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This Master Agreement is entered into between Mr Shahin Miah T/A iNeedSocial.co.uk as listed on the Order Form (“We” or “Us”) and the customer identified in the signature block in the Order Form (“You”). The Effective Date of this Master Agreement shall be the Effective Date in the Order Form. The parties agree to the following:
1. DEFINITIONS.
“Customer Data”: any data and information that You or Your users provides, generates, transfers or makes available to Us under the Agreement, whether printed, electronic, or in some other format.
“Documentation”: the user instructions, release notes, manuals and on-line help files in the form generally made available by Us, regarding the use of the applicable Services, as updated by Us from time to time.
“Intellectual Property”: any and all intellectual property rights, recognised in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation inventions, technology, patents rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, trade dress, database rights, methodologies, procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, training methodology and materials, which We have created, acquired or otherwise has rights in, and may, in connection with the performance of Services hereunder, create, employ, provide, modify, create, acquire or otherwise obtain rights in.
“Licensed Materials”: Training materials, and/or any deliverables under Professional Services and Services collectively.
“Professional Services”: means any digital design, development, implementation, site planning, configuration, integration and deployment of websites and applications, Bespoke Modification development, training, project management and other consulting services offered as part of the Services.
“Services”: means collectively any services offered by Us in an Attachment (defined in 2.1 below) which are provided pursuant to an Attachment (all as defined in the relevant Attachment).
“Support Services” or “Support”: (i) for supported Services, the technical assistance for the level of assistance selected by You, and provision of Updates if and when available. Support is provided subject to the terms of Our Support Policies (as may be amended by Us from time to time) in effect at the time the Support services are provided. A current version of such Support Policies is available on request (“Support Policies”).
“Third Party EULA” or “EULA”: the end user licence agreement (if any) which governs Your use of or access to the applicable Third Party Product. This may take the form of a document which is published by the third party supplier and accompanies the Third Party Product that You procure from Us, or any terms determined by the relevant third party supplier on which We are entitled to sub-license the Third Party Product to You. EULAs applicable to Your Services will be provided upon request.
“Third Party Product”: software in object code form, database, service or content, including Documentation, updates and enhancements thereto if any, owned by an entity other than Us.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
2. PURPOSE AND SCOPE.
2.1 Master Agreement and Incorporation of SOW and Attachments. This Master Agreement establishes the general terms and conditions to which the parties have agreed in order to facilitate the provision of digital marketing services. Additional product or service-specific terms and conditions are set forth in one or more “Attachments” or “SOWs”. All references to the “Master Agreement” shall mean this document, exclusive of Attachments, SOWs and Order Forms. All references to the “Agreement” shall include this Master Agreement, SOW, all Attachments, and Order Forms executed by the parties. The parties may execute, from time to time, additional Attachments, Order Forms, SOWs or other exhibits under the terms of this Master Agreement.
2.2 Incorporation of Order Forms. “Order Form” means the document(s), regardless of actual name, executed by the parties which incorporates by reference the terms of this Master Agreement and applicable Attachments and SOW, and describes order-specific information, such as description of products or services ordered, fees, and milestones. At any time after execution of the initial Order Form, You may purchase additional products or services or otherwise expand the scope of existing products and services, upon Our receipt and acceptance of a new Order Form specifying the foregoing.
3. SUPPORT AND SERVICE LEVELS
3.1 Unless otherwise specifically stated in a relevant Attachment or SOW, the following shall be applicable:
(a) Our standard business operating hours (“Standard Hours”) is Monday to Friday excluding English Bank holidays between 09:00am and 17:00 pm UK time.
(b) Our standard response time (“Response Times”) for Your queries will be 48 Standard Hours from receipt of such query by Us.
(c) All support queries will only be address when logged via Our customer support system. Access to Our support system portal is found on our website.
(d) You agree to provide all information requested by Us to carry out the Services and Support Services within 48 hours from Us requesting such information. We will continue to carry out the agreed Services in the absence of Us receiving the required information.
3.2 We reserve the right to charge fees for any works carried outside of the Scope of Our agreed Services with You and/or Standard Hours and/or to respond to Your queries outside of the Response Times.
