Agency terms and conditions
These are our general terms and conditions – please see your project or support contract for your specific terms and conditions.
- Applicability: These terms and conditions apply to any work (“the work”) undertaken by New Power Host Ltd trading as “NDP” (“the Agency”) arising from verbal or written instructions given by a Client ('the Client') following a provision of an estimate for a specified number of hours required for completion of the work (“the estimate”). These terms and conditions apply unless a variation has been subsequently agreed and confirmed in writing, signed by an authorised representative of Agency and the Client.
- The work: the Agency will carry out any and all work requested by and agreed with (verbally or in writing) the Client in consideration for a fee based on the hourly rate set out in the estimate.
- Fee: (i) The applicable rate of fees for the work is hourly rate set out in the estimate. (ii) Any estimates of the whole or any part of the total fee applicable for the work (“the total fee”) is given in good faith and shall be treated as an estimate only and all errors and omissions shall be excepted. (iv) Any estimates of the total fee shall be valid for 30 days from the date of the estimate. (v) The Agency reserves its right to apply additional charges for any work entailed in altering or modifying the deliverables caused by any changes, amendments or additions requested by the Client after the date of the estimate.
- Payment: (i) Payment of the fees shall be made in pounds sterling according to the terms of the invoice. (ii) The Agency shall be entitled to charge interest on overdue sums.
- Software: Upon Delivery and provided that the Client has complied with its obligations to pay off all sums due for the work, the Agency grants to the Client a non-exclusive worldwide licence to use any proprietary software of the Agency used in the creation, development and/or operation of the deliverables (including any sub-routines, sub-elements or other generic parts of such software incorporated into the deliverables which constitute the “building blocks” of the underlying code) (the “Agency Software”) solely in connection with the normal operation of the deliverables and, where applicable, in accordance with the Agency's express instructions. The Agency shall obtain all such usage rights for the Client in respect of any software owned by a third party used in the creation, development and/or operation of the deliverables (the “Third Party Software”) as are deemed necessary by the Agency. For the avoidance of doubt, the Agency's assignment under this clause 5 to the Client of any copyright and intellectual property rights in the deliverables shall not include the Agency Software, the Third Party Software or any software distributed under the general public license (http://www.gnu.org/licenses/gpl.txt) used by the Agency in the course of the development of the deliverables or incorporated by the Agency into the deliverables.
- Copyright: Subject to the above clause 5 and provided that the Client has complied with its obligations to pay off all sums due to the Agency from the Client, any copyright and intellectual property rights in all any artwork, photograph, layout, copy, designs or any other material created by the Agency under the Agreement shall be assigned to the Client upon Delivery. The Agency reserves the right to use all creative work or materials for its own portfolio or demonstration purposes. The creation of any materials for the Client by the Agency may involve making use of any artwork, photograph, layout, copy, designs or any other material protected by copyright and intellectual property rights belonging to a third party and in existence at the time it is desired to make use of it for the purposes of the Services (“Existing Work”) or any database or methodologies, system or know-how owned, used or created by the Agency, which is also intended for the Client's use (“Generic Work”). The Agency shall obtain all such usage rights for the Client in respect of the use the Existing Work and Generic Work as are deemed necessary by the Agency. Unless expressly requested and paid for by the Client the copyright in 'stock' photographs obtained from news or photographic agencies for particular deliverables or to photographic or film negatives or to any other medium in which this material may be supplied will not be assigned to the Client.
- Confidential Information: The parties acknowledge a duty, subsisting during and after the termination of this Agreement between the Agency and the Client, not to disclose without the other's prior written permission any confidential information either concerning the other's business, its business plans, customers or associated companies. The Agency acknowledges its responsibility to treat in complete confidence all the marketing and sales information and statistics relating to the Client's business with which the Client may supply the Agency in the course of any work for the Client. The Agency shall impose obligations in terms equivalent to those in this clause 7 on its own personnel. The restrictions in this clause 7 shall not prevent the disclosure or use of information in the proper performance of the Agency's duties; disclosure as required by law; and the disclosure of information which has come into the public domain other than through unauthorised disclosure.
