1. Definitions and interpretation
1.1 — Definitions
- Affiliate: the person, firm or company that purchases the Services from Filtru and appoints Filtru as its agent to conclude Sales Contracts in accordance with these Conditions.
- Affiliate Data: the data inputted by the Affiliate, Authorised Users, or Filtru on the Affiliate’s behalf for the purpose of using the Services.
- Affiliate Default: has the meaning given in clause 8.5.
- Affiliate Material: the materials, images, Product list, Product descriptions, information summary, trade mark, logo and branding from time to time of the Affiliate to be published on the Site.
- Authorised Users: those employees, agents and independent contractors of the Affiliate who are authorised by Filtru to access and use the Services .
- Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
- Commencement Date: has the meaning given in clause 2.2.
- Commission: has the meaning given in clause 9.1.
- Conditions: these terms and conditions as amended from time to time in accordance with clause 18.5.
- Contract: the contract between Filtru and the Affiliate for the supply of Services and the appointment of Filtru as agent for the Affiliate in accordance with these Conditions.
- Customer: a customer of the Affiliate pursuant to a Sales Contract that has been concluded by Filtru through the Site.
- Filtru: Spirograph Limited t/a Filtru registered in England and Wales with company number 10599895 whose registered office is at Riverside House, Kings Reach Business Park, Yew Street, Stockport, Cheshire SK4 2HD.
- Net Price: in relation to any Products, the price actually charged to the Customer less any value added tax or other sales tax thereon included in the price.
- Order: the Affiliate’s order for the Services and appointment of Filtru as agent as set out in (a) the Affiliate’s purchase order form; or (b) the Affiliate signing a quotation or terms supplied by Filtru; or (c) the Affiliate’s written, electronic or verbal acceptance (to a sales representative of Filtru) of a quotation by Filtru (as the case may be).
- Products: the coffee and coffee related products sold by the Affiliate of the type and specification as agreed between the parties.
- Sales Contract: has the meaning given in clause 3.2.
- Services: the services provided by Filtru to the Affiliate under the Contract via www.business.filtru.coffee or any other website notified to the Affiliate by Filtru from time to time for the purpose of the sale of the Products through the Site.
- Site: Filtru’s mobile application (“app”) or its website located at www.getfiltru.com and any future version or replacement of that app or website.
- Software: the online software applications provided by Filtru as part of the Services.
- Territory: such territory in the United Kingdom that is agreed between Filtru and the Affiliate for the sale of the Products.
- Term: the term of the Contract commencing on the Commencement Date and expiring on the date that the Contract is terminated (or expires) in accordance with these Conditions (subject to earlier termination in accordance with these Conditions).
- VAT: Value added tax or any equivalent tax chargeable in the UK or elsewhere.
- 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.
1.2 — A reference to writing or written includes email.
1.3 — Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. Basis of contract
2.1 — The Order constitutes an offer by the Affiliate to:
- a — purchase the Services in accordance with these Conditions; and
- b — appoint Filtru as its non-exclusive agent to conclude sales of the Products in the Territory on behalf of the Affiliate through the Site in accordance with these Conditions.
2.2 — The Order shall only be deemed to be accepted when Filtru issues written acceptance of the Order by confirming that the Affiliate’s account with Filtru has been opened, at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3 — These Conditions apply to the Contract to the exclusion of any other terms that the Affiliate seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 — Any quotation given by Filtru shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Appointment
3.1 — Subject to the terms of the Contract, the Affiliate appoints Filtru for the Term:
- a — to provide the Services; and
- b — as its non-exclusive agent to promote sales of the Products in the Territory on behalf of the Affiliate by the publication of the Affiliate Materials on the Site.
3.2 — Filtru is authorised by the Affiliate to conclude contracts for the sale of the Products in the name of and on behalf of the Affiliate (“Sales Contract”), without prior reference to the Affiliate, on the Affiliate’s standard terms and conditions of sale as communicated to Filtru by the Affiliate.
3.3 — Filtru is authorised to collect payment for the supply of the Products on behalf of the Affiliate for the duration of the Term.
3.4 — For the duration of the Term, subject to the Conditions, Filtru grants to the Affiliate a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Services during the Term solely for the purpose of the sale of Products through the Site.
4. Use of the services
4.1 — The Affiliate shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
- a — is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- b — facilitates illegal activity;
- c — depicts sexually explicit images;
- d — promotes unlawful violence;
- e — is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- f — is otherwise illegal or causes damage or injury to any person or property;
and Filtru reserves the right, without liability or prejudice to its other rights to the Affiliate, to disable the Affiliate’s access to any material that breaches the provisions of this clause.
