Ecommerce Terms and Conditions

1. Definitions and interpretation

1.1. Definitions

In this agreement, where the context so admits, the following words and expressions shall have the following meanings:

      1. Adequate Country means a country or territory that is recognised under the Data Protection Legislation from time to time as providing adequate protection for personal data;
      2. Authorised User” has the meaning set out in clause 3.2;
      3. Business Day” means each day which is not a Saturday or Sunday or a bank or public holiday in England;
      4. Customer Data” means all data, information and material input or uploaded to or transmitted through the Service by the Customer and/or any Authorised User;
      5. Customer’s End Clients” means any clients of Customer who may benefit and use the outputs/results of the Services;
      6. Customer Materials” means any material provided or made available by or on behalf of the Customer to Poplar Studio for the purposes of incorporation into the Service for the Customer or other permitted use by Poplar Studio in connection with any Professional Services, but excluding Customer Data;
      7. Confidential Information” means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this agreement), including all information relating to that other’s, or any of its Group Members’, business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which:

        (a) is available to the public other than because of any breach of this agreement;
        is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or
        (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others.

      8. Data Protection Legislation” means, to the extent applicable to this agreement, (i) the United Kingdom General Data Protection Regulation (“UK GDPR“), the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, and the Security of Network & Information Systems Regulations 2018, all as amended and/or replaced, and in force from time to time, (ii) the General Data Protection Regulation 2016 (EU) 2016/679 and all other applicable laws and regulations relating to data protection and privacy, and (iii) all related statutory codes of practice and guidance issued by any relevant data protection authority;
      9. Effective Date” means the date on which the Quote is accepted/confirmed, in writing, by the Customer;
      10. Fees” means the charges payable for the Services which shall be, unless otherwise agreed in writing, as set out in the Quote;
      11. Group Member” means at the relevant time, in relation to any entity, an entity which, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that entity, where “control” means holding, directly or indirectly, a majority of the voting rights in it, or the power to direct or cause the direction of its management, policies or operations, whether through holding of voting rights, by contract or otherwise;
      12. Initial Term” has the meaning set out in clause 11.1;
      13. Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);
      14. Personal Data Breach” means any (i) loss, damage or destruction of personal data, and (ii) any access, use, disclosure or other processing of personal data other than as expressly permitted under this agreement;
      15. Poplar Studio Content” means all data, information and material owned by or licensed to Poplar Studio or any of its Group Members and comprised within the Service, but excluding Customer Data and Customer Materials;
      16. Quote” means the quote provided by Poplar Studio to provide the Services and which sets out, the Services, Fees and any other terms which will apply to the provision of the Services;
      17. Renewal Term” has the meaning set out in clause 11.1;
      18. Service” means the service to be provided by Poplar Studio as set out on the Quote; 
      19. Software” means any software owned by or licensed to Poplar Studio or any of its Group Members and which forms part of, or is used in the provision of the Service; and
      20. Term” means collectively the Initial Term and any Renewal Term.

1.2. Interpretation

In this agreement (including the introduction and schedules) unless the context otherwise requires:

(a) reference to a person includes a legal person (such as a limited company) as well as a natural person;

(b) clause headings are for convenience only and shall not affect the construction of this agreement;

(c) reference to “
including” or any similar terms in this agreement shall be treated as being by way of example and shall not limit the general applicability of any preceding words; and

(d) reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation.

1.3. The parties agree that the terms of this Agreement shall apply to the Services provided as set out in the Quote.  No other agreement or document entered into between the parties, whether in respect of the Services or any other services which Poplar Studio may provide will apply to the provision of these Services.

2. Provision of Service

2.1. Following the Effective Date, Poplar Studio shall set-up the Service for the Customer.

2.2. It is the Customer’s responsibility to ensure it and Customer’s end clients have equipment (of appropriate specification and compatible with the Service, as notified by Poplar Studio to Customer but which shall as a minimum be AR-compatible devices ) and internet connection to enable the Customer and the Customer’s end clients to connect to the Service. The Customer acknowledges that it or its end clients are  responsible for all charges for internet access (including mobile data usage) charged by its internet service provider.

