The terms of our agreement concerning the provision of marketing services to XXX (Client). In this letter, I refer to Marketing Purks Limited as “we” “our” or “us”.
Unless terminated early in accordance with clause 9, then we shall provide our services to you in accordance with the information set out in Schedule 1.
2.1 The services that we will provide you are set out in Schedule 2 (The Proposal). Nothing will prevent us from subcontracting any of the Services or our obligations under this agreement to a third party.
2.2 We shall use reasonable endeavours to provide our Services and unless prevented by ill health or accident, will devote the number of hours and/or days in each calendar month as set out in Schedule 2 to carrying out the Services.
2.3 We shall provide the Services and any Works, developed throughout with due care, skill and ability. For the purpose of this agreement, Works means all content, drawings, designs, transparencies, photos, graphics, logos, typographical arrangement or similar and all other materials in whatever form, prepared by the us in the provision of the Services.
2.4 We shall use reasonable endeavours to meet any performance dates or times specified in Schedule 2 but any such dates or times shall be estimates only and time for performance by us shall not be of the essence.
2.5 If we are unable to provide the Services due to illness or injury, we shall notify you as soon as reasonably practicable.
2.6 We may appoint a suitably qualified substitute to perform the Services on our behalf. You shall continue to pay us our fee as provided in clause 4.1 below and you shall be responsible for the remuneration of, and any expenses incurred by the substitute. The substitute will continue to be subject to all duties and obligations under this agreement for the duration of the appointment of the substitute.
2.7 We have no authority (and shall not hold ourselves out as having authority) to bind you, unless you have specifically permitted this in writing.
2.8 For the avoidance of doubt, we may be engaged, employed or concerned in any other business, trade, profession or other activity at the same time as providing the Services to you.
3.1 You shall:
3.1.1 co-operate with us in all matters relating to the Services;
3.1.2 provide, in a timely manner, any content, information and materials as we may require, and ensure that it is accurate and complete in all material respects; and
3.2 If our performance of our obligations under this agreement is prevented or delayed by any act or omission of you, your, its agents, subcontractors, consultants or employees, then we shall:
3.2.1 not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay;
3.2.2 be entitled to payment of our charges despite any such prevention or delay; and 3.2.3 be entitled to recover any additional costs, charges or losses we have sustained or incurred that arises directly or indirectly from such prevention or delay.
4.1 In consideration for the provision of the Services, you shall pay us the charges set out in Schedule 2.
4.2 Unless otherwise set out in Schedule 2, you shall pay each invoice due and submitted by us, within 7 (seven) days of receipt.
4.3 If you fail to make any payment due to us under the Agreement by the due date for payment, then, without limiting our remedies:
4.3.1 you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; 4.3.2 we may suspend all Services until payment has been made in full.
4.4 All amounts due from you to us 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).
4.5 We may increase the charges on an annual basis with effect from each anniversary of the date of this agreement providing such increase is no more than 10% of the previous year’s charges.
5.1 Each party undertakes that it shall not at any time during the agreement, and for a period of 2 (two) years after termination or expiry of the agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 5.2.
5.2 Each party may disclose the other party’s confidential information:
5.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. 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 clause 5.2; and
5.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
5.3 Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the agreement.
6.1 Both parties will comply with all applicable requirements of any relevant Data Protection Legislation.
6.2 In accordance with applicable Data Protection, the signatory of this agreement on behalf of the Client and its personnel involved in the execution of the agreement (the “Individuals of Client “) are informed that we will process their personal data as data controller, and that the failure to provide the personal data requested by us could result in the impossibility of executing or maintaining this agreement.
6.3 The purpose of processing of personal data of the Individuals of the Client is the execution, maintenance, development and control of the terms of this agreement, which constitutes the legal basis to process the personal data.
6.4 The personal data of the Individuals of the Client may be used by us for internal administrative purposes and marketing, both based on legitimate interest as well as with third parties for the fulfilment of legal obligations.
6.5 Upon the termination of this Agreement for any reason, the personal data of the Individuals of the Client will be retained until the end of the statutes of limitation of any liabilities that may arise from the contractual relationship as well as to comply with legal obligations.
6.6 If at any time during the term of this agreement, you provide us with personal data, and this is not considered as Individuals of the Client, but rather, requires processing by us as part of the Services, then in such a scenario for the purposes of Data Protection Legislation, you are the data controller and we are the data processor.
6.7 Where 6.6 applies:
6.7.1 you will ensure that you have all necessary consents and notices in place to enable lawful transfer of the personal data to us for the duration and purpose of this agreement; 6.7.2 we and/or our subcontractors will only process this personal data in accordance with your reasonable written instruction.
7.1 We shall retain ownership of all intellectual property rights subsisting in the Works, unless any of the Works contain Your Materials (defined below).
7.2 We grant you a non-exclusive, royalty free license to use the Works in the every day course of your business during the term of this agreement.
7.3 In the event that you provide us with any material, images, drawings, specifications, content or similar (Your Materials), you grant us a fully paid-up, worldwide, non-exclusive, royalty-free, transferable licence to use, copy and modify Your Materials for the term of the agreement for the purpose of providing the Services to you.
8.1 You shall indemnify us in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by you arising out of or in connection with:
8.1.1 your breach of this agreement; and
8.1.2 any claim made against us for actual or alleged infringement of a third party’s intellectual property rights arising out of the license granted by you above, to use Your Materials.
8.2 References to liability in this clause 8 include every kind of liability arising under or in connection with the agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3 Nothing in this agreement limits any liability which cannot legally be limited.
8.4 Subject to clause 8.3 (Liabilities which cannot legally be limited) our total liability to you shall not exceed the total amount of charges that you have paid to us during the previous 12 (twelve) months before the breach occurred.
8.5 Subject to clauses 8.1 and 8.3 (Liabilities which cannot legally be limited), this clause 8.5 sets out the types of loss that are wholly excluded:
8.5.1 loss of profits;
8.5.2 loss of sales or business;
8.5.3 loss of agreements or contracts;
8.5.4 loss of anticipated savings;
8.5.5 loss of use or corruption of software, data or information;
8.5.6 loss of or damage to goodwill; and
8.5.7 indirect or consequential loss.
8.6 We have given commitments as to compliance of the Services with relevant specifications in clause 2. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the agreement.
8.7 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 (twelve) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9.1 Notwithstanding any other provision in this agreement and without effecting any other right we may have, we may terminate this agreement at any time by providing you with 1 (one) months written notice.
9.2 Without affecting any other right or remedy available to us, we may terminate the agreement with immediate effect by giving written notice to you if you fail to pay any amount due under the agreement on the due date for payment.
9.3 Without affecting any other right or remedy available to it, either party to the agreement may terminate it with immediate effect by giving written notice to the other party if:
9.3.1 the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 (thirty) days after being notified in writing to do so;
9.3.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
9.3.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
9.3.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the agreement has been placed in jeopardy.
10.1 On termination of this agreement for whatever reason
10.1.1 you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt;
10.1.2 any property belonging to us in your possession or under your control, and any original or copy documents obtained by you in the course of providing the Services, shall be immediately returned to us; and
10.1.3 unless otherwise agreed in writing, your right to use the Works, excluding Your Materials will immediately end.
This agreement may only be varied by a document signed by both you and us.
The Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement and no person other than you and us shall have any rights under it.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
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