MFL STANDARD TERMS AND CONDITIONS – SUPPLY OF SERVICES

 These terms and conditions (“Terms”) govern the purchase of Services from Mobile Force Ltd, a company registered in England with a company number 06934379, whose registered address is 71-75 Shelton Street, London, WC2H 9JQ (hereinafter “MFL”)

1. DEFINITIONS AND INTERPRETATION

1.1    In these Terms:

“Advertising Network” means the third parties who actually serve digital ads, for example, Google Ads, Facebook Ads, LinkedIn Ads, Bing Ads, Twitter Ads, Adroll and any respective media serving/buying platforms.

“Affiliated Party” means any Person in an employment, partnership or services relationship with Client, or any Person who has a commercial, professional or advisory relationship with Client, or any other agents, associates or any related companies or parties with respect to Client.

“Agreement” means these Terms including any agreement, letter of intent, quotation, Brief and any schedules, variations and amendments agreed signed and initialled by the Parties.

“Brief” means the idea or instruction which will be set out between the Parties for the provision of the Services by MFL, based on conversations or email exchanges.

“Business Day” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England and Wales.

“CDN” means ‘Content Delivery Network’, a system of distributed servers (network) that deliver pages and other web content to a user, based on the geographic locations of the user, the origin of the webpage and the content delivery server.

“Click Fraud” means a person, computer program or automated script maliciously registering clicks on pay-per-click (PPC) advertising whereby each click accrues as a cost to the advertiser, even though the clicks are driven by people who have no interest in the advertised product or service.

“Confidential Information” shall mean all information disclosed by one Party to the other, orally in writing or in electronic form relating to any Agreement that is not in the public domain (except where disclosure is in the public domain due to a breach of this clause). It shall also include information, documents, drawings, reports or data MFL may acquire or generate under or in connection with this Agreement.

“Client” means the Person that requires the Services subject to these Terms and any Agreement.

“Effective Date” means the date on which the provision of the delivery of the Services will commence as agreed by the Parties.

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights to use and preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or 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.

“Material Contact” means personal contact, or the supervision of the efforts of those who have direct personal contact, by Client with any MFL Client.

“MFL Client” means any Person that has a commercial relationship with MFL;

“Order” means the Client’s order to acquire the Services from MFL as set out in the respective Agreement.

“Party” mean MFL or Client.

“Parties” means MFL and Client.

“Person” means any individual, corporation, partnership, branch, business unit, limited partnership, sole proprietorship, governmental or regulatory body, un-incorporated organisation or any other entity of any nature whatsoever.

“Purchase Order” means the document which is issued after agreeing a Brief which will incorporate the terms and conditions of this Agreement and details of the Services to be provided by MFL as well as timings and payment terms.

“Services” means the services to be provided by MFL under any Agreement including but not limited to creative, digital, content strategy, design, web design and development, photography and copywriting.

“SSL” means Secure Sockets Layer establishing an encrypted link between a web server and a browser, to be able to create an SSL connection a web server requires an SSL certificate.

“Xero Software” means the accountancy software used by MFL.

1.2          The headings of these clauses shall not affect the interpretation thereof.

1.3          If there is any inconsistency between what is set out in any of the conditions in these Terms and what is set out in any Purchase Order, the Purchase Order shall prevail.

1.4          If there is any inconsistency between what is set out in any of the conditions in these Terms or any Purchase Order and what is set out in any communication in writing or variation (“Variation”) agreed in writing between the Parties, the Variation shall prevail.

1.5          These Terms, any Purchase Order, any Agreement and any Variation are the entire agreement between the Parties and supersedes any representations, documents, negotiations or understandings, whether oral or written, made, carried out or entered into before the date of receipt of these Terms, except that this clause 1.5 shall not exclude liability in respect of any fraudulent misrepresentation.

1.6           For the purposes of these Terms, a ‘consumer’ is a Client who is using the Services as an individual for purposes wholly or mainly outside of his/her trade, business, craft or profession and a ‘business customer’ is a Client who is using the Services for purposes relating to its trade, business, craft or profession. Some of these Terms only apply to consumers and some of these Terms only apply to business customers, and if so that will be clearly stated in these Terms.

2. BASIS OF SALE AND SERVICE

2.1          MFL accepts Orders in writing (for the purposes of these Terms ‘in writing’ means by letter or email but not by fax).

