ASW Advertising Terms and Conditions (Asia)

(the “Conditions”)

In these Conditions, “ASW” and “Advertiser” shall mean the ASW Entity and the advertiser respectively named in the relevant Sales Order (as defined hereunder).

These Conditions are supplemental to and form part of any agreement, sales order, statement of work, quotation or equivalent (“Sales Order”) in respect of the relevant Services (as defined hereinafter) to be provided by ASW to the Advertiser. The Sales Order will expressly make reference to these Conditions. The Sales Order and these Conditions shall be referred to as the “Agreement”. In the event of any conflict or inconsistency between these Conditions and the Sales Order, the Sales Order shall prevail over these Conditions.

SERVICES
1. This Agreement shall commence on and continue the dates specified in the Sales Order (“Term”) subject to the early termination in accordance with clause 14.
2. The Advertiser appoints ASW to provide the certain media strategy and planning services and placement of media communication including advertising, sponsorship or promotional space (“Media Placement”) (collectively the “Services”) for promotion of the goods and services for the brands (“Brands”) as stipulated and agreed by the parties in the relevant Sales Order. ASW accepts the appointment and agrees to provide the Services in accordance with the terms of this Agreement.
3. ASW will perform the Services and (where relevant) shall supply the Deliverables (as defined in Clause 1.5) to Advertiser in the territory(ies) as set out in the Sales Order (“Territory”).
4. ASW may appoint subcontractor to carry out all or any part of the Services provided that it shall disclose the name of any such subcontractor to the Advertiser and ASW shall remain responsible for the performance of all of its obligations under this Agreement, and for the performance of any other person including subcontractors (“Vendors”) in connection with the Services.
5. For the avoidance of doubt, the ASW’s appointment is non-exclusive in respect of the Territory, and the Advertiser shall be entitled, in its sole discretion, to itself provide or to appoint other third party to provide services and deliverables which are the same or similar to the Services and/or deliverables as provided in the Sales Order (“Deliverables”) in any part of or all of the Territory during the Term.
MINIMUM COMMITMENT
1. The parties may agree to a minimum commitment by the Advertiser to place Sales Orders for at least for a specific value (“Minimum Commitment”) within a specific period of time (“Commitment Period”) with ASW and any other companies in the ASW Group (“ASW Group Company”) in which case this clause 2 shall apply.
2. The Minimum Commitment and the Commitment Period shall be agreed by the parties and set out in the first Sales Order entered into by the parties at the commencement of the Commitment Period.
3. The Advertiser shall be responsible for ensuring that it has been expressly stated on the relevant Sales Order that the value of Services placed thereunder will be counted towards the Minimum Commitment (by checking the relevant box on the Sales Order). Otherwise, such Sales Order will not be included in the calculation of Minimum Commitment. For the avoidance of doubt, any Media Placement or media services placed by a client of the Advertiser directly with ASW and/or ASW Group Company or via the Advertiser on their behalf shall not be taken into account when calculating the Minimum Commitment.
4. Upon earlier termination of the Agreement (other than due to the default or breach of ASW or termination pursuant to clause 14.2) or expiry of the Commitment Period, if the Advertiser cannot meet with the Minimum Commitment as agreed, ASW or any of ASW Group Company shall issue an invoice to Advertiser for the shortfall and the Advertiser shall settle the shortfall in accordance with clause 6.
STATUS AND OBLIGATIONS OF ASW
1. The Advertiser hereby authorizes ASW to:
  - place Media Placements at its own platform and/or purchase Media Placement with other Vendor supplies for the Advertiser in accordance with the relevant Sales Order; and
  - enter into contracts with Vendors for the purchase of advertising time and space and placement of Media Placement and/or for the supply of technology, data or other services, consistent with the relevant Sales Order.
2. ASW will co-operate with the Advertiser and use all reasonable care, skill and diligence to provide the Services in the Territory.
3. ASW undertakes and warrants that:
  - it shall perform all of its obligations under this Agreement using such a reasonable level of care and skill, in an efficient, competent and professional manner and in accordance with industry practice;
  - it is skilled in providing services similar to the Services throughout the Territory;
  - it shall keep the Advertiser informed regularly of, and promptly respond to any requests relating to, the progress of the Services in relation to any agreed deadlines;
  - it shall deliver all Deliverables by the dates set out in the applicable Sales Order or any other delivery date(s) agreed by the parties in writing;
  - it shall comply with all applicable laws.
