The Client has requested that the Company provides audience engagement services and advice, which may include, but is not limited to: design, visual identity and branding services, printing, web design, build, development and hosting, online services including those commonly referred to as social media channels, public relations services, and communications consultancy (hereinafter called “Services”).
NOW IT IS HEREBY AGREED as follows:
Definitions and Interpretation
1.1. The following definitions apply unless otherwise stated:
- ‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
- ‘Client Data’ means data provided by the Client to the Company during the provision of the Services.
- ‘Database’ means the infrastructure built by the Company to organise, store and analyse Client Data.
- ‘Deliverables’ means all content, imagery, photographs, designs, videos, brochures and other engagement materials as detailed in the Specification and provided to the Client as a result of the Services excluding all Databases, Source Code and Training Materials.
- ‘Estimate’ means the Company’s approximate calculation of the number of hours, cost of supply or provision of Services and or the delivery schedule of those Services and therefore the actual hours, cost or delivery schedule that could be invoiced may differ.
- ‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport 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 of suppliers or subcontractors.
- ‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
- ‘Proposal’ means a document prepared by the Company which may contain Estimates and or Quotations concerning the cost of providing Services to the Client, Estimates and or Quotations concerning the delivery schedule of said Services, and additional or supplementary clauses relating to the provision of those Services. As such, and when signed as such, Proposals can become attached schedules to this Contract and subject to clause 16.
- ‘Quotation’ means the actual number of hours, cost of supply or provision of Services that will or may be invoiced.
- ‘Source Code’ means any collection of computer instructions, possibly with comments, written using a human-readable programming language, usually as ordinary text, including but not limited to HTML, PHP, CSS and native scripting within either a licensed product or code already produced by the Company.
- ‘Specification’ means the description or specification of the Services in the Proposal.
- ‘Training Materials’ means presentation slides, manuals, videos and other materials created by the Company to train the Client in the use of Deliverables and Databases during the delivery of the Services.
- ‘Solutions Framework’ means an agreement to supply Services under a monthly subscription for an agreed length of time instead of being invoiced for any actual work carried out within a given month or time period.
- ‘Standing Fee’ means a weekly fee charged in some projects to cover baseline project management, communications time and administration of the project.
- ‘VAT’ means value added tax chargeable under English law for the time being and any similar additional tax.
- ‘White Label Work’ means Services provided by the Company to a Client who rebrands these services as their own for the benefit of their client.
- ‘Third Party Services’ means any service, paid for or open source, used by the Company in order to deliver Services to the Client.
- Words in their singular form shall also be read to include the plural form of the word and vice versa. Words which denote a particular gender shall be also read to include all genders and vice versa.
- Headings in this Agreement are inserted for convenience only and shall not affect the construction or interpretation of this Agreement.
- A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- Subject to the provisions of subsequent clauses, the Company shall provide Services in response to instructions from the Client.
- The Company shall accept instructions from authorized employees or agents and shall rely on information provided by such employees and agents. An individual shall be nominated by the Client as a primary point of contact.
- The Client shall inform the Company promptly of any change in relation to the name and full contact details of the nominated primary point of contact.
- If the Client provides instructions, information or advice to the Company orally, without confirmation in writing, then the Company shall not be liable to the Client for the consequences of any misunderstanding or misinterpretation by either party.
- Advice is provided to the Client for the benefit of the Client and solely for the purpose of the instructions to which it relates. The advice shall not be relied upon in relation to any other purpose, or by any person other than the Client, unless agreed in writing with the Company.
Company Obligations and Warranties
- The Company warrants that it shall provide the Services as stipulated in the Proposal using reasonable care and skill to conform in all material respects with the Specification.
- The Company shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only. The Company shall not be liable for any delay in delivery of the Services caused by a Force Majeure event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions relevant to the supply of the Services.
- The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
- The Company shall be entitled to use subcontractors for the provision of the Services provided always that the Company shall remain liable to the Client for the performance of the Services as if it had carried them out itself.
Client’s Obligations and Indemnities
- The Client shall provide assistance and technical information to the Company as reasonably required by the Company in sufficient time to facilitate the execution of the Services in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to the Company and warrants and undertakes to the Company that the Client’s employees assisting in the execution of the Services have the necessary skills and authority.
- The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) copy, graphic material and websites in staging submitted by the Company. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on websites, in IT systems or where it may otherwise be required by the Company.
