Terms

These terms and conditions shall govern the contract between (1) Dusted Design Partners Limited trading as ‘Dusted’ and (2) the Client. Dusted may agree modifications to these terms but such modifications must be in writing signed by an authorised representative of Dusted and cannot be inferred from a course of behaviour.

Jump to section on data protection

1. Scope of the contract

(a) Dusted provides brand and communication consultancy and services relating to the marketing, communication and promotion of the Client’s goods and/or services and the Client’s brand and corporate identity and will provide such advice in accordance with a written proposal (which may be in the form of, and therefore includes, a fee estimate) (“the Service”).

(b) Dusted will provide the Service to the Client using reasonable care and skill and, unless Dusted is prevented by circumstances beyond its reasonable control, in accordance with the Client brief and the agreed proposal/specification.

(c) All client’s orders must be confirmed in writing. A binding contract for the provision of the Service, incorporating these terms and conditions, will only be made when the Client has confirmed in writing their acceptance of the work to be undertaken and terms of engagement as embodied within a final proposal document.

(d) Subject to the provisions of Clause 10(d) the Client shall be expected to carry out a reasonable examination of any goods delivered as part of the Service and if the Client should have any complaint about the Service (including the quality of any goods) then written notice shall be given to Dusted within 7 days of delivery. In the absence of such notification the Client shall be deemed to have accepted the quality of the Service.

(e) Dusted may invite the Client to be present during stock/material purchases, photo shoots and other production processes. If the Client is unwilling or unable to attend (or to be represented) then the Client must accept any creative decisions made by Dusted in such circumstances. If the Client requires Dusted to amend/redo any work arising from such an event then Dusted reserves the right to charge an additional fee.

(f) Dusted will accept and act upon instructions communicated to it by any means by the Client and/or its representatives, agents or authorised persons and is not obliged to seek verification of such instructions.

(g) During the course of the Service Dusted and/or the Client may suggest modifications to the agreed proposal including delivery estimates and specification of the work. Such modifications must be agreed in writing. Dusted reserves the right to charge the Client additional fees and expenses for any modifications to the Service.

(h) It is the practice of Dusted to maintain computer records of its work following the completion of the project but it is not required to do so unless this has been expressly agreed as part of the Service. Dusted reserves the right to make a charge for the retrieval of work from storage.

(i) All original preparatory and development materials including but not limited to sketches, draft literature, notes, mock ups, prototypes etc, as well as any source material, both digital and physical, produced by Dusted as part of the Service remains the property of Dusted unless expressly agreed in writing to the contrary and shall be returned undamaged and unmarked within a reasonable timeframe.

2. Client’s obligation

(a) The Client shall be solely responsible for providing Dusted with all necessary information concerning its goods/services, the Service (including the scope of use required, rules of use, any relevant restrictions, any relevant statutory and regulatory controls and, if applicable, industry codes of practice), the market and generally. Dusted shall not be responsible for any shortcomings in such information. The Client accepts that its knowledge and experience in its industry sector and of its goods/services is vital in this regard.

(b) Any communication material supplied by or on behalf of the Client must comply with all trade description and consumer protection legislation and any other applicable laws and regulations. The Client accepts that it is solely responsible for the authenticity of any statements relating to its goods/services in such material.

(c) The Client shall be responsible for providing all necessary permissions, licences and consents which may be required for the provision of the Service unless Dusted has expressly agreed in writing to be responsible.

(d) The Client warrants that it either owns or holds the necessary licence(s) in respect of materials supplied by it to Dusted in connection with the provision of the Service and shall indemnify Dusted against all costs, claims, liabilities and losses if this is not the case.

(e) The Client shall be responsible for signing off work when requested and in a timely manner and if appropriate in accordance with a specified schedule. The Client acknowledges that if it fails to do this then Dusted cannot be expected to perform the Service within the agreed period of time and Dusted reserves the right to create a new schedule for the work around Dusted’s other existing obligations. It is the Client’s obligation to ensure that the approval and sign off of work is undertaken by a representative of the Client of appropriate seniority. If Dusted is required to amend/redo the work that has previously been signed off then an additional charge will be incurred.