4. Unless ASW is providing creative services, it shall not be responsible for the content of any creative materials and any issues raised by a Vendor in respect of the content of such creative materials shall be resolved by the Advertiser and the Vendor directly, with ASW providing such reasonable support as the Advertiser may request.
APPROVALS, CANCELLATIONS AND AMENDMENTS
1. Where any or part of the scope of the Services as agreed in the Sales Order are subsequently modified or cancelled by the Advertiser (other than due to the negligence or default of ASW), ASW shall reject, cancel or stop any or all plans or work-in-progress provided that ASW is able to do so within its contractual obligations to third parties. ASW will advise the Advertiser of any cancellation fees or penalties imposed by the relevant Vendor for cancellation or modification of such plans or work in progress and if the Advertiser elects to proceed with such cancellation, the Advertiser shall reimburse ASW for such cancellation fees or penalties. Without prejudice to any rights and remedies of the ASW against the Advertiser, the Advertiser shall pay the ASW the Fees for any work and services performed by the ASW on a pro-rata basis.
2. ASW shall all times comply with local laws and regulations of the particular country that will have a mandatory application to the provision of Services or any obligations under this Agreement or a Sales Order (“Local Mandatory Requirements”). Where Local Mandatory Requirements require a variation to this Agreement for a particular Country then such variations (“Local Variations“) shall be set out against that Country in the “Local Variations” section in the relevant Sales Order.
3. The Local Variations shall take precedence over the Terms and Conditions of this Agreement, but only for the Country the Local Variations apply to as set out in the relevant Sales Order.
BRAND SAFETY
1. ASW will provide the Advertiser with a list of websites and mobile applications that appear on its brand safe list so that the Advertiser can create, if it wishes, its own list of third party approved websites and mobile applications (“Inclusion List“). ASW will only purchase Media Placements on websites and mobile applications if they appear on the Inclusion List.
2. ASW will not, without the prior written consent of Advertiser, put the Media Placements on websites and mobile applications that it should reasonably be aware are, contain or link to the following content (“Exclusion List“):
  - obscene, indecent or pornographic content (including child pornography);
  - content that is hateful, threatening, harassing or abusive;
  - violent content;
  - content liable to incite racial hatred or other forms of unlawful discrimination;
  - content liable to incite acts of terrorism;
  - content containing excessive profanity;
  - content relating to illegal drugs or drug paraphernalia;
  - content relating to the sale of firearms, ammunition or other weapons;
  - content that is defamatory or trade libellous;
  - content relating to the sale or promotion of counterfeit goods;
  - content that is unlawful or illegal;
  - URLs (or web pages) that are fraudulent;
  - gambling-related content;
  - tobacco-related content;
  - blogs or unmoderated forums, save to the extent included on the Inclusion List;
  - content that is harmful to minors in any way or otherwise unsuitable for them to view.
3. In the event that ASW discovers or is notified that advertising has appeared on a website or mobile application that contains or links to content on the Exclusion List, it shall use its best endeavours to remove the advertising from that Media Placement as soon as possible and in any event within one (1) hour of discovery or notification. Notwithstanding the foregoing, the parties acknowledge news reporting editorial about content considered to be Exclusion List (“Editorial Content“) may feature on Inclusion List websites and mobile applications and that ASW shall not be in breach of this clause if advertising is placed in Media Placements on Inclusion List websites or mobile applications featuring such Editorial Content.
FEES AND TERMS OF PAYMENT
1. In consideration of the provision of the Services as set out in the relevant Sales Order, the Advertiser shall pay to ASW the fees as specified in the applicable Sales Order (“Fees”).
2. ASW shall invoice the Advertiser for ASW Fees and any agreed reimbursement costs on the last day of each calendar month unless otherwise set out in the applicable Sales Order. Valid invoices shall be payable by the Advertiser in accordance with the payment terms set out in the Application for OptimO Advertiser Account (“Account Application Form”). If payment terms are not specified in Account Application Form, all valid invoice shall be paid by the Advertiser within thirty (30) days of the invoice date. . Notwithstanding the foregoing, if the Territory of the relevant Sales Order is Hong Kong, ASW is entitled to set off any amounts ASW is owing to the Advertiser, whether or not due and payable against the debit note amount(s) directly at any time without any notice.