4.2 — The Affiliate shall not:
- a — except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
- l — attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
- ll — attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- b — access all or any part of the Services in order to build a product or service which competes with the Services; or
- c — use the Services to provide services to third parties; or
- d — license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users; or
- e — attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided in this clause 4; or
- f — introduce or permit the introduction of, any Virus into Filtru’s network and information systems.
4.3 — The Affiliate shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Filtru.
5. Restriction on direct sales by the Affiliate
The Affiliate’s attention is particularly drawn to this clause
5.1 — The Affiliate undertakes to Filtru that it shall not, for the duration of the Term and for a period of 12 months thereafter, without Filtru’s consent, solicit, make offers or quotations to, negotiate with nor directly or indirectly (save as through Filtru) sell or supply Products to any Customer (or person who has, in the previous 12 months, been a Customer), and shall refer all such possible transactions to Filtru.
5.2 — In the event that the Affiliate breaches the undertaking in clause 5.1, Filtru may in its absolute discretion, without limiting any rights or remedies available to it under the Contract, suspend or terminate the Services and transfer all of the Customers of the Affiliate (or person who has, in the previous 12 months, been a Customer) to another supplier.
6. Filtru’s obligations
6.1 — Filtru undertakes and agrees with the Affiliate during the Term:
- a — to use reasonable commercial efforts to market the Affiliate and the Products on the Site, by publishing the agreed Affiliate Materials on the Site (subject to these Conditions);
- b — to provide the Services using reasonable care and skill.
6.2 — Filtru does not warrant that:
- a — the Affiliate’s use of the Services will be uninterrupted or error free;
- b — that the Services and/or the information obtained by the Affiliate through the Services will meet the Affiliate’s requirements; or
- b — the Software or Services will be free from weaknesses in the computational logic (for example, code) that when exploited, results in a negative impact to the confidentiality, integrity or availability of the Software or Services.
7. Sale of Products
7.1 — All sales of the Products by Filtru on behalf of the Affiliate shall be at the Affiliate’s list prices as specified in the price lists provided from time to time by the Affiliate to Filtru for this purpose through the Software, subject to any discounts or deductions as the Affiliate may allow.
7.2 — All Sales Contracts shall be on the Affiliate’s standard terms and conditions, or such terms and conditions as the Affiliate may specify in writing to Filtru.
7.3 — The Affiliate shall give Filtru 28 days’ notice of any changes in the prices of the Products or in its standard terms and conditions of sale.
7.4 — The Affiliate shall be responsible for updating its range and volume of Products available for sale by Filtru on behalf of the Affiliate through the Site.
8. Affiliate’s obligations
8.1 — The Affiliate undertakes and agrees with Filtru during the Term:
- a — to act at all times in its relations with Filtru dutifully and in good faith;
- b — within a reasonable period of becoming aware of the same, and subject to its rights thereunder, to perform any Sales Contract made on its behalf by Filtru under the Contract (including but not limited to, the supply and delivery of the Products to the Customers in accordance with the scheduled delivery times);
- c — to promptly and efficiently inform Filtru of any complaints or communications raised by a Customer, and to deal with any complaint or dispute relating to the Products raised by a Customer through Filtru;
- d — to promptly inform Filtru if any Sales Contract will not be performed by it, and of the reason for such non-performance;
- e — in the event that Filtru informs the Affiliate that the Customer has requested any changes to the terms agreed in any Sales Contract (including but not limited to, changes in delivery time of Products or quantity of the Products ordered):
- l — to promptly inform Filtru (and in any event within one Business Day) whether the proposed changes to the Sales Contract are accepted; and
- ll — not to unreasonably withhold acceptance to the proposed changes;
- f — in the event of any default or non-compliance of the Affiliate’s obligation in a Sales Contract by the Affiliate (including but limited to, failure to deliver the Products as ordered, failure to deliver the quantity of Products ordered or a defect in the Product notified to Filtru by a Customer), the Affiliate shall use its best endeavours to promptly remedy any default that is capable of remedy (such remedial action to include but not be limited to, redelivery of the Product); and
- g — co-operate with Filtru in all matters relating to the Services and to comply with all reasonable instructions of Filtru in connection with the Contract or the Services.
and Filtru reserves the right, without liability or prejudice to its other rights to the Affiliate, to disable the Affiliate’s access to any material that breaches the provisions of this clause.
