Flock Associates Limited
Consultancy Terms & Conditions
Flock Associates Ltd, registered number 08263757 of registered office 33 Foley Street, London, W1W 7TL “Flock”

Please read this information carefully. You agree that by working with Flock, and unless other terms are mutually agreed, you will be bound by the terms and conditions of this Agreement, which you confirm you have read. In case of conflict or inconsistency between the terms and conditions of this Agreement and any other terms and conditions with the Client, the provisions of these terms and conditions shall prevail, providing they have been fully signed and executed by both parties.

1. DEFINITIONS
“Affected Party” means the party unable to perform its obligations under this Agreement due to a Force Majeure Event;
“Affiliate” means any person, company, partnership or other entity, which Controls, is Controlled by or is under common Control with that person;
“Agreement” means these terms and conditions, the Cost Estimate and all appendices hereto;
“Authorised User” means any user of the Platform that has been designated by the Client as being authorised to access the Platform;
“Client” means the person, company, partnership or other entity, which has requested and appointed Flock to provide Consultancy Services;
“Client Materials” means all materials and Data provided or made available to Flock for use in connection with provision of the Consultancy Services and does not include materials created by Flock for its own purposes in the course of providing the services;
“Commencement Date” means the Delivery Date on the Cost Estimate, or the date Flock commences work on the project, whichever is the sooner;
“Confidential Information” means any confidential information which is disclosed, or made available, by one party to the other at any time, which is designated in writing as confidential or would appear to a reasonable person to be confidential and which relates to a party’s business including its business methods, corporate plans or intentions, management systems, finances, new business opportunities, operations, processes, trade secrets, know how, personnel, suppliers and customers, and potential suppliers and customers and any information in respect of which the party owes an obligation of confidentiality to any third party and including information that is created or developed in connection with this Agreement, and all information derived from any of the above together with the provisions of this Agreement and any negotiations relating to it;
“Consultancy Services” means the independent Marketing Transformation Consultancy Services to be provided by Flock, as set out in Cost Estimate, that may include use of the Platform and are subject to this Agreement;
“Control” means the beneficial ownership of more than 50% of the issued share capital or the legal power to direct or cause the direction of the general management or affairs of the company, partnership or other entity in question, and “Controls” and “Controlled” shall be construed accordingly;
“Cost Estimate” means the document which specifies details of work to be undertaken by Flock, the time, the personnel, the deliverables and the fees payable to Flock for the work, in all instances pursuant to this Agreement;
“Data” is the information the Client provides to Flock in connection with this Agreement, which includes Personal Data such as names, addresses, e-mail addresses, contact information, personal descriptions and photographs;
“Data Protection Laws” means laws and regulations relating to the use or processing of Personal Data applicable in the United Kingdom, including: (i) EU Regulation 2016/679 (“GDPR”); (ii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the GDPR (including, in the UK, the Data Protection Act 2018 (“DPA”) and the applied GDPR as defined in the DPA; and (iii) any laws and regulations implementing or made pursuant to EU Directive 2002/58/EC (as amended by 2009/136/EC) (including, in the UK, the Privacy and Electronic Communications (EC Directive) Regulations 2003); in each case, as updated, amended or replaced from time to time; and (b) the terms “Data Subject”, “Personal Data”, “processing”, “processor” and “controller” shall have the meanings set out in the DPA;
“Deliverables” means any work and materials developed, written or prepared by Flock in relation to the Consultancy Services (whether individually, collectively or jointly with the Client and in whatever media);
“Disclosing Party” means the party disclosing Confidential Information or about whom Confidential Information is disclosed;
“DP Regulator” means any governmental or regulatory body or authority with responsibility for monitoring or enforcing compliance with the Data Protection Laws;
“Fees” means the fees specified on the Cost Estimate (or such other fee as the Client agrees) plus any amounts properly chargeable in respect of VAT, where applicable;
“Force Majeure Event” means any event beyond the reasonable control of a party including, without limitation, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction or any overriding emergency procedures, accident, fire, flood, storm and strikes or any industrial action by employees of any person other than the party relying on the Force Majeure Event;
“Intellectual Property Rights” means copyright, patents, utility models, database rights, rights in designs, trademarks, service marks, goodwill, domain names (in all cases whether registered or unregistered or the subject of a pending application) all legal rights protecting the confidentiality of any information or materials and other intellectual property rights, including future rights and all other rights of a similar nature anywhere in the world in the Deliverables (whether complete or incomplete);
“Platform” means the relevant online Tool/Associated Technologies that Flock use and/or provide to a client as part of the Consultancy Services under this Agreement, if selected as part of the Consultancy Services;
“Receiving Party” means the party receiving the Confidential Information;
“Third Party User” means any user of the Platform for or on behalf of the Client or otherwise using the Client’s User Subscriptions, that is not an Authorised User;
“User Subscription” means any user subscriptions to Flock’s Platform agreed by the Client pursuant to this Agreement which entitle Authorised Users to access and use the Platform in accordance with this Agreement;
“VAT” means the Value Added Tax charged by the provisions of the Value Added Tax Act 1994 and/or any regulations supplemental thereto.

