General Terms and Conditions

Between

PARTIES

(1)

Everything DM LIMITED (Company No 3244074) whose registered office is at 8 Arlington Court, Whittle Way, Arlington Business Park, Stevenage, SG1 2FS, UK (“EDML”); and

(2)

The person/entity/firm/company either (i) instructs EDML to create and manage their marketing campaign, or (ii) purchase of Goods ("Customer")

RECITALS

(1) EDML engages in the business of supplying business and consumer data for the purposes of direct marketing. All data is supplied strictly under licence.
(2) EDML has a respected relationship with the UK's leading list owners who hold a number of proprietary databases of marketing information which EDML wishes to make available to the customers, under prescriptive directions from the List Owners as set out in Clause 4.
(3) The Customer hereby acknowledges EMDL’s obligations as Joint Data Controller with List Owners; and hereby guarantees to uphold the prescriptive instructions of the List Owners.
(4) The Customer warrants that they will exercise all reasonable precautions to prevent others under their control from violating any term of this Agreement.
(5) Parties agree that any third party services used to fulfil this transaction will be covered by the Terms and Conditions of the originating service vendor. Any statements that conflict with EDML Terms and Conditions will be superseded by EDMLs Terms and Conditions.

1.

DEFINITIONS AND INTERPRETATIONS

1.1 Access Fee means an amount payable to EDML which allows the Customer access to all Sites or a limited number thereof;
1.2 Agent means a mailing house, fulfilment house, computer bureau or other agent working on the Customer’s behalf;
1.3 Agreement means this agreement between the parties including the Schedules (and any annexes, attachments or documents incorporated therein by reference) and any Order forms issued pursuant to this agreement;
1.4 Charges means the prices, rates, costs and charges detailed in the Order form;
1.5 Code means all or any part of the pages, scripts, controls, wizards and any other parts which make up the Sites;
1.6 Confidential Information means all information of any nature received by either party relating to the business of the other party which is confidential and proprietary in nature regardless of whether or not it is marked as such;
1.7 Content shall mean all text, data, images and other content and/or materials provided by the Customer or on the Customer’s behalf by third parties to EDML for the purpose of conducting and managing the marketing campaign are and shall remain the Customer’s exclusive property;
1.8 Customer means an organisation who contracts with EDML for the use of EDML’s Sites or the purchase of a licence to use the Data and/or for the services in terms of Engage for themselves or on behalf of a third party;
1.9 Customer Data means personal data supplied by the Customer to EDML to enable EDML to carry out the Services.
1.10 Data means personal data or other items either selected and downloaded (whether directly or by secure transfer) by the licenced Customer or in carrying out of Services by EDML;
1.11 Data Controller has the meaning set out in Data Protection Legislation;
1.12 Data Subject an individual who is the subject of Personal Data;
1.13 Data Destruction Declaration means a declaration that all Data received from EDML has been destroyed
1.14 Data Destruction Declaration Data Protection Legislation means all applicable data protection and privacy legislation including Data Protection Act 2018, the Regulation (EU) 2016/679 (the "General Data Protection Regulation" or "GDPR") and the Privacy and Electronic Communications (EC Directive) Regulations and any guidance or codes of practice issued by any Regulator from time to time (all as amended, updated or re-enacted from time to time).
1.15 Deduplication means the removal of duplicate or redundant data elements from Data or Customer Data;
1.16 Deliverables means the licenced purchase to access a Site or use Data and/or the particular Services;
1.17 Email Broadcast means the sending of an email message to recipients whose email address is contained in the Email Data, or to recipients whose email address is contained in the Customer Data.
1.18 Email Data means the E-mail addresses selected from the Sites and licenced by the Customer and subsequently either downloaded (whether directly or by secure transfer) by the Customer or used by EDML to carry out an Email Broadcast under instruction on Customer’s behalf.
1.19 Engage means a managed solution where the Customer instructs EDML to licence Data and execute their marketing message. All Data is licenced from the List Owner on a single use basis immediately prior to the campaign being fulfilled.
1.20 Goneaway means a failure in delivery of Marketing Communications due to a permanent error in the Data.
1.21 Good Industry Practice means in respect of the Customer, the exercise of reasonable skill, care and diligence to be expected of a reasonably and suitably skilled and competent person providing deliverables or services to a customer similar to EDML;
1.22 Hard Bounce means the permanent failure in the attempt to deliver an email during an Email Broadcast
1.23 Intellectual Property Rights means all copyright and rights in the nature of copyright, design rights, patents, trademarks, data base rights, applications for any of the above, moral rights, know-how, domain names or any other intellectual or industrial property rights (and any licences in connection with any of the same) whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world, hereafter ‘IPR’;
1.24 List Owner means the owner or licensor of the Data.
1.25 Marketing Communications means the piece of work (including the Content) utilised in the Customer’s preferred communication method;
1.26 OCR means Optical Character Recognition scanning software used by a postal service provider to allow the mail which has the address written or printed in the appropriate size and font, to be machine sorted;
1.27 Order Form means an order placed from time to time by the Customer on their own behalf or that of another for the provision of the Deliverables;
1.28 Personal Data have the meaning as set out in Data Protection Legislation;
1.29 Processing and Process have the meaning as set out in Data Protection Legislation;
1.30 Print and Post means the printing and sending by mail of an item (such as, but not limited to, a letter or postcard) to recipients whose address is contained in the Data, or to recipients whose address is contained in the Customer Data;
1.31 Regulator means the Information Commissioner's Office (ICO) and the European Data Protection Board or any successor body to either regulator from time to time and any other supervisory authority with jurisdiction over either party;
1.32 Services means activities carried out by EDML including but not limited to the Deduplication of Data or Customer Data; the carrying out of Email Broadcasts; the carrying out of Print and Post Campaigns;
1.33 Site means any website owned or operated by EDML;
1.34 Soft Bounce means the temporary failure in the attempt to deliver an email during an Email Broadcast. This can be known as a spam bounce
1.35 Sub-Contractor means any subcontractor of EDML engaged to provide the whole or any part of the Deliverables;
1.36 Subscriber means in the case of a company or other organisation, the company or organisation whose name appears on the bill from the telecommunications service provider and not any individual employee of the company or organisation; or in the case of a household, the person whose name appears on the bill from the telecommunications service provider.
1.37 Term means the period during which this Agreement continues in force;

2.

