Terms of Service Version 2

These terms apply to all services which you buy from us and which we provide to you, unless something different is agreed between you and us in writing and will apply regardless of whether you send us or mention any other terms and conditions. These terms will form part of a legally binding agreement between you and us and set out what you can expect of us, what we expect of you and how each of us can work These terms apply to all services which you buy from us and which we provide to you, unless something different is agreed between you and us in writing, and will apply regardless of whether you send us or mention any other terms and conditions (which, as explained in condition 15.4, will have no effect).  These terms, as we may update them from time to time, will form part of a legally binding agreement between you and us and set out what you can expect of us, what we expect of you and how each of us can work together to make sure we continue to enjoy a mutually beneficial relationship.

IT IS IMPORTANT THAT YOU READ THESE TERMS CAREFULLY, ESPECIALLY CONDITION 14.

Please note that, due to the pace of change in our industry, we update these terms from time to time. Each time you place an order with us, please make sure you check for any changes to these terms since the last time you read them. Any changes we do make to these terms will only apply to orders which you place after the changes were made and will not affect orders which we have already accepted in line with these terms.

In order to keep these terms as simple as possible we have used defined words (and you can see more details about these in section 19) and we have tried to avoid using technical language. However, being a legal document, inevitably we have had to use some legal terminology.

Where these terms mention “you” or “your”, that will be a reference to you, the customer. Where these terms mention “we”, “us” or “our”, that will be a reference to us, Red Eye International Limited trading as RedEye. Note however that a reference to “each of us” shall be a reference to both you and us, and a reference to “either of us” shall be a reference to either you or us (or both) as is applicable.

1. OUR ORDERING PROCESS

 

  • 1.1 If you wish to buy services from us, we will give you an Order Form and you can place an order by signing and returning this to us.
  • 1.2 By signing and returning an Order Form, you are just making an offer to buy the Services from us. Our Agreement will not actually become legally binding on you and us until we have accepted the Order Form by either:
    • 1.2.1 confirming to you in writing that we have accepted the Order Form (which we might do by countersigning your order form or providing you with a separate confirmation); or
    • 1.2.2 by starting to provide you with the Services, whichever happens first.
  • 1.3 If we provide you with a quote or proposal, it is exactly that and until an Order Form has been placed and accepted in line with these terms it is not binding on either of us. Any quote or proposal we give you will only be valid for thirty (30) days.

 

2. DURATION OF OUR AGREEMENT

  • 2.1 Our Agreement will start on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, shall be automatically renewed for successive periods of twelve (12) months (each a Renewal Period), unless:
    • 2.1.1 either of us gives the other written notice of termination not less than sixty (60) days before the end of the Initial Subscription Term or any Renewal Period, in which case the Agreement shall terminate upon the expiry of the Initial Subscription Term or applicable Renewal Period; or
    • 2.1.2 otherwise terminated in accordance with this Agreement.

3. SET-UP AND MINIMUM REQUIREMENTS

  • 3.1 We will provide you with an estimated Live Date for the Available Services and will use our reasonable endeavours to complete Set-Up by the Live Date but given the nature of technology platforms, there is always the possibility of unforeseen complexities with Set-Up; therefore we cannot guarantee this estimated Live Date. We will let you know if we think there will be any significant delays in Set-Up.
  • 3.2 Where you need to do, or we ask you to do, certain things (including providing us with co-operation, information or access, obtaining permissions or placing Tags) at any time for us to be able to provide you with the Services, you must do these in line with any timescales we give you or, if we do not give you any specific timescales, in a timely manner.
  • 3.3 Our ability to provide you with the Services relies on you providing us with the Customer Data and also relies on your own IT infrastructure and architecture, Customer Websites and Customer Databases (depending on the Services). Therefore you must make sure that:
    • 3.3.1 you provide us with the Customer Data which we need from time to time to provide the Services and populate and sync the RedEye Customer Data Platform and provide this in the electronic format that we ask for;
    • 3.3.2 your IT infrastructure and architecture exceeds any minimum specifications which we may tell you about from time to time and that your IT infrastructure and architecture is operational and maintained to a standard acceptable to us at all times;
    • 3.3.3 you obtain and shall maintain all necessary licences, consents, and permissions necessary for us to perform our obligations under this Agreement, including without limitation the Services; and
    • 3.3.4 any Customer Websites, Tags and Customer Databases are operational and maintained at all times and that you are and remain the owner of any Customer Websites and Customer Databases or that you have continuing consent of the owner for them to be used in line with our Agreement. You must provide us with the evidence that we ask for from time to time to ensure that you do have such permission.
  • 3.4 If you do not comply, or delay in complying, with conditions 3.2 and 3.3 or any of your responsibilities under this Agreement, then we may not be able to provide you with the Services or it may impact upon or delay our ability to do so (and in some situations we may need to suspend the Services on written notice). In the event of any delays in your provision of such assistance, we may adjust any agreed timetable or delivery schedule as reasonably necessary and we shall not be liable for any costs or losses incurred as a result of such delays (and we may recover from you any costs or losses we incur as a direct result).

4. PROVIDING THE SERVICES

  • 4.1 We warrant that the Services will be performed substantially in accordance with the Materials and Solutions Overview Document, with reasonable skill and care and in line with Good Industry Practice and applicable law.
  • 4.2 From time to time we may update or change the Services or the way in which we deliver them, which will not materially affect the nature or quality of the Services; we may also update the Services as necessary to comply with any applicable law. We can do this without your permission so long as these updates or changes do not have a materially negative impact on the Services.
  • 4.3 Our undertaking under condition 4.1 shall not apply to the extent any non-conformance is caused by use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than us.
  • 4.4 Notwithstanding condition 4.3, we:
    • 4.4.1 do not warrant that your use of the Services will be uninterrupted or error-free;
    • 4.4.2 do not warrant that the Services, Materials and/or the information obtained by you through the Services will meet your requirements; and
    • 4.4.3 are not responsible for any delays, delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services and Materials may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
  • 4.5 This Agreement shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
  • 4.6 We warrant that we have and will maintain all licences, consents and permissions necessary for the performance of our obligations under this Agreement.

