These terms and conditions and documents incorporated herein (“Conditions”) govern the use of the SaleCycle Services and Platform to the exclusion of all other terms and by entering into the Order with SaleCycle you agree to these Conditions. You should read this Conditions carefully and ensure any Authorised Person or user of the Services is aware of these Conditions.
SaleCycle may amend these Conditions from time to time. SaleCycle will provide notice of such change on their website and Platform and by continuing to use the SaleCycle services you agree to such changes. Please note, SaleCycle shall not be entitled to vary the Order, except for as specifically provided within these Conditions, or with the agreement of the Client as per clause 15.10.
SaleCycle may from time to time develop or include additional services to their product suite and where a Client procures such additional service, if applicable, they shall enter into a new Contract and agree to specific service terms relating to that new service which will be annexed to these Conditions or subsequent versions of the Conditions.
Where we translated these Conditions for your ease, the English version shall prevail in the event of any dispute.
The Introduction shall constitute part of the Conditions.
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In these Terms and Conditions, the owing words and expressions shall the owing meanings:
1.1 "Authorised Person" means a person who is authorised by SaleCycle or the Client, as appropriate, to deal with the other Party in relation to this Contract.
1.2 "Client Default" has the meaning set out in clause 5.2 below.
1.3 "Client Materials" means all text, images, content, trade marks, product names, logos and any other materials in which the Client owns the Intellectual Property Rights and which the Client supplies to SaleCycle for use in the performance of the Services.
1.4 "Confidential Information" means information that either Party designates as confidential or which under the circumstances surrounding disclosure, reasonably ought to be treated as confidential, including without limitation the terms of this Contract, a Party's finances and business, affairs, all commercial, financial, marketing, business and technical information, data (including all data relating to customers and prospective customers), products, strategic development and marketing plans, trade secrets, know-how, personnel and suppliers of the disclosing Party together with all information directly derived from the foregoing.
1.5 "Content" means information, data, text, software, music, sound, photographs, graphics, video, messages or other materials, contained within a Marketing Communication, excluding any Client Materials.
1.6 "Contract" means the contract between SaleCycle and the Client for the supply of Services in accordance with the Conditions and the Order.
1.7 "Effective Date" means the date on which the Order is accepted by SaleCycle.
1.8 "Fees" means the fees payable from the Client to SaleCycle in respect of the Services as further set out in the Order (including Setup Fees and any other incidental fees stated within the Order).
1.9 "Good Industry Standards" means the standards reasonably expected of a skilled supplier of the type of Services provided by SaleCycle.
1.10 "Initial Term" means the period as stated in the Order which commences when the SaleCycle campaign is launched.
1.11 "Intellectual Property Rights" means all intellectual property rights and interests including, without limitation, any and all patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
1.12 "Law" means all laws, legislation and regulations (as they may be amended), in all jurisdictions in which the Client operates, relating to the provision and receipt of the Services including, but not limited to, rules relating to Processing of Personal Data or personally identifiable information and the content and sending of Marketing Communications in or from those jurisdictions.
1.13 "Marketing Communication"means a communication sent to a Visitor as a result of the Services;
1.14 "Order" means SaleCycle’s order form for the Services as filled out and signed by the Client.
1.15 "Party" means SaleCycle or the Client as the Contract may require.
1.16 "SaleCycle Sale" means a sale by the Client to a Visitor which is attributed to SaleCycle's Services in accordance with the Attribution Model.
1.17 "Services" means the services to be provided under the Contract as further set out in the Order
1.18 "Term" means the period during which the Contract is in force as provided in the Order and pursuant to clause 14.
1.19 "Visitor" means a visitor to the Website.
1.20 "Website" means the Client's transactional website(s) in relation to which the Services are provided.
2.1 All references to Clauses and Sub-Clauses are to Clauses and Sub-Clauses in these Conditions.
2.2 In the event of any inconsistency between these Conditions and the terms contained in any Schedule or Annexure to these Conditions, these Conditions shall apply to the extent of the inconsistency except where the provisions of the relevant Schedule explicitly state otherwise.
2.3 If there is any conflict or ambiguity between the terms of the Order and the Conditions, a term contained in the Order shall priority over one contained in the Conditions.
3.1 In consideration of payment of the Fees by the Client, and subject to the terms and conditions of the Contract, SaleCycle will provide to the Client during the Term the Services in accordance with the Contract.