4. FINANCIAL TERMS.
4.1 Fees and Payment Terms. Fees and payment terms are specified in the applicable Order Form. Unless expressly provided otherwise, the prices in the Agreement do not include value added tax or any similar taxes, levies or duties. Prices do not include reasonable travel and accommodation expenses we incur in connection with Services we perform at Your site, which shall be charged to You at actual cost. We may increase the fees for Services at any time upon 30 days written notice. Unless otherwise specified in the Order Form, payment of all fees is due in advance of the provision of Services and if Services is offered on a payment plan or subscription basis, payment is due in advance on agreed payment date. All fees paid are non-refundable. In the event Y[ou fail to provide us the required information as specified in Clause 3.1(d), You agree that You will be liable for all fees payable under the Agreement and to settle any invoice raised by us for the Services. In the event of cancellation of the Services, You acknowledge that You will settle the agreed fee stated in the Order From within 7 days of the cancellation of the Services. Any bona fide disputed fees shall be resolved in accordance with the provisions of clause 11 hereof. In the event of Your payment default, We will be entitled to suspend any or all Services upon 5 days written notice to You and/or to modify the payment terms, and to request full payment before any additional performance is rendered by Us. Notwithstanding Our rights in this clause 3 or clause 10 of this Master Agreement, (a) We shall be entitled to collect all past and current amounts due and owing, and to accelerate all future amounts to be due, such that all remaining periodic payments for the then-current term of the applicable Order Form are immediately due and owing, and (b) We reserve the right to levy interest on the overdue sum from the due date until the payment of the overdue sum, whether before or after judgement at an interest rate of 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when the base rate is below 0% (c)You shall be responsible to pay any collection expenses (including reasonable legal fees) incurred by Us. You are not entitled to any set off, counter claim, deduction or withholding (other than any deduction or withholding of tax as required by law)
5. CONFIDENTIALITY.
5.1 Defined. By virtue of the Agreement, the parties may be exposed to or be provided with certain confidential and proprietary information of the other party or third parties, including but not limited to information designated as confidential in writing or information which ought to be in good faith considered confidential and proprietary to the disclosing party (“Confidential Information”). Confidential Information of Ours and/or Our licensors includes but is not limited to the terms and conditions (but not the existence) of the Agreement, including without limitation all Order Forms, all trade secrets, software, source code, database, licence keys, information about the Software or Services, object code, specifications, documentation, business plans, customer lists and customer-related information, financial information, proposals, budgets as well as results of testing and benchmarking of the Licensed Materials, product roadmap, data and other information of Ours and Our licensors relating to or embodied therein.
5.2 Non-Disclosure. Each party will protect the other party’s Confidential Information from unauthorised dissemination and use the same degree of care that each such party uses to protect its own confidential information, but in no event less than a reasonable amount of care. Neither party will use Confidential Information of the other party for purposes other than those necessary to directly further the purposes of the Agreement. Neither party will disclose to third parties Confidential Information without prior written consent of the other party. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving party; (ii) was lawfully in the receiving party’s possession before receipt from the disclosing party without a duty of confidentiality; (iii) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis; or (iv) has been independently developed by one party without reference to any Confidential Information of the other. We or Our affiliates (which for the avoidance of doubt includes Our Group) may use and distribute, for any lawful purposes outside of the Agreement, Customer Data and any other data that You provide to Us, provided always that such data is aggregated anonymous, and de-identified. We and Our licensors or suppliers may monitor the usage, performance and operation of the Licensed Materials using electronic, remote and other means to access Your systems and without notice to You.
5.3 Required Disclosure. The receiving party may disclose Confidential Information of the disclosing party if it is required by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
6. Data protection
6.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 6, Applicable Laws means (for so long as and to the extent that they apply to US) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the Data Protection Legislation from time to time in force in the UK and any other law that applies in the UK.
6.2 The parties acknowledge that for the purposes of the Data Protection Legislation, You are the controller and the We are the processor.
6.3 Without prejudice to the generality of clause 6.1, You will ensure that You have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Us for the duration and purposes of the Agreement
6.4 Without prejudice to the generality of clause 6.1, We shall, in relation to any personal data processed in connection with the performance by Us of Our obligations under the Agreement:
6.4.1 process that personal data only on the documented written instructions by You unless We are required by Applicable Laws to otherwise process that personal data. Where We rely on laws of a member of the European Union or European Union law as the basis for processing Personal Data, We shall promptly notify You of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Us from so notifying You;
6.4.2 ensure that We have in place appropriate technical and organisational measures, reviewed and approved by You, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, 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 (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by Us;
6.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
6.4.4 not transfer any personal data outside of the European Economic Area unless Your prior written consent has been obtained and the following conditions are fulfilled:
6.4.4.1 You or We have provided appropriate safeguards in relation to the transfer;
6.4.4.2 the data subject has enforceable rights and effective legal remedies;
6.4.4.3 We comply with Our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
6.4.4.4 We comply with reasonable instructions notified to it in advance by You with respect to the processing of the personal data;
6.4.5 assist the You, at Your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
6.4.6 notify You without undue delay on becoming aware of a personal data breach;
6.4.7 at the written direction of You, delete or return personal data and copies thereof to You on termination of the agreement unless required by Applicable Law to store the personal data; and
6.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and immediately inform You if, in the opinion of US, an instruction infringes the Data Protection Legislation.
