This document is a framework set of standard terms and conditions under which Sharper B2B Marketing Ltd will provide to You - Our Client, Our services as detailed in a Statement of Work.
Our Statement of Work will outline the scope of the services we are providing, the duration, the initial price and any special conditions relating to the project. The Statement of Work is designed to be a live document so may be amended from time to time in line with the conditions of this Agreement.
The following definitions and rules of interpretation apply in this agreement.
Your Equipment: any equipment, systems, cabling or facilities provided by You and used directly or indirectly in the supply of the Services.
Deliverables: all Documents, products and materials developed b Us or Our agents, subcontractors, consultants and employees in relation to the Services in any form.
Services: Our services which we provide to You as detailed in the Statement of Work.
Statement of Work: the document setting out the specific Services We will provide to You, the Initial Price, the scope of the Services, the duration and any other special conditions.
Project Deadlines: any time critical deadlines which You require Our Services delivered by.
Initial Price: The price for the Services as set out in the Statement of Work which may be amended during the course of delivering the Services.
Invoice: The document detailing the completed Services and the Final Price.
Final Price: The total amount for the Services as detailed in the Statement of Work and as amended during the provision of the Services as allowed for under Clause 5.
Our Equipment: any equipment, including tools, systems, cabling or facilities, provided by Us or Our subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to You.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Personal Data: is information which can be used to directly identify a natural person or can be used in connection with other information to indirectly identify a natural person.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, 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 rights, topography 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.
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) and that person's personal representatives, successors and permitted assigns.
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 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to any party shall include that party's personal representatives, successors and permitted assigns.
1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.10 A reference to writing or written includes fax and e-mail.
1.11 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.12 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.
1.13 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 & Duration
2.1 We shall provide the Services to You under the terms and conditions of this agreement.
2.2 We shall provide the Services to the You as specified in the Statement of Work.
2.3 The Services supplied under the Statement of Work will be supplied for the duration defined by the Statement of Work or as extended with the written consent of both parties, unless this agreement is terminated in accordance with clause 11.
3. Our Obligations
3.1 We shall use Our best endeavours to provide You the Services.
3.2 We will use Our best reasonable endeavours to meet any Project Deadlines specified in the Statement of Work, but any such dates shall be estimates only and time for performance by Us shall not be of the essence of this agreement.
3.3 We shall use Our best endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply in respect of the delivery of the Services and that have been communicated to Us under clause 4.1(d), provided that We shall not be liable under this agreement if, as a result of such observation, We are in breach of any of its obligations under this agreement.
4. Your Obligations
4.1 You shall:
(a) co-operate with Us in all matters relating to the Services;
(b) provide, for Us, Our agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to Your premises, office accommodation, data, social media channels, back-end systems and other facilities as reasonably required by Us for the delivery of the Services;
(c) provide Us, in a timely manner, detailed information relating to the Services as set out in the Statement of Work such as, but not limited to, end-client documentation, employee data, financial data and any other materials and information that We may reasonably require for the delivery of the Services;
(d) inform Us of all health and safety rules and regulations and any other reasonable security requirements that apply at any of Your premises or the premises or site where the Services are to be delivered;
(e) ensure that all Your Equipment is in good working order and suitable for the purposes for which it is used [in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
(f) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, in all cases before the date on which the Services are to start;
(g) keep and maintain any of Our Equipment which forms part of the Services in accordance with Our instructions as notified or amended from time to time.
(h) You warrant that in respect of clause 4.1(g) You will not dispose of or use Our Equipment other than in accordance with Our written instructions or authorisation and that You will ensure We have access to collect, retrieve or remove Our Equipment from any premises You have reasonable control over;
4.2 If the performance of Our obligations under this agreement is prevented or delayed by any act or omission by You, Your agents, subcontractors, consultants or employees, We shall not be liable for any costs, charges or losses sustained or incurred by You that arise directly or indirectly from such prevention or delay.
