These are the Terms and Conditions of the agreement between consenTag and the Site Owner, each as identified in the Order that incorporates these Terms and Conditions by reference
(A) consenTag has developed the consenTag Service for the gathering and management of consent preferences on websites
(B) Site Owner wishes to configure the consenTag Service and use it for the gathering and management of such preferences by users of the Site
(C) Accordingly consenTag agrees to provide and the Site Owner agrees to take and pay for the consenTag service subject to the terms and conditions of the Agreement.
1.1 The definitions and rules of interpretation in this clause apply in the Agreement.
Agreement: the agreement formed by the combination of an Order with these Terms and Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010.
consenTag Privacy Notice: consenTag’s Privacy Notice
consenTag Service: the customisable Preference [and Pixel] management service provided by consenTag
consenTag Platform Software: the online software applications provided by consenTag as part of the consenTag Service.
Commencement Date: the date when the consenTag Services commences to be made available to users of the Site.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.
Effective Date: the date of the Agreement as stated in the relevant Order.
Fees: the fees payable by the Site Owner to consenTag under the Agreement, including Set-Up Fees and Usage Fees.
GDPR means Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, repealing Directive 95/46/EC.
Initial Term: the initial term of the Agreement as set out in the Order.
Normal Business Hours: 9am am to 6.00 pm local UK time, each Business Day.
Order: a document executed on behalf of consenTag and the Site Owner of the type referred to in clause 9.1
Personal Data: has the meaning given in applicable Data Protection Laws.
Preference: consent or non-consent to Site Enhancement, Experience Enhancement or Relevant Advertising or any other consent given or not given through the consenTag Service
Renewal Period: the period described in clause 14.1
Site: the website(s) controlled by the Site Owner specified in the Order.
Site Materials: materials and data comprising the Site, excluding those materials and data comprised in, input into or output from the consenTag Service.
Set-Up Fees: the Set-Up Fees specified in the relevant Order.
Term: has the meaning given in clause 1 (being the Initial Term together with any subsequent Renewal Periods).
Usage Fees: the Usage Fees specified in the relevant Order.
User: an individual (including, for the avoidance of doubt, one which is identified by an anonymous ID rather than an email address or other contact information) who stores at least one Preference.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Terms defined in the consenTag Privacy Notice bear the same meaning in the Agreement, unless the context requires otherwise.
1.3 Clause and paragraph headings shall not affect the interpretation of the Agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision. A reference to writing or written includes e-mail. References to clauses are to the clauses of these Terms and Conditions.
2. Configuring the consenTag Service
2.1 In order to avail of the consenTag Software it is necessary for the Site Owner and consenTag Service to collaborate with the objective of configuring and customising the consenTag Software to the Site and Site Owner, as follows:
(a) Set-up Site Owner (create account and assess existing pixels on site)
(b) Set-up the Site Owner’s styles for the appearance of consenTag on the Site, based on the standard templates deployed by consenTag
(c) Create or Select Pixel Providers and links to privacy policies
(d) Create Pixels, relevant firing rules and appropriate Site Owner datalayer
(e) Assign Pixels to relevant Containers to drive Preference options
(f) Provide Container script to Site Owner for deployment of consenTag on Site
2.2 Once consenTag confirms that this process of configuration and customisation has been completed, consenTag will notify the Site Owner of the Commencement Date. References to the consenTag Service in the Agreement are to the consenTag Service as configured and customised under this clause 2 unless the context does not permit of such an interpretation
3. Licensing and related
3.1 Subject to Site Owner’s compliance with its obligations under the Agreement, consenTag hereby grants to the Site Owner a non-exclusive, personal, non-transferable, terminable licence, without the right to grant sublicences, authorising the Site Owner to make the consenTag Service available on the Site to actual and potential Users.
3.2 The Site Owner shall not suffer or permit anything to be done on or in relation to the Site that might cause:
(a) the consenTag Service; or
(b) access to the consenTag Service by actual or potential Users
(c) to be adversely affected or inhibited.