8.2 — In relation to the Services, the Affiliate shall:
- a — maintain an accurate and up-to-date list of Products available for the Customer to purchase through the Site;
- b — promptly inform Filtru if any Affiliate Material or Affiliate Data included on the Site is false or misleading or in any way contrary to law or any advertising regulation;
- c — not provide any Affiliate Material to Filtru that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive, facilitates illegal activity, infringes the intellectual property rights of any third party, or promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion and belief, gender reassignment, or any other illegal activities;
- d — provide Filtru with such information and materials as Filtru may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
- e — not use any trade mark, domain name, logo or branding of Filtru without obtaining Filtru’s prior written consent.
8.3 — The Affiliate warrants that:
- a — any statements or claims that the Affiliate makes regarding its Products that are published on the Site are correct, and continue to be correct for the duration of the Term. The Affiliate will be solely liable for any statement or specification it makes in relation to its Products that are published on the Site. The Affiliate shall inform Filtru immediately if any statement or specification is incorrect and the Affiliate shall correct any inaccuracies through the Software;
- b — any information or Affiliate Materials or Affiliate Data that it gives to Filtru to publish on the Site is true, accurate and complete in all respects;
- c — to the best of its knowledge and belief, the Affiliate Materials and the Affiliate Data to be published on the Site will comply with all applicable laws and regulations; and
- d — the Affiliate Materials will not, infringe third party intellectual property rights.
8.4 — Filtru reserves the right to reject or amend any Affiliate Material if, in its absolute discretion, Filtru considers that the Affiliate Material does not comply with clause 8.2 or clause 8.3, or if necessary to comply with any applicable law or regulatory requirement.
8.5 — If Filtru’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Affiliate or failure by the Affiliate to perform any relevant obligation (“Affiliate Default”):
- a — without limiting or affecting any other right or remedy available to it, Filtru shall have the right to suspend performance of the Services until the Affiliate remedies the Affiliate Default, and to rely on the Affiliate Default to relieve it from the performance of any of its obligations in each case to the extent the Affiliate Default prevents or delays Filtru’s performance of any of its obligations;
- b — Filtru shall not be liable for any costs or losses sustained or incurred by the Affiliate arising directly or indirectly from Filtru’s failure or delay to perform any of its obligations; and
- c — the Affiliate shall reimburse Filtru on written demand for any costs or losses sustained or incurred by Filtru arising directly or indirectly from the Affiliate Default.
8.6 — In the event that a Customer informs Filtru that the Products delivered by the Affiliate have been stolen or claimed to be undelivered by a Customer, the Affiliate shall either (at Filtru’s direction):
- a — reimburse Filtru in respect of any payment made to the Affiliate in respect of the stolen or undelivered Products, such reimbursement to be passed on by Filtru to the Customer; or
- b — arrange for the prompt delivery of replacement Products to the Customer at the Affiliate’s expense. For the avoidance of doubt, the Affiliate shall bear the cost of the replacement Products.
9. Charges, commission and payments
9.1 — The Affiliate shall pay Filtru a commission on all Products ordered by a Customer during the Term pursuant to a Sales Contract, at such percentage as is agreed in writing with the Filtru sales representative at the commencement of the Contract (or in the absence of such agreement, an amount equal to 25% of the Gross Price of the Products sold) (“Commission”).
9.2 — Commission shall become due to Filtru as soon as and to the extent that Filtru receives for immediate value from or on behalf of the customer the price in respect of the sale of the relevant Products. Where the relevant Sales Contract provides for payment of the price by instalments, a proportionate part of the Commission shall become due to Filtru as soon as such instalments are received for immediate value by the Affiliate, that proportion being equivalent to the proportion which such instalments bear to the total contract price.
9.3 — If at any time Products sold by the Affiliate under a contract made by Filtru are not, because of the Affiliate’s fault, delivered to a customer, Filtru’s right to Commission shall apply in relation to the sale of those Products as if they had been duly delivered and paid for on the due date for payment of the price under the relevant Sales Contract.
9.4 — Filtru shall, at the end of each month of the Term, send to the Affiliate a statement showing the aggregate Net Price of the Products sold by Filtru on behalf of the Affiliate during that month, together with a statement of the Commission due to Filtru in that month. At the same time, Filtru shall issue an invoice to the Affiliate for the Commission due to Filtru in respect of that month.
9.5 — For the purpose of payment between Filtru and the Agent, Filtru shall, with the statement set out pursuant to clause 9.4, transfer to the Affiliate in the currency of the relevant Sales Contract, a sum equal to:
- a — the aggregate Net Price (less any deductions required by law) as specified in the statement together with any VAT or other sales tax relating to the aggregate Net Price; less
- a — the amount of Commission due to Filtru during that month as specified in the statement.
9.6 — All sums payable under the Contract are exclusive of any value added tax or other applicable sales tax, which shall be added to the sum in question. A VAT invoice shall be provided against any payment.