- The Client shall be obliged to inform the Company immediately of changes of domain names, websites, technical setup and any other material information regarding the technical infrastructure which may affect the Services delivered by the Company.
- In the event that the Client fails to undertake those acts or provide those materials required under this clause 4 within any agreed deadline (and at least within 30 Business Days of the date requested by the Company) the Company shall be entitled to invoice for the Services that it has supplied.
- Except where the Company is negligent or in breach of contract the Client shall indemnify and keep the Company indemnified fully against all liabilities, costs and expenses whatsoever and howsoever incurred by the Company in respect of the content of the Client’s printed or online materials and services provided by the Client which result in claims or proceedings against the Company for infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality or contract or for defamation.
- The Client undertakes to comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Services, including without limitation its obligations under the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000, Competition Act 1998 and the E-Commerce Directive and equivalent legislation and hereby agrees to indemnify and to keep the Company indemnified in respect of any and all costs, claims or proceedings whatsoever brought against the Company by any third party in connection with any breach of the same by the Client.
- As standard across the Services and unless otherwise notified, the Client shall be exclusively responsible for implementing any changes to existing engagement materials including but not limited to print, website, online services and social media channels recommended by the Company. As notified by the Company, in certain cases for amendments to existing materials, the Client shall allow the Company use of usernames and passwords to gain the necessary access to the Client’s systems.
- The Company requires that prior notice be given for any alterations relating to the Client’s website(s), online services and social media channels that may affect the services supplied by the Company. If alterations are made by the Client or a third party to the Client’s website(s), online services or social media channels then performance, reach, engagement and search engine placements may be affected and the Company cannot be held responsible.
- In respect of all White Label Work the Client understands and agrees that the Company has no contractual relationship and therefore no liability in respect of the ultimate client with whom the Client agrees the White Label Work. The Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with the contract between the Client and their client for the White Label Work.
- Unless otherwise expressly stated, all prices provided in a Proposal shall be in Pounds Sterling and shall be stated exclusive of VAT and other duties. In the event that duties are introduced or changed after the conclusion of a Proposal, the Company shall be entitled to adjust the agreed prices accordingly.
- The Client acknowledges that certain Services may involve the licensing of third party Intellectual Property Rights and that the Client may be required to enter into a licence directly with such third party. Unless otherwise expressly stated, all prices provided in a Proposal shall be stated exclusive of costs for the acquisition of Intellectual Property Rights for materials to be included in engagement materials, including if relevant (but without limitation) pictures and licences from third party owners and licensors.
- Where a Proposal contains Estimates of the number of hours to provide the Services, the Client accepts and understands that Services shall be invoiced in accordance with the actual number of hours spent in accordance with the price set out in the Proposal and in the event that the price is not so stipulated, the Client shall be charged at the hourly rate specified in the Company’s then current price list. The Company shall be obliged to update the estimate and budgets on an ongoing basis following, among other things, changes made to a Proposal.
- Whilst every effort is made to ensure that pricing estimates are accurate, the Company reserves the right to amend any estimate, should an error or omission have been made.
- Except where the Proposal provides otherwise the Company shall invoice the Client in accordance with the following:
- Design, Visual Identity and Branding: A deposit of 50% of the estimate shall be paid before any work begins. The last invoice for the remaining amount in accordance with the Proposal and subject to clause 5.3 shall be issued upon the Client signing-off work as complete.
- Print Management and Supply: The full price of any purchase made on behalf of the Client by the Company shall be invoiced in full on the day of purchase.
- Hosting: Any hosting arrangement shall be invoiced monthly in advance of the service supplied, whether supplied for the entire month or in part, and is non-refundable.
- Website Design, Build and Development: The agreed deposit, as indicated in the Proposal, shall be paid before any work begins. On-going work shall be invoiced monthly at the agreed rate. The ‘going live’ fee or last invoice for the remaining amount in accordance with the Proposal and subject to clause 5.3 shall be issued upon the Client signing-off work as complete.
- Database Design, Build and Development: The agreed deposit, as indicated in the Proposal, shall be paid before any work begins. On-going work shall be invoiced monthly at the agreed rate. The ‘going live’ fee or last invoice for the remaining amount in accordance with the Proposal and subject to clause 5.3 shall be issued upon the Client signing-off work as complete.
