- 1. INTERPRETATION
- 1.1 The following definitions apply in these Conditions:
Accounts: the Client’s accounts for any services or platforms that need to be accessed by Uplead in order to deliver the Services, including the Client’s official social media channels on platforms set out in the Proposal, or otherwise agreed between the parties from time to time.
Background Materials means any Material which is not developed specifically for use in the Services, together with all methodology, know-how, process or computer software code created or used as part of the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance with Clause 5 (Charges and payment).
Conditions: these terms and conditions as amended from time to time in accordance with Clause 10.4.
Contract: the contract between Uplead and the Client for the supply of Services in accordance with these Conditions.
Client: the person or firm who purchases Services from Uplead.
Client Default: any act or omission by the Client or failure by the Client to perform any relevant obligation under the Contract, or any other act or omission which is intended to disrupt, or reckless as to the risk of disrupting Uplead from fulfilling any obligation under the Contract.
Client Materials: the Material provided by the Client to Uplead in connection with the Services.
Data Protection Legislation: the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK, and, in the event the GDPR is no longer directly applicable in the UK, any successor legislation to the same
Deliverables: the deliverables set out in the Proposal produced by Uplead for the Client, if any.
Intellectual Property Rights: patents, rights to inventions, copyright, trade marks, rights in designs, database rights, rights in know-how, trade secrets, and all other intellectual property rights, in each case whether registered or unregistered and all similar or equivalent rights or forms of protection which exist or will exist now or in the future in any part of the world.
Material: any content (including text, artwork, photographs, design elements, music, sound recordings, videos, characters, storyboards, formats or logos).
Proposal: the description or specification of the Services provided in writing by Uplead to the Client.
Services: the services, including the Deliverables, supplied by Uplead to the Client as set out in the Proposal.
Third Party Materials those Materials which are commissioned or obtained (but not created) by Uplead and are incorporated into the Deliverables.
Uplead: Uplead Limited registered in England and Wales with company number 10291616.
1.2 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under it.
1.3 Any words following the terms including, include, in particular, for example or any similar expression, shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 The Proposal constitutes an offer by Uplead to provide Services to the Client in accordance with these Conditions. It shall be deemed accepted when the Client issues written acceptance of the same within the time period for which the Proposal is open, as specified in the Proposal (or if no time is set out therein, a period of 10 Business Days from the issuing of the Proposal) provided that Uplead may waive the requirement for acceptance to be in writing, and/or within the specified timeframe, by beginning to provide the Services in response to some other indication of acceptance by the Client.
2.2 The Proposal may only be accepted by the Client to whom it is addressed and Uplead is entitled, at any time, to refuse provision of any Services, Deliverables, Materials or information to any party other than the Client under the Contract.
2.3 These Conditions apply to the Contract to the exclusion of any other terms, whether written, verbal, implied from conduct or from other material, including material issued by Uplead, or otherwise, that either party seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 The Contract shall continue from the date it is accepted in accordance with Clause 2.1 for the period, or rolling periods set out in the Proposal. Unless otherwise specified, Contracts will last for any initial period set out in the Proposal and after that on a month to month basis, renewed for each successive monthly period unless notice is given by either party 5 Business Days prior to the end of each monthly period.
3. SUPPLY OF SERVICES
3.1 Uplead shall supply the Services to the Client using reasonable care and skill and in accordance with the Proposal in all material respects, subject to these Conditions.
3.2 Uplead shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Uplead reserves the right to amend the Proposal if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Uplead shall notify the Client in any such event.
3.4 During the term of the Contract, Uplead shall have exclusive management of each Account it operates, but the Client may appoint another supplier to provide similar services or undertake similar activities itself, so long as different Accounts are used, and provided that Uplead is kept fully informed.
4. CLIENT’S OBLIGATIONS
4.1 The Client shall:
a. ensure that all information it provides to Uplead, both prior to and during the provision of the Services are complete and accurate and that the Services described in Proposal are sufficient to meet the Client’s requirements;
b. co-operate with Uplead in all matters relating to the Services, including:
i. making available such time for a suitable manager or other senior employee as is reasonably necessary to provide co-operation in a timely manner upon request; and
ii. responding promptly to any request that the Client approve Services or Deliverables, and where the Client does not respond to any such request within 5 Business Days, or such other period as Uplead reasonably specifies, having regard to the urgency of the Services, Client shall be deemed to have approved the same;
c. provide Uplead with such information and Client Materials as Uplead may reasonably require in order to supply the Services, including information and permissions required for Uplead to access and make use of the Client’s Accounts as necessary or reasonably desirable for delivery of the Services;
d. inform Uplead of any relevant laws or regulations, and codes of practice that apply to the particular sector or activities of the Client;
e. be responsible for providing any brand or communication guidelines or policies relating to the depiction of the Client’s brand and/or regarding the appropriate content and form communications on behalf of the Client; and
f. comply with any additional obligations as set out in the Proposal.