(f) Where Dusted is to provide the Service at the Client’s or a third party’s premises, the Client shall:

(i) ensure that Dusted has access to those premises, office accommodation and other facilities as reasonably required by Dusted; and

(ii) keep and maintain all materials, equipment, documents and other property of Dusted (“Dusted Materials”) at the Client’s or third party’s premises in safe custody at its own risk, maintain the Dusted Materials in good condition until returned to Dusted, and not dispose of or use the Dusted Materials other than in accordance with Dusted’s written instructions or authorisation.

3. Pitches

(a) All intellectual property rights in and title to any material created by Dusted and shown at a Pitch remains with Dusted.

(b) All ideas and concepts of Dusted’s which are disclosed to a Client as part of a Pitch are confidential and shall remain the property of Dusted, and unless the same shall come into the public domain other than by reason of a breach of a duty of confidentiality due to Dusted the Client shall not use any such ideas or concepts itself or disclose them to a third party without the written permission of Dusted.

4. Delivery

(a) The delivery times of the Service stated by Dusted are reasonable estimates and Dusted shall not be responsible for any delay that is not directly attributable to the fault of Dusted which for the avoidance of doubt means any circumstances beyond Dusted’s reasonable control. Time shall not be of the essence unless expressly agreed in writing. Dusted will use its reasonable endeavours to meet Client timescales.

(b) Defective goods (which form part of the Service) will be replaced or if appropriate corrected (at Dusted’s discretion) subject to inspection by Dusted. Defective goods must be returned to Dusted for inspection within 14 days of delivery. Any returns must be adequately and appropriately packaged.

(c) Dusted will inform the Client when goods have been dispatched and will often invoice in respect of goods supplied as part of the Service when they have been dispatched for delivery. The Client must inform Dusted when goods have not been received within 7 days from the date of the invoice or the date of dispatch as advised by Dusted.

5. Contract prices/title

(a) The fee for the Service is as set out in a proposal (plus additional charges for extras and modifications), and all reasonable expenses including but not limited to materials, accommodation, travel, couriers, electronic costs, VAT and any local taxes (“the Contract Price”).

(b) All approved third party costs (or a part thereof) may be invoiced prior to commissioning and Dusted reserves the right to wait until such costs have been paid before commencing work.

(c) Any estimate given of the whole or any part of the Contract Price is based upon information available to Dusted at the time and shall remain valid for 60 days, is given in good faith, and shall be treated as an estimate only and all errors and omissions shall be excepted. Dusted reserve the right to withdraw or amend an estimate of work/fees at any time prior to the formation of contractual relations.

(d) All costs will be invoiced in GB Pounds Sterling and where appropriate VAT and or local taxes will be charged accordingly, along with a discretionary minimum 20% markup to all third party costs to cover relationship history, recommendation and selection, delivery risk, administration and processing.

(e) Dusted reserve the right to make reasonable changes to the Contract Price to reflect increases to the costs of production that could not reasonably have been anticipated at the time the Contract Price was estimated.

(f) Any estimate of the Contract Price assumes delivery of the Service to the principal business address of the Client or as stipulated in the agreed brief/proposal and additional charges may be incurred if delivery is then required to another address.

(g) Unclear documents or excessive amounts of resource materials which are supplied to Dusted by or on behalf of the Client which cannot be used without preparation thereof will usually result in an additional charge to the Client unless this work has been expressly provided for as part of the proposal.

(h) The Contract Price will be payable in accordance with a proposal which outlines phases of the work agreed with the Client in writing and which forms part of the contract. Upon the creation of a binding contract for the provision of the Service an invoice totalling the first phase of the Service will be issued. Upon commencement of each subsequent phase of the Service 50% of the fees will be invoiced. The balance of the fees for each phase will be invoiced upon completion of that phase. Dusted reserve the right to withhold or suspend the Service where any payment or part thereof is outstanding.

(i) The Client must contact Dusted concerning any queries with an invoice within 5 working days of receipt.

(j) Payment of the Contract Price shall be made in GB Pounds Sterling within 30 days of the date of the invoice. Dusted shall be entitled to charge statutory interest and claim compensation on overdue sums. Interest will be calculated from the invoice date to the date of payment.