TERM

2.1 This Agreement shall commence on the Commencement Date, and shall (except as expressly provided otherwise in this Agreement) continue in force for 12 months from the Commencement Date (“Initial Term”), unless terminated by EDML in terms of this Agreement or by the Customer on the delivery of their 3 months written cancellation notice.

3.

INVOICING AND PAYMENT TERMS

3.1 For the duration of the Initial Term, EDML will collect on the 1st business day of each month by way of Direct Debit or on the agreed date on the preferred method of collection as stipulated in the Order Form (“monthly fee”), the first such invoice to be dated the commencement date. Any other charges (e.g. for ad-hoc additional prospect Data) will be invoiced as they arise.
3.2 In the event that payment made by the Customer for the Data is by cheque or credit card or otherwise is subsequently reversed by the Customer, their bank, their card issuer or otherwise, all and any rights the Customer and/or their client may have in the Data and Services shall immediately cease. The full amount for Data and related Services remains due to EDML and EDML reserves the right to use all and any applicable legal remedies to recover payment from the Customer as well as any additional costs incurred by EDML in so doing
3.3 In the event that the Customer purchases Data or Services against account facilities provided by EDML and the invoice for the purchase of this Data and Services issued to the Customer by EDML remains unsettled more than 30 days past its due date, all and any rights the Customer and/or their client may have in the Data and any related Services shall immediately cease. Payment for the full amount remains due to EDML and EDML reserves the right to use all and any applicable legal remedies to recover payment from the Customer as well as any additional costs incurred by EDML in so doing.

4.

LIST OWNER'S SPECIFIC LICENCE TERMS

4.1 If any conflict arises between any other term of this Agreement and the List Owner's specific licence terms in this Clause 4, the List Owner's specific licence terms shall prevail.
4.2 The Data is owned at all times by the List Owner and copyright and intellectual property rights in the Data shall at all times remain vested in the List Owner.
4.3 The List Owner reserves the right to require the Customer to cease or modify use of Email Data where the List Owner discovers that the E-mail Content is in the List Owners reasonable opinion inappropriate or the Customer have misled the List Owner about the E-mail Content.
4.4 The List Owner's has the following specific licence terms for Data brokered by EDML
  4.4.1 If licencing Data from Omnis Data Ltd. the following terms apply
  a) The Customer may not use the Data for sales / marketing of Mechanical Breakdown Insurance (“MBI”) or other extended warranty automotive and related insurance products (gap, vehicle, keys, tyres, MOT).
  b) The Customer may not use the Data for sales / marketing of adult products / offshore products or services / pay day lending products or services.
  c) The Customer may not use the Data for sales / marketing of 'cash for gold' activities or similar products or services.
  d) The Customer may not use the Data for sales / marketing of 'payment protection insurance (“PPI”) mis-selling' claims or similar products or services.
  e) Any e-mail Broadcast must be carried out by EDML or other third party agreed in writing by EDML and List Owner. Email Data may not be downloaded by The Customer. E-mail Content will be required to include the provided headers and footers in all instances. These headers and footers detail the relationship between EDML, the Client, the List Owner to the recipient offering a clear opt-out of future marketing messages.
  4.4.2 If licencing Data from D&B UK the following terms apply.
  a) The Data is owned at all times by D&B UK or its licensors and copyright in the Data shall at all times remain vested in D&B UK or its licensors (as appropriate).
  b) Where the Customer procure the use of Email Data to send e-mails, the Customer must ensure that the recipient is given a simple means to opt-out of receiving further communications and the Customer must forward to the List Owner at s&msgbr@dnb.com the details of any recipients who do exercise their right to opt-out, including any comments that may be made by such recipients in an excel or comma separated format.
  4.4.3 If licencing Data from Emailmovers the following terms apply.
  a) The Customer must prefix their E-mail Content prior to Broadcast with 'Your information has been provided by www.5mins.co.uk '.
  b) The Customer must suffix their E-mail Content prior to Broadcast with 'This email has been sent to you in accordance with the Privacy and Electronic Communications (EC Directive) Regulations 2003 governing electronic advertising to 'Corporate Bodies'. If you no longer want to receive marketing messages from [insert Customer company name] click here, or to be removed from all future mailings from www.5mins.co.uk please email deletions@5mins.co.uk with your full contact details'.
  4.4.4 If licencing Data from Experian - Business Marketing the following terms apply
  a) The Customer acknowledges that the Information may contain Data licensed to Experian by third parties (in respect of data licensed by each such third party a ''Third Party Database'') and that the List Owner is contractually restricted from sub-licensing the whole or substantially the whole of any Third Party Database in one single selection of records or in several selections to a single sub-licensee either alone or together with its affiliates. The List Owner reserves the right (without incurring any liability to the Customer) to withhold performance of the Services and/or the provision of any Data to the Customer to the extent that the List Owner reasonably considers this to be necessary in order to comply with this restriction and/or any other obligation of the List Owner to any such licensor of a Third Party database.
  b) For Data purchased from Experian's 'Credit Ready' lists, the following applies: 'Credit Ready' is a [systemised] screening service that is intended to be used for marketing purposes only. For the avoidance of doubt, Experian Limited disclaims all implied or express conditions and gives no representations or warranties in relation to the use of 'Credit Ready' for any other purposes (including but not limited to for risk management purposes).
  c) For Email Data, the Customer must operate and maintain an in-house suppression file, listing recipients who have indicated that they do not wish to receive further commercial communications via email. The Customer must screen email-marketing lists against in-house suppression files prior to each email marketing campaign. The Customer must not send Marketing Communications to business email addresses for goods or services that the recipient would only purchase in an individual capacity.
  d) For Email Data, the Customer must provide to the email recipient a simple mechanism by which to unsubscribe / opt out of receiving further email marketing messages from the Customer.
  4.4.5 If licencing Data from Intelligent Data Group the following terms apply
  a) For Email Data, the Customer must operate and maintain an in-house suppression file, listing recipients who have indicated that they do not wish to receive further commercial communications via email. The Customer must screen email - marketing lists against in-house suppression files prior to each email marketing campaign. The Customer must not send Marketing Communications to business email addresses for goods or service that the recipient would only purchase in an individual capacity.
  b) For Email Data, the Customer must provide to the email recipient a simple mechanism by which to unsubscribe / opt out of receiving further email marketing messages from the Customer and all such opt-outs should be provided back to List Owner by email to unsubscribe@intelligentds.co.uk
  c) The List Owner reserves the right to require the Customer to cease or modify use of the Email Data where the List Owner discovers that the Email Content is in the List Owners reasonable opinion inappropriate or the Customer has misled the List Owner about the Email Content.
  4.4.6 If licencing Data from Oscar Data the following terms apply
  a) Only reasonable attempts should be made by the Customer or their Client to promote their/their Client's services/products, repeated calls/faxes and/or any undue pressure being made to any recipient(s) will result in the usage license being cancelled.
  b) All messages should make the content of the e-mail clear in the subject line.
  c) All message should carry a signature, giving full contact details of the sender/sender's organisation.
  d) All messages should carry a clear and unambiguous opportunity for recipients to 'opt-out' (not receive any further emails) from future electronic communication.
  d) The Customer or their Client should maintain a 'stop list' of contacts that have chosen to opt-out from the Customer or their Client’s list. The stop list should be kept and updated directly either by the Customer or their Client or by their Agent.
  4.4.7 If licencing Data from The Schools Marketing Company the following terms apply
  4.4.7 Where the Customer procures the use of Email Data to send e-mails, the Customer must ensure that the recipient is given a simple means to opt-out of receiving further communications and must forward to the List Owner at info@schoolsmarketingcompany.co.uk the details of any recipients who do exercise their right to opt-out, including any comments that may be made by such recipients in an excel or comma separated format.