2.2          No variation to these Terms shall be binding unless agreed in writing between the authorised representatives of Client and MFL.

2.3          Sales literature, price lists and other documents issued by MFL in relation to the Services are subject to alteration without notice and do not constitute offers to sell the Services. No contract for the sale of the Services shall be binding on MFL unless MFL has issued a document in writing which is expressed to be an offer to sell the Services or has accepted an Order placed by the Client by whichever is the earlier of:

2.3.1     MFL’s written acceptance;

2.3.2     provision of the Services; or

2.3.3     MFL’s invoice.

2.4          Any typographical, clerical or other accidental errors or omissions in any sales literature, Brief quotation, price list, acceptance of offer, invoice or other document or information issued by MFL shall be subject to correction without any liability on the part of MFL.

2.5          MFL will not be under any obligation to provide an estimate to Client.

2.6          Any quotation will be subject to a credit check and Client agrees that any quotation or works will only proceed based upon MFL accepting any credit check as satisfactory.

2.7          Where a deposit on works is required it will be set out in the respective Brief.

2.8          Orders shall not be deemed confirmed until any deposit or pre-payment, where required, for Services is made by the Client.

2.9          Any MFL quotation or Brief is not an offer but merely an invitation to the Client to make an Order for Services under the terms and conditions of any Brief or quotation.

2.10        MFL will only be bound by to an Agreement provided in writing to Client.

2.11        MFL will not be bound to any estimates provided orally.

2.12        No variation or modification of or substitution for these Terms (even if included in or referred to in the Brief placing an Order) shall be binding on MFL unless specifically accepted by MFL in writing.

2.13        Client shall be responsible for providing MFL with all information relevant to the supply of the Services within sufficient time to enable MFL to duly perform any Services and shall ensure that the details set out in any Brief and including but not limited to any drawings, sketches, specifications, descriptions or other instructions supplied by Client or any agent or representative of Client in connection with the supply of any Services by MFL are accurate and fully describe Client’s requirements and Client shall be liable for each liability, loss, injury, damage, demand, claim, cost, charge or expense which may be incurred or sustained by MFL by reason of or arising directly or indirectly out of or in respect of any inaccuracy in respect of any such drawings, sketches, specifications, descriptions or other instructions in relation thereto, or where the compliance with, or use of any such any details, drawings, sketches, specifications, descriptions or other instructions by MFL constitutes the infringement of the Intellectual Property Rights or other rights of any third party.

2.14        MFL may refuse to accept an Order:

2.14.1   where Services cannot be delivered;

2.14.2   where MFL cannot obtain authorisation for Client’s payment;

2.14.3    if there has been a pricing or product description error;

2.14.4    if Client does not meet any eligibility criteria set out in these Terms; or

2.14.5   for any other reason at MFL’s sole discretion.

2.15        Any estimate supplied by MFL is subject to withdrawal at any time before receipt of an unqualified acceptance from Client.

2.16        Any illustrations, examples or descriptive material provided by MFL, including content, designs, drawings or specifications shall not form part of any Agreement, but shall be treated as approximate only unless specifically stated otherwise.

2.17        The validity of any estimate or Brief will be set out in any Agreement and, unless stated otherwise in writing, shall be deemed withdrawn unless it accepted within 14 days.

2.18        Unless otherwise specified, all estimates provided are done on an ‘as is’ basis and are not a fixed price quotation or flat fee.

2.19        Any estimate or quotation provided by MFL may be revised at any time for any reason.

2.20        If Client is a consumer, Client has the right to change his/her mind and cancel his/her Order by e-mailing [email protected] within 14 days of the Order confirmation email but this right will be lost if Client requests for MFL to start providing the Services during the 14-day cancellation period and the Services are fully performed during this period.

2.21        If Client is a consumer, any Services must be provided with reasonable care and skill and any Services must be in conformity with any Agreement. If a Service is not carried out with reasonable care and skill, Client can ask MFL to repeat the Service or to fix it or repay some or all fees if MFL cannot fix it.

3. DETAILS OF SERVICES OFFERED

3.1          Starting from the Effective Date, MFL shall, in consideration of the fees being paid in accordance with clauses 4 and 5, provide any or all of the Services as outlined in the following sections and as expressly identified in any Agreement, using generally accepted standards of technology and skill.

