Terms and Conditions

FOR THE SUPPLY of MARKETING AGENCY SERVICES

1              Definitions and Interpretation

The following definitions and rules of interpretation apply in this agreement and to any contract between the parties.

1.1          Definitions:

Term	Meaning
Accounts	Means all the Client’s products and services;
Agency Material	Means all artwork, copy, models, designs, photographs, software and all other material created by The Masters Of Brands Limited for the Content in connection with Accounts by directors or employees of The Masters Of Brands Limited, whether or not it is incorporated into Content during the Term;
Agreement	Means the contract between the parties for the supply of Services in accordance with these terms;
Advertising Regulation	Means any present or future applicable code of practice, adjudication, decision, guideline, direction or rule of any Advertising Regulator and includes any applicable modification, extension or replacement thereof in force from time to time;
Advertising Regulator	Means the Office of Communications (“OFCOM”), the Broadcast Committee of Advertising Practice (“BCAP”), the Committee of Advertising Practice (“CAP”), the Advertising Standards Authority (“ASA”) and any other UK or EU regulator or statutory or regulatory body relevant to the Advertising and/or the Services to be provided under this Agreement;
ARMSTRONG	Means The Masters Of Brands Limited, a company incorporated in England with registered number 2616313 whose registered office is at Suite 10, Dodleston House, Bell Meadows Business Park, Park Lane, Pulford, Chester CH4 9DG, England.
Client	Means the person or Firm who purchases Services from The Masters Of Brands Limited
Commencement Date	Means the date specified in Clause 3;
Commissioned Material	Means all artwork, copy, models, designs, photographs, software, films, sound recordings and all other material the creation of which is commissioned by The Masters Of Brands Limited from third parties during the Term for the Content;
Content	Means all content produced by The Masters Of Brands Limited for the Client under the terms of this Agreement;
Independent Auditor	Means a suitably qualified and independent auditor;
Initial Period	Means the period specified in Clause 3;
Moral Rights	Means all rights described in Part I, Chapter IV of the Copyright Designs and Patents Act 1988 and any similar rights of authors anywhere in the world;
Order	Means the Client’s order for Services as set out in the Client’s written acceptance of The Masters Of Brands Limited proposal or overleaf, as the case may be.
Performer’s Property Rights	Means all rights described in Part II, Chapter X of the Copyright, Designs and Patents Act 1988 and any similar rights of performers anywhere in the world;
Records	Means such accounts and records maintained by The Masters Of Brands Limited of all expenditure which is reimbursable by the Client under this Agreement and as are reasonably necessary for the purpose of enabling the Client to conduct an audit of that expenditure, including (but not limited to) evidence of the appearance of Content in accordance with any agreed media schedule;
Rights	Means any copyright, extended or revived copyright, design right, registered design right, patent, performer’s property right, trade mark, database right or any similar right exercisable in any part of the world, including any application for registration of any patent, trade mark, registered design or similar registerable rights in any part of the world;
Services	Means those services The Masters Of Brands Limited shall perform for the Client as agreed between the parties in writing from time to time, either in any Order or otherwise;
Term	Means the period from the Commencement Date until the termination of this Agreement;
Working Day	Means a day (other than a Saturday or a Sunday) on which the clearing banks in the City of London are open for business;
Year	Means all rights described in Part I, Chapter IV of the Copyright Designs and Patents Act 1988 and any similar rights of authors anywhere in the world;

1.2        Clause and paragraph headings shall not affect the interpretations of this agreement.

1.3        A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

1.4        Any documents referred to in this agreement form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes any document referred to in it.

1.5        A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6        A reference to any party shall include that party’s personal representatives, successors and permitted assigns.

1.7        A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.8        A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.9        A reference to writing or written includes fax and e-mail.

1.10      Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.11      References to clauses are to the clauses of this agreement.

1.12      Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular, and a reference to one gender shall include a reference to the other genders.

1.13    Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.

1.14      Where any statement is qualified by the expression so far as a party is aware or to a party’s knowledge (or any similar expression), that statement shall be deemed to include an additional statement that has been made after due and careful enquiry.

1.15    Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2              Agreement to Act as Agency

2.1          An Order constitutes an offer by the Client to purchase Services in accordance with this Agreement; an Order shall be deemed accepted when The Masters Of Brands Limited issues an acceptance of the Order (which can be written or verbal), at which point the Agreement and the contract between the parties shall come into existence.

