Kernow Social Media Agency Limited – Terms and Conditions

Agreement 

1.1. This is an Agreement between the Customer  and Kernow Social Media Agency Limited  

(“Kernow Social Media Agency”) a company  incorporated in England and Wales under  registered number 12492572 at the registered  address 21 Penwithick Road, Penwithick,  St. Austell, England, PL26 8UH. Kernow Social  Media Agency Service (“Service”) purchased  by the Customer will consist of products detailed  in the Order Confirmation and may include the  following: 

1.1.1. Kernow Social Media Agency management   of generating business leads through   social media and/or 

1.1.2. Provision of marketing and prospecting via   the internet and/or 

1.1.3. Graphic Design and/or  

1.1.4. Rebranding and/or 

1.1.5. Social Media Consulting 

1.2. This Agreement consists of the Order  Confirmation and the Terms and Conditions  and constitutes the entire agreement between  the Customer and Kernow Social Media Agency  in relation to the Service. 

1.3. By signing the Order Confirmation, or by  accessing or using the Service, the Customer  accepts the content of this Agreement. Unless  otherwise stated in the Terms and Conditions,  where the terms of the Order Confirmation  conflict with the Terms and Conditions, the  Terms and Conditions shall take precedence. 

  1. Agreement 

2.1. This Agreement shall be in force from the date  inserted on the Order Confirmation and continue  for a period of 12 months unless otherwise stated  in the Order Confirmation. 

2.2. The Customer may be contacted during this  Agreement period regarding new developments  and products. 

2.3. From time to time Kernow Social Media Agency  Limited may, from time to time, at its absolute discretion, make and/or apply updates,  alterations, modifications and adaptations to  the Service or any element of the Service  (“Alterations”). Kernow Social Media Agency will  take reasonable steps to inform the Customer  of these Alterations with as much advance  warning as possible. 

2.4. Kernow Social Media Agency does not warrant  that the Customer’s use of the Service will  be uninterrupted or error-free and is not  responsible for any, or any other loss or damage  resulting from miscommunications via the  transfer of data over communications networks  and facilities, including the internet, and the  Customer acknowledges that the Service may  be subject to limitations, delays and other  problems inherent in the use of such communications facilities. Kernow Social Media  Agency shall have no liability (on any account  whatsoever) to the Customer as a result of or  related to such events. 

2.5. This Agreement entitles the Customer to access  and retain the Service for the purposes detailed in  this Agreement and for the duration of the  Agreement only. The rights to access and use  the Service shall automatically lapse on termination or expiry of this Agreement. No  subscriptions, rights or credits may be extended  or carried over on any renewal, unless agreed in  writing by Kernow Social Media Agency. No  refund shall be payable by Kernow Social Media Agency in respect of any unused rights or credits.  

  1. Charges and Payment 

3.1. In consideration of Kernow Social Media Agency  providing the Service, the Customer agrees to  pay the sum specified in the Order Confirmation  and or the invoice issued therewith (“the Invoice”)  on the times and dates specified therein. For the  avoidance of doubt, all payments must be made  within 21 days of the invoice date unless otherwise stated in the Order Confirmation or  where the parties have agreed that payment shall  be made by direct debit. 

3.2. Subject to clause 3.7, if you fail to pay the amount  specified on the Order Confirmation and or  invoice on the times and dates agreed the  full amount will become due with immediate  effect. 

3.3. In the event that the Service is suspended in  accordance with clause 7, then Kernow Social  Media Agency shall be under no obligation to: 

3.3.1. Re-instate the Service and/or: 

3.3.2. Recompense the Customer in respect of   any period of suspension from the time of   payment default to receipt of payment. 

3.4. If the Customer fails to pay Kernow   Social Media Agency any sum due   pursuant to the Agreement, the Customer   shall be liable to pay interest to Kernow  Social Media Agency on such sum from   the due date for payment at the annual   rate of 4% above the base lending rate   from time to time of HSBC Plc, accruing   on a daily basis until payment is made,   whether before or after any judgment. 

3.5. Kernow Social Media Agency reserves the right  to claim interest and compensation under  the Late Payment of Commercial Debts  (Interest) Act 1998. 

3.6. The Customer agrees to fully indemnify Kernow  Social Media Agency against all third party costs  incurred in the pursuit of payment. 