2.3. The Customer acknowledges and agrees that Poplar Studio’s provision of any support and maintenance services shall be conditional upon:

(a) the Customer promptly providing all reasonable assistance, information and decision-making as reasonably required by Poplar Studio from time to time, which it agrees to give; and

(b) all Customer Materials being reliable, accurate and complete in all respects.

3. Grant of licence and scope of authorised use

3.1. Subject to full payment of the applicable fees and subject to the other provisions of this agreement, the Customer is granted a non-transferable, non-exclusive licence, for the term of this agreement, to permit Authorised Users and Customer’s End Clients to access and use the Service. Without prejudice to clause 3.2, the Customer may not sub-license the right to access (other than Customer’s End Clients) and/or use the Service to any third party. Except as expressly set out in this agreement, all rights in and to the Service (including the Poplar Studio Content but excluding Customer Data and Customer Materials) and Software are reserved to Poplar Studio.

3.2. Only the Customer is licensed to access and use the Service solely for its internal business purposes. Use by the Customer includes use by:

(a) the Customer’s employees;

(b) any contract staff who are working for the Customer; and

(c) any other person working with, or on behalf of, the Customer;

provided that, in each of these cases, the person concerned is accessing and using the Service exclusively on the Customer’s behalf, for the above purposes, and with the Customer’s authorisation (each an “Authorised User“).

3.3. The Customer shall comply with, and shall ensure that each Authorised User and if applicable, Customer’s End Clients, consents to and complies with, any terms of use or service and privacy and/or cookies policy that Poplar Studio may publish online through the Service, each as updated by Poplar Studio from time to time, all of which are incorporated into this agreement by reference.

3.4. The Customer shall not:

(a) except as expressly permitted by this agreement, permit any third party to access or use the Service or use the same on behalf of any third party;

(b) copy, translate, modify, adapt or create derivative works from the Service;

(c) unless authorised by Poplar Studio, create Internet “links” to the Service or “frame” or “mirror” any Poplar Studio Content on any other server or wireless or Internet-based device;

(d) attempt to discover or gain access to the source code for the Software or reverse engineer, modify, decrypt, extract, disassemble or decompile the Software (except strictly to the extent that the Customer is permitted to do so under applicable law in circumstances under which Poplar Studio is not lawfully entitled to restrict or prevent the same);

(e) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services;

(f) attempt to gain unauthorised access to or interfere with the proper working of the Service;

(g) provide false identity information to gain access to or use the Service; or

(h) use the Service to:

(i) upload, store, post, transmit, distribute, link to or otherwise make available, or advertise or promote any content that infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, sexually explicit, threatening, abusive, harassing, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), liable to cause anxiety, alarm or embarrassment, knowingly false or misleading, or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited as set out in any acceptable use policy published online through the Service, as updated by Poplar Studio from time to time (“Prohibited Content“);

(ii) impersonate any person or entity or otherwise misrepresent the Customer’s relationship with any person or entity;

(iii) engage in any fraudulent activity or further any fraudulent purpose;

(iv) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organisation(s) designated by the government of the United Kingdom or any foreign government as a foreign terrorist organisation;

(v) “stalk” or otherwise harass another person or collect or store unauthorised personal data in relation to any individual;

(vi) transmit or distribute any unsolicited or unauthorised advertising, marketing or promotional material or other form of solicitation (spam); and/or

(vii) transmit or distribute any virus and/or other code that has contaminating or destructive elements;

and shall not permit any Authorised User or other third party to do any of the foregoing.