2.2          These terms apply to the Agreement and the contract between the parties for the provision of Services to the exclusion of any other terms that the Client may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.3          By entering into the Agreement, the Client appoints The Masters Of Brands Limited to carry out and The Masters Of Brands Limited agrees to provide the Services to the Client in relation to the Accounts during the Term in accordance with the terms of the relevant Order and this Agreement.

2.4          The Masters Of Brands Limited shall provide the Services from the date of this agreement and shall continue to provide the Services unless and until this agreement is terminated in accordance with clause 25 below.

3              Agency Services

3.1          The Masters Of Brands Limited shall provide the Services to the Client in substantial accordance with the scope of such Services and from such date as agreed between the parties from time to time (“the Commencement Date”), either in an Order or otherwise.

3.2          The Masters Of Brands Limited shall allocate sufficient resources and suitable personnel with appropriate levels of experience and seniority to service the Accounts and provide the Services.  The Client acknowledges and agrees that it may be necessary for The Masters Of Brands Limited to replace the personnel servicing the Accounts with alternative personnel with similar levels of seniority and experience.

3.3          The Masters Of Brands Limited warrants to the Client that The Masters Of Brands Limited will perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry for similar services.

4              Co-operation

The Client shall provide The Masters Of Brands Limited with clear and complete briefings as well as and ensure that all such information provided to them in relation to the Accounts is complete, legal and accurate. The Masters Of Brands Limited shall co-operate fully with the Client and use reasonable skill and care in accordance with good industry practice in providing the Services to make the Content as successful as is to be expected from a competent marketing services agency. The Client shall help The Masters Of Brands Limited do this by making available to The Masters Of Brands Limited all relevant information and co-operating with The Masters Of Brands Limited.

5              Agency’s Status

The Masters Of Brands Limited acts in all its contracts as a principal at law. Nothing in this Agreement shall be construed to create a partnership or joint venture relationship between the parties or to authorise either party to act as the agent for the other party.

6              Approvals and Authority

6.1          Any reference in this Agreement to the Client’s “Written or Verbal Approval” shall mean written or verbal approval by directors or employees of the Client authorised to approve The Masters Of Brands Limited work and/or expenditure (“Authorised Person”).

6.2          For the purposes of this Agreement Written Approval shall mean approval signified by:

6.2.1          any fax, letter or purchase order on the Client’s notepaper bearing the signature of an Authorised Person; or

6.2.2          e-mail sent from the personal or business e-mail address of an Authorised Person.

6.3          The Masters Of Brands Limited shall, after obtaining the Client’s general Written or Verbal Approval of its plans in relation to Content and the Services (whether campaign-specific or otherwise), submit to the Client for its specific Written or Verbal Approval:

6.3.1          copy, layouts, artwork, storyboards and/or scripts;

6.3.2          estimates or quotations of the cost of the various items of Content and other services covered by this Agreement together with terms of payment.

6.4          The Client’s Written or Verbal Approval of copy, layouts or artwork shall be The Masters Of Brands Limited authority to prepare proofs. The Client’s Written or Verbal Approval of proofs shall be The Masters Of Brands Limited authority to publish and / or post.

6.5          The Masters Of Brands Limited shall advise the Client immediately of any changes in the estimated cost of items of Content or any changes in plans, schedules or work in progress previously approved in writing or verbally by the Client.

7              Contact Reports

Should contact reports be prepared by The Masters Of Brands Limited, providing each party with a written record of all matters of substance discussed at meetings or in telephone conversations between the parties, these shall be supplied to the Client within 2 Working Days following the meeting or conversation. If the subject matter of a contact report is not questioned by the Client within 2 Working Days of its receipt, it shall be taken to be an accurate record of the meeting (whether virtual or in person) or telephone conversation to which it refers.

8              Amendments to Work in Progress

8.1          The Client may request The Masters Of Brands Limited to cancel or amend any and all plans, schedules or work in progress. The Masters Of Brands Limited shall take all reasonable steps to comply with any such request provided that The Masters Of Brands Limited is able to do so within its contractual obligations to media and suppliers.

