Terms
These Terms and Conditions, together with the Commercial Terms Sheet referred to herein, collectively form the “Agreement” between Journey Further and the Client for the Services (as defined below) and Deliverables (as defined below)”. The only exception to this is if Journey Further and the Client have entered into a bespoke agreement for the same purposes (in which case this bespoke agreement shall apply instead).
1. Definitions and interpretation
1.1 Definitions:
(a) Applicable Laws: refers to all applicable laws, statues, regulations and codes from time to time in force (including on advertising rules, anti-bribery and corruption requirements and anti-slavery and human trafficking requirements).
(b) Business Day: refers to a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
(c) Business Hours: refers to the time period from 09:00 – 17:30 during a Business Day.
(d) Calendar Day: refers to each day in the week including Saturday, Sunday or public holiday in England.
(e) Change Order: has the meaning given in clause 5.
(f) Client Materials: refers to all materials, documents, specifications and data including the Client’s website that is shared with Journey Further.
(g) Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
(h) Data Protection Legislation: refers to the UK GDPR, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any other European Union legislation (such as the General Data Protection Regulation 2016/679) relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authorities.
(i) Deliverables: refers to all documents, products and materials (such as artwork, storyboards, scripts, presentations, blogs, graphics, photographs, films) developed by Journey Further’s Personnel as part of or in relation to the Services in any form, including without limitation data, reports and specifications (including drafts) as required pursuant to the Agreement, as described in Commercial Terms Sheet.
(a) Fees: refers to the fees payable by the Client for the supply of the Services by Journey Further, as set out in Commercial Terms Sheet.
(j) Intellectual Property Rights (“IPR”): refers to patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
(k) Journey Further’s Personnel: refers to the team that shall be supporting the Client; key personnel are identified in Commercial Terms Sheet.
(l) Services: refers to the services as described in Commercial Terms Sheet.
(m) Third-Party Costs: refers to any third-party contractors or subscriptions for accounts which Journey Further has informed the Client that it will have to pay for on its behalf in order to perform the Services.
(n) UK GDPR: refers to the UK’s version of the European Union’s General Data Protection Regulation 2016/679 which has been amended and transposed into the UK law by way of the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419).
1.2 Interpretation:
(a) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
(b) 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.
(c) A reference to writing or written includes email.
2. Commencement and Term
2.1 The Agreement shall commence on the Start Date (as defined in the Commercial Terms Sheet) for the Term, and (subject to a proportional fee increases) shall continue annually thereafter (as a “Renewal Term”), unless terminated on thirty (30) Calendar Days’ prior written notice (such notice to expire at the end of the Term or the Renewal Term) or in accordance with clause 11.
3. Supply of Services
3.1 In supplying the Services, Journey Further shall perform the Services with skill, care and diligence and shall co-operate with the Client in matters relating to the Services.
3.2 Journey Further shall endeavour to:
(a) ensure that Journey Further’s Personnel involved in the provision of the Services have suitable skills and experience to enable them to perform the tasks assigned to them;
(b) provide a suitably qualified replacement for such Journey Further’s Personnel required due to absence; and
(c) make minimal changes to Journey Further’s Personnel throughout the Term (or Renewal Term).
3.3 Journey Further may engage a third party to provide part of the Services as a sub-contractor of Journey Further and will notify the Client as and when necessary. In the event that Journey Further is required to engage a third party, the Client shall be required to comply with clause 9.
3.4 In the event of any of Journey Further’s Personnel being placed on secondment with the Client, Journey Further shall remain the employer of Journey Further’s Personnel and shall be responsible for the remuneration and tax in respect of these individuals.
3.5 If it becomes apparent that the initial instructions from the Client were incomplete or inaccurate, Journey Further and the Client shall review and amend this Agreement by way of a Change Order.