3. All sums stated in this Agreement or in any Sales Order, quotation or estimate exclude VAT and any other applicable sales tax (unless otherwise stated) which shall also be payable by the Advertiser where applicable at the rate prevailing from time to time.
4. In the event that the Advertiser fails to make any payment in full when due to the ASW under this Agreement, then without prejudice to its other rights and remedies under or in connection with this Agreement or otherwise in law, ASW shall be entitled to charge the Advertiser interest on such overdue sum at the rate of two (2)% above the base rate of [name of bank] in force from time to time calculated from the due date up to the date of actual payment.
5. Save as may be expressly set out in this Agreement or the applicable Sales Order, Advertiser shall pay all monies which are payable by it to the ASW without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from ASW. ASW reserves its rights of set off, abatement or withholding any payments which are payable by ASW to the Advertiser.
TAXES
1. Any Fees payable under this Agreement, unless otherwise stated, shall be exclusive of all taxes, duties or levies, including value added taxes (“VAT”) or similar Goods and Services Taxes (“GST”), sales and use tax or service tax, assessable at the prevailing rate by any local, state, provincial, federal or foreign tax authorities.
2. In case any deduction or withholding of any taxes is required to be deducted or withheld by all applicable laws from any sum of Fees payable, Advertiser shall:
  - make such deduction or withholding (“Withheld Sum”) to the appropriate tax authorities within the time allowed;
  - remit the net amount, after making all the required deductions or withholdings, to ASW; and
  - deliver to ASW any valid official receipt or certificate issued by such authority confirming the payment to such authority of the Withheld Sum upon ASW’s request. The responsibilities arising from compliance in withholding tax (including but not limited to applicable taxes, late fees and fines imposed by the tax authorities) shall be borne by Advertiser.
3. ASW shall issue a valid tax invoice in a format that meets tax invoice rules (where required) under applicable rules listing the gross amount of ASW Fees payable and the corresponding VAT / GST / service tax payable by Advertiser.
4. ASW Fees payable and the corresponding VAT / GST / service tax payable by Advertiser.
CONFIDENTIAL INFORMATION
1. Neither party (“Recipient“) shall, without the other party’s (“Discloser“) prior consent, divulge, reveal or disclose to any persons or entities any information involving Discloser’s trade secrets, business methods, marketing plans, copyright materials, designs or other information deemed confidential (“Confidential Information“).
2. Confidential Information shall include any document marked “Confidential”, or any information which the Recipient has been informed is confidential or which it ought reasonably to expect the Discloser would regard as confidential.
3. The confidentiality obligations hereunder shall not apply to Confidential Information which (i) Recipient is in possession of at the time of disclosure by Discloser, (ii) is or hereafter becomes published or otherwise generally available to the public through no fault of Recipient, (iii) is received on a lawful, non-confidential basis from a third party without breach of this Agreement, (iv) is independently developed by the Recipient without reference to the Confidential Information; or (v) in the circumstances set out in clause 8.5.
4. The Recipient undertakes to maintain the confidentiality of the Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the Confidential Information reasonably secure. The Recipient shall not at any time, whether during the Term or at any time thereafter, without the prior written approval of the Discloser, use, disclose, exploit, copy or modify any of the Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement.
5. The Recipient shall not be in breach of this clause 9, if it discloses the Discloser’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the Discloser is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
6. The terms of and obligations imposed by this clause 8 shall survive the termination of this Agreement for any reason.
DATA PROTECTION
1. The parties shall comply with the obligations as set out in Schedule 1.
ASW WARRANTIES
1. ASW warrants and undertakes that:
  - it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party;
  - it shall, and procure that all members of the Agency and any agents, consultants, employees, sub-contractors or other third parties engaged by the Agency in the provision of the Services shall at all times during the Term:
    - not do anything in connection with the Services that would bring any member of the Client Group or any trade mark, brand or product of the Client Group into disrepute;
    - provide the Services and carry out all obligations under this Agreement and any Sales Order using all reasonable care and skill and to the standards expected of a first class media agency acting in accordance with industry best practice; and
    - comply with all Applicable Laws and ensure that the Deliverables and Services comply with all Applicable Laws.
