Services Agreement Terms & Conditions

Parties

(1) iCandy Design Limited of 22a Marlborough Street, Andover, Hampshire, SP10 1DQ (the Agency)

(2) You (the Client)

Introduction

(A) These terms and conditions govern your relationship with iCandy Design.

(B) Please read the Terms and Conditions carefully as they affect your rights and liabilities under the law.

Agreed Terms

1. Interpretation

The following definitions and rules of interpretation apply in this Agreement.

1.1 Definitions

Assigned Materials; all of the Deliverables excluding any Deliverables or parts of them, which are Third-Party Materials in respect of which the Client has approved, under clause 10.5, the obtaining of a licence, as opposed to an assignment.
Business Day; a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Client's Property; any and all materials, documents, records, research, photography, logos, designs, software or other property (including all Intellectual Property rights therein) belonging to the Client, which are provided to the Agency by or on behalf of the Client and/or otherwise come into the possession, custody or control of the Agency in connection with the provision of the Services.
Commencement Date; The date which iCandy Design received the Clients instruction to supply services
Confidential Information; has the meaning given in 14.1.
Data Protection Law; (i) the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK, unless and until such time as the GDPR is no longer directly applicable in the UK; and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Deliverable(s); all copy, layouts, artwork, storyboards, scripts, the Websites and related content, software and source code, content, presentations, drawings, documents, charts, graphics, photographs, films and/or other materials created or produced by or on behalf of the Agency for the Client in the course of providing the Services, on any media (whether any media exist at the Commencement Date or are subsequently developed).
Expenses; Any expenses detailed in a Statement of Work or otherwise approved by the Client in writing.
Fees; the fees for the Services, as set out in a Statement of Work.
GDPR; General Data Protection Regulation ((EU) 2016/679).
Personnel; officers, employees, consultants, agents, representatives and advisers.
Services; the marketing services to be provided by the Agency to the Client as set out in each Statement of Work.
Statement of Work; a statement of work, proposal or quotation detailing the particulars of the Services and/or Deliverables to be supplied by the Agency to the Client, which will form a new contract between the parties governed by the terms of this Agreement.
Subcontractor; any third party engaged by the Agency to provide any part of the Services or any of the Deliverables.
Term; the term of this Agreement.
Third-Party Fees; fees payable by the Agency to third parties relating to the provision of the Services which are not included in the Fees and are not Expenses, as detailed in a Statement of Work.
Third-Party Materials; any work or materials authored, created or performed by a third party and either commissioned for, or used in relation to, the Services, including library images.
Trade Marks; the registered trade marks and trade mark applications, and all unregistered trade marks and logos, specified in a Statement of Work and/or notified by the Client to the Agency from time to time in writing.
VAT; value added tax chargeable under the Value Added Tax Act 1994.
Website; any website, developed and/or created by the Agency for the Client and which may be hosted by the Agency subject to the terms of a Statement of Work.

A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time.

2. Appointment of Agency

2.1 This Agreement is a framework agreement under which the Client may request the Agency to provide, and the Agency may provide to the Client, various creative, promotional and advertising services, as more fully detailed in the relevant Statement of Work.

2.2 This framework agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 21, until either party gives to the other party 90 days' written notice to terminate.

2.3 The Client may, from time to time, request the Agency to supply Services and/or Deliverables to it by completing a Statement of Work.  The parties will agree the content of the Statement of Work.  When the Statement of Work is signed by both parties, it shall form a new contract between the Client and the Agency, which shall be governed by the terms of this Agreement.

3. Performance of The Services

3.1 In consideration for the payment of the Fees by the Client, the Agency shall perform the Services for, and provide the Deliverables to, the Client.

3.2 Without limiting any other obligations of the Agency under this Agreement, the Agency shall, and shall procure that each of its Personnel shall perform the Services in a skilled and professional manner, in accordance with:

3.2.1 best industry practice, using all due skill, care and diligence;

3.2.2 the provisions of this Agreement and the relevant Statement of Work;

3.2.3 any brand guidelines and/or marketing policies notified to the Agency by the Client; and

3.2.4 reasonable written instructions of the Client from time to time.