5. YOUR USE OF THE SERVICES

  • 5.1 Subject to you paying the Fees, and complying with the restrictions set out in this condition 5 and the other terms and conditions of this Agreement, we shall grant you a non-exclusive, non-transferable right, without the right to grant sublicences, to use the Services and the Materials during the Subscription Term solely for your internal business operations.
  • 5.2 In using the Services you must:
    • 5.2.1 comply, and ensure the Authorised Users comply, with all instructions or guidance provided by way of any Materials, including the User Guides, and with any other lawful instructions given by us;
    • 5.2.2 comply, and ensure the Authorised Users comply, with industry best practice and all applicable laws and regulations with respect to your activities under this Agreement;
    • 5.2.3 ensure that the Authorised Users use the Services and the Materials in accordance with this Agreement, and you shall be responsible for any Authorised User's breach of this Agreement;
    • 5.2.4 be solely responsible for the placing and management of all and any Tags on the Customer’s website;
    • 5.2.5 maintain a written, up to date list of current Authorised Users and provide such list to us within five (5) business days of our written request at any time or times;
    • 5.2.6 permit us to audit your use of the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with your normal conduct of business. Further:
    • 5.2.6.1 if any of the audits referred to in condition 5.2.6 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to our other rights, you shall promptly disable such passwords and we shall not issue any new passwords to any such individual; and
    • 5.2.6.2 if any of the audits referred to in condition 5.2.6 reveal that you have underpaid any Licence Fees or applicable Additional Fees, then without prejudice to our other rights, you shall pay to us an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Form within ten (10) business days of the date of the relevant audit;
    • 5.2.7 have appropriate access and security policies and procedures, to prevent any unauthorised access to or use of the Services and keep all usernames and passwords and other security details which you are provided with secure and confidential (and you acknowledge that you shall be solely responsible for any use of the Services using such access details); and
    • 5.2.8 have appropriate policies and procedures to prevent the introduction of any Viruses. You must tell us promptly if you become aware of or suspect any unauthorised access or use or the introduction of any Viruses.
  • 5.3 In using the Services you must not:
    • 5.3.1 copy, modify, reproduce or decompile any part of the Services or any Materials without our written permission (except to the extent your right to do these things cannot be excluded by law or where you are making reasonable copies of any Materials to be able to use the Services) or use any part of the Services or any Materials to build any competing services;
    • 5.3.2 use the Services or Materials for anything other than your own day to day business purposes and must not provide or resell any part of the Services or any Materials to a third party or give or assist a third party in getting access to or using the Services or any Materials;
    • 5.3.3 store, distribute or transmit: (i) any Viruses; or (ii) any material during the course of your use of the Services that is infringing, defamatory, harmful, threatening, obscene, offensive, unlawful, facilitates or promotes unlawful activity or depicts sexually explicit images, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or is otherwise illegal or causes damage or injury to any person or property and we reserve the right, without liability or prejudice to your other rights, to disable your access to any material that breaches the provisions of this condition and/or immediately suspend access to the Services without liability until such matter is remedied to our satisfaction;
    • 5.3.4 try to bypass, deactivate or otherwise circumvent any security mechanisms in the Services or Materials, including any mechanism used to restrict or control the functionality of any online tools which we provide you with access to or Tags we provide you with or place on the Customer Websites;
    • 5.3.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Materials available to any third party; or
    • 5.3.6 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Materials;
    • 5.3.7 allow the maximum number of Authorised Users that you authorise to access and use the Services and the Materials to exceed the number of User Subscriptions you have purchased from time to time; or
    • 5.3.8 allow any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Materials.
  • 5.4 You agree that you shall, if so requested, provide to us a short case study and/or positive feedback based on your experience of the Services, which we may use in promoting the Services and RedEye in general.

6. HELP AND SUPPORT

  • 6.1 We will provide you with help and support for the Services and Materials throughout the term of our Agreement in line with our service level agreement which can be found at https://www.redeye.com/legal/service-level-agreement as is updated from time to time (our Service Level Agreement). If there is any defect or issue with the Services or Materials then you must promptly inform us of this in accordance with our Service Level Agreement. The service credits provided under our Service Level Agreement will be your exclusive remedy for any issues which arise in relation to the performance, availability or support relating to Available Services.
  • 6.2 Where a defect or issue with the Services or Materials is discovered, which is in breach of the Service Level Agreement, we will discuss the impact and seriousness of this with you. Where any timescales for resolution are agreed, we will use reasonable efforts to resolve the defect or issue within this timescale. We will keep you regularly updated of progress.
  • 6.3 Where the defect or issue relates to software or hardware, we may provide a temporary workaround whilst working on a full patch, fix or replacement. In some situations, we may need to escalate the issue to one of our providers of Third Party Technology, in line with the service levels we have with them. Where there are any issues with any documentation, we will reissue you with revised versions.
  • 6.4 In order for us to resolve any defects or issues with the Services or Materials, we might need your assistance, which you must provide if we ask. This assistance might include providing us with evidence of an example of the defect or issue or undertaking tests which we tell you about to work out the cause of a defect or issue.
  • 6.5 We will not be able to provide you with help and support for all defects and issues with the Services or Materials, as this may be something which is outside of our influence or control, or may be something which is not covered within our help and support offering. In particular, help and support will not be provided if: (i) you are in breach of our Agreement; or (ii) in relation to any defects or issue arising directly or indirectly from:
    • 6.5.1 your failure, error, negligence or breach of our Agreement;
    • 6.5.2 your introduction of any Viruses or any cookies, web-tags, code or script which have not been provided by us;
    • 6.5.3 any defect or issue with any Customer Websites or Customer Databases;
    • 6.5.4 any Customer Data;
    • 6.5.5 any changes, modifications or repairs to the Services or Materials which are not undertaken or authorised by us, or any damage which you cause to the Services or Materials; or
    • 6.5.6 any circumstances that are beyond our reasonable control,(such defects and issues being known as Excluded Issues).
  • 6.6 Where there are Excluded Issues, we may still provide you with help and support as an Additional Service.