9.7 — Each party shall keep separate accounts and records giving correct and adequate details of all enquiries received and transactions conducted by Filtru on the Affiliate’s behalf and separate files of vouchers, invoices and receipts relevant to the Contract. For the avoidance of doubt, all rights in such records (including without limitation database right and copyright) shall belong to Filtru.
9.8 — If the Affiliate fails to make any payment due to Filtru under the Contract by the due date for payment, then the Affiliate shall pay interest on the overdue amount at the rate of 2% per annum above Barclays plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Affiliate shall pay the interest together with the overdue amount.
9.9 — Filtru may at any time, without limiting or affecting any other rights or remedies available to it under the Contract or otherwise, set off any liability of the Affiliate to Filtru against any liability of Filtru to the Affiliate, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. All amounts due under the Contract from the Affiliate to Filtru shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. Compliance with laws and policies
10.1 — Each party shall at its own expense comply with all laws and regulations relating to its activities under the Contract (and in the Affiliate’s case, the Sales Contract), as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
10.2 — The Affiliate shall be responsible for obtaining any necessary licences or permits necessary for the sale of the Products into the Territory.
11. Intellectual property
11.1 — All Intellectual Property Rights in or arising out of or in connection with the Services, the Software or the Site (other than Intellectual Property Rights in any Affiliate Materials or Affiliate Data provided by the Affiliate) shall be owned by Filtru or its licensors.
11.2 — The Affiliate grants Filtru a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use and publish any materials, images or logos provided by the Affiliate to Filtru for the term of the Contract for the purpose of publishing the Affiliate Material on the Site.
12. Product liability insurance
12.1 — The Affiliate shall maintain product liability insurance for the duration of the Contract of not less than £1,000,000 per annum with a reputable insurer and shall provide a copy of the insurance policy to Filtru on request by the latter.
13. Limitation of liability
The Affiliate’s attention is particularly drawn to this clause
13.1 — Nothing in the Contract shall limit or exclude the liability of either party for:
- a — Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable).
- b — Fraud or fraudulent misrepresentation or wilful default.
- c — Liability under the indemnities contained in clause 14 and clause 8.5.
- d — Any matter in respect of which it would be unlawful to exclude or restrict liability.
13.2 — Subject to clause 13.1 above:
- a — Neither party shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
- i — any loss of profit, sales, revenue, or business;
- ii — loss of anticipated savings;
- iii — loss of or damage to goodwill;
- iv — loss of agreements or contacts;
- v — loss of use or corruption of software, data or information;
- vi — any loss arising out of the lawful termination of the Contract or any decision not to renew its term; or
- vii — any loss that is an indirect or secondary consequence of any act or omission of the party in question.
- b — Subject to clause 13.1, the total liability of Filtru to the Affiliate in respect of all other loss or damage arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 110% of the total Commission charged in the contract year in which the breaches occurred.
- c — The Affiliate shall be wholly liable for the supply of goods in connection with a Sales Contract.
13.3 — Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
14. Indemnities
The Affiliate’s attention is particularly drawn to this clause
14.1 — The Affiliate shall indemnify Filtru against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other reasonable professional costs and expenses) suffered or incurred by Filtru arising out of or in connection with:
- a — the Affiliate’s breach of any of its obligations under clause 4;
- b — he Affiliate’s breach of any of its obligations under clause 8;
- c — Filtru acting with reasonable care and skill within the scope of its authority under the Contract as agent for the Affiliate; or
- d — damage to property, death or personal injury arising from any fault or defect in the Products and any reasonable costs, claims, demands and expenses arising out of or in connection with that liability, except to the extent that the liability arises as a result of the action or omission of Filtru; or
- e — the Affiliate breaching the Data Protection Legislation (as defined in clause 17.1).
15. Duration and Termination
13.1 — The Contract shall commence on the Commencement Date and (subject to clause 15.2) shall continue until terminated in accordance with law, clause 18.1, or until one party gives the other party at least four weeks’ written notice to terminate the Contract in which case the Contract shall expire on the date four weeks after written notice to terminate is delivered to the other party.
15.2 — 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 which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;
- b — the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that the other party’s conduct is inconsistent with the other party having the intention or ability to give effect to the terms of the Contract; or
- c — 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, or if the party is an individual, a petition is presented in relation to that party’s bankruptcy, or if any step or action in this clause 15.2(c) is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- d — the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of the other party’s business; or
- e — the Affiliate ceases to produce or distribute generally the Products; or
- f — the other party is in breach of its compliance obligations in clause 10.