5.

PRESCRIBED USAGE OF DATA

5.1 The usage of the Data is strictly and specifically governed by the terms of this Agreement, therefore the Customer warrants that
  5.1.1 The Customer will operate within the perimeters as dictated by the List Owners and this Agreement; and
  5.1.2 When acting on behalf of a third party, the Customer will put in place contractual provisions equivalent to those in place between the Customer and EDML under this Agreement.
5.2 The Data comprises proprietary information intellectual property rights in which are owned by the List Owner or others. The Customer acknowledge and agree that the Data is proprietary to List Owner and comprises (a) works of original authorship (b) confidential and trade secret information and (c) information that has been created, developed and maintained by List Owner at great expense of time and money, such that misappropriation or unauthorised use by others for commercial gain would unfairly harm List Owner. The Customer agrees that they will not commit or permit any act or omission by their agents, employees, or any third party that would impair List Owners copyright, database rights or other proprietary and intellectual rights in the Data.
5.3 The Customer acknowledges and agrees that the Data may only be used in mailing, phoning, faxing or Email Broadcasting (to the extent permitted by this Agreement) for marketing and promotional purposes only, relating to the Customer’s business or that of their client.
5.4 Where Data (excluding Email Data) is selected for single use, this Data may be used once only within a set period of 3 months or as specified below by the List Owners from the date of this Agreement and only for the purposes allowed by this Agreement:
  5.4.1 Omnis - 1 Month
  5.4.2 D&B UK - 12 Months
  5.4.3 Emailmovers - 12 Months
  5.4.4 Experian - Business Marketing - 6 Months
  5.4.5 Intelligent Data Group - 6 Months
  5.4.6 Oscar Data - 1 Month
  5.4.7 The Schools Marketing Company - 6 Months
5.5 Where Data (including Email Data broadcasted by the Customer only) is selected for multiple use, this Data may be used a number times within a set period of months (detailed below) from the date of this Agreement and only for the purposes allowed by this Agreement:
  5.5.1 Omnis - 3 uses within a 4 month period
  5.5.2 D&B UK - Unlimited uses within a 12 month period
  5.5.3 Emailmovers - Unlimited uses within a 12 month period
  5.5.4 Experian - Business Marketing - Unlimited uses within a 12 month period
  5.5.5 Intelligent Data Group - Unlimited uses within a 12 month period
  5.5.6 Oscar Data - Unlimited uses within a 12 month period
  5.5.7 The Schools Marketing Company - Unlimited uses within a 12 month period
5.6 Where Email Data is-
  5.6.1 licenced for single use, it may be used once only within a 1 month period from the date of this Agreement and only for the purposes allowed by this Agreement; and
  5.6.2 licenced for multiple uses and Email Broadcasting is carried out by EDML or by the Customer, it may be used the same number of times in the same time period as other Data (see 5.5 above). This Email Data may be used only for the purposes allowed by this Agreement.
5.7 EDML will where necessary, provide suppression files which should be removed immediately from any original copies and backups held under this Agreement. A Data Destruction Declaration will be provided with any suppression file and must be returned within 5 days.
5.8 EDML may request a copy of the Customer’s Marketing Communications (i.e. mailing piece, telephone script and/or email message for approval prior to purchasing. If required, the Customer agrees that they will not modify their Marketing Communication without the further approval of EDML.
5.9 The Customer warrants that in any Marketing Communications by the Customer, the Content shall not be libellous, obscene, slanderous, false, misleading, defamatory, unethical, pornographic, or illegal, or infringe any third party rights or contain malware or any other malicious code or script, or any downloadable executable software. The Customer or any third party acting on their behalf will not take any action that could cause EDML or List Owner to be blacklisted by an internet service provider or e-mail provider, and the Customer will cooperate with EDML or List Owner as reasonably necessary if EDML or List Owner is so listed as a result of the Customer’s actions.
5.10 The Customer may make a single copy of the Data in machine readable or printed form for backup purposes and in support of their own use of the Data or that of their client. This Data must be deleted no later than 28 days after the licence expires and a Data Destruction Declaration signed and returned to EDML.
5.11 The Customer may not use, copy, modify or transfer the Data or any copy, modification or merged portion, in whole or in part, except as expressly provided for in this Agreement.
5.12 The Customer may use the Data subsequently in respect only of those individuals and/or businesses which become the Customer’s bona fide customers as a result of their marketing activity carried out using the Data and in accordance with this Agreement.
5.13 EDML will provide Deduplication on a best efforts basis only when Customer Data is provided for suppression. Deduplication is an inexact science as the same company/address may be expressed or spelt differently in different databases. EDML use "fuzzy matching" to assign a unique Royal Mail Address Key to each household address and each company/address combination so that where possible such addresses are considered as the same and the duplicate removed. However, a small number of "not-quite-duplicates" may exist and these will not be removed - this is unavoidable and the Customer accepts that no replacement Data or refund will be given in this case. In a limited number of circumstances (e.g. a postcode changes or a building changes to multi-occupancy) the Royal Mail Address Key may change over time, in which case EDML are unable to recognise such addresses as being the same and are unable to remove the duplicate - this is unavoidable and the Customer accepts that no replacement Data or refund will be given in this case.
5.11 EDML do not permit or undertake the broadcast of SMS messages under this Agreement.