2. APPOINTMENT
2.1 The Client appoints Flock to provide Consultancy Services, and Flock accepts this appointment.
2.2 Nothing in this Agreement prevents the Client from using another supplier to provide other services or from performing any such services internally, except in relation to the services provided under the Cost Estimate.
2.3 Nothing in this Agreement prevents Flock from providing the Consultancy Services to other customers in the same business sector as the Client..

3. PROVISION AND STANDARD OF CONSULTANCY SERVICES
3.1 The Client has provided Flock with instructions for the Consultancy Services detailing the scope of work, timing, activities, functions and services necessary, which are detailed on the Cost Estimate.
3.2 If the Client provides Flock with additional or revised instructions, which Flock reasonably considers affects the initial Cost Estimate, Flock may issue an additional or revised Cost Estimate for the Consultancy Services, and any additional or revised services requested will not commence until the Client accepts the additional or revised Cost Estimate.
3.3 Flock shall perform the Consultancy Services in accordance with all applicable laws and regulations and will always endeavour to comply with any applicable Client policies, copies of which must be provided to Flock in advance. Flock shall comply with, and ensure it does not through acts or omissions put the Client in breach of, the US Foreign Corrupt Practices Act 1977, the Anti-Terrorism Crime and Security Act 2001, the UK Bribery Act 2010, the Modern Slavery Act 2015 and the Criminal Finances Act 2017, and all similar national laws intended to prevent corruption and bribery.
3.4 The Client reserves the right to ask any of Flock’s personnel to leave its premises, and/or to require Flock exclude any personnel from the provision of the Consultancy Services, provided such requests are reasonable . Flock shall, at the Client’s reasonable request, use all reasonable efforts to replace any removed personnel with individual(s) of equivalent skills and experience.

4. FLOCK’S UNDERTAKINGS
4.1 Flock shall provide the Consultancy Services diligently and promptly from the Commencement Date, up to and including the completion of the Consultancy Services, with necessary skill, experience, expertise and care, and in accordance with the Client’s reasonable instructions and the performance standards specified in this Agreement;
4.2 The Deliverables will, so far as they do not comprise material originating from the Client, be original works of authorship and the use or possession of any of the Deliverables by or on behalf of the Client or Flock will not subject the Client or Flock to any claim for infringement of any proprietary rights of any third party;
4.3 Flock has all rights, powers and authorities necessary to enter into this Agreement and, by entering into this Agreement, does not create any conflicts with third party rights, agreements or contracts; and
4.4 Flock shall deliver to the Client promptly upon demand at any time (and in any event upon termination) all Client Materials supplied by or on behalf of the Client and/or Deliverables for which Flock has received payment in full.

5. CLIENT’S OBLIGATIONS
5.1 The Client shall fully and reasonably co-operate with Flock, and promptly, with no charge, provide Flock access to its premises, information, documents, data and other facilities as required by Flock to provide the Consultancy Services.
5.2 In order to provide the Consultancy Services, Flock will usually require certain information to be made available to Flock by or on behalf of the entities that the Client has asked Flock to evaluate. The Client will procure that the relevant entities will provide such information promptly and in full on Flock’s request, will give Flock all reasonable co-operation in such regard and will agree that Flock may use such information on an anonymised basis for future blind benchmarking in relation to other accounts, as well as research analysis and producing reports and marketing materials.

