Qoob Limited Marketing Retainer Terms & Conditions

1. Definition and Interpretation

1.1. In these Terms and Conditions the following words will have the following meanings:
1.1.1. “Additional Services” means any further, additional or supplementary services that are agreed to be provided by the Company to the Client which are in addition to the Services set out in the Proposal.
1.1.2. “Business Day” means any day other than a Saturday or Sunday and or a recognised bank or public or religious holiday in the Jurisdiction.
1.1.3. “Client” means you and any person (including any employee, director, shareholder, agent and or consultant of the Client), or entity (including any successors in title) that enters into a Contract with the Company.
1.1.4. “Confidential Information” means any information whatsoever in whatever form or format including but not limited to information in visual, oral, written, recorded and or electronic form and or format and including any drafts, templates or samples belonging or relating to either Party, its business affairs, its commercial purpose, its costs, charges and or fees which is not in the public domain and if either Party has marked such as confidential or proprietary, or has been described as confidential (either orally or in writing), or due to its character, substance or nature, a reasonable person in a similar position to its recipient and under comparable circumstances would treat it as confidential and or of a commercial sensitive nature.
1.1.5. “Contract” means the agreement between the Company and the Client for the provision of Services as agreed and set out in the Proposal and which is governed and regulated under and in accordance with the Terms and Conditions.
1.1.6. “Company” means Qoob Limited, a company registered in England and Wales whose with a registered office address at Unit 5, Darwin House, Corby Gate Business Park, Corby, Northamptonshire, NN17 5JG and a company registration number of 13202578. The Company will also include any successors in title and any alterations to its registered office.
1.1.7. “Data Protection Legislation” means all applicable data protection and privacy legislation in force from time-to-time in the UK including the GDPR; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
1.1.8. “Force Majeure” and or “Event of Force Majeure” means any event affecting the performance by the Company of their obligations, requirements and or responsibilities under the Contract and these Terms and Conditions that is beyond the Company’s reasonable control including but not limited to, any strikes, lock-outs or other industrial action affecting a third party, any terrorist action or threat of terrorist action, civil commotion, riot, crowd disorder, invasion, war, threat of or preparation for war, fire, explosion, storm, flood, earthquake, epidemic, pandemic or other natural physical disaster, any legislation, regulation, rule or ruling of a government, court or any competent authority, or failure of a utility service including but not limited to electricity, power, gas, water or telephone or communication service including but not limited to the internet.
1.1.9. “Jurisdiction” means exclusively England and Wales.
1.1.10. “Parties” means both the Company and the Client and “Party” means either the Company or the Client as the context permits.
1.1.11. “Proposal” means the detail of the proposed Services (including but not limited to time-frames, payment, scope, designs and content) to be provided by the Company to the Client.
1.1.12. “Services” means the agreed Services to be provided by the Company to the Client as set out in the Proposal.
1.1.13. “Terms and Conditions” means these Terms and Conditions and any subsequent and or amended version thereof.
1.1.14. “VAT” means Value Added Tax as set out in the Value Added Tax Act 1994.
1.2. The headings used in these Terms and Conditions are for convenience only and they have no effect upon any interpretation of these Terms and Conditions.
1.3. Words importing the singular shall include the plural and vice versa.
1.4. Reference to any gender will include all genders.
1.5. References to the person or individual includes any firm, company or entity having legal personality and vice versa.
1.6. References to “writing” or “in writing” or “written” includes but is not limited to any communication affected by electronic transmission or similar means.
1.7. Any reference, either expressly or by implication, to any statute, law, act of the U.K. parliament, statutory instrument, enactment and or regulation, will also include any variation, amendment, modification or replacement thereof.

 

2. Status

2.1. The Company and the Client expressly agree and entirely understand that any and all Services and or Additional Services provided by the Company are subject to these Terms and Conditions.
2.2. The Parties further agree that the Company’s Terms and Conditions are the prevailing document and that they take absolute precedence over any terms and conditions of the Client irrespective if such state otherwise.
2.3. The Client warrants to the Company that they fully understand their respective and joint obligations and responsibilities as set out in these Terms and Conditions and furthermore the Client further warrants to the Client that they possess the full and complete authority to enter into the Contract and agree to these Terms and Conditions and to be bound by their meaning and operation.
2.4. The Client fully understands that by accepting the Contract they are entering into a formal and binding legal agreement and therefore they fully accept and understand each and every part of these Terms and Conditions and that they have been afforded each and every opportunity to clarify the meaning and interpretation, and their obligations and duties prior to their acceptance of the Contract.
2.5. The Client avers that they have sought and received and or elected not to seek or receive independent legal advice as to the meaning and interpretation of the Terms and Conditions and their respective and joint responsibilities, obligations and duties as set out herein prior to entering into the Contract and the acceptance of these Terms and Conditions.