6.5 You consent to Us appointing a suitable vendor as a third party processor of Personal Data under the Agreement. We confirm that we have entered or (as the case may be) will enter with the third party processor into a written agreement substantially on that third party’s standard terms of business and We confirms reflects and will continue to reflect the requirements of the Data Protection Legislation. As between You and Us, We shall remain fully liable for all acts or omissions of any third party processor appointed by Us pursuant to this clause
7. LIMITED RIGHTS AND OWNERSHIP
7.1 Reservation of Rights. All rights not expressly granted in the Agreement are reserved by Us and Our licensors. You acknowledge that: (i) all Licensed Materials are licensed and not sold; (ii) All Licensed Materials will have Our trademark and logo or other attributes attributable to Us and you will not remove such attributes from the Licensed Materials (iii) You acquire only the right to use the Licensed Materials and We and Our licensors shall retain sole and exclusive ownership of and all rights, title, and interest in the Licensed Materials, including without limitation (whether developed by Us, You or a third party) (a) Intellectual Property embodied or associated with the Licensed Materials, (b) Bespoke Modifications, deliverables and work product associated with the Licensed Materials, and (c) all copies and derivative works thereof; and (iv) the Licensed Materials, including the source and object codes, logic and structure, design and layout constitute valuable trade secrets of Ours and Our licensors. You agree to secure and protect the Licensed Materials consistent with the maintenance of Our and Our licensors’ rights therein, as set forth in this Master Agreement. You agree to execute such further instruments, and take such further actions as We may reasonably request, at Our expense, to apply for, register, perfect, confirm, and protect Our rights.
7.2 Restrictions. You shall not Yourself, or through any affiliate, employee, consultant, contractor, agent or other third party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Licensed Materials; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Licensed Materials in whole or in part, for competitive purposes or otherwise, except as and only to the extent expressly permitted by law; (iii) allow access to, provide, divulge or make available the Licensed Materials to any user other than those who have licences to access and all such users must be Your employees or individual contractors; (iv) allow use of the Licensed Materials by others such as Your affiliates or outsourcers without Our prior written consent; (v) write or develop any derivative works based upon the Licensed Materials; (vi) modify, adapt, translate or otherwise make any changes to the Licensed Materials or any part thereof; (vii) use the Licensed Materials to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis; (viii) disclose or publish, without Our prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Licensed Materials; (ix) otherwise use or copy the Licensed Materials except as expressly permitted herein; (x) remove from any Licensed Materials identification, patent, copyright, trademark or other notices or circumvent or disable any security devices functionality or features; or (xi) except as expressly permitted by the Agreement, use the Licensed Materials for hosting purposes.
7.3 Licence Grant by You. You grant to Us a non-exclusive, royalty free licence to use equipment, software, Customer Data or Your other materials.
8. INDEMNIFICATION
8.1 Your Indemnification. We will defend or settle, at Our option and expense, any action, suit or proceeding brought against You that Our Services infringes a third party’s patent or copyright, in the United Kingdom, Channel Islands, Isle of Man and all territories in the EU (“Claim”). We will indemnify You against all damages and costs finally awarded or those costs and damages agreed to in a monetary settlement of such action, which are attributable exclusively to such Claim, provided that You: (i) promptly give Us written notice of the Claim; (ii) give Us sole control of the defence and settlement of the Claim; (iii) provide Us, at Our expense, with all available information and assistance relating to the Claim and cooperate with Us and Our counsel; (iv) do not compromise or settle such Claim; and (v) are not in material breach of any agreement with Us. We have no obligation to the extent any Claim results from: (a) You or Your users having modified Our Services, procured a modification from an unauthorised source, if such an infringement would have been avoided by the use of a current unaltered release of Our Services, (b) Third Party Products unless such products have been supplied directly by Us (in which case the indemnity (if any) offered within the provisions of the relevant Third Party EULA shall apply), or (c) the combination, operation or use of Our Services with Servivecs or data not provided by Us. If it is adjudicated that an infringement of Our Services by itself and used in accordance with the Agreement infringes any copyright, or patent in the United Kingdom, Channel Islands, Isle of Man and all territories in the EU, We shall, at Our option: (I) procure for You the right to continue using Our Services; or (II) replace or modify the same so it becomes non-infringing or (iii) either party shall be entitled to terminate the Agreement or the applicable Order Form upon written notice to the other party. THIS CLAUSE 8.1 STATES OUR ENTIRE OBLIGATION TO YOU AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT.