3.7. Without prejudice to the generality of the  foregoing provisions of this clause 3, where the  Customer and Kernow Social Media Agency  agree that the Customer shall pay the amount  specified in the Order Confirmation by direct  debit then: 

3.7.1. Kernow Social Media Agency will use   reasonable endeavours to contact the   Customer by telephone to complete   a standing order. Alternatively Kernow   Social Media Agency will ask the Customer   to utilise the GoCardless facility to make   payments. 

3.7.2. Where the Customer and Kernow Social   Media Agency are unable to complete   the standing order or GoCardless function   within two working days of the date of the  Invoice (“the Invoice Date”), then payment   of the full amount of the sum specified in   the Order Confirmation will become due   within 21 days of the Invoice Date. In   the event that the Customer fails to   pay the sum due within the   aforementioned 21 days, the full amount   will become due with immediate effect   and clauses 3.3 to 3.6 of this Agreement   shall apply in full force and effect. 

3.7.3. Where Kernow Social Media Agency   attempts to take a payment by direct debit   and the payment fails for whatever reason, payment for the full amount of the sum   specified in the Order Confirmation will   become due immediately and clauses   3.3 to 3.6 of this Agreement shall apply.   The Customer accepts that it shall be liable for any bank charges incurred   by Kernow Social Media Agency   as a result of a failed payment. 

3.7.4. For the avoidance of doubt the provisions   of this clause 3.7 shall only apply to   Customers paying by monthly   arrangement.  

3.8. The Customer acknowledges and agrees that: 

3.8.1. Kernow Social Media Agency may collect   payment information relating to the   Customer and its payment of Kernow   Social Media Agency’s invoices, which will   be used by Kernow Social Media Agency as   part of its products/services; and 

3.8.2. Any failure by the Customer to pay Kernow   Social Media Agency’s invoices on time   may have an adverse impact on the   Customer’s credit rating. 

  1. Kernow Social Media Agency  Proprietary Rights 

In this clause the term “Intellectual Property Rights”  means patents, rights to inventions, copyright and  related rights, trade marks, business names and  domain names, rights in get-up, goodwill and the  right to sue for passing off, rights in designs, database  rights, rights to use, and protect the confidentiality of,  confidential information (including know-how), and all  other intellectual property rights, in each case whether  registered or unregistered and including all applications  and rights to apply for and be granted, renewals or  extensions of, and rights to claim priority from, such  rights and all similar or equivalent rights or forms of  protection which subsist or will subsist now or in the  future in any part of the world. 

4.1. Except as expressly provided herein access to  the Service does not grant the Customer any  database rights or rights in the copyright, trademarks or any other Intellectual Property  Rights of Kernow Social Media Agency or any  third party. 

4.2 The Service is protected by Intellectual Property  Rights. All Intellectual Property Rights in  or arising out of or in connection with the Service shall be owned by Kernow Social Media  Agency or, where relevant, its third party  subcontractors or the third party providers. 

4.3 The Customer is not permitted and will not allow  any third party to adapt, alter, modify, reverse  engineer, de-compile or otherwise interfere with  any element of the Service without Kernow Social  Media Agency’s written permission. Kernow  Social Media Agency may take steps to assist identification of its Service. 

4.4 Data protection 

4.4.1 For the purpose of this Agreement  

 “data controller”, “personal data”, and   “processing” have the definitions   contained in the Data Protection   Legislation and “Data Protection   Legislation” means (i) the Data Protection   Act 2018; (ii) the General Data Protection   Regulation ((EU) 2016/679) (“GDPR”)   and any national implementing laws,   regulations and secondary legislation, as   amended or updated from time to time   in the UK; and (iii) any successor legislation   to the Data Protection Act 2018 and GDPR   together with any judicial or administrative   interpretation of any of the above, any   guidance, guidelines, codes of practice,   approved codes of conduct or approved   certification mechanisms issued by the  Information Commissioner’s Office or such   other supervisory authority as may be   responsible for enforcing compliance with   the Data Protection Legislation from time   to time. 

4.4.2 This clause sets out the framework for   the sharing of personal data between the   parties as independent data controllers. 

4.4.3 The Customer is responsible for establishing the lawful basis for processing   personal data obtained pursuant to use of   the Services and maintaining compliance   with the Data Protection Legislation in connection with such data. 