3.2 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions and shall remain valid for a period of 40 days from the date of the Order, unless extended at the discretion of SaleCycle.
3.3 The Order shall only be deemed to be accepted when SaleCycle issues written acceptance of the Order at which point and on which date the Contract shall come into existence.
3.4 Any samples, drawings, descriptive matter or advertising issued by SaleCycle, and any descriptions or illustrations contained in SaleCycle’s catalogues or brochures, are issued or published for the purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any contractual force.
3.5 This Contract shall apply to the Contract 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.
3.6 The addition of new Services or alteration of ongoing Services shall be achieved by executing a new written letter of variation signed between the Parties and unless otherwise agreed, where the Client is including new Services, the Initial Term specified in the Order shall restart from the Go Live Date of the new Service.
3.7 In order to utilise the Services, SaleCycle shall provide a licence and where applicable login credentials to use the Platform and Services in accordance with these Conditions. The Client needs to ensure access to the internet and relevant browsers to access the Platform and Services.
3.8 SaleCycle may provide Platform usernames and passwords as part of the Services and the Client agrees that all Platform activity, which can be traced to Client usernames and passwords, are deemed to been performed by the Client and are not the responsibility of SaleCycle.
4.1 SaleCycle shall supply the Services to the Client in accordance with the Order in all material respects.
4.2 SaleCycle shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 SaleCycle reserves the right to amend the Order if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and SaleCycle shall notify the Client in any such event.
4.4 SaleCycle warrants to the Client that the Services will be provided using reasonable care and skill.
5.1 The Client Shall:
5.1.1 deploy the SaleCycle tag to all of its required production website pages and keep the SaleCycle tag deployed for the duration of the Term;
5.1.2 provide SaleCycle with the relevant templates, designs and Client Materials it requires in order to provide the Services. If the Client has brand guidelines or other restrictions on the use of its Client Materials it shall notify them promptly to SaleCycle in advance of or at the time of provision of the Client Materials;
5.1.3 ensure that the terms of the Order are complete and accurate;
5.1.4 co-operate with SaleCycle in all matters relating to the Services and ensure information provided to SaleCycle is complete and accurate.
5.1.5 obtain and maintain all necessary licenses, permissions and consents which may be required for the Services before the date on which the Services are to start;
5.1.6 not, except as permitted under this Agreement, copy, modify, adapt, decode, reverse engineer, decompile or otherwise deconstruct or cause infringement of, the Services, Platform and Content, or attempt to circumvent or interfere with any SaleCycle security features.
5.1.7 comply with all applicable laws; and
5.1.8 comply with any additional obligations as set out in the Order.
5.2 If SaleCycle’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default)
5.2.1 without limiting or affecting any other right or remedy available to it, SaleCycle shall the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays SaleCycle’s performance of any of its obligations;
5.3 SaleCycle shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from SaleCycle’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
5.3.1 the Client shall reimburse SaleCycle on written demand for any costs or losses sustained or incurred by SaleCycle arising directly or indirectly from the Client Default (nothing in this clause is intended to limit SaleCycle’s rights under clauses 6.12 to 6.15).
5.4 The Client agrees that should they terminate the Contract or prevent delivery of the SaleCycle Services, prior to the end of the Initial Term (or each Subsequent Term), excluding termination for SaleCycle’s material breach of the Contract, they shall pay the Fees pro-rata for the remainder of the Initial Term (or each Subsequent Term) and where charges are variable on a Monthly Basis then the remaining Fees shall calculated on a commission per acquisition basis based upon the average SaleCycle Sales activity recorded on the Website over the three calendar months immediately preceding the Downtime or such reasonably applied Forecast in the absence of 3 full months Fees.
6.1 After the end of each calendar month SaleCycle will deliver by email to the Client an invoice for the Fees due under the Contract for the preceding month.
6.2 At the request of the Client, SaleCycle will issue a report supporting the calculation of the invoice.
6.3 SaleCycle reserves the right to increase the Fees on an annual basis with effect from each anniversary of the Effective Date.
6.4 Unless the Client notifies SaleCycle in writing within fourteen (14) days owing receipt of an invoice that it disputes an invoiced amount, the Client shall be deemed to accepted the invoice.
6.5 If the Client disputes the invoice it shall provide reasonable detail in its notice of dispute and the Parties shall work together in good faith to ree the dispute and the Client shall pay any undisputed amount in accordance with this clause 6.
