Ellipsis Marketing Limited – Terms and Conditions

1. Interpretation. Capitalised words in these terms and conditions shall be given the meaning as set out in Schedule 1 (Interpretation).

2. Commencement and term

  1. The Agreement shall commence on the date when it has been signed by both parties, or upon acceptance of the Proposal, and shall continue until completion of the Services unless otherwise terminated in accordance with clause 7.

3. Supply of services

  1. Ellipsis shall supply the Services to the Customer from the Services Start Date in accordance with the Agreement.
  2. In supplying the Services Ellipsis shall:
    1. perform the Services in a professional manner and with reasonable care and skill;
    2. perform the Services in accordance with the service description set out in the Proposal; 
    3. comply with the Customer’s brand guidelines and marketing policies provided to Ellipsis at the commencement of the Services, and provided that Ellipsis shall not be liable under the Agreement if, as a result of such compliance, it is in breach of any of its obligations under the Agreement.
    4. take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that Ellipsis may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Agreement. 
  3. The services shall be supplied to the best of Ellipsis’ ability. The output and results of the Services are best estimates only and statements in the Proposal do not guarantee increases in page traffic or ranking or other target achievements.
  4. Ellipsis is not responsible for any failure to provide the Services which arises out of any act or omission by a third party outside of the control of Ellipsis or where any assumptions or dependencies set out in a Proposal are not met.
  5. Where Ellipsis acts a Data Processor to the Customer and as part of the Services, then the additional terms at Schedule 2 shall apply.

4. Customer’s obligations

  1. The Customer shall: 
    1. cooperate with Ellipsis in all matters relating to the Services;
    2. provide, for Ellipsis in a timely manner, the Customer Materials, and all feedback and instructions, as reasonably required by Ellipsis to enable it to perform the Services;
    3. provide, in a timely manner, such information as Ellipsis may reasonably require, and ensure that it is accurate and complete in all material respects; 
    4. not unreasonably withhold or delay any acceptance or approval; and 
    5. provide Ellipsis at the commencement of the Services with any directions, brand guidelines, marketing policies relating to the Services, including details of any specific regulations or rules of the Customer’s industry that the Services must comply with.
  2. If Ellipsis’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer Ellipsis shall: 
    1. not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
    2. be entitled to payment of the Charges despite any such prevention or delay; and
    3. be entitled to recover any additional costs, charges or losses Ellipsis sustains or incurs that arise directly or indirectly from such prevention or delay.

5. Price and expenses

  1. Ellipsis shall invoice and the Customer shall pay the Price and Expenses in accordance with the Proposal. 
  2. All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Ellipsis at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice. 
  3. If the Customer fails to make any payment due to Ellipsis under the Agreement by the due date for payment, then, without limiting Ellipsis’ remedies Ellipsis may suspend all Services until payment has been made in full. 
  4. All amounts due under the Agreement from the Customer to Ellipsis shall be paid by in full without any set-off or deduction. 

6. Limitation of liability

  1. The restrictions on liability in this clause 6 apply to every liability arising under or in connection with the Agreement including but not limited to liability in Agreement, tort (including negligence), misrepresentation, restitution or otherwise. 
  2. Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
    1. death or personal injury caused by negligence;
    2. fraud or fraudulent misrepresentation; and
    3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession). 
  3. Subject to clause 6.3, Ellipsis’s total liability to the Customer shall not exceed 120% of the Price set out in the Proposal. 
  4. Subject to clause 6.3, the types of loss are wholly excluded by the parties:
    1. loss of profits;
    2. loss of sales or business;
    3. loss of agreements or Agreements;
    4. loss of anticipated savings;
    5. loss of or damage to goodwill; and
    6. indirect or consequential loss.
  5. Ellipsis 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 Agreement.

7. Termination

  1. Without affecting any other right or remedy available to it, either party to the Agreement may terminate it with immediate effect by giving written notice to the other party if:
    1. the other party commits a material breach of any term of the Agreement and fails to remedy that breach within a period of 14 days after being notified to do so; 
    2. 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), 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
    3. 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.
  2. Without affecting any other right or remedy available to it, Ellipsis may terminate the Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement on the due date for payment
  3. On termination of the Agreement for whatever reason:
    1. the Customer shall immediately pay to Ellipsis all of Ellipsis’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Ellipsis may submit an invoice, which shall be payable immediately on receipt; 
    2. the Customer shall return or delete all documents provided by Ellipsis and Ellipsis shall return or delete all Customer Materials;
    3. any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect; and
    4. termination or expiry of the Agreement shall not affect any of the 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 Agreement which existed at or before the date of termination or expiry.