6.

SITE AVAILABILITY

6.1 EDML endeavours to make the Sites available at all times on a best efforts basis.
6.2 The Customer acknowledges and accepts the responsibility for their actions while using the Sites, including the selection of Data, the purchase, download, manipulation, printing and use of the Data and all results from such use.
6.3 The Customer accepts that from time to time the Sites may not be available due to circumstances outside the control of EDML or to allow maintenance or upgrades to be carried out by EDML. In the event that access to the Sites has been granted by EDML through the payment by the Customer of an Access Fee, the Customer accepts that no refund of all or any part of the Access Fee shall be due as a result of Site non-availability howsoever caused.

7.

THE PURCHASE OF LICENCED DATA ONLY

7.1 Upon purchase, the Data is licensed non-exclusively for the Customer’s use only. If the Customer is a company, use by or on behalf of any holding company, sister company or subsidiary company is specifically excluded.
7.2 The Customer may not resell, transfer, disclose or permit the use of the Data to or by any 3rd party, unless
  7.2.1 The Customer has purchased the licenced Data to be used by their agent who will be acting on their half for marketing purposes; or
  7.2.2 The Customer, in their role as an approved reseller, has been approved by EDML to resell the licenced Data to the Customer’s clients.
7.3 Where the Customer is an approved reseller, the purchased licensed Data is limited to the particular client for whom the Data was purchased and may not be used for other clients or third parties.
7.4 The Customer will have in place a supplementary agreement where contractual data processing provisions are equivalent to those in place between the Customer and EDML under this Agreement and undertakes to use all reasonable endeavours to ensure that their client, servant or agent complies with the terms of this Agreement as if it a party hereto.
7.5 The Customer will remain liable for the Processing activities of the Customer’s agent and/or client and hereby indemnifies the List Owner against any loss or claim (i) arising from this Agreement as a result of any act or omission on the part of agent or client; and (ii) arising from any failure by the Customer, agent or client to comply with the terms of this Agreement.

8.

ENGAGE

  General
8.1 On creation of a new account, the Customer will provide EDML with the necessary business contact and identification information in order for the details to be merged into the Content. (see Schedule A).
8.2 The Customer will inform EDML of any changes that are required to the submitted information at least 7 days before a scheduled completion date for a campaign. Any delay to the notification of changes will mean the campaign in process will not take any changes into effect.
8.3 EDML in conjunction with the Customer will arrange the prospect Data to be selected and set up for each individual campaign, making the necessary personalisation changes and schedule the postage/broadcast for the agreed date and/or time. Additional records containing a contact point for EDML and the Customer for confirmation of delivery and/or print quality (“Seed Records”).
8.4 EDML will use requested verification Seed Records for each Engage campaign plus an additional set of verification Seed Records containing details for the Customer to ensure copies of each campaign are received by the relevant members of staff at the Customer.
8.5 EDML will liaise with the Customer to acquire the approved marketing creative in good time to ensure the campaigns are fulfilled on behalf of the Customer.
8.6 EDML will use the information provided by the Customer as detailed in Clause 8.1 to personalise the marketing creative where necessary i.e. first name, surname, job title, contact details.
8.7 The Customer shall procure, at the Customer’s own expense, all necessary rights, licenses, permissions, waivers, releases and all other agreements and documentation necessary to permit use of the Content by EDML as required in connection with this Service by EDML.
8.8 The Customer warrants that all materials delivered by the Customer to EDML in connection with any campaign services shall not infringe any copyright, patent, trade secret or other proprietary right held by any third party. The Customer is responsible for ensuring the legality of all text, data and images, and for ensuring the accuracy and completeness of all information contained therein prior to the execution of the campaign by EDML. The Customer will indemnify EDML for any damages and/or costs arising out of infringement of this clause 8.8.
  Use Of Templates
8.9 The designs, layouts and static text and images of templates provided to the Customer by EDML shall remain the exclusive property of EDML. The Customer shall procure, at their own expense, all necessary rights, licenses, permissions, waivers, releases and all other agreements and documentation necessary to permit the use of any text and images uploaded by the Customer into these templates.
8.10 Unsubscribe messages and mechanisms as per Clause 8.14.
  Print And Post
8.11 After acceptance by The Customer of a proof copy of the Customer’s campaign provided to the Customer electronically or by other means, the Customer shall be liable for the whole cost of the campaign. Should the Customer wish to delay or cancel the execution of a campaign, EDML will endeavour on a best efforts basis to accommodate this and the Customer shall be liable for the extra costs associated with the delay or cancellation of the execution of the campaign.
8.12 EDML will not be liable in any event, including liability for negligence (except for personal injury or death), to the Customer or others for any loss or damages, lost revenue or profits, or any indirect or consequential loss or damages arising from any delay in printing or postal delivery howsoever caused.
8.13 Postal fulfilment costs are subject to change should the service provider increase the base rate cost of postage for OCR and or non-OCR compliant mail. Should any increase be made, EDML will increase the cost of fulfilment by the same rate or by way of reducing the number of items delivered to maintain the agreed monthly fee. Alterations to the outlined programme, for example changes to direct mail or email format i.e. letter to postcard, frequency or volume or additional templates will be subject to a price change.
  Email Broadcasts
8.14 Any Email Broadcast shall include the header and footer along with the unsubscribe mechanism provided by EDML. All unsubscribes shall be removed from the data source file by EDML and the List Owner. The relevant suppression file will be provided to any customer affected.
8.15 EDML will not be liable in any event, including liability for negligence (except for personal injury or death), to the Customer or others for any loss or damages, lost revenue or profits, or any indirect or consequential loss or damages arising from any decision by a third party broadcaster acting as a sub-contractor to EDML to refuse to carry out an Email Broadcast because of the Email Content, although EDML will at its sole discretion use its endeavours to find an alternative broadcaster.

9.