6.6 Should SaleCycle delay the delivery of an invoice for any reason, it shall not invalidate the invoice and sums shall remain payable within 30 days of receipt of the invoice.
6.7 All Fees and any other charges, costs and expenses owed by the Client to SaleCycle under this Contract are due for payment by the Client within thirty (30) days owing the date of SaleCycle’s invoice, unless otherwise specified in the Order, and shall be paid by the Client in full and in cleared funds to a bank account nominated in writing by SaleCycle.
6.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withing (other than any deduction or withing of tax as required by law).
6.9 Time for payment of the Fees shall be of the essence of the Contract.
6.10 Without limiting any other right or remedy of SaleCycle under the Contract, if the Client fails to make any payment due to SaleCycle under the Contract, SaleCycle shall the right to:
6.10.1 charge interest on the overdue amount accruing on a daily basis at the rate of four percent (4%) per annum above the then current base rate of Royal Bank of Scotland Plc. From the due date for payment until payment is received in full; and
6.10.2 Suspend forthwith and without notice the Client’s access to the Services until the relevant Fee invoice is settled in full. Any such suspension period shall be added to the remainder of the Term (at SaleCycle’s discretion).
6.11 The Fees are exclusive of VAT or any equivalent tax chargeable from time to time. Where any taxable supply for the purposes of VAT or any equivalent tax is made under the Contract by SaleCycle to the Client, the Client shall, on receipt of a valid VAT (or equivalent tax) invoice from SaleCycle, pay SaleCycle such additional amounts in respect of VAT (or equivalent tax) as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.12 If, due to no fault of SaleCycle, the sending of Marketing Communications stops or is restricted, for any reason, at any time during the Term (“Downtime”), SaleCycle will invoice and the Client shall pay to SaleCycle, Fees for the duration of the Downtime calculated on a commission per acquisition basis based upon the average SaleCycle Sales activity recorded on the Website over the three calendar months immediately preceding the Downtime.
7.1 The Client acknowledges and agrees that all the Intellectual Property Rights existing in, arising out of or in connection with the SaleCycle brand, the Services, the Platform and the Content including without limitation the tag, all communication media and systems associated with it, shall be owned by, vest in and remain the abte property of SaleCycle (other than Intellectual Property Rights in any materials provided by the Client).
7.2 SaleCycle hereby grants the Client a fully paid up, limited, non-transferrable, non-sub-licensable, non-exclusive, royalty-free licence during the Term to use the Platform and the Content in connection with the Services.
7.3 The Client hereby grants SaleCycle a fully paid-up, non-exclusive, royalty free, non-transferable licence to copy and modify any Client Materials for the Term for the purpose of providing the Services to the Client.
7.4 SaleCycle warrants that the receipt and use of the Services by the Client shall not infringe the Intellectual Property Rights of any third party.
7.5 SaleCycle shall indemnify the Client in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Client arising out of or in connection with any claim brought against the Client for actual or alleged infringement of a third party’s Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt, use or supply of the Services.
7.6 SaleCycle shall not be in breach of the warranty at clause 7.4 and the Client shall no claim under the indemnity at clause 7.5 to the extent the infringement arises from:
7.6.1 the use of Client Materials by SaleCycle in providing the Services;
7.6.2 Any modification of the Services, other than by or on behalf of SaleCycle or in breach of clause 5.16; and
7.6.3 compliance with the Client’s specifications or instructions.
7.7 The Client:
7.7.1 warrants that the receipt and use of the Customer Materials in the performance of the Contract by SaleCycle, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
7.7.2 shall indemnify SaleCycle in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by SaleCycle arising out of or in connection with any claim brought against SaleCycle, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this Contract of the Customer Materials.
7.8 The Client agrees SaleCycle may use the Client Materials (excluding Protected Data) within Salecycle’s own marketing materials, including but not limited to external marketing publications, ebooks and blogs and on the SaleCycle websites for the promotion of SaleCycle’s services. SaleCycle shall use Client materials responsibly and professionally for the purposes of their own marketing. Should the Client not agree to this use then they should notify SaleCycle promptly in writing.
7.9 The Client agrees that upon the reasonable request of SaleCycle they shall provide SaleCycle with a testimonial or case study relating to the Services and such case study shall be approved by the Client prior to publication, such approval not to be unreasonably withheld or delayed.