6. CHARGES AND PAYMENT
6.1 The cost for Flock’s Consultancy Services is detailed on the Cost Estimate(s). The Client shall pay Flock the Fee(s) detailed for the Consultancy Services.
6.2 Flock shall maintain full accurate records of the time spent providing the Consultancy Services and shall produce records to the Client within reasonable time, if requested.
6.3 The Client shall reimburse Flock for reasonable expenses agreed in advance and incurred in connection with the Consultancy Services. All expenses incurred by Flock shall be in accordance with the Client’s Travel and Expenses Policy (if any), at cost with no mark up and submitted to the Client within three (3) months of the date of expenditure.
6.4 Flock shall invoice the Client in respect of the charges and shall show any amounts of any VAT properly chargeable separately on such invoices. The Client shall not account to Flock for any charges on receipt of such invoice.
6.5 All fees and expenses payable by the Client shall be paid in accordance with the terms of the invoice/Cost Estimate, on receipt of a valid invoice from Flock, except where there is a bona fide dispute as to the amount of such fees. Flock shall be entitled to charge interest from the Client for late payment of fees at a rate of 2% per annum above the base rate of the Bank of England, which is then in force. The Client shall have the right to set off any fees from any amount owing from Flock to the Client.
6.6 Flock shall not invoice the Client for any sum other than the Fees and expenses incurred in accordance with this Agreement, unless otherwise agreed by the parties in advance in writing.
6.7 Any currency exchange required is based on the currency conversion from GBP £ to the required currency on the issue date of the Cost Estimate, unless otherwise agreed in writing by both parties. Should the currency exchange rate fluctuate by less than 2.5% in either direction, at the time of invoicing, both parties agree to accept the revised rates. Anything above a 2.5% movement will be split equally by both parties.
6.8 Flock agrees that the amount payable detailed on the Cost Estimate may not exceed the total approved amount without the Client’s prior written approval, other than in respect of Clause 6.7.

7. VAT
7.1 All sums due under this Agreement are exclusive of VAT thereon which, if any, shall be charged in addition in accordance with the relevant regulations in force at the time of making the relevant taxable supply and shall be payable by the paying party only on receipt from the other a valid VAT invoice.
7.2 Where one party has agreed to reimburse or indemnify the other in respect of any payment or cost by the other then the first party shall also reimburse any VAT paid by the other which forms part of its payment or costs incurred to the extent that such VAT is not available for credit for the other under Sections 25 and 26 of the Value Added Tax Act 1994.

8. TERM AND TERMINATION
8.1 This Agreement shall commence on the Commencement Date and shall continue in force unless earlier terminated in accordance with this clause.
8.2 Either party may terminate this Agreement fully or in part at any time by giving no less than 30 days’ notice in writing to the other party. All Fees and expenses due to Flock to the end of the notice period, will be invoiced to the Client, and due in accordance with the invoice.
8.3 Either party may terminate this Agreement immediately on notice in writing to the other party on the occurrence of the following events:
8.3.1 material or persistent breach by the other party of any of its obligations provided that, in the case of a breach able to be remedied, the other party fails to remedy it within 20 days after receiving written notice from the non-breaching party specifying the breach;
8.3.2 the other party passing a resolution for its winding up, a court of competent jurisdiction making an order for the other party’s winding up or the presentation of a petition for the other party’s winding up, which is not dismissed within 7 days of presentation;
8.3.3 the other party having an order made for the appointment of an administrator to manage its affairs or business and property or documents are filed with a court of competent jurisdiction for the appointment of an administrator or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
8.3.4 the other party has a receiver appointed over its assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party or if any other person takes possession of or sells the other party’s assets;
8.3.5 the other party makes any voluntary arrangement or composition with its creditors generally or applies to a court of competent jurisdiction for protection from its creditors;
8.3.6 the cessation, or threatened cessation, of the business of the other party;
8.3.7 the other party is declared bankrupt or insolvent or is convicted of any criminal offence (other than road traffic offences); or
8.3.8 if any situation analogous to any of those described at clauses 8.3.2 to 8.3.7 above occurs in relation to the other party occurs under the law of any jurisdiction.

9. EFFECT OF TERMINATION
9.1 On termination of this Agreement all rights and obligations of the parties under this Agreement shall terminate except for such rights of action that accrued prior and any obligations which are intended to come into or continue in force, including clauses 1, 8 to 12, 15, 16 and 18 to 22.
9.2 On termination of this Agreement, except where the Agreement has been terminated by Flock pursuant to clause 8.3, Flock shall deliver to the Client all Client Materials supplied by the Client and all Deliverables for which Flock has received payment in full.

