Terms & Conditions for Clients
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day, means a day other than a Saturday, Sunday or public holiday when banks in London are open for business.
Caburn Hope, means Caburn Hope Limited a company registered in England and Wales whose registered address is 20 Wood Street, London, England, EC2V 7AF and company number (2788390).
Caburn Hope’s Materials, means all materials, equipment, documents and other property of Caburn Hope the Intellectual Property Rights in which are owned by Caburn Hope and which are either Deliverables or are incorporated in Deliverables, excluding Third Party Materials and New Materials.
Client, means the person or firm who purchases Services from Caburn Hope as set out in the Confirmation Form.
Client Data, means data, in whatever form, owned, held and/or controlled by the Client which is made available to Caburn Hope or is otherwise created, collated or collected and/or accessed by Caburn Hope in connection with the Services.
Client Materials, means any materials provided by the Client to Caburn Hope.
Conditions, means these terms and conditions as amended from time to time in accordance with clause 12.8.
Confirmation Form, means the Caburn Hope’s Conditions’ confirmation form prepared by Caburn Hope and completed and signed by the Client and, in the absence of such form, the specifications as shall be agreed between Client and Caburn Hope in the Specification Sheet or as otherwise in writing from time to time.
Contract, means the contract between Caburn Hope and the Client for the supply of Services in accordance with these Conditions and the Confirmation Form if and as may be signed by the Client from time to time and the signing of the Confirmation Form and/or the delivery of the Services by Caburn Hope to the Client shall be deemed to be unconditional acceptance by the Client of these Conditions and the Confirmation Form.
Data Controller, has the meaning set out in the Data Protection Legislation.
Data Protection Legislation, means all applicable legislation protecting Personal Data, including in particular the Data Protection Act 1998 (and, from 25 May 2018, the GDPR) and any replacement, national implementing laws or successor legislation to the Data Protection Act 1998 or GDPR.
Data Subject, an individual who is the subject of Personal Data.
Data Processor, has the meaning set out in the Data Protection Legislation.
Deliverables, means all documents, products and materials developed by Caburn Hope or its agents, contractors and employees as part of or in relation to the Services.
GDPR, means the General Data Protection Regulation ((EU) 2016/679).
Intellectual Property Rights, means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information including knowhow and trade secrets and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Media Commission means the commission on the net amount payable by Caburn Hope to the Media Provider.
Media Provider means the individual or party responsible for planning and/or purchasing advertising space on behalf of Caburn Hope, for the purpose of advertising
Media Services means web and advertising services including but not only, video editing, web design, planning and handling advertising
Media Spend means any and all the sums charged to Caburn Hope by the Media Provider on behalf of the Client.
New Materials, means all materials (including any presentations, reports, specifications, designs, user guides, documentation and works) conceived, designed, prepared or created by or on behalf of Caburn Hope for the purposes of or pursuant to the Services or arising out of the provision of the Services and/or Deliverables excluding Software, Supplier Materials, Client Materials and Third Party Materials.
Personal Data, means has the meaning set out in the Data Protection Legislation and relates only to personal data, or any part of such personal data, in respect of which the Client is the Data Controller and in relation to which Caburn Hope is providing Services under the Contract.
Pre-existing Intellectual Property Rights, means Intellectual Property Rights existing before the commencement date of the Conditions as set out in the Confirmation Form.
Processing, has the meaning set out in the Data Protection Legislation.
Service Fees, means the fees payable by the Client for the supply of the Services in accordance with clause 5.
Services, means the services, including the Deliverables and the Media Services where appli9cable, provided by Caburn Hope to the Client as set out in the Specification Sheet.
Specification Sheet, means the description or Specification Sheet of the Services and the Service Fees as shall be agreed in writing between the parties from time to time.
Third Party Materials, means all materials which are proprietary to any third party and which are either Deliverables or are incorporated in Deliverables, excluding Supplier Materials, New Materials and Software.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body whether or not having separate legal personality;
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes e-mails.
