THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION APPLY IN THESE CONDITIONS.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5 (Charges and payment).
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.5.
Contract: the contract between ELLA and the Customer for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the person or firm who purchases Services from ELLA.
Customer Default: has the meaning set out in clause 4.2.
Data Protection Legislation: to the extent that the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data
Deliverables: the deliverables set out in the Order produced by ELLA for the Customer.
ELLA: ELLA Digital Limited registered in England and Wales with company number 13426142.
ELLA’s Materials: has the meaning set out in clause 4.1(h).
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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.
Order: the Customer’s order for Services as set out in the signed order form.
Personal Data: means any information relating to an identified or identifiable living individual that is processed by ELLA on behalf of the Customer as a result of, or in connection with, the provision of the Services; an identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual
Processing, processed, processed, process: any activity that involves the use of the Personal Data. It includes, but is not limited to, any operation or set of operations which is performed on the Personal Data or on sets of the Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring the Personal Data to third parties
Services: the services, including the Deliverables, supplied by ELLA to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in writing by ELLA to the Customer in any agreed form Statement of Works entered into between the parties and attached to the order form.
(a) Unless expressly provided otherwise in this Contract, a reference to legislation or a legislative provision:
(i) is a reference to it as it is in force as at the date of this Contract; and
(ii) shall include all subordinate legislation made at the date of this Contract under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes faxes and emails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when ELLA issues written acceptance of the Order by accepting the Order Form and/or by signing any agreed Statement of Works and/or any requisite Licence Agreement as appropriate at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by ELLA, and any descriptions or illustrations contained in ELLA’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 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by ELLA shall not constitute an offer, and is only valid for the period specified on the Order Form.
3. SUPPLY OF SERVICES
3.1 ELLA shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 ELLA shall use all reasonable endeavours to meet any performance dates specified in the order form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 ELLA reserves the right to amend the specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and ELLA shall notify the Customer in any such event.
3.4 ELLA warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 ELLA shall have no liability to provide the Services in the event that there are any Charges outstanding for more than 30 days or in the event that any third party licence fees or other costs, expenses or disbursements which are the responsibility of the Customer are unpaid when due or remain unpaid or if the Customer shall be in default of the terms of any third party licence agreement or any associated End User Licence Agreement but for the avoidance of doubt ELLA shall still be entitled to be paid the Fees and Charges in accordance with the terms of these Terms and Conditions
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with ELLA in all matters relating to the Services;
(c) provide ELLA, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by ELLA;
(d) provide ELLA with such information and materials as ELLA may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer’s premises for the supply of the Services;
(f) pay the Charges in cleared funds on or before the due date for payment and pay or discharge all third party costs and expenses and Licence Fees required to be paid on or before their due date for payment;
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(h) keep all materials, equipment, documents and other property of ELLA (ELLA’s Materials) at the Customer’s premises in safe custody at its own risk, maintain ELLA Materials in good condition until returned to ELLA, and not dispose of or use ELLA’s Materials other than in accordance with ELLA’s written instructions or authorisation.
4.2 If ELLA’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, ELLA shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays ELLA’s performance of any of its obligations;
(b) ELLA shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from ELLA’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse ELLA on written demand for any costs or losses sustained or incurred by ELLA arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be calculated on a time and materials basis:
(a) the Charges shall be calculated in accordance with ELLA’s daily fee rates, as set out in The order form;
(b) ELLA’s daily fee rates for each individual are calculated on the basis of an eight-hour day from 8.30 am to 5.30 pm worked on Business Days;
(c) ELLA shall be entitled to charge an overtime rate of 150 per cent of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.1(b); and
(d) ELLA shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom ELLA engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by ELLA for the performance of the Services, and for the cost of any materials.
5.2 ELLA reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be the latest available figure for the percentage increase in the Retail Prices Index.
5.3 ELLA shall invoice the Customer monthly in advance.
5.4 The Customer shall pay each invoice submitted by ELLA:
(a) within 14 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by ELLA, and time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by ELLA to the Customer, the Customer shall, on receipt of a valid VAT invoice from ELLA, pay to ELLA such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 If the Customer fails to make a payment due to ELLA under the Contract by the due date, then, without limiting ELLA’s remedies under clause 11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0% but shall rise to 8% per annum for any period beyond 30 days after the due date for payment (both before and after any judgement) until the outstanding balance and accrued interest has been paid in full.