4.2 The Client warrants and undertakes that:
a. it has full power and authority to enter into the Contract and that by doing so it will not be in breach of any obligation to a third party;
b. the Client Materials will not, when used in accordance with the Contract, infringe the Intellectual Property Rights of any third party or be otherwise unlawful;
c. the Client Materials are accurate so far as Client is aware in all material respects.
4.3 If Uplead’s performance of any of its obligations under the Contract is prevented or delayed by any Client Default, without limiting or affecting any other right or remedy available to it, Uplead shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from liability for the performance or non-performance of any of its obligations in each case to the extent the Client Default prevents or delays Uplead’s performance of any of its obligations.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be calculated on the basis set out in the Proposal, and if not so specified in the Proposal, on a time and materials basis on Uplead’s hourly fee rates, as communicated to the Client.
5.2 The Charges will generally be inclusive of normal foreseeable expenses unless specified in the Proposal. However, Uplead may require payment of expenses in addition, including travelling expenses, hotel costs, subsistence, and for the costs of services, goods or licences provided by third parties, where incurred as a result of particular requests or instruction issued by the Client. These will be agreed in advance.
5.3 Uplead reserves the right to increase the Charges effective at the commencement of the next renewal period by giving notice at least 5 Business Days prior to the latest date on which notice may be given to prevent renewal.
5.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT) which, if applicable, shall be paid in addition by the Client shall, on receipt of a valid VAT invoice from Uplead.
5.5 Periodic Charges are payable by the Client in advance of the commencement of each renewal period. Charges made on a time and materials basis shall be invoiced monthly and paid within 30 days of the invoice.
5.6 If the Client fails to make a payment due to Uplead under the Contract by the due date, then, without limiting Uplead’s remedies under Clause 9, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Subject to the remainder of this Clause 6, Uplead hereby assigns, by way of present assignment of future rights, all of Uplead’s Intellectual Property Rights in the Deliverables to the Client, in each case from the later of delivery of the same to the Client and payment by the Client of all applicable Charges.
6.2 Uplead shall obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Materials for the purposes set out in the Proposal and the Client’s shall comply with any restrictions on usage of Third Party Materials set out in such licences or consents.
6.3 Uplead retains ownership of all Intellectual Property Rights in the Background Materials, but grants the Client a non-exclusive, irrevocable, perpetual, royalty-free, non-transferable, non-sub-licensable, licence to use the Background Materials as necessary for the purposes of making use of the Deliverables in the ways set out in the Proposal.
6.4 Uplead shall be able during and after the term of the Contract to use any Deliverables for the purpose of promoting its own business, including by way of example using the Deliverables, the Client name and the Client logo on its website and presenting the Deliverables as part of case studies to promote its business, save that Uplead shall make no use any Materials which have not been first published by Client.
6.5 The Client grants Uplead a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any Client Materials for the term of the Contract for the purpose of providing the Services.
7. DATA PROTECTION AND DATA PROCESSING
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and Uplead is the processor (where controller and processor have the meanings as defined in the Data Protection Legislation) of all personal data (as defined in the Data Protection Legislation). Uplead is the data controller only of any personal data that may be contained in the Client’s own details provided to Uplead for the formation and administration of the Contract, such as for billing or contact with the Client.
7.3 The Client warrants that the personal data processed by Uplead shall be limited to general identification and contact information, processed for the purpose of promoting and/or marketing the Client’s business, and shall inform Uplead of any particular sensitivity of any data provided to Uplead.
7.4 Without prejudice to the generality of Clause 7.1, the Client will ensure that it has provided all necessary notices, and where necessary, obtained all relevant consents to enable lawful transfer of the personal data to Uplead for the duration and purposes of the Contract.
7.5 Without prejudice to the generality of Clause 7.1, Uplead shall, in relation to any personal data processed in connection with the performance by Uplead of its obligations under the Contract:
a. process that Personal Data only on the written instructions of the Client unless Uplead is required by the laws of any member of the European Union or by the laws of the European Union applicable to Uplead to process Personal Data (Applicable Data Processing Laws). Where Uplead is relying on laws of a member of the European Union or European Union law as the basis for processing personal data, Uplead shall promptly notify the Client of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit Uplead from so notifying the Client;
b. in order to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data,
i. implement the following measures where personal data is provided to Uplead by the Client solely for uploading to one or more Account:
(1) Uplead shall such receive the personal data by whichever reasonable method is made available by the Client, or if the Client requires Uplead to arrange for the transfer of personal data, Uplead shall offer to make available to the Client a secure method of transfer (the costs of which shall be borne by the Client);
(2) Uplead shall upload the personal data to the relevant Account(s) promptly and shall not keep any other copy of the personal data in Uplead’s possession;
ii. maintain at least the following:
(1) A system firewall, appropriate, and correctly configured anti-virus / anti-malware software on all of Uplead’s computers used to hold the personal data (“Uplead’s Computers”);
(2) Appropriate password protection requirements on Uplead’s Computers and appropriate practices to maintain the security of passwords; and
(3) Appropriate policies to control access to any physical location where hardware storing the data is held.