3.2          Unless specifically set out in any Brief, time will not be of the essence in the performance of any Agreement.

3.A. Account-based Marketing

3.A.1    MFL’s Account-based Marketing Services include prospect data building, emailing, LinkedIn activity, direct mail, telemarketing, and pay-per-click (please see separate terms for Pay-Per-Click Services in clause 3.B.).

3.A.2       Data-building: MFL builds prospect data as per Client brief, taking into account various B2B and other data sources, including LinkedIn. The data accuracy depends solely on these data sources and MFL takes no responsibility for any glitch or error in any data accuracy obtained from the aforementioned sources.

3.A.3       Emailing: MFL reaches out to prospects via personal email addresses set up on Client domain. Sufficient measures are undertaken to ensure email data validity and daily limits on email volume are strictly adhered to. Anything beyond these precautions is out of MFL’s control and MFL takes no responsibility for any email blacklisting or other email issues that might occur with Client’s domain for any reason whatsoever.

3.A.4       LinkedIn: MFL requires access to a personal LinkedIn account for all LinkedIn outreach activities. It is important to note here that LinkedIn’s business terms technically do not allow sharing of personal account details with any third party, and MFL takes no responsibility for any account suspension or related issues that the Client may incur on LinkedIn due to this reason.

3.A.5       Direct Mail: MFL relies on third parties for print and delivery of direct mail. MFL takes no responsibility for any errors or delays in direct mail activity for any reason whatsoever.

3.A.6       Telemarketing: MFL’s telemarketing service is booked in bundles of hours at the quoted hourly rate and never on performance. All telemarketing activities are to be undertaken at Client’s risk and no minimum level of performance is guaranteed.

3.A.7      All proposals for account-based marketing are line-itemed in a manner whereby MFL’s Campaign Manager is able to manoeuvre the overall budget between the individual components of each line-item as and how necessary during the campaign. This flexibility allows the overall proposal to be final even though the line-items may not be so.

3.A.8      Client may request pre-approval of all account-based marketing copies to be used at the campaigns.

3.A.9      Under no circumstances MFL takes any responsibility for any incidental harm or damage caused to the image or goodwill of any individual or organisation during any campaign that has been pre-approved by Client and Client agrees to fully indemnify and hold MFL harmless from any claim arising out of any such situation.

3.B. Pay-Per-Click

3.B.1       For all Pay-Per-Click Services, the Parties agree that post an initial discussion, all increases and variations in advertising budget and advertising spend will be set out in writing by email following any Agreement.

3.B.2       Minimum terms will be as per quotations raised in Xero Software or in email communications. Media spend can be paused by Client, but any fees due to MFL for any minimum term will remain due and payable.

3.B.3       MFL will attempt to keep spend within daily budgets, but it cannot be guaranteed, especially where targeting high traffic volumes. This is due to third party platforms. Where spend does go over budget due to third party platforms, Client agrees to accept liability for any third party’s unintentional extra spend (for an example explanation of this from Google, see here)

3.B.4       MFL has limited control over placement of adverts, which is ultimately served by the third party Advertising Network. MFL is not liable for any inappropriate positioning of adverts, for example alongside an inappropriate YouTube video, under any circumstances.

3.B.5       Performance of advertising spend cannot be guaranteed. All spend is at Client’s own risk.

3.B.6       Any additional costs, for example phone number rental, call minutes, call tracking solutions, email tracking solutions, will be charged per quotations as agreed with any of Client’s employees by any medium including but not limited to: phone calls, texts, Skype, email.

3.B.7       Any Client’s promoted website will abide by all Advertising Network rules and laws.

3.B.8       If any content violates the law, including any intellectual property laws, MFL will remove it upon request.

3.B.9       Click Fraud is a pay-per-click industry problem, at an extra cost of £50 per month MFL can install ClickCease or similar tools to detect and remove click fraud. MFL can show Client an example use case upon request. MFL will not be liable for any Click Fraud on any Advertising Networks.

3.C. Search Engine Optimisation (SEO)

3.C.1       Client is responsible for keeping its or their own backups of its or their website on the understanding that some SEO tools and changes can cause conflicts with the website, for which MFL will not be held accountable.

3.C.2       MFL are not liable for any damages where MFL are instructed to work on Client website, it is at Client’s risk.

