Terms and Conditions
Updated: 17th May 2018
These are the Terms and Conditions for Agency Core Limited, a company incorporated in England (registered number 09000936) with registered office at Agency Core, 86-90 Paul Street, London, EC2A 4NE ("Supplier") in relation to its online agency performance services. These Terms and Conditions form the agreement between the Supplier and the Customer for the Services ("Agreement").
Definitions used in the Services Confirmation will have the same meaning when used in these Terms and Conditions.
The following definitions apply to these Terms and Conditions.
Authorised Users: those employees, agents and independent contractors of the Customer, who are authorised by the Customer to use the Services and the Documentation in accordance with the Agreement.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or which ought reasonably to be treated as confidential.
Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services together with all reports and/or aggregated data generated by or on behalf of the Customer in using the Services.
Documentation: the document made available to the Customer by the Supplier (including by online means) which sets out a description of the Services and the user instructions for the Services.
Effective Date: means, where the Agreement is concluded offline, the date of last signature of the Services Confirmation, and where the Agreement is concluded online, the date on which the Customer accepts these Terms and Conditions online.
Initial Subscription Term: means the period starting on the Subscription Start Date, as set out in the Services Confirmation.
Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
Renewal Period: means the renewal period set out in the Services Confirmation.
Services: the online agency performance services provided by the Supplier via https://agencycore.net or any other website notified to the Customer by the Supplier from time to time.
Services Confirmation: means, where the Agreement is concluded offline, the physical document of that name to which these terms and conditions are attached, and, where the Agreement is concluded online, the transaction page of https://agencycore.net containing details of Subscription Fees and where these Terms and Conditions are accepted.
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Fee: the monthly or yearly charge, as applicable, per Authorised User as set by the Supplier from time to time, payable by the Customer to the Supplier for the User Subscriptions.
Subscription Start Date: means the date when the Services commence as set out in the Services Confirmation.
Subscription Term: means the Initial Subscription Term together with any subsequent Renewal Periods as described in clause 13.1.
Total Subscription Fees: the total Subscription Fees paid per month or per year, as applicable, as set out in the Services Confirmation, payable by the Customer to the Supplier in respect of the total number of Authorised Users.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 9 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.
Virus: 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.
The Supplier grants to the Customer from the Subscription Start Date a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
In relation to the Authorised Users, the Customer undertakes that:
- it will not allow or suffer 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 Documentation;
- each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep any password provided to him confidential;
- it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
- it shall permit the Supplier to audit the Services in order to establish the name of each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
- if any of the audits referred to in clause 3.2.4 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Supplier' s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
- if any of the audits referred to in clause 3.2.4 reveal that the Customer has underpaid the Total Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.
The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- in a manner that is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
The Customer shall not (except to the extent expressly permitted under this Agreement), attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or use the Services and/or Documentation to provide services to third parties; or subject to clause 14.4, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
The Supplier shall provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
- planned maintenance carried out during the maintenance window of 8pm to 2 am UK time; and
- unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s support services policy in effect at the time that the Services are provided.
The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Supplier does not monitor any Customer Data posted by the Customer as part of the Services.
Customer Data shall be stored on serves provided by a third party. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with its archiving procedures. The Supplier 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 the Supplier to perform services related to Customer Data maintenance and back-up).
The Supplier reserves the right to charge additional costs should the Customer exceed agreed storage space during its use of the Services.
If the Supplier processes any personal data on the Customer's behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
- the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf;
- the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
- the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
- each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
The Customer shall provide the Supplier with all necessary co-operation in relation to this Agreement and all necessary access to such information as may be required by the Supplier in order to provide the Services, including but not limited to Customer Data, security access information and configuration services.
The Customer shall comply with all applicable laws and regulations with respect to its activities under this Agreement and shall carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner.
The Customer shall ensure that the Authorised Users use the Services and the Documentation in accordance with the terms of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement.
The Customer shall obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services.
The Customer shall ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time and be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1 Notwithstanding the foregoing, the Supplier:
- does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
- is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
This Agreement shall not prevent the Supplier 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 this Agreement.
The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
Rights in the service
All intellectual property rights in the Services are owned by or validly licensed to the Supplier.
Software and Documentation provided in relation to the Services are provided solely in relation to the Customer’s use of the Services.
The Customer shall pay the Total Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 9.
The Customer shall provide to the Supplier valid, up-to-date and complete credit card details and any other relevant valid, up-to-date and complete contact and billing details.
The Customer may choose to pay the Total Subscription Fees to the Supplier on a monthly or yearly basis, in advance.