 

3. The Contract

3.1. The Company, following its initial consultations and discussions with the Client will prepare a detailed Proposal which will include, but not be limited to, the Services to be provided by the Company to the Client and the payment for the Services payable by the Client to the Company.
3.2. The Proposal will be provided for the Client’s consideration and acceptance. The Parties expressly agree to engage collaboratively with each other in order to finalise the Proposal and the Parties agree to provide each other with any and all information, advice, data, assistance, access, materials and images as required in order to facilitate the preparation of the details of the Proposal and the Services to be provided by the Company to the Client.
3.3. The Proposal is based on the information provided by the Client to the Company and such the Company will not be liable to the Client whatsoever for any errors, omissions, discrepancies and or inaccuracies in respect of the information provided by the Client. The Proposal will detail the Services to be provided by the Company to the Client, the initial Term during which the Services will be provided and the applicable payment terms. Any items that are not explicitly detailed in the Proposal may, in the exclusive discretion of the Company, be Additional Services and may incur additional payment to the Company by the Client and any such additional payment will be agreed prior to such being incurred between the Parties.
3.4. The Proposal once accepted, signed and returned to the Company by the Client, for the avoidance of doubt the Parties entirely accept that the use of electronic signature and email transmission is sufficient service, will formalise the Contract between the Parties.
3.5. After the formation of the Contract the Company may appoint, at its exclusive discretion, a dedicated account manager and support team for their provision of the Services to the Client or alternatively the Client will be appointed a dedicated point of contact with the Company which the Client is to utilise as their primary point of contact when required to contact and or communicate with the Company. The Company’s account manager or Client’s point of contact will arrange consultation meetings with the Client on times and dates to be mutually agreed during the Term, which may be face-to-face or via video conference, in order to ensure that the Parties are fully aligned with the on-boarding process and that each Party is entirely cognisant and engaged with the details of the Services and the manner in which they will be provided during the Term.
3.6. In addition to the consultation meetings as set out in clause 3.5 the Company’s account manager will further arrange and diarise review meetings with the Client, on times and dates to be mutually agreed during the Term, which may be face-to-face or via video conference, in order that the Parties can review the Services provided, or to revise, vary and or modify the Services (on terms to be collaboratively agreed) and or to agree any Additional Services that the Client may require.
3.7. On or around three months prior to the expiry of the Term of the Contract the Company’s account manager or Client’s point of contact will arrange a meeting between the Parties, a which may be face-to-face or via video conference, to discuss the renewal of the Services on terms to be agreed between the Parties.
3.8. If, in the unlikely event, the Company are required to alter the Client’s account manager they will notify the Client of such change as expeditiously as possible in order to ensure the minimum disruption is caused to the Services. If, for any reason, during the Term the Client wishes to change its account manager then they are to directly contact a Director of the Company to arrange a meeting to collaboratively discuss a potential change to the account manager and following such discussion the Client agrees to accept the final decision of the Director of the Company.
3.9. The Client is expressly informed that unless they provide notice to terminate the Contract in accordance with clause 10 the Contract and the Services will automatically renew for the same duration as the original Contract and on the same terms as set out in the Contract.

