Terms & Conditions
We specialise in providing an expert service to help your organisation grow.
1. PARTIES AND INTRODUCTION
1.1 This Agreement is between AmmarM UK Limited 079850794
whose registered office is at 1A Forth Street Newcastle upon Tyne NE1 5HX (“AmmarM”)
and the Client (whose details appear on the attached Order Form), collectively, the
“Parties” and each, a “Party”.
1.2 AmmarM is a provider of business support services and the Client wishes to
engage AmmarM to provide the Services on the terms and conditions of this
Agreement.
1.3 This Agreement forms a binding contract between AmmarM and the Client in
respect of the Services.
1.4 This Agreement will only come into effect upon each of the Parties executing the
Order Form (in accordance with the requirements of the Order Form) and the
Services shall commence on the Services Commencement Date.
1.5 This Agreement applies to all Services provided by AmmarM to the Client and sets
out the Parties’ respective rights and obligations in respect of the Services.
1.6 The Client acknowledges and agrees that AmmarM is a business support service provider
and may rely on third parties to perform the Services.
1.7 AmmarM is an independent contractor to the Client,and shall not be deemed to be
a partner of, or otherwise associated with, the Client in any way.
1.8 The Services are provided for the sole benefit of the Client, unless expressly
agreed otherwise by the Parties and set out in writing.
2. DEFINITIONS AND INTERPRETATION
2.1 In this Agreement the following definitions apply:
“ADR Notice” has the meaning given in Clause 14.4.3 below;
“Agreement” these Terms and Conditions, together with the Order Form to which
these Terms and Conditions are attached;
“Authorised Management Representative”
the person named on the Order Form to this Agreement or such other senior,
management level representative of AmmarM that AmmarM may nominate from time to
time;
“Authorised Representatives”
those persons who have the authority to bind each of the Parties on their behalf,
which, for the Client, is the Main Client Contact and, for AmmarM, is an Authorised
Sales Agent of AmmarM and an Authorised Management Representative of AmmarM ;
“Authorised Sales Agent” the person named on the Order Form to this Agreement or
other sales agent of AmmarM that AmmarM may nominate from time to time to act on its
behalf in relation to this Agreement;
“Campaign” a digital marketing campaign carried out by AmmarM on the Client’s
behalf pursuant to this Agreement (and “Campaigns” shall be construed
accordingly); “Campaign Management Fee” the fee charged by AmmarM for managing
the media associated with the Client’s digital marketing campaign;
“Campaign Pause” has the meaning given in Clause 4.4 below;
“Client Confidential Information”
has the meaning given in Clause 7.1 below;
“Client Default” has the meaning given in Clause 4.3 below;
“Client Materials” the materials provided by the Client to AmmarM pursuant to this
Agreement which are expressly identified as the Client’s property or are notified as
such by the Client to AmmarM;
“AmmarM” Confidential Information
has the meaning given in Clause 7.3 below;
“AmmarM Contact” the person identified in the Order Form (as may be replaced by
AmmarM from time to time in accordance with Clause 3.3.2) who will be responsible
for the day to-day provision of the Services;
“AmmarM Materials” all data (including, without limitation, all data, and the format of
such data, provided to the Client through the Media Platforms), reports, guides,
content, project management tools and other information and materials derived from
the Services and/or provided to the Client by AmmarM pursuant to this Agreement;
“Control” shall be as defined in section 1124 of the Corporation Tax Act 2010, and
the expression “change of Control” shall be construed accordingly;
“Creative Climber” the customised suite of creative solutions provided by AmmarM to
raise brand profile and identity of the Client;
“Data Climber” the services provided by AmmarM that use software for the collection,
analysis and visualisation of data;
“Data Controller” has the meaning given in the Data Protection Act 1998 (or, if
appropriate, its successor legislation);
“Data Processor” has the meaning given in the Data Protection Act 1998 (as may be
amended or replaced by successor legislation);
“Data Protection Legislation”
the Data Protection Act 1998, the Data Protection Directive (95/46/EC), the
Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful
Business Practice) (Interception of Communications) Regulations 2000 (SI
2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC),
the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI
2426/2003) and all other applicable data protection legislation and regulations as
amended, introduced or replaced from time to time throughout the world (including,
when in force, the General Data Protection Regulation ((EU) 2016/679) and any
national implementing laws, regulations and secondary legislation);
“Dispute” has the meaning given in Clause 14.4 below;
“Dispute Notice” has the meaning given in Clause 14.4.1 below;
“Effective Date” the date of this Agreement as set out on the Order Form;
“Fees” the fees set out in the Order Form of this Agreement (or as otherwise agreed
by the Parties in accordance with the terms of this Agreement);
“Force Majeure Event” has the meaning given in Clause 13.1 below;
“Increase Date” has the meaning given in Clause 6.10 below;
“Initial Services Term” the minimum period of time for which the Services will be
provided by AmmarM (as specified on the Order Form), which will commence on the
Services Commencement Date;
“Intellectual Property Rights” patents, utility models, rights to inventions, copyright
and related rights, trade marks and service marks, trade names and domain names,
rights in get-up, goodwill and the right to sue for passing off or unfair competition,
rights in designs, rights in computer products, database rights, rights to preserve the
