Parties
(1) And Another Day Ltd a company incorporated in England and Wales with company number 12105552 whose registered office is at 4 Winston Rise, Four Marks, Alton, Hampshire, England, GU34 5HW (AAD).
(2) The customer a (Customer).
Background
(A) AAD is in the business of providing digital marketing services as more fully described in Schedule 1.
(B) The Customer wishes to obtain and AAD wishes to provide the services on the terms set out in this agreement.
Agreed terms
1. Interpretation
The following definitions and rules of interpretation apply in this agreement.
1.1 Definitions.
Applicable Laws: all applicable laws, statutes, regulations from time to time in force.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business hours: the period from 9.00 am to 5.00 pm on any Business Day.
Change Order: has the meaning given in clause 5.1.
Charges: the sums payable for the Services, as set out in Schedule 2.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to AAD in connection with the Services, including the items provided pursuant to clause 4.1(b).
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
Deliverables: any output of the Services to be provided by AAD to the Customer as specified in Schedule 1 and any other documents, products and materials provided by AAD to the Customer in relation to the Services;
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Services: the services as set out in Schedule 1, including services which are incidental or ancillary to such services.
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.
VAT: value added tax chargeable in the UK.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 This agreement shall be binding on, and endure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.11 A reference to writing or written includes email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.14 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Commencement and duration
2.1 This agreement shall commence on the date when it has been signed by both parties and shall continue for a minimum term of 12 months (Minimum Term).
2.2 Either party can terminate this agreement at the end of the Minimum Term by serving written notice of its intention to terminate on the other party no less than 45 days prior to the end of the Minimum Term in which case this agreement shall terminate on the last day of the Minimum Term.
2.3 In the event that neither party has served written notice to terminate on the other no less than 45 days prior to the end of the Minimum Term, this agreement shall automatically renew at the end of the Minimum Term for a further 12 month period and it shall continue to automatically renew for successive 12 month periods (each 12 month period following the Minimum Term being a Renewal Period) unless and until this agreement is terminated in accordance with its terms.
2.4 Notwithstanding either party’s additional termination rights arising under the terms of this agreement, following the Minimum Term, either party may terminate this agreement for any reason during a Renewal Period as follows:
(a) by serving written notice of its intention to terminate no less than 45 days prior to the date falling six months after the commencement of a Renewal Period (in which case the agreement shall terminate on the date falling six months after the commencement of a Renewal Period); or
(b) if no such notice has been served at least 45 days prior to the date falling six months after the commencement of a Renewal Period, by serving written notice of its intention to terminate no less than 45 days prior to the end of a Renewal Period (in which case this agreement shall terminate on the last day of the then current Renewal Period).
3. AAD’s responsibilities
3.1 AAD shall use reasonable endeavours to supply the Services, and deliver the Deliverables to the Customer, in accordance with this agreement in all material respects.
3.2 AAD shall use reasonable endeavours to meet any performance dates specified during the provision of the Services but any such dates shall be estimates only and time for performance by AAD shall not be of the essence of this agreement.
3.3 AAD shall comply with the service levels set out in Schedule 1.
3.4 The Customer or its appointed agents may conduct one security audit of AAD each contract year, such audit to consist of planned penetration testing. The audits will be conducted subject to AAD’s security and confidentiality requirements and upon reasonable prior written notice of at least 30 days. The audits will be conducted so as to cause minimal disturbance to AAD’s business or to that of its customers. The form of the audit shall be agreed between the parties in writing prior to being carried out. Prior to any audit by an agent of the Customer, the Customer shall have such appointed agent agree to comply with confidentiality provisions on terms satisfactory to AAD. Any liability arising out of, or relating to, a Customer appointed agent audit shall be considered the liability of the Customer as if the Customer were performing the audit itself. The cost of the audit will be paid by the Customer.
