hereby defends the Client against any
third-party claim that the Platform and/or the Insights (excluding any Client Materials) infringe any
copyright, trademark, database right, or right of confidentiality in the Territory (each, a “Third Party
IP Claim”), and indemnifies the Client for any amounts awarded against the Client in judgment or
settlement of such Third Party IP Claims.
- Subject to clause 10 of the General Terms, in no event shall Vizintel, its employees, agents, and
sub-contractors be liable under or in connection with this Agreement to the extent that a Third Party IP
Claim arises from or in connection with:
- a) a modification of the Subscription Service and/or Insights by anyone other than
Vizintel;
- b) the Client’s or any Authorised User’s use of the Subscription Service or Insights
in a manner contrary to the instructions given to the Client by Vizintel and/or in breach of this
Agreement and/or the end-user licence agreement;
- c) the combination of any aspect of the Subscription Service with some other product
or service, if the alleged infringement would otherwise have been avoided; or
- d) the Client’s or any Authorised User’s use of the Subscription Service and/or
Insights after notice of the alleged or actual infringement from Vizintel or any appropriate authority.
- In the event of a Third-Party IP Claim, Vizintel shall use commercially reasonable efforts to (at its
option):
- a) obtain for the Client a right to continue to use the Platform and the Insights;
- b) modify the Platform and/or the Insights so as to avoid the alleged infringement;
or
- c) if it is not commercially reasonable or practicable to do either of those things,
terminate this Agreement and give the Client a pro-rata refund of any Fees paid in advance for any
unexpired period of the Licence Term following such termination. Subject to clause 10 of the General
Terms, the indemnity set out in paragraph 19 above and this paragraph 21 set out the Client’s sole and
exclusive remedy in respect of any Third Party IP Claim.
SCHEDULE 2
DATA PROCESSING AGREEMENT (“DPA”)
1. Definitions and Interpretation
- 1.1 In this DPA the following words shall have the following meanings:
- “Client Personal Data” has the meaning given in the Agreement.
- “Data Privacy Laws” has the meaning given in the Agreement.
- “EEA” means the European Economic Area.
- “European Law” means any law in force in the EEA or the United Kingdom, including the
Data Privacy Laws.
- “International Transfer Requirements” means the requirements of Chapter V of the GDPR
(Transfers of Personal Data to third countries or international organisations).
- “Losses” means losses, damages, liabilities, claims, demands, actions, penalties,
fines, awards, costs, and expenses (including reasonable legal and other professional expenses).
- “Restricted Country” means a country, territory or jurisdiction which is not
considered by the EU Commission (or in respect of personal data transfers caught by the requirements of
UK Data Privacy Laws, the relevant UK governmental or regulatory body as applicable) to offer an
adequate level of protection in respect of the processing of personal data pursuant to Article 45(1) of
the GDPR.
- “Restricted Transfer” means a transfer of personal data from an entity whose
processing of personal data under the Agreement is caught by the requirements of the GDPR and/or UK Data
Privacy Laws (as applicable), to an entity that processes the relevant personal data in a Restricted
Country.
- “Services” has the meaning given in the Agreement.
- “Sub-processors” has the meaning given in paragraph 3.9.
- “UK” means the United Kingdom.
- “UK GDPR” has the meaning given in the Agreement.
- 1.2 References in this Agreement to “processor”, “controller”, “personal data”,
“process”, “processing”, “personal data breach”, “data subject” or “supervisory authority” shall have the
same meanings as defined in the GDPR.
- 1.3 References in this Agreement to the GDPR and/or an Article or Chapter of the GDPR
shall, where the context so requires and insofar as the Data Privacy Law(s) is that of the UK, be
construed as a reference to the equivalent Data Privacy Law(s) of the UK and/or the corresponding
provision of such Data Privacy Law(s).
- 1.4 In the event of any conflict or inconsistency between the terms of this DPA and any
other part of the Agreement, this DPA will take precedence.
2. Roles of the Parties and Processing Activities
- 2.1 The parties acknowledge and agree that:
- a) To the extent that Vizintel processes Client Personal Data on behalf of the Client
in connection with the provision of Services, Vizintel shall be the processor and the Client shall be
the controller with respect to such processing.
- b) Vizintel may also, in the course of or in connection with the provision of
Services, process certain personal data as a controller rather than the Client’s processor, in which
case that personal data, when so processed by Vizintel, is not Client Personal Data, and the Client
shall not be entitled to any data contained in such personal data.
- c) Each party otherwise acts as an independent controller in relation to any personal
data processed under or in connection with this Agreement.