(k) The Client may not withhold payment of any part of the Contract Price or any expenses or other monies due to Dusted by reason of claims or alleged claims against Dusted unless the amount to be withheld has either been agreed in writing by Dusted as due to the Client or has been awarded in adjudication, arbitration or litigation in favour of the Client in relation to the same project and save as aforesaid or where a claim is based on fraud all rights of deduction and/or set off are excluded.

(l) Title to or licence to use any property or intellectual property forming part of the Service shall pass to the Client when and only when the full Contract Price for the Service has been paid.

(m) Dusted reserves the right to withhold final delivery of work, until the Contract Price has been paid in full. Where any part of the contract price is outstanding Dusted reserves the right to withdraw the provision of any hosted server space which may result in the closing down of a website.

(n) All estimates assume the supply to Dusted of all content supplied by the Client (including but not limited to images and text) in a finished format suitable for reproduction unless otherwise stated in the proposal. If extra work is needed to achieve reproduction standards an additional charge by the hour (at a rate agreed with the Client in advance of work commencing) will be levied.

(o) The Client shall pay Dusted’s expenses incurred by or in connection with recovery of monies owing by the Client to Dusted.

(p) All estimates of the Contract Price make provision for up to two rounds of Client amends unless otherwise stipulated in the proposal. All additional work that is undertaken by Dusted as a result of further Client amends will be charged for as additional work at Dusted’s hourly charge rates.

(q) Where as part of the Services Dusted agrees to procure professional advice from third parties on matters such as research, trademark searches and registration, market searches, domain name registration, hosting and website maintenance, translation services etc then these are additional costs and will be invoiced monthly or at the completion of each stage of works.

6. Intellectual property

(a) On completion of the Service and payment of the Contract Price in full and subject to any third party rights in the work (as identified by Dusted) the Client shall receive the copyright and design right belonging to Dusted in the final work selected for implementation including any two dimensional graphic design solution, branding, logo, logo-type, corporate identity, literature, music, film, photographs, digital page layout, user interface and front end content, (“the Creative Front End”).

(b) Subject to Clause 6(h), on completion of the Service and payment of the Contract Price in full Dusted shall grant to the Client a non-exclusive licence (exclusive where expressly agreed in writing as part of the proposal) to use the intellectual property rights in all coding and programming required for the use of the final selected work including any content management system for updating the work or similar programming tools and any other elements of the Service which are not part of the visual appearance of the final selected work (“the Technical Back End”)

(c) On completion of the Service and payment of the Contract Price in full Dusted shall grant to the Client a non exclusive licence (exclusive where expressly agreed in writing as part of the proposal) to use the intellectual property rights belonging to Dusted in the non-visual elements of any work created by Dusted in connection with exhibition design, retail point of sale schemes, signage and other three dimensional work associated with packaging (3D Work)

(d) Where Dusted is commissioned to produce creative concepts alone the Client shall select and receive the rights in accordance with 6(a) to one of those concepts.

(e) The Client shall not use the Creative Front End, Technical Back End, or 3D Work for any purpose outside of the scope of the brief in respect of which Dusted provided the Service without the prior express written approval of Dusted.

(f) Where appropriate Dusted shall permit the Client to use the Creative Front End, Technical Back End and 3D Work prior to completion of the Service to enable the Client to review and sign off the work.

(g) Dusted reserves to itself and its subcontractors the right to use and adapt all code, software and programme that forms part of the work created for the Client but which is either of a general nature that is commonly found in work of a similar kind or is not part of the software, programme or code that was created with the express intention of it being bespoke and for the exclusive use of the Client.

(h) The Client acknowledges and understands that it shall not have the right, by itself or through any third party to modify any of the Technical Back End without the prior written consent of Dusted.

(i) Third Party Software

(i) Dusted may use licensed or open sourced software in the provision of the Service. Any such use is personal to Dusted and it may be necessary for the Client to obtain its own licence(s). In such circumstances Dusted will (where it is expressly agreed as part of the Service) advise upon the licence(s) required and use its reasonable endeavours to assist the Client to obtain the relevant licence(s). Dusted is not liable for the costs thereof or (save to the extent provided) any failure of the Client to hold the necessary licence(s).

(ii) Dusted may use open source software in the provision of the Service. Dusted will not grant any license or give any warranty in respect of such software.

