Terms & Conditions

In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

Unless the context otherwise requires, each reference in these Terms and Conditions to:

“writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;

a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

“these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;

a Clause or paragraph is a reference to a Clause of these Terms and Conditions; and

a “Party” or the “Parties” refer to the parties to the Agreement.

The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.

Words imparting the singular number shall include the plural and vice versa.

References to any gender shall include the other gender.

References to persons shall include corporations.

With effect from the Commencement Date, the Service Provider shall, throughout the Term of the Agreement, provide the Services to the Client.

The Service Provider shall provide the Services with reasonable skill and care, commensurate with prevailing standards in the Marketing sector.

The Service Provider shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of Services provided in the Agreement.

The Service Provider shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Services.

The Service Provider shall keep the Client informed of all activities related to the Project by means of regular reports, supplied to the Client at regular intervals to be defined in the Agreement.

The Service Provider shall, [upon the signing of the Agreement] AND/OR [from time to time], prepare and submit to the Client a Programme which shall set out relevant dates and times for the Services including, but not limited to:

Start dates;

Access dates;

Milestone dates on which the Service Provider is to complete certain parts of the Services in order to enable the Client’s other contractors to proceed with their agreed services (or the relevant parts thereof);

The Service Provider shall use all reasonable endeavours to accommodate any reasonable changes in the Programme that may be requested by the Client, subject to the Client’s acceptance of any related reasonable changes to the Fees that may be due as a result of such changes.

[The Service Provider may, in relation to certain specified matters related to the Services, act on the Client’s behalf. Such matters shall not be set out in the Agreement but shall be agreed between the Parties as they arise from time to time.]

The Client shall use all reasonable endeavours to provide all pertinent information to the Service Provider that is necessary for the Service Provider’s provision of the Services. Such information shall include, but not necessarily be limited to, that pertaining to the priorities of the Project and the Project timetable.

The Client shall, within an agreed time of receiving a Programme from the Service Provider, inform the Service Provider in writing either of the Client’s acceptance or shall submit, with detailed reasons, its reasons for non-acceptance including proposed changes.

The Client may, from time to time, issue reasonable instructions to the Service Provider in relation to the Service Provider’s provision of the Services. Any such instructions should be compatible with the specification of the Services provided in the Agreement.

In the event that the Service Provider requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner.

If any consents, licences or other permissions are needed from any third parties such as landlords, planning authorities, local authorities or similar, it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).

If the nature of the Services requires that the Service Provider has access to the Client’s premises or any other location, access to which is lawfully controlled by the Client, the Client shall ensure that the Service Provider has access to the same at the times to be agreed between the Service Provider and the Client as required.

 Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of Clause 3 of the Agreement shall not be the responsibility or fault of the Service Provider.

The Client may, from time to time, appoint such other third-party consultants and contractors as required to perform other services necessary for the Project. [The Service Provider’s involvement in such appointments shall not be required except in the event that the services provided by such third parties are likely at any time to duplicate, overlap, or in any other manner interfere with the Services provided by the Service Provider.]

Any and all third-party consultants and contractors appointed to the Project shall be required to cooperate fully with the Service Provider and to promptly provide any and all such information reasonably required by the Service Provider to enable the Service Provider to provide the Services and comply with the Agreement.

The Service Provider shall be required to cooperate fully with any and all third-party consultants and contractors appointed to the Project and to promptly provide any and all such information reasonably required by any such consultants and contractors to enable them to provide the relevant agreed services to the Client in compliance with all relevant agreements.

The Service Provider may, from time to time, identify certain parts of the Project which require the services of a third-party specialist. In such cases, the Service Provider shall inform the Client of the need for such a specialist and it shall be the Service Providers responsibility to appoint and contract with the specialist.

The Client shall keep the Service Provider fully informed of any and all third-party consultants and contractors appointed to the Project and shall provide details of the same.

[In certain cases, the Service Provider may require third party consultants and contractors appointed by the Client to consider and comment upon certain work completed by the Service Provider, where such work relates to the services provided by those third-party consultants and contractors, in order that the Service Provider may make any reasonably necessary and appropriate adjustments and revisions to that work.]