4. Obligations of the Client
4.1 The Client acknowledges that Journey Further’s ability to provide the Services is dependent on the full and timely co-operation of the Client and to enable Journey Further to provide the Services, the Client shall:
(a) provide access to its systems, website, media/advertising accounts and data (such as analytics data) as may reasonably be requested by Journey Further and agreed with the Client in writing in advance, for the purposes of the Services; and
(b) not access (or allow a third party to access) any such media/advertising accounts except in the following instances:
(i) the Client wishes to review the account set-up, campaign structure and charges to understand activity and performance;
(ii) the Client wishes to build and edit test campaigns and audiences with the objective to understand future opportunities; and/or
(iii) the Client wishes to boost organic posts through Instagram and Facebook with the view of increasing the reach of organic content (for which the budget and management shall be separate from any media spend/budget allocated to Journey Further to perform its Services);
(c) not engage its internal resources (except as reflected in clause 4.1(b)) or any other supplier to perform the same or similar Services as that being provided by Journey Further;
(d) provide such necessary information for the provision of the Services as Journey Further may reasonably request;
(e) grant Journey Further authority to access the Client’s website statistics for the purposes of reporting increases in traffic;
(f) grant Journey Further the right to place tracking code on the Client’s website to enable Journey Further to provide its Services;
(g) ensure that all information and materials provided by or on behalf of the Client on or in connection with the Client’s website is accurate and complete; and
(h) inform Journey Further of any changes made to the Client’s website whilst Journey Further is performing the Services. Journey Further shall not be responsible for any changes made to the Client’s website by third parties (not engaged by Journey Further) that may adversely affect the search engine rankings of the website.
4.2 The Client shall retain full ownership of all media/advertising accounts and shall be responsible for paying for media spend directly to the respective media owners. Journey Further shall be permitted to arrange, organise and instruct the publication of adverts via the media owners under the general or specific instruction of the Client.
5. Change control
5.1 Either party may propose changes to the scope or execution of the Services, but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A “Change Order” shall be a document setting out the proposed changes and the effect those changes will have on the Services, Fees and any terms of this Agreement.
6. Ownership of IPR
6.1 Journey Further shall retain ownership of all of its IPRs. Journey Further grants the Client a licence to use Journey Further’s IPR for the limited purposes of receiving the Services during this Agreement.
6.2 The Client shall retain ownership of all of its IPR including in the Client Materials. The Client grants Journey Further a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the purpose of providing the Services to the Client in accordance with this Agreement.
6.3 Journey Further hereby transfers all IPR generated for the Client in the Deliverables (except its own IPR) at the expiration or termination of this Agreement once its Fees have been fully paid.
7. Confidentiality
7.1 Each party recognises that under this Agreement it may receive trade secrets and/or confidential or proprietary information belonging to the other. Subject to the exclusions detailed in clause 7.3, all such information which is designated as confidential, or which is otherwise clearly confidential in nature constitutes “Confidential Information”.
7.2 Each party undertakes that it shall not at any time during the Agreement, and for a period of two (2) years after termination or expiry of the Agreement, disclose to any person any Confidential Information (including information concerning the business, affairs, customers or suppliers of the other party), except as permitted by clause 7.3.
7.3 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives, contractors, sub-contractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, sub-contractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 7;
(b) if it is in the public domain or becomes public knowledge other than as a result of a breach of this Agreement or any other duty of confidentiality relating to that information; or
(c) as may be required by Applicable Laws, a court of competent jurisdiction or any governmental or regulatory authority provided that the disclosing party promptly notifies and consults with the other party in advance in relation to the timing and content of such a disclosure (unless prohibited from doing so by Applicable Law).
7.4 Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under the Agreement.
8. Data protection
8.1 Both parties shall comply with all applicable requirements included in the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
8.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and Journey Further is the data processor. The Commercial Terms Sheet sets out the scope, nature and purpose of processing by Journey Further, the duration of the processing and the types of personal data and categories of data subject.
8.3 Without prejudice to the generality of clause 8.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Journey Further and/or lawful collection of the personal data by Journey Further on behalf of the Client for the duration and purposes of this Agreement.
