Master Services Terms & Conditions
1.1 These Terms and Conditions (“Master Services Terms and Conditions”) shall apply to the provision of Services by Disrupt to the Client.
1.2 If there is any conflict or ambiguity between these Master Services Terms and Conditions and the Insertion Order, the Insertion Order shall take precedence.
- DEFINITIONS AND INTERPRETATION
2.1 In these Master Services Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Affiliate” means in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
“Analytics” means services including, but not limited to, strategy, reporting, insights, analysis, tracking and recommendations;
“Agreement” means any agreement between the Parties which shall incorporate, and be subject to, an Insertion Order and the Master Services Terms and Conditions;
“Business Day” means a day (excluding Saturdays) on which banks in London are open for the transaction of normal banking business (other than solely for trading and settlement in Euros);
“Campaign” means a campaign as set out in an applicable Insertion Order;
“Client” means any individual, firm or corporate body (which expression shall, where the context so admits, include its successors and assigns) which purchases services from Disrupt and whose details appear on an Insertion Order;
“Client Materials” means materials, content, information in any form created or generated by Client and supplied to Disrupt or Influencer by Client or on Client’s behalf including as described on the Insertion Order;
“Confidential Information” means any and all information acquired by either party about the other party’s business and/or given by one party to the other party and/or generated by either party from the other party’s Confidential Information in the course of fulfilling their obligations under this Agreement. Disrupt’s Confidential Information includes any confidential information of Third Party Suppliers and Influencers (if applicable);
“Content” means content for online or offline purposes including, but not limited to, content strategy and planning, research, briefing and copywriting, optimisation and reporting;
“CPA” means cost per action, where Disrupt generates a fee for every defined action;
“Creative” means work delivered by the studio team including, but not limited to, website design and build, creative content creation, infographics, email templates and collateral creation;
“Credit Limit” means the monetary sum specified as such on the Insertion Order;
“CRO” means conversion rate optimisation and/or personalisation, which is the task of improving the conversion of traffic to an agreed on-site action for specific pages and/or personalise experiences for individual customers or customer clusters;
“Deposit” means any deposit set out on the Insertion Order;
“Digital PR” means the practise of managing communications between a brand and influential online publications with the aim of increasing a brand’s online reach and visibility;
“Digital Consultancy” means the provision of strategic support, guidance and insights to support the digital strategy for the Client;
“Display” means visual advertising, payable on a CPC (cost per click), CPM (cost per impression / cost per number of impressions), CPA (cost per action) or fixed fee model;
“Downtime” means any and all time when the Website is not fully operational;
“EPC” means earnings per click, an industry metric;
“Execution Date” means the date of the Agreement as set out on the Insertion Order;
“Expenses” means any expenses, disbursements, costs or other agreed payments made by Disrupt on behalf of the Client;
“Extended Term” means the period specified on the Insertion Order, beginning at the end of the Initial Term, and then at the end of each Extended Term, as applicable;
“Fees” means the fees and charges payable by the Client under Clause 5 & 6 in accordance with the Terms of Payment;
“Field of Use” as defined on the Insertion Order.
“Disrupt” means Found Group Limited, 22 Charterhouse Square, London EC1M 6DX, Registered Company Number 10269482, trading as “Disrupt”; and
“Group” means, in relation to a company, that company, any subsidiary, affiliate or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
“holding company and subsidiary” mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
“Implementation Services” the work which Disrupt needs to perform before it is able to commence the provision of the Services;
“Influencer(s)” means any influencer engaged to carry out the Influencer Services as set out in the Insertion Order or as otherwise specified by Disrupt to Client;
“Influencer Channels” the Influencer’s own social media channels, websites, blogs and other online platforms as applicable;
“Influencer Content” means content created by the Influencer in provision of the Influencer Services (including without limitation, social media posts including any videos, photos and text created by the Influencer) as set out in the Insertion Order;
“Influencer Marketing” means working with and/or using influencers (people, publishers or platforms that have audience) to promote, endorse or advocate products and services;
“Influencer Services” means the services to be delivered to the Client by Disrupt as set out in the Insertion Order, or otherwise as agreed in writing between the parties;
“Initial Term” means the period specified on the Insertion Order, beginning on the Live Date;
“Insertion Order” means the order form setting out the services to be provided and other details concerning the relationship between Disrupt and the Client and which forms part of this Agreement;
“Intellectual Property Rights or IPR” means 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 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.