8.1 Any reference in these Conditions to the Client's Approval shall mean written approval signified by email and sent by an Authorised Person at the Client to an Authorised Person at SaleCycle.
8.2 SaleCycle shall obtain the Client's Approval to all communication templates that form a Marketing Communication before they are live on the Services.
9.1 Each Party shall hold in confidence all Confidential Information obtained from the other pursuant to this Contract and shall not use that Confidential Information save as is necessary to perform its obligations or enjoy its rights under this Contract.
9.2 Neither Party shall disclose to any third Party without the express written permission of the other Party any Confidential Information obtained from the other Party.
9.3 Each Party may disclose the other Party’s Confidential Information to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the Party's obligations under the Contract. Each Party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 9.
9.4 The provisions of clauses 9.1 and 9.2 shall not apply to any information which:
9.4.1 is or becomes public knowledge other than by breach of this clause 9;
9.4.2 is in the possession of the receiving Party without restriction before the date of receipt from the disclosing Party; or
9.4.3 is received by the receiving Party from a third Party who lawfully acquired or developed it and who is under no obligation restricting its disclosure.
9.5 The provisions of clause 9.2 shall not apply to any information which must by Law be disclosed by the receiving Party so long as the receiving Party provides the disclosing Party with prompt notice and complies with any protective order imposed on such disclosure.
9.6 At the request of the disclosing Party, the receiving Party will on termination of this Contract return or (to the extent possible) securely destroy all of the other Party's Confidential Information that is reduced to writing, drawing(s), schematic(s) or any other form of documentation, whether held in hard copy or machine-readable form or destroy or delete all such material and to certify the destruction to the disclosing Party.
10.1 Nothing in the Contract shall operate to exclude or limit the liability of either Party which cannot legally be limited, including liability for:
10.2 Subject to clauses 10.1 and 5.3, neither Party shall be liable to the other Party, whether in contract or in tort (including for negligence, of statutory duty howsoever arising), misrepresentation (whether innocent or negligent) restriction or otherwise, for:
10.3 provided that nothing in this clause 10.2 shall limit or otherwise exclude the Client's obligation to pay the Fees (including any profit element) due in respect of the Services pursuant to this Contract.
10.4 SaleCycle has given commitments as to compliance of the Services with relevant specifications in clause 4. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.5 Subject to clauses 10.1 and 10.2 SaleCycle's aggregate liability under the Contract for all claims whether in contract, tort (including negligence), misrepresentation, for breach of statutory duty or otherwise arising under or in connection with the Contract shall not exceed the total value of the Fees paid to SaleCycle by the Client during the contract year in which the breach or breaches occurred. For the purposes of this clause
10.5, ‘contract year’ means a 12-month period commencing with the Effective Date or any anniversary of it.
10.6 The indemnities in this Contract are subject to the owing conditions:
10.6.1 the indemnified party promptly notifies the indemnifier in writing of the claim;
10.6.2 the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
10.6.3 the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
10.6.4 the indemnified party allows the indemnifier complete control over the litigation settlement of any action or claim.
10.6.5 The indemnities in this Contract may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
10.6.6 The Indemnified Party shall use all reasonable endeavours to mitigate whenever and wherever possible any underlying liabilities, costs, expenses, damages and losses.
11.1 During the Term of the Contract and for a period of six years after the expiry or termination of the Contract SaleCycle shall maintain in force, with a reputable insurance company, professional indemnity insurance in an amount not less than £5 million and shall, on the Client's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium.
12.1 The Parties agree that they will at all times comply with the provisions and obligations imposed by Law and the SaleCycle Data Processing Agreement found here which is duly incorporated into this Contract.
13.1 The Services and all information, Platforms and other Content (including third party information, products and content) are provided “as is” and are subject to change at any time without notice to the Client.
13.2 To the fullest extent permitted by statute or common law and except as expressly set out in this Contract, SaleCycle disclaims all representations, warranties, obligations and liabilities (express, implied and statutory, including but not limited to the conditions of satisfactory quality, fitness for a particular purpose and non-infringement of proprietary rights) as to the Services and all information, Platforms and other content (including third party information products and content) included in or accessible from this document to The SaleCycle Platform and/or web site.