7. FEES

  • 7.1 Unless agreed otherwise between you and us in writing, we will invoice you for:
    • 7.1.1 Set-Up Fees at the end of the month in which we begin Set-Up;
    • 7.1.2 Licence Fees in advance, at the start of each year, the year starting on the Live Date; and
    • 7.1.3 Additional Fees in arrears, at the end of the month in which they were incurred.
  • 7.2 You must pay our invoices in full within thirty (30) days of the date of our invoice. If you do not then (without limiting any other right we might have) we:
    • 7.2.1 subject to condition 7.3, can charge interest on the overdue amounts at the rate of 4% per annum above the Bank of England base rate from time to time. This interest will be applied on a daily basis from the date the amount is due until you pay us in full; and/or
    • 7.2.2 disable your password, account and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
  • 7.3 If you have a genuine dispute about any invoice, you have to tell us about this within ten (10) days of receiving our invoice. You still have to pay us any undisputed parts of the invoice whilst we discuss the disputed part. Interest shall only accrue on any disputed sum from the day following agreement or any ruling that such amount is due and payable.
  • 7.4 We can offset any amount which we owe to you, against any amount which you owe to us under our Agreement or any other agreement between you and us.
  • 7.5 If you require a Purchase Order (PO) you must provide this to us in advance of our invoice and in line with condition 7.1 and in a form acceptable to us.
  • 7.6 Unless we both agree otherwise, when providing you with Additional Services, we can charge for our reasonable travel, accommodation, food and drink expenses and any resource fees will be charged out at our standard resource rates which we will provide you with on request. Our standard resource rates assume that work will not be required outside of normal working hours (9.00 a.m. to 5.30 p.m. on a business day) and, if it is, we can increase our standard resource rates for the work undertaken.
  • 7.7 All amounts which you have to pay under our Agreement are, unless we state otherwise, payable in pounds sterling and quoted exclusive of VAT, which is payable at the applicable rate on receipt of a VAT invoice, together with the rest of the amount you have to pay.
  • 7.8 We shall be entitled to increase the Licence Fees and any Additional Fees:
    • 7.8.1 no more than once annually, capped at the greater of: (i) the increase in the Consumer Prices Index in the preceding 12 months; or (ii) 5%; and/or
    • 7.8.2 with effect from the start of each Renewal Period,in each case upon ninety (90) days' prior notice to you.

8. THIRD PARTY TECHNOLOGY

  • 8.1 We may use or give you access to or use of Third Party Technology as part of the Services.
  • 8.2 Occasionally, the provider of Third Party Technology may ask that we audit your use of the Services and Third Party Technology. If we are asked to do this, then you must provide us with reasonable assistance and access to information to enable us to undertake the audit and you recognise that we are allowed to report the audit results to the provider of the Third Party Technology.
  • 8.3 We make no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of the Third Party Technology, or correspondence with the applicable third party.

9. RIGHTS IN THE SERVICES

  • 9.1 The Services and the Materials, and all IPR in them, will at all times remain our property (or in some cases, for instance Third Party Technology, the property of our licensors) and you do not have permission to use the Services or Materials other than in line with our Agreement.
  • 9.2 The Customer Data, and all IPR in it, will at all times remain your property and we do not have permission to use it other than to be able to provide the Services in line with our Agreement and you shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
  • 9.3 We shall undertake such archiving procedures for Customer Data as required to comply with industry good practice, which procedures we may update from time to time.
  • 9.4 In the event of any loss of or damage to Customer Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us in accordance with condition 9.3.  We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by us to perform services related to Customer Data maintenance and back-up).  Nothing in this condition affects: (i) your rights pursuant to condition 14.7 in the event that we have been negligent; or (ii) your rights pursuant to condition 11.26 to the extent that loss or damage relates to personal data.
  • 9.5 We shall, in providing the Services, comply with the terms of our Privacy Policy.

10. INDEMNITY

  • 10.1 We will indemnify you against any loss and reasonable costs which you suffer as a result of any claim that the Services or the Materials infringe the IPR of a third party except where that claim arises directly or indirectly as a result of:
    • 10.1.1 any Customer Data;
    • 10.1.2 the Customer Websites or Customer Databases;
    • 10.1.3 your use of the Services or Materials in a manner contrary to our instructions;
    • 10.1.4 your use of the Services or Materials after receipt of notice of the alleged or actual infringement; and/or
    • 10.1.5 any changes, modifications or repairs to the Services or Materials which are not undertaken or authorised by us;and provided that you tell us of the claim as soon as possible, you do not admit liability or settle the claim and you give us full control of running, defending and settling the claim. You still must mitigate any losses and costs which you might suffer, which you try to recover under this indemnity.
  • 10.2 If we reasonably believe that the Services or Materials might infringe the IPR of someone else, we can replace or modify the infringing element of the Services or Materials without your permission or, if that is not reasonably possible, we reserve the right to terminate the Agreement in whole or in part by immediate written notice (in which circumstance we will refund to you any fees paid in respect of the period following termination).
  • 10.3 Conditions 10.1 and 14.5 state your exclusive rights and remedies, and our (including our employees', agents' and sub-contractors') entire obligations and liability, for infringement or alleged infringement of any patent, copyright, trade mark, database right or other IPR.
  • 10.4 You shall defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services and/or Materials, provided that:
    • 10.4.1 you are given prompt notice of any such claim;
    • 10.4.2 we provide reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
    • 10.4.3 you are given sole authority to defend or settle the claim, subject to our prior written approval of any proposed settlement terms or admissions (such approval not to be unreasonably withheld or delayed).