- Warranties and Indemnities: (i) All estimate prepared by the Agency are prepared in good faith and on the basis of instructions and information put before the Agency by the Client at the time of preparation. Their suitability or application of effectiveness will depend on the Client, the Client's staff and subcontractors to the Client and no proposal is to be taken to warrant achievable or attainable results or performance. (ii) The Agency warrants that having taken such legal advice and undertaken such searches as the Agency considers reasonably necessary, to the best of its knowledge and belief any creative work produced by the Agency as part of the Services will be original to its authors, has not been previously published in any form in the United Kingdom (the “UK”) and will not infringe the copyright of any third party in the UK. (iii) The Client warrants that to the best of its knowledge and belief all information supplied to the Agency in pursuance of this Agreement will be accurate, not in any way contrary to English law and will not contain anything obscene, blasphemous, libellous or otherwise unlawful in the UK. The Client warrants that to the best of its knowledge and belief any artwork, photograph, layout, copy, designs or any other material provided to the Agency by the Client for the purposes of incorporation into the deliverables will not infringe any copyright or other intellectual property right of a third party. Should either party or its employees sustain any loss or liability, costs (including legal costs) or damages as a result of the other's breach of this Agreement, the party in breach shall indemnify the other subject to the provisions of clause 9.
- Limitation of Liability: Nothing in these Terms and Conditions shall exclude or in any way limit the Agency's liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability may not be excluded or limited as a matter of law. Subject to this but including any liability arising under any indemnity under these Terms and Conditions: (i) the Agency's maximum aggregate liability under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed £500,000 ; and (ii) the Agency will not be liable under these Terms and Conditions of Provision of Service for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
- Termination: Either party may terminate this Agreement forthwith by notice in writing to the other if the other party is in material breach of any of the terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 28 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it. Upon the termination of this Agreement and subject to Clauses 3 and 4 of these Terms and Conditions the Agency shall transfer, assign and make available to the Client all property and materials in the possession or control of the Agency belonging to and paid for by the Client.
- Variation: No variation of these Terms and Conditions or of any of the documents referred to in it shall be valid unless agreed by the parties in writing.
- Governing Law and Jurisdiction: These Terms and Conditions shall be governed by and construed in accordance with the law of England and Wales.
- GDPR Compliance Amendment: This Schedule amends the Agreement to which it is attached in accordance with the requirements of the European Union General Data Protection Regulation (Regulation (EU) 2016/679).
- General: Capitalised terms used but not defined in this Amendment shall have the meaning given to them in the Agreement. The following defined terms are used in the GDPR Terms: The GDPR Terms shall become effective on 25 May 2018. In consideration of the performance of each party’s obligations set out in this Amendment and the Agreement, the parties agree that the Agreement be supplemented by adding the following clause 2 (the GDPR Terms).
- Data Protection Laws means (a) the GDPR; and (b) all other laws concerning the processing of data relating to living persons;
- Data Subject means each identified or identifiable (whether directly or indirectly) natural person to whom any Personal Data relates;
- GDPR means Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
- Personal Data means any information relating to an identified or identifiable living individual; and
- Personal Data Breach means any actual or suspected breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
The Agency shall: only process that Personal Data in accordance with the documented instructions of The Client (including to the extent necessary to provide Web Development Services and Website Support Plan and to comply with its obligations under this Agreement); inform The Client if, in The Agency's opinion, any of The Client’s instructions would breach Data Protection Laws; and assist The Client with undertaking an assessment of the impact of processing that Personal Data, and with any consultations with a supervisory authority, if and to the extent an assessment or consultation is required to be carried out under Data Protection Laws. Processing by The Agency shall be governed by this Agreement under any law of the European Union or any member state of the European Union, which is binding on The Agency with regard to The Client.
The Agency shall implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of the GDPR and ensure the protection of the rights of the data subject. To the extent that The Agency processes or have access to Personal Data in the course of providing Web Development Services and Website Support Plan, each party acknowledges that, for the purpose of Data Protection Laws, The Client is the controller of the Personal Data and The Agency is the processor.
Data Subject Rights
The Agency shall: implement appropriate technical and organisational measures for the fulfilment of The Client’s obligation to respond to requests by Data Subjects to exercise their rights of access, rectification or erasure, to restrict or object to processing of Personal Data, or to data portability; and if a Data Subject makes a written request to The Agency to exercise any of the rights referred to in clause 2.2(a), forward the request to The Client promptly and shall, upon The Client’s reasonable written request, provide The Client with all co-operation and assistance reasonably requested by The Client in relation to that request to enable The Client to respond to that request in compliance with applicable deadlines and information requirements.
