Terms of Business

1. SOCIAL MEDIA PROGRAMME AND ADDITIONAL SERVICES

1.1 The Consultant shall deliver the Social Media Programme to the Client in consideration for the Client paying the Programme Fees to the Consultant, subject to the provisions of this Agreement.
1.2 The Consultant shall start delivering the Social Media Programme on the date agreed between the Consultant and the Client.
1.3 The Consultant shall use reasonable endeavours to complete the Social Media Programme by the date(s) agreed by the Parties.
1.4 The Client acknowledges and agrees that time is not of the essence for:
1.4.1 any dates when the Social Media Programme is due to be delivered; or
1.4.2 the length of time that any the Social Media Programme will take to perform as indicated by the Consultant;
1.4.3 any date by which any of the Social Media Programme will be completed as indicated by the Consultant.
1.5 The Consultant shall provide to the Client any Additional Services agreed with the Client in consideration for the Client paying the Additional Fees, subject to the provisions of this Agreement. Time shall not be of the essence for the performance of any Additional Services. For the avoidance of doubt, the Consultant shall not be obliged to provide Additional Services to the Client but may (at its discretion) agree to do so.
2. FEES AND PAYMENT OF FEES
2.1 The payment of the Fees shall be made by the Client to the Consultant within 14 days of the date of the Consultant’s invoice.
2.2 The Additional Fees are calculated on the amount of time spent by the Consultant in performing the Additional Services based on the Consultant’s hourly and daily rates from time to time. In respect of daily rates: a “day” will mean a period of 7 hours which includes the time spent in travelling to and from the place where the Additional Services are performed; and, where the work carried out in performing the Additional Services exceeds the period of 7 hours, that period shall be charged at the pro-rated rate for a day. Where the Additional Fees are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis.
2.3 Subject to the Client’s prior agreement (such agreement not to be unreasonably refused or delayed), the Consultant may charge for costs and expenses incurred in performing the Consultancy Services, including travelling, accommodation, photocopying, courier services and postage.
2.4 All amounts stated are exclusive of VAT and any other applicable taxes, which will be charged in addition at the rate in force at the time the Client is required to make payment.
2.6 If the Client does not make a payment within 14 days of the date of the Consultant’s invoice then the Consultant shall be entitled:
2.6.1 to charge interest on the outstanding amount at the rate of 4% per year above the base lending rate of Barclays Bank plc which shall accrue daily from the due date for payment until actual payment in full, whether before or after judgment;
2.6.2 to require the Client to pay, in advance, for any Consultancy Services (or any part of the Consultancy Services) which have not yet been performed; and
2.6.3 not to perform any further Consultancy Services (or any part of the Consultancy Services).
2.7 When making a payment the Client shall quote relevant reference numbers and the invoice number.
2.8 The Client shall pay to the Consultant all sums that it owes to the Consultant under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
3. CLIENT’S OBLIGATIONS
3.1 During the performance of the Consultancy Services, the Client will:
3.1.1 co-operate with the Consultant as the Consultant reasonably requires;
3.1.2 provide the information and documentation that the Consultant reasonably requires;
3.1.3 make available to the Consultant such Facilities as the Consultant reasonably requires; and
3.1.4 ensure that the Client’s staff and agents co-operate with and assist the Consultant.
3.2 “Facilities” means working space, computer equipment, access to the internet and the Client’s computer network, telecommunications system etc, and shall include not only access to such resources but also use of them to the extent required by the Consultant in order to perform the Consultancy Services.
3.3 The Client will not charge for the Consultant’s use of the Facilities made available by the Client.
3.4 If the Client does not provide the Facilities that the Consultant reasonably requires (and within the time period) to perform the Consultancy Services, then any additional costs and expenses which are reasonably incurred by the Consultant will be paid by the Client.
4. DELIVERABLES AND INTELLECTUAL PROPERTY RIGHTS
4.1 Unless otherwise agreed by the Parties:
4.1.1 the Client will be entitled to use any Deliverables produced by the Consultant for its own internal business purposes;
4.1.2 the Client will not be entitled to publish any Deliverables (or sell or make the Deliverables available to third parties), or allow any other person to do so; and
4.1.3 all Intellectual Property Rights in the Deliverables, or any other material created or prepared by the Consultant in performing the Consultancy Services (whether or not provided to the Client), shall belong to and vest in the Consultant.
5. CONFIDENTIALITY
5.1 Each Party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party, except as permitted by clause 7.2.
5.2 Each Party may disclose the other Party’s confidential information:
5.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the Party’s obligations under the Agreement. Each Party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other Party’s confidential information comply with this clause 7; and
5.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
5.3 Neither Party shall use the other Party’s confidential information for any purpose other than to perform its obligations under the Agreement.
5.4 Clause 10.10 shall apply in respect of any announcements or other disclosures concerning this Agreement.
5.5 This clause 7 shall survive the termination or expiry of the Agreement.
6. WARRANTIES AND LIABILITY
6.1 The Consultant warrants that it will use reasonable care and skill in performing the Consultancy Services to the standard generally accepted within the industry, sector or profession in which the Consultant operates for the type of Consultancy Services provided by the Consultant.
6.2 If the Consultant performs the Consultancy Services (or any part of the Consultancy Services) negligently or materially in breach of this Agreement then, if requested by the Client, the Consultant will re-perform the relevant part of the Consultancy Services, subject to clauses 8.4 and 8.5 below. The Client’s request must be made within 10 days of the date on which the Consultant completes performing the relevant Consultancy Services.
6.3 The Consultant provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date or any other date, whether stated in this Agreement or elsewhere.
6.4 Nothing in this Agreement shall limit or exclude either Party’s liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation or any other liability which cannot be limited or excluded by applicable law.
6.5 Subject to clause 8.4, the liability of the Consultant under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever shall not exceed the Fee(s) paid by the Client to the Consultant under this Agreement.
6.6 Subject to clause 8.4, neither Party shall be liable to the other Party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, for:
6.6.1 loss of profits;
6.6.2 loss of sales or business;
6.6.3 loss of agreements or contracts;
6.6.4 loss of anticipated savings;
6.6.5 loss of use or corruption of software, data or information;
6.6.6 loss of damage to goodwill; and,
6.6.7 any indirect or consequential loss
arising under or in connection with this Agreement.
7. TERMINATION
7.1 Without prejudice to the other remedies or rights a Party may have, either Party may terminate this Agreement, at any time, on written notice to the other Party (“Other Party”). The notice will take effect as specified in the notice:
7.1.1 if the Other Party is in material breach of its obligations under this Agreement and, where the breach is capable of remedy, the Other Party has not remedied the breach within 30 days of receiving written notice which specifies the breach and requires the breach to be remedied; or
7.1.2 if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
7.2 On termination of this Agreement by the Client pursuant to clause 9.1, the Client shall pay for all Consultancy Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by the Consultant for the performance of the Consultancy Services prior to the date of termination.
7.3 On termination of this Agreement by the Consultant pursuant to clause 9.1, the Client shall pay:
7.3.1 the balance of the Programme Fees; and,
7.3.2 all other expenditure falling due for payment (including, without limitation, any Additional Fees): (i) up to the date of termination and (ii) after the date of termination from commitments reasonably and necessarily incurred by the Consultant for the performance of the Consultancy Services prior to the date of termination.
8. GENERAL
8.1 Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 3 months, either Party may terminate this Agreement by written notice to the other Party.
8.2 Amendments
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
8.3 Assignment
8.4 Subject to clause 10.5, neither Party may assign, delegate, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.
8.5 A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
8.6 Entire agreement
This Agreement contains the whole agreement between the Parties relating to the Consultancy Services and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
8.7 Waiver
No failure or delay by the Consultant in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
8.8 Agency, partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
8.9 Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