4.4.4 The Customer acknowledges that accessing personal data through the use of the Services is only permitted where the   Customer has a lawful basis for doing so   and the Customer warrants that it shall   only request personal data where the Customer has a lawful basis for doing so. 

4.4.5 The Customer agrees that it shall only   access and use the Services for the   purpose of prospecting, marketing, know   your customer checks, compliance, and   enhancement, and other lawful business   purposes. 

4.4.6 The Customer acknowledges that it is its   duty to record and demonstrate the   existence of its lawful basis for processing. 

4.4.7 Where the Customer uses the monitoring   service, Kernow Social Media Agency will   inform the Customer by email whenever   there is a relevant change in the data   monitored. The Customer shall stop the   monitoring service for monitored data   when the Customer ceases to have a   lawful basis for processing that data. 

4.4.8 Where the Customer provides Kernow Social Media Agency with data or   information which includes personal data to enable Kernow   Social Media Agency to provide the data   cleanse and append service, the Customer   warrants that it has a lawful basis for doing so and that it has complied with the   transparency requirements set out in  Articles 13 and 14 of the GDPR as applicable. 

4.4.9 The parties agree that if Kernow Social   Media Agency Limited considers that   the provisions of this Clause 4.4 do not   comply with Data Protection Legislation   then Kernow Social Media Agency may   adapt, update or amend the terms of this   Clause 4.4 to ensure compliance with   Data Protection Legislation. 

4.4.10 Further, Kernow Social Media Agency and   the Customer both acknowledge that as a   result of the United Kingdom leaving the   European Union the law relating to privacy   and data protection as it applies to this   Agreement may change. Should such a   situation arise Kernow Social Media   Agency may make any alterations,   amendments or updates to this Clause 4.4   that may be required as a result of such   changes. 

4.4.11 In the event that any personal data is   transferred from the European Economic   Area (“EEA”) to a country outside the EEA   pursuant to this Agreement, the parties   acknowledge and agree that the European   Commission’s Standard Contractual   Clauses for the transfer of personal data to   controllers established in third countries   available here (“SCC”) shall apply to any   such transfers. The parties shall comply   with the SCC, as well as the terms of this   Clause 4.4, in relation to any such   transfers. For the purpose of the SCC, the   data exporter shall be the party located   in the EEA and the data importer shall be   the party located outside the EEA. 

4.4.12 In the case of a conflict or ambiguity   between any of the provisions of this   Agreement and the SCC, the provisions of   the SCC will prevail. 

4.4.13 In the event that the European Commission approves new standard   contractual clauses, Kernow Social Media   Agency reserves the right to replace the   SCC with any such new standard   contractual clauses. 

  1. Customer Obligations and Conduct 5.1 The Customer shall: 

5.1.1. provide Kernow Social Media Agency with   any information or assistance which the   parties have agreed the Customer shall   provide in order for Kernow Social Media   Agency to perform its obligations under   this Agreement, and shall use all reasonable endeavours to ensure that  any such information provided to Kernow   Social Media Agency is complete, accurate   and in the agreed format 

5.1.2. not to do anything to harm Kernow Social Media Agency’s reputation 

5.1.3. abide by all laws & regulations applicable   to its use of the Service and the data   contained therein, including full   compliance with all aspects of Data   Protection Legislation 

5.1.4. not attempt to copy, modify, duplicate,   create derivative works from, frame,   mirror, republish, download, display,   transmit, or distribute all or any portion   of the Services in any form or media or by   any means. You will not attempt to reverse   compile, disassemble, reverse engineer or   otherwise reduce to human-perceivable   form all or any part of the Services. You   will not access all or any part of the   Services in order to build a product or   service which competes with the Services   nor will you use the Services to provide   services to third parties. Use of any   automated system or software to extract   data from the Site, the Application or the   Services (“screen scraping”) is expressly   prohibited. 

5.2. The Service made available to the Customer  is a non transferable license and is provided  solely for the Customer’s own internal use  within the United Kingdom and the Republic of  Ireland. The Customer may not sell, transfer  sublicense, distribute, commercially exploit or  otherwise make available to, or use for the  benefit of, any of the Service. The Customer may  not include the Service in any product or service  which the Customer sells. 

5.3. During this Agreement the Customer agrees not  to attempt to gain unauthorised access to the  Service or modify the same. 