8.2 Our Indemnification. You shall defend Us against any claim, demand, suit, or proceeding made or brought against Us, Our employees, consultants, contractors and other suppliers (collectively, “Indemnified Party”) (A) by Your users or (B) by a third party arising out of or related to (i) the Customer Data, (ii) Your or Your users’ use of the Licensed Materials in violation of the Agreement, or infringing or misappropriating the rights of a third party or violating applicable law, (iii) Your or Your users’ use of Third Party Product in violation of the relevant EULA (whether procured via Us or not), or infringing or misappropriating the rights of a third party or violating applicable law, (iv) Your or Your users use or misuse of the Licensed Materials or Your or Your users use or misuse of the Customer Data (including, without limitation, accessing, providing access, using or distributing the Customer Data), (v) information transmitted by You or Your users using any of the Services; or (vi) breach by You or Your users of applicable laws including without limitation any privacy or security rules, and shall indemnify each Indemnified Party for any damages finally awarded against, and for reasonable legal fees incurred by, the Indemnified Party in connection with any such claim that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action; provided that the Indemnified Party (a) promptly gives You written notice of the claim, (b) gives You sole control of the defence and settlement of the claim (provided that You may not settle or defend any Claim unless it unconditionally releases the Indemnified Party of all liability), and (c) provides You all reasonable assistance, at Your cost.
9. DISCLAIMERS AND LIMITATION OF LIABILITY.
9.1 THE WARRANTIES, IF ANY, SET FORTH IN THE ATTACHMENTS AND SOW ARE IN LIEU OF, AND WE, OUR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT PRODUCTS, LICENSED MATERIALS OR SERVICES ARE ERROR-FREE, SECURE, ACCURATE OR RELIABLE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED OR WILL COMPLY WITH ANY LAW, RULE OR REGULATION (ii) ANY AND ALL IMPLIED WARRANTIES OF QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND (iii) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT OR INFORMATION GIVEN BY US, OUR AFFILIATES, CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED HEREIN. YOU ACKNOWLEDGE THAT THE LICENSED MATERIALS HAVE NOT BEEN PREPARED TO MEET YOUR INDIVIDUAL REQUIREMENTS AND THAT IT IS THEREFORE YOUR RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS DESCRIBED IN THE DOCUMENTATION MEET YOUR REQUIREMENTS. YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE PRODUCTS AND SERVICES PROVIDED HEREUNDER TO ACHIEVE YOUR INTENDED RESULTS.
9.2 You assume sole responsibility and liability for any users’ compliance with the terms and conditions of the Agreement. We shall have no liability for any claims, losses or damages arising out of or in connection with Your or any of Your users’ use of the Licensed Materials, any third-party products, services, software or web sites that are accessed via links from within the Services.
9.3 Nothing in the Agreement shall in any way exclude or limit Our liability for death or personal injury caused by negligence, or liability for fraudulent misrepresentation, or for any other liability which by law it is not possible to exclude or limit.
9.4 Our liability for the loss or damage to tangible property whether or not the same are under warranty shall be limited in accordance with clause 9.5 below.
9.5 Subject to clause 8.1, Our total liability for direct losses in contract, tort, misrepresentation, breach of statutory duty or otherwise in connection with the Agreement or the provision of the Licensed Materials, Support, Hardware and/or any Services for any and all events and/or claims arising in any Year shall be limited to the total charges and resulting sums paid (excluding VAT and expenses) by You to Us in that Year; for the purposes of this clause, “Year” shall mean a period of 12 months (or shorter period in the period immediately prior to termination of the Agreement) commencing on the Effective Date of this Master Agreement or any anniversary of such Effective Date.