DATA QUALITY, COMPLETENESS AND REFUNDS

9.1 The Customer acknowledges the following scenarios it will be deemed to be a Goneaway-
  9.1.1 A postal address is a Goneaway if it is an address to which an item mailed cannot be delivered by virtue of the intended company or organisation or intended residential recipient never having been or no longer being at the address, or where the address is incomplete. It is evidenced by (i) the Customer mailing an item to it, (ii) the item being returned bearing a red Royal Mail 'We were unable to deliver this item because...' sticker marked as 'addressee has gone away' or 'addressee unknown' or 'address incomplete' and (iii) EDML being unable to subsequently verify the address. A mailable address is not a Goneaway for any other reason (such as marked 'refused', 'do not mail me again', 'not interested' etc.). The Customer will be asked to provide EDML with the returned mail;
  9.1.2 A telephone number is a Goneaway if (i) the Customer calls the number and (ii) it is a dead line or it is a wrong number or it is a fax number (and not shared by a phone) or the Subscriber is no longer at the number. A telephone number is not a Goneaway for any other reason (such as no answer or number engaged, an answering machine or voicemail, Subscriber not interested or refuses to talk etc.). The Customer will be asked to provide EDML with a call log or other evidence;
  9.1.3 An email address is a Goneaway if sending an email message to it results in a Hard Bounce. It is not a Goneaway for any other reason (such as, but not limited to, account disabled, mailbox full, limit on message size, anti-spam policy, firewall).
9.2 E-mail addresses are prone to frequent change, as well as being unreachable for a number of technical and other reasons (such as, but not limited to, account disabled, mailbox full, limit on message size, anti-spam policy, firewall). A much higher percentage of undeliverable e-mail is to be expected than for mail, phone or fax. Where Hard Bounces exceed the relevant percentage of the Email Data, replacement Email Data or a refund will be provided in accordance with Clause 9.7 for Hard Bounces above this level only. The Customer accepts that no replacement Email Data or refund will be given for undeliverable e-mail addresses in the Data for any other reason for non-delivery, or for hard bounces below this level. Should a Hard Bounce occur during an Email Broadcast, the Customer will be asked to provide EDML with a list of those email addresses which resulted in Hard Bounces. Summarised delivery reports, comparisons against suppression files or the unwillingness of a broadcaster to carry out an Email Broadcast will not be accepted as evidence of Hard Bounces.
9.3 The Customer accepts that the Data may contain a number of Goneaways which will not be replaced or refunded, unless the level of Goneaways exceeds the relevant percentage of the Data as set out in Clause 9.7. EDML and/or the List Owners shall have the right to remedy where the level of Goneaways have exceeded the relevant percentage or if any other fault arose in the Data by re- suppling all or relevant percentage of the Data, where possible. It shall be deemed the Customer has accepted the Data where the Customer has not notified EDML of the defect within 90 days from the date of receipt of Goneaways or 30 days of receipt in other cases.
9.4 Where Data contains name elements (such as salutation, forename, initials, surname), the Customer accepts that not all elements will necessarily be present for each record and that no replacement Data or refund will be given for incompleteness of the Data in this instance. In the case of business data wherein a named contact may comprise an individual name or job title or both and that job holders are subject to frequent change; the Customer accepts that no replacement Data or refund will be given for incorrect or missing contact names or job titles.
9.5 Replacement Data or a refund will be given for the proportion of the purchase price represented by Goneaways subject to the Customer following the procedure indicated in Clauses 9.2 to 9.9, provided
  9.5.1 the Customer has used a number of recordings in their chosen marketing method (e.g. mailed/phoned/faxed/emailed),
  9.5.2 the Goneaways fall within the relevant definition,
  9.5.3 the level of Goneaways exceeds the relevant percentage of the Data (Clause 9.7) and
  9.5.4 if the Customer has purchased the Data against account facilities provided by EDML, the Customer has settled the invoice relating to the Data within the agreed account settlement period.
9.6 The Data and contact method are not 100% Delivery Guaranteed (Clause 9.7). The Customer would need to use a minimum of 250 records or 20% of the total of number of records in the Data, whichever is the greater, in their chosen marketing method before the Customer can make a claim for replacement Data or a refund for Goneaways. In the event that there are less than 250 records in the Data, the Customer must use all the records in the Data for their chosen marketing method.
9.7 The Data is not 100% Delivery Guaranteed. For this Data, the percentages of records which must qualify as Goneaways before replacement Data or refund for Goneaways will be given are:
  9.7.1 Addresses: 6%
  9.7.2 Fax Numbers: 10%
  9.7.3 Telephone Numbers: 10%
  9.7.4 Email addresses: 20%
9.8 Other claims for replacement Data or refund for Goneaways must be made with supporting documentation (e.g. returned envelopes, call records, fax logs) within 90 days of date of purchase.
9.9 Replacement Data or refund will only be considered when the supporting documentation, which must include the invoice number of the purchase, is provided to the Customer Support, EDML Ltd,
9.10 Only one claim may be made for each purchase. A separate claim must be made for each purchase. For further assistance, The Customer should contact the EDML Customer Support team on +44 (0)1462 437555.
9.11 The Customer should contact the EDML Customer Support team if they are of the impression that a replacement Data or refund is due. Any credit card handling fees will not be refunded unless the reason for the refund is due to error on EDML’s part. In the event that The Customer is provided with a Data Destruction Declaration by EDML, no refund will be given until this has been signed by the Customer and returned to EDML.
9.12 Until and unless a refund has been agreed by EDML, payment for the full amount remains due to EDML and EDML reserves the right to use all and any applicable legal remedies to recover payment from the Customer as well as any additional costs incurred by EDML in so doing.

10.