“Invoice Period” means the period within which payment of a particular invoice must be made, as set out on the Insertion Order;
“Keyword” means a term or a word used to identify content in websites and which allows a search engine to index those websites and to rank those websites in decreasing relevance or popularity;
“Liability” means actions, awards, costs, claims, damages, losses (including without limitation any direct or indirect consequential losses), demands, expenses, loss of profits, loss of reputation, judgments, penalties and proceedings and any other losses and/or liabilities;
“Live Date” means the date upon which the Services will commence by Disrupt as set out on the Insertion Order, or, if estimated, as notified to the Client;
“Management Fee” means the fee model for Services where the basis for charging is a monthly fee set out on the Insertion Order;
“Outreach” means the practise of building links with influential online publications with the aim of increasing a brand’s website domain authority;
“Paid Media” means any or all paid advertising services including PPC, Paid Social, Display or Retargeting;
“Paid Social” means advertising on social media Traffic Providers including, but not limited to, Facebook, lnstagram, Twitter and Pinterest;
“Parties” means Disrupt and the Client collectively, and each a “Party”
“PPC” means pay per click advertising model, where payment is made for clicks on search Traffic Providers including, but not limited to, Google, Bing, Yandex and Baidu;
“Retargeting” means targeted advertising by which online advertising is targeted to consumers based on their previous actions. Retargeting may include, but not limited to PPC, Paid Social or Display advertising;
“Right of Use” as defined on the Insertion Order;
“SEO” means Search Engine Optimisation, which is the task of improving a webpage or website’s ranking or visibility on the Traffic Providers;
“Social” means services to support strategy, planning and activity on social media platforms including, but not limited to, Facebook, Twitter, Instagram and Pinterest;
“Services” means the services to be provided by Disrupt to the Client as set out in the Services Schedule;
“Services Schedule” means the schedule setting out the details of the Services on the Insertion Order;
“Strategic” means the provision of information, analysis and support to guide high level business decisions;
“Technical” means the planning, advising, quality assurance relating to web development and the integration of the Client website with Disrupt marketing activity;
“Terms of Payment” means the terms of payment as set out in the Insertion Order.
“System” means the combination of the Third-Party Suppliers’ hardware and software;
“Third-Party Supplier” means a third-party supplier that provides or enables any part of the Services, as set out on the Insertion Order;
“Third Party User Agreement” means any terms and conditions of any Third-Party Supplier applying to the Client as set out on the Third-Party Supplier’s Website, as notified by Disrupt to the Client;
“Tracking” means the analysis of visitor behaviour and the tracking of visitors to websites or Traffic Providers;
“Tracking Downtime” means any period when the Tracking Provider services are are not operational on the Website;
“Tracking Provider” means the platform or tool used to track all Services activity. Tracking Providers include, but are not limited to, Google Analytics, Rakuten and Doubleclick;
“Traffic Levels” means the number of visitors to the Website;
“Traffic Providers” means internet search providers and content, traffic and other providers including, but not limited to, Google, BING, Yandex, Baidu and Facebook;
“VAT” means value added tax chargeable under English law for the time being and any similar additional tax;
“Website” means the Client’s website or websites as set out on the Insertion Order, and which shall include all sub-domains, lower level domains of the Website URL and variants;
“Works” means all Intellectual Property Rights in material devised, created or commissioned by Disrupt, in supplying the Services and under this Agreement;
2.2 Unless the context otherwise requires, each reference in these Master Services Terms and Conditions to:
2.2.1 “writing”, and any similar expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
2.2.3 a Clause or paragraph is a reference to a Clause of these Master Services Terms and Conditions.