3.3 The Site Owner shall ensure at all times that the consenTag Service is presented to actual or potential Users by clicking on a “Manage Consent Preferences” (or similar) link on the Site that has a degree of prominence on the Site that facilitates easy access to it by actual and potential Users.
4.1 consenTag shall, during the Term, provide the consenTag Service subject to the terms of this agreement.
5. Site Materials
5.1 As between the Site Owner and consenTag:
(a) the Site Owner shall own all right, title and interest in and to all of the Site Materials; and
(b) the Site Owner shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Site Materials.
(a) meets all the requirements of Data Protection Laws; and
(b) to the extent necessary, permits the conduct by consenTag of its rights and obligations under the consenTag Privacy Notice
6. Data Protection
6.1 To the extent that consenTag processes Personal Data of Users (including Preferences) in the course of providing the consenTag Service, each party acknowledges and agrees that for the purpose of Data Protection Laws, consenTag shall be the controller of that Personal Data.
6.2 The Parties shall each comply with their respective obligations as controller and/or processor of Personal Data.
7. consenTag’s obligations
7.1 consenTag warrants that it is entitled to grant the licence under clause 3.1.
7.2 The warranty set forth in this clause 7 is exclusive and in lieu of all other warranties, whether statutory, express or implied. Without limiting the foregoing, consenTag disclaims and excludes any implied warranties of satisfactory quality, fitness for a particular purpose or reasonable care and skill.
8. Site Owner’s obligations
8.1 The Site Owner shall not:
(a) 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 the 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 consenTag Platform Software 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 consenTag Platform Software; or
(b) access all or any part of the consenTag Service in order to build a product or service which competes with the consenTag Service; or
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit, or otherwise make the consenTag Service available to any third party or on any site other than the Site except to the extent permitted under the Agreement.
8.2 The Site Owner shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the consenTag Service or consenTag Platform Software and, in the event of any such unauthorised access or use, promptly notify consenTag thereof, providing full information as to the access in question.
8.3 The Site Owner shall:
(a) provide consenTag with:
(i) all necessary co-operation in relation to the Agreement; and
(ii) all necessary access to such information as may be required by consenTag;
in order to provide the consenTag Service, including but not limited to relevant Site Materials;
(b) comply with all applicable laws and regulations (including, without limitation, Data Protection Laws) with respect to its activities under the Agreement;
(c) carry out all other Site Owner responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Site Owner’s provision of such assistance, consenTag may adjust any related timetable for delivery or performance of its services as reasonably necessary;
(d) ensure that its network and systems comply with the relevant specifications provided by consenTag from time to time; and
(e) be solely responsible for procuring and maintaining its network connections and telecommunications links, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Site Owner’s network connections or telecommunications links or caused by the internet.
8.4 Site Owner shall indemnify consenTag against all damages, loss, liability and costs (including relevant legal fees) resulting from a third-party claim brought against consenTag arising out of or in connection with Site Owner’s or Users’ use of the consenTag Service. Site Owner will have no obligation or liability hereunder where the claim results from any combination with, addition to, or modification of any part of the consenTag Service (including any tag associated with it), including any compensation paid or payable by consenTag under Article 82 of the GDPR.
8.5 Where pursuant to Article 82(4) of the GDPR, Site Owner is found to be liable for the entire damage arising from a breach or breaches of the GDPR relating to activities under the Agreement, in order to ensure effective compensation of a one or more individuals, then you shall indemnify Site Owner for all claims, demands, loss, damage or expense (including reasonable attorneys’ fees) relating to any breaches of GDPR for which you are wholly or partly responsible. All compensation paid to a data subject pursuant to Article 82(4) of the GDPR by Site Owner which is wholly or partly attributable to GDPR breaches by you shall be repaid pursuant to this indemnity and Article 82(5) immediately on receipt of a written request from Site Owner pursuant to this Section 3.
9. Charges and payment
9.1 The Site Owner and consenTag shall agree one or more Orders specifying:
(a) the Fees payable; and
(b) any other matters agreed in respect of the consenTag Service.