5.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by ELLA.
6.2 ELLA grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
6.4 The Customer grants ELLA a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to ELLA for the term of the Contract for the purpose of providing the Services to the Customer.
7. DATA PROTECTION
The parties shall comply with their data protection obligations as set out in Schedule 1.
8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 ELLA has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £2,000,000 (Two Million Pounds) per claim.
The limits and exclusions in this clause reflect the insurance cover ELLA has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
8.2 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
8.4 Nothing in this clause 8 shall limit the Customer’s payment obligations under the Contract.
8.5 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.6 The cap on ELLA’s liabilities shall be equal to the amount charged by it for the provision of the Services under the relevant Order Form
8.7 Subject to clause 8.3 (No limitation in respect of deliberate default), clause 8.4 (No limitation of customer’s payment obligations) and clause 8.5 (Liabilities which cannot legally be limited), this clause 8.7 sets out the types of loss that are wholly excluded:
(a) loss of profits
(b) loss of sales or business.
(c) loss of agreements or contracts.
(d) loss of anticipated savings.
(e) loss of use or corruption of software, data or information.
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
8.8 ELLA has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.9 Unless the Customer notifies ELLA that it intends to make a claim in respect of an event within the notice period, ELLA shall have no liability for that event.
The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.10 This clause 8 shall survive termination of the Contract.
9.1 ELLA is an authorised Reseller for SFDC and the Salesforce suite of technologies and for some other third party technology providers which they may recommend
9.2 If the Customer agrees to buy any Salesforce or other technologies through ELLA then ELLA will invoice the Customer in line with the period specified on the Order Form (or such other period as specified as required by any technology provider) for the Licence Fees payable to Salesforce Technology or such other third party for the End User Licence Agreement for any such Salesforce or other technologies. The Customer warrants to ELLA that it shall pay the licence fee and all associated costs within 14 days of an invoice being rendered by ELLA for the same and shall indemnify and keep fully and effectively indemnified from and against all such costs, claims or interest whilst further recognising that any increase in the number of Users may increase the cost of the End User Licence Agreement
10. RECOMMENDATIONS OF SOFTWARE
10.1 Where, as part of the Services, ELLA suggest a particular software or suite of software or platform might be suitable for the Customer’s use or needs, it gives no warranties, representations or undertakings in relation to such software, suite of software or platform, its suitability, functionality or fitness for purpose.
11.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party written notice in line with the period referred to in the relevant Order Form or Statement of Works.
11.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 21 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.3 Without affecting any other right or remedy available to it, ELLA may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment there is a change of Control of the Customer.
11.4 Without affecting any other right or remedy available to it, ELLA may suspend the supply of Services under the Contract or any other contract between the Customer and ELLA if
(a) the Customer fails to pay any amount due under the Contract on the due date for payment;
(b) the Customer becomes subject to any of the events listed in clause 11.2(c) to clause 11.2(d), or ELLA reasonably believes that the Customer is about to become subject to any of them; and
(c) the ELLA reasonably believes that the Customer is about to become subject to any of the events listed in clause 11.2(b).
12. CONSEQUENCES OF TERMINATION
12.1 On termination or expiry of the Contract:
(a) the Customer shall immediately pay to ELLA all of ELLA’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, ELLA shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of ELLA Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then ELLA may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
12.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.
12.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
13.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
13.2 Assignment and other dealings.
(a) ELLA may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of ELLA.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
13.4 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
13.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.7 Severance If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 13.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address specified in the Order Form
(b) Any notice or other communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 13.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
13.9 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
13.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.
13.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Schedule 1 Data protection
1 DATA PROTECTION
1.1 With respect to its rights and obligations under the Agreement with regard to Personal Data, each Party shall at all times comply with the Data Protection Legislation and shall not perform any obligation under the Agreement in such a way as to cause either Party to breach any of its obligations under the Data Protection Legislation.