 

4. The Services

4.1. The Company will use its reasonable endeavours to provide the Services to the highest of professional standards however should the Client have any questions in relation to the provision of the Services they are to raise such without delay to their account manager or Client’s point of contact and thereafter, if reasonably required, to a Director of the Company.
4.2. The Services provided by the Company to the Client are contained in the Client’s Proposal however from time-to-time either Party may wish to collaboratively discuss reasonable amendments, variations and or modifications to the Services and the payment for the Services payable by the Client to the Company. In the event that the Parties mutually agree to amend, vary and or modify the Services the Company will provide a revised Proposal to the Client which will become binding for the remainder of the original Term from the date of the revised Proposal. In the unlikely event that the Parties do not mutually agree on any amendments, variations and or modifications to the Services then the Client agrees and understands that the Contract and the provision of the Services will continue unaffected for the remainder of the Term.
4.3. During the provision of the Services by the Company to the Client the Company may produce drafts of designs for the Client to review, comment upon and accept. If the Client has any comments, feedback, additions and or revisions to the drafts of designs then such are to be communicated in writing to the Client’s account manager. Thereafter the Company will reproduce the drafts of designs for the Client’s further comments, feedback, additions and or revisions and this process will continue until such time as the Client is satisfied and or the Company elects, at their exclusive discretion, that the drafts of the designs are incapable of further comment, feedback, addition and or revision. In the event that any alterations to the process as set out in the clause are required then such will be notified to the Client by the Company prior to any production of the drafts of designs by the Company.
4.4. The Client is solely responsible for the production and sourcing of imagery for their website or social media accounts and the Client is also solely responsible for the production and delivery to the Company of all logos, designs and graphics required for the Company to provide the Services.
4.5. The Client is further responsible for the drafting, preparation and delivery of all updates, developments and event of the Client in the event that such are required by the Company for their provision of the Services. The Client is expressly aware that the Company is not responsible and or liable for any omissions, discrepancies and or inaccuracies in any information, documentation, data, graphics, designs, and or statements provided by the Client.
4.6. Any and all promotional and or marketing material produced by the Company does not form part of the Services and or Additional Services and furthermore any statements contained in any promotional and or marketing material are illustrative only and not specific to the Client and therefore incapable of reliance upon by the Client.

 

5. Additional Services

5.1. From time-to-time during the Term either Party may consider that the Client may benefit from Additional Services being provided to them by the Company and accordingly either Party will collaboratively discuss what Additional Services. If any, can be agreed to be provided and the remuneration payable to the Company by the Client for any Additional Services. In the event that the Parties collaboratively agree that the level of Additional Services, due to their scope and or duration, necessitates a requirement to revise the Contract then a revised contract will be negotiated and entered into between the Parties.

 

6. Responsibilities of the Client

6.1. The Client will at all times during the Term of the Contract conduct themselves professionally and respectfully in all discussions and communications with the Company.
6.2. The Client will provide any and all information, data, imagery, material, documentation and assistance as the Company may reasonably require in order that the Company can provide the Services to the Client and any delay and or failure by the Client to do so may result in the Company’s ability to provide the Services being delayed and or inhibited to which the Company will have no lability whatsoever to the Client.
6.3. The Client will, in addition to clause 3.3, ensure that any and all information, data, imagery, material and documentation does not contain any manifest errors and is virus and malware free and it has been securely backed-up and saved prior to such being provided to the Company.
6.4. The Client agrees to keep strictly confidential any log-in details and passwords for any websites or online accounts provided to the Client and for the avoidance of doubt the Company will have no liability whatsoever to the Client for any losses occasioned arising from any breach of this clause by the Client.
6.5. The Client will obtain and maintain any and all licences, rights, permissions and or consents for any imagery, material, information, data and documentation in any format whatsoever prior to the provision of such to the Company and the Client accepts to fully indemnify the Company from any and all claims, demands, losses, fines and or costs howsoever occasioned arising from any breach of the Client of this clause.
6.6. The Client will provide an irrevocable, royalty free licence in respect of the Client’s name, logo, website domain, email addresses, social media accounts, designs, imagery, content and any other intellectual property whatsoever belonging to the Client or obtained by the Client to the Company for the duration of the Term in order that the Company can provide the Services, and any Additional Services, to the Client.