9.2 Unless the context requires otherwise, references to the Agreement shall include each Order.
9.3 The Site Owner shall pay:
(a) Set-Up Fees upon the Commencement Date; and
(b) Usage Fees to consenTag from the Commencement Date, monthly in arrears, pro-rated daily for part of a month, the greater of either:
(i) The minimum monthly fee, or
(ii) according to the aggregate number of Users held in that month.
9.4 consenTag shall invoice the Site Owner at or about the beginning of each month for the Fees chargeable in accordance with clause 9.3.
9.5 The Fees are stated exclusive of amounts in respect of value added tax and any other tax or levy chargeable on a supply of the consenTag Service, which shall be added to consenTag’s invoices at the appropriate rate.
9.6 The Site Owner shall pay invoices submitted by consenTag in full within 30 of the date of the sending of the invoice to the Site Owner’s email address specified in the Order (the Due Date) in cleared funds and without set-off by inter-bank transfer to such bank account as is nominated in writing by consenTag in the relevant invoice.
9.7 If the Site Owner fails to make any payment due to consenTag under the Agreement by the Due Date, then, without limiting the consenTag’s remedies under any other provision of the Agreement, the Site Owner shall pay interest on the overdue amount at the rate of three percent per annum above [NatWest Bank]’s base rate in London from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Site Owner shall pay the interest together with the overdue amount.
9.8 If consenTag has not received payment within ten after the Due Date, and without prejudice to any other rights and remedies of consenTag, consenTag may, without liability to the Site Owner, disable the Site’s the Site Owner’s and/or any or all Users’ access to all or part of the consenTag Service and consenTag shall be under no obligation to provide any or all of the consenTag Service while the invoice(s) concerned remain unpaid. The Site Owner shall indemnify consenTag against all losses and damages suffered as a result thereof.
9.9 All amounts and Fees stated or referred to in the Agreement shall be payable in the currency specified in the Order or such other currency as is stated in the relevant consenTag invoice, and are non-refundable.
9.10 consenTag shall be entitled to increase the Fees at the start of each Renewal Period upon 30 to the Site Owner and the relevant Order shall be deemed to have been amended accordingly, provided that any such increase to the Fees shall not exceed the greater of:
(a) the proportionate increase in the Index of Services Producer Price Inflation (as published by the UK Office for National Statistics), or any successor or replacement index, in respect of the twelve-month period in respect of which such index was last published prior to the date of consenTag’s notice to the Site Owner; or
(b) five percent.
10. Proprietary rights
The Site Owner acknowledges and agrees that consenTag and/or its licensors own all intellectual property rights in the consenTag Service and the consenTag Platform Software. Except as expressly stated herein, the Agreement does not grant the Site Owner any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the consenTag Service or the consenTag Platform Software.
11.1 Each party may be given access to Confidential Information of the other party in order to perform its obligations or exercise rights under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to clause 4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.6The Site Owner acknowledges that Confidential Information of consenTag shall be deemed to include details of the consenTag Service, any tests conducted on or through the consenTag Service, the Order and all Preferences.
11.7 Save as provided in clause 11.8, neither party shall make, or permit any person to make, any announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.8 The Site Owner acknowledges that consenTag shall be entitled to include the Site Owner’s name and logo in its online and offline publications as a customer of consenTag and/or for the consenTag Service.
11.9 The above provisions of this clause 11 shall survive termination of the Agreement, however arising.
12.1 Subject to any other indemnity granted under The Site Owner shall defend, indemnify and hold harmless consenTag against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Site infringing the rights of any person or any applicable law, provided that:
(a) the Site Owner is given prompt notice of any such claim;
(b) consenTag provides reasonable co-operation to the Site Owner in the defence and settlement of such claim, at the Site Owner’s expense; and
(c) the Site Owner is given sole authority to defend or settle the claim.