3.3 The Agency shall ensure that, at all times while this Agreement is in force, it holds all permits, licences and authorisations necessary to supply the Services and to enable it to comply with its other obligations under this Agreement.

3.4 The Agency shall not do anything, nor permit anything to be done by its Personnel or Subcontractors which is detrimental to:

3.4.1 the Client's rights in or to the Client's Property, the Services or the Deliverables; or

3.4.2 the reputation, image, value or goodwill of the Client.

3.5 The Agency will allocate sufficient Personnel with suitable experience, seniority and qualifications to perform the Services.

3.6 The Agency shall procure that the key Agency Personnel (if applicable) are actively involved in the provision of the Services. If any member of key Agency Personnel is unable to perform the Services for any reason, the Agency shall promptly notify the Client and shall allocate an alternative individual with equivalent experience, seniority and qualifications.

3.7 The Agency shall co-operate with any third parties as the Client may from time to time nominate for the purposes of performing the Services and shall work with the Client's nominated suppliers efficiently and in good faith, at the expense of the Client.

3.8 Any additions to briefs provided will be carried out at the discretion of the Agency and where no charge is made by the Agency for such additions, the Agency accept no responsibility to ensure such additions are error free and reserve the right to charge an according amount for any correction to these or further additions.

3.9 Whilst the Agency recommends or provides hosting services, no guarantees can be made as to the availability or interruption of this service.

4. Acceptance of Deliverables

4.1 Once the Agency has completed design and development of the Deliverables in accordance with the relevant Statement of Work, the Agency shall submit the Deliverables to the Client, as specified in the applicable Statement of Work.

4.2 The Client shall confirm in writing if the Deliverables do not meet the requirements detailed in the relevant Statement of Work, within 10 Business Days of receiving the Deliverables, after which the Deliverables shall be deemed accepted.

4.3 The Agency shall remedy the failure(s) within 10 Business Days of being notified by the Client of the failure. At this point, the Deliverable shall be resubmitted to the Client for approval.

4.4 If the Deliverables fails the Acceptance tests and on investigation proves to be as a results of an error by the Client, the Agency shall be entitled to charge for the costs of investigation and of making the changes that are necessary and agreed at the Agency’s standard charges for works.

4.5 On completion of a website, the Agency shall offer 1 month’s free support to allow for any final training that may be required by the Client.

4.6 Where “bugs”, errors or other issues are found after a website has been made live, the Agency will endeavour (but is not obliged to) to correct these issues to meet the standards of function outlined in the brief.

5. Client Obligations

5.1 The Client shall co-operate with the Agency and shall provide to the Agency, at the Agency's request, such information concerning the Client's requirements in respect of the Services and/or Deliverables as is reasonably necessary to enable the Agency to perform the Services within the set timeframe.

5.2 Unless a specific time frame for the Client's response is specified, the Client shall respond reasonably promptly to any request by the Agency for information or approval. Where a specific time frame for a response is given by the Agency the Client shall respond within that timeframe.

5.3 Only written approval by a member of the Client's Personnel identified in the Statement of Work (or subsequently notified to the Client) as authorised to give approval shall be permitted to give written approval on behalf of the Client for the purposes of this Agreement.

5.4 Where applications or sites are developed on servers not recommended by the Agency, the Client is expected to provide or seek any information, additional software, support or co-operation pertaining to the server required in order for the application to be correctly developed. Where large applications are to be developed, it is the Clients responsibility to provide a suitable testing environment which is identical to the final production environment.

5.5 The Client is expected to test fully any application or programming relating to a website developed by the Agency before being made generally available for use.

5.6 The Client shall ensure that the Agency's possession and use of the Client's Property in the exercise of the Agency's obligations under this Agreement shall not infringe the Intellectual Property Rights or proprietary rights of any third party.

6. Meetings and Contact Reports

6.1 The Agency shall provide to the Client, on a quarterly basis, a written report setting out the progress of the Services and Deliverables against each Statement of Work. These reports shall provide the basis of the discussion at the meetings to be held under clause 6.2.

6.2 Regular meetings shall be held by the parties to discuss the reports produced pursuant to clause 6.1. Personnel of appropriate seniority shall attend such meetings. These meetings shall take place in person at the Agency’s offices or such other location agreed between the parties, unless the Client consents to the holding of a meeting by telephone.