c. not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
i. the Client or Uplead has provided appropriate safeguards in relation to the transfer; and
ii. the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies following the transfer;
d. assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
e. notify the Client without undue delay on becoming aware of a personal data breach;
f. at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the Contract unless required by Applicable Data Processing Law to store the personal data; and
g. maintain complete and accurate records to demonstrate its compliance with this Clause 7.
7.6 Uplead may appoint third parties to process the personal data by way of management of the Accounts, shall inform the Client of any such appointment, and shall not otherwise appoint any third party to process the Personal Data under the Contract without the prior consent of the Client, which shall not be unreasonably withheld or delayed. Uplead shall enter into a written agreement with the third-party processor substantially incorporating terms which are substantially similar to those set out in this Clause 7. As between the Client and Uplead, Uplead shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 7.
7.7 Uplead may, at any time on not less than 30 days’ notice, revise this Clause 7 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 the Contract).
7.8 The Client has a right to visit the premises of Uplead, during normal business hours (Monday to Friday 9:00 to 17:00), at its own costs, for the sole purpose of inspecting Uplead’s compliance with the terms of the Contract in respect of the personal data, The Client must inform Uplead in due time (usually at least two weeks in advance) of their intention to conduct checks. The Client is entitled to conduct one check per year.
8. LIMITATION OF LIABILITY: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
8.1 The Client acknowledges that:
a. given the nature of social media, feedback on the Client’s social media channels are accessible by third parties outside of Uplead’s reasonable control and that there is no guarantee that all text, comments and feedback on the Client’s social media channels (and other websites) will be positive in their nature.
b. design, content and software may over time, become incompatible with, or not optimised for changing internet, platform, communications and IT infrastructure standards, protocols and models and that any instructions to update the Services or Deliverables to meet new developments may be additional chargeable services and is not an admission that the Deliverables or Services were faulty as developed or delivered.
8.2 Uplead shall not be liable to the Client for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
8.3 Uplead’s aggregate liability to the Client in respect of any claims based on events in any 12 month period arising out of or in connection with the Contract (or any related contract), whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 100% of the total Charges actually paid by the Client to Uplead under the Contract and any related contract in that 6 (six) month period.
8.4 Nothing in the Contract shall operate to exclude or limit our liability for: (a) death or personal injury caused by our negligence; or (b) fraud; or (c) any other liability which cannot be excluded or limited under English law.
8.5 Uplead shall in no circumstances be liable for any products, sales promotions or services offered by the Client and promoted as part of the Services, provided that the Client approved the manner and content of such offer or promotion. The Client hereby indemnifies Uplead against any liabilities, judgments, awards, losses, damages, costs and expenses, including legal costs arising from claims brought against Uplead which relate to products or services offered by the Client.
8.6 Except as explicitly provided in these Conditions all warranties regarding the Services are, to the fullest extent permitted by law, excluded from the Contract.
8.7 This Clause 8 shall survive termination of the Contract.
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
a. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
b. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.2 Without affecting any other right or remedy available to it, Client if the Client fails to pay any amount due under the Contract on the due date for payment, Uplead may terminate the Contract or suspend the supply of Services with immediate effect by giving written notice to the Client.
9.3 On termination of the Contract the Client shall immediately pay to Uplead all of Uplead’s outstanding unpaid Charges and interest and return all of Uplead Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then Uplead may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
9.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
10.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.2 Assignment and other dealings.
a. Uplead may at any time assign, subcontract, delegate, or deal in any other manner with any or all of its rights and obligations under the Contract.
b. The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
a. Each party undertakes that it shall not at any time during the Contract, and for a period of three years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by Clause 10.3b.
b. Each party may disclose the other party’s confidential information:
i. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 10.3; and
ii. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
c. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
10.4 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.5 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any other or subsequent right or remedy, even if of the same type.
10.6 Agent for Service. If the Client is established or resident outside of the United Kingdom then the Licensee shall, upon Uplead’s request nominate a person with an address inside the United Kingdom to act as the Client’s agent for service (the “Nominated Agent”), and any notice sent to the Nominated Agent shall be deemed valid notice on the Client. Such nomination may only be withdrawn by the Client upon nominating a replacement person with an address inside the United Kingdom to be the Nominated Agent.
10.7 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
10.8 Governing law and Jurisdiction. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.