10. RIGHTS IN MATERIALS
10.1 The Client shall retain all right, title and interest (including Intellectual Property Rights) in and to the Client Materials supplied by or on behalf of the Client.
10.2 Except in relation to materials created by Flock for its own purposes in the course of providing the services, or unless agreed in writing between the parties, all Intellectual Property Rights shall be the property of the Client. Flock accordingly waives its claim or rights, if any, in respect of the Intellectual Property Rights and Flock shall, at the Client’s cost, execute all documents and give all assistance as may be reasonably required by the Client in order to obtain copyright, patent or other protection for the Intellectual Property Rights and to vest such rights in the Client. To this end, in consideration of the Fees, Flock assigns to the Client with full title guarantee all rights, title and interests in the Intellectual Property Rights together with the right to take proceedings and recover damages and obtain all other remedies for past infringements throughout the world for the full period of such Intellectual Property Rights and all revivals, renewals, extensions and novation thereafter (so far as possible).
10.3 The Client hereby grants to Flock a royalty-free, personal, non-transferable, non-exclusive, irrevocable licence to use (and, where relevant, adapt or copy) the Client Materials (including Data and other Client Materials provided by or on behalf of entities that the Client has asked Flock to evaluate) and Intellectual Property Rights during the term or after expiry or termination of this Agreement for the purposes of:
10.3.1 providing the Consultancy Services; and
10.3.2 blind benchmarking for Flock’s present or future clients, research analysis or producing reports or marketing materials (provided in each case that the information is anonymised so as not to identify the relevant entity).
10.4 Flock warrants that, to the best of its knowledge and belief, any work produced in provision of the Consultancy Services will not infringe the Intellectual Property Rights of any third party.

11. LIABILITY
11.1 Neither party shall be liable to the other, whether in contract, tort, negligence or otherwise and however arising) for:
11.1.1 any indirect, consequential or special loss; or
11.1.2 loss of profit, loss of revenue, loss of anticipated savings or loss of goodwill or (except in respect of the cost of reconstituting data to the last back up that the Client or its other suppliers ought to have made) loss of data, in each case, regardless of whether the first named party knew or had reason to know of the possibility of the loss, injury, or damage in question.
11.2 Without prejudice to the exclusions referred to in clause 11.1, except as provided for in clause 11.3, each party’s aggregate liability to the other in respect of all losses, damages, costs, claims or expenses suffered by the other arising out of or in connection with:
11.2.1 all breaches by the first party of the terms of this Agreement (including but not limited to, claims arising in respect of a breach of warranty); or
11.2.2 all torts or breaches of statutory duty committed by the first party in connection with the performance of the first party’s obligations under this Agreement,
will be limited to and will not exceed the greater of:
11.2.3 150% of the aggregate Fees paid or payable under all Cost Estimates accepted by the Client in the 15 months prior to the first date an event giving rise to the liability occurred; or
11.2.4 £1 million (one million pounds Sterling).
11.3 The limits on liability set out in this clause shall not apply in respect of:
11.3.1 any liability for fraud or fraudulent misrepresentation by a party, employees or agents;
11.3.2 any liability for death or personal injury to any person caused by its negligence;
11.3.3 wilful default by Flock;
11.3.4 for breach of the Confidentiality clause (clause 15);
11.3.5 the obligation on the Client to pay any undisputed Fees that have become due; or
11.3.6 any other liability to the extent which it cannot be lawfully excluded.
11.4 Notwithstanding any other provision of this Agreement, but subject to the rest of this clause 11, Flock shall have no liability and shall be deemed not to be in breach of or required to indemnify, pay or take any adverse step under any provision of this Agreement to the extent that Flock’s failure to comply with such provision (or obligation to indemnify, pay or take an adverse step as the case may be) arises as a direct result of (a) Client Materials supplied by or on behalf of the Client or any Client Affiliate or by or on behalf of the entities that the Client has asked Flock to evaluate (but Flock will use its reasonable endeavours to review any such Client Materials supplied in relation to the Consultancy Services and to notify the Client of any material issues identified); (b) any delay or breach of this Agreement on the part of the Client, any Client Affiliate or any of their suppliers/contractors (other than Flock’s subcontractors); or (c) any legal or regulatory risk that the Client or a Client Affiliate has agreed to accept. However, nothing in this Agreement limits or excludes either party’s liability for death or personal injury caused by its negligence, for fraud or for any other liability which may not be lawfully limited or excluded.

12. INSURANCE
12.1 Throughout the term of this Agreement and for a period of three years after, Flock shall maintain insurance, including professional indemnity insurance, with a reputable insurer in respect of Flock’s liability for loss or damage arising out of the performance of the Consultancy Services or the non-performance of its obligations under this Agreement for not less than the total of all of the Cost Estimates accepted by the Client to date under this Agreement.
12.2 Flock shall provide copies of valid insurance certificates within 10 working days of a Client request.
12.3 If Flock fails to arrange insurance as required in accordance with this clause 12, the Client may arrange insurance itself, and the cost of the premium, shall be charged to Flock with payment made by Flock within 10 working days of receipt from the Client or may be deducted from Client Fees, provided the insurance arranged by the Client is with a reputable insurer and the policy is of an acceptable market standard.