- 2.2 Each of the parties acknowledges and agrees that the subject-matter and duration of
the processing carried out by Vizintel on behalf of the Client, the nature and purpose of the processing,
the type of personal data, and categories of data subjects are accurately documented in Appendix 1 (which
may from time to time be updated by the written agreement of the parties).
3. Obligations of Vizintel
- 3.1 Vizintel shall only process the Client Personal Data in accordance with the
documented instructions of the Client (including those documented in accordance with Appendix 1, as
updated from time to time), unless required to do so by European Law to which Vizintel is subject, in
which event Vizintel shall inform the Client of such legal requirement unless prohibited from doing so by
European Law on important grounds of public interest.
- 3.2 Vizintel shall ensure that any persons authorised by it to process the Client
Personal Data are subject to an obligation of confidentiality.
- 3.3 Vizintel shall implement appropriate technical and organisational measures to
ensure that the Client Personal Data is subject to a level of security appropriate to the risks arising
from its processing by Vizintel, taking into account the factors and measures referred to in Article 32 of
the GDPR. Such security measures may include:
- a) The pseudonymisation and encryption of personal data;
- b) The ability to ensure the ongoing confidentiality, integrity, availability, and
resilience of processing systems and services;
- c) The ability to restore the availability and access to personal data in a timely
manner in the event of a physical or technical incident;
- d) A process for regularly testing, assessing, and evaluating the effectiveness of
the security measures.
- 3.4 Taking into account the nature of the processing and the information available to
Vizintel, Vizintel shall assist the Client with regard to the Client’s compliance with its obligations
under the following Articles of the GDPR:
- a) Article 32 (Security of processing);
- b) Articles 33 and 34 (Notification and communication of a personal data breach);
- c) Article 35 (Data protection impact assessment); and
- d) Article 36 (Prior consultation by the Client with the supervisory authority).
- 3.5 Without prejudice to the generality of paragraph 3.4, Vizintel shall notify the
Client without undue delay (and in any event within 48 hours) after becoming aware of a personal data
breach. Vizintel shall provide such co-operation, assistance, and information as the Client may reasonably
require in respect of any personal data breach. Without prejudice to the generality of this requirement,
Vizintel shall provide the Client with the following information in respect of any personal data breach
(insofar as it is possible, at the time of notifying the Client of the relevant personal data breach, or
where such information is not available at the point of notification as soon as such information is
available):
- a) The nature of the Client Personal Data, including where possible the categories
and approximate number of data subjects concerned and the categories and number of personal data records
concerned;
- b) The likely consequences of the personal data breach;
- c) The measures taken or proposed to be taken by Vizintel to address the personal
data breach, including where appropriate measures to mitigate the possible adverse effects; and
- d) The details of a contact point where more information concerning the personal data
breach can be obtained.
- 3.6 In addition to the general notice terms under clause 16 of the General Terms, in
the particular case of a personal data breach any notifications shall be addressed to and further
communications sent to:
- 3.7 Without prejudice to the generality of paragraph 3.5, Vizintel will notify the
Client without undue delay (and in any event within 48 hours) of any rights request it receives from a
data subject pursuant to Chapter III of the GDPR. Unless otherwise agreed between the parties, Vizintel
shall not respond to or fulfil such requests itself. Taking into account the nature of the processing,
Vizintel shall assist the Client by appropriate technical and organisational measures, insofar as this is
possible, for the fulfilment of the Client’s obligation to respond to such requests for exercising a data
subject's rights under the GDPR.
- 3.8 Upon the earlier of:
- a) Termination or expiry of the Agreement; or
- b) The date on which the Client Personal Data is no longer relevant to, or necessary
for, the purposes of providing the relevant Services;
Vizintel shall deliver up or destroy (at the Client’s request) such Client Personal Data which is in the
possession of, or under the control of, Vizintel unless European Law requires Vizintel to store such
Client Personal Data.