2.3 The headings used in these Master Services Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Master Services Terms and Conditions.
2.4 Words imparting the singular number shall include the plural and vice versa.
2.5 References to any gender shall include the other gender.
3.1 The Client hereby appoints Disrupt as its exclusive provider of the Services and Disrupt hereby accepts the appointment on these Master Services Terms and Conditions.
3.2 With effect from the Live Date Disrupt shall, in consideration of the Fees being paid in accordance with the Terms of Payment, provide the Services to the Client.
3.3 Details of the Services will be as set out in the Services Schedule to the relevant Insertion Order.
3.4 In the event that Disrupt is required to perform Implementation Services, the Live Date may be estimated at the Execution Date. Disrupt will provide a Live Date to the Client at the earliest possible occasion during the provision of the Implementation Services.
3.5 Disrupt will use reasonable care and skill to perform the Services.
3.6 Disrupt shall use all reasonable endeavours to complete its obligations under the Agreement, but time will not be of the essence in the performance of these obligations.
3.7 Disrupt shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Disrupt shall notify the Client in any such event.
3.8 Disrupt shall, if indicated on the Insertion Order, provide Reports to the Client at the frequency and in the format specified in the Services Schedule.
3.9.1 For all Services requiring Tracking, all actions, clicks or sales will be tracked by the Tracking Provider. The reports generated from the Tracking Provider will be used for all reporting calculations to the Client.
3.9.4 Given the nature of tracking technology, in the event that there is a problem with the Tracking Provider, such as, for example, if Tracking is inaccurate due to the Client’s activity or inactivity (such as removal of the Tracking pixel from the Website), then the Parties agree this will be taken into consideration for any performance reviews, particularly around service performance where targets have been agreed between Disrupt and the Client.
- CLIENT OBLIGATIONS
4.1 The Client shall:
4.1.1 co-operate with Disrupt in all matters relating to the Services.
4.1.2 provide, in a timely manner, such in-put material and other information as Disrupt may require, and ensure that it is accurate in all material respects;
4.1.3 ensure that any third party previously providing services to it relating to the Services shall fully co-operate with Disrupt and, in particular, at all times shall hand over all relevant materials which are in its possession or provide all relevant information reasonably requested by Disrupt.
4.2 The Client shall not, during the continuance of the Agreement and unless otherwise agreed by Disrupt and set out on the Insertion Order, provide or procure Services that either compete with or have a material impact on the provision of Services by Disrupt.
4.3 The Client warrants that:
4.3.1 it will comply with any applicable Third Party User Agreement as if it were incorporated into the Agreement. If there is any conflict between these Master Services Terms and Conditions and the terms of the Third Party User Agreement, then these Master Services Terms and Conditions shall prevail;
4.3.2 ownership, proprietary rights and all Intellectual Property Rights in all software supplied to the Client or otherwise available to the Client shall remain the property of Disrupt or its licensors. The Client agrees to comply with the terms of any agreement reasonably required by the owner of Intellectual Property Rights in all software supplied to or used by the Client for the protection of that software.
4.3.3 all information and materials supplied to Disrupt (including Client Materials) in relation to the supply of the Services will be accurate and in accordance with all laws, and not violate any third-party rights, including any third party Intellectual Property Rights and that it shall indemnify Disrupt against all damages, losses and expenses arising as a result of any action or claim in this regard.