- Custom App Design, Build and Development: The agreed deposit, as indicated in the Proposal, shall be paid before any work begins. On-going work shall be invoiced monthly at the agreed rate. The ‘going live’ fee or last invoice for the remaining amount in accordance with the Proposal and subject to clause 5.3 shall be issued upon the Client signing-off work as complete.
- Online Services: either regular or one-off, either supplied or purchased on behalf of the Client by the Company shall be invoiced monthly in advance and is non-refundable.
- Disbursements: Products or services purchased on the Client’s behalf by the Company and invoiced as a disbursement shall be invoiced no later than the end of the month in which the purchase was made by the Company. All disbursements are non-refundable and subject to the terms and conditions of supply of the third party who has supplied the products and services in question.
- Audience Engagement: work, which includes, but is not limited to, website development, copywriting, SEO work on-page and off-page, social media management, content producing, audience building, direct email work. Payment for such work shall be on a monthly basis agreed with the Client in advance of the service being supplied. Payment for monthly work shall be collected by Direct Debit unless an agreement to pay by invoice is part of the Proposal. This arrangement shall be reviewed each quarter and adjustments made accordingly. One-off pieces of the same are subject to the agreed deposit, as indicated in the Proposal, being paid before any work begins. Staged payments shall be invoiced in accordance with the Proposal. If appropriate, and indicated in the Proposal, the ‘going live’ fee or last invoice for the remaining amount in accordance with the Proposal and subject to clause 5.3 shall be issued upon the Client signing-off work as complete.
- Communications Consultancy: The agreed deposit, as indicated in the Proposal, shall be paid before any work begins. On-going work shall be invoiced monthly at the agreed rate. The last invoice for the remaining amount in accordance with the Proposal and subject to clause 5.3 shall be issued upon the Client signing-off work as complete.
- Solutions Framework: Any work carried out under the Solutions Framework shall be paid monthly in advance of the service being supplied and is non-refundable. Payment for this work shall be collected by Direct Debit.
- Standing Fee: This charged in arrears at the discretion of the Company. The amount will be clearly indicated in the Proposal.
- Where the total figure for any one-off work, that is not a monthly payment for services, is less than £500, then the total figure shall be paid before work begins unless otherwise expressly stated in the Proposal.
- The Client shall pay each invoice submitted by the Company within 14 Business Days of the date of the invoice and in cleared funds in accordance with clause 6.5 below. The invoice number shall be stated on all payments and payment by BACS, CHAPS, Cheque and Bank Transfer are accepted. Cash shall not be accepted as a payment method.
- VAT, where applicable, shall be charged at standard rates.
- The Client shall pay all amounts due under this Agreement in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.
- In the event of overdue payment, interest shall accrue on the invoice amount at the statutory rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 or at the rate of 2 per cent over the base rate of Barclays Bank Plc (whichever should be the higher). At the Company’s discretion, a fee of £10 (to cover administrative expenses and not as a penalty) shall be charged per reminder for overdue payment submitted to the Client. The Company shall be entitled to submit such reminders on a weekly basis once the fees have become overdue. The Company expressly reserves all rights at all times to bring any legal action it considers appropriate to recover any unpaid sums.
- Late payment shall be considered as constituting a material breach of this Agreement entitling the Company (at its discretion) to terminate this Agreement or to assert the usual remedies for breach.
- In the event that the Services cannot be delivered either in full or in part due to the Client’s failure to assist or delay in assisting in the execution of the Services, the Company shall be entitled to charge to the Client an estimated amount, corresponding to the amount that would have been due had the Services been rendered in accordance with the Proposal. The Company shall be entitled to payment on the basis of the Company’s price list applicable from time to time for any additional work required because of the Client’s failure to assist or delay in assisting.
- If the Client subsequently requires the Company to complete the work within a shorter time frame than specified in the Proposal the Company reserves the right to charge additional monies to prioritise such projects ahead of pre-planned work.
- Except where the Proposal provides otherwise the Company shall invoice the Client in accordance with the following:
Delays and Complaints
- In the event that the Client proves that the Services are delayed or not in accordance with the Proposal, the Company shall be obliged to remedy or redeliver the Services, at its own discretion, without undue delay. In the event that the Services continue to be not in accordance with this Agreement after reasonable attempts have been made to remedy this, the Client shall be entitled to terminate this Agreement in accordance with clause 13.2, provided that the breach is material.