14.1 The Contract commenced on the Effective Date and, unless it is terminated earlier in accordance with this clause 14, shall continue in force for the Initial Term indicated in the Order. After the Initial Term the Contract will automatically renew for subsequent consecutive periods (each a “Subsequent Term”) equal in length to the Initial Term indicated in the Order unless the Client provides written notice of termination no less than 90 days prior to end of the Initial Term or relevant Subsequent Term in which case the Contract will terminate on expiry of such notice.
14.2 If the Client wishes to implement the SaleCycle Software and Services in new regions, Websites or add additional SaleCycle features to this Contract, the duration of this Contract will automatically extend for the period stated within the new Order commencing on the date the updated Services are launched in the new region or Website.
14.3 Without affecting any other right or remedy available to it, either Party may terminate the Contract with immediate effect on written notice to the other Party if the other Party:
14.3.1 commits a material breach of the Contract and, if the breach is capable of remedy, the other Party does not remedy the breach within 30 days of receiving written notice to do so specifying the nature of the breach; or14.3.2 convenes a meeting of its creditors, or becomes inent, is unable to pay its debts has an administrative receiver (or receiver, or administrator) appointed over its assets or business, is the subject of a petition presented to put it into liquidation (otherwise than for the purpose of amalgamation or reconstruction) or ceases or threatens to cease to carry on business, or anything analogous to any such events befalls the other Party in any other jurisdiction in which that Party operates.14.4 Without affecting any other right or remedy available to it, SaleCycle may at its discretion and with immediate effect either suspend the Services or terminate the Contract on written notice to the Client if the Client fails to pay any undisputed amount due to SaleCycle under the Contract or becomes subject to (or SaleCycle reasonably believes that the Client is about to become subject to any of the events listed at clause 14.3.2).
14.5 On termination of the Contract, the Client shall immediately pay to SaleCycle all of SaleCycle's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, SaleCycle shall submit an invoice, which shall be payable by the Client immediately on receipt.
14.6 In accordance with clause 5.3. should the Client terminate prior to the end of the Initial Term (or each Subsequent Term), excluding termination resulting from SaleCycle’s material breach, the Client agrees to pay Fees for the remaining Term of the Contract.
14.7 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the Parties that accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
14.8 Any term which is expressly or by implication intended to survive termination or expiry of this Contract shall continue in force notwithstanding such expiry or termination including for the avoidance of doubt clauses 6 (Payment), 7 (Intellectual Property), 9 (Confidentiality) 10 (Limit of Liability) and 12 (Privacy and Compliance).
15.1 Neither Party shall be under any liability to the other in respect of any delay, failure or interruption in performing any term or condition of the Contract if such delay, failure or interruption results from events, circumstances or causes beyond its reasonable cont which shall include (but not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, embargo, riot or civil commotion.
15.2 Any notice given to a Party under or in connection with this Contract shall be in writing and, unless otherwise specified, may be delivered in person, by registered or certified, return-receipt requested mail. If hand-delivered or delivered by registered mail or certified mail, the notice shall be deemed delivered upon signature of a delivery receipt or at the time the notice is left at the proper address. Notices should be addressed to the Company Secretary of the receiving Party at the address detailed in the Order. For the avoidance of doubt, invoices shall not constitute a notice for the purposes of this provision and shall be delivered in accordance with clause 6 (Payment) and any notice of amendment to these terms and conditions shall be delivered in accordance with the Introduction to these Conditions.
15.3 If any provision or part provision of the Contract is held invalid or unenforceable or becomes invalid or unenforceable by a court of competent jurisdiction, such provision will be deemed modified to the minimum extent necessary to render that provision valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted from the Contract. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
15.4 The relationship of the Parties established by the Contract is solely that of independent contractors, and nothing contained in this Contract shall be construed to make either Party (or its agents or employees) the representative or agent of the other Party for any purpose. Any written representation or warranty not expressly contained herein shall not be enforceable by the Client.
15.5 The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract and nothing in the Contract confers or purports to confer on any third party any benefit or any right to enforce any term of the Contract or operates to give any third party the right to enforce any term of the Contract.
15.6 The Contract and any dispute or claim arising out of or in connection with it (including non-contractual claims) shall be governed by and construed in accordance with the Laws of England.
15.7 The Parties agree to submit to the exclusive jurisdiction of the courts of England in relation to all matters arising out of or in connection with the Contract (including non-contractual disputes or claims).