13. ASSIGNMENT AND SUBCONTRACTING
13.1 The rights and obligations of Flock under this Agreement are personal to Flock and, except where the entirety, or a substantial part, of Flock’s business is transferred to a separate entity, shall not be assigned, delegated, sub-contracted, transferred or otherwise disposed of without the previous written consent of the Client, which shall not be unreasonably withheld or delayed, as to (without limitation) the identity of such assignee/contractor and to the form of such assignment/contract.

14. FORCE MAJEURE
14.1 If an Affected Party is prevented from performing any of its obligations under this Agreement by a Force Majeure Event, then:
14.1.1 its obligations shall be suspended for so long as the Force Majeure Event continues and to the extent that the Affected Party is so prevented;
14.1.2 as soon as reasonably possible after commencement of the Force Majeure Event the Affected Party shall notify the other party in writing of the occurrence the start and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement;
14.1.3 the Affected Party shall use all reasonable efforts to mitigate the effects of the Force Majeure Event upon the performance of its obligations under this Agreement; and
14.1.4 as soon as reasonably possible after the end of the Force Majeure Event the Affected Party shall notify the other party in writing and shall resume performance of its obligations under this Agreement.
14.2 If the Force Majeure Event continues for more than 28 days after the commencement of the Force Majeure Event the other party may terminate this Agreement by giving not less than 28 days’ written notice to the Affected Party.

15. CONFIDENTIALITY
15.1 Both parties shall treat all Confidential Information as secret and confidential and, except to the extent that (i) the Disclosing Party approves disclosure/use of the Confidential Information in writing, or (ii) the disclosure/use is required by applicable laws or regulations, shall not disclose any Confidential Information to any third party or use it for any purpose other than to perform the Consultancy Services or for the purposes of blind benchmarking for present or future clients, research analysis or producing reports or marketing materials during the term or after expiry or termination of this Agreement.
15.2 Both parties shall take all necessary precautions to ensure the security of all Confidential Information and shall comply with the Disclosing Party’s reasonable directions in relation to all Confidential Information.
15.3 Both parties shall ensure that Confidential Information is disclosed only to those of its employees who need to know it for the purposes of this Agreement and the activities envisaged under it and who are bound by appropriate and legally binding confidentiality and non use obligations. Both parties shall be fully responsible for any unauthorised disclosure or use of Confidential Information by its employees.
15.4 The Receiving Party shall immediately inform the Disclosing Party in writing if the Receiving Party becomes aware that any Confidential Information has become available to any unauthorised third party.
15.5 Flock shall not make any public announcement, communication or circular in connection with this Agreement (other than to the extent required by law) without the prior written consent of the Client, which shall not be unreasonably withheld or delayed. Unless specifically agreed to the contrary in writing, Flock will be entitled to disclose to other clients and potential clients the fact that it has worked with the Client.
15.6 Both parties’ obligations of confidentiality and non-use set out in this Agreement shall continue in force permanently.