(j) Reservation of Technical and Artistic Concepts

Dusted will not infringe the rights of the Client in the Creative Front End, Technical Back End and 3D Work but reserves exclusive ownership of and right to use all other designs, software, concepts, ideas or intellectual property developed during the course of the Service.

(k) Multi Designs

If more than one design solution/concept is chosen by the Client and this was not provided for in the agreed proposal for the Service, unless the brief itself was to produce more than one creative concept, an additional fee may be payable by the Client.

(l) Subcontractors’ Intellectual Property

Dusted will use reasonable endeavours to procure an assignment or if appropriate a licence of all rights of its subcontractors incorporated in the work delivered as part of the Service. Dusted will notify the Client if it is unable to procure the relevant rights from subcontractors and will not engage a subcontractor in such circumstances without the approval of the Client.

(m) Originality

(i) Dusted warrants that its own design work is original and that it will not knowingly or negligently infringe the rights or intellectual property of a third party but (unless expressly agreed to the contrary in writing) it is under no obligation to make any enquiry in this respect and it shall have no liability to the Client in respect of any infringement or alleged infringement of intellectual property or passing off.

(ii) Dusted gives no warranty as to whether the work meets any criteria for the registration of intellectual property rights therein with any intellectual property organisation or body and shall have no liability to the Client in respect of any subsequent refusals for registration of the same.

(n) Further Assurance

Dusted will at the cost of the Client execute such documents and do such things as are reasonably necessary to give effect to this clause.

7. Moral rights

(a) Dusted hereby reserves and asserts all moral rights in the work created during the Service.

(b) The Client shall identify Dusted as the author of the work as directed by Dusted.

8. Cancellation of contract

(a) The Client shall be entitled to cancel the Service at any time and thereupon shall immediately pay to Dusted all fees due for work undertaken by Dusted (and to subcontractors) up until the date of cancellation and all disbursements and third party costs commissioned by Dusted which cannot be cancelled.

(b) Following cancellation and subject to the payment to Dusted of all fees and expenses, pursuant to clauses 8(a) and the Client shall be entitled to select and will receive title and intellectual property rights in accordance with clause 6 in one of the design solutions/concepts/literature that have been presented to the Client prior to the date of termination but for the avoidance of doubt in such circumstances no right or interest in any software or source files shall pass to the Client.

(c) All materials relating to any other designs presented by Dusted shall be returned forthwith.

(d) Dusted shall be entitled to terminate the contract immediately if any part of the Contract Price (on any work being undertaken for the Client) is outstanding (but not formally disputed) 20 days after the due date or if the Client shall go into liquidation, receivership or equivalent (or if proceedings are issued in relation thereto) or if it shall enter into an agreement with its creditors.

(e) Dusted reserves the right to immediately terminate the Contract if in its reasonable opinion the continuing involvement with the Client or the Service might be either inappropriate in the circumstances as the relationship has broken down or damaging to the goodwill and reputation of Dusted..

(f) The Client may suspend provision of the Services for up to 60 days by giving Dusted at least 7 days written notice together with an explanation for such suspension and Dusted shall in such circumstances be entitled to invoice the Client for all fees due up to the end of any stage commenced by Dusted prior to the actual date of suspension (as set out in the proposal) and all disbursements and third party costs commissioned by Dusted which cannot be suspended or cancelled.

(g) If, by agreement between the Client and Dusted, the provision of the Services has been suspended for a period over 60 days then if such suspension should continue for a total period of more than 6 months Dusted shall be entitled by written notice to terminate the contract immediately in which case the provisions of clause 8(b) shall apply.

(h) When work is to resume following any period of suspension of the Service longer than 14 days Dusted reserves the right to review and where it is appropriate and reasonable, increase any costs or fees (including third party fees where applicable) stated in the proposal. In such circumstances previously agreed time schedules for delivery of the Service will not apply and the Client and Dusted will agree a new timetable for delivery.

9. Duty of confidentiality

(a) Each party will use its best endeavours to preserve the confidential information of the other and will comply with the other’s reasonable requirements in this regard. The Client recognises that Dusted’s methods of working and pricing structures are proprietary and are not generally in the public domain.

(b) Each party shall comply with the obligations under the Data Protection Act 1998 relating to the use and storage of personal information.

(c) Dusted rely upon the client to inform it if any information or material produced to Dusted in connection with the provision of the Service is particularly confidential and where appropriate all such materials supplied to Dusted should be marked accordingly.