15.8 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a Party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15.9 The Contract constitutes the entire agreement and understanding of the Parties relating to its subject matter and supersedes and extinguishes any previous agreement, understanding, promise, assurance, warranty and/or representation relating to such subject matter, whether written or oral. Each Party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
15.10 No amendment to the Order shall be effective unless made in writing and signed by both Parties.
15.11 Save that SaleCycle shall be entitled to subcontract its obligations under the Contract, neither Party may assign, mortgage, charge, subcontract, delegate, declare a trust over, substitute, transfer or deal in any other manner with any of its rights and obligations under the Contract without the other Party's prior written consent, except that either Party may assign or transfer the Contract in connection with the sale or transfer of all or substantially all of such Party's assets, stock or business by sale, merger, consolidation or similar transaction, provided this does not come within any of the circumstances provided for in clause 14.3.2 SCHEDULE 1Data Processing AgreementDefinitions"Appropriate Safeguards" means such legally enforceable mechanisms for transfers of Personal Data as may be permitted under Data Protection Legislation from time to time."Contract" means the terms and conditions that governs the Service provided to the Client by SaleCycle."Data Controller" has the meaning given to that term (or to the term “controller”) in Data Protection Legislation."Data Processor" has the meaning given to that term (or to the term “processor”) in Data Protection Legislation."Data Protection Legislation" means any law, statute, declaration, decree, directive, legislative, enactment, order, ordinance, regulation, rule or other binding restriction (as amended, condated or re-enacted from time to time) which relates to the Processing of Personal Data (including, without limitation, the privacy of electronic communications) to which a Party is subject, including but not limited to the EU GDPR and the UK GDPR, E-Privacy Legislation and the Data Protection Act 2018 as each may be applied, amended or updated from time to time in all jurisdictions in which the Client operates."Data Protection Losses" means all liabilities, including all:costs (including legal costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage); andto the extent permitted by Law:
i. administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority;
ii. compensation which is ordered by a Supervisory Authority to be paid to a Data Subject; and
iii. the reasonable costs of compliance with investigations by a Supervisory Authority."Data Subject" has the meaning set out in the EU GDPR and UK GDPR."Data Subject Request" means an actual or purported subject access request or notice or complaint from (or on behalf of) a Data Subject exercising his rights under the Data Protection Legislation."Personal Data" has the meaning given to that term in Data Protection Legislation."Processing" has the meaning set out in the EU GDPR and UK GDPR (and “process” and “processed” shall be construed accordingly)."Protected Data" means Personal Data received from or on behalf of the Client in connection with the performance of SaleCycle’s obligations under this Contract."Protected Data Breach" means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Protected Data."Sub-Processor"means another Data Processor engaged by SaleCycle for carrying out Processing activities in respect of the Protected Data on behalf of the Client."Supervisory Authority" means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Legislation."UK GDPR" means the General Data Protection Regulation, Regulation (EU) 2016/679 as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or a part of the United Kingdom from time to time)
1. Processor and Controller Relationship
1.1 The Parties agree that, for the purposes of the Data Protection Legislation, the Client shall be the Data Conter and SaleCycle shall be the Data Processor.
1.2 they will at all times comply with the provisions and obligations imposed by Law including but not limited to Data Protection Legislation. This Schedule is in addition to and does not relieve, remove or replace, a Party’s obligations or rights under the Data Protection Legislation; and
1.3 Each of the Parties acknowledges and agrees that the following table sets out an accurate description of the Data Protection ParticularsSubject matter of the processing SaleCycle processes data about potential and existing customers on behalf of the Client for digital remarketing purposes.Nature and Purpose of ProcessingData is ected by bespoke hosted Javascript, called on every occasion a page loads. Data is transmitted in an encrypted format over the internet to SaleCycle’s backend servers and databases for processing which allows for the delivery of bespoke, personalized, real-time, email and SMS Marketing Communications. Messages and the associated data as well as the ected data is stored in secure databases for the purposes of reporting and analytics on behalf of the Client.Type of personal data being processedName, telephone/mobile number, email address, browser information including IP address, salutation, opt-in status and address.The categories of Data SubjectsProspective and existing customers of a Client’s Website.