4.3.4 it shall provide at least 24 hours’ written notice to Disrupt of any changes to the Website that are likely to affect the Services;
4.3.5 it shall provide reasonable notice to Disrupt of any changes likely to impact on the delivery of the Services by Disrupt;
4.3.6 it shall maintain a backup of the Website, any underlying code, and all materials, information and intellectual property owned by it that are passed to Disrupt under this Agreement;
4.3.7 where Disrupt is providing Services that require Tracking, from the Live Date:
188.8.131.52 the Tracking Provider pixel will be placed on the Website correctly at all times;
184.108.40.206 the Tracking Provider pixel will not be removed from the Website (or any of them) until, following termination or expiry of the Agreement;
220.127.116.11 it will notify Disrupt if they suffer any Tracking Provider downtime and that it will use best endeavours to ensure that it is fully operational again within one (1) hour of when the Tracking Provider pixel first became non-operational;
18.104.22.168 it will notify Disrupt if the Website (or any of them) suffers any Downtime and that it will use best endeavours to ensure that it is fully operational again within two (2) hours of such Downtime commencing.
4.3.8 it will only use the Works in accordance with the terms of this Agreement; and
4.3.9 it will obtain and maintain all necessary licenses and consents and comply with all relevant legislation as required to enable Disrupt to provide the Services and where applicable Influencer to provide the Influencer Services.
4.4 Where Influencer Services are being provided Client warrants, represents and undertakes that they shall:
4.4.1 only use the Influencer Content and/or Works in accordance with the terms of this Agreement;
4.4.2 not use the Influencer Content, or exercise the Right of Use in any way that would reasonably be considered to be derogatory or demeaning to the Influencer or that damages the reputation of the Influencer and/or Disrupt;
4.4.3 ensure that any authorised use of Influencer Content and the Works shall comply with all applicable laws including without limitation any laws, regulations, industry codes, social media platform terms and/or Advertising Standards Agency guidelines (ASA) and Committee of Advertising Practices Codes (CAP Codes);
4.4.4 act in a professional, courteous and socially responsible manner towards the Influencer; and
4.4.5 it shall exercise the rights granted to it pursuant to this Agreement strictly in accordance with the terms of this Agreement and for the purposes of the Campaign. Client shall not be entitled to use or exploit any of the rights granted to it pursuant to this Agreement, nor shall Client be entitled to exercise any rights in relation to the Influencers, in any manner which suggests any endorsement of Client’s products or services by Disrupt or any Campaign, and it shall not exploit the rights granted to it pursuant to this Agreement in a manner that it knows or ought reasonably to know is prejudicial to the rights granted by Disrupt to another partner or other third party with which Disrupt has a commercial agreement.
4.5 Client shall indemnify Disrupt from and against all losses suffered or incurred by Disrupt arising out of or in connection with any breach of clause 4.4.
4.6 Any Downtime or Tracking Downtime shall not be included in any calculations of Disrupt’s compliance with any agreed KPIs or service level metrics set out in the Services Schedule, if the inclusion of the Downtime and Tracking Downtime would adversely affect Disrupts’ level of compliance with the agreed KPIs or service level metrics. Disrupt’s entitlement to fees for Services shall not be adversely affected by any Downtime or Tracking Downtime.
5.1 The Client agrees to pay the Fees, Expenses, disbursements and applicable third party Campaign fees, in accordance with the Terms of Payment.
- INVOICING AND PAYMENT
6.1 Disrupt will invoice the Client at the Invoice Interval set out on the Insertion Order. Where the Client is subject to a Credit Limit, Disrupt will invoice the Client each and every time the value of the unpaid Fees for the Services reaches the Credit Limit.
6.2 All payments required to be made pursuant to the Agreement by either Party shall be made within the Invoice Period for the relevant invoice in cleared funds to such bank as the receiving Party may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as that Party is required to deduct or withhold by law.
6.3 The time of payment shall be of the essence. If the Client fails to make any payment on the due date then Disrupt;
6.3.1 without prejudice to any right which Disrupt may have pursuant to any statutory provision in force from time to time, have the right to charge the Client interest on a daily basis at an annual rate equal to the aggregate of 4% and the base rate of Natwest Bank PLC from time to time on any sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgement; and
6.3.2 may withhold or suspend future or current performance of the Services and performance under this agreement any other agreement with the Client.
7.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients, the Influencers or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 7.2.