confidentiality of information (including know-how and trade secrets) and any other
intellectual property rights, including all applications for (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;
“Lead Climber” the action or process of identifying and cultivating potential clients
for a business’s products or services provided by AmmarM ;
“Main Client Contact” the authorised representative of the Client whose details
appear on the Order Form who shall be the Client’s contact for any queries in
relation to this Agreement and for agreeing any variations to this Agreement in
accordance with its terms;
“Management Fee” the fee charged by AmmarM which is equal to the average
monthly Fees charged to the Client during the Term, calculated at the date either
Party gives notice to terminate this Agreement in accordance with its terms;
“Media Optimisation Fee” the fee charged by AmmarM for purchasing media software
or media products from third party online and/or digital publishers on the Client’s
behalf;
“Media Platforms” the third party digital marketing account platforms used by
AmmarM to provide the Services;
“Order Form” the Order Form attached to these Terms and Conditions;
“Organic Climber” the search engine optimisation services provided by AmmarM ;
“Organic Social Climber” the monitoring and management of social media profiles
provided by AmmarM ;
“Paid Climber” the paid search advertising services provided by AmmarM across
sponsored listings of search engines and partner websites of such search engines;
“Personal Data” has the meaning given in the Data Protection Act 1998 (as may be
amended or replaced by successor legislation) and relates only to personal data, or
any part of such personal data, provided by
the Client to AmmarM under or in connection with this Agreement;
“Personnel” in relation to either Party, its officers, directors and/or employees;
“Processing” and “Process”
have the meaning set out in section 1(1) of the Data Protection Act 1998 (as may be
amended by successor legislation);
“Services” those services to be provided by AmmarM to the Client as specified on the
Order Form and pursuant to the terms of this Agreement (including, but not limited
to, the Creative Climber, the Data Climber, the Lead Climber, the Organic Social
Climber, the Social Climber, and/or the Website Climber) together with any other
Services that the Client engages AmmarM to provide from time to time during the
Term, and each a “Service”;
“Services Commencement Date”
the date on which AmmarM confirms to the Client by email that AmmarM has received
the first payment of the Fees (including the Set Up Fee) and that AmmarM is ready to
commence the performance of the Services;
“Social Climber” the sponsored listing services provided by AmmarM across social
media platforms and partner websites of such search engines;
“Set Up Fee” the fee charged by AmmarM for building or rebuilding a digital marketing
campaign for the Client;
“Technical Fees” the fees charged by AmmarM for the use of third party software to
monitor or optimise the Client’s digital marketing accounts;
“Term” the term of this Agreement, as defined in Clause 11.1 below;
“VAT” Value Added Tax, as defined by the Value Added Tax Act 1994;
“Website Climber” the services provided by AmmarM in relation to the planning,
design, content and development of a website for hosting via intranet or internet;
“Working Hours” Mondays to Fridays inclusive from 9.00 to 17.00, excluding
English public and bank holidays and “Working Day(s)” shall be construed
accordingly; and
“Year” each successive twelve (12) month period from the Effective Date (or part of
such twelve (12) month period, as the context may require).
2.2 Unless the context otherwise provides or requires, or as expressly stated,
references to “Clause(s)” are to clauses of these Terms and Conditions.
2.3 Any references to a statute, directive, regulation, code or guideline (“legislation”)
are references to such legislation as amended, modified or re-enacted from time to
time.
2.4 The headings in this Agreement are for convenience only and shall not affect its
construction or interpretation.
2.5 In the event of a conflict in the interpretation of the provisions of these Terms and
Conditions and the Order Form, the Order Form shall prevail and take priority.
3. SERVICES
3.1 In consideration of the payment of the Fees, AmmarM shall, from the Services
Commencement Date, use reasonable endeavours to provide the Services specified
on the Order Form in accordance with the terms of this Agreement.
3.2 Any samples, drawings, descriptive matter or advertising issued by AmmarM, and
any descriptions or illustrations contained in AmmarM’s catalogues or brochures in
relation to the Services (collectively, “Marketing Materials”), are issued or published
for the sole purpose of giving an approximate idea of the Services described in them.
Such Marketing Materials do not form part of this Agreement or have any contractual
force.
3.3 AmmarM shall:
3.3.1 perform the Services with reasonable care and skill;
3.3.2 use reasonable endeavours to ensure that the same person acts as the AmmarM
Contact throughout the Term, but may replace that person from time to time where
reasonably necessary in the interests of AmmarM’s business, or where such person
leaves AmmarM;
3.3.3 have the right to sub-contract, sub-license or otherwise transfer certain parts of
the Services to specified third parties as it deems necessary or appropriate;
3.3.4 report on its performance of the Services and other information to the Client via
email to the Main Client Contact (using the email address specified on the Order
Form), or via such other method of communication as AmmarM may agree with the
Client from time to time during the Term;
3.3.5 implement any change to a Campaign reasonably requested by the Client and
agreed by AmmarM in accordance with this Agreement as soon as reasonably
practicable from the date that such change is agreed; and
3.3.6 comply with all applicable laws and regulations relating to performance of the
Services.