4. Customer’s obligations
4.1 The Customer shall:
(a) co-operate with AAD in all matters relating to the Services;
(b) provide to AAD in a timely manner all content, documents, information, items and materials in any form (whether owned by the Customer or third party) required under Schedule 1 or otherwise reasonably required by AAD in connection with the Services and shall ensure that they are accurate and complete;
(c) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable AAD to provide the Services, including in relation to the use of all Customer Materials before the date on which the Services are to start;
(d) be responsible for all one-time or monthly costs for any tools or software required by AAD in connection with the Services. AAD agrees that it will not purchase or subscribe to such software without the prior written approval of the Customer. For the avoidance of doubt, where the Customer pays for any tools or software pursuant to this clause, the Customer shall own the licence to such tools and/or software;
(e) give access (including passwords) to AAD to all its tools, software, websites, social media accounts, landing pages and other accounts and authorisations as reasonably required by AAD in connection with the Services. AAD shall use all commercially reasonable endeavours to keep such accounts and passwords secure and shall apply the same level of security to the Customer’s passwords as it does to its own;
(f) ensure that the Customer Materials are not illegal or libellous or defamatory or an infringement of the proprietary or other rights of any third party. AAD shall be under no obligation to publish or print any matter which in its reasonable opinion is illegal, libellous or defamatory and the Customer shall indemnify AAD against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by AAD arising out of the Customer Materials being illegal or libellous or defamatory or an infringement of the proprietary or other rights of any third party.
4.2 If AAD’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, AAD shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
5. Change control
5.1 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
(a) the Services;
(b) AAD’s existing charges;
(c) the timetable of the Services; and
(d) any of the terms of this agreement.
5.2 If AAD wishes to make a change to the Services it shall provide a draft Change Order to the Customer.
5.3 If the Customer wishes to make a change to the Services:
(a) it shall notify AAD and provide as much detail as AAD reasonably requires of the proposed changes, including the timing of the proposed changes; and
(b) AAD shall, as soon as reasonably practicable after receiving the information at clause 5.3(a), provide a draft Change Order to the Customer.
5.4 If the parties agree to a Change Order, they shall sign it and that Change Order shall amend this agreement.
5.5 AAD may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 5.3 on a time and materials basis at AAD’s daily rates specified in Schedule 2.
6. Charges and payment
6.1 In consideration of the provision of the Services by AAD, the Customer shall pay the Charges as set out in Schedule 2.
6.2 The Charges exclude the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom AAD engages in connection with the Services, which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice.
6.3 AAD reserves the right to increase the Charges from time to time to reflect changing costs of labour, overheads and inflationary effects on AAD’s business by notice in writing to the Customer.
6.4 AAD shall invoice the Customer monthly in advance. The Customer shall pay each invoice submitted to it by AAD by direct debit on the first day of the monthly immediately following the date of the invoice to a bank account nominated in writing by AAD from time to time. Time for payment of invoices shall be of the essence of the agreement.
6.5 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay AAD any sum due under this agreement on the due date:
(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.5(a) will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%;
(b) AAD may suspend all or part of the Services until payment has been made in full; and
(c) AAD may terminate the agreement on seven days’ written notice.
6.6 All sums payable to AAD under this agreement:
(a) are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. Intellectual property rights
7.1 Subject to clauses 7.2 and 7.3, AAD hereby assigns to the Customer such right, title and interest as AAD may have in the Intellectual Property Rights in all Deliverables created by AAD specifically and exclusively for the Customer in connection with the Services.
7.2 The parties acknowledge that AAD cannot and shall not assign to the Customer any Intellectual Property Rights in:
(a) any Deliverables or other materials created by AAD:
(i) prior to the date on which AAD commenced providing the Services to the Customer; or
(ii) where such Deliverables or materials were not created or designed specifically and exclusively for the Customer; or
(b) any materials owned by a third party, including third party tools and software.
7.3 No Intellectual Property Rights in the Deliverables shall assign to the Customer unless and until AAD receives payment in full and cleared funds of all Charges owing under the agreement. AAD and its licensors shall retain ownership of all Intellectual Property Rights in any Deliverables supplied to or used by the Customer at a time when any Charges remain outstanding and AAD may, by notice in writing, require the Customer to cease using all such Deliverables until such time as the Charges have been paid in full and cleared funds.
7.4 In relation to the Customer Materials, the Customer:
(a) and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
(b) grants AAD a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the purpose of providing the Services to the Customer.
