STANDARD TERMS & CONDITIONS
1.1 In this Agreement unless the context requires otherwise the following words and expressions used shall have the following meanings:
‘Advertising Regulation’ means any present or future applicable code of practice or adjudication which has a regulatory impact including those of the Committee of Advertising Practice, Broadcast Committee of Advertising Practice or the Advertising Standards Authority and includes any applicable modification, extension or replacement thereof in force from time to time, together with other UK laws, statutes and regulations which are directly applicable to the Services;
‘Brexit Trigger Event’ means any adverse impact on The Growth Architect’s ability and/or ability of its subcontractors to perform the Services in accordance with its terms and the law at any time after the UK ceases to be a Member State of the European Union;
‘Change Order’ has the meaning set out in clause 6.5;
‘Change Request’ has the meaning set out in clause 6.1;
‘Channel’ means any channel through which the Client’s business is advertised such as, but not limited to, Adwords, Facebook Advertising, Twitter Advertising, Content Marketing and other social media channels;
‘Client’ means the client specified in a Proposal;
‘Client Materials’ means any and all materials, documents, records, research, photography, logos, designs, software or other property (including all Intellectual Property rights therein) belonging to the Client, which are provided to The Growth Architect by the Client;
‘Client Personal Data’ means Personal Data Processed by The Growth Architect on behalf of the Client under or in connection with the Services provided under this Agreement;
‘Commencement Date’ means the date of execution of the Agreement by the Parties and if not executed by the Parties on the same date, means the later of the dates of execution;
‘Confidential Information’ mean, in relation to either Party, all information (however recorded or preserved) about or pertaining to the business affairs (including price and cost information, discount structures, sales statistics, business plans and programs, business opportunities, expansion plans, marketing surveys, research and development projects, formulae, inventions, designs, discoveries, know-how, methods, processes, techniques, trade secrets, technical data, business forms and operating procedures) of either Party which is disclosed by a Party to the other Party its sub-contractors or agents or any of their respective employees, or which is acquired by or otherwise comes to the knowledge of the other Party, its sub-contractors or agents or any of their respective employees in the course of performance of the Parties’ respective obligations under this Agreement;
‘Data Subject, Personal Data, Controller, Processor, Process, Processing and Processed’ have the meaning more particularly set out in the applicable Data Protection Law;
‘Data Protection Law’ means all applicable data protection and privacy legislation, regulation and guidance including regulation (EU 2016/679) (the “General Data Protection Regulation” or the (GDPR”) and the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003; and any guidance or codes of the practice issued by any Data Protection Regulator from time to time (all as amended, updated or re-enacted from time to time);
‘Data Protection Regulator’ means the Information Commissioner’s Office and any other supervisory authority with jurisdiction over either Party, and in each case any successor body from time to time;
‘Deliverables’ means the advertising, creative and other materials provided by The Growth Architect through the performance of Services as set out in a Proposal;
‘Fee’ mean the fees chargeable by The Growth Architect and payable by the Client as set out in the Proposal;
‘Fixed Fee’ means the fixed price (including but not limited to Workshop), for those Services specified as being charged as a fixed price in the Proposal;
‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors;
‘Initial Term‘ has the meaning set out in clause 2.1
‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
‘Management Fee’ means the Fee as specified in clause 7.2;
‘Purposes’ means those purposes of Processing set out in the Data Processing Schedule of this Agreement (Data Processing Instructions);
‘Proposal’ means the proposal provided by The Growth Architect and stated to be such which is agreed by the Client and provides details of the Services and the Fees;
‘Services’ mean the services The Growth Architect will provide to the Client as set out in the Proposal, which (where relevant) includes the provision of Deliverables;
‘Standard Contractual Clauses’ shall mean the Standard Contractual Clauses annexed to the European Commission Decision (2010/87/EU);
‘Third Party Services’ has the meaning set out in clause 10;
‘VAT’ value added tax chargeable under English law for the time being and any similar additional tax;
“Written Notice” means notice of termination pursuant to clause 17 of this Agreement which shall be sent by prepaid registered mail to the address(es) of the Party as stated in this Agreement. Proof of posting shall be sufficient proof of notice having been served.
1.2 In this Agreement unless the context requires otherwise:
1.2.1 The recitals to and headings are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement;
1.2.2 The singular includes the plural and vice-versa;
1.2.3 The masculine includes the feminine and vice-versa;
1.2.4 A reference to a clause, sub-clause, paragraph, sub-paragraph, schedule, or appendix is, except where it is expressly stated contrary, a reference to such clause, paragraph, sub-paragraph, schedule, or appendix of this Agreement;
1.2.5 Any words “other” and “including” and the phrase “in particular” shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
1.2.6 A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended, supplemented, substituted, modified, replaced or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.7 This Agreement is made up of the Proposal and these terms and conditions. The Agreement shall be formed where the Proposal is agreed by the Client.