6.3 The Agency shall inform the Client as soon as is practicable if it becomes aware that it has failed to comply with any of its material obligations under this Agreement or any Statement of Work.

7. Variations

7.1 If the Client requires any changes to be made to a Statement of Work, it shall notify the Agency providing details of the changes required in writing.

7.2 The Agency shall assess the Client’s request. Within 14 days of receiving the Client’s request for a change the Agency shall confirm in writing if the change request can be accommodated by it, together with details of any amendments which are necessary to the charges payable, timescales for delivery and other relevant matters in respect of the requested change.

7.3 Within 14 days of receiving the Agency’s written response to the requested change, the Client shall confirm if it wishes to proceed with the requested change. If the Client confirms it wishes to proceed with the requested change, the relevant Statement of Work shall be varied to reflect the revised terms as detailed in the Agency’s response to the requested change.

8. Fees and Expenses

8.1 In consideration for the provision of the Services in accordance with this Agreement, the Client shall pay the Fees to the Agency in accordance with this Agreement and the relevant Statement of Work.

8.2 A non-refundable deposit may be required on projects before any design work will be carried out.

8.3 The Fees are inclusive of all costs, unless otherwise stated, of:

8.3.1 production work to produce the Deliverables, including any artwork, design, photography, graphics, editing and printing;

8.3.2 all materials used by or on behalf of the Agency to produce the Deliverables and/or provide the Services; and

8.3.3 all overheads or administration costs of the Agency, including all costs of telephone calls, printing and stationery, delivery charges and postage costs, except to the extent that the parties agree in advance in any Statement of Work that those costs shall be chargeable by the Agency to the Client as Third-Party Fees or Expenses.

8.4 The Client shall reimburse the Agency for all Third-Party Fees which have been approved by the Client in advance in accordance with clause 8.7.

8.5 The Client shall reimburse the Agency for reasonable Expenses actually incurred by the Agency and agreed in any Statement of Work or otherwise approved in writing by the Client in advance of them being incurred.

8.6 The Agency may invoice the Client for the Fees at such times and/or in such instalments (as applicable) as are set out in the relevant Statement of Work (as applicable).

8.7 All Third-Party Fees and Expenses shall be charged to the Client by the Agency at cost. The Client agrees to allow the Agency to place a small credit on printed material, exhibition displays, advertisements.

8.8 During the Term, the Agency shall immediately advise the Client of any changes in the cost of any products, materials and/or services that the Agency obtains from any third party that will be charged to the Client as Third-Party Fees. If the Client is willing to pay these increased costs as a Third-Party Fee (though the Client shall be under no obligation to do so), the Client shall notify the Agency in writing.

8.9 Except as otherwise agreed between the parties, the Client shall pay all undisputed invoices submitted by the Agency within 30 days of receipt of that invoice by the Client, provided always that the invoice sets out the Agency's VAT invoice details.

8.10 All sums payable under this Agreement:

8.10.1 are exclusive of any VAT or any other sales tax or duties, which, where applicable, shall be payable by the Client to the Agency in addition; and

8.10.2 shall be paid in British pounds sterling to the credit of the Agency's bank account, details of which shall be notified to the Client as and when necessary.

8.11 If the Client fails to make any payment due to the Agency under the contract by the due date for payment, the Agency shall, without limiting its other rights or remedies, have the right to suspend performance of the services, access to any services or the related website(s) may by denied and web pages removed.

8.12 The Agency reserves the right to charge the Client interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts unpaid by the due date at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of payment.

8.13 The Agency reserves the right to charge and recover from the Client any and all costs incurred by the Agency in recovering overdue invoices.

9. Compliance of Campaign and Deliverables with the Law

9.1 The Agency shall ensure that all Deliverables (excluding the Client's Property):

9.1.1 comply with all applicable laws, including guidelines and codes issued by statutory, regulatory and industry bodies;

9.1.2 not infringe the Intellectual Property Rights or proprietary rights of any third party; and

9.1.3 not be defamatory, libellous, obscene or otherwise offensive.

9.2 The Agency reserves the right to refuse to handle in any way, Material which may be deemed offensive, illegal or in any way controversial.

