Growth Gorilla is a limited company incorporated and registered in England and Wales with company number 10800893 whose registered office is at 3rd Floor, 86-90 Paul Street, London EC2A 4NE (the Supplier). When the Supplier is engaged to provide services, this Agreement is made between the Supplier and the client named in the Statement of Work (the Client).
BACKGROUND
(A) The Supplier is in the business of providing Marketing Services.
1a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(B) The Client wishes to obtain and the Supplier wishes to provide the Marketing Services on the terms set out in this Agreement.
Agreed terms
1. Interpretation
1.1 The following definitions and rules of interpretation apply in this Agreement:
Agreement: this Master Services Agreement, its Schedules and any Statements of Work agreed between the parties.
Applicable Data Protection Laws: means:
1a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
1b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
Applicable Laws: all applicable laws, statutes, regulation [and codes] from time to time in force.
Background Intellectual Property: all records, reports, documents, papers, designs, graphics, typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, that were prepared by the Supplier prior to the provision of the Marketing Services to the Client, or that are developed by the Supplier outside of this Agreement.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.30 pm on any Business Day.
Campaign: any advertising campaign set up and managed by the Supplier for and on behalf of the Client in the provision of the Marketing Services.
Client's Equipment: any equipment, including systems or facilities, provided by the Client, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Marketing Services including any such items specified in a Statement of Work.
Client Materials: all documents, information, items and materials in any form, including any content on the Client Website and it’s source code, whether owned by the Client or a third party, which are provided by the Client to the Supplier in connection with the Marketing Services, including the items provided pursuant to 5.1(f) and as set out in a Statement of Work.
Client Personal Data: any personal data which the Supplier processes in connection with this Agreement, in the capacity of a processor on behalf of the Client.
Client’s Website: the Client’s website, inclusive of any landing pages, as set out in the relevant Statement of Work.
Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Deliverables: any adverts, ad copy, campaigns, emails, wireframes, landing page copy, conversion copy, or designs output of the Marketing Services to be provided by the Supplier to the Client as specified in a Statement of Work.
Designated Platform: any third party platform, including but not limited to search engines, social media platforms, display advertising platforms, email marketing or marketing automation platforms, on which the Supplier shall perform the Marketing Services.
EU GDPR: means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
Fees: the sums payable for the Services as set out in a Statement of Work.
Inappropriate Content: any material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Marketing Services: the services as set out each applicable Statement of Work.
Payment Date: the date on which payment for the Marketing Services under a Statement of Work will become due, specifically the date occurring monthly from the commencement of a Statement of Work.
Required Information: the information and materials which the Client must supply to the Supplier to enable the Supplier to carry out the Marketing Services as set out in a Statement of Work.
Statement of Work: a detailed plan, agreed in accordance with clause 3, describing the services to be provided by the Supplier, the timetable for their performance and the related matters listed in the template statement of work set out in Schedule 1.
Supplier's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier to the Client and used directly or indirectly in the supply of the Marketing Services, including any such items specified in a Statement of Work but excluding any such items which are the subject of a separate Agreement between the parties under which title passes to the Client.
Supplier Personal Data: any personal data that the Supplier processes in connection with this Agreement, in the capacity of a controller.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.4 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.5 A reference to writing or written includes fax and email.
2. Commencement and duration
2.1 This Agreement shall commence on the date when it has been signed by all the parties and shall continue, unless terminated earlier in accordance with 13 (Termination), until either party gives to the other party 90 days’ written notice to terminate. Such notice shall not be effective until the later of the first anniversary of the commencement of this Agreement or the completion, expiry or termination of all Statements of Work entered into before the date on which notice to terminate is served.
2.2 The parties shall not enter into any further Statements of Work after the date on which notice to terminate is served under 2.1.