4. THE CLIENT’S OBLIGATIONS
4.1 The Client shall:
4.1.1 pay all Fees and additional charges in accordance with this Agreement;
4.1.2 co-operate with AmmarM in all matters relating to the Services;
4.1.3 ensure that AmmarM has all such access to the Client’s information, electronic
systems and materials as AmmarM may reasonably require in order to supply the
Services;
4.1.4 promptly provide AmmarM with all assistance, directions, instructions or
information, as reasonably required by AmmarM to perform the Services;
4.1.5 provide timely updates on any information relevant to the Services, including
(without limitation) any changes to the Client’s website that would affect the Client’s
Campaigns;
4.1.6 comply with all applicable laws and regulations in relation to its receipt of and
use of the Services, and any guidelines or policies of AmmarM issued to the Client
from time to time during the Term;
4.1.7 notify AmmarM promptly if it wishes to change the contact details for, or replace,
the Main Client Contact, providing AmmarM with all required information prescribed in
the Order Form;
4.1.8 keep all AmmarM Materials at the Client’s premises in safe custody and at its
own risk, maintain the AmmarM Materials in good condition until returned to AmmarM,
and not dispose of or use AmmarM Materials other than in accordance with AmmarM’s
written instructions or authorisation;
4.1.9 take out and maintain insurance sufficient to cover all its liability arising out of
this Agreement; and
4.1.10 not develop any product or service using any part of the Services.
4.2 The Client shall not use any trade mark, copyright, branding elements, or other
Intellectual Property Rights of AmmarM without AmmarM’s prior written consent, unless
the Client is entitled to do so under applicable law.
4.3 If AmmarM’s performance of any of its obligations under this Agreement is
prevented or delayed by any act by or omission of the Client, or by any failure by the
Client to perform any relevant obligation (“Client Default”):
4.3.1 without limiting or affecting any other right or remedy available to it, AmmarM
shall have the right to immediately suspend performance of the Services until the
Client remedies such Client Default, and to rely on such Client Default to relieve it
from the performance of any of its obligations, in each case to the extent that such
Client Default prevents or delays AmmarM ’s performance of any of its obligations;
4.3.2 AmmarM shall not be liable for any costs or losses sustained or incurred by the
Client arising directly or indirectly from the Client’s failure or delay to perform any of
its obligations as set out in this Clause 4.3; and
4.3.3 the Client shall reimburse AmmarM on written demand for any and all costs or
losses sustained or incurred by AmmarM arising directly or indirectly from any Client
Default.
4.4 The Client may request the temporary suspension of a Campaign (a “Campaign
Pause”) but such request is at all times subject to and conditional upon:
4.4.1 the Client giving AmmarM a minimum of thirty (30) days’ advanced written notice
of its request for a Campaign Pause (failing which AmmarM shall have the sole and
absolute right to reject such request);
4.4.2 such Campaign Pause being of a maximum duration of thirty (30) days;
4.4.3 AmmarM being under no obligation to provide the Services or otherwise being
required to perform its obligations under the Agreement during the Campaign Pause;
and
4.4.4 the Client only being entitled to request one Campaign Pause during the Term.
For the avoidance of doubt, during any Campaign Pause, the Client will continue to
be liable to pay all Fees and other sums as they fall due under this Agreement in
respect of Services rendered prior to the date of the Campaign Pause coming into
effect.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 All Intellectual Property Rights in or arising out of or in connection with the
Services (other than Intellectual Property Rights in any Client Materials) shall be
owned exclusively by, and vest absolutely in, AmmarM.
5.2 AmmarM and its licensors own, and shall retain ownership of, all Intellectual
Property Rights in the AmmarM Materials.
5.3 AmmarM grants the Client a non-exclusive, non-transferrable, revocable, limited
licence during the Term to use the AmmarM Materials solely in relation to its receipt of
the Services. Such licence is at all times conditional upon: (i) the Client paying all
Fees to AmmarM as they fall due; and (ii) the Client’s full compliance with this
Agreement. For the avoidance of doubt, the Client may not sub-license, assign or
otherwise transfer the rights in the AmmarM Materials without AmmarM ’s prior written
consent.
5.4 In relation to the Client Materials, the Client:
5.4.1 and its licensors own, and shall retain ownership of, all Intellectual Property
Rights in the Client Materials;
5.4.2 hereby grants AmmarM a fully paid-up, non-exclusive, royalty-free, worldwide,
transferable licence to copy, modify and use the Client Materials during the Term for
any purpose in connection with this Agreement and providing the Services;
5.4.3 warrants that the receipt and use of the Client Materials in the performance of
this Agreement by AmmarM, its agents, subcontractors or consultants does not, and
shall not, infringe the rights, including any Intellectual Property Rights, of any third
party; and
5.4.4 shall hold AmmarM harmless from, and on demand indemnify AmmarM and keep
AmmarM indemnified in full from and against, all costs, expenses, damages and
losses, including any interest, fines, legal and other professional fees and expenses
awarded against or incurred or paid by AmmarM, and any sums agreed to in
settlement, as a result of, or in connection with, any claim brought against AmmarM, its
agents, subcontractors or consultants for actual or alleged infringement of a third
party’s Intellectual Property Rights arising out of, or in connection with, AmmarM ’s (or
its sub-contractors’) receipt or use of the Client Materials in accordance with this
Agreement.