9.6 In no event will We be liable to You in contract, tort, misrepresentation or otherwise, for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever, nor for any direct or indirect loss of profit, loss of anticipated profits, loss of revenue, loss of anticipated revenue, loss of savings or anticipated savings, loss of business opportunity, increases in cost of working whether anticipated or not, loss or corruption of data, loss of use or loss of operating time and any costs and expenses associated therewith, loss or damage to products, Services or data which it contains during repair or upgrade whether or not the same are under warranty, the cost of purchasing elsewhere, depletion of goodwill or reputation or otherwise which arise out of or in connection with the Agreement and whether or not foreseeable or made known to Us.
9.7 If You supply any hardware or equipment or Third Party Product and such items impair Your system, cause it to fail, not to operate or not to operate properly in conjunction with Your system, We have no liability hereunder for any such impairment, failure, non-operation or improper operation.
9.8 We will use reasonable endeavours to ensure that the Services are supplied promptly in accordance with any dates as agreed by the parties having regard to the availability of personnel but any delivery dates or times quoted for delivery, commencement or completion of any part of the Services or deliverables will be estimates only and time will not be of the essence.
9.9 The parties have considered the exclusions and limitations of liability in the Agreement in the context of all the circumstances of the transaction to which the Agreement relates (including the parties’ respective insurance cover) and all the factors referred to in Schedule 2 of the Unfair Contracts Terms Act 1977. The parties consider that such exclusions and limitations of liability are fair and reasonable and that, but for such exclusions and limitations, the parties would not have entered into the Agreement. For the purposes of the Unfair Contracts Terms Act 1977 each party acknowledges and agrees that every provision of the Agreement has been the subject of negotiations between the parties, even if the words used in any provision of the Agreement have been used by a party in other contractual arrangements and/or in standard form contract documentation used by that party.
10. TERM AND TERMINATION.
10.1 Term. The term of this Master Agreement shall commence on the Effective Date and shall continue in full force and effect until the expiration or termination of all Attachments and Order Forms, unless otherwise terminated earlier as provided hereunder.
10.2 Termination. Either party may terminate the Agreement including all Attachments and Order Forms executed thereunder immediately upon written notice: (i) in the event that the other party commits a non-remediable material breach of the Agreement, or if the other party fails to remedy any remediable material breach or provide a written plan of remedy acceptable to the non-breaching party within 30 days of being notified in writing of such breach, except for breach of clause 4 which shall have a ten (10) day remedy period; or (ii) if the other party becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986, or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or notice has been received of a pending appointment of or the appointment of a receiver, manager, administrator or administrative receiver over all or any part of its undertaking, assets or income or notice has been received of an intention to pass or has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order, or has ceased or threatened to cease to trade. Where a party has rights to terminate the Agreement, the non-breaching party may at its discretion either terminate the entire Agreement or the applicable Attachment or Order Form, provided however that termination of an Attachment shall automatically terminate all Order Forms executed under such Attachment. Attachments and Order Forms that are not terminated shall continue in full force and effect under the terms of this Master Agreement.
10.3 Following termination of the Agreement or an Attachment (for whatever reason), You shall certify that You have returned or destroyed all copies of the applicable Licensed Materials, and Confidential Information of Ours and acknowledge that Your rights to use the same are relinquished. Termination for any reason shall not excuse Your obligation to pay in full any and all amounts due, nor shall termination by Us result in a refund of fees paid.
11. DISPUTE RESOLUTION
11.1 If a complaint or dispute (a “Dispute”) arises in connection with the Agreement, then, without prejudice to either party’s other rights and remedies, the parties shall first attempt to resolve or settle the Dispute through good faith negotiations between appointed representatives, and if necessary, Disputes that cannot be resolved or settled in the first instance shall be escalated to senior personnel within each party.
11.2 Disputes may be resolved or settled through mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure provided both parties agree to such mediation and the terms applicable to the conduct of such mediation.
11.3 Nothing in this clause 11 shall prevent the either party from exercising any rights and remedies that may be available in respect of any breach of the provisions of the Agreement or commencing any court proceedings or arbitration in relation to any Dispute (including making an application for injunctive relief).
12. GENERAL PROVISIONS.
12.1 We will be entitled to suspend any or all Services upon 10 days written notice to You in the event You are in material breach of the Agreement.