7.2 Each party may disclose the other party’s confidential information:
7.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 7; and
7.2.2 as may be required by law, court order or any governmental or regulatory authority.
7.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.
- DATA OWNERSHIP AND PROTECTION
8.1 The Client acknowledges that data collected and stored by Disrupt, Influencers, and its Third Party Suppliers on behalf of Disrupt, remains the property of Disrupt.
8.2 Disrupt shall (and shall procure that any of its Staff and Influencers involved in the provision of the agreement) comply with any notification requirements under the Data Protection Legislation and both parties will duly observe all their obligations under the Data Protection Legislation, which arise in connection with the agreement.
8.4 Disrupt agrees that any data account owned by the Client to which Disrupt has access during the provision of the Services, shall be returned to the Client at the termination or expiry of the Agreement.
- INTELLECTUAL PROPERTY RIGHTS
9.1 Unless otherwise indicated, the Client is the sole and exclusive owner of all Intellectual Property Rights in the Website.
9.2 The Client hereby grants to Disrupt a non-exclusive, non-transferrable, royalty free licence to use its Intellectual Property Rights within the Field of Use.
9.3 The Client hereby grants to Disrupt a non-exclusive, non-transferrable, royalty free licence to use its trade marks (Trade Marks) within the Field of Use.
9.4 In the event that Disrupt wishes to use the Trade Marks of the Client for any purposes outside the Field of Use, it must not do so without the prior written consent of the Client, such consent not to be unreasonably withheld.
9.5 By accepting the terms of this Agreement Disrupt hereby agrees that:
9.5.1 the Trade Marks of the Client shall remain the property of the Client unless and until the Client assigns the Trade Marks of the Client, to a third party;
9.5.2 nothing in the Agreement shall be deemed to confer any ownership rights in the Client’s Trade Marks to Disrupt; and
9.5.3 Disrupt shall not contest the validity of the Client’s Trade Marks.
9.6 The Client shall indemnify Disrupt against all damages, losses and expenses arising as a result of any action or claim of infringement of Intellectual Property Rights of a third party.
9.7 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on Disrupt obtaining a written licence from the relevant licensor on such terms as will entitle Disrupt to license such rights to the Client.
9.8 Disrupt shall be free to utilise for the benefit of its other clients any skill and/or know-how that it may develop or acquire in the performance of the Services.
9.9 Unless otherwise indicated, Disrupt shall be the sole and exclusive owner of any domain names which it registers and develops during the performance of the Services.
9.10 Disrupt shall not acquire any rights or interests in Client Materials and/or Client’s Intellectual Property Rights other than: (i) as described in Clause 9.2 – 9.4; (ii) as strictly required to perform its obligations under this Agreement; (iii) the right to use all or any part thereof for record keeping and/or demonstration purposes; and/or (iv) for the provision of examples of past work to third parties and potential clients of Disrupt in order to market and promote Disrupt services.
9.11 Clauses 9.11 – 9.17 shall apply where Influencer Services are being provided.
9.12 Where Influencers are engaged under an Insertion Order it is agreed that the Influencer will retain all right, title and interest in the Influencer Content excluding any Client Materials, content or Intellectual Property Rights provided by Disrupt and/or the Client.
9.13 Client agrees and acknowledges that the Influencer is only obliged to keep the Influencer Content on its Influencer Channels for the period specified in the Insertion Order. Following this period, the Influencer is entitled to delete any Influencer Content created during the course of the Services.
9.14 Client acknowledges that, in respect of any Influencer Content, the Client’s use of such Influencer Content is conditional on Disrupt obtaining a written licence from the Influencer and that Disrupt shall use reasonable endeavours to grant to Client (at the Client’s expense) a licence to use the Influencer Content for the Right of Use in respect of the Campaign described in the Insertion Order.
9.15 All Intellectual Property Rights in The Works will vest in and belong to Disrupt (excluding Client Materials, third party rights and Influencer Content) unless otherwise agreed in writing on the Insertion Order.