2.3 The Supplier shall provide the Marketing Services from the date specified in the relevant Statement of Work.
3. Statements of Work
3.1 Each Statement of Work shall be agreed in the following manner:
(a) the Client shall ask the Supplier to provide the Marketing Services and provide the Supplier with as much information as the Supplier reasonably requests in order to prepare a draft Statement of Work for the Marketing Services requested;
(b) receipt of the information requested from the Client the Supplier shall, as soon as reasonably practicable either:
(i) inform the Client that it declines to provide the requested Marketing Services; or
(ii) provide the Client with a draft Statement of Work.
(c) if the Supplier provides the Client with a draft Statement of Work pursuant to 3.1(b)(ii), the Supplier and the Client shall discuss and agree that draft Statement of Work; and
(d) both parties shall sign the draft Statement of Work when it is agreed.
3.2 Once a Statement of Work has been agreed and signed in accordance with 3.1(d), no amendment shall be made to it except in accordance with 17 (Variation).
3.3 Each Statement of Work shall be part of this Agreement and shall not form a separate contract to it; however, any individual Statement of Work may be amended or terminated without affecting the continuing nature of the Agreement as a whole. Any rights of termination for an individual Statement of Work shall be set out in the Statement of Work.
4. Supplier's responsibilities
4.1 The Supplier shall use reasonable endeavours to provide the Marketing Services, and deliver the Deliverables to the Client, in accordance with a Statement of Work in all material respects.
4.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in a Statement of Work but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this Agreement.
4.3 The Supplier shall appoint a manager in respect of the Marketing Services to be performed under each Statement of Work, such person as identified in the Statement of Work. That person shall have authority to contractually bind the Supplier on all matters relating to the relevant Marketing Services. The Supplier may replace that person from time to time where reasonably necessary in the interests of the Supplier's business.
4.4 If, in the reasonable opinion of the Supplier, it becomes apparent that the initial instructions from the Client were materially incomplete or inaccurate, the Supplier may review the scope of the Marketing Services under the relevant Statement of Work and propose changes to the Client (including the Fees). The Statement of Work shall be replaced by an amended Statement of Work, provided that both parties agree to such variation in accordance with clause 17.
4.5 If, in the reasonable opinion of the Supplier, the Client’s Website or materials contain Inappropriate Content, the Supplier reserves the right to suspend performance of the Marketing Services. The Supplier and the Client shall cooperate in a timely manner to find a solution and/or remove the Inappropriate Content.
5. Client's obligations
5.1 The Client shall:
(a) co-operate with the Supplier in all matters relating to the Marketing Services;
(b) not engage any third party company other than the Supplier to perform the Marketing Services or any similar or equivalent Marketing Services during the term of this Agreement;
(c) not operate its own internal resources to perform the Marketing Services or any similar or equivalent Marketing Services during the term of this Agreement;
(d) appoint a manager in respect of the Marketing Services to be performed under each Statement of Work, such person as identified in the Statement of Work. That person shall have authority to contractually bind the Client on all matters relating to the relevant Marketing Services;
(e) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client's premises, office accommodation, data and other facilities as reasonably required by the Supplier including any such access as is specified in a Statement of Work;
(f) provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Client or a third party) required under a Statement of Work or otherwise reasonably required by the Supplier in connection with the Marketing Services and ensure that they are accurate and complete in all material respects;
(g) inform the Supplier of all health and safety and security requirements that apply at the Client's premises;
(h) ensure that all the Client's Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements;
(i) inform the Supplier of any material changes to be made to the Client’s Website whilst the Supplier is performing the Marketing Services and the Client acknowledges that the Supplier shall not be responsible for changes made to the Client’s Website by third parties that may adversely affect the performance of the Client’s Website;
(j) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Marketing Services, including in relation to the installation of the Supplier's Equipment, the use of all Client Materials and the use of the Client's Equipment, in all cases before the date on which the Marketing Services are to start;
(k) keep, maintain the Supplier's Equipment in accordance with the Supplier's instructions from time to time and not dispose of or use the Supplier's Equipment other than in accordance with the Supplier's written instructions or authorisation; and
(l) comply with any additional responsibilities of the Client as set out in the relevant Statement of Work.