5.4. The Customer shall only take such copies of the  Service as are reasonably required for the use of  the Service in accordance with this Agreement. 

5.5. The Customer agrees to be responsible for  maintaining the confidentiality any passwords  and account details. 

5.6. Unless otherwise detailed within your Order  Confirmation, the use of the Service provided  under the terms of this agreement is limited to  one designated business any may not be used by  any other business the designated user. The use  of the Service by more than one individual, either  simultaneously or otherwise will require the  provision of additional licenses.  

5.7. If the Customer receives consumer reporting  services (Consumer Service), the Customer  undertakes and warrants that it shall only use the  Consumer Service to conduct searches for which it has obtained prior consent from the  relevant individual and it shall not use the Consumer Service for any tracing, debt collection  or private investigation activities. The Consumer  Service is also subject to Supplementary Terms  and the Customer agrees to comply with such  terms. 

5.8. If the Customer receives prospecting or  marketing information (Prospecting Data), the  Customer is licensed to utilise the Prospecting  Data for internal marketing purposes only.  The Customer is responsible for determining on  which lawful basis it shall utilise the Prospecting  Data pursuant to the Data Protection Legislation  and for compliance with all legal and regulatory  requirements in relation to such Prospecting  Data, including the Telephone Preference Service,  Commercial Telephone Preference Service, and  DMA guidelines. 

  1. Warranties and Limitation of  Liability 

6.1. The Kernow Social Media Agency Service is not  intended to be used as the sole basis for any  decision making and is based upon data which  is provided by third parties, the accuracy of  which it would not be possible for Kernow Social  Media Agency to guarantee. Whilst Kernow Social  Media Agency aims always to maintain a quality,  fully operative service, the Service and third party  services are nonetheless provided on an “as is”,  as available basis without warranties of any kind,  whether express or implied. 

6.2. Specifically Kernow Social Media Agency gives  the Customer no warranty or assurance about  the contents of the Service. Whilst Kernow  Social Media Agency does endeavour to maintain  the accuracy and the quality of the Service,  information contained may be incorrect or  out of date. Therefore any use of the Service is at  the Customer’s own risk. 

6.3. Subject to clause 6.5 Kernow Social Media  Agency shall not be liable for any indirect or  consequential loss. Kernow Social Media Agency  Limited shall not be liable for the following types  of financial loss (whether direct or indirect); loss  of profits, loss of earnings, loss of business  or goodwill in addition to the following types  of anticipated or incidental losses; loss of anticipated savings, increase in bad debt and  failure to reduce bad debt. 

6.4. Where any matter gives rise to a valid claim  against Kernow Social Media Agency its liability  shall be limited to a sum equal to the sum paid  for the Service supplied under this Agreement in  the year the claim arises. 

6.5. Nothing in this clause 6 or any other provision  of this Agreement shall seek to exclude or limit  liability for infringement, death, or personal injury  or for breach of its obligation under s12 Sale  of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982 or fraudulent misrepresentation. 

6.6. Each party to this Agreement warrants that it  has obtained and will continue to hold all necessary licenses, consents, permits and  agreements required for it to comply with its  obligations under this Agreement and for the  grant of rights to the other party under this  Agreement. 

  1. Termination 

7.1. Kernow Social Media Agency shall be entitled to  terminate this Agreement with immediate effect  by giving written notice to the Customer if: 

7.1.1. the Customer fails to pay any undisputed   amount due under this Agreement on   the due date for payment and remains   in default not less than 14 days after being   notified in writing to make such payment;   or 

7.1.2. the Customer commits a material breach   of its other obligations under this   Agreement and (if remediable) fails to   remedy that breach within 14 days of   receipt of notice requiring it to do so; 

7.1.3. the Customer is unable to pay its debts   (within the meaning of section 123   of the Insolvency Act 1986), or becomes   insolvent, or is subject to an order or a   resolution for its liquidation, administration, winding-up or dissolution   (otherwise than for the purposes of a   solvent amalgamation or reconstruction),   or has an administrative or other receiver,   manager, trustee, liquidator, administrator   or similar officer appointed over all or any   substantial part of its assets, or enters into   or proposes any composition or   arrangement with its creditors generally, or   is subject to any analogous event or   proceeding in any applicable jurisdiction. 