10. Digital development

(a) The Client acknowledges that any new inventions, designs or processes which evolve in the provision of the Service in the field of digital development shall belong to Dusted unless the development thereof was an express part of the engagement of Dusted.

(b) The Client acknowledges that the digital work shall only be compatible or interoperable with the platforms, browsers and operating systems set out in the work specification and will only operate to any performance benchmarks set out in the specification.

(c) On completion of the work by Dusted, the Client shall carry out an acceptance test for the purposes of confirming that the work has been successfully completed in accordance with the specification. The Client shall report any errors to Dusted within 14 days of delivery including any additional information which may correct the error. If the Client fails to notify Dusted within this time period the work shall be deemed accepted by the Client.

(d) Dusted will use reasonable endeavours to correct any errors and supply a corrected version of digital work to the Client as soon as reasonably possible.

(e) The Server upon which digital material is stored when Dusted is providing a hosting service contains a base level of security but any special security requirements must be fully set out in the specification of work and Dusted accept no responsibility for any losses sustained by a Client as a result of any unauthorised hacking or any server provider problems resulting in any corruption of a website, failure of functionality or downtime.

11. Client’s responsibility for implementation

(a) Unless it is agreed as part of the Service full responsibility for implementation, display, electronic integration and compatibility, back up, production and manufacture of graphic designs or work incorporating graphic designs shall remain with the Client.

(b) The Client shall indemnify Dusted in respect of any claim howsoever arising under consumer protection or other legislation other than due to a default of Dusted.

(c) Failure to consult Dusted on implementation may result in unsatisfactory implementation.

(d) Dusted does not take responsibility for the quality and accuracy of any third party materials supplied by the Client. If asked to review such materials, this will be charged additionally at an agreed hourly rate.

12. Limitation of liability

(a) The liability of Dusted under the contract or in tort (other than in respect of death or personal injury) shall not exceed the greater of the sums paid by the Client under the contract or such sum as shall be receivable by Dusted in respect of any claim under any insurance policy effected by Dusted from time to time.

(b) Dusted shall not be liable for any indirect or consequential loss, loss of sales, loss of profit, loss of production, loss or damage to goodwill, loss of reputation, or any packaging or distribution cost.

(c) If the Service includes the provision of subcontractors then Dusted will advise on and procure the services of subcontractors who Dusted is satisfied are reasonably professionally competent. Dusted will not be responsible for any default or delay of any third party or subcontractor, manufacturer or supplier but will give all reasonable assistance to permit the Client to enforce its rights against them to include assigning all of its rights to the Client.

(d) Where an error is found in any delivered work (of whatever nature) that is the responsibility of Dusted then to the extent permitted by law the liability of Dusted shall be limited to correcting or replacing (as appropriate) the work.

(e) The Client accepts reasonable tolerances in relation to the Service including in respect of colour, browsers, screen displays, overs and unders. Where the Service includes digital work created by Dusted the Client accepts that performance of the delivered work may be affected by device specification and/or operability.

(f) Dusted shall not be responsible for any errors apparent in artwork, copy or proofs that have been signed off by or on behalf of the Client.

(g) Dusted will not be responsible for any colour discrepancy with design work created as part of the Service unless Dusted has signed off proofs in an appropriate form prior to printing.

(h) Dusted shall not be responsible for any dissatisfaction attributable to the Client or its agents and suppliers providing incorrect information (such as concerning print specification) and Dusted should not be expected to question any such information that is provided to it.

13. Publicity and examples

(a) Once the Service is in the public domain Dusted shall have a right to reasonable publicity (including inclusion in any book or publication or collection of Dusted’s work or in relation to any awards or public recognition) of the work created during the Service and the Client shall provide at least a sample of any printed work derived from the Service.

(b) Dusted shall have the right to identify itself in a reasonable manner as the provider of Services to the Client. All design and photography and website work will be accredited to Dusted where appropriate, in the form of a small graphic within the document unless otherwise stated within the contract.

(c) The Client shall give reasonable attribution to Dusted whenever appropriate as the creator of the work produced as part of the Service.

(d) Dusted reserves the right where it considers it appropriate to require any reference or attribution to be removed from work provided as part of the Service.