6. FEES
6.1 Unless otherwise agreed in writing, the Fees payable by the Client for the
Services shall be the amounts specified on the Order Form of this Agreement.
6.2 The Client acknowledges and agrees that it shall pay the Fees to AmmarM
monthly in advance (unless otherwise agreed by the Parties in writing).
6.3 The Client acknowledges and agrees that the Fees exclude the following, which
AmmarM shall be entitled to charge the Client, and the Client shall pay monthly in
arrears (unless otherwise agreed in writing), following submission of an appropriate
invoice:
6.3.1 the cost of any agreed out-of-pocket expenses and ancillary expenses
reasonably incurred by AmmarM, its Personnel and/or its sub-contractors in
connection with the Services (including without limitation, any travelling expenses,
hotel costs, subsistence and any associated expenses);
6.3.2 the cost of providing the Services in languages other than English (as may be
requested by the Client and agreed between the Parties); and
6.3.3 the cost to AmmarM of any materials or services procured by AmmarM from third
parties for the provision of the Services, as such items and their cost are approved
by the Client in advance from time to time.
6.4 The Client warrants and represents to AmmarM that (where the Client has selected
to pay for the Fees by credit card or debit card) there are sufficient funds on any
credit card or debit card registered with AmmarM to pay for all Fees and any other
sums payable under this Agreement.
6.5 In the event of cancellation of the Services or termination of this Agreement,
AmmarM may determine in its absolute discretion whether to refund any advance
payment for Services (which shall exclude any costs that are not reimbursed by third
parties).
6.6 Without prejudice to any other right or remedy it might have, if the Client fails to
pay AmmarM any sum due under this Agreement (including, without limitation, any
third party costs that AmmarM incurs on the Client’s behalf) on the due date for
payment:
6.6.1 AmmarM may charge the Client for any additional administration and legal costs
that AmmarM may incur as a consequence of such late payment;
6.6.2 AmmarM may charge the Client interest (both before and after judgment) on the
amount unpaid at the rate for the time being that would be applicable if the debt were
a qualifying debt under the Late Payment of Commercial Debts (Interest) Act 1998;
and
6.6.3 AmmarM may, at its election, suspend the supply of all or part of the Services
under this Agreement (or any other contract between the Client and AmmarM ) until
payment has been made or terminate this Agreement on written notice to the Client.
6.7 AmmarM shall be entitled to set off or withhold any amount owed to the Client
under this Agreement against any amount payable by the Client to AmmarM.
6.8 All sums payable to AmmarM under this Agreement:
6.8.1 are exclusive of VAT, which shall be payable by the Client in addition at the
rate and in the manner for the time being prescribed by law;
6.8.2 exclude any surcharges for payment methods used by the Client to pay the
Fees; and
6.8.3 shall be paid in full without any set-off, counterclaim, deduction or withholding
(other than any deduction or withholding of tax as required by law).
6.9 If any payment pursuant to this Agreement constitutes the whole or any part of
the consideration for a taxable or deemed taxable supply to the Client, AmmarM shall
increase that payment by an amount equal to the VAT which is chargeable in respect
of the taxable or deemed taxable supply, provided that the Client shall have
delivered a valid VAT invoice in respect of such VAT.
6.10 AmmarM may increase the Fees for any or all of the Services at its discretion
each Year with effect from each anniversary of the Effective Date. In the event that
AmmarM determines that it wishes to increase the Fees for any of the Services,
AmmarM shall notify the Client of such increase(s) in writing at least ninety (90) days
prior to the date of such increase(s) coming into effect (“Increase Date”). If the Client
does not wish to accept the increase(s) to the Fees for the Services, or any particular
Service, it may give notice to terminate this Agreement prior to the Increase Date in
accordance with Clause 11.1, failing which the Client shall be deemed to have
accepted the relevant increase on the Increase Date.
7. CONFIDENTIALITY
7.1 Subject to Clause 7.2, AmmarM will hold all content and information that the Client
has provided and either marked as confidential, or is notified to AmmarM as being
confidential (“Client Confidential Information”), in the strictest confidence, and AmmarM
will not disclose any such content or information to any other person, company or
organisation. Client Confidential Information shall include any Personal Data
provided by or on behalf of Client (“Client Personal Data”) pursuant to this
Agreement.
7.2 The confidentiality obligations in Clause 7.1 shall not apply:
7.2.1 to any disclosures that AmmarM is required to make by law, by a court of
competent jurisdiction, or by any regulatory body;
7.2.2 to information that has come into the public domain through no fault of AmmarM ;
7.2.3 to information that AmmarM develops independently (without benefit of the Client
Confidential Information) or receives from a third party (which is not in breach of a
continuing obligation of confidentiality to the Client); and
7.2.4 in respect of AmmarM’s right to share the Client Confidential Information with its
Personnel, sub-contractors, professional advisors, consultants and auditors, who will
each be informed of the confidential nature of the Client Confidential Information and
instructed to treat such information) confidentially.
