#1 – THE AGREEMENT
1.1. The Agreement. This Agreement (“Agreement”) sets the terms and conditions between The Customer and Provider – Electron Digital Ltd (“Electron Digital”) for any services provided by Electron Digital.
#2 – PROVISION OF MEDIA AND MARKETING SERVICES
2.1. Electron Digital agrees with effect from the Acceptance Date in consideration of the payment of the first month’s fees by the Customer to commence all agreed services on a non-exclusive basis upon the terms and conditions of this Agreement.
2.2 Changes to the service plan must be agreed in writing
2.3. The Provider shall perform the Services in accordance with the requirements set out in this Contract or, where requirements are not specified in this Contract, the Provider shall perform the Services with reasonable skill and care and in accordance with good industry practice.
#3 – DURATION
3.1 This Agreement shall commence on the Acceptance Date and shall (subject to the provisions for termination set out in this Agreement) continue for the agreed term and thereafter until terminated by either party giving to the other not less than one (1) months notice in writing (any such notice to expire not earlier than the end of the Initial Period).
#4 – SERVICES FEE
4.1 The Customer undertakes to pay the agreed Services Fee (Schedule 2) and any additional fees for client-commissioned projects to Electron Digital for any other services provided by Electron Digital, such charges to be based on Electron Digital then current charging rates.
4.2 Adding an optional package after the Commencement date will change the agreed specification and incur an additional Fee. Each new package will be provided for the agreed term.
4.3 Each Project has individually allocated time allowances for design, development or both, these are set out in the Service Agreement. If a project exceeds these allotted time frames an additional charge (as set out in the Service agreement) may be applied. The Customer will be duly informed prior to the commencement of any extra charges and associated work thereafter.
4.4 Electron Digital shall be entitled to increase the Services Fee with effect of the third and each subsequent anniversary of the Commencement Date by giving at least 1 months’ prior written notice to the Customer. Such increase measured as a percentage of then current Services Fee shall not exceed 5 percent.
4.5 The Services Fee will be invoiced per timetable in Schedule 2 – Payment Terms.
#5 – SERVICE LEVELS
5.1 Electron Digital agrees that all outlined actions in the customers package will be completed in a timely and professional manner, allowing for the tolerances outlined in Schedule 1.
5.2 Subject to the Tolerances, in the event that the Customer experiences any interruption to the services provided by Electron Digital such that Electron Digital has failed to meet the Service levels to the degrees set out in Schedule 1, Electron Digital will, upon the Customer’s request, credit the Customer’s account for any time period in which agreed service levels have not been met.
#6 – WARRANTIES AND INDEMNITIES
6.1 Electron Digital warrants to and undertakes with the Customer that:
6.1.1 Electron Digital will use its reasonable efforts to provide the agreed services and to exercise reasonable care and skill and in accordance with the terms of this Agreement;
6.1.2 Electron Digital has full right of power and authority to provide the agreed services to the Customer in accordance with the terms of this Agreement.
6.1.3 Electron Digital has all requisite registrations under [UK data protection legislation] , will maintain such registrations throughout the Term and will comply with the provisions of such legislation.
6.1.4 Measures will be taken to protect any data stored by Electron Digital.
6.2. The Provider shall (and shall ensure that all of its staff) comply with any notification requirements under the DPA and both Parties will duly observe all their obligations under the DPA which arise in connection with the Contract.
The provision of this Condition 6 shall apply for the duration of the Contract and indefinitely after its expiry.
#7 – TERMINATION
7.1 For the purposes of this clause, the following events shall be deemed “acts of default”:
7.1.1 If the Customer fails to pay any moneys due pursuant here to within 30 days of the due date therefore;
If a party commits any material breach of any term of this Agreement (other than one falling under clause 12.1.1 and which, in the case of a breach capable of being remedied, shall not have been remedied within 28 days of a written request by the other party to remedy the same;
7.2 Should the client wish to terminate the contract with Electron Digital, they can do so at any time with 30 days written notice.
7.1.2 if a party shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with or assignment for the benefit of its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver, administrator or liquidator or similar officer is appointed in respect of the other party or all or any part of its business or assets or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction) or if any analogous step is taken in any jurisdiction.