2. Instructions and Details of Processing
2.1 SaleCycle shall:
2.1.1 process the Protected Data only in accordance with the Client's documented, written instructions unless SaleCycle is required by Law to otherwise process that Protected Data. Where SaleCycle is relying on Law of a member of the European Union or European Union law as the basis for processing Protected Data, SaleCycle shall promptly notify the Client of this before performing the processing required by Law unless such Law prohibits SaleCycle from notifying the Client. For the avoidance of doubt, entering into the Contract with SaleCycle shall constitute instructions from the Client to SaleCycle to process Protected Data for the purposes to deliver the Services;
2.1.2 ensure that all personnel who access to and/or process Protected Data are obliged to keep the Personal Data confidential (except where disclosure is required in accordance with Law, in which case SaleCycle shall, where practicable and not prohibited by Data Protection Legislation, notify the Client of any such requirement before such disclosure);
2.1.3 inform the Client if SaleCycle becomes aware of a Processing instruction that, in SaleCycle’s opinion, infringes Law, provided that (i) this shall be without prejudice to clauses 2.1.1, 2.2 and 3.2 of this Schedule 1 to the maximum extent permitted by Law, SaleCycle shall no liability howsoever arising (whether in contract, tort (including negligence) or otherwise) for any losses, costs, expenses or liabilities including any Data Protection Losses arising from or in connection with any Processing in accordance with the Client’s instructions.
2.2 The Client and SaleCycle acknowledge that it is the Client's responsibility to ensure that:
2.2.1 the instructions the Client gives to SaleCycle regarding the Processing of any Protected Data shall be consistent with Law (including but not limited to Data Protection Legislation and E-Privacy Legislation), this shall include (but is not limited to) ensuring that the Client has determined the most appropriate lawful basis for Processing the Protected Data; and
2.2.2 it has all necessary appropriate consents and notices in place to enable lawful transfer of the Protected Data to SaleCycle for the duration and purposes of the Contract.
2.3 The Client will notify SaleCycle in advance of any planned changes to the Client’s Website (“Website Change”) that will or are likely to disrupt the Services and SaleCycle shall such reasonable time (as determined by SaleCycle in the circumstances) from the date of notification to SaleCycle of the Website Change to consider such Website Change and where possible amend the Services to accommodate such Website Change to allow the continuation of the Services. SaleCycle shall be entitled to charge reasonable development time and costs to accommodate such Website Change.
2.4 Where it is not possible or commercially reasonable for SaleCycle to accommodate the Website Change pursuant to clause 2.3, the Client and SaleCycle agree to discuss the options available including but not limited to (1) the Services being terminated with SaleCycle being entitled to charge a fair and reasonable termination charge which will be no more than the remaining average value of the contract; (2) where possible, the removal of part of the Services to ensure the continuance of Services not affected by the Website Change.
2.5 If in the event that the Client doesn’t notify SaleCycle pursuant to 2.3 and any subsequent Processing impairs the Services provided to the Client by SaleCycle or infringes Law, SaleCycle shall no liability howsoever arising (whether in contract, tort (including negligence) or otherwise) for any losses, costs, expenses or liabilities including any Data Protection Losses arising from or in connection with any Processing arising from the Website Change.
2.6 The Client acknowledges and agrees that SaleCycle Services can generate and SaleCycle may use, aggregated and wy anonymised data for their own internal purposes, including but not limited to statistical analysis, reporting and the development of new products.
2.7 The Client agrees that SaleCycle may transfer Protected Data to countries outside the European Economic Area including to the UK provided that all such transfers shall be by way of Appropriate Safeguards and in accordance with Data Protection Legislation.
3. Technical and Organizational Measures 3.1
3.1 SaleCycle warrants that, considering the state of technological development and the cost of implementing any measures, it will take appropriate technical and organisational measures against the loss, unauthorised access, unauthorised use, unauthorised modification, or unauthorized destruction of data to ensure a level of security appropriate to:3.1.1 the harm that might result from such occurrences; and
3.1.2 the nature of the data to be protected.
3.2 The Client warrants, represents and undertakes that it has undertaken due diligence in relation to SaleCycle’s Processing operations, and it is satisfied that:
3.2.1 SaleCycle’s Processing operations are suitable for the purposes for which the Client proposes to use the Services and engage SaleCycle to process the Protected Data; and
3.2.2 SaleCycle has sufficient expertise, reliability and resources to implement technical and organizational measures that meet the requirements of Data Protection Legislation.