4.3 You shall be liable to pay to Us, on demand, all reasonable costs, charges or losses sustained or incurred by Us (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from Your fraud, negligence, gross negligence, failure to perform or delay in the performance of any of Your obligations under this agreement, subject to Us confirming such costs, charges and losses to You in writing.
4.4 You shall not, without Our prior written consent, at any time from the date of this agreement or duration of the Statement of Work to the expiry of 12 months after the last date of supply of the Services or termination of this agreement for whatever reason, solicit or entice away from Us or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Ours in the provision of the Services.
4.5 Any consent given by Us in accordance with clause 4.4 shall be subject to You paying to Us a sum equivalent to 20% of the then current annual remuneration of Our employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by You to that employee, consultant or subcontractor.
5. Change Control
5.1 If You request a change to the scope or execution of the Services detailed in the Statement of Work, We shall, within a reasonable time, provide a written estimate to You of:
(a) the likely time required to implement the change;
(b) any necessary variations to Our charges arising from the change;
(c) the likely effect of the change on the delivery of the Services; and
(d) any other impact of the change on this agreement.
5.2 If You wish Us to proceed with the change, We have no obligation to do so unless and until the parties have agreed the necessary variations to Our charges, the Services and any other relevant terms of this agreement to take account of the change and this agreement has been varied in accordance with clause 14.
5.3 Notwithstanding clause 5.2, We may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If We request a change to the scope of the Services for any other reason, You shall not unreasonably withhold or delay consent to it.
5.4 We may charge for the time it spends assessing a request for change from You on an hourly basis in accordance with clause 6.
6. Charges and Payment
6.1 The Statement of Work will detail the Initial Price for the Services. The Statement of Work will set out the payment process for the Services and the dates and conditions that payments are required.
6.2 Following the completion of the Services set out in the Statement of Work we will issue an Invoice detailing the Final Price, less any payments already made, and the charges which You shall pay in line with the Payment Terms detailed in the Invoice. The Statement of Work will specify whether the charges shall be on an hourly basis, a fixed price basis or a combination of both.
6.3 You shall pay the Final Price of each Invoice submitted by Us, in full and in cleared funds, in line with the Payment Terms detailed in the Invoice.
6.4 Without prejudice to any other right or remedy that it may have, if You fail to pay Us in line with the Payment Terms:
(a) You shall pay interest on the overdue amount at the rate of 4% per annum above The Bank Of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date listed in the Payment Terms until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount; and
(b) We may suspend all Services until payment has been made in full.
6.5 All sums payable to Us under this agreement shall become due immediately on its termination, despite any other provision. This clause 6 is without prejudice to any right to claim for interest under the law, or any such right under this agreement.
6.6 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).
7.1 Both parties undertake not, at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to either party, by either party, in the course of delivering the Services. The provisions of this clause 7.1 extend to the employees, agents, consultants or subcontractors of either Party or of any member of the group of companies to which either party may belong.
8.1 Nothing in this agreement limits or excludes Our liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
8.2 Subject to clause 8.1, We shall not be liable to You, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information;
(g) any indirect or consequential loss.
8.3 Subject to clause 8.1 and clause 8.2, Our total liability to You, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to:
(a) five (5) times the value of the Initial Price as stated in the Statement of Work; and
(b) in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period, the equivalent of the total charges paid by the Customer in that period.
8.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
9. Data Protection
9.1 You acknowledge that We may have access to Your computer and communications systems and networks for the purposes of providing the Services. If any of Your data is made available or accessible to Us, Our employees, agents or contractors, pertaining to Your business or financial affairs, or to Your projects, transactions, clients or customers, We will not store, copy, analyse, monitor or otherwise use that data except for the purposes of providing the Services as set out in the Statement of Work.
9.2 We will comply fully with all applicable laws, regulations, and government orders relating to Personal Data and data privacy with respect to any such data that We receive or have access to in connection with the provision of Our Services to You. We will otherwise protect Personal Data and will not use, disclose, or transfer across borders such Personal Data except as necessary to perform our Services or as authorised by a data subject or in accordance with applicable law. To the extent that We receive Personal Data related to the performance of Our Service, We will protect the privacy and legal rights of Your personnel, clients, customers and contractors.