9.3 The Agency shall not be liable for costs, expenses, damages or losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other reasonable professional costs and expenses) suffered or incurred by the Client arising out of or in connection with any third-party claims or any action, adjudication or decision taken against the Client Indemnified Parties by any regulatory body, in each case directly or indirectly arising (in whole or in part) out of any breach by the Agency of clause 9.1.

9.4 If either the Agency or the Client becomes aware that there is risk that any Deliverable is not in compliance with clause 1, each shall promptly notify the other.

9.5 The Agency will endeavour to ensure that any developed/designed website or application will function correctly on the server it is initially installed in and that it will function correctly when viewed with the web browsing software most frequently used at release. The Agency can offer no guarantees of correct function with all browser software.

9.6 The Agency cannot accept liability for losses caused by the unavailability, malfunction or interruption of the hosting services, or for loss or turnover, sales, revenue, profits or indirect, consequential or special loss.

10. Ownership of Intellectual Property Rights

10.1 It is the intention of the parties that:

10.1.1 the Agency Materials will remain vested in the Agency and by the Agency’s absolute property including but not limited to all source files;

10.1.2 in all Commissioned Materials will remain vested in the Third Party that created the material and shall be the Third Party’s absolute property unless such rights are assigned to the Agency in which case they shall be deemed the Agency’s Materials;

10.1.3 in all Existing Materials will remain vested in the Third Party that created the material and shall be the Third Party’s absolute property;

10.1.4 in any Material provided by the Client to the Agency in connection with the services will remain vested in the Client and be the Client’s absolute property; and

10.1.5 unless stated otherwise in these conditions or as otherwise agreed in writing between the parties, no right title or interest in any Material belonging to one party shall be transferred, assigned, acquired or otherwise granted to the other.

10.2 Any artwork, images, or text supplied and/or designed by the Agency on behalf of the Client, will remain property of the Agency and/or its suppliers and may only be commercially reproduced or resold with the permission of the Agency. This excludes Logo design in which full copyright will be passed to the Client upon receipt of full payment. For the avoidance of doubt, the assignment under this clause 10.2 shall take effect from the date on which the relevant Assigned Material was or is created, developed or produced.

10.3 The Agency warrants that it has obtained or shall obtain from all Subcontractors an unconditional assignment without restriction of the legal and beneficial ownership of all existing and future Intellectual Property Rights subsisting in or relating to any Assigned Materials created or developed by such Subcontractors, in all countries, and that the assignment under clause 10.2 includes the assignment of all of those Intellectual Property Rights.

10.4 The Agency shall not incorporate and/or use Third-Party Materials in any Deliverable unless the Agency has obtained the prior written consent of the Client to do so. The Agency shall give the Client reasonable prior notice of its intention to include any such Third-Party Materials and at the same time shall notify the Client in writing:

10.4.1 whether an assignment to the Client of the relevant Third-Party Materials can be obtained and the cost of obtaining it; and

10.4.2 if no assignment of the relevant Third-Party Materials can be obtained or cannot be obtained for a reasonable cost, the cost of obtaining a licence of such materials for the Client's commercial purposes and any such wider purposes as the Client may have notified to the Agency. The Agency shall not propose the inclusion of any Third-Party Materials in any Deliverable unless the Agency is able to negotiate a licence of such materials for the Client.

10.5 Following receipt of the Agency's notice under clause 10.4, the Client shall notify the Agency in writing of whether inclusion of the relevant Third-Party Material is approved, and whether the Agency is required to obtain an assignment (if available) or a licence, and if so, the extent of such licence required and the approved cost thereof. The Client may also require the Agency to negotiate prices at which the licence obtained may, at the Client's option, be extended.

10.6 The Agency shall, at any time on request, provide to the Client such information on the rights acquired in respect of each Third-Party Material (including Assigned Material and Third-Party Material in respect of which a licence has been obtained), in such format as the Client may reasonably request, and warrants that any usage rights information provided to the Client shall be accurate and complete.

10.7 The Client grants the Agency a non-exclusive, non-transferable, royalty-free licence to use such of the Client's Property as are necessary to enable the Agency to provide the Services during the Term.