11. PERSONAL DATA

Duration and Application

  • 11.1 The terms of this condition 11 shall apply to all Client Data. 
  • 11.2 Unless otherwise agreed in writing, we (Red Eye) shall be Data Processor and you shall be Data Controller in respect of all Customer Data.
  • 11.3 Without prejudice to the terms of this condition 11, each party shall comply with the Data Protection Legislation.

Data Processor Obligations

  • 11.4 The Data Processor shall process the Client Data solely for the purpose agreed with the Data Controller, being the provision of software as a service to assist the Data Controller in delivering marketing to its customers and managing such customer relationships or such other service(s) as the parties may agree from time to time.The parties envisage that such Processing will comprise web tracking, customer identification, data analysis and analytics, profiling, research, targeting and/or marketing communications and any reasonably necessary related uses.The Data Processor shall not process any Client Data for any other purpose except with the express written consent of the Data Controller.
  • 11.5 The Data Processor shall, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk to the rights and freedoms of natural persons, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of unauthorised or unlawful processing or accidental loss, destruction or damage of Client Data. 
  • 11.6 The Data Processor shall ensure that any individuals Processing Client Data on its behalf are made aware of their obligations with regard to the security and protection of the Client Data and shall require that they enter into binding obligations with the Data Processor in order to maintain the levels of security, protection and confidentiality provided for in this condition 11.
  • 11.7 Subject to the provisions of condition 11.6, the Data Processor shall not divulge the Client Data whether directly or indirectly to any person, firm or company without the express consent of the Data Controller, except pursuant to any subcontract approved in accordance with condition 11.8.
  • 11.8 As at the date of this Agreement, we use the following entities as agent or subcontractor to Process Client Data: Comapi, a trading name of Dynmark International Limited. Registered office Westmoreland House, 80-86 Bath Rd, Cheltenham GL53 7JT. Registered in England. Company registration number 4343332. Sub-processor for the deliver of SMS messaging. each a “Sub-processor”.  In appointing any Sub-processor, the Data Processor:
  • 11.8.1 has engaged any Sub-processor by way of written contract, incorporating terms no less onerous than this condition 11;
  • 11.8.2 has ensured by written contract that such Sub-processor adopts sufficient technical and organisational means to prevent the risk of unauthorised or unlawful processing or accidental loss or destruction of the Client Data;
  • 11.8.3 has ensured that the Sub-processor’s access to Client Data terminates automatically on termination of this Agreement; and
  • 11.8.4 shall remain liable for the acts or omissions of any such Sub-processor, and the Data Processor shall equally comply with such requirements in respect of any future appointment of a Sub-processor.  Should we appoint any other Sub-processor we will give you not less than twenty eight (28) days’ written notice before such Sub-processor commences work and you shall be entitled, within fourteen (14) days of the date of such notice, to inform us in writing of your objection to the proposed Sub-processor.  If you inform us of any such objection we will make reasonable endeavours to ensure that Client Data can be otherwise Processed but if we are not able to arrange alternative Processing you shall be entitled to terminate the Agreement on seven (7) days’ written notice.
  • 11.9 The Data Processor will without undue delay inform the Data Controller if an incident involving the Data Processor or any Sub-processor has resulted, or may reasonably result, in unauthorised access to or disclosure of the Client Data (“Data Breach”).
  • 11.10 The Data Processor will assist the Data Controller:
    • 11.10.1 in complying with its security obligations, including with informing Data Subjects, where required, if they are affected by a Data Breach; and
    • 11.10.2 in undertaking any necessary data privacy impact assessments.
  • 11.11 The Data Processor will assist the Data Controller in informing the relevant Supervisory Authority of any Data Breach.
  • 11.12 The Data Processor will assist the Data Controller in providing the information or services required to allow Data Subjects to exercise their rights pursuant to the Data Protection Legislation. These rights include subject access, rectification, deletion, portability and objections to processing.
  • 11.13 The Data Processor will without undue delay pass on to the Data Controller any notices, requests or other communications from a Data Subject whose Personal Data is included within the Client Data.The Data Processor will not act on any request from a Data Subject without the prior written authority of the Data Controller.
  • 11.14 The Data Processor shall not transfer any Client Data outside the European Economic Area without the Data Controller’s prior written consent.
  • 11.15 The Data Processor shall keep records of all Processing of Client Data.
  • 11.16 The Data Processor will appoint a data protection officer if required in accordance with the Data Protection Legislation.At the date of this Agreement this role is held by Tim Roe, who may be contacted at privacy@redeye.com.

Data Controller Obligations

  • 11.17 The Data Controller shall provide all reasonable assistance and cooperation as the Data Processor may request in connection with the Client Data, including making available representatives to provide prompt and accurate instructions.
  • 11.18 The Data Controller warrants that it has complied with all Data Protection Legislation in acquiring the Client Data.Without prejudice to the foregoing, the Data Controller represents that all Client Data has been lawfully and fairly processed at the point of its delivery to the Data Processor and that it has verifiable records of Data Subjects’ consent to processing or any other applicable conditions or bases of processing.
  • 11.19 The Data Controller shall not knowingly or recklessly do anything to put the Data Processor in breach of Data Protection Legislation.
  • 11.20 The Data Controller will advise the Data Processor without delay should it become aware of any security breach or unlawful processing relating to any Client Data provided to the Data Processor.
  • 11.21 The Data Controller will ensure that it provides clear and comprehensive instructions to the Data Processor and will, where so requested, assist the Data Processor in developing an appropriate scope for processing the Client Data.