3.5. The Customer shall permit Poplar Studio or its appointed representatives the right, on reasonable prior notice, to inspect and audit its facilities and operations at any time during the Term, solely for the purposes of verifying its compliance with the terms of this agreement and the Customer agrees to provide reasonable access, during normal working hours and subject to its reasonable security procedures, to its premises, systems and personnel and to provide all reasonable co-operation (including the provision of requested information) for the purposes of such inspections and audits.

4. Administrator and Authorised Users

4.1. The Customer shall ensure that each Authorised User shall, as a condition of being granted access to the Service, acknowledge the obligations on the Customer under this agreement respecting authorised use (and restrictions on use) of the Service and agree to comply with the same. The Customer shall immediately notify Poplar Studio in the event that the Customer becomes aware of any breach of this agreement by any Authorised User.

4.2. The Customer shall be responsible for all access to and use of the Service by Authorised Users. The Customer shall be responsible for ensuring that Authorised Users keep their log-on identifiers, including usernames and passwords secure and confidential (“ID“). Unless expressly permitted by Poplar Studio, under no circumstances should IDs be transferred or shared between individual Authorised Users and ‘general’ (non-individually assigned) IDs may not be created. The Customer acknowledges and agrees that the Customer will be solely responsible for all activities that occur under such ID. The Customer shall promptly notify Poplar Studio upon becoming aware of any unauthorised access to or use of the Service, and provide all reasonable assistance to Poplar Studio to bring an end to such unauthorised access or use.

5. Fees, invoicing and payment

5.1. If applicable and set out on the Quote the Fees may include an initial, one-time set up fee. If applicable, upon execution of this agreement, Poplar Studio shall invoice the Customer for such set-up fee. 

5.2. Unless otherwise stated on the Quote, the Fees, shall be payable annually in advance from the Effective Date. 

5.3. Unless otherwise agreed, the Fees are subject to review and increase by Poplar Studio once every 12 months from the Effective Date provided that no such increase will apply prior to the end of the Initial Term.

5.4. Unless otherwise expressly provided in this agreement, all amounts referred to in this agreement are exclusive of value added tax (VAT) or other applicable sales tax which, where chargeable by Poplar Studio, shall be payable by the Customer at the rate and in the manner prescribed by law.

5.5. Invoices are payable, in full, upon delivery and without deduction, set off or withholding of any kind. In the event of any dispute as to the amount of an invoice, the Customer shall pay the amount in full pending the resolution of any dispute and Poplar Studio shall make any adjustment due immediately upon such resolution.

6. Warranties

6.1. Poplar Studio warrants that:

(a) it has the right to enter into this agreement and to provide the Service as contemplated by this agreement; and

(b) the Services and any support and maintenance services shall be performed with reasonable care and skill.

6.2. If any of the warranties in clause 6.1 is breached, the Customer must notify Poplar Studio as soon as possible. The Customer must give Poplar Studio a reasonable time to fix the problem, including (in Poplar Studio’s discretion) by making available a corrected version of the Service or a reasonable way to work around the problem that is not materially detrimental to the Customer and/or by re-performing any relevant services. This will be done without any additional charge to the Customer. If Poplar Studio is able to do this within a reasonable time, this shall be the Customer’s sole and exclusive remedy in relation to such breach and Poplar Studio will, subject to clause 8.1, have no other obligation or liability in relation to such breach.

6.3. Poplar Studio does not control the content posted to or via the Service and, in particular, does not control the Customer Data and, as such, Poplar Studio does not make or give any representation or warranty as to the accuracy, completeness, currency, correctness, reliability, integrity, usefulness, quality, fitness for purpose or originality of any of the foregoing content or data.

6.4. Except as expressly set out in this agreement and subject only to clause 8.1, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to the Service (including any Poplar Studio Content) or to anything supplied or provided by Poplar Studio under this agreement. In particular, Poplar Studio does not warrant that the operation of any Service will be uninterrupted, contaminant-free or error-free, or that they will meet the Customer’s requirements.

6.5. The Customer shall ensure that its use of the Service, complies, in all respects, with all applicable laws, regulatory requirements, mandatory standards and codes of practice of any competent authority for the time being in force.