10.8 Any scripts, applications or software (unless specifically agreed) written by the Agency shall remain the copyright of the Agency and may only be commercially reproduced or resold with the permission of the Agency.

11. Ownership and Custody

11.1 The Client's Property shall, at all times be and remain, as between the Client and the Agency, the exclusive property of the Client.

11.2 Title to all physical Deliverables prepared for the Client by the Agency shall pass to the Client on creation of the relevant Deliverable and on receipt of full payment. The Agency warrants that, at the date of the transfer of title, it will have full and unrestricted rights to transfer all such items to the Client. Risk in such Deliverables shall pass on their delivery to the Client. Any Deliverables owned by the Client but in the possession of the Agency shall be held by the Agency on trust for the Client.

12. Trade Mark Licence

12.1 The Client grants the Agency a non-exclusive, non-transferable, royalty-free licence for the Term to use, and permits its Subcontractors to use, the Trade Marks in the creation of the Deliverables and performance of the Services in the Territory in accordance with this Agreement.

12.2 The Agency shall only use the Trade Marks in accordance with the Client's guidelines. No Deliverables incorporating the Trade Marks shall be supplied to any person other than the Client.

12.3 The Agency acknowledges that it will not gain any right, title or interest in any Trade Marks or associated goodwill, which shall vest automatically in the Client and the Agency shall not make any use of them except in accordance with the terms of this Agreement.

13. Infringements

13.1 The Agency shall notify the Client promptly on becoming aware of:

13.1.1 any unauthorised use by any third party of any Intellectual Property Rights of the Client (including the Trade Marks and/or any Intellectual Property Rights in the Deliverables); or

13.1.2 any actual or threatened claim against the Client by any third party in connection with the Services or Deliverables (or the use of the latter by the Client or any of its licensees), in each case giving full details of that unauthorised use and/or claim.

13.2 The Agency shall not take responsibility for any copyright infringements caused by materials submitted by the Client and reserve the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material.

13.3 The Client shall have sole and complete control of any litigation or other proceedings arising out of any unauthorised use of its Intellectual Property Rights or any third-party claim against it in respect of the Services or the Deliverables. The Agency shall, and shall procure that its Subcontractors shall, provide the Client with all assistance as may be reasonably required by the Client to prosecute, defend or settle any such claim. The Agency shall not take any action which might be reasonably anticipated to compromise any such claim. The Agency shall not have any right to initiate any proceedings without the Client's written consent, but the Client shall have no right to settle such claim without the Agency’s express agreement.

14. Confidentiality

14.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's Representatives whether before or after the date of this Agreement in connection with provision of the Services and/or Deliverables, including but not limited to:

14.1.1 any information that would be regarded as confidential by a reasonable business person relating to:

14.1.1.1 the business, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and

14.1.1.2 the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and

14.1.2 any information developed by the parties in the course of carrying out this Agreement.

Representatives means, in relation to a party, its employees, officers, representatives and advisers.

14.2 The provisions of this clause shall not apply to any Confidential Information that:

14.2.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);

14.2.2 was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;

14.2.3 was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or

14.2.4 the parties agree in writing is not confidential or may be disclosed; or

14.3 Each party shall keep the other party's Confidential Information confidential and shall not:

14.3.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (Permitted Purpose); or

14.3.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.

14.4 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:

14.4.1 it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and

14.4.2 at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.

14.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.

14.6 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this Agreement are granted to the other party, or to be implied from this Agreement.

14.7 The provisions of this clause 14 shall continue to apply after termination of this Agreement.

15. Data Protection

15.1 Both parties will comply with all applicable requirements of Data Protection Law. This clause 15 is in addition to, and does not relieve, remove or replace, a party's obligations under Data Protection Law.

15.2 The parties acknowledge that for the purposes of Data Protection Law, where the Agency is processing personal data belonging to the Client, the Client is the Data Controller and the Agency is the Data Processor.

15.3 Without prejudice to the generality of clause 15.1, the Client will ensure that it has all necessary appropriate consents in place to enable lawful transfer of the Client Personal Data (as defined in the Data Protection Law) to the Agency for the Term and purposes of this Agreement.