ADVERTISER WARRANTIES
1. Advertiser warrants and undertakes that:
  - it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party;
  - the logo, trademarks, design, information, spreadsheets, data, plans, proposals or any other material provided by Advertiser (“Advertiser Materials”) will not, when used in accordance with this Agreement and any written instructions given by Advertiser, infringe third party Intellectual Property Rights;
  - it has obtained all necessary consent, authorization and licences from any Brands or otherwise any relevant third party owner of the Intellectual Property Rights to provide the Advertiser Materials to ASW under this Agreement;
  - to the best of its knowledge and belief, the Advertiser Materials will comply with all applicable laws and regulations.
2. Advertiser further agrees and undertakes that it shall, and procure the Brands to, cooperate with ASW and promptly response to the reasonable enquiry and request from ASW, including without limitation to providing all Advertiser Materials in a timely manner to enable ASW to perform the Services and/or deliver the Deliverables under this Agreement.
3. All Advertiser Materials to be used for Media Placement are subject to ASW’s approval and ASW may in its sole and absolute discretion reject to post and/or publish such Advertiser Materials for the Media Placement if in its opinion such Advertiser Materials might not comply with the terms and conditions herein or contain any content as provided in clause 5.2 or detrimental to ASW Group’s brand and reputation.
INTELLECTUAL PROPERTY RIGHTS
1. ASW acknowledges that, as between ASW and Advertiser, Advertiser will own all right, title and interest (including all intellectual property rights of whatever nature and wherever in the world and all rights pertaining thereto, whether recorded or registered in any manner, including without limitation copyright (including rights in software), patents, inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration, trademarks, design rights, database rights, trade secrets, brand names, domain names, know-how, rights pursuant to passing off or unfair competition, service marks, rights in Confidential Information, image rights and comparable legal rights anywhere in the world (“Intellectual Property Rights”) in and to any Advertiser Materials (including any modifications or adaptations of such Advertiser Materials produced in the course of providing the Services and Deliverables).
2. All Intellectual Property Rights in the Advertiser Materials shall remain vested in the Advertiser or the relevant Brands. Save as otherwise specified in the Sales Order, all Intellectual Property Rights which are created by ASW at the specific instruction of Advertiser as expressly provided in the relevant Sales Order shall be and will remain the sole and exclusive property of Advertiser upon creation and ASW assigns (and shall procure that its personnel assign) to Advertiser (by way of present and future assignment with full title guarantee) all such Intellectual Property Rights.
3. Advertiser acknowledges that all Intellectual Property Rights in the software, methodology, know-how and processes and any other materials in relation to which Intellectual Property Rights are owned by (or licensed to ASW) (“ASW Materials”) (including those incorporated into the Services or Deliverables) shall be owned by and remain the property of and vested in ASW. Agency licenses, or must procure a licence to Advertiser of, the right to use such ASW Materials as are included in the Deliverables in the Territory for the period of time and for the purposes set out in the Sales Order.
4. ASW shall not use or permit any use of Advertiser’s name or any of the Brand’s trademarks, logos, designs or other Intellectual Property Rights provided by Advertiser pursuant to this Agreement except as necessarily entailed in the provision of the Services, without the express permission of Advertiser. ASW shall not use the marks of Advertiser in any way except as authorised by Advertiser, and shall cease use of any Advertiser’s mark on Advertiser’s request, or on termination of this Agreement.
5. For the avoidance of doubt, ASW shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by Advertiser or by a third party on Advertiser’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of Advertiser.
6. The terms of and obligations imposed by this clause 12 shall survive the termination of this Agreement for any reason.
LIABILITY
1. Subject to clause 13.2, each party’s maximum aggregate liability under or in connection with this Agreement (including all Sales Order and any indemnity contained in this Agreement), whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the amount of the Fees payable under the relevant Sales Order.
2. Nothing in this Agreement excludes or limits a party’s liability for:
  - death or personal injury caused by its negligence;
  - fraud or fraudulent misrepresentation;
  - any withholding tax non-compliance and underpayment;
  - any breach of clauses 9, 10, 11 and 19; or
  - any liability which cannot legally be excluded or limited.