7.5 The Customer:
(a) warrants and represents that the receipt and use of the Customer Materials in the performance of this agreement by AAD, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(b) shall indemnify AAD in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by AAD arising out of or in connection with any claim brought against AAD, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Materials.
7.6 If the Customer is required to indemnify AAD under this clause 7, AAD shall:
(a) notify the Customer in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 7.5(b) (IPRs Claim);
(b) allow the Customer, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Customer shall obtain AAD’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Customer with such reasonable assistance regarding the IPRs Claim as is required by the Customer, subject to reimbursement by the Customer of AAD’s costs so incurred; and
(d) not, without prior consultation with the Customer, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Customer considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of AAD into disrepute.
8. Data protection
8.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
8.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and AAD is the processor.
8.3 Without prejudice to the generality of clause 8.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to AAD for the duration and purposes of this agreement.
8.4 Without prejudice to the generality of clause 8.1, AAD shall, in relation to any personal data processed in connection with the performance by AAD of its obligations under this agreement:
(a) process that personal data only on the documented written instructions of the Customer unless AAD is required by Applicable Laws to otherwise process that personal data. Where AAD is relying on the laws of a member of the European Union or European Union Law as the basis for processing personal data, AAD shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit AAD from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, 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 it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or AAD has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) AAD complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) AAD complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data.
8.5 The Customer consents to AAD appointing third party processors of Personal Data under this agreement. AAD confirms that it has entered or (as the case may be) will enter with the third party processors into a written agreement incorporating terms which are substantially similar to those set out in this clause 8 and in either case which AAD confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and AAD, AAD shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 8.
8.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 8 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
9. Confidentiality and announcements
9.1 Each party undertakes that it shall not at any disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 9.2.
9.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 9; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
(c) as approved, permitted or directed by the other party in writing.
9.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
9.4 Subject always to obtaining the prior written approval of the Customer (such consent not to be unreasonably withheld or delayed), AAD shall be entitled to use the Customer’s name, logo and website address on its own promotional material (including online, on social media and in printed marketing literature) for the purposes of advertising, promoting and marketing AAD’s services and the Customer grants to AAD a worldwide, non-exclusive, royalty-free licence to use its name, logo and website address for this purpose.
10. Limitation of liability
10.1 Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.2 Subject to clause 10.1, AAD’s total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
10.3 In clause 10.2:
(a) cap. The cap is an amount equal to 50% of the total charges in the contract year in which the breaches occurred;
(b) contract year. A contract year means a 12-month period commencing with the date of this agreement or any anniversary of it;
(c) total charges. The total charges means all sums paid by the Customer to AAD; and
(d) total liability. AAD’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement.
10.4 This clause 10.4 sets out specific heads of excluded loss:
(a) Subject to clause 10.1, the types of loss listed in clause 10.4(b) are wholly excluded by the parties.
(b) The following types of loss are wholly excluded:
(i) Loss of profits
(ii) Loss of sales or business.
(iii) Loss of agreements or contracts.
(iv) Loss of anticipated savings.
(v) Loss of use or corruption of software, data or information.
(vi) Loss of or damage to goodwill.
(vii) Indirect or consequential loss.
10.5 AAD has given commitments as to compliance of the Services with relevant specifications in clause 3 and Schedule 1. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
10.6 Unless the Customer notifies AAD that it intends to make a claim in respect of an event within the notice period, AAD shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10.7 The Customer acknowledges that the internet is neither owned nor controlled by any one entity and, therefore, accepts that AAD can make no guarantee on the results that may be provided as a result of the Services. AAD agrees in good faith to use commercially reasonable efforts to ensure that the Customer’s digital marketing is successful, and leads are generated as a result of its work.
10.8 AAD provides no warranties that the functions supplied by its work, web pages, digital marketing, consultation, advice, or work will meet the Customer’s requirements or that the operation of the Services or Deliverables will be uninterrupted or error-free. The entire risk as to the quality and performance of the Services and Deliverables is with the Customer.