5.2 If the Supplier's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
6. Representations, warranties and indemnities
6.1 The Client warrants and represents to the Supplier at all times that, to the best of its knowledge, any material included in the Client’s Website that it provides to the Supplier does not contain Inappropriate Content and does not infringe any Applicable Laws, regulations or third party rights.
6.2 The Client agrees to indemnify the Supplier against any and all direct and reasonable damages, losses, costs, claims and expenses arising out of, or related to, any third party action or claim that material in the Client’s Website or any Deliverables which are authorised by the Client include Inappropriate Content.
7. Non-solicitation and employment
7.1 The Client shall not, without the prior written consent of the Supplier, at any time from the date on which any Marketing Services commence to the expiry of 12 months after the completion of such Marketing Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of such Marketing Services.
7.2 Any consent given by the Supplier in accordance with 7.1 shall be subject to the Client paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier's employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.
8. Charges and payment
8.1 In consideration of the provision of the Marketing Services by the Supplier, the Client shall pay the Fees.
8.2 The Client shall pay to the Supplier the Fees defined under a Statement of Work by way of direct debit or as otherwise described in the Statement of Work. The Client shall pay the Fees on the Payment Date of each calendar month following the commencement of a Statement of Work until completion, expiry or termination of the Statement of Work in accordance with this Agreement.
8.3 The Supplier shall determine the Payment Date when the first Statement of Work is entered into and direct debit payments under any subsequent Statement of Works shall align with this date where possible.
8.4 Where applicable, the Supplier shall provide instructions to the Client regarding the direct debit facility and the Client shall sign up to the direct debit facility without delay.
8.5 The Supplier may increase the Fees on an annual basis with effect from each anniversary of the date of this Agreement in line with the percentage increase in the Retail Prices in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the date of this Agreement and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
8.6 Any increase in the Fees shall affect:
(a) the Fees in Statements of Work in force at the date the increase takes effect; and
(b) the calculation of the Fees for Statements of Work entered into after the date the increase takes effect.
8.7 Without prejudice to any other right or remedy that it may have, if the Client fails to make payment on or before the Payment Date of any calendar month during the provision of the Marketing Services, the Supplier reserves the right to charge the Client interest at 8% per annum above the Bank of England base rate (at the time of invoicing) on overdue payments. The Supplier also reserves the right to charge the Client for any and all costs incurred by the Supplier recovering overdue payments. The Client shall not, under any circumstances, be entitled to withhold payment. For the avoidance of doubt, the Supplier shall not be obliged to continue the Marketing Services until all outstanding payments are received.
8.8 All Fees payable to the Supplier under this Agreement:
(a) are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums, if applicable, on delivery of a VAT invoice; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. Intellectual property rights (IPR)
9.1 In relation to Background Intellectual Property, the Supplier:
(a) and its licensors shall retain ownership of all IPRs in the Background Intellectual Property; and
(b) grants to the Client a non-exclusive, worldwide, royalty free, non-transferable licence to use the Background Intellectual Property for the sole purpose of the Marketing Services being provided to the Client.
9.2 In relation to the Deliverables, upon full receipt by the Supplier of the Fees due, the IPRs in the Deliverables with the exception of any Background Intellectual Property, shall be deemed assigned to the Client and the Supplier shall be deemed to have waived all moral rights in the Deliverables.
9.3 In relation to the Client Materials, the Client:
(a) and its licensors shall retain ownership of all IPRs in the Client Materials; and
(b) grants to the Supplier a non-exclusive, worldwide, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this Agreement for the purpose of providing the Marketing Services to the Client.
9.4 The Supplier:
(a) warrants that the receipt and use of the Marketing Services and the Deliverables by the Client shall not infringe the rights, including any Intellectual Property Rights, of any third party;
(b) shall, subject to clause 12.5, indemnify the Client against all direct liabilities, costs, expenses, damages and losses (and all other reasonable professional costs and expenses) suffered or incurred or paid by the Client arising out of or in connection with any claim brought against the Client for actual infringement of a third parties Intellectual Property Rights arising out of, or in connection with, the receipt or use of the Marketing Services and Deliverables.