7.3 Subject to Clause 7.4, the Client will hold all AmmarM Confidential Information in
the strictest confidence. “AmmarM Confidential Information” for the purposes of these
Terms and Conditions is defined as anything provided by or on behalf of AmmarM that
is marked as “confidential”, is notified to the Client as being confidential or that could
reasonably be considered to be confidential (including, without limitation, any
Personal Data accessed and/or processed by the Client’s Personnel) and any
confidential information relating to the business, affairs, strategies, suppliers or staff
of AmmarM.
7.4 The confidentiality obligations in Clause 7.3 shall not apply to:
7.4.1 any disclosures that the Client is required to make by law, by a court of
competent jurisdiction, or by any regulatory body, but only to the minimum extent
required, and provided that the Client first notifies AmmarM of the requirement (if not
prohibited by applicable law) and, upon the request of AmmarM, the Client shall use
commercially reasonable efforts to assist AmmarM, at AmmarM’s sole expense, in
seeking an appropriate protective order;
7.4.2 information that has come into the public domain through no fault of the Client;
7.4.3 information that the Client develops independently (without benefit of AmmarM
Confidential Information) or receives from a third party (which is not in breach of a
continuing obligation of confidentiality to AmmarM); and
7.4.4 the Client’s right to share the AmmarM Confidential Information with its
Personnel, professional advisors, consultants and auditors, who will each be
informed of the confidential nature of the AmmarM Confidential Information and
instructed to treat such information confidentially and the Client shall be liable to
AmmarM if any such Party should fail to comply with the terms of such confidentiality
obligation.
7.5 Neither Party shall use the other Party’s confidential information (the Client
Confidential Information, or the AmmarM Confidential Information (as applicable)) for
any purpose other than to perform its obligations under this Agreement.
8. DATA PROTECTION
8.1 The Parties acknowledge that for the purposes of the Data Protection Act 1998
(and successor legislation), the Client is the Data Controller and AmmarM is the Data
Processor in respect of any Client Personal Data processed in accordance with this
Agreement, except in respect of AmmarM’s use of the Client Personal Data of the
Main Client Contact for AmmarM’s business, operational or administrative purposes
other than the provision of the Services, in which case AmmarM shall act as the Data
Controller.
8.2 AmmarM may email the Main Client Contact occasionally with information about
the Services. Such emails are important, and the Client acknowledges and agrees
that the Main Client Contact will not be able to unsubscribe from them during the
Term.
8.3 AmmarM shall process the Client Personal Data (other than the Personal Data of
the Main Client Contact) only in accordance with this Agreement and/or the Client’s
reasonable instructions from time to time, and shall not process the Client Personal
Data (other than the Personal Data of the Main Client Contact) for any purposes
other than those expressly authorised by the Client or this Agreement, unless
required to do so by applicable law.
8.4 AmmarM shall take reasonable steps to ensure the reliability of all its Personnel
who have access to the Client Personal Data.
8.5 AmmarM warrants that, having regard to the state of technological development
and the costs of implementing any measures, it will:
8.5.1 take appropriate technical and organisational measures against the
unauthorised or unlawful processing of the Client Personal Data and against the
accidental loss or destruction of, or damage to, the Client Personal Data to ensure a
level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or
accidental loss, destruction or damage; and (ii) the nature of the data to be
protected; and
8.5.2 take appropriate steps to ensure compliance with those measures.
8.6 The Client consents to AmmarM appointing subcontractors as third party
processors of Client Personal Data under this Agreement. AmmarM confirms that it
has entered or (as the case may be)
will enter with such third-party processors into written agreements substantially in
conformance with AmmarM’s obligations under Clauses 7 and 8 of this Agreement. As
between the Client and AmmarM, AmmarM shall remain fully liable for all acts or
omissions of any third-party processor appointed by it pursuant to this Clause 8.6.
8.7 AmmarM shall, when acting as a Data Processor in respect of the Client Personal
Data:
8.7.1 provide the Client, at the Client’s cost, with reasonable assistance in
responding to any request from any individual whose Personal Data forms part of the
Client Personal Data and in ensuring the Client’s compliance with its obligations
under Data Protection Legislation with respect to security, breach notifications,
impact assessments and consultations with supervisory authorities or regulators;
8.7.2 notify the Client without undue delay on becoming aware of any security
breach in respect of Client Personal Data;
8.7.3 at the written direction of the Client, delete or return Client Personal Data and
copies thereof to the Client on termination of the Agreement, except to the extent
required by applicable law; and
8.7.4 maintain complete and accurate records and information to demonstrate its
compliance with this clause.
8.8 AmmarM shall not transfer any Personal Data outside of the European Economic
Area unless the prior written consent of the Client has been obtained and the
transfer is in accordance with Data Protection Legislation.
9. WARRANTIES AND INDEMNITIES: THE CLIENT’S ATTENTION IS PARTICULARLY
DRAWN TO THIS CLAUSE
9.1 Each Party warrants to the other that:
9.1.1 it has the full power, capacity and authority to enter into the Agreement and to
perform its obligations under this Agreement; and
9.1.2 in performing its obligations under this Agreement, it will comply with all
applicable Data Protection Legislation. This Clause 9.1.2 is in addition to, and does
not relieve, remove or replace, a Party’s obligations under the Data Protection
Legislation.