13. Limitation of liability
13.1 Except as expressly and specifically provided in the Agreement:
(a) consenTag shall have no liability for any loss or damage caused by loss of or errors or omissions in any Site Materials or in any information or instructions provided to consenTag by the Site Owner in connection with the consenTag Service, or for any actions taken by consenTag at the Site Owner’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and
(c) the consenTag Service is provided to the Site Owner and Users on an “as is” and “as available” basis;
(d) does not warrant that the consenTag Service will be uninterrupted or error-free;
(e) does not warrant that the consenTag Service will meet the Site Owner’s or Users’ requirements;
(f) Site Owner acknowledges that consenTag is provided without any warranty or undertaking whatsoever, including (without limitation) as to its functions, facilities or performance; and
(g) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Site Owner acknowledges that the consenTag Service may be subject to limitations, delays and other problems inherent in the use of such facilities.
13.2 Nothing in the Agreement excludes the liability of consenTag:
(a) for death or personal injury caused by consenTag’s negligence; or
(a) for fraud or fraudulent misrepresentation.
13.3 Subject to clauses 1 and 13.2:
(a) consenTag shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill or similar losses, or for loss of or corruption of data (including Site Materials) or information, or for pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
(b) consenTag’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement during any successive period of twelve months (the first such period commencing on the Effective Date) shall be limited to the greater of (a) £5,000 or (b) the total Fees paid by the Site Owner to consenTag for services provided during that period of twelve months.
13.4 consenTag shall not have any liability to Site Owner or any third party for the conveying or non-conveying of Preferences. consenTag does not warrant that the consenTag Service (i) will be available on an uninterrupted or error-free basis, (ii) will not cause any delays in processing latency, or (iii) will meet any legal requirements concerning Preferences, consent or Data Protection Laws. You acknowledge that consenTag shall have no liability to Site Owner or any third party for any reliance placed on the consenTag Service, and that the exclusions and limitations in this clause 13 are an essential part of the Agreement.
14. Term and termination
14.1 The Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Period, in which case the Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
(b) otherwise terminated in accordance with any of the provisions of the Agreement;
and the Initial Term together with any subsequent Renewal Periods shall constitute the Term.
14.2 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of the Agreement and fails to remedy that breach within a period of 10 Business Days after being notified in writing to do so;
(c) 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
(d) 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.
14.3 Without affecting any other right or remedy available to it, consenTag may terminate the Agreement with immediate effect by giving written notice to the Site Owner if there is a Change of Control of the Site Owner. The Site Owner shall promptly notify consenTag of any Change of Control of the Site Owner.
14.4 On termination of the Agreement for any reason:
(a) all licences granted under the Agreement shall immediately terminate and the Site Owner shall immediately cease all use of the consenTag Service; and
(b) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Force majeure
consenTag shall have no liability to the Site Owner under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of consenTag or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default affecting consenTag or its sub-contractors, provided that consenTag shall use its reasonable endeavours to notify the Site Owner of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of these Terms and Conditions and the Order, the provisions in these Terms and Conditions shall prevail.
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19 Rights and remedies
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
21. Entire agreement
21.1 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.
21.2 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.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
21.4 Nothing in the Agreement shall limit or exclude any liability for fraud.
22.1 The Site Owner shall not, without the prior written consent of consenTag, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
22.2 consenTag may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
23. No partnership or agency
Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24. Third party rights
The Agreement does not confer any rights on any person (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25.1 Any notice required to be given under the Agreement shall be in writing and shall be:
(a) delivered by hand or sent by pre-paid first-class recorded delivery post to the other party at its address set out in its Address for service of notices in the Details of the Parties, or to such other address as may have been notified by that party for such purpose; and
(b) sent by email (with read receipt requested) to the other party’s email address set out in its Address for service of notices in the Details of the Parties as set out in the Agreement, or to such other email address as may have been notified by that party for such purpose.
25.2 A notice delivered under clause 25.1 shall be deemed to have been received when delivered, or if delivery is not effected during Normal Business Hours at the commencement of Normal Business Hours on the first Business Day following delivery.
26. Governing law
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).