3. Unless otherwise agreed in writing, we shall issue invoices at monthly intervals and on termination or completion of the Services. Unless otherwise expressly stated in a Proposal, you shall pay our invoices in full fourteen (14) days after the invoice date. Any amount expressed as payable to us is, unless stated otherwise, exclusive of VAT. We shall also be entitled to charge separately for previously agreed reasonable out-of-pocket expenses, such as travel expenses incurred in providing such Services.
4. Time for payment is of the essence. In the event of late payment, reserving all other rights and remedies as may be provided by law, we may (a) impose late charges on overdue payments at a rate equal to two percent (2%) per annum above the official dealing rate of the Bank of England, calculated from the date payment was due until the date payment is made and all reasonable expenses incurred in collection, including legal fees; and/or (b) withhold or delay performance of the Services until payment is made.
5 .In the event that we receive reasonable instructions from you or on your behalf to perform Services additional to those stated in our Proposal and/or such additional Services, such additional Services shall be charged at our then current hourly rate or such other sum as is agreed between us and is reasonable in the circumstances, and you shall make such additional payment to us for the additional services performed and/or the additional resources employed. Cancellation of paid consultation sessions with less than 24 hours notice will be chargeable at 100%. Social media management termination of contract are to be advised before the 14th of the prior month else the following month will be chargeable as per the proposal.
6. Our total liability (other than for personal injury or death resulting from negligence or for fraudulent misrepresentation) under or in connection with the Proposal and the Services howsoever arising whether in contract, tort (including negligence), breach of statutory duty or otherwise shall not exceed in aggregate the total fee due under the Proposal (the “Limit of Liability”). You agree to indemnify and hold us harmless in respect of any claim, judgment or award against any person (including us) to the extent that enforcement thereof will, or may, result in the aggregate amount paid by us exceeding the Limit of Liability.
7. To the fullest extent permitted by applicable law, we shall not be liable to you in tort (including negligence), breach of contract, breach of statutory duty or otherwise due to, under and/or arising out of or in connection with the Proposal if and to the extent that the loss or damage in respect of which such liability arises or is claimed to arise falls within any of the following categories: loss of profits; loss of revenue or business; loss of goodwill or reputation, loss of or corruption or damage to data; loss of management time; or other commercial damages or losses, whether or not you had been advised of the possibility of such loss, corruption or damage.
8. We shall both treat the details of the Proposal and any written or oral information about the Services (including any know-how, techniques or processes used in the course of carrying out the Services) as private and confidential and neither of us shall publish or disclose any details thereof to any third party unless prior written consent has been given by the other. This duty of confidentiality shall not apply to information which the receiving party can show by reasonable documentary proof (a) to have been in the public domain at the time of receipt by the receiving party; or (b) to have been lawfully known by the receiving party prior to its receipt; or (c) to have been disclosed to the receiving party without restriction by a third party; or (d) to have become known to the public through no fault of the receiving party after receipt thereof; or (e) is required to be disclosed pursuant to applicable laws or a legally binding order of any competent judicial, governmental or regulatory body. Before disclosure pursuant to clause 8(e), the disclosing party will (to the extent permitted by law) inform the receiving party of the circumstances and the details of the information to be disclosed at the earliest possible opportunity. Upon written request of we shall return or destroy all such documents or other tangible objects containing or representing your confidential information. Notwithstanding the foregoing, we may retain one (1) copy of your confidential information for archival and compliance purposes only, or as otherwise required by law.
9. You will own all reports and other deliverables prepared for and furnished to you by us in connection with the Services, including ideas, concepts, materials, documents, client-branded material, logos, trademarks and/or service marks that are solely or jointly conceived, made or reduced to practice by us in the course of the provision of the Services (the “Deliverables”), save that we retain all know-how, tools, software, algorithms, industry perspectives developed or enhanced outside of or in connection with the Services (“Our Tools”), it being understood that none of Our Tools will contain your confidential information. To the extent the Deliverables include any of Our Tools, subject to full payment for the Services in accordance with the Proposal, we hereby grant to you a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to use and copy Our Tools solely as part of the Deliverables. We shall disclose all Deliverables promptly in writing to you. For the avoidance of doubt, Deliverables includes the deliverables and reports described in a Proposal.
10. We shall not be liable for use of the Services or the Deliverables for any purpose other than that for which they are prepared and/or provided.