1.2 During the term of the Agreement, the Parties acknowledge that in order to perform the Services, ELLA may process Personal Data including information about staff and customers of the Customer in respect of which the Customer is a controller. To the extent that ELLA processes any Personal Data as a processor on behalf of the Customer, ELLA shall:
1.2.1 fairly and lawfully perform its roles as a Data Processor by processing the Personal Data at all times in accordance with Data Protection Legislation on behalf of the Customer solely for the purposes connected with provision by ELLA of the Services and in the manner specified in this Agreement, or as may be required by applicable laws to which ELLA is subject;
1.2.2 only process Personal Data: (i) to the extent necessary for the provision of the Services to be provided under the Agreement and always in accordance with the written instructions of the Customer (save to the extent such instructions infringe Data Protection Legislation, in which case ELLA shall immediately notify the Customer); or (iii) as required by any regulator or applicable law (in which case ELLA shall inform the Customer of such legal requirement before processing; unless prevented from doing so by applicable law);
1.2.3 implement appropriate technical and organisational measures to:
(a) ensure the ongoing security, integrity, availability and confidentiality of the Personal Data; and
(b) maintain the security of the Personal Data and prevent unauthorised or unlawful access to, or processing of, or any accidental loss, destruction or damage to that Personal Data;
and such measures shall (at a minimum and in agreement with the Customer):
(c) meet the requirements of Data Protection Legislation (including the requirements of Article 32 (Security of processing) of the UK GDPR);
(d) reflect the level of harm, damage and/or distress that might be suffered by the data subject to whom the Personal Data relates in the event of a breach of the measures as set out herein;
(e) ensure that only authorised personnel have access to Personal Data and that any persons authorised to have access to Personal Data will respect and maintain all due confidentiality;
(f) include a requirement to comply with a schedule of minimum security measures in the terms between ELLA and any approved sub-contractors;
(g) without prejudice to the foregoing, ELLA shall: (i) implement such specific measures as may reasonably be requested by the Customer from time to time in order to protect the Personal Data; and (ii) comply with the requirements of any security measures proposed by the Customer from time to time;
(h) ensure that all its computers and portable electronic devices (including laptops, tablets, smart phones and USB sticks) that will be used for storing, sending and receiving Personal Data are appropriately protected against unauthorised use by encryption/passwords and appropriate firewalls/anti-virus packages (with regular and frequent updates being applied) and are physically stored securely when not in use;
(i) ensure that Personal Data transported by portable storage media or by telecommunications network shall be fully encrypted or password protected / sent by secure virtual private network as appropriate. All such Personal Data must be wiped from the storage media used for transporting the Personal Data or destroyed such that it cannot be recovered once the data has been transferred to the target system;
(j) ensure that all relevant ELLA staff are made aware of ELLA’s obligations hereunder;
(k) maintain a comprehensive and complete audit trail detailing which staff have accessed which Personal Data, from where and detailing the actions which have been undertaken in respect of such Personal Data; and
(l) ensure that non-authorised persons are prevented from entering areas of its premises where Personal Data is stored and used. Where this is not possible, all visitors must be escorted at all times;
1.2.4 keep, and procure that its partners, employees and other personnel engaged in the provision of the Services, and those of its agents, approved sub-contractors (where applicable), are made aware of, and act in accordance with, ELLA’s safeguarding obligations under this paragraph 1 with regard to the security and protection of the Personal Data and are informed of the confidential nature of the Personal Data and are subject to binding obligations of confidentiality in respect of the Personal Data which they process;
1.2.5 keep Personal Data in accordance with the confidentiality obligations contained in the Agreement and not divulge the Personal Data whether directly or indirectly to any person, group, firm or Customer or otherwise without the express prior written consent of the Customer except to those of its staff, agents and approved subcontractors who are engaged in the processing of the Personal Data and are subject to the binding obligations referred to in paragraph 1.2.4 or except as may be required by any applicable law or competent authority;
1.2.6 inform the Customer immediately upon becoming aware that Personal has been used or processed in a manner which is not expressly permitted by this paragraph 1 or the Personal Data has the potential to be misused in any way, or ELLA reasonably considers that an instruction issued by the Customer in accordance with this paragraph 1 infringes Data Protection Legislation;