 

7. Payment

7.1. The Client agrees to pay directly to the Company in full and as cleared funds by the due date the payments as set out in the Proposal and the Contract.
7.2. All payments to the Company are to include VAT at the prevailing rate.
7.3. In the event that Additional Services are agreed to be provided by the Company to the Client, as set out in clause 5 then the Client further agrees to pay to the Company for the provision of any Additional Services in full and as cleared funds by the due date as agreed between the Parties.
7.4. In certain circumstances the Company may elect, in their sole discretion, to charge their travel time to attend at the offices or meeting location of the Client but such costs will be charged only if the Company has prior informed the Client and agreed such rates of payment. Any travel time charged to the Client will be paid in full to the Company on the subsequent payment as set out in the Proposal and the Contract or on such other terms as the Parties may reasonably agree.
7.5. In the event of any late payment by the Client for whatever reason whatsoever the Company has the exclusive right to charge the Client interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and the Client agrees to pay all such accrued interest on the subsequent payment as set out in the Proposal and the Contract or on such other terms as the Parties may reasonably agree.
7.6. From time-to-time during the Term the Company, in order to provide the Services and or Additional Services efficiently and professionally, may incur costs associated with third party expenditure and fees and such will be notified, in advance where reasonably possible and practicable, to the Client however in any event the Client agrees to reimburse the Company in full, without offset, deduction and or reduction whatsoever, such costs upon request, and by no later than 5 (five) Business Days, from the Company.

 

8. Term

8.1. The Parties accept that the Term for the provision of the Services by the Company to the Client will commence on the date as set out and agreed in the Proposal and to operate in full force and effect for the entire duration of the Term unless terminated in accordance with clause 10 and or the Services and Additional Services are suspended in accordance with clause 9.
8.2. Either Party may elect to extend the Term at any point during the Term by written request to do so to the other Party and upon such mutual agreement the Term will be extended by such period as agreed between the Parties.
8.3. In the event that the Client elects to seek a cancellation of the Services during the Term then they accept and understand that the Company, in its exclusive discretion, may elect to seek payment of all fees and costs due to the Company as set out in the Contract for the remainder of the Term and such an amount will be payable in full without any offset, deduction and or reduction whatsoever by the Client upon demand and upon receipt of an invoice from the Company.

 

9. Suspension of Services

9.1. In the event of any late payment to the Company by the Client the Company is entitled to immediately suspend the Services and Additional Services until such time as all outstanding payments have been received in full by the Company, together with any interest charged in accordance with clause 7.5, and for the avoidance of doubt the Company will have no liability whatsoever to the Client for any losses occasioned to the Client arising from the Company suspending the Services and Additional Services.
9.2. In the event of any of other default of the Contract and or these Terms and Conditions the Company will engage with the Client in order to seek a collaborative resolution to such default prior to any suspension of the Services and Additional Services and or any termination as set out in clause 10.

 

10. Termination

10.1. The Parties have agreed for the Company to provide the Services for the Term as set out in the Proposal however the Company has the right, exercisable in their sole discretion, to immediately terminate the Contract, these Terms and Conditions and the provision of the Services and any Additional Services if;
10.1.1. The Client is in breach of any of the Terms and Conditions that remain unremedied to the Company’s satisfaction for a period of 5 (five) Business Days following written notice from the Company to the Client of the Client’s breach(es) of these Terms and Conditions; or
10.1.2. The Client enters liquidation, ceases trading or is insolvent as defined in the Companies Act 2006; or
10.1.3. The Client’s conduct, actions and or communication towards the Company is disrespectful, inflammatory, discriminatory and or derogatory in the reasonable opinion of the Company; or
10.1.4. The Client has sought, requested and or demanded that the Company undertake Additional Services which having been provided by the Company remain unpaid for any period beyond the due date for payment.
10.2. In the event that the Client wishes to terminate the Contract prior to expiry of the Term as set out in the Proposal then the Client is to notify the Company without delay informing them of their decision and the Company, has the absolute right, as set out in clause 8.3, to receive payment from the Client for the remainder of the Term regardless of whether any Services are provided or not.
10.3. In accordance with clause 3.7 if the Client elects to provide notice to the Company for the provision of the Services to cease at the expiry of the Term then, if accepted by the Company and such acceptance is not to be unreasonably withheld and or delayed, the Contract and these Terms and Conditions will automatically terminate on the expiry of the Term providing that all payments due to the Company have been paid in full by the Client.
10.4. Upon any termination of the Contract and these Terms and Conditions the Parties will collaboratively engage with each other in order to ensure any and all Confidential Information and or information belonging to a Party is returned without unreasonable delay and if required both Parties will confirm in writing that they have not retained any copies of such Confidential Information and or information.