DATA PROTECTION

  General
10.1 The parties agree their respective role in relation to Personal Data processed in connection with this Agreement. The parties recognise that
  10.1.1 Where the licence for the Data is only purchased, EDML and the Customer determine the manner and purpose for which personal data is processed in connection with this Agreement and therefore that they are Controllers in this context.
  10.1.2 Where Engage is purchased, EDML remains the Controller although providing the Engage Services to and behalf of the Customer.
  10.1.3 The Customer will become the Controller of the Personal Data at the point when the Data subject responds directly to the Customer on receipt of the Marketing Communications.
10.2 Each party shall comply with its respective role obligations set out in Clause 10.1 and under the Data Protection Legislation. The parties shall provide each other with all reasonable assistance to facilitate compliance by both parties with the Data Protection Legislation. Neither party shall do or omit from doing anything that would put the other party in breach of the Data Protection Legislation.
10.3 Details of the Personal Data to be shared under this Agreement shall be recorded in the data sharing decision form as set out at Schedule A. The parties shall process the data in accordance with Schedule A.
10.4 Parties shall maintain accurate written records of the Processing it undertakes in connection with this Agreement and on request provide the records to the requesting Party or the Regulator.
10.5 On receipt of any request or enquiry from a Regulator that relates to Personal Data processed in connection with this Agreement:
  10.5.1 The receiving party shall promptly notify and consult with the other party and provide the other party with a copy of the request or enquiry;
  10.5.2 The other party shall provide the receiving party with all reasonable assistance to allow the required party (as determined by their respective roles as set out in Clause 10.1) to respond to the Regulator;
  10.5.3 The receiving party acknowledges the duty to respond to the Regulator and the choice in determining the content in the response:
  a) In terms of Clause 10.1.1 rests with the receiving party, whereas
  b) In terms of Clause 10.1.2 rests with EDML; and
  10.5.4 The receiving party shall promptly notify the other party and provide the other party with a copy of any further correspondence from the Regulator regarding the Processing of Personal Data in connection with this Agreement.
10.6 Unless otherwise expressly stated in this Agreement each party shall bear its own costs of complying with the obligations set out in this Agreement.
  Purchase of Data only
10.7 The parties agree that each shall be a Data Controller in relation to Personal Data exchanged under this Agreement. Each party shall comply with its obligations as a Data Controller under the Data Protection Legislation.
10.8 When processing Personal Data under this Agreement, all parties take all reasonable technical and organisational precautions and measures to preserve the confidentiality, integrity, availability and resilience of Personal Data and prevent any unauthorised, unlawful or accidental processing or disclosure taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of the Data Subjects.
10.9 All necessary technical and organisational precautions and measures in terms of Clause 10.7, shall include, but not be limited to:
  10.9.1 Encrypting the Personal Data stored on any mobile media or transmitted over public or wireless networks;
  10.9.1 Implementing and maintaining business continuity, disaster recovery and other relevant policies and procedures to ensure:
  a) the confidentiality, integrity, availability and resilience of processing systems and services; and
  b) the availability and access to Personal Data in a timely manner in the event of a physical or technical incident
  10.9.3 Ensuring that all employees and contractors who are involved in the Processing of Personal Data are trained in the policies and procedures set out in Clause 10.8 and are under contractual or statutory obligations of confidentiality concerning Personal Data;
  10.9.4 Pseudonymise Personal Data on request by any of the parties;
  (the "Security Measures”).
10.10 The Security Measures shall be regularly tested by all parties to assess the effectiveness of the measures in ensuring the security, confidentiality, integrity, availability and resilience of the Personal Data and shall maintain records of the testing.
10.11 The Customer shall notify the EDML promptly (but in any event within 24 hours) should it:
  10.11.1 receive notice of any complaint made to a Regulator or any finding by a Regulator in relation to its Processing of Personal Data, whether it is Customer Data or otherwise;
  10.11.2 be under a legal obligation to process the Personal Data, other than under the instructions of the EDML. In which case it shall inform the EDML of the legal obligation, unless the law prohibits such information being shared on important grounds of public interest;
  10.11.3 receives any request on behalf of a Data Subject of the Personal Data, exercising their rights under the Data Protection Legislation;
  10.11.4 become aware that in following the instructions of the EDML, it shall be breaching Data Protection Legislation;
  10.11.5 become aware of any circumstance which may cause the EDML to breach this Clause 10 or which may cause either party to breach the Data Protection Legislation
10.12 Should the Security Measures be breached, The breached party will notify the other party promptly (and in any event no later than 24 hours of discovery) if it becomes aware of any actual, suspected or threatened unauthorised exposure, access, disclosure, Processing, use, communication, deletion, revision, encryption, reproduction or transmission of any component of the Customer Data or the Data, unauthorised access or attempted access or apparent attempted access (physical or otherwise) to the Customer Data or the Data or any loss of, damage to, corruption of or destruction of such Personal Data ("Security Incident");
10.13 The notification in Clause 10.10 shall include:
  10.13.1 The nature of the breach, including the categories and approximate number of Data Subjects and records concerned;
  10.13.2 The contact at the breached party who will liaise with the other party concerning the breach;
  10.13.3 The remediation measures being taken to mitigate and contain the breach.
10.14 In the event of a Security Incident, the Customer shall at its sole discretion determine whether to provide notification to the Data Subject, any third party or Regulator and EDML shall not notify the Data Subject, any third party or Regulator unless such disclosure by EDML is required by law or is otherwise approved by the Customer. The Customer shall approve all notifications to Data Subjects, third parties or Regulators which it determines are required or appropriate.
10.14 The Customer acknowledges and warrants that the Customer will not transfer or process any Data received from EDML or the List Owners outside the European Economic Area.
10.16 When one party is transferring Personal Data (the "Disclosing Party") to the other party (the "Receiving Party"), the Disclosing Party shall ensure that any Personal Data that is transferred:
  10.16.1 has been collected in accordance with the Data Protection Legislation; and
  10.16.2 the privacy notice given to the relevant Data Subject entitles the Receiving Party to Process such Personal Data for the purposes set out in this Agreement.:
10.17 In the event that the Receiving Party determines that it is required to provide its own privacy notice to Data Subjects, the Disclosing Party will provide accurate and up to date contact details for the Data Subjects whose Personal Data has been transferred under this Agreement.
10.18 Where the Disclosing Party relies on the consent of the Data Subject to meet its obligations under clause 10.12, the Disclosing Party warrants that:
  10.18.1 the consent entitles the Receiving Party to Process the Personal Data for the purposes set out in this Agreement;
  10.18.1 the consent has been collected in accordance with the Data Protection Legislation; and
  10.18.1 it will promptly notify the Receiving Party in the event that the relevant Data Subject withdraws his or her consent.
10.19 The Received Party shall not Process Personal Data transferred under this Agreement for any purposes other than those set out in this Agreement nor disclose Personal Data to any third party except as required or permitted by this Agreement;
10.20 Without limitation to clause 10.2 each party shall:
  10.20.1 implement and maintain appropriate technical and organisational measures to protect such Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction, damage or unavailability;
  10.20.2 ensure that employees who have access to Personal Data have undergone training in the Data Protection Legislation and in the care and handling of Personal Data; and
  10.20.3 notify the other party promptly of any known breach of technical and organisational security measures where the breach has affected or could have affected the processing of Personal Data under this Agreement.
10.21 The parties acknowledge that data subjects may exercise their GDPR rights against either or both parties. Each party shall provide reasonable assistance to the other to facilitate the handling of such claims. Each party shall bear any costs it incurs in providing such assistance.
10.22 In the event of a request relating to Personal Data transferred under this Agreement from a Data Subject for the rectification or erasure of Personal Data or restriction of Processing, the party who has received the request shall determine whether such request is valid under the Data Protection Legislation. In the event that the party which has received the request determines that the relevant Personal Data should be rectified or erased or that any Processing shall be restricted, it shall notify the other party promptly. The party receiving the notification shall rectify or erasure the Personal Data or restrict Processing (as applicable) promptly.
10.23 This Agreement may be suspended or terminated if in the reasonable opinion of either party the other party is unable to meet their obligations under it.
  Engage
10.24 EMDL, as the data controller, warrants and undertakes to process the Personal Data that:
  10.24.1 it shall only Process Personal Data in accordance with the instructions of the Customer which are set out in Schedule A of this Agreement, or as provided in writing by the Customer to EDML from time to time;
  10.24.2 it shall comply with its obligations under the Data Protection Legislation when Processing Personal Data; including, but not limited to:
  a) completing and reviewing data protection impact assessments;
  b) implementing reasonable measures to mitigate against any data protection risks;
  c) implementing such technical and organisational measures to enable EDML to respond to requests from Data Subjects exercising their rights under the Data Protection Legislation which shall include but not be limited to:
    (i) such technical and organisational measures to enable EDML to respond to requests from Data Subjects exercising their rights under the Data Protection Legislation which shall include but not be limited to:
    (ii) deleting and/or rectifying Customer Data in response to a request on behalf of a Data Subject.
  d) assisting with any enquiries from Regulators.
  10.24.3 it shall, where reasonably necessary, assist and co-operate with the Customer as requested by the Customer from time to time to ensure the Customer's compliance with its obligations under the Data Protection Legislation.
10.25 EDML may at its sole discretion use the services of sub-contractors to fulfil its obligations under this Agreement.