12.2 Force Majeure. No party shall be liable to the other for any delay or non-performance of its obligations under the Agreement arising from any cause beyond its control, including without limitation strike, lock-out, labour dispute, act of God, war, riot, civil commotion, malicious damage (including virus/hacking attacks or other intentional malicious acts of third parties), compliance with a law or governmental order, rule, regulation or direction, accident, third party interference, actions or omissions of telecommunication providers, delay or failure of any supplier, sub-contractor or carrier, fire, flood and storm. For the avoidance of doubt, nothing in this clause shall excuse You from any payment obligations under the Agreement. If any such event continues for more than ninety (90) days and provided substantial performance is still impeded either party may terminate the Agreement forthwith by prior written notice without prejudice to the accrued rights of either party.
12.3 Assignment. We may assign, sub-contract or otherwise transfer any of Our rights or obligations under the Agreement without Your consent. You may only assign, sub-contract or otherwise transfer any of Your rights or obligations with Our prior written consent.
12.4 Non-solicitation. During the term of this Master Agreement and for a period of one year following its termination, neither party will solicit for employment or engagement, directly nor through other parties, without the other party’s written permission, any individual employed or engaged by the other party. It is agreed however that the solicitation, engagement or hiring of individuals responding to general public marketing and recruiting advertisements and events shall not be a violation of this provision; only active, targeted solicitation is prohibited.
12.5 Notices. Any notice required to be given pursuant to the Agreement shall unless otherwise stated in it, be in writing, sent to the other party marked for the attention of the person at the address specified on the Order Form (or to such other address as either party may from time to time notify to the other in writing in accordance with this clause). For the purpose of notices to be given by Us in writing, the expression “writing” or “written” shall be deemed to include email communications. A correctly addressed notice sent by first-class post shall be deemed to have been delivered 72 hours after posting, and correctly addressed emails shall be deemed to have been delivered 24 hours after sending.
12.6 Relationship. The Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.
12.7 Invalidity. If any provision of the Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
12.8 The termination of the Agreement in accordance with clause 10 or its expiry shall not prejudice or affect any rights or liabilities which accrued or thereafter shall accrue to either party, any rights or remedies a party may be entitled to hereunder or at law nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on after such termination.
12.9 No Waiver. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
12.10 Entire Agreement. The Agreement constitutes the parties’ entire agreement relating to its subject matter. Each party acknowledges that in entering into the Agreement, it has not relied on any representation, undertaking, promise or statement whether oral or in writing which is not expressly set out in the Agreement. The Agreement cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals, proposals, conditions, representations, and warranties, or other communication between the parties relating to its subject matter as well as any prior contractual agreements between the parties.
12.11 Variation. No modification to the Agreement will be binding unless in writing and includes a signature by an authorised representative of each party. All pre-printed or standard terms of any of Your purchase order or other business processing document shall have no effect.
12.12 Third Party Rights. The Contracts (Rights of Third Parties) Act 1999 is excluded, by the agreement of the parties to the Agreement, from applying to the Agreement to the maximum extent permitted by law. No term of the Agreement is enforceable by any person who is not a party to it, whether in accordance with such Act or otherwise. This clause shall prevail in the event of any conflict between it and anything else in the Agreement. Notwithstanding the above, the parties acknowledge that all rights and benefits afforded to Us under the Agreement shall apply equally to the owner of the Third Party Product with respect to the Third Party Product You procure from Us, and such third party is an intended third party beneficiary of the Agreement, with respect to the Third Party Product as applicable.
12.13 Counterparts. The Agreement may be executed in any number of counterparts and by the different parties on separate counterparts, each of which, when executed and delivered, shall be an original and all the counterparts together shall constitute one and the same instrument which shall only be deemed executed when counterparts executed by both parties are delivered.
12.14 Governing Law and Jurisdiction. The Agreement shall be construed in accordance with and governed by the law of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales.
12.15 Order of Precedence. To the extent any terms and conditions of this Master Agreement conflict with the terms and conditions of any Attachment and/or SOW, the provisions of the Attachment and/or SOW shall control unless the Attachment and/or SOW expressly states the intent for this Master Agreement to supersede a specific portion of the Attachment. To the extent any terms and conditions of the Attachment conflict with the terms and conditions of a SOW the provisions of the SOW shall control unless the SOW expressly states the intent for the Attachment to supersede a specific portion of the SOW. To the extent any provision of this Master Agreement or Attachment or SOW conflict with the provisions of a Third Party EULA, the Third Party EULA will take precedence but only in respect of the relevant Third Party Product. In the event of a conflict between an Order Form and the Agreement, the Order Form shall prevail. The terms of Your purchase order or any other business processing document (if any) shall be superseded and excluded by the terms and conditions of the Agreement and therefore have no effect.
END OF MASTER AGREEMENT