16. DATA
16.1 In performing obligations under this Agreement, the parties agree that:
16.1.1 they shall always comply with the provisions and obligations imposed on them by the Data Protection Laws when processing Personal Data in connection with the Agreement. The processing under this Agreement shall be in respect of the types of Personal Data, categories of Data Subjects, nature and purposes, and duration set out in Appendix 1, which may be amended by written agreement between the parties for the purposes of ensuring compliance with the Data Protection Laws;
16.1.2 they shall maintain records of all processing operations under their responsibility that contain at least the minimum information required by the Data Protection Laws, and shall make such information available to any DP Regulator on request;
16.1.3 subject to the provisions of this Agreement, as between the parties the Client shall retain ownership of all Data;
16.1.4 if they receive any complaint or notification which relates to compliance with the Data Protection Laws or the processing of Personal Data by the other party, they shall as soon as reasonably possible notify the other party and provide the other party with commercially reasonable assistance in relation to any such complaint or notification; and
16.1.5 where Flock processes any Personal Data on behalf of the Client, the Client shall be the data controller and Flock shall process the Personal Data as the Client’s data processor.
16.2 The Client shall:
16.2.1 ensure that any instructions issued to Flock comply with Data Protection Laws; and
16.2.2 have sole responsibility for the accuracy, quality and legality of Personal Data, and the means by which the Client acquired Personal Data shall establish the legal basis for processing under Data Protection Laws, including providing notices and obtaining consents as may be required under Data Protection Laws in order for Flock to process the Personal Data.
16.3 To the extent that Flock acts as the Client’s data processor under this Agreement, Flock shall:
16.3.1 process such Personal Data:
a. only in accordance with the Client’s written instructions from time to time (including those set out in this Agreement) provided such instructions are lawful; and
b. only for the duration of this Agreement.
16.3.2 take commercially reasonable steps to ensure its personnel who are authorised to have access to such Personal Data are committed to confidentiality when processing such Personal Data;
16.3.3 taking into account the state of the art, the costs of implementation and the nature, scope and context for the purposes of processing, implement appropriate technical and organisational measures to ensure a level of security for such Personal Data appropriate to the risk, including the risks of unauthorised or unlawful processing and against accidental or unauthorised destruction, loss, alteration or disclosure or access;
16.3.4 unless the transfer is based on an “adequacy decision”, is otherwise “subject to appropriate safeguards” or if the “derogation for specific situations” applies, each within the meanings given to them in Articles 45, 46, 49 of the GDPR respectively, not transfer access or process such Personal Data outside of the UK or the European Union without the prior written consent of the Client (not to be unreasonably withheld or delayed). The Client confirms that it consents to the Authorised Transfers as set out in Appendix 1;
16.3.5 not disclose Personal Data obtained or processed because of this Agreement to any third party unless the Client has given its prior consent (not to be unreasonably withheld) to such disclosure or as expressly provided for in this Agreement;
16.3.6 without undue delay, notify the Client upon becoming aware of any such Personal Data (while within Flock’s or its subcontractors’ possession or control) being subject to a personal data breach (as defined in Article 4 of the GDPR);
16.3.7 notify the Client as soon as reasonably practicable if it receives any request from a Data Subject to exercise its rights under the Data Protection Laws;
16.3.8 provide the Client with reasonable assistance in relation to any request made by a Data Subject to exercise its rights under the Data Protection Laws in relation to that person’s Personal Data provided that the Client shall be responsible for Flock’s reasonable costs and expenses arising from such assistance;
16.3.9 promptly deal with enquiries from the Client in relation to the processing of Personal Data;
16.3.10 provide to the Client and any DP Regulator all information and assistance reasonably necessary to demonstrate or ensure compliance with the obligations in this clause 16 subject to the following requirements:
a. the Client may perform such audits no more than once per year or more frequently if required by the Data Protection Laws;
b. the Client may use a third party to perform the audit on its behalf, provided such third party executes a confidentiality agreement acceptable to Flock before the audit;
c. audits must be conducted during regular business hours, subject to Flock’s policies, and may not unreasonably interfere with Flock’s business activities;
d. the Client must provide Flock with any audit reports generated in connection with any audit at no charge unless prohibited by an applicable law. The Client may use the audit reports only for the purposes of meeting its audit requirements under Data Protection Laws and/or confirming compliance with the requirements of this clause 16. The audit reports shall be confidential;
e. to request an audit, the Client must first submit a detailed audit plan to Flock at least 6 weeks in advance of the proposed audit date. The audit must describe the proposed scope, duration and start date of the audit. Flock will review the audit plan and inform the Client of any concerns or questions (for example, any request for information that could compromise Flock’s confidentiality obligations or its security, privacy, employment or other relevant policies). Flock will work cooperatively with the Client to agree a final audit plan;
f. nothing in this clause 16 shall require Flock to breach any duties of confidentiality owed to any of its clients, employees or third-party providers; and
g. all audits are at the Client’s sole cost and expense.
16.3.11 take such steps as are reasonably required to assist the Client in ensuring compliance with its obligations under Articles 30 to 36 (inclusive) of GDPR;
16.3.12 except for Personal Data of which Flock is also a data controller and except as required by law or in order to defend any actual or possible legal claims, as the Client so directs, take steps to return or irretrievably delete all Personal Data after expiration or termination of this agreement, and not make any further use of such Personal Data.
16.4 The Client generally agrees that Flock may engage in third party providers including any advisers, contractors, or auditors to process Personal Data (“Sub-Processors”), and specifically agrees to and authorises the engagement of the Authorised Sub-Processors as set out in Appendix 1.
16.5 If Flock engages a new Sub-Processor (a “New Sub-Processor”), Flock shall inform the Client of the engagement by sending an email notification to the Client and the Client may object to the engagement of such New Sub-Processor by notifying Flock within 10 Days of Flock’s email, provided that such objection must be on reasonable, substantial grounds, directly related to such New Sub-Processor’s ability to comply with substantially similar obligations to those set out in this clause. If the Client does not so object, the engagement of the New Sub-Processor shall be deemed accepted by the Client.
16.6 In relation to clause 16.5 above, in the event the Client objects to the engagement of a New Sub-Processor, the Client acknowledges that there may be negative consequences arising from or in connection with such objection including additional costs or time required to deliver the Deliverables or carry out the Consultancy Services (“Consequences”). If such Consequences apply, Flock shall inform the Client in writing and the Client shall agree to make reasonable adjustments to the Cost Estimate or any of the terms in Schedule 1 to accurately reflect the impact of the Consequences.
16.7 Flock shall ensure that its contract with each New Sub-Processor shall impose obligations on the New Sub-Processor that are materially equivalent to the obligations to which Flock is subject to under this Agreement.
16.8 Any sub-contracting or transfer of Personal Data pursuant to this clause 16 shall not relieve the Client or Flock of any of its liabilities, responsibilities or obligations under this Agreement and Flock shall remain liable for the acts and omissions of its Sub-Processor.
16.9 Where Personal Data is processed by Flock under or in connection with this Agreement on behalf of the Client as the data controller, the Client agrees that Flock may disclose the Personal Data to Flock’s employees, sub-contractors (including third party providers), agents, Consultant Affiliates and Consultant Affiliate employees as Flock reasonably considers necessary for the performance of its obligations under this Agreement, for compliance with applicable law and if required to defend any actual or possible legal claims. Flock shall take reasonable steps to ensure the reliability of any person who has access to the Personal Data and ensure that such persons are aware of Flock’s obligations under this Agreement.