7. Intellectual Property Rights

7.1. Nothing in this agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.

7.2. Poplar Studio and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in Poplar Studio’s brands, trade marks and logos, the Service (including the Poplar Studio Content but excluding Customer Data and Customer Materials) and the Software. Except as expressly permitted by this agreement, the Customer may not use any of Poplar Studio’s Intellectual Property Rights without Poplar Studio’s prior written consent.

7.3. The Customer shall promptly bring to the attention of Poplar Studio any improper or wrongful use of any Intellectual Property Rights of Poplar Studio which comes to the Customer’s notice. The Customer shall assist Poplar Studio in taking all steps to defend Poplar Studio’s Intellectual Property Rights, but not institute legal proceedings of its own accord.

7.4. Unless otherwise agreed in writing, any Intellectual Property Rights created or developed by Poplar Studio in the course of providing the Services shall by owned by Poplar Studio and the Customer shall have no rights in respect of the same.  Notwithstanding the foregoing and save as set out in clause 7.5, Poplar Studio shall have no rights in respect of the Customer Data or Customer Materials. 

7.5. The Customer and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the Customer Data and Customer Materials. The Customer grants Poplar Studio, free of charge, a royalty-free, worldwide, non-exclusive licence to use the Customer Data and Customer Materials only to such extent as is necessary to enable Poplar Studio to provide the Service and to perform its obligations under this agreement. The Customer warrants that: (a) the Customer owns the Customer Data and Customer Materials and/or are otherwise entitled to grant the foregoing licence; and (b) that the use of the Customer Data and Customer Materials by Poplar Studio will not breach any Intellectual Property Rights of any third party . If this agreement is terminated, the foregoing licence will automatically terminate.

8. Exclusions and limitations

8.1. Nothing in this agreement limits or excludes either party’s liability:

(a) for death or personal injury caused by its negligence;

(b)for fraudulent misrepresentation or for any other fraudulent act or omission;

(c) to pay sums properly due and owing to the other in the normal course of performance of this agreement; or

(d) for any other liability which may not lawfully be excluded or limited.

8.2. Subject to clause 8.1, Poplar Studio shall not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any: loss of profit;  loss of sales, turnover, revenue or business; loss of customers, loss of or damage to reputation or goodwill; loss of any software or data; loss of use of hardware, software or data; loss or waste of management or other staff time; or indirect, consequential or special loss; arising out of or relating to this agreement. 

8.3. Subject to clause 8.1, Poplar Studio shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise, for any loss, damage, expense or liability incurred or sustained as a result of:

(a) the use of the Service except for its normal intended purpose or use of the Service on equipment that does not meet the relevant specifications notified to the Customer by Poplar Studio;

(b) the compliance by Poplar Studio with any design, specification or instructions provided by the Customer or on the Customer’s behalf; or 

(c) any Customer Data and/or Customer Materials. 

8.4. Subject to clauses 8.1 and 8.2, Poplar Studio’s total liability arising out of or relating to this agreement or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited, to the greater of: (a) total of all amounts payable (whether or not yet paid) by the Customer under this agreement in the 12 month period prior to the date on which the liability arose; or (b) the annual fees payable during the Initial Term. 

9. Confidentiality

9.1. Subject to clause 9.2, each party shall:

(a) keep confidential all Confidential Information of the other party which it receives in connection with this agreement;

(b) apply to it no lesser security measures and degree of care than those which it takes in protecting its own Confidential Information and in any event no less than that which a reasonable person or business would take in protecting its own confidential information;

(c) only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this agreement;

(d) not disclose such Confidential Information to any third party (other than its professional advisers, officers, employees, agents, contractors and sub-contractors  on a ‘need to know’ basis as strictly required for the purposes of this agreement and subject to each such person being bound by an obligation of confidentiality equivalent to this clause 9); and

(e) promptly, upon request and, in any event, upon termination of this agreement (for whatever reason), return to the other party all materials (in whatever form) incorporating, embodying or recording any such Confidential Information in its possession or control and, if requested by the other party, certify in writing that it has done so.