3.C.3       MFL are not liable for any damages, loss of position, loss of traffic, lower click through rates and Client accepts that all SEO work is at Client’s risk.

3.D. Support Services – Social Media Posts

3.D.1       Client accepts that human error can happen such as posting to the wrong social account, spelling mistakes, incorrect images, wrong tone and MFL are not liable from any resulting loss or damages.

3.D.2       Client will indemnify MFL from any loss or damages caused from errors in content & social media services.

3.D.3       A pre-vetting area can be arranged for Client where requested.

3.E. Support Services – Hosting

3.E.1       MFL uses reputable hosting companies like Amazon AWS, Google, InMotion, Ionos and other providers for professional hosting services. The uptime history is over 99%. Client understands that this service is ultimately at the mercy of third-party hardware and therefore MFL are not liable for any downtime.

3.E.2       Similarly, with website and hosting backups, MFL uses third-party tools to backup a) the entire server and b) the individual client accounts. Both Parties understand this process is reliant on third-party tools, and MFL accepts no liability for any errors with Client’s backups.

3.E.3       Client should have access to their own website and hosting and should arrange their own regular website backups. Backups are not ultimately MFL’s responsibility and MFL accepts no liability for data loss. Backups are ultimately Client’s responsibility.

3.E.4       Third-party hosting & CDN providers allocate IP addresses and shared SSL certificates. MFL is not liable for any issues with IP addresses or SSL certificates.

3.E.5       MFL and the third-party hosting companies that MFL works with have industry measures in place to prevent security issues, however, Client’s website can still be hacked, be infected with viruses, have malware issues and so on. Out-of-date code or CMS files on the website are common security loopholes and has nothing to do with website hosting. Client agrees that MFL is in no way liable for Client’s website security issues under any circumstance and is indemnified against any losses incurred as a result of security breaches.

3.E.6       Client warrants and undertakes that neither Client nor any person authorised by Client will knowingly publish or transmit over the internet or other information transfer medium any material that is obscene, threatening, defamatory or likely to cause offence or which in any way libels or infringes the Intellectual Property Rights of another party.

3.E.7       Client hereby agrees to indemnify and hold MFL harmless from any and all demands losses claims proceedings damages costs and expenses including legal fees arising out of any claim against MFL in relation to such materials.

3.F. Support Services – Web Development

3.F.1       MFL provides website developers at an hourly rate set out in the respective Brief or Agreement.

3.F.2       When paying on an hourly rate, Client agrees to pay for the registered hours spent on Client’s account, including any and all amendments and changes to Client’s brief. MFL will estimate hours upon request.

3.F.3       For fixed quotes on website builds, Client will be asked to sign MFL’s separate website build terms.

3.F.4       For all website development, Client is responsible for preparing privacy policies, website terms, GDPR compliance, cookie consent and all local laws relevant to website publishing. This includes EU Directive 2009/136/EC for cookies and shared objects. MFL only provides the resources to build anything based on Client instructions, and nothing contained therein should be construed or deemed to be construed as legal advice.

3.F.5       It is Client’s responsibility to ensure Client’s website is backed up regularly. Any updates lost due to lack of backups are not MFL’s responsibility and development work will still be charged for. MFL does not guarantee performance of any website or conversion rate optimisations.

3.G. Support Services – Other

3.G.1       MFL has experienced experts in various tools, available for hire at an hourly rate. This includes analytics, tag manager, coders, script writers amongst others.

3.G.2       Work is on an hourly rate basis and not on performance, milestones or project completion. Estimated hours are provided, and Client must pay based on actual hours spent.

4. FEES

4.1          The fees for the Services shall be the price agreed at point of acceptance of the Client’s Order or such other price as may be agreed in writing by MFL and the Client.

4.2          Acceptance of a quote is a legal instruction to spend and pay for our Services and are governed by these Terms.

4.3          Unless otherwise stated, fees are exclusive of any applicable value added tax, excise duty, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Services, which the Client shall be additionally liable to pay to MFL.

4.4          Payment is accepted by ‘Direct Debit’ and ‘BACS’ transfer and will only be deemed paid upon receipt of cleared funds in MFL’s bank account.

4.5          Any extra requests by Client for reviews of posted content is chargeable by MFL.

4.6          Where consultancy or hourly rate work is agreed, MFL will provide the hourly rate for each function before any work. Only when this is agreed and accepted will MFL begin any work. MFL will estimate the time it will take to perform tasks before starting.