8. General

  1. Assignment and other dealings. The Customer shall not assign, transfer or subcontract any or all of its rights and obligations under the Agreement without Ellipsis’s prior written consent. 
  2. Confidentiality.
    1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 8.3. 
    2. Each party may disclose the other party’s confidential information:
      1. 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 Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 8.2; and
      2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    3. Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
    4. Unless the Customer notifies Ellipsis otherwise and in writing, Ellipsis may refer to the Customer as being a customer of Ellipsis in its marketing material, and to use the Services as a marketing case study.
  3. Entire agreement. 
    1. The Agreement 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.
    2. Each party acknowledges that in entering into the Agreement 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 Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
  4. Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 
  5. Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 8.5 shall not affect the validity and enforceability of the rest of the Agreement.
  6. Third party rights. The Agreement does not give rise to any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
  7. Dispute Resolution. In the event of any dispute over the quality or performance of the Services by Ellipsis, then the parties shall discuss the dispute in good faith and the Customer shall provide written details of the grounds of its dispute. The parties shall use good faith efforts to resolve the dispute, and only after 45 days after notice of a dispute from the Customer, may a party resort to legal action via the courts or arbitration. 
  8. Governing law. The Agreement, 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.
  9. 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 Agreement or its subject matter or formation, save that where the Customer does not have an established office in the United Kingdom then the jurisdiction shall also include the Customer’s home state.

Schedule 1: Interpretation

  1. Agreement: the Agreement between the Customer and Ellipsis for the supply of the Services in accordance with the Proposal these Conditions and any Schedules.
  2. Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
  3. Customer means the entity named in the Proposal.
  4. Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to Ellipsis.
  5. Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).
  6. Ellipsis: means Ellipsis Marketing Limited.
  7. Expenses: means agreed expenses which can be charged to the Customer.
  8. Price: the price payable by the Customer for the supply of the Services by Ellipsis, as set out in the Proposal.
  9. Services: the services to be provided by Ellipsis pursuant to the Agreement, as described in the Proposal. 
  10. Services Start Date: the day on which Ellipsis is to start provision of the Services, as set out in the Proposal.
  11. UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

Schedule 2: Additional Terms for Data Processing.

  1. If the Customer provides any Personal Data to Ellipsis, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Ellipsis and/or the lawful collection of Personal Data by Ellipsis on behalf of the Customer for the duration and purposes of the Agreement.
  2. Both parties will comply with all applicable requirements of the Data Protection Legislation. This Schedule is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
  3. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and Ellipsis is the Data Processor. 
  4. The parties shall agree in a Proposal the scope, nature and purpose of data processing by Ellipsis, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation “Personal Data”) and categories of Data Subject.
  5. Without prejudice to the generality of paragraph 4:
    1. Ellipsis shall, in relation to any Personal Data processed in connection with its performance of its obligations:
      1. process that Personal Data only on the written instructions of the Customer unless Ellipsis is required to process the Personal Data in accordance with any applicable laws. Where Ellipsis is relying on laws of a current member of the European Union or European Union law as the basis for processing Personal Data, Ellipsis shall promptly notify the Customer of this before performing the processing required by the applicable laws unless those applicable laws prohibit Ellipsis from so notifying the Customer;
      2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, which are designed to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected (having regard to the state of technological development and the cost of implementing any measures); 
      3. ensure that all Ellipsis personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
      4. assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      5. notify the Customer without undue delay on becoming aware of a Personal Data breach;
      6. at the written direction of the Customer and at the Customer’s cost, delete or return Personal Data and copies thereof to the Customer on termination of the Statement of Work unless required by applicable law to store the Personal Data; 
      7. submit to audits and inspections in relation to the processing, and provide the Customer, and at the Customer’s cost, with whatever information it needs to ensure that they are both meeting their obligations under article 28 of GDPR; and
      8. maintain complete and accurate records and information to demonstrate its compliance with this paragraph 5.
  6. Where the Customer consents to Ellipsis appointing a third-party processor of Personal Data as part of the Services, then the details of the third-party processor shall be set out in writing. Ellipsis confirms that it will enter a written agreement with the third-party processor incorporating terms which are substantially similar to those set out in paragraph 5.