[Certain Specified Contractors shall be instructed only via the Service Provider. The Client shall not instruct Specified Contractors directly without the express written consent of the Service Provider. The Service Provider shall not be responsible for any instructions issued in breach of this provision.]

The Client shall pay the Fees to the Service Provider in accordance with the provisions of the Agreement.

The Service Provider shall invoice the Client for Fees due in accordance with the provisions of the Agreement.

All payments required to be made pursuant to the Agreement by either Party shall be made upon receipt by that Party of the relevant invoice.

All payments required to be made pursuant to the Agreement by either Party shall be made in GBP in cleared funds to the bank details on the invoice as the receiving Party may from time to time nominate [, without any set-off, withholding or deduction except such amount (if any) of tax as that Party is required to deduct or withhold by law.]

Where any payment pursuant to the Agreement is required to be made on a day that is not a Business Day, it may be made on the next following Business Day.

Without prejudice to sub-Clause 10.4.1 of the Agreement, any sums which remain unpaid following the expiry of the period set out in sub-Clause 5.3 of the Agreement may incur interest on a daily basis above the base rate of details on the invoice from time to time until payment is made in full of any such outstanding sums.

Each Party shall:

keep, or procure that there are kept, such records and books of account as are necessary to enable the amount of any sums payable pursuant to the Agreement to be accurately calculated;

at the reasonable request of the other Party, allow that Party or its agent to inspect those records and books of account and, to the extent that they relate to the calculation of those sums, to take copies of them; and

The Service Provider shall ensure that it has in place at all times suitable and valid insurance that shall include public liability insurance.

In the event that the Service Provider fails to perform the Services with reasonable care and skill it shall carry out any and all necessary remedial action at no additional cost to the Client.

The Service Provider’s total liability for any loss or damage in respect of any individual occurrence or a series thereof arising out of any one event shall be limited either to the sum defined therein or to the net contribution calculated in accordance with sub-Clause 6.4 of the Agreement, whichever is the smaller sum.

The net contribution referred to in sub-Clause 6.3 shall be calculated on the basis of what is deemed just and equitable for the Service Provider to pay taking into account the Service Provider’s responsibility for the loss or damage in question and comparing that responsibility with that of all other third parties providing services for the Project for the same loss or damage. The net contribution shall be assessed on the following assumptions:

that such third parties have provided to the Client contractual undertakings which are no less onerous than those under the Agreement with the Service Provider with respect to liability for such loss or damage;

that there are no exclusions or limitations of liability nor joint insurance or co-insurance provisions between the Client and any such third party; and

that such third parties are deemed to have paid to the Client such sums as it would be just and equitable for them to pay having regard to the extent of their responsibility for the loss or damage in question.

The Service Provider shall not be liable for any loss or damage suffered by the Client that results from the Client’s failure to follow any instructions given by the Service Provider.

Nothing in the Agreement shall limit or exclude the Service Provider’s liability for death or personal injury.

The Client shall indemnify the Service Provider against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including that belonging to any third parties appointed by the Service Provider) caused by the Client or its agents or employees.

Neither Party shall be liable to the other or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.

The Service Provider shall guarantee that the product of all Services provided shall be free from any and all defects for a period that shall be defined in the Agreement.

If any defects in the product of the Services appear during the guarantee period set out in the Agreement the Service Provider shall rectify any and all such defects at no cost to the Client.

Except as provided by sub-Clause 8.2 of the Agreement or as authorised in writing by the other Party, each Party shall, at all times during the continuance of the Agreement and [for 6 years] after its termination:

keep confidential all Confidential Information;

not disclose any Confidential Information to any other party;

not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;

not make any copies of, record in any way or part with possession of any Confidential Information; and

ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 8.1.1 to 8.1.4 of the Agreement.

Either Party may:

disclose any Confidential Information to:

any sub-contractor or supplier of that Party;

any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;

use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.

The provisions of Clause 8 of the Agreement shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.