9.2. Either party may disclose the other’s Confidential Information to the extent required by law or by any court, tribunal, regulator or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement).

9.3. Notwithstanding the provisions of this clause, the Customer agrees that Poplar Studio may refer to the Customer and services provided to it on its website and other marketing materials.

10. Data protection

10.1. Each party will, at all times during the term of this agreement, comply with the Data Protection Legislation.

10.2. The parties do not intend that personal data be processed in connection with the delivery of the Services, however to the extent that it is and Poplar Studio is the processor the following provisions of this clause 10.2 shall apply. In this clause 10, the terms “data subject(s)“, “personal data“, “process” and “processor” shall have the meanings given in the UK GDPR (and shall include any other terms with equivalent meaning that may exist under the Data Protection Legislation). The parties acknowledge that the types of personal data processed pursuant to this agreement (including the subject matter, duration, nature and purpose of the processing and the categories of data subject) are as described in schedule 2.  To the extent that personal data is provided or made available to Poplar Studio by or on behalf of the Customer and/or any of its Group Members, Poplar Studio:

(a) acknowledges that, as between the parties, and in respect of this personal data,  it acts only as a processor;

(b) will only process such personal data in accordance with this agreement and the Customer’s instructions issued from time to time (including any instruction to rectify, delete, block, destroy or return any such personal data);

(c) will immediately inform the Customer if, in Poplar Studio’s opinion, any instructions given to it by the Customer in relation to the processing of such personal data under this agreement infringe any Data Protection Legislation;

(d) will implement and operate, and shall procure that any permitted sub-processor implements and operates, appropriate technical and organisational measures to ensure:

(i) the protection of the rights of the relevant data subjects; and

(ii) a level of security appropriate to the risks that are presented by any processing of such personal data, in particular protection from accidental loss or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed by Poplar Studio pursuant to this agreement;

(e) will not, without the prior written consent of the Customer, transfer any such personal data to any country unless such country is an Adequate Country or adequate safeguards have first been put in place such as will enable each party to comply with the data transfer requirements of the Data Protection Legislation;

(f) will take reasonable steps to ensure that only authorised personnel have access to any such personal data and that any persons whom it authorises to have access to the personal data are under obligations of confidentiality;

(g) will notify the Customer without undue delay of any breach of the provisions of this clause 10 (including any Personal Data Breach) and provide assistance to the Customer in respect of any such breach including, at the time of notification, all material information in Poplar Studio’s possession which may include details of the circumstances of the breach, number and time of records involved and data subjects affected, the potential consequences of the breach, and any mitigation or remedial action take to avoid any repeat.  To the extent any such information is not in Poplar Studio’s possession at the time of notification, it must be provided to the Customer within seven days of the breach, along with any other relevant information required by the Customer to comply with its management and reporting obligations;

(h) will provide such assistance as the Customer reasonably requests (taking into account the nature of processing and the information available to Poplar Studio) to the Customer in relation to the Customer’s obligations under the Data Protection Legislation with respect to:

(i) the Customer’s obligations to respond to any complaint or request from any applicable data protection authority or data subjects seeking to exercise their rights under any Data Protection Legislation, including by promptly notifying the Customer of each subject access request Poplar Studio receives where the Customer is unable to respond to a request itself;

(ii) the Customer’s obligations to:

(A) ensure the security of the processing;

(B) notify the relevant data protection authority and any data subjects, where relevant, of any Personal Data Breach;

(C) carry out any data protection impact assessments (“DPIA“) on the impact of the processing on the protection of personal data in connection with this agreement; and

(D) consult the relevant data protection authority prior to any processing where a DPIA indicates that the processing would result in a high risk in the absence of measures taken by the Customer to mitigate the risk;

(i) will make available to the Customer all information reasonably required by the Customer to demonstrate Poplar Studio’s compliance with its obligations set out in this clause 10; and

(j) as soon as reasonably practicable following, and in any event within sixty (60) days of, termination or expiry of this agreement, Poplar Studio will delete or return to the Customer (at Customer’s direction) such personal data.