17. USE OF THE PLATFORM
17.1 Subject to the Client purchasing User Subscriptions as part of the Consultancy Services, and subject also to the restrictions set out in this clause 17 and the other terms and conditions of this Agreement, Flock hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Platform solely for the Client’s internal business operations.
17.2 In relation to the Authorised Users, the Client shall ensure that:
17.2.1 the maximum number of Authorised Users that it authorises to access and use the Platform shall not exceed the number of User Subscriptions it has purchased;
17.2.2 it will not allow any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Platform;
17.2.3 each Authorised User shall keep a secure password for their use of the Platform, and each Authorised User shall keep their password confidential; and
17.2.4 it shall permit Flock or Flock’s designated auditor to audit the Platform in order to establish the Client’s compliance with this Agreement including but not limited to matters pertaining to the security of passwords, uploading of Personal Data and/or Confidential Information by Authorised Users, and any over-use of the Platform in excess of the User Subscriptions purchased by the Client from time to time.
17.3 If Flock discovers that any password has been provided to any individual who is not an Authorised User, then Flock may promptly disable such passwords and shall not be obliged to issue any new passwords to any such individual.
17.4 If Flock discovers that the Client has underpaid any fees or other sums due in respect of the Consultancy Services to Flock, then without prejudice to Flock’s other rights, the Client shall pay to Flock an amount equal to such underpayment within 10 days of Flock’s demand.
17.5 The Client shall not, and shall ensure that any Authorised Users or Third Party Users shall not:
17.5.1 upload any Personal Data or Confidential Information to the Platform for which it does not have all applicable consents and/or rights to upload and Flock shall have no liability in respect of any such Personal Data or Confidential Information uploaded to the Platform;
17.5.2 access, store, distribute or transmit any computer viruses or any material during its use of the Platform that:
(i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(ii) facilitates illegal activity;
(iii) depicts sexually explicit images;
(iv) promotes unlawful violence;
(v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(vi) is otherwise illegal or causes damage or injury to any person or property;
and Flock reserves the right, without liability or prejudice to its other rights, to disable the Client’s and any associated Authorised User’s access to any material that breaches the provisions of this clause.
17.6 The Client shall not and shall procure that Authorised Users and Third Party Users shall not:
17.6.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or
17.6.2 access all or any part of the Platform in order to build a product or service which competes with the Platform; or
17.6.3 use the Platform to provide services to third parties; or
17.6.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform available to any third party except the Authorised Users, or
17.6.5 use the Platform in any unlawful manner, or for any unlawful purpose, or in any manner inconsistent with the Terms of Use, or act fraudulently or maliciously in using the Platform; or
17.6.6 infringe Flock’s intellectual property rights or those of any third party in relation to use of the Platform, including by the submission or upload of any content by you; or
17.6.7 attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided under this clause 17.
17.7 Where the Consultancy Services include the use of the Platform, the Client shall, prior to providing access to or allowing use of the Platform by any Authorised Users, procure that such Authorised Users have agreed to the Terms of Use applicable to the Platform. Flock shall provide the Client with the relevant Terms of Use prior to or with delivery of the Services. The Client shall be responsible for ensuring that all Authorised Users comply with any applicable Terms of Use and the Client shall indemnify and keep indemnified Flock against any and all losses, claims, costs, damages, fines and expenses (including reasonable legal costs) suffered or incurred by Flock as a result of any breach of applicable Terms of Use by any Authorised User or Third Party User.
17.8 Without prejudice to its obligations under clause 17.2, the Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, promptly notify Flock.