4.7          Charges on consultancy work will be calculated by reference to the time actually spent by MFL staff in respect to any work which they do on Client’s behalf. This will include meetings, conference calls, researching, discussing the work with third parties, correspondence, and emails.

4.8          Unless agreed otherwise in writing, Client will pay travel expenses for site-based consultancy.

4.9          From time to time MFL may arrange for some of the work to be carried out by persons not directly employed by MFL. Client will be charged at rates not greater than those agreed.

4.10        When working to hourly rates, MFL works on 6-minute units of time.

4.11        Where paying for technical coding or enhancements, Client will be paying for a technical expert’s time.

4.12        Once approved, MFL has no obligation to improve, maintain or fix work already carried out.

4.13        Website transfers to or from MFL’s hosting environment will be charged at £50 per transfer

5. PAYMENT

5.1          Subject to any special terms agreed in writing between Client and MFL, MFL shall invoice Client for the fees of the Services as agreed between the Parties.

5.2          Client must provide a VAT number when registered for the same and will be liable for all payments of VAT that are due by them.

5.3          All payments shall be made to MFL as indicated on the form of acceptance or invoice issued by MFL.

5.4          MFL is not obliged to accept Orders from any Client who has not supplied MFL with references satisfactory to MFL. If at any time MFL is not satisfied as to the creditworthiness of Client it may give notice in writing to Client that no further credit will be allowed to Client in which event no further Services will be delivered or provided to Client other than against prepayment.

5.5          In the event of non-payment or default in payment by Client in accordance with agreed terms, MFL shall be entitled without prejudice to any other right or remedy to charge interest, as set out under the Late Payment of Commercial Debts (Interest) Act 1998 and subsequent amendments and add any reasonable legal fees and debt recovery charges in respect of all invoices which are not wholly paid by the due date.

5.6          Either Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under any Agreement at any time.

5.7          If Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to MFL, MFL shall be entitled to cancel the Order or suspend any further deliveries or provision of Services to Client.

5.8          Notwithstanding anything contained in clause 5.6, Client cannot withhold payment or apply set off against any issued invoice for any allegation of Click Fraud that Client claims has taken place in the delivery of any Services by MFL.

5.9          Payment terms for post-pay are strictly 14 days from the date of MFL invoices, dated the last day of each month, unless explicitly agreed otherwise in writing.

5.10        Where Client operates on post-pay and payment is delayed, Client agrees that MFL is merely operating as an agent, connecting Client to publishers and media via third party ad servers. Henceforth, amounts owed for media are to be made as per the payment guidelines of the Advertising Network, for example Google Ads, Facebook Ads or LinkedIn Ads.

6. CANCELLATION

6.1          Cancellation periods will be communicated by email along with any quotations and/or cost confirmation emails.

6.2          Where any charges have been incurred by MFL, Client remains liable for these charges and will be invoiced.

6.3          Subject to clause 2.20, where Client cancels an Agreement within less than 14 days of the Effective Date, then MFL reserve the right to charge back the cost of any pre-booked labour and any cancellation charges for any spend due by MFL and set out in any Brief.

6.4          MFL may cancel any Agreement at any time before the Effective Date and shall refund all sums paid, including any deposit and any expenditure for materials paid by the Client.

7. CLIENT’S OBLIGATIONS

7.1          If and to the extent Client requires any licenses, permits, registrations or other authorisations of any governmental body, agency, or organisation in connection with the execution of Services pursuant to any Agreement, Client undertakes to obtain the same in advance of the commencement of the Services and agrees to indemnify and hold MFL harmless from and against any claims of such governmental bodies, agencies or organisations relating to the omission of Client to obtain such licenses, permits, registrations and other authorisations.

7.2          Client shall ensure that MFL has been supplied and are continued to be supplied during the course of any delivery of Services the requisite information in a timely fashion that does not jeopardise the delivery of the Services.

7.3          Any agreed spend and updates to spend will be communicated via email first, and work will commence 24 hours after MFL sends an email detailing costs agreed.