15.4 Without prejudice to the generality of clause 15.1, the Agency shall, in relation to any Client Personal Data processed by it on behalf of the Client in connection with the performance by the Agency of its obligations under this agreement:

15.4.1 process that Client Personal Data only on the written instructions of the Client unless such instructions are contrary to Data Protection Laws applicable to the Agency;

15.4.2 ensure that it has in place 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, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

15.4.3 not otherwise modify, amend or alter the contents of the Client Personal Data or disclose or permit the disclosure of any of the Client Personal Data to any third party unless specifically authorised in writing by the Client;

15.4.4 provide reasonable evidence of the Agency's compliance with its obligations under this clause 15.1 to the Client on reasonable notice and request; and

15.4.5 not transfer any Client Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained.

15.5 Subject to clause, the Client consents to the Agency appointing Subcontractors as third-party processors of the Client Personal Data under the Contract. The Agency confirms that it has entered or (as the case may be) will be entering into with the third-party processors, a written agreement incorporating terms which are substantially similar to those set out in this clause 16.

15.6 The Agency shall notify the Client immediately if it receives a request from a data subject for access to any Client Personal Data. If the Agency receives any complaint, notice or communication that relates directly or indirectly to the processing of any Client Personal Data or to either party's compliance with the Data Protection Law, it shall immediately notify the Client and provide the Client with full co-operation and assistance at the Client’s expense in relation to that complaint, notice or communication.

15.7 At the Client's request, the Agency shall provide the Client with a copy of all Client Personal Data held by it in the format and on the media reasonably specified by the Client.

16. Anti-Bribery

16.1 Both parties shall:

16.1.1 comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);

16.1.2 not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if that activity, practice or conduct had been carried out in the UK; and

16.1.3 promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement.

16.2 Breach of this clause 16 shall be deemed a material breach under clause 21.1.1.

17. Representations and Warranties

17.1 Each party represents and warrants to the other that it has the authority and requisite corporate power to enter into this Agreement without obtaining the consent of any third party.

17.2 The Agency represents and warrants to the Client that:

17.2.1 there are no commitments, conflicts of interest or other circumstances that will prevent or inhibit the provision of the Services by the Agency;

17.2.2 the Agency has all the necessary resources (including Personnel) to perform its obligations as set out in this Agreement;

17.2.3 this Agreement does not conflict with, and does not and will not constitute a breach of, any other contract, agreement or undertaking to which the Agency is or may become a party, and the Agency will not during the Term enter into any contract, agreement or undertaking that conflicts with or constitutes a breach of the provisions and intentions of this Agreement; and

17.2.4 the Agency is not aware of any matter that will or may cause it to be unable to comply with any of its obligations under this Agreement in a proper and timely manner.

18. Limitation of Liability

18.1 Nothing in this Agreement shall limit or exclude the Agency's or the Client's liability for:

18.1.1 death or personal injury caused by its negligence, or the negligence of its Personnel or subcontractors (including, in the case of the Agency, its Subcontractors);

18.1.2 fraud or fraudulent misrepresentation; or

18.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

18.2 Subject to clause 18.1 the Agency shall not be liable to the Client whether in contract, tort (including negligence) for breach of statutory duty or otherwise arising or in connection with this agreement for any loss of profit, loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of or damage to goodwill; loss of use or corruption of software, data or information; or indirect or consequential loss.

18.3 Subject to clause 18.1 the Agency’s total liability to the Client whether in contract or in tort (including negligence), for breach of statutory duty or otherwise arising under or in connection with this agreement shall be limited to one hundred percent (100%) of the average quarterly charges (calculated by reference to the charges successive 12 month periods from the date this agreement) paid by the Client under the terms of this agreement.

18.4 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 terms of this agreement.

18.5 Whilst every endeavour will be made to ensure products, websites and any scripts or programs are free of errors and accurate, the Agency cannot accept responsibility for any losses incurred due to malfunction, the website or any part of it.

19. Insurance

19.1 During the Term and for a period of six years afterwards, both parties shall maintain in force, with a reputable insurance company:

19.1.1 employer's liability insurance in an amount not less than £5,000,000;

19.1.2 public liability insurance in an amount not less than £5,000,000; and

19.1.3 such other insurance as is required by any regulatory or statutory or regulatory body relevant to the regulation of the Services to be provided under this Agreement.