18. NOTICES
18.1 A notice given under or in connection with this Agreement:
18.1.1 shall be in writing and in the English language; and
18.1.2 may be delivered personally; sent by tracked post to the party due to receive the notice at its registered address or to another address specified by that party by written notice; or by email with a read receipt/acknowledgment from the other party;
18.2 A notice is deemed given:
18.2.1 if delivered personally;
18.2.2 if sent by post, with evidence of delivery to the other party;
18.2.3 if sent by email, proof of a read receipt or formal acknowledgment from the other party.

19. GENERAL
19.1 This Agreement together with any documents referred to in it constitutes the entire and exclusive agreement between the parties relating to the subject matter of this Agreement and supersedes all previous agreements, arrangement, representations or understanding (whether oral or written), between the parties relating to its subject matter except to the extent that the same is repeated in this Agreement.
19.2 Each party acknowledges and agrees that:
19.2.1 in entering into this Agreement, it does not rely on, has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or other provision (in any case whether oral or written, express or implied and whether negligently or innocently made) of any person (whether a party to this Agreement or not) which is not expressly set out in this Agreement;
19.2.2 the only remedy available in respect of any misrepresentation or untrue statement made to such party shall be a claim for breach of contract under this Agreement;
19.2.3 nothing in this clause shall operate to limit or exclude any liability arising from any fraudulent or dishonest statement, act or omission; and
19.2.4 the parties have equal bargaining power, the contract price is based, amongst other things, on the terms of this clause, and having taken independent advice, each of its sub-clauses are reasonable.
19.3 No variation of this Agreement shall be valid unless it is in writing and signed by an authorised signatory on behalf of each party.
19.4 The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
19.5 Unless expressly provided in the Agreement, no term of the Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
19.6 No provision of this Agreement creates a partnership or employer/employee relationship between the parties or makes a party the agent of the other party for any purpose. Neither party has any authority or power to bind, to contract in the name of, or to create a liability for the other party in any way or for any purpose.

20. SEVERABILITY
If any provision of this Agreement is held to be invalid or unenforceable, such provision will be deemed to have been severed from the Agreement, while the remainder of the Agreement will remain in full force and effect.

21. COSTS
Except where this Agreement provides otherwise, each party shall pay its own costs relating to the negotiation, preparation, execution and implementation by it of this Agreement and of each document referred to in it.

22. GOVERNING LAW AND JURISDICTION
22.1 This Agreement, and all matters arising from or connected with it, is governed by and shall be construed in accordance with English law.
22.2 The Courts of England and Wales have exclusive jurisdiction to hear and decide any suit, action or proceedings, and to settle any disputes, which may arise out of with this Agreement and each party irrevocably submits to the jurisdiction of the Courts of England and Wales.

APPENDIX 1 – Data Protection
The Personal Data processing activities carried out by Flock under this Agreement may be described as follows:
1. Subject matter of processing
Where Flock is engaged by the Client to provide some or all of Agency Appraisal, Capability Assessment, or Scoping services as part of the Consultancy Services, Flock must process the Personal Data of individuals who work either for or with the Client to enable delivery of these services. This will involve processing Personal Data in the following stages:
• Selection processes;
• Evaluation processes;
• Audits.
2. Nature and purpose of processing
• Collating the contact details of employees of the Client and the Client’s affiliated companies, contractors and agents in order to provide links to surveys;
• Collating survey responses and analyzing the response data as part of the Consultancy Services;
• Selection processes.
3. Categories of Personal Data
• Contact details (e. g. name, telephone, e-mail);
• Roles, responsibilities, seniority level, team membership;
• Interests in contract, client requests and scope of work, commercial proposals, contracts and orders;
• Responses to survey questions.
4. Categories of data subjects
• The Client’s employees;
• The Client’s affiliated companies’ employees;
• The Client’s sub-contractors or agents.
5. Duration
For the Term of this Agreement and thereafter only to the extent that processing is required in order to bring the Agreement to an end.
6. Authorised sub-processors of Personal Data (“Authorised Sub-Processors”)
• Survey Monkey – All Data and files are backed up for Flock online
• Survey Money – the survey tool collating the data
• OP8 Technology Group Ltd – data analysis support.
7. Authorised transfers of Personal Data (“Authorised Transfers”)
• Group companies in Flock from time to time, between Flock Associates Limited and Flock Associates, USA Inc.