7.4           Client hereby covenants with MFL, on behalf of itself/himself/herself and any respective Affiliated Party, that it/he/she or they will not be interested or engaged in any capacity whatsoever of making Material Contact with any MFL Client in an attempt to directly or indirectly, solicit or attempt to solicit any business competitive with MFL from any MFL Client without the specific written permission of MFL. For these purposes, Material Contact could include, by way of example but without limitation,

7.4.1   in person site visits; or

7.4.2   telephone contact or direct mail, including the sending of unsolicited emails; or

7.4.3   advertising in media, on the internet or other promotions, where such advertising or promotion is specifically targeted at any MFL Client, or online advertisements addressed to any MFL Client including the use of territory-based banners on third party websites and paying a search engine or online advertisement provider to have advertisements or higher search rankings displayed specifically to any MFL Client.

7.5             Client hereby covenants with MFL, on behalf of itself/himself/herself and any respective Affiliated Party, that it/he/she or they will not, directly or indirectly, on its/his/her or their own behalf or on behalf of or in conjunction with any Person, recruit, solicit, or induce, or attempt to recruit, solicit, or induce, any employee of MFL with whom it/he/she or they had personal contact due to the Services, to terminate their employment relationship with MFL.

7.6            The Company shall own all Intellectual Property Rights in all its work product and in the Services and no rights with respects to any of its Intellectual Property Rights shall be deemed granted to Client.

7.7            Client hereby covenants on behalf of itself/himself/herself and any respective Affiliated Party, that it/he/she or they shall not, at any time, directly or indirectly, on its/his/her or their own behalf or on behalf of or in conjunction with any Person, develop or retail any product or service that is based on any Confidential Information or on any designs, sketches, photographs, plans, drawings or specifications provided by MFL to Client or develop or retail any product or service that infringes any Intellectual Property Rights of MFL.

8. LIMITATION OF LIABILITY AND INDEMNITY

8.1          If Client is a consumer, if MFL breaches these Terms or is negligent, MFL is liable to Client for foreseeable loss or damage that Client suffers as a result. ‘Foreseeable’ means that, at the time the Agreement was made, it was either clear that such loss or damage would occur or MFL and Client both knew that it might reasonably occur, as a result of something MFL did (or failed to do). MFL is not liable to any Client who is a consumer for any loss or damage that was not foreseeable, for any loss or damage not caused by MFL’s breach or negligence, or any business loss or damage.         

8.2           MFL shall not be liable to Client or be deemed to be in breach of these Terms by reason of any delay in performing, or any failure to perform any of MFL’s obligations, if the delay or failure was due to any cause beyond MFL’s reasonable control.

8.3          MFL shall not be liable for any loss or damage suffered by Client which results from Client’s failure to follow any instructions given by MFL.

8.4          MFL will accept liability for:

8.4.1 death or personal injury resulting from its negligence;

8.4.2 fraud or fraudulent misrepresentation;

8.4.3 any other liability which cannot be excluded by law.

8.5          If Client is a business customer, MFL shall not be liable for:

8.5.1 loss of business, profits, revenue, anticipated savings, opportunity or corruption of data (even where the same arise directly from a breach of these Terms);

8.5.2 special, indirect or consequential losses, even if foreseeable by or in the contemplation of MFL; or

8.5.3 any claim made against Client by any other person.

8.6          Under no circumstances will MFL’s total liability exceed the sum of any annual charges in all respective Agreements. If a number of defaults give rise to substantially the same loss or are attributable to the same or similar cause, then they shall be regarded as giving rise to only one claim. MFL will be afforded a reasonable opportunity to remedy any such default.

8.7          Client shall indemnify MFL against any and all costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including that of third parties).

8.8          Client shall indemnify MFL against any and all costs, liability, damages, loss, claims or proceedings arising out of the Client’s failure to meet any of its obligations or any other breach of these Terms or any Agreement.

9. WARRANTIES

9.1          Client acknowledges that the delivery and performance of MFL’s Services is dependent upon a number of factors outside MFL’s control including, but not limited to; volume of traffic available, performance of Client’s product, quality of advertising networks, levels of competition in that product area, and miscellaneous technical difficulties.

9.2          If there is an error, a delay, or performance that is not as agreed planned (even if such delay could have been foreseen by MFL) MFL will not be liable.

9.3          If Client is a business customer, any Services must be performed with reasonable care and skill within the meaning of section 13 of the Sale of Goods and Services Act 1982 and be free from material defects at the time the Services are completed. Except as set out in this clause 9.3, MFL gives no warranties and makes no representations in relation to the Services and all warranties and conditions (including the conditions implied by sections 13–15 of the Sale of Goods Act 1979 and sections 12–16 of the Supply of Goods and Services Act 1982, and any implied terms relating to the ability to achieve a particular result), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.