8.4 Without prejudice to the generality of clause 8.1, Journey Further shall, in relation to any personal data processed in connection with the performance by Journey Further of its obligations under this Agreement:
(a) process that personal data only on the documented written instructions of the Client which are set out in Commercial Terms Sheet unless Journey Further is required by Applicable Law to otherwise process that personal data;
(b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) without prejudice to clause 8, ensure that all of Journey Further’s Personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
(d) not transfer any personal data outside of the UK and/or the EEA unless the prior written consent of the Client has been obtained and appropriate transfer mechanisms have been put to enable the lawful transfer of personal data across borders;
(e) may not authorise any sub-contractors to process personal data without the Client’s prior written consent, and subject at all times to ensuring that Journey Further enters into a written agreement with its sub-contractors that contain terms substantially the same as those set out in this clause 8, in particular in relation to requiring appropriate technical and organisational data security measures;
(f) assist the Client in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(g) notify the Client without undue delay on becoming aware of a personal data breach;
(h) at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination or expiry of the Agreement unless required by Applicable Law to store the personal data;
(i) maintain complete and accurate records and information to demonstrate its compliance with this clause 8;
(j) in the event that a personal data breach has occurred and upon written request from the Client, allow for the Client’s auditors to conduct a data protection compliance audit of Journey Further; and
(k) immediately inform the Client if, in the opinion of Journey Further, an instruction provided by the Client infringes the Data Protection Legislation.
8.5 The sub-contractors that are approved as of the Start Date of this Agreement are set out in Commercial Terms Sheet. Journey Further remains fully liable to the Client for all acts or omissions of any sub-contractors appointed by it.
9. Fees and payment
9.1 In consideration of the provision of the Services, the Client shall pay Journey Further the Fees in accordance with this clause 9 and Commercial Terms Sheet.
9.2 All amounts payable by the Client exclude amounts in respect of Value Added Tax (“VAT”) which the Client shall additionally be liable to pay to Journey Further at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
9.3 Journey Further reserves the right to issue the first month’s invoice pro rate should the Start Date of the Services occur part way through the month.
9.4 Journey Further shall submit invoices for its Fees plus VAT to the Client on a monthly basis. The Client shall pay each invoice under this clause 9.4 within thirty (30) Calendar Days of receipt to a bank account nominated in writing by Journey Further.
9.5 Journey Further shall submit separate invoices for Third-Party Costs plus VAT to the Client on the first Business Day of each month. The Client shall be required to pay each invoice under clause 9.5 immediately.
9.6 The Client shall be responsible for paying for media spend for media/advertising accounts directly to the respective media owners.
9.7 If the Client fails to make a payment due to Journey Further for a period in excess of thirty (30) Calendar Days, then Journey Further may (a) suspend the Services and/or (b) without limiting Journey Further’s remedies under this Agreement, require the Client to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time.
9.8 Journey Further may at any time, set off any liability of the Client to Journey Further against any liability of Journey Further to the Client, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. Any exercise by Journey Further of its rights under this clause will be without prejudice to any other rights or remedies available to Journey Further under this Agreement or otherwise.
10. Liability
10.1 References to liability in this clause 10 includes every kind of liability arising under or in connection with this Agreement including but not limited to liability in Agreement, tort (including negligence), misrepresentation, restitution or otherwise.
10.2 Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) any other liability which cannot be excluded or limited due to Applicable Law.
10.3 Journey Further accepts no liability for loss of revenue, loss of profit, loss of anticipated savings, loss of goodwill, injury to reputation, loss of business opportunity, loss of service, unavailability of files, damage, corruption or loss of data, misuse of equipment by the Client, failure of any externally managed equipment or communications devices or other services deemed to be beyond Journey Further’s control, indirect, consequential or special loss or damage.
10.4 Neither party shall be liable for any indirect or consequential losses arising out of any claim brought by the other party.
10.5 Subject to clauses 10.2 and 10.3, the total liability of each party arising under this Agreement shall in no event exceed the Fees to be paid over a period of twelve (12) months preceding the claim.
10.6 The provisions of this clause 10 shall apply to the fullest extent of the law, whether in Agreement, statue, tort (such as negligence) or otherwise.
11. Termination
11.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect at any time by giving written notice to the other party if:
(a) the other party commits a material breach of a term in this Agreement and (if such breach is remediable) fails to remedy that breach within thirty (30) Calendar Days after being notified to do so;
(b) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(c) the other party takes any step or action in connection with it entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
(d) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(e) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
11.2 For the purposes of this clause 11, “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 substantial portion of this Agreement; or any of the obligations set out in clause 3 (supply of Services), clause 4 (obligations of the Client), clause 7 (confidentiality), clause 8 (data protection) and clause 9 (Fees and payment). In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
11.3 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.