7.2 If the Customer commits an act of default then Electron Digital may:
7.2.1 Forthwith suspend the provision of any agreed services hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement or give rise to any service credits; or
7.2.2 Terminate this Agreement by notice in writing forthwith.
7.3 If Electron Digital commits an act of default then the Customer may terminate this Agreement by notice in writing forthwith.
7.4 Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
7.5 In the event that this Agreement is terminated by Electron Digital in response to a client default under this clause 7 then the Customer shall pay Electron Digital a sum by way of agreed and liquidated damages for Electron Digital losses and damages by reason thereof such sum being equal to 100% for each Month or part of a Month between the date of such termination and the earliest date on which this Agreement could have expired or been terminated by the Customer in accordance with clause 3, or at the discretion of Electron Digital.
7.6 In the event the client terminates outside the specified and agreed term the client is liable for any and all costs incurred in recovery including Debt collection Agent fees @ 20%, interest @ 8% and Late payment charges per invoice under the Late Payments Act.
#8 – CONFIDENTIALITY
8.1 Each of Electron Digital and the Customer hereby undertakes with the other to: 81.1 keep confidential all Confidential Information;
8.1.2 not without the Customer’s written consent disclose the Customer Data in whole or in part to any other person save those of its employees agents and
sub-contractors involved in the provision or receipt of Electron Digitals Services and who have, and to the extent that they have, a need to know the same; and
8.2 The provisions of clause 8.1 above shall not apply to the whole or any part of the
Confidential Information to the extent that it is:
8.2.1 already in the other’s possession without duty of confidentiality on the date of its disclosure;
8.2.2 in the public domain other than as a result of a breach of this clause; or 8.2.3 to the extent that disclosure of such information may be required by any
governmental agency or by operation of law and, in either such case, the party required to make such disclosure shall use reasonable endeavors to notify the other party of such requirement prior to making the disclosure.
8.3 Each of Electron Digital and the Customer hereby undertakes to the other to make all relevant employees agents and sub contractors aware of the confidentiality of the Information and the provisions of this clause 8.
8.4 Freedom of Information and Other Legislation
8.4.1 Electron Digital shall note the Customer’s current and future obligations under the Data Protection Act 1998, Freedom of Information Act 2000, Human Rights Act 1998, Disability Discrimination Act 1995 and Race Relations Act 1976 (all as amended from time to time) and any codes of practice and best practice guidance issues by the Government and the appropriate enforcement agencies.
8.4.2 Electron Digital shall comply with the above legislation in so far as it places obligations upon Electron Digital in the performance of its obligations under this Contract.
8.4.3 Electron Digital shall facilitate the Customer’s compliance with the Customer’s obligations under these provisions and comply with any reasonable request from the Customer for that purpose. The cost of bespoke work required to facilitate the Customer’s compliance will be quoted at the standard hourly rate.
8.4.4 Electron Digital shall act in respect of any person who receives or requests service under this Contract as if Footwork were a public authority for the purpose of the Human Rights Act 1998.
8.4.5 Electron Digital shall note particularly that the Customer may be required to provide information relating to this Contract or Electron Digital to a person in order to comply with its obligations under these provisions.
#9 – INDEMNITY AND INSURANCE
9.1 The Provider shall indemnify and keep indemnified The Customer against injury (including death) to any persons or loss of or damage to any property which may arise out of the act, default or negligence of the Provider, his employees or agents in consequence of the Provider’s obligations under the Contract and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever
in respect thereof or in relation thereto, provided that the Provider shall not be liable for nor be required to indemnify The Customer against any compensation or damages for or with respect to injuries or damage to persons or property to the extent that such injuries or damage result from any act, default or negligence on the part of The Customer or The Customer’s employees or contractors (not being the Provider or employed by the Provider).