9.3 You acknowledge and agree that Your details may be submitted to a credit reference agency, and personal data will be processed by and on behalf of Us in connection with the Services.
10. Intellectual Property Rights
10.1 Our Intellectual Property will remain Our sole property that You may only use under licence, with the prior written consent of one of Our Directors.
10.2 Your Intellectual Property will remain Your sole property and We will only be allowed to use it under Licence, with the prior consent of one of Your Directors.
11.1 Termination provisions are outlined in the Statement of Work unless any of the provisions of clause 10.2 apply.
11.2 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 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 being notified in writing to make such payment;
(b) 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 7 days after being notified in writing to do so;
(c) 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;
(d) 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 being a company or limited liability partnership is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or being an individual is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or being a partnership has any partner to whom any of the foregoing apply;
(e) 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 its creditors other than being a company 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 that other party;
(f) 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 that other party being a company 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 that other party;
(g) 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 other party being a company;
(h) the holder of a qualifying floating charge over the assets of that other party being a company has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) the other party being an individual is the subject of a bankruptcy petition or order;
(k) 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;
(l) 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 11.2(d) to clause 11.2(k) (inclusive);
(m) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(n) the other party being an individual dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or
(o) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
11.3 For the purposes of clause 11.2(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:
(a) a substantial portion of this agreement; or
(b) any of the obligations set out in clauses 4, 5, 6, 7 or 8.
over the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
12. Consequences of Termination
12.1 On termination or expiry of this agreement:
(a) You shall immediately pay to Us all of Our outstanding unpaid invoices and interest, based only on work completed and accrued but not invoiced, and in respect of Services supplied but for which no invoice has been submitted, We may submit an invoice, which shall be payable immediately on receipt;
(b) You shall, within a reasonable time, return all of the Our Equipment and Deliverables. If the You fail to do so, then We may enter Your premises and take possession of them. Until they have been returned or repossessed, You shall be solely responsible for their safe keeping;
(c) the provisions of clause 10 shall come into effect.
(d) the following clauses shall continue in force: clause 4, clause 6, clause 7, clause 8, clause 10, clause 12.1, clause 22 and clause 23.
12.2 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.
13. Force Majeure
13.1 Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident; and
(g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
(h) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
(i) interruption or failure of utility service.
13.2 Provided it has complied with clause 13.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
13.3 The corresponding obligations of the other party will be suspended, and it’s time for performance of such obligations extended, to the same extent as those of the Affected Party.
13.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event [but no later than 7 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
13.5 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 2 months, the party not affected by the Force Majeure Event may terminate this agreement by giving 1 months’ written notice to the Affected Party.
13.6 If the Force Majeure Event prevails for a continuous period of more than 6 months, either party may terminate this agreement by giving 1 months’ written notice to all the other parties. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.
Subject to clause 5, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16. 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.
17.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
17.2 If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18. Entire Agreement
18.1 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.
18.2 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.
18.3 Nothing in this clause shall limit or exclude any liability for fraud.
19. Assignment and Other Dealings
19.1 This agreement is personal to You and You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of Your rights and obligations under this agreement.
19.2 We may at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of Our rights and obligations under this agreement, provided that We obtain prior written consent from You which shall not be unreasonably withheld.
20. No Partnership or Agreement
20.1 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.
20.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
21. Third Party Rights
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
22.1 A notice given to a party under or in connection with this agreement:
(a) shall be in writing and in English or accompanied by an accurate translation into English;
(b) shall be signed by or on behalf of the party giving it;
22.2 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
22.3 A notice given under or in connection with this agreement is not valid if sent by e-mail.
23.1 This agreement may be executed in any number of counterparts, each of which when executed [and delivered] shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
24. Governing Law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).