11.4 On termination or expiry of this Agreement, the Client shall be required to pay all Fees due in accordance with clause 9. Journey Further shall subsequently, upon the request of the Client, deliver all Deliverables whether or not then complete and return all of the Client Materials to the Client. Until they have been delivered or returned, Journey Further shall be solely responsible for the safe keeping of all Deliverables and the Client Materials in its possession and will not use them for any purpose not connected with this Agreement.
11.5 On termination or expiry of this Agreement, the following clauses shall continue in force: clause 1 (interpretation and definitions), clause 3 (supply of Services), clause 4 (obligations of the Client), clause 6 (ownership of IPR), clause 7 (confidentiality), clause 8 (data protection), clause 9 (Fees and payment), clause 10 (liability), this clause 11 (termination) and clause 12 (general).
11.6 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 this Agreement which existed at or before the date of termination or expiry.
12. General
12.1 Applicable Laws. Each party shall ensure to comply with Applicable Laws at all times.
12.2 Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for thirty (30) Calendar Days, the party not affected may terminate the Agreement by giving seven (7) Calendar Days’ written notice to the affected party.
12.3 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 to be the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
12.4 Non-solicitation. Neither party shall, without the other party’s prior written consent (directly or indirectly, for the benefit of itself or any other person), during the Term (and any Renewal Term) and for a period of twelve (12) months after its expiry or termination for any reason, solicit as an employee or consultant any employee of the other party who is or has been engaged in working (whether it be instructing or supplying Services) under the Agreement other than by means of a national advertising campaign open to the public and not specifically targeted at any of the staff of the other party.
12.5 Entire agreement. This Agreement and any documents referred in it, 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.
12.6 Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives) in accordance with clause 5 (change control).
12.7 Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.8 Severance. If any provision or part-provision of the 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 12.8 shall not affect the validity and enforceability of the rest of the Agreement.
12.9 Notices.
(a) Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
(ii) sent by email to the address specified in the Commercial Terms Sheet.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
12.10 Assignment. Neither party may assign, charge, transfer or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the other party.
12.11 Third party rights. Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
12.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
12.13 Governing law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the law of England and Wales.
12.14 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in arising out of or in connection with this Agreement or its subject matter or formation.
1. Definitions and interpretation
1.1 Definitions:
(a) Applicable Laws: refers to all applicable laws, statues, regulations and codes from time to time in force (including on advertising rules, anti-bribery and corruption requirements and anti-slavery and human trafficking requirements).
(b) Business Day: refers to a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
(c) Business Hours: refers to the time period from 09:00 – 17:30 during a Business Day.
(d) Calendar Day: refers to each day in the week including Saturday, Sunday or public holiday in England.
(e) Change Order: has the meaning given in clause 5.
(f) Client Materials: refers to all materials, documents, specifications and data including the Client’s website that is shared with Journey Further.
(g) Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
(h) Data Protection Legislation: refers to the UK GDPR, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any other European Union legislation (such as the General Data Protection Regulation 2016/679) relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authorities.
(i) Deliverables: refers to all documents, products and materials (such as artwork, storyboards, scripts, presentations, blogs, graphics, photographs, films) developed by Journey Further’s Personnel as part of or in relation to the Services in any form, including without limitation data, reports and specifications (including drafts) as required pursuant to the Agreement, as described in Commercial Terms Sheet.
(a) Fees: refers to the fees payable by the Client for the supply of the Services by Journey Further, as set out in Commercial Terms Sheet.
(j) Intellectual Property Rights (“IPR”): refers to patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
(k) Journey Further’s Personnel: refers to the team that shall be supporting the Client; key personnel are identified in Commercial Terms Sheet.
(l) Services: refers to the services as described in Commercial Terms Sheet.
(m) Third-Party Costs: refers to any third-party contractors or subscriptions for accounts which Journey Further has informed the Client that it will have to pay for on its behalf in order to perform the Services.
(n) UK GDPR: refers to the UK’s version of the European Union’s General Data Protection Regulation 2016/679 which has been amended and transposed into the UK law by way of the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419).
1.2 Interpretation:
(a) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
(b) 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.
(c) A reference to writing or written includes email.