Audit

  • 11.22 The Data Processor shall, upon request, provide evidence to the Data Controller of the measures it has implemented to comply with its security obligations pursuant to condition 11.5. The Data Processor shall allow the Data Controller and/or its auditors or their representatives to have access to relevant processes, procedures, documentation and/or premises of the Data Processor for the purposes of inspection and audit, such access to take place on reasonable advance notice and during normal working hours.  The Data Processor reserves the right to charge a reasonable amount in respect of time spent on such audits and inspections.
  • 11.23 If the Data Controller reasonably believes that the Data Processor is in breach of any of its obligations under this condition 11, the Data Processor shall make all reasonable endeavours to provide prompt co-operation and assistance to the Data Controller and/or its representatives at no additional charge.
  • 11.24 The Data Processor shall immediately inform the Data Controller if it believes that any instruction from the Data Controller infringes Data Protection Legislation.
  • 11.25 The Data Processor will promptly investigate any Data Breach, provide status updates, cooperate with reasonable Data Controller requests during the management of the Data Breach (or, at its option, permit the Data Controller to support the management of the Data Breach) and send a written report to the Data Controller, describing the nature of the Data Breach and any remedial actions taken and/or planned.

Liability

  • 11.26 Subject to the provisions of condition 14.3, the Data Processor's liability to the Data Controller for any loss or damage of whatsoever nature suffered or incurred by the Data Controller, or for any liability of the Data Controller to any other person for any loss or damage suffered or incurred by that person, in connection with this condition 11 or any Client Data shall to the extent permitted by law:
    • 11.26.1 be limited to direct losses only; and
    • 11.26.2 not exceed one million pounds (£1,000,000) per claim or series of related claims.

Termination

  • 11.27 On termination of this Agreement, save to the extent retention is required in order to meet legal or regulatory requirements, the Data Processor shall, upon receipt of written notice from the Data Controller, return or securely destroy any Client Data.
  • 11.28 We may, at any time on not less than thirty (30) days’ notice, revise this condition 11 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
  • 11.29 Given the importance of this condition 11, we both agree that if either of us breach it, that will be considered a material breach of our Agreement.

12. CONFIDENTIAL INFORMATION

  • 12.1 Each of us (the receiving party) shall keep in strict confidence all Confidential Information which has been disclosed by the other (the disclosing party) or the disclosing party’s employees, agents or subcontractors for the duration of this Agreement and for a period of two (2) years after termination of the Agreement.  Neither party may use any Confidential Information relating to the other party for any purpose other than to enforce its rights or perform its obligations in relation to this Agreement.
  • 12.2 The receiving party shall only disclose Confidential Information to those of its employees, agents and subcontractors who need to know it for the purpose of complying with the receiving party's obligations under our Agreement, and shall make sure that those employees, agents and subcontractors comply with the obligations set out in this condition 12 as though they were a party to our Agreement.
  • 12.3 Each of us will make sure that reasonable precautions are taken to protect any Confidential Information (and these shall be at least as effective as those taken to protect each of our own confidential information).
  • 12.4 This condition 12 will not apply to any Confidential Information which:
    • 12.4.1 was already known to the receiving party;
    • 12.4.2 becomes public without breach of our Agreement by the receiving party; or
    • 12.4.3 a third party discloses without breaching any duty of confidence owed to the disclosing party.
  • 12.5 The receiving party may disclose such Confidential Information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
  • 12.6 You acknowledge that details of the Services, and the results of any performance tests of the Services, constitute our Confidential Information.
  • 12.7 We acknowledge that the Customer Data is your Confidential Information.
  • 12.8 Nothing in this Agreement shall prevent us from making any announcement or issuing any press release or other marketing material stating that you are a client of RedEye.

13. ENDING OUR AGREEMENT 

  • 13.1 We can end our Agreement or suspend the Services by giving you notice in writing if:
    • 13.1.1 you are in material breach of our Agreement and, where it is possible to correct the breach, you have not corrected this within thirty (30) days of us giving you notice in writing asking you to do so;13.1.2 you have not paid an invoice (other than parts disputed in line with condition 7.3) within thirty (30) days of the date of our invoice;
    • 13.1.3 you repeatedly breach any terms of this Agreement in such a manner as reasonably to justify the opinion that your conduct is inconsistent with you having the intention or ability to give effect to its terms;
    • 13.1.4 you undergo a change of ownership or control (within the meaning of condition 1124 of the Corporation Tax Act 2010); 
    • 13.1.5 you suffer an Insolvency Event; or
    • 13.1.6 despite our reasonable efforts, we have been unable to complete Set-Up within thirty (30) days of our anticipated Live Date.
In addition, either of us may end the Agreement pursuant to condition 2.1.1.
  • 13.2 You can end our Agreement by giving us notice in writing if:
    • 13.2.1 we are in material breach of our Agreement and, where it is possible to correct the breach, we have not corrected this within thirty (30) days of you giving us notice in writing asking us to do so; or
    • 13.2.2 we suffer an Insolvency Event.
    • 13.3 If our Agreement ends for any reason then:
    • 13.3.1 all licences granted under this Agreement shall immediately terminate;
    • 13.3.2 subject to condition 13.3.5, each of us shall within fourteen (14) days return and make no further use of any equipment, property, Materials and other items (and all copies of them) belonging to the other party;
    • 13.3.3 we can send you an invoice for any Services we have provided but have not invoiced you for, and all of our invoices will become payable immediately;
    • 13.3.4 you will within fourteen (14) days remove any Tag we have provided or placed on any Customer Websites and we will stop tracking the Customer Websites by disabling the Tags;
    • 13.3.5 provided you have paid all outstanding invoices (other than parts disputed in line with condition 7.5) we will, within a reasonable period of time, provide you with the raw output from the RedEye Customer Data Platform in an appropriate format (which we will reasonably decide) by secure means and delete all Customer Data from the RedEye Customer Data Platform. If you require raw output from the RedEye Customer Data Platform in any other format, we reserve the right to charge you Additional Fees for this. Unless we have already provided you with the raw output data in line with this condition, we will retain Customer Data for at least ninety (90) days following our Agreement ending, after which we are entitled to delete it; and
    • 13.3.6 each of us will within fourteen (14) days return to the other or, if asked, securely destroy any Confidential Information and other materials of the other (including in our case, the Materials).
  • 13.4 Any of these terms that expressly or by implication are intended to come into or continue in force on or after termination (including conditions 9, 10, 11, 12, 13.3, 13.4, 13.5, 14, 15, 16, 18 and 19) will remain in full force and effect.
  • 13.5 When our Agreement ends, this will not affect any rights, remedies, obligations or liabilities of the parties that have accumulated up to that date, including the right to claim damages in respect of any breach of our Agreement which existed at or before that date.