19.2 Both parties shall provide, on reasonable notice and request, suitable evidence of each of the above insurance policies.

20. Cancellation of Statement of Works

20.1 The Client may cancel an individual Statement of Work without cause, by giving the greater of either 90 days written notice or in accordance with the notice period specified in the individual Statement of Work to the Agency and specifying the Statement of Work to be cancelled, at any time and for any reason.

20.2 On cancellation of any individual Statement of Work under clause 20.1:

20.2.1 the Agency shall cease performing all Services in relation to that Statement of Work only;

20.2.2 the Agency shall be entitled to invoice the Client for any outstanding, properly incurred Fees, Third-Party Fees and Expenses in respect of that Statement of Work only, which shall be payable by the Client in accordance with the provisions of clause 8;

20.2.3 the Agency shall deliver to the Client (or any third party specified by the Client), promptly, in accordance with the Client's instructions, all Deliverables relating to the cancelled Statement of Work existing at the date of that cancellation, whether or not then complete.

20.3 Cancellation of any individual Statement of Work under this clause 20 shall not affect the continuation in force of this Agreement, including any other Statement of Work(s) entered into under this Agreement.

21. Termination

21.1 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:

21.1.1 the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

21.1.2 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

21.1.3 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

21.1.4 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 Contract has been placed in jeopardy.

22. Consequences of Termination

22.1 On expiry or termination of this Agreement:

22.1.1 the Agency shall immediately cease all further performance of the Services;

22.1.2 the Agency shall immediately cease all further use of the Trade Marks, the Deliverables, the Client's Property and any other Intellectual Property Rights of the Client;

22.1.3 the Agency shall be entitled to invoice the Client for all outstanding properly incurred Fees, Third-Party Fees and Expenses;

22.1.4 the Client shall pay to the Agency any sums payable by the Agency to any third party under any legally binding commitment relating to the provision of the Services that was entered into by the Agency, before the date of expiry or termination, with the Client's consent, to the extent that the Agency is unable to cancel or otherwise mitigate that commitment (except to the extent that those sums are already covered by any Fees, Third-Party Fees or Expenses paid or payable by the Client under this Agreement).

22.1.5 each party shall return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;

22.1.6 each party shall erase all the other party's Confidential Information from its computer systems (to the extent possible);

22.1.7 each party shall certify in writing to the other party that it has complied with the requirements of clause 1.5 and clause 22.1.6, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of clause 14 shall continue to apply to any such documents and materials retained by a recipient party

22.1.8 the Agency shall deliver to the Client (or any third party specified by the Client), promptly, in accordance with the Client's instructions, all Deliverables and all of the Client's Property, in its possession or control at the date of termination or expiry and shall certify in writing to the Client that it has done so;

22.1.9 both parties shall execute any documents which either party reasonably requests in order to formalise the end of the relationship between the Client and the Agency (including releases, disclaimers and assignments) and the Agency shall effect the assignment of all Intellectual Property Rights in the Deliverables to the Client pursuant to clause 10;

22.1.10 the Agency shall co-operate with, and provide all assistance to, the Client and any third party nominated by the Client, as the Client may request to enable an orderly and efficient transfer of the performance of the Services (or part of them) to the Client or a third party (as applicable) without interruption or adverse effect. The Client shall reimburse the Agency with the reasonable costs actually incurred by the Agency in providing that assistance.

22.2 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.

23. Force Majeure

23.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.

23.2 In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 90 days, the party not affected may terminate this Agreement by giving 14 days' written notice to the affected party.

24. Notices

24.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by 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).

24.2 Any notice shall be deemed to have been received:

24.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

24.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

24.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

25. General

25.1 Severance: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

25.2 Waiver: No failure or delay by a party 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.

25.3 Entire Agreement: 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.

25.4 Variation: No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

25.5 No Partnership or Agency: 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. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

25.6 Assignment: Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of the other party.

25.7 Further Assurance: Each party shall, and shall use, all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.

25.8 Announcements: No party shall make, or permit any person to make, any public announcement, communication or circular (announcement) concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed).

25.9 Third Party Rights: A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

26. Governing Law and Jurisdiction

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. Each party irrevocably agrees that 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).