- Complaints concerning delays or breach of contract shall be submitted immediately after the time when the Client became or should have become aware of the matter. If the Client fails to bring the defect (unless by its very nature it is impracticable for the Client to ascertain within such a period) to the attention of the Company within 48 hours, or the time period clearly stated in the Proposal, the Client shall be deemed to have accepted the Services and shall not be entitled to assert remedies based on delays or breach of contract.
- The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’). The Client acknowledges that the Third Party Services will be governed by that third party’s terms and conditions and that the Company cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.
- The Company’s only responsibility in respect of the Third Party Services is to take reasonable care and skill when selecting the providers of the same.
- The Client’s exclusive remedies for late delivery or Services not conforming with this Agreement are as specified in this clause 7 and, if the remedies set out in this Agreement have been exhausted, the Client’s final remedy shall be limited to cancellation of this Agreement.
- Except as expressly stated in this Clause 8, the Company shall have no liability to the Client for any loss or damage whatsoever arising from or in connection with the provision of the Services or for any claim made against the Client by any third party.
- Without prejudice to the generality of Clause 8.1 above, the Company shall have no liability for any losses or damages which may be suffered by the Client whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:
- Any indirect or consequential loss arising under or in relation to this Agreement even though the Company was aware of the circumstances in which such loss could arise;
- Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill;
- Fraudulent clicks on any of the Client’s accounts managed by the Company.
- To the extent such liability is not excluded by sub-clauses 8.1, 8.2 and clause 9 below, the Company’s total liability (whether in contract, tort (including negligence or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise shall not in any event exceed the greater amount of the total sum invoiced for the Services or £100,000.
Other Limitations of Liability
- Unless the Company is negligent it shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent on other deliveries from a third party. The Company shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with this Agreement or at the Company’s discretion the Company’s price list applicable from time to time.
- The Company shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical setup etc. affecting the Services delivered by the Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with this Agreement or at the Company’s discretion on the basis of the Company’s price list applicable from time to time.
- The Company shall use all reasonable endeavours to deliver Services relating to search engine optimisation, links, advertisements, banners, boosted posts, social media campaigns, pay per click and google analytics in accordance with the guidelines applicable to the relevant search engines, other online service providers and social media channel providers. However, the Company shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond the Company’s control and reserves the right to make changes to Services as a result of the same. In addition, the Company shall not be liable for other changes or discontinuation of search engines or other online service providers.
- The Company shall not be liable for Services relating to search engine optimisation, link building, advertisements, campaigns, banners or sponsorships leading to a minimum number of views, position or frequency in searches on relevant words or otherwise, or reach and engagement on other online and social media channels. In addition, the Company shall not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations, donations, purchases or the like.
- The Company shall not be responsible for URLs dropped or excluded by a search engine for any reason.
- If the Client does not implement some or all of the Company’s audience engagement recommendations, the Company shall not bear any liability for any lack of success experienced by the Client relating to the Services.
- The company shall not be liable for Clients who have root, Admin or Super-Admin access to their website. In general, some of the issues that might arise are listed below:
- If actions by the Client or a Client’s third party cause issues on the website that need fixing, then the time taken by us to do so is chargeable to the Client at our current hourly rate.
- If the Client or a Client’s third party adds anything to the site (plugins, add-ons, etc) and it requires cleaning up or causes any issues then this will be chargeable at our current hourly rate. Note too that we need notification of any such additions to the site in order to add them to the version control systems we have in place here in our development environment.
- If actions by the Client or a Client’s third party result in the website creating a security risk on our server then we reserve the right to take the site off line, without notice, in order for the security issue to be fixed. This will result in a charge, at our current hourly rate, for remmeding the website and any other issues it may have created on our server(s).
- None of the points above are covers by any support and maintenance package, which will remain in place and be carried out as normal.
Intellectual Property Rights
- The Client shall ensure that it has the right to use Intellectual Property Rights residing in any text, image or representation (“Materials”) provided to the Company for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable licence to the Company to use such Materials for the purposes of providing the Services for the duration of the Agreement.
- The Client shall ensure that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. The Company shall be entitled to reject and delete such contravening material without incurring any liability and terminate this Agreement.
- The Client shall indemnify the Company against all damages, losses and expenses suffered or incurred by the Company as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.
- The Parties shall be obliged to notify the other Party without undue delay of any claims raised against a party as described above.
- Unless expressly stated otherwise, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of the Company or the relevant third party from whom the Company has acquired a right of use with a view to executing the Services. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in the Company.