10. CONFIDENTIALITY

10.1        Each Party shall:

10.1.1 treat all Confidential Information as secret and confidential and safeguard it accordingly;

10.1.2  not disclose any Confidential Information to any third party without the prior written consent of the other Party, except to such extent as may be necessary for the performance of any Agreement; and,

10.1.3 not use any Confidential Information otherwise than for the purposes of this Agreement.

10.2     The provisions of clause 10.1 shall not apply to any information which is or becomes public knowledge (otherwise than by breach of this clause 10); or in the possession of the Party concerned, without restriction as to its disclosure, before receiving it from the disclosing Party; or received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or independently developed without access to the Confidential Information.

10.3        Nothing in this clause 10 shall prevent either Party from disclosing any Confidential Information which is required to be disclosed by an order of court or other tribunal or required to be disclosed in accordance with any law, statute, proclamation, by-law, directive, decision, regulation, rule, order, notice, rule of court, delegated or subordinate legislation.

11. DATA PROTECTION & GDPR

11.1        MFL agrees to abide by the provisions of UK GDPR which has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018 (“UK GDPR”) with respect to the Services.

11.2        Any ‘personal data’ (as defined in UK GDPR) will only be collected, ‘processed’ (as defined in UK GDPR) and held in accordance with MFL’s rights and obligations arising under the provisions and principles of UK GDPR.

11.3        Client’s personal data will be shared with some third parties including but not limited to MFL’s accountancy software and associated accountants to the extent as and when required.

11.4        Client can request permission to view our Data Protection Policy and IT Security Policy at any time by sending an email to [email protected].

11.5        Client is further advised to review and sign the MFL Data Processing Agreement as a part of accepting these Terms as outlined in this document, failure to do which within a maximum of 10 business days from the Effective Date will deem the former as being fully agreed and accepted by Client.

12. FORCE MAJEURE

12.1        Neither Party to this Agreement shall be liable to the other nor be held in breach of any Agreement if either Party is prevented, hindered or delayed in the performance of its obligations under any Agreement by any act of God, war, riot, civil commotion, explosion, fire, radiation, accident, terrorism, government action, interruption in the supply of power, labour dispute other than a dispute concerning MFL’s employees or the employees of its sub-suppliers, epidemic or other circumstances beyond the control of the Parties which prevents a Party from, or hinders or delays a Party in, performing its obligations under this Agreement (and which the application of due diligence and foresight could not have prevented).

12.2        If either Party is prevented from performing its or their obligations due to any of the circumstances listed in clause 12.1 for longer than 14 days, either Party may immediately terminate any Agreement upon service of 7 days written notice to the other Party.

13. TERMINATION

13.1     Either Party may immediately terminate any Agreement by giving written notice to the other Party if:

13.1.1   the other Party commits a fundamental breach of its/his/her obligations without remedy under any Agreement;

13.1.2   any sum owing to that Party by the other Party under any of the provisions of any Agreement is not paid within 14 Business Days of the due date for payment;

13.1.3   the other Party commits any other breach of any of the provisions of any Agreement and, if the breach is capable of remedy, fails to remedy it within 14 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;

13.1.4   an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of that other Party;

13.1.5   the other Party makes any voluntary arrangement with its creditors or, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);

13.1.6   the other Party has a provisional liquidator, receiver, or manager of its business or undertaking duly appointed;

13.1.7   the other Party has possession taken, by or on behalf of the holder of any debentures secured by a floating charge, of any property comprised in, or subject to, the floating charge;

13.1.8   the other Party is in circumstances that entitle any official court or a creditor to appoint, or have appointed, a receiver, a manager, or administrative receiver or which entitle such court to make a winding-up order;

13.1.9   where a Party or any of its employees or sub-suppliers becomes embroiled in matters attracting significant negative publicity liable to reflect adversely on the other Party, including but not limited to any occasion on which any of these persons is convicted of an arrestable offence;

13.1.10 where the Party is an individual if he/she shall die or be adjudged incapable of managing his/her affairs within the meaning of Part VII of the Mental Health Act 1983.