2. Basis of contract
2.1 The Confirmation Form constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The offer to purchase the Services from Caburn Hope shall be deemed to be accepted and the Contract shall come into existence on the date on which the Client returned the signed Confirmation Form or, in the absence of an Confirmation Form, signed or otherwise, on the date in which Caburn Hope performed any act in the provision of any of the Services.
2.3 Any samples, drawings, descriptive matter or advertising issued by Caburn Hope, and any descriptions or illustrations contained in Caburn Hope’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 Any quotation given by Caburn Hope shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue and all amounts quoted by Caburn Hope under the Contract are exclusive of Value Added Tax as chargeable from time to time.
3. Supply of Services
3.1 Caburn Hope shall supply the Services to the Client in accordance with the Specification Sheet in all material respects.
3.2 Caburn Hope shall use all reasonable endeavours to meet any performance dates specified in the Confirmation Form or in the Specification Sheet, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Caburn Hope shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Caburn Hope shall notify the Client in any such event.
3.4 Caburn Hope warrants to the Client that the Services will be provided using reasonable care and skill.
4. Client’s obligations, undertaking and acknowledgement
4.1 The Client shall:
4.1.1 ensure that the terms of the Confirmation Form and any information it provides in the Specification Sheet are complete and accurate;
4.1.2 co-operate with Caburn Hope in all matters relating to the Services;
4.1.3 provide Caburn Hope, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by Caburn Hope;
4.1.4 provide Caburn Hope with such information and materials as Caburn Hope may reasonably require from time to time to supply the Services, and ensure that such information is accurate in all material respects, is not defamatory, in breach of any Intellectual Property Rights of any third party or otherwise;
4.1.5 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start and shall not require Caburn Hope to omit or do any act which may contravene the British Code of Advertising Practice and any other relevant codes of Practice or any relevant legislation or common law;
4.1.6 keep and maintain all Caburn Hope’s Materials at the Client’s premises in safe custody at its own risk, maintain Caburn Hope’s Materials in good condition until returned to Caburn Hope, and not dispose of or use Caburn Hope’s Materials other than in accordance with Caburn Hope’s written Confirmation or authorisation;
4.1.7 co-operate with Caburn Hope in a timely manner and hereby confirm that such co-operation is fundamental to the ability of Caburn Hope to perform the Services; and
4.1.8 provide approval for, including but not limited to, the submissions by Caburn Hope of copy, layout, artwork, storyboards and/or scripts together with on-line testing of programming and/or the cost of the various items or work required and on such approval will constitute authority for Caburn Hope to:
(a) purchase New Materials;
(b) develop the Deliverables;
(c) prepare proofs and/or publish the same in print and/or in digital as appropriate;
(d) reserve and make contracts for space, time and other facilities under the terms and conditions required by the Media Provider; and Caburn Hope shall be entitled to assume that any person holding himself/herself out to have the necessary authority to provide any approvals on behalf of the Client, has such authority.
4.2 If Caburn Hope’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
4.2.1 Caburn Hope shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Caburn Hope’s performance of any of its obligations;
4.2.2 Caburn Hope shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Caburn Hope’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Client shall reimburse Caburn Hope on written demand for any costs or losses sustained or incurred by Caburn Hope arising directly or indirectly from the Client Default.
4.3 On Caburn Hope performing the Media Services, the following shall apply:
4.3.1 the Client shall be invoiced for the Media Spend and the Media Commission immediately on placing the order with the Media provider;
4.3.2 all Media Spend shall become due and payable as of immediate effect but no later than three working days.
4.4 For the avoidance of doubt, nothing in these Conditions shall prevent Caburn Hope from publishing on its website or otherwise any or all of the Deliverables and/or New Materials relating to the Services after it was provided to the Client either in the form of news stories, contracts won, case studies or other editorial content for publicity purposes. However Caburn Hope shall not quote the Client without the Client’s approval.