15.3 — Without prejudice to any other rights or remedies to it may be entitled, Filtru may terminate the Contract with immediate effect, suspend the Services, and/or remove the Affiliate Materials from the Site without liability to the Affiliate by giving written notice to the Affiliate if:
- a — there is a change of control of the Affiliate within the meaning of section 1124 of the Corporation Tax Act 2010;
- b — the Affiliate fails to pay any amount due under the Contract within 7 days of the due date for payment (and such failure to pay is not remedied within 14 days); or
- c — the Affiliate materially breaches the Sales Contract with the Customer (and such breach if capable of remedy is not remedied within one Business Day).
16. Consequences of termination
16.1 — Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
16.2 — On termination of the Contract:
- a — if and to the extent that the Commercial Agents (Council Directive) Regulations 1993 (as amended from time to time) apply, and provided that Filtru gives notice of its intention as required thereunder, Filtru shall, unless any of the circumstances mentioned in Regulation 18 of those Regulations applies, have the right to be indemnified as provided in Regulation 17 of those Regulations;
- b — Filtru shall cease to sell the Products and shall remove the Affiliate and the Affiliate Material from the Site;
- c — Filtru shall immediately cease to describe itself as an agent of the Affiliate;
- d — Filtru may transfer any Customers that were customers of the Affiliate to another supplier;
- e — all licences granted under the Contract shall immediately terminate, and the Affiliate shall immediately cease to use all of the Services and/or the Software; and
- f — Filtru may destroy or otherwise dispose of any of the Affiliate Data in its possession, unless Filtru receives, no later than ten days after the effective date of termination of this Agreement, a written request for the delivery to the Affiliate of the then most recent back-up of the Affiliate Data. Filtru shall use reasonable commercial endeavours to deliver the back-up to the Affiliate within 30 days of its receipt of such a written request, provided that the Affiliate 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 Affiliate shall pay all reasonable expenses incurred by Filtru in returning or disposing of Affiliate Data.
16.3 — On termination of the Contract, the provisions of clause 9 shall continue in force in relation to all sales of the Products where the sale has been concluded before the date of termination.
16.4 — On termination of the Contract, the following clauses shall continue in force:
- a — clause 12.1;
- b — clause 13;
- c — clause 14; and
- d — clause 18.3.
17. Data protection
17.1 — Definitions:
- 24 — Agreed Purposes: the Affiliate carrying on its obligations under the Sales Contract and Filtru and the Affiliate carrying out their respective obligations under the Contract.
- 25 — Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
- 26 — Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
- 27 — Permitted Recipients: The parties to the Contract, the employees of each party, any third parties engaged to perform obligations in connection with the Contract.
- 28 — Shared Personal Data: the personal data to be shared between the parties under the Contract. Shared Personal Data shall include the following categories of information relevant to the following categories of data subject:
- 28a — Identity data such as: first name, maiden name, last name, username or similar identifier, marital status, title, date of birth and gender;
- 28b — Contact data such as: email address, mobile phone number, residential address and location; and
- 28c — Financial data.
17.2 — Shared Personal Data. The provisions which follow set out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes. Each party shall:
- a — ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
- b — give full information to any data subject whose personal data may be processed under the Contract of the nature such processing. This includes giving notice that, on the termination of the Contract, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Data Recipients, their successors and assigns;
- c — process the Shared Personal Data only for the Agreed Purposes;
- d — not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
- e — ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by the Contract;
- f — ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
- g — not transfer any personal data received from the Data Discloser outside of the European Economic Area unless the following conditions are fulfilled:
- i — complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
- ii — ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
17.3 — Each party shall comply with the Data Protection Legislation and agrees that any material breach of the Data Protection Legislation shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate the Contract with immediate effect.
18. General
18.1 — Force Majeure clause 8.6, 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.
18.2 — Assignment and other dealings.
- a — The Affiliate shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without Filtru’s prior written consent.
- b — Filtru may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
18.3 — Confidentiality.
- a — Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 18.3(b).
- 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 18.3(b); and
- ii — as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- b — No party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
18.4 — Entire agreement.
- a — The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- b — Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
18.5 — 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).
18.6 — Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
- a — Waive that or any other right or remedy.
- b — Prevent or restrict the further exercise of that or any other right or remedy.
18.7 — Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
18.8 — Notices.
- a — Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first-class post or other next working day delivery service, or by commercial courier, or by email.
- b — A notice or other communication shall be deemed to have been received, if delivered personally, when left at the address referred to in clause 18.8(a), if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting, if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or if sent by email, one Business Day after transmission.
- b — The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
18.9 — Third party rights. No one other than a party to the Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
18.10 — Governing law. This agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
18.11 — Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