9.16 Client shall have the Rights of Use in respect of the Works and Influencer Content as set out in the Insertion Order which rights shall take effect and be conditional upon receipt by Disrupt of the Fees. Such Rights of Use shall apply only to those ideas, concepts, proposals and parts of the Works which Disrupt is specifically requested to proceed with and not to any original ideas, concepts or proposals pitched or suggested to Client but not further explored by Disrupt for Client hereunder, all of which shall be retained by Disrupt. Where no such rights are specified Client is granted a non-exclusive licence to use the Works for the purpose specifically described in the Insertion Order. Further uses shall be subject to additional Fees to be agreed in writing.
10.1 Either Party may terminate the Agreement by giving written notice to the other Party if:
10.1.1 any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 14 days of the due date for payment;
10.1.2 the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 30 days after being given written notice giving full particulars of the breach and requiring it to be remedied;
10.1.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
10.1.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
10.1.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this Agreement);
10.1.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party; or
10.1.7 the other Party ceases, or threatens to cease, to carry on business.
10.2 For the purposes of Clause 10.1.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
10.3 In the event that a Third-Party Provider, which is essential to the provision of the Services by Disrupt, terminates its services with Disrupt, Disrupt can terminate this Agreement on reasonable notice to the Client.
- CONSEQUENCES OF TERMINATION
11.1 On termination of this agreement for any reason:
11.1.1 the Client shall immediately pay to Disrupt all of Disrupt’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Disrupt may submit an invoice, which shall be payable immediately on receipt;
11.1.2 Disrupt will cease paying Traffic Providers at midnight on the day of the date of termination;
11.1.3 where a CPA model is being used, Disrupt will invoice the Client for any sales arising after termination or expiry which occur within the Cookie Period. If the Client fails to keep the Pixel fully operational on its Website until the expiration of the Cookie Period, the Client agrees that Disrupt may calculate a reasonably assumed sales rate and invoice the Client accordingly.
11.1.4 the Client will remove the Pixel once the Cookie Period has expired; and
11.1.5 the Client shall cease any and all use of any Influencer Content and The Works.
11.1.6 where a Deposit was paid to Disrupt, it will repay the balance less any sums due as a result of termination of the Agreement, if any; and
11.1.7 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12.1 Disrupt may sub-contract the performance of any of its obligations under the Agreement. Where Disrupt sub-contracts the performance of any of its obligations under the Agreement to any person or business within the Group Disrupt shall be responsible for every act or omission of the sub-contractor as if it were an act or omission of the sub-contracting Party itself.
12.2 Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.
13.1 During this term of the Agreement, and for nine (9) months after termination or expiry, the Client will not, without the prior written consent of Disrupt, (whether on its own behalf, in conjunction with and/or on behalf of any individual and/or organisation in any capacity) directly and/or indirectly:
13.1.1 entice or attempt to entice away from employment with Disrupt any person who is an employee of Disrupt;
13.2 employ, engage and/or otherwise use the services of any individual who was an employee or representative of Disrupt during the preceding nine (9) months;
13.3 work with the Influencer; and/or
13.4 assist, advise or give any information to enable a third party to engage in any of the activities stated in this Clause 13.1.
13.5 If any part of this Clause 13 is held to be void and/or unenforceable that part shall be struck out and the remainder of this Clause shall remain in full force and effect.
13.6 Any consent given by Disrupt in accordance with clause 13.1 shall be subject to the Client paying to Disrupt a sum equivalent to 20% of the then current annual remuneration of Disrupt’s employee, consultant or subcontractor.