5. Service Fees and payment
5.1 The Service Fees for the Services shall be invoiced by Caburn Hope and paid by the Client, all as per the Specification Sheet, in full and in cleared funds to a bank account nominated in writing by Caburn Hope, and time for payment shall be of the essence of the Contract.
5.2 Caburn Hope shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom Caburn Hope engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Caburn Hope for the performance of the Services, and for the cost of any materials.
5.3 Caburn Hope reserves the right to increase its standard hourly/daily fee rates, provided that such charges cannot be increased more than once in any 12 months period. Caburn Hope will give the Client written notice of any such increase three months before the proposed date of the increase. If such increase is not acceptable to the Client, it shall notify Caburn Hope in writing within one month of the date of Caburn Hope’s notice and Caburn Hope shall have the right without limiting its other rights or remedies to terminate the Contract by giving three months’ written notice to the Client.
5.4 Without limiting any other right or remedy of Caburn Hope, if the Client fails to make any payment due to Caburn Hope under the Contract by the due date for payment (Due Date), Caburn Hope shall have the right to charge interest on the overdue amount at the rate of four per cent per annum above the then current HSBC’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.5 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Caburn Hope in order to justify withholding payment of any such amount in whole or in part. Caburn Hope may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Caburn Hope to the Client.
6. Intellectual property rights
6.1 Except as expressly set out in the Conditions:
6.1.1 The Client shall not acquire any right, title or interest in or to the Intellectual Property Rights of Caburn Hope or its licensors, including Intellectual Property Rights in:
(a) Caburn Hope Materials;
(b) the Third Party Materials;
(c) Caburn Hope’s Pre-existing Intellectual Property Rights.
6.1.2 As long as the Client paid all outstanding fees, including but not limited to Service Fees, Caburn Hope shall not acquire any right, title or interest in or to the Intellectual Property Rights of the Client or its licensors, including:
(a) the Client Data;
(b) the Client Materials;
(c) the New Materials;
(d) Client’s Pre-existing Intellectual Property Rights.
6.2 The Intellectual Property Rights in all New Materials shall belong to and vest in the Client unconditionally and immediately on payment of the Service Fees. Caburn Hope hereby assigns, and shall procure that all third parties who may have any right, title or interest in New Materials shall assign, in each case by way of present assignment of future rights, all New Materials absolutely to the Client with full title guarantee (free from all charges, incumbrances and other rights exercisable by third parties). Caburn Hope shall procure the waiver of any Moral Rights in or relating to any New Materials.
6.3 The Client hereby grants Caburn Hope a non-exclusive, non-transferable licence to use the Client Materials and Client Data solely to the extent and for the period necessary for Caburn Hope to perform its obligations under the Conditions, such licence to terminate no later than on the termination of the Conditions. Caburn Hope shall comply with any terms or Confirmation given by the Client from time to time in relation to the use of the Client Materials and Client Data.
6.4 Caburn Hope represents that it has and will continue to have the necessary rights and licences to comply with its obligations under this Clause 6 and undertakes to execute, do and/or procure the execution or doing of such things as are reasonably necessary in order to achieve, perfect or record the assignment or grant of rights and licences in accordance with this Clause 6.
6.5 Any physical media forming part of any Deliverables shall be owned by the Client and Caburn Hope hereby transfers and agrees to procure the transfer with full title guarantee (free from all charges, incumbrances and other rights exercisable by third parties) of all right, title and interest in such media to the Client.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 6.1 shall survive termination of the Contract.