1.3 Where any provision contained in the Proposal conflicts with any provision of the these terms and conditions the Proposal shall take precedence.
2.1 This Agreement shall commence on the Commencement Date. Unless terminated earlier in accordance with clause 17 or this clause, this Agreement shall continue for the delivery of the Services and where the Services are of an ongoing nature for 6 months (“Initial Term”). At the end of the Initial Term the Services shall continue unless and until terminated in accordance with clause 17.
2.2 The Growth Architect and Client may agree upon a new Proposal if required at the end of any Initial Terms but unless agreed the original Proposal shall continue to apply.
3.1 The Growth Architect warrants that:
3.1.1 it is duly authorised to enter into this Agreement and capable of complying with its obligations under this Agreement;
3.1.2 its employees or independent contractors assisting The Growth Architect in its execution of the Services shall have the necessary skills and authority to provide the Services; and
3.1.3 it will provide Services using reasonable skill and care and the Services will conform in all respects with the provisions of the Proposal (or otherwise agreed to by the parties in writing) and any documentation provided by The Growth Architect
3.2 This Agreement concluded between The Growth Architect and the Client is to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.3 The Client warrants that:
3.3.1 it is duly authorised to enter into this Agreement and capable of complying with its obligations under this Agreement;
3.3.2 its employees or independent contractors assisting The Growth Architect in its execution of the Services shall have the necessary skills and authority;
3.3.3 the Client Materials and any other information provided to The Growth Architect for the performance of the Services under this Agreement will not infringe any third party Intellectual Property Rights;
3.3.4 the Client Materials and any other information provided to The Growth Architect for the performance of the Services under this Agreement are accurate and complete in all material respects;
3.3.5 it shall not use any of the Intellectual Property Rights in relation to Client Materials in a manner which is prejudicial to the good name, reputation or image of The Growth Architect;
3.3.6 the Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of The Growth Architect which is not set out in this agreement. Any samples, drawings, descriptive matter, or advertising issued by The Growth Architect and any descriptions or illustrations contained in The Growth Architect’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of this agreement or any other contract between The Growth Architect and the Client for the supply of Services, and
3.3.7 it will comply with all applicable laws and regulations including all Advertising Regulations, the Regulation of Investigatory Powers Act 2000, Competition Act 1998 and the E-Commerce Directive.
4.1 In consideration for the payment of the Fees by the Client, The Growth Architect shall perform the Services and (where relevant) shall supply Deliverables in accordance with the provisions of the Proposal and this Agreement.
4.2 The Growth Architect shall use all reasonable endeavours to meet any performance dates specified in the Proposal. Parties agree that any such dates in the Proposal shall be estimates only and time shall not be of the essence for the provision of the Services and (where relevant) the supply of Deliverables, unless specifically agreed in writing by the parties.
4.3 Where relevant, The Growth Architect will give instructions as to the Client Materials it reasonably requires for the purposes of performing the Services.
4.4 Notwithstanding the provision of clause 6, The Growth Architect shall have the right, upon notice to the Client, to make any changes to the Services in any of the following events:
4.4.1 where it is necessary for The Growth Architect to comply with any applicable law and / or any changes to any applicable law;
4.4.2 if a Brexit Trigger Event occurs.
4.5 The Growth Architect may perform any or all the Services under this Agreement through sub-contractors provided The Growth Architect shall remain liable to the Client for such performance of the Services as if it had carried them out itself.
5.1 The Client shall deliver to The Growth Architect the Client Materials and any other information reasonably requested by The Growth Architect to enable The Growth Architect to perform the Services and/or supply the Deliverables.