1.2.7 inform the Customer immediately upon becoming aware of any actual or suspected, threatened or ‘near miss’ incident of accidental or unlawful destruction or accidental loss, alteration, unauthorised or accidental disclosure of or access to the Personal Data in relation to the Personal Data, or if the Personal Data is lost (temporarily or permanently) or has the potential to be misused in any way;
1.2.8 inform the Customer as soon as possible and in any event within two (2) days if ELLA receives a request from a data subject seeking to exercise their rights under Data Protection Legislation in relation to the Personal Data, including to have access to Personal Data held about them, and ELLA shall not respond to the data subject other than to acknowledge receipt of the request. ELLA further agrees to assist the Customer with all data subject information requests, allegations or complaints which may be received from any data subject in relation to any Personal Data processed by ELLA on behalf of the Customer;
1.2.9 at the choice of the Customer, delete or return all Personal Data to the Customer on termination or expiry of the Agreement, and delete all copies of the Personal Data (save to the extent that retention of copies is required by applicable law);
1.2.10 provide such cooperation and information to the Customer as is necessary for the Customer to demonstrate compliance with its obligations pursuant to Data Protection Legislation, including permitting the Customer, or a third party acting on its behalf, to audit ELLA’s compliance with this clause and by providing (at the Customer’s request) full cooperation and assistance to the Customer as is contemplated by paragraph 1.2.3 for the purpose of compliance with the processor obligations specified in Articles 28(3)(e) and (f) of the UK GDPR;
1.2.11 promptly provide the Customer on request with all reasonable information assistance and co-operation in relation to: (i) the Customer’s compliance with Articles 5 and 35 of the UK GDPR; and (ii) ELLA’s use of Personal Data to permit an accurate and complete assessment of compliance with this paragraph 1, including to allow ELLA’s and its sub-processors’ data processing facilities, procedures and documentation to be submitted for scrutiny, inspection, test or audit by the Customer, or any person appointed on the Customer’s behalf, at the Customer’s cost, within twenty (20) days after such a request from the Customer and to provide (and procure that each sub-processor provides) reasonable information assistance and co-operation to the Customer if this right is exercised;
1.2.12 without prejudice to paragraph 1.2.8, if ELLA receives any complaint, notice, request or communication from a competent authority or a data subject which relates directly or indirectly to the processing of the Personal Data or to either party’s compliance with Data Protection Legislation, immediately notify the Customer in writing and provide the Customer with full co-operation and assistance in relation to the same, and such assistance may include the provision of a copy of all or part (as directed by the Customer) of the Personal Data held by ELLA. ELLA shall not respond to the complaint, notice, request or communication without the prior written consent of the Customer (except to the extent required by law) other than to acknowledge receipt;
1.2.13 not make any announcement or publish, or otherwise authorise any broadcast of, any notice or information, about any incident relating to a potential breach of Data Protection Legislation (a “Breach Notice”) without the prior written consent of the Customer and, if consent is given, prior written approval by the Customer of the content, media and timing of the Breach Notice;
1.2.14 not engage any third party (including ELLA affiliates) to process Personal Data on behalf of the Customer as a sub-processor without the Customer’s express prior written consent and shall ensure that such sub-processor is subject to a written contract containing data protection obligations no less onerous than those set out in this clause. ELLA shall be responsible and remain liable for the acts and omission of any such sub-processor with respect to the processing of Personal Data as if they were the Customer’s own acts, omissions or defaults. The Customer may subsequently withdraw its consent to the engagement of a sub-processor where it has reasonable grounds for doing so (including where the Customer has concerns over the ability of the sub-processor to process the Personal Data in the manner contemplated by this Agreement) and in such circumstances ELLA shall cease to use the sub-processor to process Personal Data;
1.2.15 securely return or securely destroy, as soon as ELLA no longer needs to process Personal Data for the provision of the Services (and in any event upon termination or expiry of this Agreement) or otherwise upon Customer’s request (as directed by the Customer), the Personal Data (or that part of the Personal Data which ELLA no longer requires or is the subject of the Customer’s request) and all copies held by or on behalf of ELLA, and the Customer will retain complete discretion over the precise manner in which the Personal Data and the copies are to be returned or destroyed (as the case may be).