3. Subject to clause 13.2 (and including for the avoidance of doubt any indemnity contained in this Agreement), in no event shall either party be liable under or in connection with this Agreement for:
  - loss of actual or anticipated income or profits;
  - loss of anticipated savings; or
  - any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
TERMINATION
1. Either party may terminate this Agreement immediately by notice in writing to the other if:
  - the other party is in material breach of any of the terms of this Agreement and/or any Sales Order and such breach is irremediable or, if the breach is capable of remedy, the other party fails to remedy such breach within fourteen (14) days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or
  - the other party is in breach of any of the terms of clauses 8, 11 and 19 of this Agreement;
  - such other party has a receiver, administrator, administrative receiver or manager appointed over the whole or any part of its assets, becomes insolvent, compounds or makes any arrangement with its creditors, commits any act of bankruptcy, is wound up or goes into liquidation or suffers any analogous proceedings under applicable laws; or
  - such other party suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business.
2. ASW may terminate this Agreement or any of the Sales Order without cause by giving not less than sixty (60) days’ notice to Advertiser.
3. Termination of a Sales Order in accordance with the terms of this Agreement by either party shall not serve to terminate this Agreement which shall continue in full force and effect.
4. Upon termination of this Agreement under clause 14.1, all outstanding Sales Order shall also be terminated.
5. Upon termination of this Agreement by ASW under clause 14.2, any Sales Order agreed by the parties before the termination shall continue and be effective. The parties agree to complete those Sales Order(s) in accordance with the terms and conditions this Agreement.
6. Upon termination of this Agreement for any reason:
  - Advertiser shall pay to ASW all Fees and expenses due to the ASW in respect of Services performed in accordance with this Agreement up to the date of termination;
  - ASW shall deliver up to Advertiser any and all materials and property belonging to Advertiser, all work in progress, at whatever stage of completion, and all copies of the same, which are then in its possession, custody or control and which relate to all affected Sales Order;
  - ASW shall terminate such agreement signed with third party for the purpose of performing the Services for Advertiser (“Third Party Contract”) provided that Advertiser shall pay ASW for any cancellation charges and costs involved in the termination provided that ASW use all reasonable endeavours to mitigate such cancellation charges and costs.
7. Provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.
FORCE MAJEURE
1. Neither party shall be liable for any delay in performing, or failure to perform, any of its obligations under this Agreement due to any cause outside its reasonable control, including acts of God, war, riot, malicious acts of damage, fire, acts of any governmental authority, failure of public electricity supply, strike, lockout or labour dispute (except in relation to either party’s own workforce), and each such event shall be referred to as a “Force Majeure Event”. If either party is prevented from or delayed in performing any of its obligations under this Agreement as a result of a Force Majeure Event, it shall immediately notify the other party, giving full particulars of such Force Majeure Event, and shall use its reasonable efforts to mitigate the effects of such Force Majeure Event. In the event that a Force Majeure Event continues for more than thirty (30) days, then either party may terminate this Agreement with immediate effect by written notice to the other party.
NOTICES
1. Any notices sent under this Agreement or any Sales Order must be in writing. All notices or other communications shall be deemed served: (a) if delivered by hand, on delivery; (b) if sent by registered post or courier, two (2) days after posting; and (c) if sent by facsimile, upon receipt of a confirmatory transmission report.
2. This clause does not apply to the service of any proceedings or other documents in any legal action or other method of dispute resolution
ASSIGNMENT
1. Advertiser may not assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under the Agreement and/or the Sales Order to any third party at any time without the prior written consent of the ASW.
2. ASW may assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it to any of its affiliated companies of AS Watson Group (“ASW Group”) without the prior written consent of Advertiser.
THIRD PARTY RIGHTS
1. Save in respect of the ASW Group and/or otherwise identified in an applicable Sales Order, a person who is not a party to this Agreement has no right to enforce any term of this Agreement.
2. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any person that is not a party to this Agreement.
ANTI-BRIBERY AND OTHER POLICIES
1. The parties undertake to each other that they shall, and shall procure any member of their respective group shall:
  - not engage in any form of bribery, corruption, extortion or embezzlement or any other unlawful conduct;
  - comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption (“Anti-Bribery Laws”) and modern slavery (“Modern Slavery Laws”).
GENERAL
1. This Agreement and the Sales Order constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior proposals, negotiations, arrangements and other communications and understandings between the parties, whether oral or written, with respect to such subject matter.
2. The parties acknowledge that this Agreement nor any Sales Order has not been entered into wholly or partly in reliance on, nor has either party been given, any warranty, statement, promise or representation by the other or on its behalf other than as expressly set out in this Agreement or any Sales Order.