5.2 The Client shall:
5.2.1 co-operate with and provide assistance and information to The Growth Architect, as reasonably required by The Growth Architect in sufficient time to facilitate the execution of the Services and delivery of Deliverables in line with any estimated delivery dates or milestones;
5.2.2 be responsible for ensuring the accuracy of all information provided to The Growth Architect;
5.2.3 be obliged as quickly as reasonably possible to comment on and / or approve the Deliverables and any other materials provided under the Services, including (without limitation) advertising copy, search terms and graphic material submitted by The Growth Architect;
5.2.4 be obliged as quickly as reasonably possible to implement changes on websites, in IT systems or where it may otherwise be required by The Growth Architect;
5.2.5 be responsible for implementing the optimisation changes recommended by The Growth Architect;
5.2.6 inform The Growth Architect within 72 hours of changes of domain names, websites, technical setup and any other material information regarding the technical infrastructure which may affect the performance of Services and supply of the Deliverables by The Growth Architect;
5.2.7 sign off and take responsibility for the incorporation of Client Materials into the Deliverables, the Deliverables any other content provided by The Growth Architect in carrying out the Services and comply with the Proposal;
5.2.8 inform The Growth Architect as soon as reasonably practicable should there be any change within its business which may affect The Growth Architect’s ability to perform the Services and deliver the Deliverables;
5.2.9 In the event of any alterations relating to the Client’s website(s) that may in any way affect the Services and / or Deliverables supplied by The Growth Architect, the Client shall provide The Growth Architect with a prior written notice of such alterations. If the alterations are made by the Client or a third party to the Client’s site(s) and Channel performance may be affected, The Growth Architect shall not be held responsible for any adverse impact it might have on the performance of the Services and delivery of Deliverables.
5.3 If the Client fails to undertake those acts and / or provide any materials required under this clause 5 within the agreed or prescribed deadline (and at latest within 5 days of the date requested by The Growth Architect), The Growth Architect shall be entitled to any of the following:
5.3.1 invoice for the Services that it has supplied and/or terminate the Agreement with immediate effect. The Growth Architect shall give written notice of such cancellation to the Client and the Agreement shall terminate at the date specified in the notice;
5.3.2 to the extent that such failure prevents The Growth Architect from performing any Services and/or providing any Deliverables in accordance with this Agreement, The Growth Architect shall be entitled to invoice for the remaining Services agreed between the Parties and / or specified in the Proposal.
5.4 In the event set out in clause 5.3 and / or in any event where the Client does not fulfil its obligations under or in connection with this Agreement, The Growth Architect, in addition to all other rights and remedies, will be relieved of its obligations to the Client and shall not be liable for any Losses incurred by the Client as a result of any such failure.
6.1 If either Party wishes to change the scope or execution of the Services, such Party shall submit details of the requested change to the other Party in writing (‘Change Request’).
6.2 If The Growth Architect originates a Change Request, it shall provide, with the Change Request, written details of the impact which the proposed change will have on:
6.2.1 the Services;
6.2.2 The Growth Architect’s existing Fees;
6.2.3 the timetable of the Services; and
6.2.4 any of the terms of this Agreement and any relevant Proposal.
6.3 If the Client originates a Change Request, The Growth Architect shall, as soon as reasonably practicable after receiving the Change Request, provide a written estimate to the Client setting out:
6.3.1 the likely time required to implement the proposed change;
6.3.2 details of the impact which the proposed change will have on:
6.3.2.1 the Services;
6.3.2.2 The Growth Architect’s existing fees;
6.3.2.3 the timetable of the Services; and
6.3.2.4 any of the terms of this Agreement and any relevant Proposal.
6.4 Unless both Parties consent to a Change Request, there shall be no change to the Services and any other terms of this Agreement and any other relevant Statements of Work.
6.5 If both Parties consent to a Change Request, it shall be signed by the authorised representatives of both Parties, upon which the Change Request becomes a Change Order and shall amend this Agreement.
7.1 In consideration for the provision of the Services by The Growth Architect, the Client shall pay all Fees, and where applicable other expenses and costs as defined in this clause and in accordance with the terms of this Agreement.
7.2 The Management Fee shall be charged monthly on the basis of the points system as defined in the Points List and in the amount set out in the Proposal.
7.4 The Fees exclude:
7.4.1 the cost of any materials specifically required for the supply of the Services; and
7.4.2 the cost of services reasonably and properly provided by third parties and required by The Growth Architect for the supply of the Services such as any Services which require a click spend budget (including but not limited to Facebook, Google, Yahoo, Bing and Linkedin) will be either paid directly to the third party supplier by the Client or The Growth Architect shall send a Request For Funds (RFF) as specified in the Proposal. Payment will be required in advance to ensure the Client has the ability to pay the third party supplier costs.
7.4.3 costs of any additional Services and Deliverables that are not already included within the Client’s monthly Management Fee or Fixed Fee and which the Client wish to receive from The Growth Architect
7.5 The Client shall pay the Management Fee on a monthly basis as set out in the Proposal in advance. At the beginning of each calendar month and before the commencement of work, The Growth Architect shall invoice the Client for the such fees together with expenses, the costs of materials (and VAT, where appropriate), calculated as provided in clause 7.4. Each invoice shall provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.