11.

INTELLECTUAL PROPERTY RIGHTS

11.1 All intellectual property rights, including copyright, database rights or any such other rights as are created by the Copyright and Rights in Databases Regulations 1997 and any subsequent re-enactment thereof relating to the Sites shall remain EDML's exclusive property, whereas it relating to the Customer shall remain the Customer’s exclusive property.
11.2 During the Term EDML may use trademarks, logos and other devices owned by The Customer on the Sites and on associated publicity material in accordance with The Customer's prior written instructions. EDML acknowledges that these trademarks, logos and other devices and all goodwill associated with them are the exclusive property of The Customer or its associated companies and undertakes to cease to use them on termination of this Agreement.
11.3 EDML will not use or authorise the use of any trademarks, logos and other devices owned by The Customer in any way which is prejudicial to the reputation or interests of The Customer.
11.3 During the Term the Customer may use the EDML name, logo, trademarks and other devices owned by EDML on publicity material in accordance with EDML's instructions. The Customer acknowledges that the EDML name, logo, trademarks and other devices and all goodwill associated with them are the exclusive property of EDML and undertakes to cease to use them on termination of this Agreement.
11.3 The Customer will not use or authorise the use of the EDML name, logo, trademarks and other devices owned by EDML in association with any other trademark or in any way which is prejudicial to the reputation or interests of EDML or to the status or protection of the EDML name, logo, trademarks and other devices.

12.

WARRANTIES

12.1 Each party warrants to the other that it is fully authorised to make this Agreement and that it has obtained all necessary authorities permits and licenses required in all applicable jurisdictions to enable it to perform its obligations and exercise its rights under this Agreement.
12.2 The Customer warrants to EDML and List Owner that they shall at all times (i) maintain the confidentiality and integrity of any personal data received from or on behalf of EDML or List Owner; (ii) implement and maintain appropriate technical and organisational security measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of or damage to personal data in accordance with all appropriate Data Protection legislation; and (iii) they shall ensure that any uses to which the Data is put comply with the Codes of Practice of the appropriate advisory bodies including without limitation the Direct Marketing Association. The Customer shall be responsible for obtaining and applying to the Data any necessary suppression files including, where appropriate, the Mail Preference Service, the Telephone Preference Service and / or the Email Preference Service suppression files, including immediately suppressing any records EDML advise should be removed

13.

INDEMNITY AND LIMITATION OF LIABILITY

13.1 The Customer agrees to indemnify EDML and the List Owner in respect of any claim arising from use of the Data made by the Customer or their client and/or arising from the material dispatched using the Data by the Customer or their client, including but not limited to defamation, obscenity or infringement of others' rights.
13.2 The Customer agrees to indemnify EDML and the List Owner in respect of all costs, claims, demands or expenses incurred or suffered by them as a result of any unauthorised copying, re-use, re-sale, disclosure or any other unauthorised use of the Data while in the Customer’s or their client’s possession.
13.3 Where the Data is used in contravention of the provisions of this Agreement the Customer shall pay to EDML a sum equivalent to 5 times the value of the single use charges on each occasion that the Data is so used and the Customer expressly agree and acknowledge that their use of any subset of the Data shall be confirmation of their use of the whole of the Data and that the provisions of this Clause 13 shall operate by way of liquidated damages and are a genuine pre-estimate of EDML's loss in such circumstances.
13.4 Each party shall indemnify the other and hold the other harmless against all and any losses, costs, damages, liabilities, claims, demands and expenses suffered or incurred by the other (including legal expenses reasonably and properly incurred, but excluding loss of profits, goodwill or loss of business or any type of special, indirect or consequential loss) arising out of or connected with the breach or alleged breach of any of its warranties contained in this Agreement.
13.5 Notwithstanding Clause 13.9 below neither party's liability to the other for (i) death or injury resulting from its own or that of its employees' agents or sub-contractors' negligence; (ii) or fraud or fraudulent misrepresentation; (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and (iv) any other liability which cannot be limited or excluded by applicable law shall be permitted.
13.6 Except in respect of claims made under Clause 13.4 and subject to the provisions of Clause 13.5 the aggregate maximum liability of either party to the other under this Agreement shall not exceed 100% of the total sums paid or payable to EDML in respect of the email or DM campaign giving rise to a claim under this clause by The Customer pursuant to this Agreement.
13.7 To the extent permitted by law, EDML and the List Owner do not make and hereby disclaim any warranty, express or implied. EDML and the List Owner do not guarantee or warrant the correctness, completeness or satisfactory quality and fitness for a particular purpose of the Data.
13.8 Neither EDML nor the List Owner will be liable in any event, including liability for negligence (except for personal injury or death), to the Customer or others for any loss or damages, lost revenue or profits, or any indirect or consequential loss or damages resulting from problems caused by the interaction of the Code or Data with the Customer’s computer, operating system, other software or data, or from the Customer use of or inability to use the Code or Data or Sites.
13.9 Neither EDML nor the List Owner will be liable in any event, including liability for negligence (except for personal injury or death), to the Customer or others for any loss or damages, lost revenue or profits, or any indirect or consequential loss or damages resulting from the non-availability of the Site.
13.10 In the event of any claim upheld against EDML or the List Owner, EDML or the List Owner will not be liable to the Customer or others in excess of the Access Fee or the purchase price of the Data.