 

11. Fair Usage

11.1 Where expressly stated within the Proposal as “Fair Usage Allowance”, the Company has, using its professional expertise and experience, estimated an average allowance of hours that they consider would constitute to be Fair Usage relating to the Client’s Services and this is detailed in the Proposal. The Company, at its sole discretion, expressly reserves the right to increase the number of hours, with 20 (twenty) Business Days prior written notice to the Client, should the monthly usage, in the Company’s opinion, regularly exceed the Fair Usage estimate detailed in the Proposal. The Company will maintain internal records of the time spent on providing the Services which they may elect to rely on to validate the Company’s requirement to increase the number of hours.
11.2. The Company will, at all times during the Term and the provision of the Services and or Additional Services, if any, provide its professional expertise to the Client in a timely and diligent manner however, from time-to-time, the Company understands and appreciates that the needs and requirements of the Client may change and accordingly the Client agrees to collaboratively engage with the Company in order to discuss any changes in their needs and requirements in order to modify and update the Services and or Additional Services. The Parties agree to act in good faith towards each other in such discussions in order to collaboratively agree any amendments to the Services and any revised payments payable by the Client to the Company.
11.3. The Company provides the Services based on delivering the Services according to the Proposal and the Contract rather than operating under payment for the Services on an hourly rate (unless the Proposal specifically states to the contrary and or if a “Fair Usage Allowance” has been detailed in the Proposal). However on a case-by-case and during the Term the Company reserves the option, exercisable in their sole discretion, to discuss with the Client whether the payment for the Services should be revised in order to reflect the complexity of the Services and or the time spent on delivering the Services and for the avoidance of any doubt there is no obligation on the Client to accept such revision on the payment of the Services.
11.4. The Client further accepts and understands that the Company is remunerated for their provision of the Services based on the Proposal and the Contract however the Company retains the right, exercisable at the Company’s exclusive discretion and based on their professional experience, to notify the Client that the Services and the payment due to the Company require amending, varying and or modifying in accordance with clause 4.2.

 

12. Data Protection

12.1. For the purposes of the Data Protection Legislation the Parties will procure any data subject and or personal data consents necessary for the effective processing by the Company of any relevant data provided relating to their provision of the Services and or any Additional Services, if any, provided to the Client during the Term.
12.2. During the Term the Parties agree to comply with all the Data Protection Legislation and in the event of any breach by a Party of this clause then the defaulting Party agrees to indemnify the other Party in respect of any reasonably incurred direct losses of the defaulting Party.

 

13. Confidentiality

13.1. The Parties accept and fully understand that they may, from time-to-time during the Term, become cognisant of certain Confidential Information which if disclosed to any third party or the general public could have a serious adverse impact on the reputation and or business activities of the other Party. Accordingly the Parties agree to strictly adhere to the terms of this Clause 13 and will not permit or cause to permit, whether directly or indirectly, any disclosure of any Confidential Information, save for which is required by law or by a Court of competent jurisdiction and or to comply with any regulatory or governmental body and or which is already in the public domain through no breach or breaches by any Party of this clause 13.
13.2. Each Party will also take all reasonable precautions to keep strictly confidential the Confidential Information belonging to the other Party and will not, without the prior written consent of any other Party, use, disclose, copy or modify such Confidential Information save for the Company’s responsibilities and obligations relating to the provision of the Services and or any Additional Services.
13.3. The provisions of this clause 13 shall continue with full force and effect notwithstanding any expiry of the Term and or termination of the Contract.
13.4. Any breach of this clause 13 by any Party and or their agents, contractors, affiliates, representatives and advisors may give rise to the exclusion of the applicability and of clause 15 and may give rise to immediate injunctive relief proceedings where the defaulting Party may be liable for all consequential losses, damages and legal costs resulting from such a breach and or breaches of this clause 13.

 

14. Good Faith

14.1. The Parties will, at all times, exercise all of their rights, and perform all of their obligations, under the Contract, in good faith and they will also co-operate fully in good faith with each other in order to resolve any issues, disagreements, breach(es), alleged breach(es) and or disputes that may arise whatsoever between them and or under and or in connection with and or in interpreting these Terms and Conditions with the intention and purpose of collaboratively achieving an agreed resolution of any such issue, disagreement, breach(es), alleged breach(es) and or dispute.