14. Restrictions

The Client agrees that whilst Dusted is providing Services to it and for a period of twelve months thereafter it shall not:-

(a) Approach any of the employees of Dusted regarding the possibility of them providing Services directly to the Client independent of Dusted; or

(b) Engage or employ or offer to engage or employ an employee or former employee (being a person who has been an employee of Dusted in the previous six months) for the provision of services that Dusted are capable of providing; or

(c) Contract directly with any subcontractor of Dusted (without the consent of Dusted not to be unreasonably withheld) who have been associated with the provision of the Services to the Client.

15. Legal

(a) The Contract shall be subject to English Law and under the exclusive jurisdiction of the English Courts.

(b) To the extent permitted by law these terms shall govern the contract between Dusted and the Client and all other terms implied by law are excluded.

(c) Any of these provisions which may be unenforceable shall (to that extent) be severable.

(d) In the event of a dispute a senior representative from Dusted and the Client shall meet to see if it can be resolved and the parties shall consider but shall not be obliged to agree to submit to mediation or other alternative dispute resolution otherwise all disputes shall be resolved through the Courts.

(e) Dusted is the trade name of Dusted Design Partners Limited a company registered in England and Wales under Company Number 05030292 whose registered office is at Studio 5, 151 Tower Bridge Road, London, SE1 3JE, UK.

16. Data protection

For the purposes of this clause 16 the following definitions shall apply:

Definitions:

Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity;

Controller Personal Data means all Personal Data which is owned, controlled or processed by Controller or any of its Affiliates and which is provided by or on behalf of Controller or any of its Affiliates to the Processor or which comes into the possession of the Processor as a result of or in connection with the supply of the Services;

Controller, Processor, Data Subject, Personal Data and Processing shall bear the respective meanings given to them in the Data Protection Act 1998 or General Data Protection Regulation 2016 (as applicable) (in each case as may be amended, updated, replaced or superseded from time to time) (and Process and Processes shall be construed accordingly). Client acts as a Controller and Dusted acts as a Processor;

Data Protection Law means the EU Data Protection Directive 95/46/EC, the Data Protection Act 1998 and any other legislation in force from time to time which implements that Directive, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and any laws that replace or amend any of these (including without limitation the General Data Protection Regulation 2016 (Regulation (EU) 2016/679) (GDPR)), together with the equivalent legislation of any other applicable jurisdiction and all other applicable law, regulations, guidance and codes of conduct in any relevant jurisdiction relating to the processing of personal data and privacy including the guidance and codes of practice issued by the Information Commissioner’s Office (ICO), the Article 29 Working Party, the European Data Protection Board or any other relevant supervisory authority from time to time;

Group means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company; and

Group Company means in relation to a company, any member of its Group.

16.1 Law and security

Taking into account the state of technical development and the nature of processing, the Processor shall implement appropriate technical and organisational measures to protect Controller Personal Data against accidental or unlawful destruction, loss, alteration and unauthorised disclosure or access.

16.2 Sub-processing and transfer

(a) The Processor shall not permit any processing of Controller Personal Data by any agent or subcontractor or other third party (“Sub-Processor”) without prior written authorisation of the Controller and provided that the Processor informs the controller of any changes it has made and permitting the Controller to object to those, and the Processor remains fully liable for all the actions and omissions of the Sub-Processor, and subject to clause 16.2(c) below, that any Sub-Processor agrees in writing to comply with obligations at least equivalent to those obligations imposed on the Processor in this clause that relate to the requirements laid down in Article 28(3) of the GDPR.

(b) The Controller agrees to the use of Sub-Processors as follows: Digital Ocean, Google Analytics, Amazon Web Services, Rackspace and the Processor shall provide the Controller an opportunity to object to their appointment for these Services.

(c) The Processor’s obligation under clause 16.2(a) to impose the obligations on the Sub-Processor as set out in that clause shall be subject to the Processor’s ability (acting reasonably) to impose such obligations on the Sub-Processor where the Sub-Processor has provided its non-negotiable standard terms to the Processor, in which case, the Processor shall use its reasonable endeavours to procure that those obligations set out at clause 16.2(a) are imposed on the Sub-Processor notwithstanding the Sub-Processor’s standard terms.