11. Term and termination

11.1. This agreement shall commence on the Effective Date and shall, unless sooner terminated in accordance with its terms, continue for an initial term of the duration set out in the Quote (“Initial Term“) and thereafter renew automatically for successive 12 month terms (each a “Renewal Term“) unless and until terminated by either party giving the other not less than 60 days’ written notice to that effect (such notice to expire at the end of the Initial Term or any subsequent Renewal Term only).

11.2. Either party may terminate this agreement by giving the other written notice if:

(a) the other materially breaches any term of this agreement and it is not possible to remedy that breach;

(b) the other materially breaches any term of this agreement and it is possible to remedy that breach, but the other fails to do so within 30 days of being requested in writing to do so;

(c) (where such termination is permitted by law) the other becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 28 days), applies to court for, or obtains a moratorium under Part A1 of the Insolvency Act 1986, or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.

12. Consequences of termination

12.1. Upon termination of this agreement for any reason the Customer shall immediately cease to access, and discontinue all use of, the Service. 

12.2. The termination of this agreement for any reason will not affect:

(a) any accrued rights or liabilities which either party may have by the time termination takes effect; or

(b) the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after the termination. Without prejudice to the foregoing, clauses 1, 5, 6, 7, 8, 9, 12 and 14 shall survive termination of this agreement.

13. Force majeure

Neither party will be liable to the other for any failure or delay in performing its obligations under this agreement which arises because of any circumstances which it cannot reasonably be expected to control (which shall include Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving personnel of Poplar Studio or a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery or breakdown in machinery, or interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing, but shall not include shortage or lack of available funds on the Customer’s part), provided that it:

(a) notifies the other in writing as soon as reasonably practicable about the nature and extent of the circumstances and likely effects;

(b) uses reasonable efforts to mitigate the effects of the circumstances so as to minimise or avoid any adverse impact on the other; and

(c) uses reasonable efforts to resume performance as soon as reasonably practicable.

14. General

14.1. The Customer may not sub-license or assign, sub-contract or delegate any or all of its rights or obligations under this agreement without the prior written consent of Poplar Studio.

14.2. Poplar Studio may, on written notice, inform Customer that it has entered into an agreement with a third party to assign any invoices payable under this agreement to that third party.  Where this occurs, Customer agrees that it will remit Fees to this third party in settlement of any invoice.  Notwithstanding the foregoing, Poplar Studio will remain responsible for the provision of the Services.

14.3. All notices and consents relating to this agreement (but excluding any proceedings or other documents in any legal action) must be in writing. Notices must be sent to the address of the recipient set out in the Quote or otherwise notified by the relevant party in accordance with this agreement. Notices shall be sent by email  to and shall be treated as having been delivered 

(a) at the time at which the email was sent (provided that, if the email was sent outside the hours of 9 am to 5 pm or on a day that is not a Business Day, the email will be treated as having been delivered at 9 am on the next Business Day.

14.4. Unless the parties expressly agree otherwise in writing, if a party:

(a) fails to exercise or delays exercising or only exercises partially any right or remedy provided under this agreement or by law; or

(b) agrees not to exercise or to delay exercising any right or remedy provided under this agreement or by law;

then that party shall not be deemed to have waived and shall not be precluded or restricted from further exercising that or any other right or remedy.

14.5. If any provision of this agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this agreement or this agreement as a whole. If any provision of this agreement is so found to be ineffective or unenforceable but would be effective or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it effective and enforceable.