2. Commencement and Term
2.1 The Agreement shall commence on the Start Date (as defined in the Commercial Terms Sheet) for the Term, and (subject to a proportional fee increases) shall continue annually thereafter (as a “Renewal Term”), unless terminated on thirty (30) Calendar Days’ prior written notice (such notice to expire at the end of the Term or the Renewal Term) or in accordance with clause 11.
3. Supply of Services
3.1 In supplying the Services, Journey Further shall perform the Services with skill, care and diligence and shall co-operate with the Client in matters relating to the Services.
3.2 Journey Further shall endeavour to:
(a) ensure that Journey Further’s Personnel involved in the provision of the Services have suitable skills and experience to enable them to perform the tasks assigned to them;
(b) provide a suitably qualified replacement for such Journey Further’s Personnel required due to absence; and
(c) make minimal changes to Journey Further’s Personnel throughout the Term (or Renewal Term).
3.3 Journey Further may engage a third party to provide part of the Services as a sub-contractor of Journey Further and will notify the Client as and when necessary. In the event that Journey Further is required to engage a third party, the Client shall be required to comply with clause 9.
3.4 In the event of any of Journey Further’s Personnel being placed on secondment with the Client, Journey Further shall remain the employer of Journey Further’s Personnel and shall be responsible for the remuneration and tax in respect of these individuals.
3.5 If it becomes apparent that the initial instructions from the Client were incomplete or inaccurate, Journey Further and the Client shall review and amend this Agreement by way of a Change Order.
4. Obligations of the Client
4.1 The Client acknowledges that Journey Further’s ability to provide the Services is dependent on the full and timely co-operation of the Client and to enable Journey Further to provide the Services, the Client shall:
(a) provide access to its systems, website, media/advertising accounts and data (such as analytics data) as may reasonably be requested by Journey Further and agreed with the Client in writing in advance, for the purposes of the Services; and
(b) not access (or allow a third party to access) any such media/advertising accounts except in the following instances:
(i) the Client wishes to review the account set-up, campaign structure and charges to understand activity and performance;
(ii) the Client wishes to build and edit test campaigns and audiences with the objective to understand future opportunities; and/or
(iii) the Client wishes to boost organic posts through Instagram and Facebook with the view of increasing the reach of organic content (for which the budget and management shall be separate from any media spend/budget allocated to Journey Further to perform its Services);
(c) not engage its internal resources (except as reflected in clause 4.1(b)) or any other supplier to perform the same or similar Services as that being provided by Journey Further;
(d) provide such necessary information for the provision of the Services as Journey Further may reasonably request;
(e) grant Journey Further authority to access the Client’s website statistics for the purposes of reporting increases in traffic;
(f) grant Journey Further the right to place tracking code on the Client’s website to enable Journey Further to provide its Services;
(g) ensure that all information and materials provided by or on behalf of the Client on or in connection with the Client’s website is accurate and complete; and
(h) inform Journey Further of any changes made to the Client’s website whilst Journey Further is performing the Services. Journey Further shall not be responsible for any changes made to the Client’s website by third parties (not engaged by Journey Further) that may adversely affect the search engine rankings of the website.
4.2 The Client shall retain full ownership of all media/advertising accounts and shall be responsible for paying for media spend directly to the respective media owners. Journey Further shall be permitted to arrange, organise and instruct the publication of adverts via the media owners under the general or specific instruction of the Client.
5. Change control
5.1 Either party may propose changes to the scope or execution of the Services, but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A “Change Order” shall be a document setting out the proposed changes and the effect those changes will have on the Services, Fees and any terms of this Agreement.
6. Ownership of IPR
6.1 Journey Further shall retain ownership of all of its IPRs. Journey Further grants the Client a licence to use Journey Further’s IPR for the limited purposes of receiving the Services during this Agreement.
6.2 The Client shall retain ownership of all of its IPR including in the Client Materials. The Client grants Journey Further a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the purpose of providing the Services to the Client in accordance with this Agreement.
6.3 Journey Further hereby transfers all IPR generated for the Client in the Deliverables (except its own IPR) at the expiration or termination of this Agreement once its Fees have been fully paid.