3. All warranties, conditions, terms and representations not set out in this Agreement whether implied by statute or otherwise are excluded to the extent permitted by law.
4. This Agreement may be executed in any number of counterparts, each of which when executed shall constitute an original of this Agreement, but all the counterparts together constitute the same Agreement. No counterpart shall be effective until each party has executed at least one counterpart.
5. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
6. This Agreement and the Sales Order and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of the Territory stated in the relevant Sales Order.
7. All disputes or claims arising out of or relating to this Agreement or a Sales Order shall be subject to the non-exclusive jurisdiction of the Courts of the Territory to which the parties irrevocably submit.

Schedule 1

Data Protection

DEFINITIONS

Appropriate Technical and Organisational Measures	means appropriate security measures and procedures such that having regard to the state of technological development and the cost of implementation, and the nature of the Agreement Data, will ensure a level of security appropriate to the harm that might result from a Data Loss Event. Such measures shall comprise, as a minimum, those measures set out in Appendix 1 of this Schedule and any additional measures from time to time notified in writing by the Client to the Agency and reasonably agreed by the parties;
Controller and Processor	shall have the meaning given to it in the relevant Data Protection Laws;
Data Loss Event	means any event that results, or may result, in unauthorised access to Agreement Data and Instructed Data and/or actual or potential loss and/or destruction of such data in breach of this Agreement or the Data Protection Laws including any Personal Data Breach;
Data Protection Law	means the applicable data protection laws, regulations, orders, standards or similar instruments as amended, re-enacted or extended from time to time in the Territory (as defined in the Agreement) and in the event that there is not applicable data protection laws in the Territory, Data Protection Law shall mean the EU General Data Protection Regulation (Regulation EU 2016/679);
Data Request	means any request, complaint or other communication from a Data Subject to exercise their rights under the Data Protection Laws, with regards to the Processing of Agreement Data directly or indirectly related to them;
Data Subject	has the meaning given to it in the Data Protection Laws;
DPIA	means data protection impact assessment as defined in the Data Protection Laws;
Instructed Data	means Agreement Data Processed by the Agency or its subcontractors during the course of providing the Services under the Agreement as a Processor;
International Transfer of Data	means the transfer of Personal Data and Special Categories of Personal Data to an international organisation or a location that is outside of the UK or the European Economic Area (or any country deemed adequate pursuant to the Data Protection Laws);
ISO 27001	means ISO 27001:2013, an information security standard that was published on 25 September 2013, published by the International Organization for Standardization and the International Electrotechnical Commission (as may be updated from time to time;
Joint Controller	shall have the meaning given to it in the Data Protection Laws;
Personal Data Breach	shall have the same meaning as in the Data Protection Laws;
Processing Instructions	means instructions from the Client to the Agency in relation to Processing Instructed Data;
Sub-Processor	means any third party contracted by a Processor, including a consultant, sub-contractor, Vendor, agent or professional adviser or other third party which may Process the Instructed Data.

DATA PROTECTION

GENERAL
1. Irrespective of whether the Agency acts as Processor, Joint Controller or independent Controller, the Agency warrants that it is not in breach of the Data Protection Laws in relation to receiving and Processing of the Agreement Data and the Agency shall at all times:
  - hold all Agreement Data logically separate from any other Personal Data and Special Categories of Personal Data it holds and ensure such Agreement Data is readily identifiable;
  - not make any copies of any Agreement Data (whether in electronic or paper form) unless and to the extent strictly necessary for the Services;
  - not do, or omit to do, anything, which would cause the Client to be in breach of its obligations under the Data Protection Laws;
  - ensure the effective collection of consent compliant with the Data Protection Laws for the Processing of any Agreement Data Processed by the Agency, or any other third parties to provide the Services (either directly or subsequently used to make inferences about Data Subjects) except where the Client is the sole controller;
  - inform the Client immediately in writing with full details if it receives any correspondence or request for information from any regulatory authority in relation to the Agreement Data or the Agency’s relationship with the Client, and, save to the extent obliged by law to respond directly, not respond unless and to the extent instructed by the Client;
