STANDARD TERMS AND CONDITIONS – SUPPLY OF SERVICES
These terms and conditions (“Terms”) are the Terms that apply to the purchase of Services from Mobile Force Ltd, a company registered in England with a company number 06934379, whose registered address is Unit 36, 88-90 Hatton Garden, London, EC1N 8PN (“MFL”) (“we”, “us”, “our”)
1. Definitions and Interpretation
1.1 In these Terms:
a. “Agreement” means these Terms including any agreement, letter of intent, quotation, Brief Document and any schedules, variations and amendments agreed signed and initialled by the Parties.
b. “Agreed Date” means the date on which the provision of the delivery of the Services will commence as agreed by the Parties.
c. “Brief Document” means; the idea or instruction which will be set out between the Parties for the provision of the Services by MFL.
d. “Business Days” 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;
e. “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.
f. “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.
g. “CRO” means Conversion Rate Optimisation, and for websites means attempted improvements to a website page in order to produce more results from it.
h. “Clicks in Context” means the tradename of MFL and wording sometimes used to describe the services.
i. “Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with any Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such).
j. “Client” means the individual or business that requires the Services subject to these Terms and any Agreement;
k. “Media Serving Platforms” means the third parties who actually serve digital ads. For example Google Ads, Facebook Ads, LinkedIn Ads, Bing Ads, Twitter Ads – their media serving/buying platforms.
l. “Order” means the Client’s order to acquire the Services from MFL as set out in any Agreement;
m. “Party” mean MFL or Client;
n. “Parties” means MFL and Client;
o. “Purchase Order” means the document which is issued after agreeing a Brief Document 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.
p. “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.
q. “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.
r. “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 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 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 shall not exclude liability in respect of any fraudulent misrepresentation.
2. Basis of Sale and Service
2.1 MFL accepts orders for Services in writing (for the purposes of these Terms ‘in writing’ means letter or email, not fax).
2.2 No variation to these Terms shall be binding unless agreed in writing between the authorised representatives of the 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 Document 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 the Client.
2.6 Any quotation will be subject to a credit check and the Client agreed 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 any Brief Document.
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 Document 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 Document or quotation.
2.10 MFL will only be bound by to an Agreement provided in writing to the 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 Document placing the order) shall be binding on MFL unless specifically accepted by MFL in writing.
2.13 The 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 on any Brief Document and including but not limited to any drawings, sketches, specifications, descriptions or other instructions supplied by the Client or any agent or representative of the Client in connection with the supply of any Services by MFL are accurate and fully describe the Client’s requirements and the 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 a 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 your payment;
2.14.3 if there has been a pricing or product description error;
2.14.4 if you do not meet any eligibility criteria set out in our Terms; or
2.14.5 for any other reason at our sole discretion.
2.15 For each project MFL will give the Client an estimated project plan within a specified time plan. The Client accepts that there may be variations to timelines set out in any Brief Document.
2.16 Any estimate supplied by MFL is subject to withdrawal at any time before receipt of an unqualified acceptance from the Client.
2.17 Any illustrations, samples or descriptive material provided by MFL, including content, designs, drawings, specifications shall not form part of any Agreement, but shall be treated as approximate only unless specifically stated otherwise.
2.18 The validity of any estimate or Brief Document will be set out on any Agreement and, unless stated otherwise in writing, shall be deemed withdrawn unless it has been accepted within 14 days.
2.19 Unless otherwise specified, all estimates provided are done on an ‘as is’ basis and are not a fixed price quotation or firm price.
2.20 In addition, MFL reserves the right to increase the price prior to any works being carried out, equivalent to the increase of cost to MFL including additional materials, labour, equipment hire and transport since the date of the provided estimate on any Brief Document..
2.21 Any estimate provided by MFL may be revised in the following circumstances:
a. If after the submission of the estimate by MFL, the Client instructs MFL in writing to provide additional works or services not referenced or detailed within the Brief Document.
b. If following the submission of the estimate by MFL, there is an increase in the cost of materials or labour to be supplied.
c. If following the submission of the estimate by MFL, it is discovered further works and services need to be carried out which had not been anticipated.
d. If following submission of the estimate or works carried out by MFL, it is discovered that there was a manifest error when the Brief Document was prepared.
3.1 With effect from the Agreed Date MFL shall, in consideration of the price being paid in accordance with clauses 4 and 5 will provide the Services expressly identified in any Agreement.
3.2 MFL will use reasonable care and skill to perform the Services identified in any Agreement.
3.3 Unless specifically set out in any Brief Document time will not be of the essence in the performance of any Agreement.
3.4 The Services shall be rendered in accordance with Brief Document and any Agreement (as may be amended by mutual agreement from time to time).
3.5 MFL in the delivery of Services under any Agreement may use a third party to carry out some services and works.
3.6 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 the Client) in the event that any necessary approvals required by MFL to deliver the Services are not granted or revoked by any government or regulatory agencies or any third party.
Search Engine Optimisation (SEO)
3.7 SEO work consists of on-site work and off-site work (back linking)
3.8 Client is responsible for keeping their own backups of 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.
3.9 MFL are not liable for any damages where MFL are instructed to work on Client website: it is at Client’s risk.
3.10 The Parties agree that nobody fully understands how SEO algorithms work except for the Search Engines themselves.
3.11 Furthermore, Search Engines can update their algorithms without notice or details.
3.12 Search Engines can penalize websites for a wide range of reasons, the rules for which are also changing all the time.