- 3.9 Notwithstanding any other provision of the Agreement, Vizintel shall be entitled to
appoint further processors to process the Client Personal Data (“Sub-processors”). The following shall
apply in respect of the appointment of Sub-processors:
- a) The Client shall be deemed to have approved the appointment of the Sub-processors
documented in accordance with Appendix 1;
- b) Vizintel shall notify the Client by email of its intention to engage any
additional Sub-processor. Such notice shall give details of the identity of such Sub-processor and the
services to be supplied by it;
- c) Vizintel shall only use a Sub-processor that has provided sufficient guarantees to
implement appropriate technical and organisational measures in such a manner that the processing will
meet the requirements of the Data Privacy Laws and ensures the protection of the rights of data
subjects;
- d) Vizintel shall impose, through a legally binding contract between Vizintel and the
Sub-processor, data protection obligations on the Sub-processor that are in all material respects
equivalent to those set out in this DPA (including, to the extent applicable, the requirements of
paragraph 5) and which in any event meet the requirements set out in the Data Privacy Laws;
- e) The Client shall be entitled to object to the proposed appointment of the
Sub-processor where it reasonably considers that such appointment will not comply with the requirements
of this paragraph 3.9. The Client shall be deemed to have approved the engagement of the Sub-processor
if it has not served a notice in writing on Vizintel objecting to such an appointment within 14 days of
the date that the notice is deemed to be received by the Client in accordance with paragraph 3.9(b);
- f) Where the Client objects to the proposed appointment, Vizintel will use
commercially reasonable efforts to continue to provide the Services without the use of the relevant
Sub-processor. Where Vizintel is unable to continue to provide the Services despite having used such
commercially reasonable efforts, Vizintel shall have no liability for any failure to provide the
Services in accordance with the Agreement; and
- g) Vizintel shall remain fully liable for all acts or omissions of the Sub-processors
as if they were acts or omissions of Vizintel.
- 3.10 Vizintel shall keep at its normal place of business a written record of its
processing of Client Personal Data and of its compliance with its obligations set out in this DPA
(“Records”). Vizintel shall permit the Client, its third party representatives or a supervisory authority
or its third party representatives access to inspect the Records and any other relevant information held
at any premises or on systems used in connection with the processing of the Client Personal Data, for the
purpose of auditing compliance with Vizintel’s obligations under this paragraph 3. Vizintel shall give any
and all necessary assistance in respect of the conduct of such audits. Audits may be performed no more
than once a year on no less than five (5) business days written notice and must be conducted during
regular business hours and must not unreasonably interfere with Vizintel’s business.
4. Obligations of the Client
- 4.1 The Client shall ensure that:
- a) The supply to Vizintel of Client Personal Data by or on behalf of the Client for
the purposes of processing undertaken by Vizintel and its permitted Sub-processors shall comply with the
Data Privacy Laws;
- b) There is a lawful basis in respect of Vizintel’s (and any permitted
Sub-processor’s) processing of the Client Personal Data and data subjects have been provided with a
privacy policy or notice that complies with the requirements of Article 13 and/or 14 of the GDPR in
respect of such processing; and
- c) The instructions given by the Client to Vizintel by operation of paragraph 3.1
shall comply with the Data Privacy Laws.
5. Restricted Transfers
- 5.1 Between the parties: The parties acknowledge and agree that the transfer
from the Client to Vizintel of Client Personal Data does not constitute a Restricted Transfer. If and to
the extent that such a transfer or processing of Client Personal Data becomes a Restricted Transfer, the
parties shall enter into a separate addendum to implement a transfer mechanism to ensure that the
Restricted Transfer complies with the International Transfer Requirements.
- 5.2 By Vizintel: The Client acknowledges and agrees that Client Personal Data
may be transferred by Vizintel to Sub-processors located in a Restricted Country, which may be considered
a Restricted Transfer. In the event of the transfer being considered a Restricted Transfer, Vizintel shall
enter into a transfer mechanism to ensure that the Restricted Transfer meets the International Transfer
Requirements, and Vizintel shall provide details of the relevant transfer mechanism on request.
- 5.3 Failure of transfer mechanism: The parties acknowledge and agree that to
the extent either party considers (acting reasonably) that the use of the relevant lawful transfer
mechanism relied on in respect of a Restricted Transfer under paragraph 5.2 is no longer an appropriate
lawful transfer mechanism to legitimise the relevant Restricted Transfer pursuant to the International
Transfer Requirements, the Restricted Transfer shall be suspended, and the parties shall work together in
good faith to agree and put in place an alternative lawful transfer mechanism or such other supplementary
measures to enable the Restricted Transfer to continue.
- 5.4 In addition to paragraph 5.3, the parties will each use commercially reasonable
efforts to ensure that the Services can continue to be provided in all material respects in accordance
with the Agreement despite the suspension of the Restricted Transfer.
- 5.5 Without prejudice to Supplier’s obligations under paragraphs 5.3 and 5.4, Vizintel
shall have no liability under the Agreement for any inability to provide the relevant Services in
accordance with the Agreement as a result of the suspension of a Restricted Transfer pursuant to paragraph
5.3.