  - immediately notify the Client in the event that it becomes aware of any breach by the Agency of this clause 2;
  - immediately, and no later than 24 hours from becoming aware of a Data Loss Event, provide (and shall update such information upon the Client’s reasonable request) the Client with all information in the Agency’s possession concerning any Data Loss Event including the following: (i) the date and time that the Data Loss Event; (ii) the circumstances surrounding the Data Loss Event, and any relevant facts regarding the nature and extent of the Data Loss Event; (iii) full details of any investigation that has commenced regarding the Data Loss Event (whether internal to the Agency or external (e.g. by a regulatory body)); (iv) volume and details of complaints received from any individual in respect of such Data Loss Event; and (v) full details of how the Agency proposes to rectify the Data Loss Event;
  - carry out DPIAs and/or ensure that other parties have carried out DPIAs, in particular if the Processing involves (i) the use of new technologies when this represents high-risk for Data Subjects, (ii) any profiling of individuals on a large scale, (iii) Agreement Data that has not been directly provided by Data Subjects when they will not be provided with information about such Processing due to disproportionate effort; (iv) tracking Data Subjects’ geolocation or behaviour when this represents high-risk for Data Subjects, or (v) the use of personal data of vulnerable Data Subjects, or (vi) combining and matching Personal Data from multiple sources;
  - where the Client is required to carry out a DPIA to comply with its obligations relating to DPIA, the Agency shall provide all reasonable assistance to the Client. Such assistance may include:
    - providing a systematic description of the envisaged Processing operations and the purpose of the Processing;
    - assessing the necessity and proportionality of the Processing of Agreement Data in relation to the Services;
    - assessing of the risks to the rights and freedoms of Data Subjects; and
    - providing the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of Agreement Data;
  - provide the identity and contact details of a data protection officer in accordance with the Data Protection Laws where applicable;
  - ensure that any profiling and automated decision-making Processing activity is carried out in compliance with the Data Protection Laws;
  - immediately notify the Client if the Processing required to provide the Services, in the opinion of the Agency breaches the Data Protection Laws and/or if it is unable to comply with its obligations under this Schedule. If the Agency determines that the Agency cannot resolve this inability to comply or becomes aware of any circumstance or change in the Data Protection Laws that is likely to have a substantial adverse effect on the Agency’s ability to meet its obligations under this Schedule, the Agency shall promptly notify the Client, in which case the Client will have the right to temporarily suspend the Processing until such time the Processing is adjusted in such a manner that the non-compliance is remedied. To the extent such adjustment is not possible, the Client shall have the right to terminate the relevant part of the Processing by the Agency;
  - provide all information necessary to demonstrate compliance with this Schedule and permit the Client (or any auditor commissioned by the Client) to conduct audits and inspections of the Agency’s systems and procedures in relation to the Agreement Data subject to the Client ensuring:
    - that such audit or inspection is undertaken during normal businesses hours and with a reasonable disruption to the Agency’s business; and
    - that all information obtained or generated by the Client or its auditor(s) is kept strictly confidential (save for disclosure to a regulatory authority or otherwise required by applicable law);
  - ensure that Processing of Agreement Data is consistent with the information about Processing provided to Data Subjects; and
  - in relation to subcontractors (including Sub-Processors) appointed by the Agency for the purposes of providing the Services to the Client:
    - provide in advance for review by the Client a list of all subcontractors of the Agency that Process any Agreement Data as part of the Services including details of what types of Personal Data and Special Categories of Personal Data they will be Processing and the nature of the subcontractors’ services. The subcontractors approved by the Client at the time of entering into this Agreement are provided in Appendix 2;
    - notify the Client in advance of all changes to subcontractors during the term of the Agreement;
    - not share Agreement Data with subcontractors where the same objective can be achieved with pseudonymised or anonymised data; and
    - comply with all applicable obligations as provided in the Data Protection Laws in relation to appointment of subcontractors.