8.2          In the event of any such cancellation or amendment the Client will reimburse The Masters Of Brands Limited for any changes or expenses incurred by The Masters Of Brands Limited to which The Masters Of Brands Limited is committed. The Client will also pay The Masters Of Brands Limited remuneration covering the cancelled or amended Services as well as any charges imposed on The Masters Of Brands Limited by third parties arising from the cancellation or amendment.

9              Disbursements

9.1          The Masters Of Brands Limited shall invoice the Client in respect of the following approved costs incurred by The Masters Of Brands Limited in performing the Services:

9.1.1          The cost of all production work required to produce the Content including concepts, design, film production, artwork, photography, model and props fees, recordings, the services of performers, block-making, typesetting and print work.

9.1.2          Production costs involved in the preparation of packaging, labels and cartons, exhibition and display materials, booklets, sales letters, product publicity and other promotional materials or services as may be prepared or suggested by The Masters Of Brands Limited and agreed by the Client.

9.1.3          All costs incurred in the packing, despatch, transport and mailing of all production, promotional, advertising, press relations and other media or special projects incurred in the carrying out of the Client’s Services or instructions and safeguarding the Client’s interests.

9.1.4          All costs incurred in taking legal or other advice and undertaking trade mark or other searches and enquiries, as agreed by the parties from time to time;

9.1.5          All travel, hotels, subsistence and other related expenses, incurred by The Masters Of Brands Limited personnel in the carrying out of the Client Services.

9.1.6          Any other item agreed between the parties in writing.

10           Market Research

The basis of the charges for any market research carried out by the Agency or on its behalf will be agreed with the Client in writing in advance in respect of any projects that are agreed to be necessary to provide data on which to base any marketing, promotional or communications strategies.

11           Other Services

The terms of remuneration set out above do not cover services not included in the Services agreed in writing between the parties from time to time, or any other additional services. If such services are required a separate remuneration arrangement shall be negotiated.

12           Fluctuations in Currency Values

The cost to The Masters Of Brands Limited relating to the Content may be more or less than the cost anticipated at the date when The Masters Of Brands Limited ordered the relevant materials or services, (or obtained the Client’s approval for such costs) as a result of fluctuations in the rate of currency exchange. If so, The Masters Of Brands Limited shall charge the Client at the rate of currency exchange in operation on the date The Masters Of Brands Limited pays for the relevant media, materials or services, which shall be deemed to be the closing mid-point rate in London for that day as subsequently quoted in the next published edition of The Financial Times.

13           Value Added Tax

VAT shall be included and itemised separately on Agency invoices, where appropriate, at the rate prevailing from time to time.

14           Evaluation

The parties shall conduct a full two-way evaluation and review of their relationship every calendar year end. Any resulting changes agreed to the Services, the remuneration or any other aspect of the Agreement shall be agreed in writing, failing which the arrangements in place at the time of the evaluation, for instance as to Agency remuneration, shall continue to apply.

15           Terms of Payment

15.1        In this clause, payment of an invoice within a specified number of days means payment within that number of days after the date of the invoice in question.

15.2        The Masters Of Brands Limited shall invoice the Client in respect of the provision of the Services, any associated deliverables and all related costs or disbursements including fees as specified in the Order or as agreed between the parties from time to time and the Client shall pay that invoice within 30 (thirty) days save for any items or services which the parties have agreed shall require payment in advance, or at any other payment date specified in the Order.

15.3        The Masters Of Brands Limited reserves the right to charge interest on all invoices presented to the Client which are not paid by the relevant due date at the annual rate of 8% above the base rate from time to time of Lloyds Bank plc.  Such interest shall accrue on a daily basis from the date on which payment became overdue up to the date on which The Masters Of Brands Limited receives the full outstanding amount together with all accrued interest.

15.3.1        If full payment is not made within our terms, (eg 30 days) collection will be passed to our third party debt recovery specialists where a charge of 15% plus vat will be incurred on the unpaid amount. Additionally, Statutory Interest will also be applied to the unpaid amount.

15.4        Where a surcharge is levied by a supplier of services, a platform or other supplier against The Masters Of Brands Limited due to late payment and this results from late payment by the Where a surcharge is levied by a supplier of services, a platform or other supplier against The Masters Of Brands Limited due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to The Masters Of Brands Limited the amount of such surcharge, together with any accrued interest charged by The Masters Of Brands Limited in respect of the overdue amount.