9.2 The Client hereby warrants and represents that:
9.2.1 without prejudice to the generality of Clause 9.1.2, the Client will ensure that it
has all necessary appropriate consents and notices in place to enable lawful transfer
of Personal Data to AmmarM for the duration and purposes of this Agreement;
9.2.2 the Client’s receipt and use of the Services shall be for legitimate business
purposes and in compliance with all applicable laws and regulations;
9.2.3 the Client has obtained all necessary approvals, consents and permissions
from any relevant authority or third party in connection with its receipt and use of the
Services; and
9.2.4 the Client Materials are accurate, complete and up to date, and the Client
accepts sole responsibility and liability for such Client Materials.
9.3 The Client will hold AmmarM harmless from, and indemnify AmmarM on demand
and keep fully and effectively indemnified AmmarM from and against, any liability,
losses, damages, costs (including legal fees) and expenses of any nature incurred
by AmmarM directly or indirectly from:
9.3.1 any breach of the Client’s confidentiality obligations under Clause 7.3 of these
Terms and
Conditions; and
9.3.2 any breach by the Client of Clause 9.2 of these Terms and Conditions.
The indemnities in this Clause shall remain in full force and effect notwithstanding
the termination or expiry of this Agreement.
9.4 If any third party makes a claim, or notifies AmmarM that it is intending to make a
claim, against AmmarM, which may reasonably be considered to be likely to give rise
to a liability under an indemnity given under Clause 5.4.4 or Clause 9.3 of this
Agreement, AmmarM will give the Client written notice of such claim and allow the
Client to have sole authority to dispute, compromise or defend such claim with the
assistance of AmmarM as reasonably requested by the Client (and the Client agrees to
reimburse AmmarM in full for all such assistance).
10. LIMITATIONS OF LIABILITY: THE CLIENT’S ATTENTION IS PARTICULARLY
DRAWN TO THIS CLAUSE
10.1 Subject to Clauses 10.2 to 10.3 (inclusive), AmmarM’s liability to the Client,
whether in contract, tort (including negligence), for breach of statutory duty, or
otherwise arising out of, or in connection with, this Agreement shall not exceed an
amount which is equal to the average annual Fees (calculated by reference to the
Fees in successive twelve (12) month periods from the Effective Date) paid by the
Client as at the date that the relevant liability accrued.
10.2 Subject to Clause 10.3, AmmarM shall have no liability to the Client in any
circumstances, whether in tort (including, without limitation, for negligence or breach
of statutory duty howsoever arising), contract, misrepresentation (whether innocent
or negligent) or otherwise for respect of any: (i) loss of income, sales, business or
revenue; (ii) loss of profits; (iii) loss or corruption of software, data or information; (iv)
loss of business opportunity, goodwill or reputation; (v) business interruption; (vi)
loss of anticipated savings; or (vii) for any indirect or consequential loss or damage
of any kind.
10.3 Notwithstanding anything contained in this Agreement, neither Party excludes
or limits its liability for: (i) personal injury or death resulting from its negligence; (ii)
fraud or fraudulent misrepresentation; or (iii) breach of the terms implied by section 2
of the Supply of Goods and Services Act 1982 or any other liability which cannot be
excluded or limited by law.
10.4 Save as expressly set out in this Agreement, the Services and the AmmarM
Materials are provided to the Client ‘as is’, and ‘as available’, and to the maximum
extent permitted by applicable law, no warranties (whether express or implied) are
made by AmmarM as to their suitability, fitness for purpose, accuracy or otherwise.
10.5 All warranties, conditions and other terms, express or implied (by statute or
otherwise) are, unless expressly set out in this Agreement, excluded from this
Agreement to the fullest extent permitted by applicable law.
11. DURATION AND TERMINATION
11.1 This Agreement shall commence on the Effective Date and, subject to earlier
termination in accordance with its terms, will continue in force for the duration of the
Initial Services Term. Following expiry of the Initial Services Term, this Agreement,
subject to earlier termination in accordance with its terms, will continue in force
thereafter unless and until terminated by either Party giving not less than sixty (60)
days’ written notice of termination to the other, such termination to take effect no
earlier than expiry of the Initial Services Term (the “Term”).
11.2 Without affecting any other right or remedy available to it, either Party may
terminate one or more of the Services by giving the other Party sixty (60) days’ prior
written notice, such termination to take effect no earlier than expiry of the Initial
Services Term. In the event of a Party terminating one or more of the Services in
accordance with this Clause, the terms of this Agreement will continue to apply to the
remaining Service(s).
11.3 Either Party may terminate one or more of the Services or this Agreement in
accordance with Clause 13.2 (Force Majeure).