13.2        Without prejudice to any condition contained in these Terms or any other right to terminate any Services under any Agreement, MFL shall have the right to terminate forthwith the supply of Services (without liability to Client) in the event that any necessary approval required by MFL to deliver the Services are not granted or revoked by any government or regulatory agencies or any third party.

13.3        The rights to terminate any Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.

14. EFFECTS OF TERMINATION

14.1     Upon the termination of any Agreement for any reason:

14.1.1   any sum owing by either Party to the other under any of the provisions of any Agreement shall become immediately due and payable;

14.1.2   all clauses which, either expressly or by their nature, relate to the period after the expiry or termination of any Agreement shall remain in full force and effect;

14.1.3   termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of any Agreement which exist at or before the date of termination.

14.2    Subject to as provided in this clause 14 and except in respect of any accrued rights, neither Party shall be under any further obligation to the other; and each Party shall (except to the extent referred to in this clause 14) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.

15. DISPUTE RESOLUTION

15.1        In the event of a disagreement or dispute between the Parties in relation to the Services or in relation to the interpretation of any Agreement, the Parties shall, in the first instance, endeavour to resolve the disagreement or dispute themselves (or through their representatives).

15.2        In the event of a failure to reach an agreement in accordance with clause 15.1 within a reasonable time, and no later than 21 days, then the disagreement or dispute shall be referred to any mediation or conciliation procedure by reference to a third independent party agreed by the Parties. Any such mediation or conciliation will not be binding on the Parties.

15.3        If such dispute or difference is not resolved within 21 days of the dispute being referred to mediation or conciliation under clause 15.2 then such dispute or difference shall if so agreed by the Parties be referred to an arbitrator agreed between the Parties based upon the obligation of each Party to agree to the lowest cost arbitration, or, in default of such agreement to be nominated by the President of the Chartered Institute of Arbitrators and such a referral to arbitration shall be deemed to be a referral in accordance with the Arbitration Act 1996 and any statutory modification or re-enactment thereof for the time being in force.

15.4        The costs of mediation, conciliation and/or the appointment of the arbitrator shall be shared equally between the Parties and the arbitrator shall determine which Party shall pay any costs subsequently incurred.

16. NOTICE

16.1        All notices served under any Agreement shall be in writing (for this clause 16 ‘in writing’ is not classed as email) and shall be delivered by hand or sent by pre-paid first class recorded delivery post, in the case of any Agreement to the addresses agreed and exchanged at point of Order (which addresses may themselves be amended by notice in accordance with this clause 16). Notices served by hand will be deemed served the day after service. Notices sent by post shall be deemed to have been received by the addressee 2 Business Days after the day on which they were posted.

16.2        Day to day communications under any Agreement in the ordinary course of business may be sent by email.

17. WAIVER

Failure by either Party at any time to enforce the provisions of an Agreement or to require performance by either Party of any of the provisions of an Agreement Terms shall not be construed as a waiver of or as creating an estoppel in connection with any such provision and shall not affect the validity of an Agreement or any part thereof or the right of either Party to enforce any provision in accordance with its terms.

18. SEVERABILITY

If any provision of any Agreement or any part of it becomes unlawful, invalid or unenforceable for any reason whatsoever, the validity and enforceability of the remainder of the Agreement shall not be affected thereby and shall remain in full force and effect. Where any such provision or decision substantially affects or alters the ability of either of the Parties to comply fully with its contractual obligations, the Parties shall negotiate in good faith to amend and modify the provisions and terms of any Agreement as may be necessary or desirable in the circumstances.

19. ASSIGNMENT AND SUB-CONTRACTING

19.1        MFL may assign any Agreement or any part of it to any person, firm or company without the prior consent of the Client.

19.2        The Client shall not be entitled to assign any Agreement or any part of it without the prior written consent of MFL.

20. RELATIONSHIP OF THE PARTIES

Nothing in any Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in any Agreement.

21. COUNTERPARTS

Any Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.

22. CONTRACTS (RIGHTS OF THIRD PARTIES)

The Contracts (Rights of Third Parties) Act 1999 shall not apply to any Agreement and no person who is not a party to any Agreement shall be entitled to enforce any of the provisions of any Agreement pursuant to that Act.

23. GOVERNING LAW

These Terms are governed by and are to be construed in accordance with English law and the Parties submit to the exclusive jurisdiction of the courts of England and Wales.