10.9 Subject to clause 10.1, the Customer’s total liability to AAD in respect of a breach of clause 14.1 shall not exceed an amount equal to the total charges paid by the Customer to AAD in the 12 months preceding the date on which the event giving rise to the liability occurs.
11. Proofs
11.1 Proofs of all work may be submitted for the Customer’s approval and AAD shall incur no liability for any errors not corrected by the Customer in proofs so submitted. The Customer’s alterations and additional proofs necessitated thereby shall be charged at an extra cost pursuant to Schedule 2.
11.2 When style, type or layout is left to AAD’s judgment, any changes made by the Customer shall be charged as extra items and shall be invoiced to the Customer at AAD’s then current hourly rate.
11.3 If the Customer fails to notify AAD of any amendments, the Customer shall be deemed to have checked and accepted the proof and AAD shall have no liability in respect of claims, charges or variations subsequently necessitated.
12. Termination
12.1 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:
(a) 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 seven days after being notified to do so;
(b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of the other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of the other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(g) the holder of a qualifying floating charge over the assets of the other party has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(c) to clause 12.1(i) (inclusive); or
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.2 Without affecting any other right or remedy available to it, AAD may terminate this agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under this agreement on the due date for payment; or
(b) there is a change of control of the Customer.
13. Consequences of termination
13.1 On termination or expiry of this agreement:
(a) the Customer shall immediately pay to AAD all of AAD’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, AAD may submit an invoice, which shall be payable immediately on receipt;
(b) AAD shall on request return any of the Customer Materials not used up in the provision of the Services; and
(c) the following clauses shall continue in force: clause 1 (Interpretation), clause 7 (Intellectual property rights), clause 9 (Confidentiality), clause 10 (Limitation of liability), clause 13 (Consequences of termination), clause 15 (Non-solicitation), clause 19 (Waiver), clause 21 (Severance), clause 23 (Conflict), clause 28 (Governing law) and clause 29 (Jurisdiction).
13.2 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.
14. Indemnity
14.1 The Customer shall indemnify and keep indemnified AAD in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by AAD arising out of or in connection with any act or omission of the Customer (or its employees, officers, agents, subcontractors or consultants) including any breach by the Customer of the terms of this agreement.
15. Non-solicitation
15.1 The Customer shall not (except with the prior written consent of AAD) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of AAD any person employed or engaged by AAD in the provision of the Services (whether as employee, worker or independent contractor or otherwise) at any time during the term of this agreement or for a further period of six months after the termination of this agreement other than by means of a national advertising campaign open to all comers and not specifically targeted at any of AAD’s staff.
15.2 If the Customer commits any breach of clause 15.1, the Customer shall, on demand, pay to AAD a sum equal to one year’s basic salary or the annual fee that was payable by AAD to that employee, worker or independent contractor plus the recruitment costs incurred by AAD in replacing such person.
16. Force majeure
Save in respect of the Customer’s obligations to pay the fees, 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. 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 OR the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for four weeks, the party not affected may terminate this agreement by giving 30 days’ written notice to the affected party.
17. Assignment and other dealings
17.1 This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
17.2 AAD may at any time assign, novate, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agr eement provided that it gives prior written notice of such dealing to the Customer.
18. Variation
Subject to clause 5 (Change control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19. Waiver
19.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
19.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20. Rights and remedies
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21. Severance
21.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
21.2 If any provision or part-provision of this agreement is deemed deleted under clause 21.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. Entire agreement
22.1 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.
22.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
23. Conflict
If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.
24. No partnership or agency
24.1 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.
24.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
25. Third party rights
25.1 Unless it expressly states otherwise and save in relation to AAD’s successors and assigns, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
26. Notices
26.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) 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); or
(b) sent by email to the address in regular use between the parties.
26.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt; and
(b) 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; and
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 26.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
26.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
27. Counterparts
27.1 This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
27.2 Transmission of the executed signature page of a counterpart of this agreement by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this agreement. If this method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the other with the original of such counterpart as soon as reasonably possible thereafter.
27.3 No counterpart shall be effective until each party has executed at least one counterpart.
28. Governing law
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
29. Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
This agreement has been entered into on the date stated at the beginning of it.