If the Customer reduces the number of Authorised Users by deactivating the account of an Authorised User during the Subscription Term, the Total Subscription Fees shall automatically be reduced pro rata in respect of the Total Subscription Fees due for any subsequent Renewal Period.
If the Customer Increases the number of Authorised Users during the Subscription Term, the Total Subscription Fees shall automatically be increased pro rata for any subsequent Renewal Period.
The Customer shall pay any invoice issued by the Supplier within 30 days after the date of such invoice. If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
If the Customer is already using the Services, the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Royal Bank of Scotland at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees stated or referred to in this Agreement shall be payable in pounds sterling, are non-cancellable and non-refundable (except as otherwise stated in this Agreement), and are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
The Supplier shall be entitled to increase the Subscription Fee upon 90 days' prior notice to the Customer, but not more than once during any 12 month period during the Agreement.
As stated above, all fees are non-refundable. If the Supplier does decide to issue a refund in exceptional circumstances the refund will be less any transaction fees incurred by the Supplier.
Each party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain.
The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause “Confidentiality” shall survive termination of the Agreement.
A party's Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the Receiving Party;
- was in the Receiving Party's lawful possession before the disclosure;
- is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure;
- is independently developed by the Receiving Party, which independent development can be shown by written evidence; or
- is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
The Customer shall defend, indemnify and hold harmless the Supplier 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 the Customer's use of the Services and/or Documentation, provided that:
- the Customer is given prompt notice of any such claim;
- the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
- the Customer is given sole authority to defend or settle the claim.
The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
- the Supplier is given prompt notice of any such claim;
- the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
- the Supplier is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
- a modification of the Services or Documentation by anyone other than the Supplier; or
- the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
- the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
The foregoing and clause 12.4 state the Customer's sole and exclusive rights and remedies, and the Supplier’s entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
This clause 12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Customer in respect of:
- any breach of the Agreement however arising;
- any use made by the Customer of the Services; and
- any representation, statement or delictual act or omission (including negligence) arising under or in connection with the Agreement.
Except as expressly and specifically provided in this Agreement:
- the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
- the Services and the Documentation are provided to the Customer on an "as is" basis.
Nothing in this Agreement seeks to exclude the Supplier’s liability for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation. However beyond that the Supplier excludes all other liability to the extent permitted at law.
Subject to clause 12.3, in no event shall the Supplier be liable for any loss of business, loss of profit, loss of or damage to reputation, loss or corruption of data or for any indirect or consequential loss. Except for liabilities that have not been expressly excluded, the Supplier’s total aggregate liability arising under the Agreement or otherwise relating to the Services shall be limited to £10,000.00.
Term and termination
This Agreement shall commence on the Effective Date and continue for the Initial Subscription Term , and thereafter this Agreement shall be automatically renewed for successive Renewal Periods, unless or until:
- either party gives at least one month written notice of termination to the other in which case this Agreement shall terminate upon the expiry of such notice; or
- otherwise terminated in accordance with the provisions of this Agreement.
Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:
- the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or
- the other party is insolvent within the meaning of section 123 of the Insolvency Act 1986; or
- the other party ceases, or threatens to cease, to trade.
On termination of this Agreement for any reason:
- all licences granted under this Agreement shall immediately terminate;
- each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
- any payments due to the Supplier shall become immediately payable by the Customer;
- the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
- the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
If the Supplier chooses to waive any particular right it has under the Agreement on any particular occasion this does not prevent it from exercising that right on another occasion.
If any part of the Agreement is held by a court of law (or similar forum) to be invalid or unenforceable, this shall not affect the validity or enforceability of the rest of the Agreement.
The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier 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, provided that the Customer is notified of such an event and its expected duration.
The Customer is not entitled to transfer or assign its rights and obligations under the Agreement to anyone else without the Supplier’s prior written permission.
Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
All notices required or permitted under the Agreement will be in writing. Any notice shall be deemed to have been duly received:
- if delivered personally, when left at the address;
- if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting; or
- if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed. Notices relating to the Agreement will be sent to the primary corporate addresses set forth in the Agreement or to such other address as Customer or the Supplier may notify the other party in writing.
The Agreement, including the Services Confirmation and these Terms and Conditions, constitutes the complete and exclusive understanding and agreement between Customer and the Supplier regarding its subject matter and supersedes all prior or other agreements or understandings, written or oral, relating to its subject matter (including any proposal the Supplier may have issued to the Customer). Each party acknowledges that, in entering into the Agreement it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not) other than as expressly set out in the Agreement.
If there are any disputes arising out of use of the Service or relating to the Agreement then these will be governed by the laws of England. If either party requires to raise court proceedings in relation to any such dispute then these proceedings must be raised in England.