9.2 The Customer shall indemnify and keep indemnified the Provider against injury (including death) to any persons or loss of or damage to any property (including the Program) which may arise out of the act, default or negligence of The Customer, its employees or agents in consequence of The Customer’s obligations under the Contract and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto, provided that The Customer shall not be liable for nor be required to indemnify the Provider against any compensation or damages for or with respect to injuries or damage to persons or property to the extent that such injuries or damage result from any act, default or negligence on the part of the Provider or the Provider’s employees or contractors.
9.3 Without limiting its responsibilities under clauses 14.1, the Provider shall insure with a reputable insurance company against all loss of or damage to property and injury to persons (including death) arising out of or in consequence of his obligations under the Contract and against all actions, claims, demands, costs and expenses in respect thereof, save only as is set out in the exceptions in clause 14.4.
9.4 Save as expressly stated elsewhere in the Contract, neither party to this Contract shall be liable to the other for consequential loss or damage, including loss of use or of profit or of contracts.
9.5 The provider shall hold public liability insurance of at least £5 million pounds.
#10 – EQUALITY & NON-DISCRIMINATION
10.1 The Provider shall ensure that it and its employees comply with all relevant legislation against discrimination, including without limitation the Equality Act 2010, as well as official guidance and codes of practice in relation to the same.
#11 – HEALTH AND SAFETY
11.1 The Provider shall take all necessary steps to secure the health, safety and welfare of all persons associated with or affected by the Contract and shall at all times comply with all relevant health and safety legislation.
#12 – FORCE MAJEURE
12.1 Neither party here to shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its sub contractors) including but not limited to act of God, war, insurrection, riot, civil commotion, embargo, explosion, strike, illness, flood, fire or tempest (an ‘Event of Force Majeure’). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
12.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
12.3 If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any pre-existing rights or obligations of either party.
#13 – WAIVER
13.1 The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party
#14 – INVALIDITY AND SEVERABILITY
14.1 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
#15 – ENTIRE AGREEMENT
15.1 This written Agreement (including the Schedules) and any other expressly incorporated document constitute the entire agreement between the parties hereto relating to the subject matter hereof. In entering into this Agreement neither party has relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this clause 13.1 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court, arbitrator or expert may allow reliance on the same as being fair and reasonable.
15.2 No change, alteration or modification to this Agreement shall be valid unless in writing and signed on behalf of both parties hereto.
#16 – SUCCESSORS
16.1 This Agreement shall be binding upon and ensure for the benefit of the successors in title of the parties hereto.
#17 – ASSIGNMENT
17.1 The Customer and Footwork shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder without written consent of the other party.
#18 – LAW
18.1 This Agreement shall be governed by and construed in accordance with English law the parties submit to the exclusive jurisdiction of the courts of England and Wales.
#19 – Agreement
Confirmation options
● Agree to the terms and service agreement via email accepting or the commencement of any agreed service, including welcome calls, design, consultations and any reasonable work which would be considered as the agreement is in play.
Schedule 1 – Tolerances
1. The effects of the failure or interruption of services provided by third parties [who are not Electron Digitals agents];
2. Factors outside of Electron Digital’s reasonable control; any actions or omissions of Customer (including, without limitation, breach of Customer Obligations set out in the agreement) or any third parties [who are not Electron Digital’s agents]
3. Outages and unavailability of social media platforms and marketing communication tools, including but not limited to Facebook, LinkedIn, Twitter, Instagram, mailchimp. Electron Digital is not responsible for any loss of revenue to the customer as a result of such outages.
4. Customer’s equipment and/or third party equipment;
5. Customer requested interruptions to the Services.
6. On the conclusion of any contractual term , Electron Digital reserves the right to bill for any overspending to specified advertisement providers (i.e Google, Facebook etc). Any over or underspend shall be billed or refunded on the final invoice.
Schedule 2 – Fees and Payment terms.
Fees
Service agreement attached with pricing agreed
Invoicing and Payment terms – As agreed and laid out in the service agreement.
1. Invoicing and Payment terms
● Invoices will be issued on the agreed dates, confirmed in service agreement
○ Contract Commencement Date – After email, written or verbal agreement to the service agreement.
○ Invoices will be issued monthly thereafter
● All invoices are payable within 14 days
○ Electron Digital reserves the right to charge late payment with £50 charge.