14.6. All variations to this agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.

14.7. Except to the extent that this agreement expressly provides otherwise, nothing in this agreement shall or is intended to create a partnership or joint venture between the parties, constitute one party as agent of the other or give either party authority to make or enter into commitments, assume liabilities or pledge credit on behalf of the other party.  Neither party may act as if it were, or represent (expressly or by implying it) that it is, an agent of the other or has such authority.

14.8. A person who is not a party to this agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

14.9. It is a condition of this agreement that, in pre-contract negotiations and in the exercise of its rights or the performance of its obligations under this agreement, each party shall at all times ensure that it complies with the terms of the Bribery Act 2010 and that it does not commit (or procure the commission of) any breach of that Act.

14.10. This agreement sets out all of the terms that have been agreed between the parties in relation to the subjects covered by it, and supersedes all previous agreements between the parties relating to such subjects.  Provided always that nothing in this clause 14.9 will operate to limit or exclude any liability for fraud or fraudulent misrepresentation, no other representations or terms shall apply or form part of this agreement and each party acknowledges that it has not been influenced to enter this agreement by, and shall have no rights or remedies (other than for breach of contract) in respect of, anything the other party has said or done or committed to do, except as expressly recorded in this agreement.

14.11. This agreement is governed by English law. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with this agreement or its subject matter, but Poplar Studio is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights.

Schedule 1

Support and maintenance

1. Overview

This schedule represents a service level agreement between the Customer and Poplar Studio in respect of the Service.

2. Support requests

2.1. Support is available 10:00 to 18:00 (UK time) on Business Days.

2.2. In the event of a problem with the Service, the Customer should call the Support Service Desk number shown below. If the problem is severe, it should also send an email to the address shown.

Support Service email address: 

2.3. [Poplar Studio will use commercially reasonable efforts to respond to the Customer’s support requests regarding the Service within one Business Day of the relevant request being reported to it [and to resolve it as soon as practicable thereafter].]

3. Service parameters

The following service parameters are the responsibility of Poplar Studio in the ongoing support of the Service:

(a) Availability

Poplar Studio will use commercially reasonable efforts to make the Service available 24 hours a day, seven days a week, except for unavailability during emergency or routine maintenance.

(b) Maintenance windows

Poplar Studio reserves the right to take the Service offline in order to carry out emergency maintenance, but will endeavour to give the Customer as much notice as reasonably possible. Routine maintenance, which may also require the Service to be taken offline, will be carried out during scheduled windows.

(c) Server and data back-up and recovery

All servers used to provide the Service are subject to current Poplar Studio back-up and recovery procedures. Sufficient redundancy is available to ensure continuity of service in event of total server failure with a target recovery time of [12] hours for any given server. [Data is backed-up on a daily basis.]

(d) Server monitoring

All servers used to provide the Service are monitored by or on behalf of Poplar Studio.

(e) Scope limitations

Not included within the scope of the support and maintenance services provided under this agreement are:

(i) support or maintenance of any product, service or equipment other than the Service;

(ii) support in relation to any problem caused by user error or lack of competence;

(iii) development or provision of functional or other enhancements or software customisation;

(iv) data migration or conversion;

(v) provision of training or creation of training materials; and

(vi) any other IT consulting services.

Schedule 2

Personal Data

For the purposes of clause 10.2, the parties set out below a description of the personal data being processed under this agreement.

1. Types of personal data

Customer Data and personal details (title, first name, last name), position, contact information, [location data,] employer, ID data, services provided, internet protocol address.

2. Duration of processing

Until the earliest of termination of this agreement in accordance with its terms or the date upon which processing is no longer necessary for the purposes of either party performing its respective obligations under this agreement (to the extent applicable).

3. Nature of processing

Collection, storage, duplication, electronic viewing, deletion and destruction.

4. Purpose of processing

Administration, support and management of Customer business operations.

5. Categories of data subject

Officers, employees, temporary staff and other users authorised by the Customer and its Group Members.