7.6 The Client shall pay Fixed Fee in the full amount as set out in the Proposal in advance. Before the commencement of work, The Growth Architect shall invoice the Client for such fees together with (if applicable) expenses, the costs of materials (and VAT, where appropriate), calculated as provided in clause 7.4. The invoice shall provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.
7.7 The parties agree that The Growth Architect may review and make changes to the Points List and / or increase the price. The Growth Architect shall give the Client written notice of any such price increase 30 days before the proposed date of that increase. In the event that the Client does not approve the increase it shall notify The Growth Architect of its disapproval in writing 8 days of the receipt of such notice. If the Client does not notify the The Growth Architect of its disapproval in accordance with this clause 7.7, it shall be deemed approved. If the Client notifies its disapproval The Growth Architect shall be entitled to terminate the provision of the Services on 14 days written notice.
7.8 The Client acknowledges that certain Services may involve the licensing of third party Intellectual Property Rights and that the Client may be required to enter into a licence directly with such third party. Unless otherwise expressly stated, all prices shall be exclusive of costs for the acquisition of Intellectual Property Rights for materials to be included in marketing materials, including without limitation, photographs and pictures from third party owners and licensors.
8.1 The Growth Architect shall invoice the Client and requires full payment in advance of carrying out any work unless otherwise specified in the Proposal.
8.2 Unless otherwise stated on the invoice, the Client shall pay each uncontested invoice submitted to it by The Growth Architect, in full and in cleared funds, by the 28th day of the calendar month following receipt of an invoice, receipt to a bank account nominated in writing by The Growth Architect, ensuring the invoice number is stated as a payment reference. Time for payment shall be of the essence of the Agreement.
8.3 Without prejudice to any other right or remedy that it may have, if the Client fails to pay The Growth Architect on the due date:
8.3.1 the Client shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank Plc base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount;
8.3.2 The Growth Architect may suspend all Services where the payment remains outstanding for 14 days until payment has been made in full; and
8.3.3 The Growth Architect shall be entitled to suspend any licences granted to the Client pursuant to clause 14 where the payment remains outstanding for 14 days during any period that any sum is overdue until such time that such sums have been paid in full.
8.4 All sums payable to The Growth Architect under this Agreement shall become due immediately on its termination, despite any other provision. This clause 8.4 is without prejudice to any right to claim for interest under the law, or any such right under this agreement.
8.5 Subject to clause 8.6, all amounts due under this agreement 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). The Growth Architect may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by The Growth Architect to the Client.
8.6 In the event of any contested invoice the Client shall notify The Growth Architect of the details of any conflict within 7 days of the provision of the invoice. To the extent any invoice or part of any invoice is not disputed within that period it shall be an uncontested invoice. The Parties shall engage in good faith discussions to resolve any dispute in relation to a contested invoice. In the event such discussions do not resolve the dispute within 14 days then either party may refer this to the courts or a dispute resolution process.
9.1 In the event of delay in performing the Services or failure to perform the Services in accordance with the provisions of this Agreement, the Client shall notify The Growth Architect of such delay and / or failure in writing (the “Notification”) within 7 days of the day the Client became aware or should have been aware of such delay in performing the Services or failure to perform the Services, and at latest within 30 days of the occurrence of such delay and / or failure.
9.2 In the event that it is possible to remedy or redeliver the Services, and after receiving of the Notification submitted in accordance with clause 9.1, The Growth Architect shall at its own discretion, either remedy or redeliver the Services within 30 days of the receipt of the Notification.
9.3 If after having received the Notification identifying delay or failure, The Growth Architect fails to make all reasonable endeavours to remedy or redeliver the Services within the term set out in clause 9.2, the Client shall be entitled to terminate the Agreement in accordance with clause 17.1.6, provided such failure constitutes material breach.
9.4 For the avoidance of doubt, If the Client does not notify The Growth Architect under the terms and conditions as set out in clause 9.1 of this Agreement, it shall be deemed that the Client has accepted the Services and shall not be entitled to assert remedies based on delay in performing the Services.
9.5 In case the Client terminates the Agreement in accordance with clause 9.3, and subject to the limitations of liabilities set out in clause 12, The Growth Architect’s sole liability shall be to refund any payments received from the Client for the Services that were not conforming with the terms of this Agreement.