(c) shall not be in breach of the warranty at 9.4(a), and the Client shall have no claim under the indemnity at 9.4(b) to the extent the infringement arises from:
(i) the use of Client Materials in the development of, or the inclusion of the Client Materials in, the Marketing Services or any Deliverable;
(ii) any modification of the Marketing Services or any Deliverable, other than by or as authorised by the Supplier; and
(iii) compliance with the Client's specifications or instructions.
9.5 The Client:
(a) warrants that the receipt and use in the performance of this Agreement by the Supplier, its agents, subcontractors or consultants of the Client Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(b) shall indemnify the Supplier against all direct liabilities, costs, expenses, damages and losses (and all other reasonable professional costs and expenses) suffered or incurred or paid by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights, arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Client Materials.
9.6 If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this 9, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on an indemnity (IPRs Claim);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and
(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
10. Data protection
10.1 For the purposes of this 10, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
10.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
10.3 The parties acknowledge that for the purposes of the Data Protection Laws, the Client is the Controller and the Supplier is the Processor.
10.4 Without prejudice to the generality of 10.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to the Supplier for the duration and purposes of this Agreement.
10.5 Without prejudice to the generality of 10.2, the Supplier shall, in relation to Client Personal Data:
(a) process that Client Personal Data only on the documented instructions of the Client, unless the Supplier is required by Applicable Laws to otherwise process that Client Personal Data (Purpose). Where the Supplier is relying on Applicable Laws as the basis for processing Client Processor Data, the Supplier shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Client on important grounds of public interest. The Supplier shall inform the Client if, in the opinion of the Supplier, the instructions of the Client infringe Applicable Data Protection Laws;
(b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data;
(c) ensure that any personnel engaged and authorised by the Supplier to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Client's cost and written request, in responding to any request from a data subject and in ensuring the Client's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
(f) at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the Agreement unless the Supplier is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this 10.5(f) Client Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
(g) maintain records to demonstrate its compliance with this 10.
10.6 The Client provides its prior, general authorisation for the Supplier to:
(a) appoint processors to process the Client Personal Data, provided that the Supplier:
(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this 10;
(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
(iii) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Supplier's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.
(b) transfer Client Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
10.7 Either party may, at any time on not less than 30 days' notice, revise this 10 by replacing it with any applicable controller to processor standard clauses or similar terms.
10.8 The Supplier's liability for losses arising from breaches of this 10 is as set out in 12.
11. Confidentiality
11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by 11.2(a).
11.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this 11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
11.4 The Client consents to the Supplier using the Client’s name, trademarks and a description of the Marketing Services provided under this Agreement in any marketing materials or proposals which the Supplier may wish to publish and distribute.
12. Limitation of liability
12.1 References to liability in this 12 (Limitation of liability) include every kind of liability arising under or in connection with this Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.2 Nothing in this 12 shall limit the Client's payment obligations under this Agreement.
12.3 Nothing in this Agreement shall limit or reduce the Client's liability for any indemnity or confidentiality obligations under this Agreement.
12.4 Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; and
breach of terms implied by section 2 of the Supply of Goods and Services Act 1982.
12.5 Subject to clauses 12.2, 12.3 and 12.4, the total liability of the Supplier shall not exceed the total Fees payable by the Client under this Agreement in the preceding 12 months from the incident giving rise to the claim in question.
12.6 Subject to clause 12.4, the Supplier shall not be liable for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of Agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill;
(g) indirect or consequential loss; and
(h) any losses which are attributable to the Client failing to provide the Supplier with any materials, information, or access to the Client’s Website as required for the performance of the Marketing Services or where any of the materials or information provided are incomplete, inaccurate, incorrect or are reasonably regarded as Inappropriate Content.
12.7 The Supplier is not liable for, and shall not monitor, the content on the Client’s Website. In the performance of the Marketing Services the Supplier may suggest edits to the Client’s Website but the Client understands and accepts that the Supplier does not perform website design services and the Client shall be responsible for the content on the Client’s Website.