11.4 Either Party may terminate this Agreement (or at the notifying Party’s option, a
particular Service) immediately by written notice if the other Party:
11.4.1 commits any material or persistent breach of any of its obligations under this
Agreement or any part of this Agreement which relates to the Service in question (as
appropriate) and, in the case of a breach which is capable of remedy, fails to remedy
it within thirty (30) days of being required to do so by notice in writing from the other
Party;
11.4.2 is unable to pay its debts within the meaning of section 123 of the Insolvency
Act 1986, or if it has a receiver, administrator or administrative receiver appointed
over it or over any part of its undertaking or assets, or if it passes a resolution for
winding-up (except for the purpose of a bona fide scheme of solvent amalgamation
or reconstruction) or if a court of competent jurisdiction makes an order to that effect,
or if it becomes subject to an administration order, or if it enters into any voluntary
agreement with its creditors, or if any similar process to any of the above is begun in
any jurisdiction, or if it ceases or threatens to cease to carry on business.
11.5 Without affecting any other right or remedy available to it, AmmarM may
terminate this Agreement with immediate effect by giving written notice to the Client
if:
11.5.1 the Client fails to pay any amount due under the Agreement on the due date
for payment; or
11.5.2 there is a change of Control of the Client.
11.6 Without affecting any other right or remedy available to it, AmmarM may suspend
the supply of all or part of the Services under the Agreement or any other contract
between the Client and AmmarM if the Client becomes subject to any of the events
listed in Clause 11.4.2, or AmmarM reasonably believes that the Client is about to
become subject to any of them.
12. CONSEQUENCES OF TERMINATION
12.1 Expiry or termination of one or more (but not all) of the Services shall not affect
AmmarM’s obligation to provide the remaining Services or the Client’s obligations to
pay the Fees in respect of the remaining Services. When all Services have expired
or terminated, this Agreement shall terminate automatically and all outstanding Fees
due to AmmarM shall become immediately due and payable.
12.2 The termination or expiry of this Agreement (howsoever caused) will not affect
any rights and/or liabilities of either Party which have accrued before termination or
expiry.
12.3 Any provision of this Agreement which expressly, or by implication, is intended
to come into or continue in effect on or after termination or expiry (including, without
limitation, Clauses 2, 4.3.2, 4.3.3, 5, 7, 8, 9, 10, 12 and 14) shall remain in full force
and effect.
12.4 Upon either Party giving written notice to terminate this Agreement (in
accordance with its terms) for any reason, the Client shall within sixty (60) days of
such notice pay the Management Fee to AmmarM.
12.5 Upon termination or expiry of this Agreement (for any reason):
12.5.1 the Client shall immediately pay to AmmarM all of AmmarM’s outstanding unpaid
invoices and interest and, in respect of Services supplied but for which no invoice
has been submitted, AmmarM shall submit an invoice, which shall be payable by the
Client immediately on receipt;
12.5.2 the Client shall (at AmmarM’s request and election) promptly return to AmmarM ,
or render permanently inaccessible, all AmmarM Confidential Information, together
with all other materials in its possession that were disclosed to it by AmmarM under
this Agreement; and
12.5.3 AmmarM’s obligations to the Client under this Agreement, and all licences
granted under this Agreement by a Party, shall immediately cease.
13. FORCE MAJEURE
13.1 Neither Party shall be liable to the other for any delay or non-performance of its
obligations under this Agreement (other than an obligation to pay the Fees) arising
from any cause or causes beyond its reasonable control, including, but not limited to,
any Services not being available due to mechanical breakdown, maintenance,
hardware or software upgrades, telecommunication connectivity problems, outages
from cloud providers, power shortage, network failure, server crashes, deletion,
corruption, or loss or removal of data, where the Client ceases to be entitled to
access the Internet or ceases to have access to the Internet for whatever reason,
any act of God, fire, explosion, storm, flood, tempest, drought, earthquake, accident,
epidemic or disease, war, hostilities, riots, acts of terrorism, legislative changes or
any other changes by any government or authorised body in any relevant territory,
failure or shortage of power supplies, failure of computer systems, non-performance
by suppliers or subcontractors (other than by companies in the same group as the
Party seeking to rely on this clause), labour dispute or any act or omission (including
laws, regulations, disapprovals or failures to approve) of any government or
government agency (a “Force Majeure Event”). The Party subject to a Force Majeure
Event shall promptly notify the other Party of that fact and will use its reasonable
endeavours to minimise the impact of such Force Majeure Event.
13.2 If a Party is prevented from performing its obligations under this Agreement in
relation to any of the Services by a Force Majeure Event which continues for more
than ninety (90) days then either Party will be entitled to terminate this Agreement
with immediate effect, in relation to that Service (or those Services) in question only,
without liability to the other Party on giving written notice of termination to the other
Party.
14. MISCELLANEOUS
14.1 The Client shall not during the Term, nor for a period of twelve (12) months
following the termination or expiry of this Agreement for any reason, on its own
behalf or on behalf of any third party, directly induce, or attempt to induce, any
person employed by AmmarM who has been engaged in the provision of the Services
to the Client to leave the employment of AmmarM or employ or engage in any capacity
any such employee, provided that this restriction shall not apply to any such person
who makes an unsolicited reply to a bona fide public advertisement, including by the
Client on its website, or solicitations conducted by an entity that is acquired by or
merged with the Client, so long as such solicitations were conducted prior to the date
of such acquisition or merger.