- All Intellectual Property Rights in Source Code, Databases and Training Materials in existence at the date hereof or created in the future shall vest in and be the property of the Company or the relevant third party from whom the Company has acquired a right of use with a view to executing the Services. The Client shall not sell, assign, license, lease, rent, loan or lend copies of Source Code or other components of a web site, Databases or Training Materials created, developed, subsisting or used in connection with the Services in any manner.
- Client Data shall remain the property of the Client.
- The Company shall retain ownership of all Intellectual Property Rights in the Deliverables until all payments due for the work carried out is received. Upon receipt of the final payment for the work Intellectual Property Rights in the Deliverables that the Company has developed on behalf of the Client shall pass to the Client. For the avoidance of doubt, Intellectual Property Rights in Source Code, Databases and Training Materials shall remain the property of the Company.
- Upon receipt of final payment for work involving website development, the Company shall grant the Client a non-exclusive perpetual license to use Source Code contained in the web site that the Company has developed on behalf of the Client.
- Following receipt of final payment for work involving web site development, the Client may sell the design and content of a website arising from the Services as a whole to a third party provided that it is understood that it is selling the single instance of the web site as developed by the Company.
- Upon receipt of final payment for work involving training, the Company shall grant the Client a non-exclusive perpetual license to use Training Materials that the Company has developed on behalf of the Client.
- If the Company makes facilities such as hosted software, scripts, usernames and passwords available to the Client as part of the execution of the Services, the Client shall only acquire a non-exclusive personal non transferable license to use such facilities for the duration of this Agreement.
- The Client hereby irrevocably licenses the Company to use and display the Client’s name, figure, logo etc. as a reference on the Company’s website, other marketing materials or types of media whilst they are a Client of the Company and for 18 months after the Agreement terminates. The Client agrees to send the Company its most recent logo or figure as and when it is amended from time to time.
- If this Agreement is terminated via the use of clause 13.2.2 then any and all licenses issued under clause 10.1 will pass to the Client without delay or further charge.
- Where the Company has provided a stock photo for the Client as part of a product or package of products.
- The License the Client has to use that stock is restricted to the License that the Company has from the third party from which they obtained it. Details of these restrictions will be issued at the time of consultation over the use of that image.
- If the Client provides images and stock assets to the Company for use in any product to be supplied by the Company, then the Client is obliged to ensure they have the License to use that asset including any model release required.
Confidentiality and Personal Data
- A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 11 shall survive termination of this Agreement.
- During the term of this Agreement and for a period ending 5 years from the date of its conclusion, the Company shall take the same care as the Company uses with it own confidential information, to avoid, without the Client’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Client’s business or operational information which the Client has designated as confidential.
- The obligation in clause 11.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this Agreement, is already or rightly comes into the Company’s possession without an accompanying obligation of confidence, is independently developed by the Company, or which the Company is required to disclose by law.
- During the term of this Agreement and for a period ending 5 years from termination thereof, the Client shall not disclose to any persons within its organisation that do not have a need to know, or to any third party, any information and non-Client materials provided by the Company concerning the method or approach the Company uses in providing the Services.
- Each party shall be obliged to indemnify the other for any loss, including costs incidental to legal proceedings, suffered by the latter as a result of the processing of personal data which the former has contributed being in contravention of the Data Protection Act 1998 or other relevant legislation. The Parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in the present clause 11.5.
- The Client retains rights and control over any and all data and in particular all personal data that is held as part of the business of the client. To that end the Client is the Data Controller as specified in the Data Protection Act 1998
- The Company shall only carry out those actions in respect of the personal data processed on behalf of the Client as are expressly authorised by the Client.
- The Company shall take such technical and organisational security measures as are required under its own national law to protect personal data processed by the Company on behalf of the Client against unlawful forms of processing.
- The Company agrees that it shall maintain the personal data processed by the Company on behalf of the Client in confidence. In particular the Company agrees that, save with the prior written consent of the Client, it shall not disclose any personal data supplied to the Company by, for, or on behalf of, the Client to any third party.
- The Company shall not make any use of any personal data supplied to it by the Client otherwise than in connection with the provision of services to the Client.
- Nothing in this agreement shall prevent either Party from complying with any legal obligation imposed by a regulator or court. Both parties shall however, where possible, discuss together the appropriate response to any request from a regulator or court for disclosure of information.