4. Other Processors
4.1 Where SaleCycle uses a specific third-party processor at the request of the Client, SaleCycle shall no liability for the use of Protected Data by this third-party processor and the Client shall ensure that this third-party processor complies with the Data Protection Legislation and is subject to similar obligations as those of SaleCycle under this Schedule 1
.4.2 SaleCycle shall:
4.2.1 not engage any Sub-Processor to carry out the Processing activities in respect of the Protected Data without the Client’s written authorisation (such authorisation not to be unreasonably withheld, conditioned or delayed) provided that the Client authorises the appointment of any Sub-Processor at the time of entry into the Contract;
4.2.2 appoint any Sub-Processor under a written contract substantially on that party’s standard terms of business dealing with legal compliance and data privacy which shall include the requirements imposed by Data Protection Legislation; and
4.2.3 inform the Client of any intended changes concerning the addition or replacement of Sub-Processors, giving the Client the opportunity to object to such changes. SaleCycle shall reasonably take into account the views of the Client in appointing any such Sub-Processor, but for the avoidance of doubt the appointment of any Sub-Processor shall be at SaleCycle’s abte discretion and SaleCycle shall no obligation to act in accordance with any objection raised by the Client.
4.3 An up to date list of sub-processors can be found here
4.4 As between the Client and SaleCycle, SaleCycle shall remain fully liable, in accordance and pursuant to the the terms of the Contract, for all acts or omissions of any Sub-Processor appointed by SaleCycle.
5. Data Subject Requests
5.1 Taking into account the nature of the Processing, SaleCycle will assist the Client insofar as is reasonably possible in the fulfilment of the Client’s obligations to respond to Data Subject Requests relating to Protected Data provided that the Client shall pay SaleCycle’s reasonable costs in dealing with such requests.
5.2 SaleCycle shall refer all Data Subject Requests it receives to the Client within three Business Days of receipt of the request.
6. Assistance with Compliance
6.1 SaleCycle shall provide such reasonable assistance as the Client reasonably requires (taking into account the nature of Processing and the information available to SaleCycle) in ensuring compliance with the Client’s obligations under Data Protection Legislation with respect to:
6.1.1 security of Processing;
6.1.2 notification of a Protected Data Breach to a Supervisory Authority;
6.1.3 communication of a Protected Data Breach to a Data Subject; and6.1.4 carrying out a data protection impact assessment (as such term is defined in Data Protection Legislation).
7. Breach Notifcation
7.1 In respect of any Protected Data Breach involving Protected Data, SaleCycle will, without undue delay (and in any event within 24 hours):
7.1.1 notify the Client of the Protected Data Breach; and
7.1.2 provide the Client with details of the Protected Data Breach; and
7.1.3 take all reasonable steps to resolve the Protected Data Breach and mitigate the impact of the Protected Data Breach.
8. Deletion or Return of Protected Data and Copies
8.1 SaleCycle shall at the Client’s written request, delete or return all of the Protected Data to the Client after the end of the provision of the Services. The Client may request the return or destruction of any other type of analytical data, and the Parties shall agree such return on a case-by-case basis on commercial terms then to be agreed.
9. Information and Audit
9.1 SaleCycle shall maintain, in accordance with Data Protection Legislation binding on SaleCycle, written records of categories of Processing activities carried out on behalf of the Client.
9.2 SaleCycle shall, in accordance with Data Protection Legislation, on written request from the Client, make available to the Client’s customer such information as is reasonably necessary to demonstrate SaleCycle’s compliance with the obligations of Data Processors under Data Protection Legislation.
9.3 SaleCycle shall, on the written request of the Client and with reasonable notice, allow representatives of the Client to audit SaleCycle (the “Audit Right”) and/or to provide the Client with reasonable information in order to ascertain compliance with this Data Processing Agreement provided that:
9.3.1 the Client shall only be permitted to exercise the Audit Right under this clause 9.3 no more frequently than once per Year;
9.3.2 each audit shall be performed at the expense of the Client;
9.3.3 the Client shall not, in its performance of each such audit, unreasonably disrupt the business operations of SaleCycle;
9.3.4 any audit of SaleCycle shall be undertaken during SaleCycle’s normal business hours.
9.3.5 the Client ensures that all information obtained or generated by SaleCycle or the Client or the Client’s representatives in connection with an audit is kept strictly confidential (save for disclosure as required by Law);and
9.3.6 the Client shall pay SaleCycle’s reasonable costs for contributing to the audit if the duration of the audit exceeds one business day.