14.

AUDIT

14.1 EDML and List Owner reserve the right, subject to reasonable prior notice, to audit for compliance with the terms of this Agreement. Such right of audit shall include (without limitation) the right to audit any relevant database or computer files maintained by the Customer to ensure that the use of the Data complies with the provisions of this Agreement. The Customer shall allow access during normal working hours and to all relevant records to allow for such audit to be completed.

15.

CONFIDENTIALITY

15.1 If either party receives any Confidential Information it will exercise all reasonable care to prevent disclosure of or use, for any purpose unrelated to the performance of this agreement of any Confidential Information which it receives from the other party pursuant to and in accordance with the terms of this agreement. The receiving party will require its employees, agents, and representatives to similarly restrict use and disclosure of such Confidential Information, and will be responsible for assuring compliance with such confidentiality obligations by its employees, agents and representatives.
15.2 The receiving party, however, shall not be required to keep confidential any Confidential Information which is or may become publicly available without fault on its part; is already in the receiving party's possession prior to receipt from the disclosing party; is disclosed by the disclosing party to third parties without similar restrictions; or is rightfully obtained by the receiving party from third parties without restriction; or is required to be disclosed by law or any regulation but only to the extent and for the purpose of such disclosure.
15.3 A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, as far as it is legally permitted to do so, it gives the other party as much notice of the disclosure as possible.
15.4 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information, other than those expressly stated in this Agreement, are granted to the other party, or are to be implied from this Agreement.
15.5 The Customer acknowledges that any breach or threatened breach of Clause 15 of this Agreement will result in irreparable harm to EDML for which damages would be an inadequate remedy. Therefore, EDML shall be entitled to equitable relief, including an injunction, in the event of such breach or threatened breach of Clause 15 of this Agreement. Such equitable relief shall be in addition to Data Subject's rights and remedies otherwise available at law.
15.6 This Clause15 shall continue in full force and effect after and despite the expiry or termination of this Agreement or any Purchase Order issued thereunder, whatever the reason for termination.

16.

TERMINATION

16.1 The Customer acknowledges that EDML may at its sole discretion terminate this Agreement and the Customer’s licences created by this Agreement without further notice and with immediate effect in the event the Customer fails to comply with any term or condition set out in this Agreement. In such an event, the Customer will not be entitled to any refund of amounts paid to EDML under this Agreement and will be liable to EDML for payment for any benefit derived by the Customer from this Agreement up to the date of such termination.
16.2 Either party may terminate this agreement at any time upon written notice where the other party breaches this agreement and such breach is not remedied within thirty days of receipt of notice from the non-defaulting party specifying the breach or threatens to cease or ceases business or becomes insolvent, commits any act of insolvency (or bankruptcy) or winding up (except for the purpose of amalgamation or reconstruction) or becomes subject to any proceeding under an insolvency law (and such proceeding has not been set aside within seven days).
16.3 Neither party shall be considered in default or liable under this Agreement if there is any delay or failure in the performance of its obligations under this Agreement by any reason beyond its reasonable control which shall include without limitation any act of government or state, civil commotion, epidemic, fire, flood, industrial action of staff other than its own, or war all to the extent beyond the reasonable control of the party whose performance is affected by such circumstances ("Force Majeure").
16.4 In the event of Force Majeure, the delaying party shall be entitled to an extension of time for so long as the Force Majeure circumstances persist provided that the delaying party shall promptly notify the other party of the Force Majeure and discuss with the other party possible action to be taken to overcome the delays and shall use all reasonable endeavours to overcome such delays. If the Force Majeure circumstance continues for more than one month, either party may give notice to the other immediately to terminate this Agreement.
16.5 Termination shall not release either party from any obligation or liability incurred prior to the date of termination and shall be without prejudice to the continuation of any provision hereof which expressly or by implication comes into or continues in force after the date of termination.
16.6 Upon expiry or termination of the licence period permitted by this agreement, the Customer will within 7 days delete or destroy all originals and copies of the Data save for those individuals and/or businesses which become the Customer’s bona-fide customers and a Data Destruction Declaration signed and returned to EDML.

17.

JURISDICTION

17.1 This Agreement is governed by English Law and the Customer agree to submit to the exclusive jurisdiction of the English Courts in respect of any dispute arising.
17.2 All notices shall be given in writing to persons at the locations specified in this Agreement or such other address as either party may designate by notice to the other. Notice sent by post shall be deemed to be delivered seventy-two (72) hours after posting.
17.3 This Agreement contains the entire understanding between the parties hereto and supersedes all previous agreements between the parties. No other terms or conditions (including any written, given verbally or attached to any purchase order form, document or correspondence) shall be included or implied unless agreed upon in writing signed by an authorised officer or representative of each of the parties to this Agreement providing that nothing in this clause shall be deemed to exclude either party's liability for fraudulent misrepresentation.

18.

ASSIGNMENT

18.1 The Customer may not assign, transfer or sub-license their rights and obligations under this Agreement to any other party.
18.2 Neither party may assign all or part of its rights and/or transfer or sub-contract the performance of all or part of obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

19.

SEVERALBITY

19.1 If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision..

20.

THIRD PARTY RIGHTS

20.1 The List Owner shall be entitled to enforce any term of this Agreement either directly as principal or as a third party (as applicable).
20.2 Other than the List Owner, this Agreement does not create any rights under the Contracts (Rights of Third Parties) Act 1999 which are enforceable by any person who is not a party to it and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.

21.

MISCELLANEOUS

21.1 All notices or consents given or to be given pursuant to any agreement shall be in writing and shall be deemed to be served two working days after having been sent, properly addressed, by first class post, to the receiving party at its business address stated overleaf or as last notified in writing to the other party or at the time of transmission if sent by facsimile message.
21.2 This agreement contains the whole agreement between the parties relating to the subject matter of this agreement and no variation of this agreement shall be effective unless with the express written consent and agreement of an authorised director or the Secretary of the Customer and a Director or the Secretary of EDML.
21.3 No waiver by either party of any breach of any provision of this agreement shall be deemed to be a waiver of any preceding or succeeding breach of the same or any other provision.