 

15. Dispute Resolution

15.1. The Parties accept and acknowledge that the Contract and for the avoidance of doubt these Terms and Conditions are intended to regulate and promote a collaborative relationship of trust and good faith between them.
15.2. The Parties further accept and warrant to each other that it is not in their commercial, reputational and or business interests to engage in any activity whatsoever to the detriment, whether actual or otherwise, of the other Party and this includes, but is not limited to the commencement of any litigious proceedings without first adhering to the express terms of this clause 15 and clause 14 and the overall spirit and contents of the Contract and these Terms and Conditions..
15.3. The Parties fully accept and understand that litigation can be expensive and damaging to their reputation and commercial interests and therefore in the event that any issues, disagreements, breach(es), alleged breach(es) and or disputes whatsoever arises between them in respect of the provision of the Services and or under and or in connection with and or in interpreting these Terms and Conditions (save for any breach of the Client of their payment obligations to the Company as set out in clause 7) then the Parties unconditionally consent to enter into direct good faith negotiations and discussions with each other with the desire and intention of resolving any such issues, disagreements, breach(es), alleged breach(es) and or disputes and prior to any recourse to litigation and or the Courts.
15.4. In the event that such good faith negotiations and discussions do not resolve an issues, disagreements, breach(es), alleged breach(es) and or disputes as set out above then the Parties agree unconditionally to refer such unresolved issues, disagreements, breach(es), alleged breach(es) and or disputes to Mediation in order to utilise the experience of a professional Mediator who may be able to assist the Parties in resolving their issues, disagreements, breach(es), alleged breach(es) and or disputes. Any such Mediation will be convened as soon as is practicable with the Parties mutually agreeing the Mediator and venue for the Mediation; however, if no such agreement can be reached after fourteen days the Parties further agree to refer any dispute or disagreement to “CEDR” (a Mediation provider) who will nominate in their absolute discretion the Mediator and venue for the Mediation. The costs of any Mediator, venue or Mediation provider will, without any deduction or offset whatsoever, be paid for equally by the Parties.
15.5. In the event that either Party refuse to engage in and or comply with this clause 15 or clause 14 and the spirit of these Terms and Conditions then the other Party may elect to commence legal proceedings and refer the Court to both Parties conduct on the question of the determination of payment of any and all legal costs, interest and disbursements.

 

16. Force Majeure and COVID-19

16.1. If the Company is totally or partially prevented or delayed in the performance of any of the Services by an Event of Force Majeure and the Company gives immediate notice in writing to the Client of such prevention giving the period for which it is estimated such prevention will continue and the Client, acting at all times in good faith and without delay, accepts such Event of Force Majeure then the Company shall be excused, without any liability whatsoever, from its performance, obligations and responsibilities so affected as from the date of such notice for so long as such cause of delay shall continue provided that such a period of time does not exceed 30 (thirty) Business Days and furthermore that the Company utilises their reasonable endeavours to ensure and procure that the minimal interruption as possible is caused to the Client and the provision of the Services and or Additional Services.

16.2. In the event that the Event of Force Majeure continues for more than 30 (thirty) consecutive Business Days then the Company will be permitted to immediately terminate the provision of the Services and or Additional Services without any liability to the Client whatsoever and howsoever incurred by the Client.

16.3. In addition to any Event of Force Majeure if the Company is delayed or likely to be delayed in providing the Services to the Client for any period or periods of time caused directly or indirectly by any of the effects of the COVID-19 virus (including but not limited to any government lockdown or geographical restrictions, positive COVID-19 tests or ‘track and trace’ notifications of its employees or agents and or from members of family and friends which lead to a period of self-isolation or positive COVID-19 tests) then the Company will be granted an extension of time for the same period of time that they are delayed or likely to be delayed in delivering the Services and or any Additional Services. The Company will use their reasonable endeavours to minimise any such delays or disruption however any and all delays, costs, losses and or liabilities incurred or arising as a result of the COVID-19 pandemic will not be accepted, borne or paid for (in full or in part) by the Company.

 

17. Severability

17.1. In the event that any provision, clause and or term of the Contract and or these Terms and Conditions are held to be invalid or unenforceable by any judicial or other competent authority all other provisions, clauses and or terms will remain in full force and effect and will not in any way be impaired. If any provision, clause and or term contained herein is held to be invalid or unenforceable but would be valid or enforceable if some part or parts were deleted then the provision, clause and or term will continue to apply with the minimum modification necessary to make it valid and enforceable.