15.5        Client, the Client shall immediately reimburse to The Masters Of Brands Limited the amount of such surcharge, together with any accrued interest charged by The Masters Of Brands Limited in respect of the overdue amount.

15.6        In the event of The Masters Of Brands Limited credit insurers revising or withdrawing cover for the Client, The Masters Of Brands Limited reserves the right to revise its terms of payment and if necessary seek suitable guarantees from the Client. If it is not possible to reach agreement on suitable revised terms The Masters Of Brands Limited shall have the right of termination set out in Clause 26.

15.7        Each party shall pay all monies which are payable by it to the other without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party.

16           Platforms and Suppliers: Business Terms and Selection

16.1        Unless otherwise stated in this Agreement, The Masters Of Brands Limited contracts with platforms and suppliers in respect of the Services shall be made in accordance with standard or individual conditions and contracts. The rights and liabilities as between the Client and The Masters Of Brands Limited shall correspond to those between The Masters Of Brands Limited and the various platforms and other suppliers under such conditions, including in particular any rights of amendment, omission and cancellation.

16.2        The Masters Of Brands Limited shall use reasonable skill and care in the selection and appointment of platforms and suppliers and the agreement of the terms and conditions of such appointment.

17           Copyright and other Rights

             All Rights in the Content and any product of the Services (including, without limitation, copyright, design, trade mark and database rights) arising in connection with the operation of this agreement shall be the property of The Masters Of Brands Limited, and The Masters Of Brands Limited hereby grants the Client a non-exclusive licence of such Rights for the purpose of realising the benefit of the Services provided by The Masters Of Brands Limited and the campaign to which it relates. Should the Client wish to obtain an assignment of any Rights in the Content or the products of the Services, a further fee in respect of such assignment shall be agreed with The Masters Of Brands Limited.

18           Custody of Material

18.1        The Masters Of Brands Limited shall keep in its care any materials entrusted to The Masters Of Brands Limited by the Client (the “Property”). The Masters Of Brands Limited shall mark or otherwise identify the Property as being the property of the Client.

18.2        The Masters Of Brands Limited shall be entitled to destroy or delete Property without the Client’s prior written consent, after a period of (12) twelve months from the date of termination of this Agreement.

19           Insurance

             Without prejudice to its obligations under this Agreement, The Masters Of Brands Limited shall effect and maintain with reputable insurers such policy or policies of insurance as may be necessary to cover The Masters Of Brands Limited obligations and liabilities under this Agreement.

20           Confidential Information

20.1        “Confidential Information” means: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:

(a)        identified as confidential at the time of disclosure; or

(b)        ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

20.2        Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

20.3        Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.

20.4        The obligations set out in this clause 20 shall not apply to Confidential Information which the receiving party can demonstrate:

(a)        is or has become publicly known other than through breach of this clause 20; or

(b)        was in possession of the receiving party prior to disclosure by the other party; or

(c)        was received by the receiving party from an independent third party who has full right of disclosure; or

(d)        was independently developed by the receiving party; or

(e)        was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.

20.5        The obligations of confidentiality in this clause 20 shall not be affected by the expiry or termination of this agreement.

20.6        The Client acknowledges and agrees that any identifiable and original idea or concept presented by The Masters Of Brands Limited in relation to any Content invented or developed by The Masters Of Brands Limited shall be acknowledged as being available only for such promotion or campaign and shall not be used for any other purposes whatsoever without The Masters Of Brands Limited express prior written consent. Even where no promotion or campaign is agreed, the ideas and concepts presented to the Client shall remain strictly confidential and shall not be used in any way, including communication to any third party, without The Masters Of Brands Limited express prior written consent.

20.7        The Client acknowledges that nothing in this Agreement shall affect The Masters Of Brands Limited right to use as it sees fit any general marketing, media or content intelligence gained by The Masters Of Brands Limited in the course of its appointment.

21           Warranties and Indemnities

21.1        If there is an error in Content or the Services as published or publication is delayed or does not occur as planned, The Masters Of Brands Limited shall not be liable unless this is caused by its default or neglect.

21.2        Should either party or its employees sustain any loss or liability, costs (including legal costs) or damages as a result of the other’s breach of this Agreement, the party in breach shall indemnify the other subject to the provisions of this clause 21.