8.10 Publicity and Announcements
8.10.1 The Consultant may, with the prior written approval of the Client (such approval not to be unreasonably withheld, delayed or conditioned), make reference to the work undertaken for the Client in its publicity and marketing material.
8.10.2 Except as provided at clause 10.10.1, neither Party shall issue or make any public announcement or disclose any information regarding this Agreement without the prior written approval of the other Party to such announcement or disclosure. However, neither Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law, regulatory requirement or the regulations of a recognised stock exchange.
8.11 Notices
8.11.1 Any notice to be given under this Agreement shall be in writing and shall be delivered by commercial courier or other signed-for delivery service, by first class mail or air mail, or by email
8.11.2 Notices sent as above shall be deemed to have been received on the date and at the time that the delivery receipt is signed (if by commercial courier or other signed for delivery service), 3 working days after the day of posting (in the case of inland first class mail), or 7 working days after the date of posting (in the case of air mail), or next working day after sending (in the case of email).
8.11.3 In proving the giving of a notice it shall be sufficient to prove that the notice was left at the correct address, or that the envelope containing the notice was properly addressed and posted, or that the email was sent to the correct email address and a read receipt, delivery receipt or acknowledgment was received from that email address (as the case may be).
8.11.4 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
8.12 Governing law and jurisdiction
8.12.1 This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England.
8.12.2 The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).
8.13 Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.