11. In the event of our personnel visiting your premises in connection with the Services and/or the Proposal, they shall be regarded for all purposes as being your visitors and you shall inform them of all health and safety and security requirements that apply at your premises which we may have access to.
12. Either of us may terminate the Services (a) immediately upon written notice to the other if the other has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or enters into liquidation (whether voluntary or compulsory) or if any proceedings are commenced relating to its insolvency or possible insolvency; or (b) by written notice to the other if, within thirty (30) days of receipt of a written notice identifying a material breach of the Proposal by the other, the other has not taken all reasonable steps to rectify such breach; or (c) at any time by giving not less than one month’s written notice to the other.
13. In the event of any suspension or termination for any cause whatsoever, we shall (a) be entitled to be paid for all Services performed up to the date of termination and not yet paid for by you; and (b) in the event our Services include either of our six (6) month or twelve (12) month marketing plans (as specified in a Proposal) you shall pay us the total fee specified in the Proposal for such marketing plans, which you acknowledge and agree is fair and reasonable given the circumstances, namely that we will have allocated resource to your Services and/or withdrawn resource from other clients in order to juggle demand. Save where any suspension or termination is due to our being in material breach, we shall also be entitled to be paid for all costs, disbursements and expenses reasonably incurred by us (including any costs incurred in suspending and/or resuming performance of the Services) as a direct result of such suspension or termination.
14. The terms “process”, “personal data”, “data controller”, “data processor”, and “data subject” are as defined in the Data Protection Act 2018. In providing the Services, we may have access to personal data collected by you or on your behalf and for which we need to process in order to provide the Services. To the extent we process such personal data, you shall be the data controller and we shall be the data processor. Accordingly, you are responsible for your compliance obligations under the Data Protection Act 2018 and other applicable data protection laws and regulations, including providing any required notices and obtaining any required consents, and you shall ensure that you have a lawful basis, pursuant to the Data Protection Act 2018 or such other applicable data protection laws and regulations, to pass such personal data to us in order for us to provide the Services. We shall treat such personal data processed by us as confidential information and shall only use such personal data to the extent necessary to provide the Services and in accordance with your documented instructions. The subject-matter of processing of the personal data by us is the performance of the Services.
15. We shall, to the extent legally permitted, promptly notify you if we receive a request from a data subject exercising their rights of access, rectification, restriction of processing, erasure, data portability, object ion to the processing, or their right not to be subject to an automated individual decision making (“Data Subject Request”). You shall be primarily responsible for responding to Data Subject Requests. To the extent you, in your use of the Services, do not have the ability to address a Data Subject Request, we shall upon your written request provide reasonable efforts to assist you in responding to such Data Subject Request, to the extent we are legally permitted to do so and the response to such Data Subject Request is required under the Data Protection Act 2018 and other applicable data protection laws and regulations. We shall be entitled to charge you for such assistance at our then current day rate in the event that such assistance is likely to total over eight (8) hours.
16. We shall ensure that (a) our personnel (including employees, contractors and sub-contractors) engaged in providing the Services are informed of the confidential nature of the personal data, and (b) that access to personal data is limited to those personnel performing Services.
17. Force Majeure. We will not be liable for performance delays nor for non-performance due to causes beyond our reasonable control. In the event of any such delay the performance of the Services shall be deferred for a period equal to the time lost by reason of the delay.
18. Rights of Third Parties. The Proposal is personal to you and non-assignable. The Proposal shall not confer and shall not purport to confer on any third party any benefit or any right to enforce any term of the Proposal for the purposes of the Contracts (Rights of Third Parties) Act 1999 or otherwise.
19. Governing Law & Disputes. If any dispute arises in connection with the Proposal, we jointly agree to first try to resolve the matter amicably, in good faith, by escalating to a senior representative of our respective organisations for prompt resolution. If the dispute remains unsettled after 14 working days of one of us first having notified the other of a dispute, then each party shall be entitled to pursue legal action. The Proposal shall be governed by and construed in accordance with the laws of England and Wales and the Courts of England and Wales shall have exclusive jurisdiction with respect to any dispute arising out of or under the Proposal. Notwithstanding the foregoing, we reserve all of our rights and remedies available in law, contract or otherwise in relation to recovering any payments owed to us for Services we have performed.
20. Entire Agreement. The Proposal represents the entire agreement and understanding between us relating to the subject matter of the Proposal. You acknowledge that you have had an opportunity to negotiate the terms and conditions of the Proposal prior to the commencement of the Services.