9.6 The Growth Architect shall not be liable for any delay in performing the Services (or any part of them) or failure to perform the Services (or any part of them) in accordance with the provisions of this Agreement or for any adverse impact caused to the delivery of the Services (or any part of them) if such delay or failure or adverse impact were caused by or resulted from:
9.6.1 any Force Majeure Event;
9.6.2 delay in and / or failure of the Client to provide The Growth Architect with the Client Materials or any adequate delivery instructions or any other instructions or information relevant to the performance of the Services and delivery of Deliverables;
9.6.3 delay in and / or failure of the Client to give approvals and / or sign offs under or in connection with this Agreement;
10.1 The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’). The Client acknowledges that the Third Party Services will be governed by that third parties’ terms and conditions and that The Growth Architect cannot provide any warranties and guarantees in respect of the Third Party Services.
10.2 The Growth Architect shall not be liable to the Client for any delay in preforming the Third Party Services and/or failure to perform the Third Party Services by its providers.
10.3 Providers of Third Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.
10.4 The Growth Architect shall use reasonable care and skill in recommending the providers of Third Party Services however The Growth Architect shall not be liable for any adverse impact it might have on the provision of the Services and / or for any lack of success that the Client might experience in relation to the Services (weather or not the Client implemented some or all of those recommendations).
11.1 The Client agrees to defend, indemnify and hold harmless The Growth Architect and each of their respective employee, officers, directors and agents from and against any and all third party claims, causes of action, and proceedings (and all resulting, to the extent payable to third parties: penalties, fines, losses, damages, fees, costs, expenses or other liabilities of whatever nature, including settlements costs, and reasonable attorney fee, courts costs, and other expenses) (the “Losses”) incurred in investigation, prosecuting or defending any claims or action, or any threatened claims or action, which is based upon or arises directly or indirectly out of or in connection with any of the following;
11.1.1 any breach of any warranties, representations and this Agreement made by the Client in this Agreement;
11.1.2 any breach of clause 14 (Intellectual Property), clause 15 (Confidentiality) and clause 16 (Data Protection) by the Client, its employees, agents or subcontractors;
11.1.3 any litigation or proceeding naming The Growth Architect or any of its employees, officers or directors as defendant arising from or in connection with the provision of the Services;
11.1.4 any claims or fines imposed by any regulatory body regarding the Client’s advertising activities, and the incorporation of Client Materials into the Deliverables provided that the Client has provided its approval on time and in accordance to this Agreement;
11.1.5 any Losses incurred by The Growth Architect or against The Growth Architect in connection to or resulting from the provision of the Services and / or Deliverables in accordance with this Agreement and Proposal.
11.2 Client’s indemnity obligations are contingent on The Growth Architect providing it with prompt written notice of all claims - and sole control of all defense and settlement activities.
11.3 If any third party claim is made, the Supplier The Growth Architect reserves the right to modify or discontinue, temporarily or permanently, the Services without notice to the Client where it deems this necessary in order to deal with such third party claim. The Growth Architect shall not be liable to the Client or any third party for any modification to or discontinuance of the Services.
12.1 Except as expressly stated in this clause 12, The Growth Architect shall not be liable to the Client for any Losses whatsoever and howsoever arising from or in connection with the provision of the Services and Deliverables, that are made against the Client by any third party.
12.2 Without prejudice to the generality of clause 12.1 above or in respect of any indemnity, neither party shall be liable for any Losses which may be suffered by the other whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:
12.2.1 loss of profits;
12.2.2 loss of sales or business;
12.2.3 loss of agreements or contracts;
12.2.4 loss of anticipated savings;
12.2.5 loss of use or corruption of software, data or information;
12.2.6 loss of damage to goodwill;
12.2.7 any indirect or consequential loss; and
12.2.8 fraudulent clicks on any of the Client’s accounts managed by The Growth Architect.
12.3 To the extent that such liability is not excluded by clauses 12.1, 12.2 and 13, The Growth Architect’s total liability under this Agreement whether in contract or tort (including negligence) or otherwise under or in connection with the Agreement or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise shall be limited to the total sum invoiced for the Services under this Agreement. This clause does not apply where clause 12.5 applies.
12.4 To the extent that such liability is not excluded by clause 12.2, the Client’s total liability under this Agreement whether in contract or tort (including negligence) or otherwise under or in connection with the Agreement or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise shall be limited to £500,000 under this Agreement. This clause does not apply where clause 12.5 applies.