The Agency shall: taking into account the state of the art, the costs of implementation and the nature, scope, context and purpose of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, implement and maintain appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including the risk of unauthorised or unlawful processing of Personal Data, and of accidental or unlawful loss, alteration, unauthorised disclosure or destruction of, or damage to, Personal Data; and notify The Client without undue delay after becoming aware of a Personal Data Breach, and upon The Client’s reasonable written request, provide The Client with all co-operation and assistance reasonably requested by The Client to enable The Client to notify the Personal Data Breach to the relevant supervisory authority and relevant Data Subject(s) (as applicable).
Sharing of personal data
The Agency shall: not engage another processor without prior specific or general written authorisation of The Client and in the case of general written authorisation, inform The Client of any intended changes concerning the addition or replacement of other processors, thereby giving The Client the opportunity to object to such changes; before disclosing Personal Data to any processor, enter into a contract with that processor under which the processor agrees to comply with obligations equivalent to those set out in these GDPR Terms; and before disclosing Personal Data to any of its employees and representatives, and the employees and representatives of each of its processors, in each case who have access to the Personal Data, ensure that those persons: have undergone appropriate training in data protection and the care and handling of Personal Data; are bound to hold the information in confidence to at least the same standard as required under this Agreement (whether under a written agreement or otherwise).
Transfers of personal data
The Agency shall: not transfer Personal Data to, or process Personal Data in, any third country or territory without the the Client’s prior written consent (which consent may be conditional upon The Agency or the relevant third parties entering into an agreement containing similar terms to these GDPR Terms with The Client) unless (and for so long as): there has been a European Community finding of adequacy pursuant to Article 25(6) of Directive 95/46/EC or, after 24 May 2018, Article 45 of the GDPR in respect of that country or territory; the transfer is to the United States to an importing entity that is a certified member of the EU-US Privacy Shield; or The Client and the relevant importing entity are party to a contract in relation to the export of Personal Data incorporating standard contractual clauses in the form adopted by the European Commission under Decision 2010/87/EU or an equivalent data transfer agreement meeting the requirements of Data Protection Laws. Where any mechanism for cross-border transfers of Personal Data is found by a supervisory authority, court of competent jurisdiction or other governmental authority to be an invalid means of complying with the restrictions on transferring Personal Data to a third country or territory as set out in Data Protection Laws, the parties shall act in good faith to agree the implementation of an alternatives solution to enable The Client to comply with the provisions of Data Protection Laws in respect of any such transfer.
The Agency shall: promptly notify The Client if it receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data, or to either party’s compliance with Data Protection Laws, and shall fully cooperate and assist The Client in relation to any such complaint, notice, communication or non-compliance; and upon The Client’s reasonable written request, provide all information necessary to demonstrate compliance with these GDPR Terms, and allow The Client or an auditor appointed by The Client to carry out audits, including inspections of facilities, equipment, documents and electronic data, relating to the processing of Personal Data by The Agency or any processor, to verify compliance with these GDPR Terms.
The Agency shall: unless expressly stated otherwise in this Agreement, upon termination of this Agreement, The Agency shall, and shall procure that each processor shall, immediately cease to use the Personal Data and shall, at The Client’s option, return the Personal Data to The Client or to a processor nominated by The Client or delete the Personal Data and all copies and extracts of the Personal Data unless required to retain a copy in accordance with any law of the European Union or any member state of the European Union; and on expiry or termination of this Agreement (however arising) these GDPR Terms shall survive and continue in full force and effect.
This Amendment may be executed in any number of counterparts, all of which, taken together, shall constitute one and the same agreement, and any party (including any duly authorised representative of a party) may enter into this Amendment by executing a counterpart.
If there is any conflict or inconsistency between the GDPR Terms and the other terms of the Agreement, these GDPR Terms will govern. Except for changes made by this Amendment, the Agreement remains unchanged and in full force and effect and the original effective date (or equivalent) as defined in the Agreement shall remain the same.
This Amendment and any non-contractual obligations arising out of or in connection with it are governed by English law. The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Amendment and the parties submit to the exclusive jurisdiction of the English courts.