7. Confidentiality
7.1 Each party recognises that under this Agreement it may receive trade secrets and/or confidential or proprietary information belonging to the other. Subject to the exclusions detailed in clause 7.3, all such information which is designated as confidential, or which is otherwise clearly confidential in nature constitutes “Confidential Information”.
7.2 Each party undertakes that it shall not at any time during the Agreement, and for a period of two (2) years after termination or expiry of the Agreement, disclose to any person any Confidential Information (including information concerning the business, affairs, customers or suppliers of the other party), except as permitted by clause 7.3.
7.3 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives, contractors, sub-contractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, sub-contractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 7;
(b) if it is in the public domain or becomes public knowledge other than as a result of a breach of this Agreement or any other duty of confidentiality relating to that information; or
(c) as may be required by Applicable Laws, a court of competent jurisdiction or any governmental or regulatory authority provided that the disclosing party promptly notifies and consults with the other party in advance in relation to the timing and content of such a disclosure (unless prohibited from doing so by Applicable Law).
7.4 Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under the Agreement.
8. Data protection
8.1 Both parties shall comply with all applicable requirements included in the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
8.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and Journey Further is the data processor. The Commercial Terms Sheet sets out the scope, nature and purpose of processing by Journey Further, the duration of the processing and the types of personal data and categories of data subject.
8.3 Without prejudice to the generality of clause 8.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Journey Further and/or lawful collection of the personal data by Journey Further on behalf of the Client for the duration and purposes of this Agreement.
8.4 Without prejudice to the generality of clause 8.1, Journey Further shall, in relation to any personal data processed in connection with the performance by Journey Further of its obligations under this Agreement:
(a) process that personal data only on the documented written instructions of the Client which are set out in Commercial Terms Sheet unless Journey Further is required by Applicable Law to otherwise process that personal data;
(b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) without prejudice to clause 8, ensure that all of Journey Further’s Personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
(d) not transfer any personal data outside of the UK and/or the EEA unless the prior written consent of the Client has been obtained and appropriate transfer mechanisms have been put to enable the lawful transfer of personal data across borders;
(e) may not authorise any sub-contractors to process personal data without the Client’s prior written consent, and subject at all times to ensuring that Journey Further enters into a written agreement with its sub-contractors that contain terms substantially the same as those set out in this clause 8, in particular in relation to requiring appropriate technical and organisational data security measures;
(f) assist the Client in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(g) notify the Client without undue delay on becoming aware of a personal data breach;
(h) at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination or expiry of the Agreement unless required by Applicable Law to store the personal data;
(i) maintain complete and accurate records and information to demonstrate its compliance with this clause 8;
(j) in the event that a personal data breach has occurred and upon written request from the Client, allow for the Client’s auditors to conduct a data protection compliance audit of Journey Further; and
(k) immediately inform the Client if, in the opinion of Journey Further, an instruction provided by the Client infringes the Data Protection Legislation.
8.5 The sub-contractors that are approved as of the Start Date of this Agreement are set out in Commercial Terms Sheet. Journey Further remains fully liable to the Client for all acts or omissions of any sub-contractors appointed by it.
9. Fees and payment
9.1 In consideration of the provision of the Services, the Client shall pay Journey Further the Fees in accordance with this clause 9 and Commercial Terms Sheet.
9.2 All amounts payable by the Client exclude amounts in respect of Value Added Tax (“VAT”) which the Client shall additionally be liable to pay to Journey Further at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
9.3 Journey Further reserves the right to issue the first month’s invoice pro rate should the Start Date of the Services occur part way through the month.
9.4 Journey Further shall submit invoices for its Fees plus VAT to the Client on a monthly basis. The Client shall pay each invoice under this clause 9.4 within thirty (30) Calendar Days of receipt to a bank account nominated in writing by Journey Further.
9.5 Journey Further shall submit separate invoices for Third-Party Costs plus VAT to the Client on the first Business Day of each month. The Client shall be required to pay each invoice under clause 9.5 immediately.
9.6 The Client shall be responsible for paying for media spend for media/advertising accounts directly to the respective media owners.
9.7 If the Client fails to make a payment due to Journey Further for a period in excess of thirty (30) Calendar Days, then Journey Further may (a) suspend the Services and/or (b) without limiting Journey Further’s remedies under this Agreement, require the Client to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time.