 

18. Waiver

18.1. Each of the rights conveyed under the Contract and these Terms and Conditions may be exercised as often as is necessary and they are cumulative and not exclusive of any other rights that either Party may have under them, or by law or otherwise and no failure or delay by either Party in exercising any of its rights shall be deemed to be a waiver of that right and any waiver of a breach of any clause, term and or provision shall not be deemed to be a waiver of any subsequent breach of the same or any other clause, term and or provision.

 

19. Notices

19.1. Any and all notices or information served and or that are given under the Contract and or these Terms and Conditions will be in writing and in English and served on the registered or current addresses of each Party or at such other address as so notified from time-to-time and such notices will served by hand and or sent by first class, registered or recorded delivery and or by email. Any such notice or information will be deemed served in the case of hand delivery if delivered by 4pm, on the same day or, in the case of first class, registered or recorded delivery post or hand delivery after 4pm, on the next Business Day after posting and in the case of an email, if sent by 4pm on the day of sending or if after 4pm on the next Business Day after sending.

 

20. Third Parties

20.1. The Parties agree that a person or business that is not a party to the Contract and or these Terms and Conditions will not have any rights under or connection to them by virtue of the Contracts (Rights of Third Parties) Act 1999.

 

21. Assignment

21.1. The Contract and these Terms and Conditions are personal to the Client and therefore the Client may not assign, licence or charge and or attempt or purport to do so any of their rights, obligations and or duties hereunder and or delegate or otherwise in any way dispose of any of their rights, obligations and or duties hereunder, without the express prior written consent of the Company and for the avoidance of doubt this includes any holding company, affiliate or subsidiary as defined and or provided for under the Companies Act 2006.
21.2. The Company, at it’s exclusive discretion, may elect to at any time during the Term assign, transfer, licence, charge and or subcontract any and all of their responsibilities as set out in the Contract and or these Terms and Conditions without any requirement to seek prior approval and or to notify the Client and such exercising of this clause is, for the avoidance of doubt not a breach of the Terms and Conditions and or capable of the Client begin entitled to seek any losses, damages and or costs from the Company whatsoever.
21.3. In the event that the Company elects to assign, transfer, licence, charge and or subcontract any and all of their responsibilities as set out in the Contract and or these Terms and Conditions then the Company will be responsible for every act or omission of any subcontractor as if it were an act or omission of the Company’s.

 

22. No Employment Relationship

22.1. The Parties accept that nothing contained in the Contract and or these Terms and Conditions will create between them any employment, legal or joint venture relationship between them save for what is intended under the terms of the Contract and these Terms and Conditions.

 

23. Amendments and Variations

23.1. If, due to unforeseen circumstances and or matters beyond the Company’s reasonable control the Company is required to alter and or amend the Services and or Additional Services the Company will engage the Client in collaborative consultations in order to advise and update the Client on the necessary alterations and or amendments to the Services and or Additional Services.
23.2. The Company reserves the absolute right to amend, revise and or update these Terms and Conditions at any time and the Client agrees to accept such amended, revised and or updated Terms and Conditions without objection.

 

24. Intellectual Property

24.1. The Client avers that any all content or information provided to the Company for their provision of the Services and or Additional Services belongs to them and is their copyright and is entirely free from residual claims from third parties that could place a contingent liability on the Company and the Client provides to the Company an irrevocable, royalty free licence, for the duration of the Term, to utilise for the provision of the Services and oy Additional Services to their name, logo, designs, materials, imagery, content, intellectual property rights and any other documentation or information whatsoever. In the event that the Company incurs any damages, costs (Including legal and or professional costs) debt, judgment and or fine arising from the Client’s breach of this clause then the Client agrees to fully indemnify the Company in relation to such liabilities without any offset, deduction and or reduction whatsoever.
24.2. Any and all intellectual property rights, including but not limited to copyright, that is created during the provision of the Services and or Additional Services by the Company will vest entirely and in perpetuity in the Company. Furthermore any and all intellectual property rights, including but not limited to copyright, that is in existence prior to the Contract and or that is created during the Term in respect of any systems, trade secrets and or processes provided or shared with the Client by the Company will entirely vest in perpetuity in the Company.
24.3. The Company will provide a revocable (in the event of any breach of the Terms and Conditions by the Client) worldwide, non-exclusive, royalty-free license to use, process, publish, transmit, display and distribute the Services and any Additional Services provided that the Client acknowledge the Company as the owner of such intellectual property rights. This licence will only apply only to the final versions of the Services and or Additional Services and will not, for the avoidance of doubt, apply to any drafts, concepts, plans and or schematics. The licence provided to the Client by the Company is not capable of being sub-licenced by the Client without first obtaining the express prior written consent of the Company.
24.4. Any breach of this clause 24 by the Client and or their agents, contractors, affiliates, representatives and or advisors may give rise to the exclusion of the applicability and of clause 15 and may give rise to immediate injunctive relief proceedings where the Client may be liable for all consequential losses, damages and legal costs resulting from such a breach and or breaches of this clause 24.