- LIMITATION OF LIABILITY – THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
14.1 Nothing in these Conditions shall limit or exclude Disrupt’s liability for:
14.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
14.1.2 fraud or fraudulent misrepresentation;
14.2 Subject to clause 14.1:
14.2.1 Disrupt shall not under any circumstances whatsoever be liable for:
- a) loss of profits; or
- b) loss of business; or
- c) depletion of goodwill and/or similar losses; or
- d) loss of anticipated savings; or
- e) loss of goods; or
- f) loss of contract; or
- g) loss of use; or
- h) loss or corruption of data or information; and
- i) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
14.2.2 Disrupt’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this agreement shall in all circumstances be limited to a figure no greater than twice the Fees paid for the Services in the previous twelve months, (or if 12 months have not elapsed, would be payable in twelve months).
14.3 Disrupt shall not be liable to the Client or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of Disrupt’s obligations if the delay or failure was due to any cause beyond Disrupt’s reasonable control.
14.4 If Disrupt’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
14.4.1 Disrupt shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Disrupt’s performance of any of its obligations;
14.4.2 Disrupt shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Disrupt’s failure or delay to perform any of its obligations under the Agreement as set out in this clause 14.4, 14.6 and 14.7 ; and
14.4.3 the Client shall reimburse Disrupt on written demand for any costs or losses sustained or incurred by Disrupt arising directly or indirectly from the Client Default.
14.5 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
14.6 In respect of any instructions or advice received orally or in writing by Disrupt, Disrupt shall have no liability to Client for any misunderstanding or misrepresentation which may arise in relation thereto whether on the part of Disrupt or Client or Influencer.
14.7 The parties agree that to the extent that, for whatever reason, any of the Influencer Services are not provided by the Influencer(s), or are varied in accordance with an agreement between Disrupt and the Influencer, Disrupt shall not be considered to be in breach of this Agreement (and Client shall have no rights or remedies accordingly).
- FORCE MAJEURE
15.1 Neither the Client nor Disrupt shall be liable for any failure or delay in performing their obligations under the Agreement where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
16.1 Unless otherwise stated in the Insertion Order, the Parties agree that all notices to be served under the Agreement shall be in writing and may be sent by email to each Parties’ address as listed on the Insertion Order
16.2 Notices shall be deemed to have been duly given:
16.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
16.2.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
16.2.3 on the second business day following mailing, if sent by first class postage;
16.3 Service of any document for the purposes of any legal proceedings concerning or arising out of the Agreement shall be affected by either Party by causing such document to be delivered to the other Party at its registered or principal office, or to such other address as may be notified to one Party by the other Party in writing from time to time. Service under this clause 18.3 may not be given by email or facsimile.
- DISPUTE RESOLUTION
17.1 If any dispute arises in connection with this agreement, Disrupt’s Manager and the Client’s Manager shall, within 7 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
17.2 If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, a party must give notice in writing (ADR notice) to the other party requesting mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than 30 days after the date of the ADR notice.
17.3 The commencement of mediation will not prevent the parties commencing or continuing court proceedings.
18.1 VARIATION: Subject to the above, no variation of this agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.
18.2 WAIVER: A waiver of any right or remedy under this agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
18.3 CUMULATIVE REMEDIES: Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
18.4 SEVERANCE: If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the agreement, and the validity and enforceability of the other provisions of the agreement shall not be affected. If a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
18.5 ENTIRE AGREEMENT: This agreement and any documents referred to in it constitute the entire agreement between the parties and supersede and extinguish all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this agreement. Each party acknowledges that, in entering into this agreement and the documents referred to in it, it does not rely on, and shall have no remedies in respect of,any representation or warranty (whether made innocently or negligently) that is not set out in this agreement or those documents. Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement or those documents (whether made innocently or negligently) shall be for breach of contract. Nothing in this clause shall limit or exclude any liability for fraud.
18.6 NO PARTNERSHIP OR AGENCY: Nothing in this agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18.7 RIGHTS OF THIRD PARTIES: A person who is not a party to this agreement shall not have any rights under or in connection with it.
18.8 SURVIVAL OF TERMS: Termination of this Agreement shall not affect any rights of the parties accrued up to the date of termination.
- LAW AND JURISDICTION
19.1 These Master Services Terms and Conditions and the Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
19.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Master Services Terms and Conditions or the Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.