7.2. Notwithstanding its right to terminate the  Agreement, where Kernow Social Media Agency  reasonably believes the Customer has breached  any provision of this Agreement Kernow Social  Media Agency may, with immediate effect and  without notice, suspend access to the Service. 

7.3. Upon termination or expiration of this  Agreement: 

7.3.1. all rights and licences granted under this   Agreement, including the right to access   and use the Service, shall immediately   terminate; 

7.3.2. the Customer must delete all and any part   of the Service (including any data or   reports obtained via the Service) held by   the Customer in any format and the   Customer may not make any further use   of the Service (or the data obtained from   use of the Service); 

7.3.3. the Customer shall immediately pay to   Kernow Social Media Agency Limited all of   Kernow Social Media Agency’s outstanding   and unpaid invoices; 

7.3.4. the accrued rights, remedies, obligations   and liabilities of the parties as at expiry   or termination shall be unaffected,   including the right to claim damages in   respect of any breach of this Agreement   which existed at or before the date of   termination or expiry; and 

7.3.5. clauses 3, 4, 5, 6, 7, 8, and 11 shall continue   with full force and effect. 

  1. Indemnity 

8.1. The Customer agrees to indemnify, defend  and hold Kernow Social Media Agency, its parents, subsidiaries, affiliates, officers and  employees harmless from any loss, cost, damage, claim or demand, including reasonable  legal fees, made by any third party or incurred  or suffered by Kernow Social Media Agency or its  parents, subsidiaries, affiliates, officers or employees in connection with the Customer’s in  breach of this Agreement. 

  1. Assignment 

Kernow Social Media Agency may assign the benefit of this Agreement. 

  1. Force Majeure 

10.1. Kernow Social Media Agency will not be liable  for failure to perform any obligation under this  Agreement if such failure is caused by the occurrence of any unforeseen contingency  or circumstances beyond the reasonable control  of Kernow Social Media Agency, including without  limitation Internet outages, communications  outages, fire, flood war or act of God. 

  1. Confidentiality 

In this clause for the term “Confidential Information”  means information, in any form, of a confidential  or proprietary nature disclosed by one party to the  other which is marked as confidential; or is identified as confidential at the time of disclosure; or would be  regarded by a reasonable business person as being  confidential, including but not limited to information  regarding the disclosing party’s business, customers,  employees, suppliers, software, products, know-how,  processes and business intentions; 

11.1. Each party undertakes that it shall not at any time  disclose to any person any Confidential Information except as permitted by clause 11.2. 

11.2. Each party may disclose the other party’s  confidential information: 

11.2.1. To its employees, officers, representatives   or advisers who need to know such information for the purposes of carrying   out the party’s obligations under this Kernow Social Media Agency Terms and Conditions 2020 Agreement. Each party shall ensure that   its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply  with this clause 11; 

11.2.2. And as may be required by law, court order  or any governmental or regulatory authority. 

11.3. No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement. 

  1. Miscellaneous 

12.1. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall  be struck out and the remaining provisions shall remain enforceable. 

12.2. The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third parties) Act 1999 shall not apply to this Agreement. 

12.3. The terms of this Agreement and the provision of  the Service and the relationship between the Customer and Kernow Social Media Agency shall be governed by the laws of England and Wales.  The Customer agrees irrevocably to submit to  the exclusive jurisdiction of the courts of England  and Wales. 

12.4. The failure of Kernow Social Media Agency  to exercise or enforce any right or provision of  this Agreement shall not constitute a waiver of  such a right. The Service is subject to availability. 

12.5. Should any third party data become unavailable  to Kernow Social Media Agency, Kernow Social  Media Agency shall be entitled to obtain a similar  service from another third party supplier. 

12.6. Kernow Social Media Agency may unilaterally vary  any term of this Agreement in order to comply  with any legislation applicable to the provision of  the Services. 

  1. Media Solutions 

Kernow Social Media Agency is not financially  responsible for the success the Service. Should any of  the Service and content be deemed to be infringing  any law or right of a third party, Kernow Social Media  Agency has the right to remove the infringing material  without obtaining the Customer’s consent. Kernow  Social Media Agency will be entitled to take all such  steps that it considers to be necessary for the purpose  of bringing an end to such infringement. Kernow Social  Media Agency is not liable for Customer’s negligence  or misuse of the Service or content from third parties.  Where access to websites require payments the  customer will be responsible for paying the same.