14.2 AmmarM may at any time assign, mortgage, charge, subcontract, delegate,
declare a trust over or deal in any other manner with any or all of its rights and
obligations under the Agreement.
14.3 The Client shall not assign, transfer, mortgage, charge, subcontract, declare a
trust over or deal in any other manner with any of its rights and obligations under the
Agreement without the prior written consent of AmmarM.
14.4 If a dispute arises out of, or in connection with, this Agreement or the
performance, validity or enforceability of it (a “Dispute”) then except as expressly
provided in this Agreement, the Parties shall follow the procedure set out in this
clause:
14.4.1 either Party shall give to the other written notice of the Dispute, setting out its
nature and full particulars (a “Dispute Notice”), together with relevant supporting
documents. On service of the Dispute Notice, the Main Client Contact and AmmarM
Contact shall attempt in good faith to resolve the Dispute;
14.4.2 if the Main Client Contact and the AmmarM Contact are for any reason unable
to resolve the Dispute within fourteen (14) days of service of the Dispute Notice, the
Dispute shall be referred to a senior management representative of the Client and an
Authorised Management Representative of AmmarM who shall attempt in good faith to
resolve it; and
14.4.3 if the senior management representative of the Client and the Authorised
Management Representative of AmmarM are for any reason unable to resolve the
Dispute within fourteen (14) days of it being referred to them, 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 shall be nominated by
CEDR. To initiate the mediation, a Party must serve notice in writing (“ADR Notice”)
to the other Party to the Dispute, requesting a mediation. A copy of the ADR notice
should be sent to CEDR. The mediation will start not later than thirty (30) days after
the date of the ADR Notice.
14.5 The commencement of mediation under Clause 14.4.3 shall not prevent the
Parties commencing or continuing court proceedings in relation to the Dispute under
Clause 14.6 which Clause shall apply at all times.
14.6 This Agreement shall be governed by the laws of England and Wales whose
courts shall have exclusive jurisdiction in the event of a failure to resolve any dispute
(including non-contractual disputes) arising between the Parties.
14.7 This Agreement constitutes the entire agreement between the Parties relating
to the matters provided for herein and supersedes all previous agreements,
understandings or arrangements between the Parties relating to these matters and
each of the Parties acknowledges and agrees that in entering into the Agreement it
does not rely on, and will have no remedy in respect of, any statement,
representation, warranty or understanding (whether negligently or innocently made)
of any person (whether Party to the Agreement or not) other than as expressly set
out in the Agreement. Nothing in this Clause shall limit or exclude any liability for
fraud.
14.8 The Parties may propose changes to the Fees, and add, remove or make
changes to the Services, from time to time during the Term. If AmmarM agrees to any
such changes:
14.8.1 AmmarM’s Authorised Representative shall ask the Client to confirm its
agreement to such changes by sending an email in the form set out in Annex A to
this Agreement;
14.8.2 the Main Client Contact shall confirm their agreement to their same (in
accordance with the requirements of Annex A) by return email; and
14.8.3 the changes will come into effect on the date specified in the notice.
If AmmarM wishes to vary the terms of this Agreement in any respect other than the
Fees and/or the Services as above, it will notify the Client of such variation(s), and
require the Client to accept such variation(s) before continuing to use the Services.
AmmarM reserves the right to suspend or terminate this Agreement (including the
provision of the Services) with immediate effect if the Client does not accept any
such variation(s).
14.9 The waiver by either of the Parties of any breach of any of the provisions of this
Agreement shall not prevent the subsequent enforcement of that provision and shall
not be deemed a waiver of any subsequent breach. The rights of either of the Parties
shall not be prejudiced or restricted by any time, indulgence or forbearance extended
to the other.
14.10 Any notices to be given under this Agreement shall, unless otherwise
expressly stated, be in writing and shall be given by sending the same by email (if to
the Client, to the Main Client Contact specified on the Order Form of this Agreement,
or such other email address as the Client may notify to AmmarM in writing from time to
time during the Term; if to AmmarM, to the AmmarM Contact specified on the Order
Form to this Agreement or such other email address as AmmarM may notify to the
Client in writing from time to time during the Term). Any notice by email shall be
deemed to have been delivered on the same day (if sent before 17:00) and with a
valid read receipt that is successfully returned to the sender. If a return read receipt
is not received by the sender, the email shall not be deemed to be received. This
Clause does not apply to the service of any proceedings or other documents in any
legal action or, where applicable, any other method of dispute resolution.
14.11 A person who is not a Party to this Agreement shall have no rights under the
Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
14.12 This Agreement may be executed in any number of counterparts, each of
which when executed shall constitute a duplicate original, but all the counterparts
shall together constitute the one agreement.
14.13 The invalidity or unenforceability of any provision, part-provision or any right
arising under this Agreement shall not affect the validity or enforceability of any other
provisions or rights. If any provision or part provision is adjudged to be invalid or
unenforceable but would be adjudged valid or enforceable if any part(s) of their
wording were deleted or modified, the relevant provisions shall apply with such
deletions or modifications as may be necessary to make them valid and effective.