14. LIABILITY – PLEASE READ THIS CONDITION CAREFULLY

  • 14.1 Without prejudice to conditions 6.1, 9.4 and 10.3, this condition 14 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you:
    • 14.1.1 arising under or in connection with the Agreement;
    • 14.1.2 in respect of any use made by you of the Services and Materials or any part of them; and
    • 14.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
To the extent of any conflict between the provisions of this condition 14 and condition 11.26 (in relation to personal data), condition 11.26 shall prevail.
  • 14.2 Except as expressly and specifically provided in these terms:
    • 14.2.1 you assume sole responsibility for results obtained from your use of the Services and the Materials, and for conclusions drawn from such use. RedEye shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts you have provided to us in connection with the Services or any actions we have taken at your direction;
    • 14.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute, common law or custom and practice are, to the fullest extent permitted by applicable law, excluded from the Agreement.
  • 14.3 There are certain things which parties to a contract cannot limit or exclude liability for by law, for example fraud, fraudulent misrepresentation and death or personal injury caused by negligence. Nothing in this condition 14 or anywhere else in our Agreement excludes liability for these things. This condition 14 also does not limit your liability to pay the Fees in any way.
  • 14.4 There are other things however, for which liability can be limited or excluded, and you recognise that the Fees take account of the liability which we are able to accept under our Agreement and the limitations and exclusions set out in this condition 14.
  • 14.5 Subject to condition 14.3, neither we nor you will be liable to the other for any Loss the other suffers to the extent that such loss is:
    • 14.5.1 loss of: (i) revenue; (ii) business; (iii) profits; (iv) savings; or (v) reputation;
    • 14.5.2 business interruption costs or losses; or 
    • 14.5.3 indirect or consequential loss.
  • 14.6 We will not be liable to you for any Loss you suffer to the extent that loss is caused by an Excluded Issue or for any Loss which is caused by your failure to comply with these terms.
  • 14.7 RedEye's liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, including under any indemnity, per claim or series of connected claims arising in connection with the Contract shall, subject to conditions 11.26 and 14.5, be limited as follows:
    • 14.7.1 in respect of any claim relating to loss of or damage to data arising from RedEye’s negligence, RedEye’s liability shall be limited to the lesser of: (i) the total Licence Fees paid during the twelve (12) months immediately preceding the date on which the claim arose; and (ii) £100,000; and
    • 14.7.2 in respect of any other claim, RedEye’s liability shall be limited to the total Licence Fees paid during the six (6) months immediately preceding the date on which the claim arose.
  • 14.8 Neither we or you shall be liable to the other for any Loss the other suffers unless notified of the same within two (2) years of the claiming party becoming aware of the claim (whether the claim is in contract, tort (including negligence), breach of legal duty or otherwise).

15 OTHER IMPORTANT TERMS

  • 15.1 Events Outside of Our Control
    We live in unpredictable times. We shall have no liability to you under this Agreement if we are prevented from or delayed in performing our obligations under this Agreement by circumstances or events beyond our reasonable control, provided that we have notified you of such an event and its expected duration. Such circumstances include but are not limited to, strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party); failure of a utility service or transport or telecommunications network; act of God; war, riot, civil commotion; malicious damage; compliance with any law or governmental order, rule, regulation or direction; accident; breakdown of plant or machinery; fire; flood; storm; or default of suppliers or sub-contractors.
  • 15.2 Changes
    Unless we have said elsewhere in these terms that we can change or update something, any changes to our Agreement have to be agreed between you and us in writing.  This does not affect our right to revise these terms from time to time.
  • 15.3 Waivers
    If we fail to exercise any of our rights or remedies provided under our Agreement or by law, or if we only exercise any right or remedy in part, this shall not be a waiver of that or any other right or remedy and it shall not prevent or restrict us from further exercising that or any other right or remedy.
  • 15.4 Our Entire Agreement
    Our Agreement is the entire agreement between you and us. You recognise that you have not relied on any statement, promise or representation made or given by us or on our behalf which is not set out in our Agreement.
    In particular, any presentations, worked examples, or projections which we give you are illustrative only and based on estimates to give you an idea of our services, but do not form part of our Agreement.
  • 15.5 Enforceability
    If any provision of our Agreement is found to be invalid or unenforceable for any reason, then the other provisions of our Agreement shall be unaffected as if the invalid or unenforceable part did not exist.
  • 15.6 Our Relationship
    We are your independent contractor. Our Agreement will not create any type of employment, legal partnership or agency relationship.
    If, as a result of the application of the Transfer Regulations or otherwise, the employment of any person (or any claim or liability related to such person) who has been employed or engaged by you or any third party transfers or is deemed to transfer to us as a result of or connected to our Agreement or us providing you with the Services, then we may dismiss such persons (which we may do immediately) and you must reimburse and compensate us in full (without us having to mitigate) in respect of any Employment Liabilities that arise and the limitations and exclusions of liability in condition 14 do not apply to this condition 15.6. In the event that there is any such transfer you must comply with your obligations under the Transfer Regulations and must, at your own cost, co-operate with us and promptly provide us with all such information as we request in relation to such person and the transfer.
  • 15.7 Third Parties
    The provider of any Third Party Technology shall be able to enforce our Agreement to the extent it relates to your access to or use of their Third Party Technology.
    Other than as we have set out in this condition 15.7, no third party will have any rights under our Agreement. The permission of any third party is not needed for you and us to agree any changes to our Agreement.
  • 15.8 Transferring Our Agreement
    Our Agreement is personal to you and so you cannot assign, sub-contract or otherwise transfer our Agreement or any rights or obligations under it without our written permission. We can however assign, sub-contract or otherwise transfer our Agreement or any rights or obligations under it without your permission. If we do assign or transfer our Agreement to someone else, we use reasonable efforts to tell you about this before or shortly after the assignment or transfer.
  • 15.9 Notices
    If either of us is giving notice to the other under these terms, then this can be done by recorded post or by email. If we are giving you notice, we can send this to the postal or email address which you have given on your order form or which you have otherwise provided us with. If you are giving us notice, you can send it to our registered office marked for the attention of your account manager or send by email to your account manager to the email address which your account manager has provided you with. Postal or email addresses for notices can be updated by giving notice in line with this condition 15.9.
    Notices sent by recorded post will automatically be deemed to have been delivered two (2) business days after posting. Notices sent by email will be automatically deemed to have been delivered on the day of sending if sent before 5.00 p.m. on a business day, otherwise at 10.00 am on the next business day, unless a delivery failure report or an out of office reply is received. If you receive a delivery failure report or an out of office reply, you must ensure you send the notice in another way that is allowed under this condition 15.9.