8. Limitation of liability
8.1 Nothing in these Conditions shall limit or exclude Caburn Hope’s liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.1.2 fraud or fraudulent misrepresentation; or
8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
8.2.1 Caburn Hope shall under no circumstances whatever be liable to the Client, whether in contract, tort including negligence, breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
8.2.2 Caburn Hope’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort including negligence, breach of statutory duty, or otherwise, shall be limited to the value of the Service Fees paid under the Contract.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.1.1 the other party commits a material breach of the Contract and if such a breach is remediable fails to remedy that breach within seven days of that party being notified in writing of the breach;
9.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or being a company is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or being an individual is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or being a partnership has any partner to whom any of the foregoing apply;
9.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than where a company for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party being a company other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.1.5 the other party being an individual is the subject of a bankruptcy petition or order;
9.1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
9.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party being a company;
9.1.8 a floating charge holder over the assets of that other party being a company has become entitled to appoint or has appointed an administrative receiver;
9.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; 9.1.10 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1.2 to clause 9.1.9
9.1.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
9.1.12 the other party being an individual dies or, by reason of illness or incapacity whether mental or physical, is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.2 Without limiting its other rights or remedies, Caburn Hope may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party three months’ written notice.
9.4 Without limiting its other rights or remedies, Caburn Hope shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and Caburn Hope if the Client becomes subject to any of the events listed in clause 9.1.2) to clause 9.1.12, or Caburn Hope reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
10. Consequences of termination
10.1 On termination of the Contract for any reason:
10.1.1 the Client shall immediately pay to Caburn Hope all of Caburn Hope’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Caburn Hope shall submit an invoice, which shall be payable by the Client immediately on receipt;
10.1.2 the Client shall return all of Caburn Hope’s Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then Caburn Hope may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
10.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
10.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11.1 The Client shall keep Caburn Hope indemnified in full against all costs, expenses, damages and losses whether direct or indirect, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Caburn Hope as a result of or in connection with:
11.1.1 any claim made against Caburn Hope by a third party arising out of, or in connection with, the supply of the Services, to the extent that such claim
arises out of the breach, negligent performance or failure or delay in performance of the Client’s obligations under the Contract, its employees, agents or subcontractors; and
11.1.2 any claim brought against Caburn Hope for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Services.
11.2 For the duration of the Contract and for a period of 12 months thereafter, the Client shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract and shall, on Caburn Hope’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
11.3 This clause 11 shall survive termination of the Contract.
12.1 Force majeure:
12.1.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Caburn Hope including but not limited to strikes, lock-outs or other industrial disputes whether involving the workforce of Caburn Hope or any other party, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Clients or subcontractors.
12.1.2 Caburn Hope shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
12.2 Assignment and subcontracting:
12.2.1 Caburn Hope may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
12.2.2 The Client shall not, without the prior written consent of Caburn Hope, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
12.3.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office if a company or in any other case its principal place of business, or sent by email to the other party’s main email address.
12.3.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 10.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by email, on the next Business Day after transmission.
12.3.3 This clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing”
shall include e-mails.
12.4.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
12.5.1 If a court or any other competent authority finds that any provision or part of any provision of the Contract is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
12.5.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
12.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Caburn Hope.
12.9 Entire agreement: The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Caburn Hope which is not set out in the Contract.
12.10 Implied terms: These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
12.11 Data protection and data processing
12.11.1 The Client and Caburn Hope acknowledge that for the purposes of the Data
Protection Legislation, the Client is the Data Controller and Caburn Hope is the Data Processor in respect of any Personal Data.
12.11.2 Caburn Hope shall process the Personal Data only in accordance with the Client’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Client.
12.11.3 Caburn Hope shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
12.11.4 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
12.11.5 Caburn Hope warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:
12.11.6 take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(a) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(b) the nature of the data to be protected; and
12.11.7 take reasonable steps to ensure compliance with those measures.
12.11.8 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this Clause 12.11.
12.11.9 The Client acknowledges that Caburn Hope is reliant on the Client for direction as to the extent to which Caburn Hope is entitled to use and process the Personal Data. Consequently, Caburn Hope will not be liable for any claim brought by a Data Subject arising from any action or omission by Caburn Hope, to the extent that such action or omission resulted directly from the Client’s instructions.
12.11.10 Caburn Hope may authorise a third party to process the Personal Data provided that the subcontractor’s contract:
(a) is on terms which are substantially the same as those set out in the Contract; and
(b) terminates automatically on termination of the Contract for any reason.
12.12 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation including noncontractual disputes or claims, shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.