12.5 Neither Party limits its liability for:
12.5.1 Death or personal injury caused by its negligence, or that of its employees, agents or subcontractors
12.5.2 Fraud by it or its employees
12.5.3 Any other act or omission, liability for which may not be limited under applicable law
12.5.4 Breach of any confidentiality related obligations
12.5.4 Breach of any third party intellectual property rights.
12.6 Except as set forth in this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
12.7 This clause 12 shall survive termination of the Agreement.
13.1 The Growth Architect shall not be liable for any of the following:
13.1.1 any downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. The Growth Architect shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. The Client shall cover the fees and any costs of any work undertaken by The Growth Architect or its subcontractors as part of their efforts to assist in remedial actions as described in this clause;
13.1.2 any changes that might affect the Services delivered by The Growth Architect made by the Client or any of its employee, officers, directors and agents, or third parties to the Client’s domain names, websites, links and technical setup if such changes and have not been previously communicated to The Growth Architect in writing;
13.1.3 any Services relating to search engine optimisation, link building, advertisements, banners or sponsorships leading to a minimum number of views, position or frequency in searches on relevant words or otherwise;
13.1.4 to ensure that Services set out in clause 13.1.3 lead to a certain volume of traffic, number of clicks, registrations, purchases or the like;
13.1.5 any URLs dropped or excluded by a search engine for any reason;
13.1.6 any lack of success experienced by the Client in relation the Services based on the recommendations given by The Growth Architect, where during the course of the Services The Growth Architect gives recommendations to the Client, whether or not the Client implemented some or all of those recommendations;
13.1.7 any delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond The Growth Architect’s control (even thought it shall use reasonable endeavours to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click, content marketing, inbound marketing, marketing automation and social media in accordance with the guidelines applicable to the relevant search engine);
13.1.8 any changes or discontinuation of search engines.
13.2 In the event set out in clause 13.1.7 of this Agreement, The Growth Architect reserves the right to make changes to Services without a notice to the Client.
14.1 It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when they provide Client Materials to The Growth Architect for incorporation into the Services and Deliverables. For the terms of this Agreement the Client hereby grants or agrees to procure the grant of (as applicable) an unlimited, nonexclusive, non-transferable licence to The Growth Architect to use such Client Materials for the purposes of providing the Services and supply of Deliverables for the duration of the Agreement.
14.2 The Client warrants and undertakes to The Growth Architect it has the right the use any all Intellectual Property Rights in connection to the Client Materials and (where applicable) the Client warrants that it has obtained from any third party an unconditional assignment without restriction of the legal and beneficial ownership of all existing and future Intellectual Property Rights subsisting in or relating to any Client Materials and that assignment includes the assignment of all those Intellectual Property Rights.
14.3 The Client shall ensure that The Growth Architect’s possession and use of all Client Materials and its content, that has been approved by the Client, in the exercise of its obligations under this Agreement:
14.3.1 shall not infringe any applicable laws, regulations, regulatory policies, guidelines or codes in each case from time to time in force, including all such guidelines and codes issued by statutory, regulatory and industry bodies;
14.3.2 shall not infringe any Intellectual Property Rights or proprietary rights of any third party;
14.3.3 shall not be defamatory, libellous, obscene or otherwise offensive.
14.4 The Growth Architect shall be entitled to reject and / or delete any such Client Materials that is in contrary to the clause 14.3 without incurring any liability.
14.5 Unless expressly stated otherwise in this Agreement or the Proposal, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and Deliverables by The Growth Architect, whether pre-existing or developed during the provision of the Services or created in the future shall remain vested in and be the property of The Growth Architect or the relevant third party from whom The Growth Architect has acquired a right of use with a view to executing the Services.
14.6 Intellectual Property Rights belonging to The Growth Architect shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a previous, separate and express written agreement from The Growth Architect.
14.7 The Intellectual Property Rights in Deliverables and / or materials created by The Growth Architect in respect of keyword/adword accounts including but not limited to source code, campaign structure and creative content shall remain vested in and be the property of The Growth Architect unless otherwise agreed in advance with the Client.
14.8 Whereas The Growth Architect makes software, scripts and ASP services available to the Client as part of the provision of the Services and Deliverables, The Growth Architect grants to the Client a non-exclusive, personal and non-transferable licence to use such materials until the Services under this Agreement cease.
14.9 Whereas The Growth Architect creates content and / or a logo for the Client as part of the provision of the Services and Deliverables for which it is expressly agreed in the Proposal that the Intellectual Property Rights in and connected to that content and / or logo will be owned by the Client, The Growth Architect will execute a formal assignment of such content and / or logo if and where requested by the Client, provided that all sums under this Agreement have been duly paid by the Client.
14.10 The Growth Architect will not use or display Client’s name, figure and logo as a reference on The Growth Architect’s website, or any other types of media and marketing materials, without Client’s written consent in each instance (email is sufficient).
15.1 Each Party (‘Receiver”) acknowledges that any Confidential Information obtained from or relating to the other Party (“Discloser’) is the property of the Discloser and the Receiver shall use its best efforts to keep the Confidential Information secret and confidential.