16. DISPUTES

  • 16.1 Each of us will nominate representatives to deal with any disputes which arise under the Agreement. The identity of these representatives can be changed at any time. The table below sets out the appropriate level for each representative at each stage of the resolution process.

 

Us

 You

Stage 1

Account Manager

 Manager

Stage 2

Account Director

 Senior Manager

Stage 3

Client Director

 Director
 
  • 16.2 Each of us will refer any dispute that arises under or in connection with our Agreement to the representatives (the first reference being made by either stage one representative to the other in writing). The representatives will discuss the issue within fourteen (14) days (or such other period we both agree to) at a mutually agreed time, to try and seek resolution or decide upon a course of action for resolution of the dispute. If the dispute cannot be resolved in these timescales or a time for discussion cannot be agreed within these timescales, either of us can refer the dispute to the next level of representative.
  • 16.3 If any dispute has not been settled or a course of action for its settlement agreed within the timescales set out above, either of us may commence legal proceedings.
  • 16.4 Nothing in this condition 16 will prevent either of us seeking injunctive relief or commencing legal proceedings to recover any debts due and payable or where a delay in commencing proceedings may reasonably be considered to prejudice the claiming party’s position.

17. ANTI-BRIBERY

  • 17.1 Each of us shall comply with all laws and regulations relating to anti-bribery and anti-corruption, including the Bribery Act 2010, and whilst our Agreement is in force have and maintain suitable policies and procedures to ensure such compliance and enforce them appropriately.
  • 17.2 Neither of us shall engage in any activity, practice or conduct which would be an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK.

18. APPLICABLE LAW

Our Agreement and any disputes which arise out of or in connection with our Agreement, whether the dispute is a contractual one or not, shall be governed by English law and shall be subject to the exclusive jurisdiction of the courts of England and Wales.