21.3        The Client warrants that to the best of its knowledge information and belief all information supplied to The Masters Of Brands Limited pursuant to the terms of this Agreement before and during the Term shall be legal, accurate and not in any way contrary to any applicable law or other regulation.

21.4        The Masters Of Brands Limited warrants that having taken such legal or other advice in respect of the Content as the parties consider necessary and having undertaken such trade mark searches and other enquiries as the parties may agree should be undertaken, the publication of the Content shall, to the best of The Masters Of Brands Limited knowledge and belief, not infringe any third party rights or be in any other way contrary to law other than as contained in any legal or other advice provided to The Masters Of Brands Limited and communicated to the Client.

21.5        The Client accepts full legal responsibility in respect of any Content approved by it for publication and shall indemnify The Masters Of Brands Limited in respect of any loss or liability, costs (including legal costs) or damages incurred as a result of any use of the Content by the Client for advertising or marketing purposes.

21.6        The Masters Of Brands Limited warrants that its personnel working on the Services are and shall be competent and suitable in every respect, whether as to qualifications, experience or otherwise, to perform the Services.

21.7        The Client represents and warrants to The Masters Of Brands Limited that any information supplied to The Masters Of Brands Limited for inclusion in Content or use in the provision of the Services:

(a)        is original to the Client or that the Client has secured the rights to provide and use such information;

(b)        does not contain any content that is unlawful, threatening, harassing, profane, tortious, defamatory, libellous, deceptive, fraudulent, invasive of another’s privacy or publicity, or

(c)        does not contain a virus or other harmful component.

21.8        The Client confirms that it is expressly understood and agreed that in planning any marketing activity (regardless of medium), The Masters Of Brands Limited shall use its reasonable endeavours to ensure the accuracy of all estimated and target figures relating to:

21.8.1       the number, proportion or type of people likely to be exposed to the Content;

21.8.2       the number of exposures each person is likely to receive; and

21.8.3       the cost of achieving these exposures.

Since these are matters which are ultimately beyond The Masters Of Brands Limited control, no warranties can be given by The Masters Of Brands Limited as to the accuracy of such estimates/targets or as to the figures actually occurring and no liability shall attach to The Masters Of Brands Limited in respect of any losses suffered by the Client or by any third party by reason of the Client’s reliance on such estimates/targets.

21.9      Both parties represent and warrant that:

(a)        it has the right, power and authority to enter into this Agreement and to perform all of its obligations hereunder;

(b)        the performance of such obligations shall not conflict with or result in a breach of any agreement to which they are a party or is otherwise bound;

(c)        its performance under this Agreement shall comply with all applicable laws, rules and regulations.

22           Limitation of Liability

22.1        Nothing in this agreement shall operate to exclude or limit The Masters Of Brands

             Limited liability for

             (a)        death or personal injury caused by its negligence; or

             (b)        any breach of the terms implied by section 2 of the Supply of Goods and

                          Services Act 1982; or

(c)        fraud; or

(d)        any other liability which cannot be excluded or limited under applicable law.

22.2        The Masters Of Brands Limited shall not be liable to the Client for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.

22.3        Subject to clause 25.1, The Masters Of Brands Limited aggregate liability in respect of claims based on events arising out of or in connection with this agreement or any Order, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the charges or Fees payable by the Client to The Masters Of Brands Limited under this agreement in relation to the relevant and most recent Order.

22.4        This Agreement states the full extent of The Masters Of Brands Limited obligations and liabilities in respect of the Content and the performance of the Services.  The parties agree that any condition, warranty representation or other term concerning the Content and/or the performance of the Services which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by law.

23           Termination

23.1        Either party may terminate this Agreement forthwith by notice in writing to the other if:

23.1.1       the other party is in material breach of any of the terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 30 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it (for the avoidance of doubt, any failure on the part of the Client to pay any invoice within payment terms may be treated by The Masters Of Brands Limited as a material breach of this Agreement); or

23.1.2       passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or

23.1.3       becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or

23.1.4       has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or

23.1.5       ceases, or threatens to cease, to carry on business.

23.2        The parties’ rights, duties and responsibilities shall continue in full force during the agreed period of notice and whether or not there is a period of notice, the Client shall pay all sums due in respect of work done and expenditure committed by The Masters Of Brands Limited until the end of the Term.