2. The Parties agree that where the Client provides Processing Instructions to the Agency, the Agency Processes the Instructed Data as a Processor. The Agency shall:
  - only Process the Instructed Data on behalf of the Client and then only to the extent necessary to perform the Processing Instructions received from the Client from time to time;
  - seek clarification from the Client if the Agency believes that a Processing Instruction is not clear;
  - ensure that it has in place Appropriate Technical and Organisational Measures. This obligation will survive expiry or termination of this Agreement to the extent that the Agency continues to Process the Instructed Data according to this clause 2;
  - take all reasonable steps to ensure that employees Processing the Instructed Data are subject to appropriate confidentiality undertakings that are enforceable by the Agency, are informed of the confidential nature of the Instructed Data and have undergone adequate training in order to security handle such data;
  - immediately notify the Client of any Data Request received providing full details of that Data Request and fully co-operate and assist the Client in relation to any Data Request, in particular in the location, extraction, transfer, correction or deletion of the Instructed Data applicable to the Data Request;
  - taking into account the nature of the Processing and information available to the Agency assist the Client in complying with its obligations relating to security, notification of Personal Data Breaches to any regulators and Data Subjects and any consultation with regulators under the Data Protection Laws;
  - not make or authorise any announcement, other communication or notice about a Data Loss Event (including the giving of a report or notice about a Personal Data Breach to any regulatory authority or any Data Subject) (a “Security Breach Notice”) without the prior written consent of the Client as to the content, media and timing of the Security Breach Notice;
  - following termination of this Agreement, or in compliance with a Processing Instruction, either return the Instructed Data to the Client or permanently and securely delete all electronic copies of the concerned Instructed Data from the computer systems (including servers, hardware, backup or archive copies) of the Agency as requested by the Client and furnish the Client with a certificate signed by a duly authorised director of the Agency certifying the same has been done;
  - subject to the requirements on the Agency under the Agreement when it comes to engaging subcontractors (including Vendors) and clause 2.1(o) of this Schedule, not appoint Sub-Processors unless:
    - the Agency enters into a contract with them which binds the Sub-Processors to obligations that are at least equivalent to the obligations imposed on the Agency with respect to the Instructed Data under this Agreement, and
    - the Agency shall remain fully liable to the Client for the acts or omissions of the Sub-Processors as if they were acts and omissions of the Agency;
  - not carry out International Transfer of Data unless the Client gives written consent and in each case provided that such transfer is carried out in compliance with the Data Protection Laws, in particular subject to an approved mechanism and to appropriate safeguards. Where such mechanisms and appropriate safeguards consists of approved contractual arrangements (e.g. standard contractual clauses approved by the European Commission from time to time), the Agency, prior to putting in place such mechanism, will take steps to ensure that the data importer is able to effectively comply with its obligations under such contractual arrangement; and
  - unless expressly stated in a Processing Instruction, not (i) convert any Instructed Data into anonymised, pseudonymised, depersonalised or statistical data; or (ii) match Instructed Data with any other Personal Data or Special Categories of Personal Data.
3. Processing Instructions
  - The Processing Instructions provided by the Client referred to in clause 2.2 of this Schedule will, in any case, include the following information:
    - Subject-matter and duration of the Processing;
    - Nature and purpose of the Processing;
    - Type of Instructed Data;
    - Categories of Data Subjects concerned;
    - Whether additional security measures must be applied to the Instructed Data;
    - Whether specific rules agreed in a DPIA apply to the Processing Instruction; and
    - Whether a specific retention period applies to the Processing Instruction,
  - The Client will ensure that any Instructed Data provided to the Agency will be disclosed in accordance with the Data Protection Laws.
4. In the event that the Client and the Agency Process Agreement Data as Joint Controllers under the Data Protection Laws, the Parties agree that the Agency will have sole access to and operational control of all Agreement Data. The Agency shall:
  - on behalf of the Joint Controllers, carry out the following in compliance with the Data Protection Laws:
    - Provide a privacy notice to Data Subjects;
    - Act as the sole contact point for the purpose of Data Requests and respond to Data Requests received;
    - Notify the relevant regulator and Data Subjects of any Personal Data Breaches in compliance with the Data Protection Laws after consulting with the Client;
    - Carry out DPIAs where required;
    - Identify a legal basis of Processing for all Processing, including sharing of the Agreement Data; and
    - Implement Appropriate Technical and Organisational Measures for the Agreement Data and security measures as requested by the Client. This obligation will survive expiry or termination of this Agreement to the extent that the Agency continues to Process according to this clause 2;
  - ensure it collects consent for use of cookies in compliance with the Data Protection Laws; and
  - where Special Categories of Personal Data is Processed, the Agency will take reasonable steps to ensure that any Vendor or any other third party involved in the Processing modify, if necessary, existing TCF and AB frameworks (e.g. IAB Transparency and Consent Framework v2.0) for the consent to be explicit and meet the requirements of the Data Protection Laws.
5. Where the Client and the Agency Process the Agreement Data as independent Controllers, the Agency shall comply with all applicable obligations under the Data Protection Laws as an independent Controller.