15.2 Subject to clause 15.5, and during the Term of the Agreement and for 6 years after the termination or expiry of this Agreement for any reason, the Receiver:
15.2.1 shall not use the Confidential Information for a purpose other than the performance of its obligations under this Agreement;
15.2.2 and shall not (without the prior written consent of the Discloser) disclose any part of that Confidential Information to any person other than to those of the Receiver’s employees and agents and sub-contractors who require access to the Confidential Information in order to perform their obligations under this Agreement.
15.3 The Receiver warrants and undertakes that:
15.3.1 its employees, agents or subcontractors shall be bound by confidentiality obligations at least equivalent to the obligations contained in this clause 15;
15.3.2 it shall take precautions to protect against unauthorised disclosure and ensure safe custody of the Discloser’s Confidential Information using at least as stringent precautions and the measures the Receiver takes to protect its own Confidential Information but in any case no less that reasonable measures given the nature of the Confidential Information.
15.4 The Client acknowledges that nothing in this Agreement shall affect The Growth Architect’s right to use as it sees fit any general marketing or advertising intelligence gained by The Growth Architect in the course of this Agreement.
15.5 The provision of this clause 15 shall not apply to:
15.5.1 any Confidential Information which is or becomes publicly available otherwise than through a breach of this Agreement;
15.5.2 any Confidential Information which becomes available to the Receiver otherwise than pursuant to this Agreement and free of any restrictions as to its use or disclosure;
15.5.3 can be shown by the Receiver to the Discloser’s satisfaction to have been known by the Receiver before disclosure by the Discloser to the Receiver;
15.5.4 the disclosure or use of any information which is independently developed by the Receiver without the access to the Confidential Information;
15.5.5 the use or disclosure of the Confidential Information to the extent required by law or by law or by the order of any regulator, taxation authority, government body or court of competent judicial authority;
15.5.6 the use or disclosure of Confidential Information to a Receiver’s professional and legal advisers for the sole purpose of considering the Receiver’s rights and obligations.
15.6 The Receiver shall notify the Discloser promptly in writing upon discovery of any unauthorised use or disclosure of Confidential Information.
16.1 The Parties confirm that they shall comply with the Data Protection Law and where Services comprise of The Growth Architect’s processing of Client Personal Data, The Growth Architect shall be the Data Processor and the Client shall be the Data Controller with respect to such Processing.
16.2 Without prejudice to the generality of clause 16.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to The Growth Architect for the Term and purposes of this Agreement.
16.3 The Parties hereby acknowledge and agree that the provisions of Article 28(3)(a)-(h) of the GDPR are incorporated into this Agreement, with any necessary changes to give full effect to such provisions.
16.4 The Growth Architect shall Process Client Personal Data in accordance with the instructions set out in Data Processing Schedule of this Agreement (Data Processing Instructions).
16.5 Where, by operation of Clause 16.2, The Growth Architect is obliged to provide assistance to the Client, or to third parties at the request of the Client, The Growth Architect will use reasonable endeavours to undertake such assistance which shall be provided at the sole cost and expense of the Client.
17.1 Unless the Parties specifically agree to the contrary in writing, the Parties agree that a Party (the “Non- Defaulting Party”) has the right to cancel the Agreement at any time with immediate effect upon the occurrence of any of the events set out in clauses 17.1.1 – 17.1.6 in relation to the other Party (the “Defaulting Party”). The Non- Defaulting Party shall give written notice of such cancellation to the Defaulting Party and the Agreement shall terminate at the date specified in the notice.
17.1.1 if the Defaulting Party suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
17.1.2 if the Defaulting Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal or enters into any compromise or arrangement with its creditors (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or
17.1.3 if a petition is filed, or a notice is given, or a resolution is passed or an order is made for or in connection with the winding up of that Defaulting Party (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or
17.1.4 if an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Defaulting Party.
17.1.5 being a partnership, the Defaulting Party is dissolved by agreement between the partners or by operation of law;
17.1.6 the Defaulting Party commits a material breach of any of its obligations under this Agreement and it is possible to remedy that breach but the Defaulting Party, after having received written notice identifying the breach and acquiring it to be remedied fails to make all reasonable endeavours to rectify the breach at the earliest opportunity or in any event fails to remedy the breach within 7 days after the receipt of such notice;
17.2 Parties agree that The Growth Architect is, in addition to all other rights and remedies, entitled to terminate this Agreement at any time with immediate effect by giving written notice to the Client:
17.2.1 if the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after the receipt of such notice requesting to make the payment;
17.2.2 under the terms and conditions as set out in clause 5.3.1 of this Agreement
17.2.3 under the terms and conditions as set out in clause 5.3.2 of this Agreement
17.3 Notice of termination shall be sent by prepaid registered mail to the address(es) of the Receiving Party as stated in this Agreement. Proof of posting shall be sufficient proof of notice having been served. Notice will be considered received as of close of business on the date the notice is actually delivered to the Receiving Party.