19. DEFINITIONS AND INTERPRETATION

  • 19.1 The definitions we use in these terms are as follows:
    • “Additional Fees” means our fees and expenses for providing you with any Additional Services.
    • “Additional Services” means any services which we agree to provide you from time to time which are not completing Set-Up or the Available Services.
    • “Agreement” means the legally binding agreement between you and us for services which comes into existence in line with these terms and incorporates these terms (as updated from time to time), any documents referenced within these terms, the relevant Order Form and if applicable any Solutions Overview Document.
    • “Authorised Users” means your employees, agents and independent contractors who are authorised by you to use the Services and the Materials.
    • “Available Services” means services, products, tools and/or solutions which we will provide you with or make available which are set out in the Order Form together with any help and support services within the scope set out in these terms and any migration of Customer Data to the RedEye Customer Data Platform which we agree to undertake.
    • “Client Data” means any Personal Data Processed by us on your behalf.
    • “Confidential Information” means any technical or commercial know-how, specifications, processes or initiatives which either of us receives from the other, or information either of us receives about the other’s business, affairs, customers, clients, suppliers, plans or market opportunities which are of a confidential nature and any other information of a confidential nature received.
    • “Customer Data” means any data (including personal data) about your customers, users of the Customer Websites or people on the Customer Databases.
    • “Customer Databases” means your customer database(s) in relation to which we provide you with the Services (and which may sync with the RedEye Customer Data Platform).
    • “Customer Websites” means your website(s) in relation to which we provide you with the Services, as indicated on the relevant Order Form.
    • “Data Breach” shall have the meaning given in condition 11.9;
    • “Data Controller” means a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed, or such other meaning as set out in the Data Protection Law;
    • "Data Protection Law" means:n prior to its repeal, the Data Protection Act 1998; and from the GDPR Commencement Date, Regulation (EU) 2016/679 (the "General Data Protection Regulation" or "GDPR") and any UK statute which implements any provisions of the same.
    • “Data Protection Legislation” means all applicable data protection and privacy legislation, regulations, guidance and codes of practice, including:
      • the Data Protection Law and the Privacy and Electronic Communications (EC Directive) Regulations;
      • any secondary legislation pursuant to the Data Protection Law; and
      • any guidance or codes of practice issued by Working Party 29, the European Data Protection Board or the Information Commissioner from time to time (all as amended, updated or re-enacted from time to time).
    • “Data Subject” means an individual who is the subject of personal data, or such other meaning as set out in the Data Protection Law.
    • “Effective Date” means the date on which an Order Form is accepted by us in line with these terms.
    • “Employment Liabilities” means all costs, losses, proceedings (including any applicable Court or Tribunal fees), actions, claims, demands, liabilities, damages and obligations which we incur or are liable for (including our legal costs and expenses) arising out of or in connection with a person's employment and/or its termination and/or any claim for a failure to consult in relation to a transfer that could be brought by such person or any employee representative on behalf of such person (in each case whether on, before or after such person's transfer).
    • “Excluded Issues” has the meaning given in condition 6.5.
    • “Fees” means any Set-Up Fees, Licence Fees and/or Additional Fees.
    • “GDPR Commencement Date” means the date on which the General Data Protection Regulation is in full force and effect in the United Kingdom.
    • “Good Industry Practice” means the level of skill and diligence that you would reasonably expect of a service provider in our industry performing similar services, in a similar context and for a similar fee.
    • “Initial Subscription Term” means the thirty six (36) month term (or such other duration as agreed on the relevant Order Form) of the Agreement starting from the Live Date.
    • “Insolvency Event” means: (i) convening a meeting of creditors or a proposal is made for any composition, scheme or arrangement with creditors; (ii) being unable to pay debts within the meaning of section 123 of the Insolvency Act 1986; (iii) a trustee, receiver or administrative receiver or similar officer being appointed in respect of all or any part of a business or a business’s assets; (iv) a petition is presented or a meeting is convened to consider a resolution (or other steps are taken) for winding-up, other than for a solvent amalgamation or reconstruction; or (v) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed.
    • “IPR” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.
    • “Licence Fees” means any recurring fees set out in the Order Form or that we may otherwise advise to you for the provision of the Available Services.
    • “Live Date” means the date on which we have completed Set-Up and notify you that this has been completed via a confirmation email.
    • “Loss” means any loss, cost, expense, damage or claim arising under or in connection with our Agreement, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise.
    • “Materials” means any documents, guides, videos, reports or other materials belonging to us or which we provide or make available to you in connection with the Services, including User Guides and any Tags that we provide you or place on the Customer Websites.
    • “Order Form” means your order for Services, completed using our order form, which contains details of the Services which you have requested from us.
    • “Personal Data” means data which relate to a living individual who can be identified either from those data alone, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, or such other meaning as set out in the Data Protection Law.
    • “Privacy Policy” means our policy relating to the security of Customer Data, available at https://www.redeye.com/legal/privacy-policy and as such document may be updated from time to time.
    • “Processing” shall have the meaning set out in the Data Protection Law (and “Process" and “Processed” shall be construed accordingly).
    • “Processor” or “Data Processor” shall have the meaning set out in the Data Protection Law (and “Process" and “Processed” shall be construed accordingly).
    • “Processing” in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including organisation, adaptation or alteration of the information or data; retrieval, consultation or use of the information or data; disclosure of the information or data by transmission, dissemination or otherwise making available; or alignment, combination, blocking, erasure or destruction of the information or data; or such other meaning as set out in the Data Protection Law (and “Process" and “Processed” shall be construed accordingly).
    • “RedEye Customer Data Platform” means the data platform which we manage and which we use to provide you with the Services in relation to the Customer Data (and which may sync with a Customer Database).
    • “Renewal Period” means any renewal period described in condition 2.1.
    • “Services” means completing Set-Up, the Available Services and any Additional Services.
    • “Set-Up” means the configuration of the Available Services which we need to do in order to make them available to you.
    • “Set-Up Fees” means any fees set out in the Order Form or otherwise agreed in writing for Set-Up.
    • “Solutions Overview Document” means the scoping other specification document(s) issued by us to describe the Services in specific detail and which shall form part of this Agreement.
    • “Subscription Term” means the Initial Subscription Term together with any subsequent Renewal Period).
    • “Supervisory Authority” means the Information Commissioner’s Office in the United Kingdom and/or such other supervisory body as may be appropriate to the Processing and/or Data Subjects in question.
    • “Tags” means any cookies or web-tags that we provide you or place on the Customer Websites or which you are required to develop or place on the Customer Websites to enable us to provide the Services.
    • “Third Party Technology” means any software, tools, code, hardware or other technology which is not our own proprietary technology.
    • “Transfer Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 or equivalent in any other jurisdiction.
    • “User Guides” means any user guides, e-learning materials, documentation, instructions or acceptable use policies which we provide you with from time to time in relation to your set-up or use of the Services, including set-up and use of Tags.
    • “Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
  • 19.2 In these terms: (i) the headings are included for convenience only; (ii) the expressions "including", "include", "in particular", "for example" and any similar expressions shall not limit the preceding words; (iii) words in the singular shall include the plural and vice versa, references to any gender shall include all genders and references to legal persons shall include natural persons and vice versa; (iv) references to any law or regulation will, unless the context otherwise requires, be construed as including references to any amended and/or replacement statute or statutory provision; (v) references to "writing" and "written" shall include electronic communication by email; (vi) reference to “business days” shall mean any day, other than a Saturday, Sunday or public holiday in England; and (vii) to the extent of any conflict between these terms (as updated from time to time) and any documents referred to in these terms (for example, our Service Level Agreement), the following order of precedence shall apply:
    • a) the Order Form;
    • b) the data processing provisions at condition 11 of these terms;
    • c) the remainder of these terms;
    • d) the Solutions Overview Document; and
    • e) the Service Level Agreement.