- Within 90 days following termination of this Agreement the Company shall, at the direction of the Client, (a) comply with any other agreement made between the Parties concerning the return or destruction of confidential information and data, or (b) as far as is practicable return all confidential and personal data passed to the Company by the Client for processing, or (c) on receipt of instructions from the Client, as far as is practicable destroy all such data and confidential information unless prohibited from doing so by any applicable law.
Term, Termination and Assignment
- The Agreement shall renew automatically for a further term of one year at the end of each year unless and until either party notifies the other of its wish to terminate this Agreement at the expiry of the current year by giving the other party at least 30 days’ written notice to expire at the end of the term.
- Without limiting its other rights or remedies, each party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party:
- commits a material breach of this Agreement and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
- becomes or is insolvent or is unable to pay its debts (within the meaning of the Insolvency Act 1986) or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.
- The Company shall, in addition to all other rights and remedies under this Agreement be entitled to terminate this Agreement without notice in the event that any of its charges for the Services are not paid in accordance with clause 6.
- Upon termination, for whatever reason, the Parties shall be obliged to return all materials received from the other pursuant to the Services without undue delay. If relevant, the Client shall be obliged to remove codes, etc., from websites without undue delay. If the Client fails to do so, the Company shall be entitled to invoice the Client in line with its then current pricing for subsequent Services without such invoicing amounting to a waiver of the Company’s right to terminate this Agreement.
- The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under this Agreement without the prior written consent of the Company. Such consent shall not be unreasonably withheld or delayed.
- The Company shall be entitled to assign or subcontract any of its rights or obligations under this Agreement and the Client acknowledges that certain elements of the Services will be provided by third parties.
- Neither party shall be held liable for a Force Majeure Event.
- If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.
- Notwithstanding the other provisions of this Agreement, each party shall be entitled to terminate this Agreement without liability to the other by written notice to the other party in the event that the performance of this Agreement is impeded for more than 6 months due to a Force Majeure Event.
- The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in this Agreement. Any samples, drawings, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of this Agreement or any other contract between the Company and the Client for the supply of Services.
- The Company shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.
- Except where the provisions of clause 13.2.2 apply, during the term of this Agreement and for a period of 12 months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone designated by the Company to work on the Services.
- The failure of either Party to enforce or to exercise at any time or for any period of time any right pursuant to this Agreement does not constitute, and shall not be construed as a waiver of such right and shall in no way affect that Party’s right later to enforce or to exercise it.
- If any part of the terms this Agreement is found by any Court or authority of competent jurisdiction to be illegal, invalid or unenforceable, then that provision shall, to the extent required, be severed and shall be ineffective but without affecting any other provision of this Agreement, which shall remain in full force and effect.
- Any valid alteration to or variation of this Agreement must be in writing and served to the Parties.
- The Contracts (Rights of Third Parties) Act is specifically excluded from this Agreement.
- Unless otherwise explicitly stated in writing, the Company’s normal office hours are weekdays (excluding public holidays) between the hours of 08:00 and 16.00. The Company does not guarantee to attend to mail, faxes and e‐mail correspondence received outside normal office hours (other than by prior arrangement).
- In the event that Company personnel are required to attend the premises of the Client, the Client shall take all reasonable precautions to ensure the safety of Company staff while on such premises.
- In the event that Company personnel are required to attend the premises of the Client, Company personnel shall abide by all site and safety instructions and regulations of the Client which are brought to their attention.
- Unless notified otherwise any written notices or enquiries under this Agreement should be sent by the Client to: Orange and Blue Creative Services Ltd, The Vicarage, Church Street, Shipton under Wychwood, OX7 6BP.
- Unless notified otherwise any written notices or enquiries under this Agreement should be sent by the Company to the service address that has been provided by the client.
- The Parties acknowledge and agree that this Agreement and any attached schedules [Proposals] supersede and constitute any prior agreement, understanding or arrangement between the Parties, whether made orally or in writing and constitute the entire agreement between the Company and the Client relating to these Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law.
Law and Jurisdiction
- The Company and the Client shall be obliged to attempt to settle any disputes arising between them including disputes relating to the existence or validity of this Agreement through negotiation provided always that either Party shall be entitled at all times to exercise any of its other remedies including through taking legal action.
- This Agreement shall be governed by and construed in accordance with English law and the Parties hereby agree to submit to the non-exclusive jurisdiction of the English courts.