6. Costs
- 6.1 The Client acknowledges and agrees that the remuneration in respect of the Services
does not take into account costs that may be incurred by Vizintel in complying with its obligations under
this DPA. Accordingly, the Client will pay Vizintel in respect of any costs that are (or are to be)
reasonably incurred by Vizintel outside the ordinary course of Vizintel’s business in respect of the
performance by Vizintel of its obligations in this DPA, except where such performance is required as a
result of a breach by Vizintel of its obligations under this DPA. Where practicable to do so, Vizintel
will seek the Client’s written approval prior to incurring such costs.
7. Liability for Losses
- 7.1 Where, in accordance with the provisions under Article 82(3) of the GDPR, both
parties are responsible for the act, or omission to act, resulting in the payment of Losses by a party or
both parties, then a party shall only be liable for that part of such Losses which is in proportion to its
respective responsibility.
8. Use of Cookies
- 8.1 Where the Services require Vizintel to collect Personal Data via the deployment of
pixels, tags, and/or similar tracking technologies ("Tags") ("Interest Based Data") from any digital
property owned and/or operated by Client (or by a third party on Client's behalf) ("Client Digital
Property"), as neither Vizintel nor the relevant third-party data vendor engaged by Vizintel (“Data
Vendor”) that provides the Tag has a direct relationship with the relevant Data Subjects, Client shall
provide Vizintel with such cooperation and assistance as Vizintel and/or the Data Vendor may reasonably
require to enable Vizintel and/or the Data Vendor to comply with its legal obligations. In particular,
Client shall:
- a) Assist Vizintel and/or the Data Vendor in ensuring there is a legal basis to
enable Vizintel and/or the Data Vendor to process the Interest Based Data in connection with the
provision of the Services; and
- b) Have in place, on each relevant Client Digital Property:
- (i) A 'cookie banner' (or other appropriate mechanism) that complies with the
requirements of Data Privacy Laws and obtains consent (within the meaning of the GDPR) for and on
behalf of Vizintel and/or the Data Vendor for:
- (i) The deployment of Tags on the Data Subject's device(s); and
- (ii) Vizintel's and/or the Data Vendor’s collection and processing of the Interest Based Data;
- (ii) A privacy policy and cookie policy or notice that:
- (i) Expressly names Vizintel and/or the Data Vendor (as required) as a party that collects and/or
receives the Data Subject's Personal Data for the purposes anticipated by the Agreement and/or the
applicable parts of Vizintel's and/or the Data Vendor’s privacy notice; and
- (ii) Contains a clear and prominent link to Vizintel's and/or the Data Vendor’s privacy notice.
TrendVue Addendum
Note: These terms ONLY apply if you are taking out a subscription to Vizintel's TrendVue
product.
- “AI Software” means any software provided by a vendor that uses artificial intelligence
or machine learning to generate AI Generated Materials; and
- “AI Generated Materials” means computer-generated third-party output from AI Software
which may consist of text, images, video, code, or other content or materials.
The Client acknowledges Vizintel uses third-party tools in the provision of the Services which may include
AI Software to generate and incorporate AI Generated Materials into the Platform and/or any Deliverables. On
this basis, the Client agrees as follows:
- The Client is responsible for all Client input into the Platform (“Input”) and warrants and represents
Client has all rights and permissions required to provide such Input.
- The Client shall not Input any Client Confidential Information into the Platform, and to the extent the
Client Inputs any Client Confidential Information into the Platform, Vizintel will not be liable in any
event for all losses, claims, or otherwise in connection with the Client’s use of its Confidential
Information in the Platform.
- The Client acknowledges the Services are provided to the Client on an “as is" basis and accordingly the
Client assumes sole responsibility for the results obtained from the Services and for any conclusions
drawn from such use.
- The Client and Authorised Users may not:
- (i) Systematically scrape, crawl, harvest, retrieve, or otherwise gather by
electronic means any data or other content from the Platform to monitor, access, copy, create, acquire,
or compile — directly or indirectly, in single or multiple downloads — a collection, compilation,
database, directory, or the like, whether by manual methods, through the use of bots, crawlers, robots,
or spiders, or any automatic devices, programs, algorithms, or methodologies or otherwise; or
- (ii) Remove, obscure, or modify any copyright or other notices included in the
Insights nor any metadata or digital rights management that may be associated with the Insights.
The Client acknowledges and agrees the above Additional Terms will take precedence over the Conditions to
the extent there is any conflict or direct inconsistency between the two documents.