18.1 Upon expiry or termination of this Agreement for any reason:
18.1.1 all sums payable to The Growth Architect under this Agreement that have accrued up to the date of termination shall become due immediately on its termination, despite any other provision. This clause 18.1 is without prejudice to any right to claim for interest under the law, or any such right under this agreement.
18.1.2 each Party shall be obliged to return all materials received from the other Party to such Party pursuant to the provisions of this Agreement without undue delay and shall on the request of the other Party certify in writing that the same has been done. The Growth Architect shall be obliged to return all materials received from the Client provided the Client has paid all sums due to The Growth Architect under this Agreement;
18.1.3 if relevant, the Client shall be obliged to remove codes, etc, from websites without undue delay. If the Client fails to do so, The Growth Architect shall be entitled to invoice the Client in accordance with its then current Points List for any subsequent Services without such invoicing amounting to a waiver of The Growth Architect’s right to terminate the Agreement;
18.3 Provisions of this Agreement which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination shall remain in full force and effect notwithstanding termination of this Agreement. Notwithstanding the generality of the foregoing, the following clauses shall survive termination of this Agreement:
18.3.1 Clause 3.3 (Client warranties);
18.3.2 Clause 11 (Indemnification)
18.3.3 Clause 12 (Liability);
18.3.4 Clause 13 (Other Liability);
18.3.5 Clause 14 (Intellectual Property Rights); 18.3.6 Clause 15 (Confidentiality);
18.3.7 Clause 16 (Data Protection);
18.3.8 Clause 18 (Consequences of Termination); 18.3.9 Clause 20 (Anti Bribery), and
18.3.10 Clause 21 (Miscellaneous)
19.1 Neither party shall be liable for any failure or delay in performance of this Agreement which is caused by a Force Majeure Event. In the event the Client is the affected Party, the Client shall use all reasonable endeavours to continue to perform its obligations under this Agreement.
19.2 The party whose performance is affected by a Force Majeure Event shall, as soon as reasonably practicable after becoming aware of the Force Majeure Event, provide a written notice to the other Party, giving details of the Force Majeure Event, its likely duration and the manner and extent to which its obligations are likely to be prevented or delayed.
19.3 If any Force Majeure Event occurs and provided that if any Force Majeure Event continues for a period of or exceeding 2 months, the non-affected Party shall have the right to terminate this Agreement immediately on written notice to the affected Party.
20.1 Both parties shall:
20.2 comply with the Bribery Act 2010 and any guidance issued by any governmental department relating to such legislation (“Bribery Act”);
20.3 not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the Bribery Act if such activity, practice or conduct had been carried out in the UK;
21.1 If there is any discrepancy between the Proposal and the terms and conditions, the Proposal
shall take precedence.
21.2 Assignment. Neither party will assign or transfer all or any part of its rights or obligations under this Agreement without the prior written consent of the other party.
21.3 No partnership or agency. 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. The Growth Architect shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.
21.4 Non-Poach. During the Term of the contract and for a period of 12 months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone designated by The Growth Architect to work on or in connection with the Services.
21.5 Waiver. The failure of either Party to enforce or to exercise at any time or for any period of time any right pursuant to these terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that Party’s right later to enforce or to exercise it.
21.6 Severance. If any term of these terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from these terms and shall in no way affect the legality, validity or enforceability of the remaining terms which shall continue in full force and effect and be binding on the parties to the contract.
21.7 Variation. Any valid alteration to or variation of these terms must be in writing signed on behalf of each of the Parties by duly authorised officers.
21.8 Third Party Rights. A person who is not a Party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
21.9 Notices. All notices must be in writing to The Growth Architect Ltd at the address stated in this Agreement or such address as is advised by The Growth Architect, and to the Client at the address stated in this Agreement, unless advised by the Client in writing to use a different address.
21.10 Entire agreement. The Parties acknowledge and agree that this agreement supersedes any prior agreement, understanding or arrangement between the Parties, whether made orally or in writing and constitutes the entire agreement between The Growth Architect and the Client relating to the Services.
21.11 Law and jurisdiction. This agreement and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with English law and the Parties hereby agree to submit to the exclusive jurisdiction of the English courts.
21.12 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
DATA PROCESSING SCHEDULE
DATA PROCESSING INSTRUCTIONS