23.3        Upon the termination of this Agreement and payment by the Client of all items properly chargeable to the Client hereunder, The Masters Of Brands Limited shall give the Client all reasonable co-operation in transferring, subject to the approval of third parties where required, all reservations, contracts and arrangements with media or others for space, time or materials yet to be used.

24           Survival of Obligations on Termination

The following clauses shall survive the end of the Term:

Clause 17         Copyright and other Rights

Clause 18         Custody of material

Clause 20         Confidential information

Clause 21         Warranties and indemnities

Clause 22         Limitation of liability

Clause 29         Non-solicitation

Clause 34         Notices

Clause 36         Governing Law & Jurisdiction

Clause 37         Dispute resolution

25           Advertising Standards and Levies

25.1        Both parties shall comply with all applicable laws and Advertising Regulations issued, made or given by any Advertising Regulator.

25.2        The parties shall co-operate with each other in ensuring that suitable objective factual product and other information is available as required to satisfy the requirements of any applicable law or Advertising Regulation.

25.3        The Client shall inform The Masters Of Brands Limited without delay if the Client considers that any Content submitted to the Client by The Masters Of Brands Limited for approval is false or misleading or in any way contrary to law or to any applicable Advertising Regulation.

26           Data Protection

26.1        The Masters Of Brands Limited warrants that, to the extent it processes any Personal Data on behalf of the Client:

(a)        it shall act only on instructions from the Client; and

(b)        it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.

26.2        In this clause 26, Personal Data has the meaning given in the Data Protection Act 1998.

27           Variation and Waiver

27.1        A variation of this agreement shall be in writing and signed by or on behalf of both parties to this agreement.

27.2        A waiver of any right under this agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

27.3        Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

28           Force Majeure

28.1      The definition in this clause applies in this agreement.

“Force Majeure Event”: any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).

28.2      A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay shall continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.

29           Non-solicitation

The parties agree that neither of them shall either on their own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during or for a period of (12) twelve months from the end of the Term solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any employee of the other party who has worked on or in relation to the Content or the Services at any time during the last (12) twelve months of the Term.

30           Severance

If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, it shall be deemed modified to the minimum extent to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

31           Assignment

This Agreement is personal to the parties and neither party shall assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it without the prior written consent of the other party, such consent not to be unreasonably conditioned, withheld or delayed.

32           Third Party Rights

This agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.

33           Entire Agreement

This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes and replaces any and all prior agreements, understandings or arrangements between the parties, whether oral or in writing, with respect to the same. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedies shall be for breach of contract as provided in this Agreement.

34         Notices

34.1      A notice given under this agreement:

(a)        shall be in writing in the English language (or be accompanied by a properly prepared translation into English);

(b)        shall be sent for the attention of the person, and to the address, fax number or e-mail address given in this clause 34 (or such other person, address, fax number or e-mail address as the receiving party may have notified to the other, such notice to take effect five days from the notice being received); and

(c)        shall be:

(i)         delivered personally; or

(ii)        sent by fax or e-mail; or

(iii)          sent by pre-paid first-class post, recorded delivery or registered post; or

(iv)          (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail.

34.2      A notice is deemed to have been received:

(a)        if delivered personally, at the time of delivery; or

(b)        in the case of fax or e-mail, at the time of transmission, provided a confirmatory copy is sent by first-class pre-paid post or by personal delivery before the end of the next Business Day; or

(c)        in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting; or

(d)        in the case of registered airmail, five days from the date of posting; or

(e)        if deemed receipt under the previous paragraphs of this clause 34.2 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.

34.3      To prove service, it is sufficient to prove that the notice was transmitted by fax to the fax number or e-mail address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

35         Publicity

All media releases, public announcements and public disclosures by either party relating to this agreement or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties prior to release save for The Masters Of Brands Limited listing and naming the Client as a user of their Services.

36           Governing Law and Jurisdiction 

36.1      This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.

36.2      The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

37         Dispute Resolution

37.1      If any claim or dispute arises under or in connection with this Agreement, the parties shall attempt to settle such claim or dispute by negotiation.

37.2      If the parties have not settled any claim or dispute by negotiation within (30) thirty days from the initiation of the negotiation, the dispute shall be referred to and finally resolved by the Courts in accordance with this clause 37.

Note:  Completion of a 15 Fifteen Page Terms and Conditions Document – 01 to 37.2.