9.8 Journey Further may at any time, set off any liability of the Client to Journey Further against any liability of Journey Further to the Client, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. Any exercise by Journey Further of its rights under this clause will be without prejudice to any other rights or remedies available to Journey Further under this Agreement or otherwise.
10. Liability
10.1 References to liability in this clause 10 includes every kind of liability arising under or in connection with this Agreement including but not limited to liability in Agreement, tort (including negligence), misrepresentation, restitution or otherwise.
10.2 Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) any other liability which cannot be excluded or limited due to Applicable Law.
10.3 Journey Further accepts no liability for loss of revenue, loss of profit, loss of anticipated savings, loss of goodwill, injury to reputation, loss of business opportunity, loss of service, unavailability of files, damage, corruption or loss of data, misuse of equipment by the Client, failure of any externally managed equipment or communications devices or other services deemed to be beyond Journey Further’s control, indirect, consequential or special loss or damage.
10.4 Neither party shall be liable for any indirect or consequential losses arising out of any claim brought by the other party.
10.5 Subject to clauses 10.2 and 10.3, the total liability of each party arising under this Agreement shall in no event exceed the Fees to be paid over a period of twelve (12) months preceding the claim.
10.6 The provisions of this clause 10 shall apply to the fullest extent of the law, whether in Agreement, statue, tort (such as negligence) or otherwise.
11. Termination
11.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect at any time by giving written notice to the other party if:
(a) the other party commits a material breach of a term in this Agreement and (if such breach is remediable) fails to remedy that breach within thirty (30) Calendar Days after being notified to do so;
(b) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(c) the other party takes any step or action in connection with it entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
(d) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(e) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
11.2 For the purposes of this clause 11, “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 substantial portion of this Agreement; or any of the obligations set out in clause 3 (supply of Services), clause 4 (obligations of the Client), clause 7 (confidentiality), clause 8 (data protection) and clause 9 (Fees and payment). In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
11.3 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.
11.4 On termination or expiry of this Agreement, the Client shall be required to pay all Fees due in accordance with clause 9. Journey Further shall subsequently, upon the request of the Client, deliver all Deliverables whether or not then complete and return all of the Client Materials to the Client. Until they have been delivered or returned, Journey Further shall be solely responsible for the safe keeping of all Deliverables and the Client Materials in its possession and will not use them for any purpose not connected with this Agreement.
11.5 On termination or expiry of this Agreement, the following clauses shall continue in force: clause 1 (interpretation and definitions), clause 3 (supply of Services), clause 4 (obligations of the Client), clause 6 (ownership of IPR), clause 7 (confidentiality), clause 8 (data protection), clause 9 (Fees and payment), clause 10 (liability), this clause 11 (termination) and clause 12 (general).
11.6 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 this Agreement which existed at or before the date of termination or expiry.
12. General
12.1 Applicable Laws. Each party shall ensure to comply with Applicable Laws at all times.
12.2 Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for thirty (30) Calendar Days, the party not affected may terminate the Agreement by giving seven (7) Calendar Days’ written notice to the affected party.
12.3 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 to be the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
12.4 Non-solicitation. Neither party shall, without the other party’s prior written consent (directly or indirectly, for the benefit of itself or any other person), during the Term (and any Renewal Term) and for a period of twelve (12) months after its expiry or termination for any reason, solicit as an employee or consultant any employee of the other party who is or has been engaged in working (whether it be instructing or supplying Services) under the Agreement other than by means of a national advertising campaign open to the public and not specifically targeted at any of the staff of the other party.
12.5 Entire agreement. This Agreement and any documents referred in it, 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.
12.6 Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives) in accordance with clause 5 (change control).
12.7 Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.8 Severance. If any provision or part-provision of the 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 12.8 shall not affect the validity and enforceability of the rest of the Agreement.
12.9 Notices.
(a) Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
(ii) sent by email to the address specified in the Commercial Terms Sheet.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
12.10 Assignment. Neither party may assign, charge, transfer or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the other party.
12.11 Third party rights. Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
12.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
12.13 Governing law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the law of England and Wales.
12.14 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in arising out of or in connection with this Agreement or its subject matter or formation.