12.8 Any Designated Platforms are outside of the Supplier’s control. The Supplier cannot:
(a) provide any guarantee of success when using such Designated Platforms in the provision of the Marketing Services;
(b) provide any guarantee that the Designated Platforms will not change their policies or functionality in such a way that will have a detrimental effect on the Marketing Services and/or any Campaign.
12.9 The Supplier shall not be liable for any detrimental effect on the Marketing Services and/or any Campaign which results from any acts or omissions of the Client, Designated Platform or any third party whatsoever.
12.10 The Supplier does not make or give any guarantees as to the performance levels of the Client’s Website or for any specific advert or Campaign on any Designated Platform(s). The online market is unpredictable and the performance of any advert or Campaign is dependent upon the performance of the systems supplied by that Designated Platform.
13. Termination
13.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in 13.1(c) to 13.1(j) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
13.2 Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or
(b) there is a change of Control of the Client.
14. Obligations on termination and survival
14.1 Obligations on termination or expiry
On termination or expiry of this Agreement:
(a) the Client shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of any Marketing Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) the Client shall, within a reasonable time, return all of the Supplier's Equipment. If the Client fails to do so, then the Supplier may enter the Client's premises and take possession of the Supplier's Equipment. Until the Supplier's Equipment has been returned or repossessed, the Client shall be solely responsible for its safe keeping; and
(c) the Supplier shall on request return any of the Client Materials not used up in the provision of the Marketing Services.
14.2 Survival
(a) Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
(b) Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
15. Force majeure
15.1 Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation, power failure, internet service provider failure, interruption or failure or a utility service, strikes, lock-outs or other industrial action by third parties, riots or other civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism, acts of war, pandemic or epidemic or other natural disaster.
15.2 If any Force Majeure Event occurs that is likely to adversely affect a party’s performance of any of its obligations under this Agreement:
(a) The affected party will inform the other party as soon as is reasonably possible;
(b) The obligations under this Agreement, except in relation to payment of Fees, will be suspended and any time limits which may be applicable will be extended accordingly; and
(c) If the Force Majeure Event prevents, hinders or delays the affected party’s performance of its obligations for a continuous period of more than 3 months, then the other party may terminate this Agreement by giving not less than 14 days written notice to the affected party.
16. Assignment and other dealings
16.1 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
16.2 The Supplier may at any time, providing written notice is given to the Client, assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
16.3 The Supplier may subcontract any part of the Marketing Services.
16.4 The Supplier may make recommendations to the Client with regard to third parties whom the Client may wish to engage directly to provide additional services which fall outside the scope of the Marketing Services. Any such recommendations are made by the Supplier as a gesture of good will only and the Supplier shall not be liable for any aspect of service performance by any third party engaged by the Client following a recommendation.
17. Variation
17.1 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18. Waiver
18.1 No failure or delay by the Company to exercise any right or remedy provided under this 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
19.1 The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20. Severance
20.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
20.2 If any provision or part-provision of this Agreement is deemed deleted under 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Entire Agreement
21.1 This 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.
21,2Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
22. Conflict
22.1 If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.
23. No partnership or agency
23.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
23.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
24. Third party rights
24.1 This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
25. Notices
25.1 Any notice given to a Party under or in connection with this Agreement shall be in writing and shall be delivered by hand or pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or by email.
25.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, on the second Business Day after posting; or
(c) if sent by fax or email, at the time of transmission or, if this time falls outside of business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.30pm Monday to Friday on a day that is not a public bank holiday in the place of receipt.
25.3 This clause does not apply to the service of any proceedings or other documents in legal action or, where applicable, any arbitration or other method of dispute resolution.
26. Counterparts
26.1 This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
27. Governing law
27.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
28. Jurisdiction
28.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
This Agreement has been entered into on the date stated at the beginning of it. The person signing this Agreement for and on behalf of the Client confirms that they have read and understood the terms and conditions set out in this Agreement and that they are duly authorised to sign this Agreement.