 

25. Insurance and Liability

25.1. The Company confirms that they possess adequate professional indemnity insurance and public liability insurance appropriate to their industry and status and details of one or both are available for inspection on a written request from the Client to the Company.
25.2. Except in respect of death or personal injury directly caused by the Company’s negligence, they will not, in any way whatsoever, be liable to the Client for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims in connection with the provision of the Services and any Additional Services.
25.3. In the unlikely event of a breach by the Company of their duties and or obligations as set out in the Contract and or these Terms and Conditions, then the Client’s maximum and entire remedy will be limited to damages which, for the avoidance of doubt, will not exceed the total payment (excluding VAT) paid to the Company by the Client in the preceding 12 (twelve) months or from the commencement of the provision of the Services in the event that the Contract has not operated for 12 (twelve) months.
25.4. The Company will have no liability to the Client whatsoever for any delays, omissions, inaccuracies and or errors in the Services and or Additional Services occasioned, sustained, incurred and or consequential upon any omissions, discrepancies and or inaccuracies in any information, documentation, data, graphics, designs, and or statements provided by the Client.
25.5. From time-to-time during the Term the Company may offer their professional advice and recommendations to the Client, but the Company is not responsible and or liable for any actions and or consequences taken as a result of such advice or recommendations and nor can the Company guarantee the outcomes of any marketing campaign or any of the other Services and or Additional Services provided to the Client.
25.6. The Company will also not be responsible and or liable to the Client for any actions or consequences arising from any introductions or referrals to other companies made to the Client by the Company.

 

26. Working Hours and Out of Hours

26.1. The Company operates normal working hours from 9am to 5:30pm on Business Days, save for the Christmas and New Year period where the Company typically operates on reduced working hours. The Client will receive prior notification of any closures or reduced working hours from the Company. At the sole discretion of the Company they may operate additional working hours, but these will only be agreed in writing with the Client and in exceptional circumstances the Company may elect to charge the Client an additional payment based on the number of additional working hours required to be undertaken by the Company.
26.2. Outside of the Company’s normal working hours the Company does not expect its staff, employees, directors and or consultants to respond to any communications from the Client and additionally the Company does not expect, unless in exceptional circumstances, the Client to respond to communications from the Company outside of normal working hours.

 

27. Non-solicitation

27.1. Under no circumstances whatsoever is the Client to approach, solicit, entice and or attempt to directly or indirectly approach, solicit and or entice any of the Company’s employees, agents, directors, consultants, or independent contractors that the Client had direct and or indirect contact, communication and or dealings with in the preceding 12 (twelve) months and or a continuous period of 12 (twelve) months following any termination of the Contract.
27.2. Any breach of this clause 27 by the Client and or their agents, contractors, affiliates, representatives and advisors may give rise to the exclusion of the applicability and of clause 15 and may give rise to immediate injunctive relief proceedings where the Client may be liable for all consequential losses and legal costs resulting from such a breach and or breaches of this clause 27.
27.3. In addition to clause 27.2 and in the event of a breach of clause 27 by the Client the Company may elect to claim from the Client damages equivalent to the first full years gross salary of the Company’s employee, agent, director, consultant, or independent contractor that has been retained, engaged and or employed by the Client whether directly and or indirectly.

 

28. Jurisdiction

28.1. The Contract and these Terms and Conditions are governed and construed by the laws of England and Wales and the Parties agree to submit to the exclusive jurisdiction of the English Courts.