No Party to the Agreement will be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

In the event that a Party to the Agreement cannot perform their obligations thereunder as a result of force majeure for a continuous period of one month, the other Party may at its discretion terminate the Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all Services provided up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of the Agreement.

The Agreement shall come into force on the agreed commencement date and shall continue for an agreed Term from that date, subject to the provisions of Clause 10 of the Agreement.

Either Party shall have the right, exercisable by giving not less than one month written notice to the other at any time prior to the expiry of the term specified in sub-Clause 10.1 of the Agreement (or any further period for which the Agreement has been extended) to extend the Agreement for a further period.

Either Party may terminate the Agreement by giving to the other not less than one month written notice, to expire on or at any time after the minimum term of the Agreement (which shall be defined in the Agreement).

Either Party may immediately terminate the Agreement by giving written notice to the other Party if:

any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within seven Business Days of the due date for payment;

the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within seven Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;

an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;

the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);

the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);

anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;

that other Party ceases, or threatens to cease, to carry on business; or

control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement. For the purposes of Clause 10, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.

For the purposes of sub-Clause 10.4.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.

The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.

Upon the termination of the Agreement for any reason:

any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable;

all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect;

termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which exist at or before the date of termination;

subject as provided in Clause 11 of the Agreement and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and

each Party shall (except to the extent referred to in Clause 8 of the Agreement) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.

The Service Provider will only use the Client’s personal information as set out in the Service Provider’s CRM system available from SK Building, Birchall Street, Digbeth, Birmingham, B12 0RP.

In this Clause 13 and in the Agreement, “personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” shall have the meaning defined in Article 4 of the UK GDPR.

[All personal data to be processed by the Service Provider on behalf of the Client, subject to these Terms and Conditions and/or the Agreement, shall be processed in accordance with the terms of a Data Processing Agreement into which the Parties shall enter before any personal data is processed.]

Process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by law.

Ensure that it has in place suitable technical and organisational measures (as approved by the Data Controller) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures. Measures to be taken shall be agreed between the Data Controller and the Data Processor and set out in the Schedule to the Agreement.

Ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential; and

The Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;

Affected data subjects have enforceable rights and effective legal remedies;

The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and

The Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data.

Assist the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects and in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);

Notify the Data Controller without undue delay of a personal data breach;

On the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of the Agreement unless it is required to retain any of the personal data by law; and

Maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with [this Clause 13] AND/OR [the Agreement] and to allow for audits by the Data Controller and/or any party designated by the Data Controller.

[The Data Processor shall not sub-contract any of its obligations with respect to the processing of personal data under [this Clause 13] AND/OR [the Agreement].]

Enter into a written agreement with the sub-contractor, which shall impose upon the sub-contractor the same obligations as are imposed upon the Data Processor by this [Clause 13] AND/OR [the Agreement] and which shall permit both the Data Processor and the Data Controller to enforce those obligations; and

Ensure that the sub-contractor complies fully with its obligations under that agreement and the Data Protection Legislation.]

Either Party may, at any time, and on at least one month notice, alter the data protection provisions of the Agreement, replacing them with any applicable data processing clauses or similar terms that form part of an applicable certification scheme. Such terms shall apply when replaced by attachment to the Agreement.]

No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.

Subject to any provisions to the contrary each Party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.

Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.

[Subject to sub-Clause 18.2] The Agreement shall be personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.

[All times and dates referred to in the Agreement shall be of the essence of the Agreement.]

Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.

Neither Party shall, for the term of the Agreement and for a period of one month after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Agreement [without the express written consent of that Party].

No part of the Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.

All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.

when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or

when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or

on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or

on the tenth business day following mailing, if mailed by airmail, postage prepaid.

[Subject to the provisions of Clause 13, the] OR [The] Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.

The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.

In the event that one or more of the provisions of the Agreement and/or of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement and/or these Terms and Conditions. The remainder of the Agreement and/or these Terms and Conditions shall be valid and enforceable.

The Parties shall attempt to resolve any dispute arising out of or relating to the Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.

The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.