16.3 Instructions and transfer

(a) The Processor shall:

  1. only process the Controller Personal Data on the documented instructions of the Controller from time to time; and
  2. subject to clause 16.3(b), not transfer, or otherwise directly or indirectly disclose, any Controller Personal Data to countries outside the European Economic Area (EEA) without the prior written consent of the Controller except where the Processor is required to transfer the Controller Personal Data by the laws of the member states of the EU or EU law (and shall inform the Controller of that legal requirement before the transfer, unless those laws prevent it doing so). The Controller consents to transfers to the United States.

(b) The Processor shall be permitted to transfer the Controller Personal Data to countries outside of the EEA to the extent that any one or more of the following applies:

  1. the Processor has in place with the non-EEA receiving entity the EU model contractual clauses as set out in Decision 2010/87/EU or any alternative version of those clauses issued by the European Commission or a supervisory authority from time to time;
  2. the transfer is to a non-EEA country that is deemed to have an adequate level of protection from time to time by the European Commission or such other supervisory authority;
  3. to the extent that the transfer is to a Group Company located outside of the EEA, the Processor’s Group has in place Binding Corporate Rules for the transfer of Personal Data to a non-EEA Group Company;
  4. there is an approved code of conduct in place by an association or other body representing the Controller or Processor that applies to the non-EEA territory or territories to which the Controller Personal Data is to be transferred;
  5. there is an approved certification mechanism in place in respect of the non-EEA territory; and
  6. to the extent that the transfer is to an entity located in the United States, such entity participates in the EU-US Privacy Shield or such other mechanism that may replace or supersede it from time to time.

16.4 Personnel

The Processor shall ensure that access to Controller Personal Data is limited to the Processor Personnel and authorised Sub-Processors who need access to it to supply the Services and who are subject to an enforceable obligation of confidence with regards to the Controller Personal Data.

16.5 Data subject rights

The Processor shall, taking into account the nature of the processing, assist the Controller (by appropriate technical and organisational measures), insofar as this is possible, in relation to any request from any Data Subject for: access, rectification or erasure of Controller Personal Data, or any objection to Processing.

16.6 Breach reporting and data protection impact assessment

(a) The Processor shall:

  1. notify the Controller promptly if it becomes aware of a breach of security of Controller Personal Data, such notices shall include full and complete details relating to such breach; and
  2. provide such assistance (at the Controller’s cost) as the Controller may reasonably require in relation to:
    1. the need to undertake a data protection impact assessment in accordance with the Data Protection Law; and
    2. any approval of the Information Commission or other data protection supervisory authority to any processing of Controller Personal Data.

16.7 Personal data – return or destruction

The Processor shall, on the expiry or termination of this Agreement, at the Controller’s cost and its option either return all of the Controller Personal Data (and copies of it) or securely dispose of the Controller Personal Data except to the extent that any applicable law requires the Processor to store such Controller Personal Data.

16.8 Audit

(a) At the Controller’s cost, the Processor shall allow for an audit (no more than once per annum) by the Controller and any auditors appointed by it in order for the Processor to demonstrate its compliance with this clause 16. For the purposes of such audit, upon reasonable notice, the Processor shall make available to the Controller and any appointed auditors all information that the Controller deems necessary (acting reasonably) to demonstrate the Processor’s compliance with this clause.

(b) In the Processor’s reasonable opinion, to the extent that it believes that any instruction received by it in accordance with clause 16.8(b) is likely to infringe the Data Protection Law or any other applicable law, the Processor shall promptly inform the Controller and shall be entitled to withhold its permission for such audit and/or provide the relevant Services until the Controller amends its instruction so as not to be infringing.

16.9. The personal data and how it is used

Subject matter of the processing
Brand and communication consultancy and services relating to the marketing, communication and promotion of the Client’s goods and/or services and the Client’s brand and corporate identity

Duration of the processing
The Processor will not retain Controller Personal Data in an identifiable format for longer than is necessary.

Nature and purpose of processing
The Processor shall Process Controller Personal Data as required to provide the Services.

Categories of Data Subjects
London based B2B brands.

Obligations and rights of the Controller
The obligations and rights of the Controller as the applicable Data Controller of the Controller Personal Data Processed in connection with this Agreement are set out in this Agreement and in Data Protection Law and any written instructions of the Controller from time to time.