3.13 MFL set out that great SEO requires new pages and content to match the targeted keywords.
3.14 The Client is responsible for creating that content, unless paying for MFL’s content services.
3.15 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.
Content & Social Media
3.16 MFL provide content creation & social posting, liking and following services.
3.17 The Client accepts that accidents can happen: posting to the wrong social account, spelling mistakes, incorrect images, wrong tone.
3.18 The Client will indemnify MFL from any damages caused from errors in content & social media services.
Hosting & SSL
3.19 MFL offer private and virtual private server hosting.
3.20 MFL use reputable hosting companies like Amazon AWS, Google, InMotion, Ionos and other providers.
3.21 Our hosting uptime history is over 99%. Client understands that we are ultimately at the mercy of third party specialist companies though.
3.22 Additionally, the third party hosting & CDN providers allocate us IP addresses, and shared SSL certificates. MFL are not liable for any issues with IP addresses or SSL certificates.
3.23 MFL and the third party hosting companies we work with have measures in place to prevent any security issues. However rare, it is possible to be hacked, or have virus & malware issues. Additionally, out-of-date code or CMS files on the website are common security loopholes, and nothing to do with website hosting. Client agrees that MFL are in no way liable for security issues, and indemnified against any losses incurred as a result of hosting security.
3.24 If Client has any dispute for: hosting, CDNs or SSL certificates, they agree to take up the dispute directly with the third party as per the third party’s terms and not MFL.
3.25 MFL’s servers backup completely on a regular schedule, as do individual accounts. Both Parties understand this process is courtesy of third party tools, and MFL accept no liability for any errors with backups.
3.26 Clients should arrange their own regular website backups, using backups plugins (example: UpDraftPlus) or similar software. Backups are not ultimately MFL’s responsibility and MFL accept no liability for data loss.
Website & Graphic Design Services
3.27 MFL provide Website and Graphic Designers at an hourly rate.
3.28 When paying on an hourly rate, you agree to pay for their registered hours, including amends, changes to your brief, any time spent on your account.
3.29 MFL will estimate hours upon request, and alert you if it becomes apparent that our estimate is over 20% wrong before doing any more work
3.30 For fixed quotes on Website Builds, you will be asked to sign our separate Website Build terms.
3.31 We provide Telemarketing and Custom data building as an hourly rate service, to be billed at a pre-agreed rate.
3.32 Telemarketing services are billed on a time basis and are not performance-related.
4.1 Parties will agree spend via email
4.2 The parties agree that increases and variations in advertising spend will be set out in writing by email following any agreement.
4.3 Minimum terms will be as per quotations raised in Xero Software or in email communications. Media spend can be paused by the Client, but and fees due to MFL for any minimum term will be due and charged.
4.4 MFL 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 and not ours.
4.5 Where spend does go over budget due to third party platforms, you agree to accept liability for any third party’s unintentional extra spend (Google charge 20% as do most other third party platforms)
4.6 Performance of advertising spend cannot be guaranteed. All spend is at your own risk.
4.7 Any additional costs, for example phone number rental, call minutes, call tracking solutions, email tracking solutions, will be charged as agreed with any of your employees by any medium including but not limited to: phone calls, texts, Skype, email.
4.8 Any Client’s promoted website will abide by the MFL advertising rules at all times including but not limited to : no auto-downloads without out permission, no phishing, malware, installing viruses, no imitating other brands, no alcohol, tobacco or drugs can be promoted, no ransomware, no misleading anti-virus campaigns, no extreme violence, abuse, pornography; imagery must be suitable for the targeted audience. It is a strict rule that no gambling services can be promoted in The United States of America.
4.9 Client warrants that advertising material will not break any laws in the countries Client is targeting.
4.10 MFL reserve the right to reject or stop working for any Client, for any reason or no reason at all, at our own discretion if MFL has reasonable belief any advertising rules are being breached. Any cancellation under this clause 7.11 will not result in any refund to the Client of revenues paid for advertising.
4.11 If any content violates the law, including any intellectual property laws, we will remove it upon request.
4.12 No worms, viruses, malware, illegal products or services, paraphilia, pornography of any kind, violence, racial intolerance, fake documents, drugs, weapons, alcohol.
4.13 No gambling in territories where gambling is prohibited
4.14 No content targeting persons under 18 years old will be set out by any Client
5. Prices, Fees
5.1 The price of 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.
5.2 Acceptance of a quote is a legal instruction to spend and pay for our Services and are governed by these Terms.
5.3 Prices are subject to alteration or withdrawal without notice.
5.4 Unless otherwise stated prices are net 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.
5.5 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.
5.6 Any extra requests by a Client for reviews of posted content is chargeable by MFL.
5.7 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 time it will take to perform tasks before starting.
5.8 Charges on consultancy work will be calculated by reference to the time actually spent by MFL staff or partners in respect to any work which they do on a Client’s behalf. This will include meetings, conference calls, researching, discussing your work with third parties, correspondence, and emails.
5.9 Unless agreed otherwise in writing, Client will pay travel expenses for site-based consultancy.
5.10 From time to time MFL may arrange for some of the work to be carried out by persons not directly employed by MFL. You will be charged at rates not greater than those agreed.
5.11 When working to hourly rates, we work on 6-minute units of time.
5.12 Where paying for technical coding or enhancements, you are paying for a technical expert’s time. The coding you receive is your property & asset.
5.13 Once approved, MFL have no obligation to improve, maintain or fix any work already carried out. For example, if a website or piece of coding fails the next day or the next month, it could be for any number of reasons and is not MFL’s obligation to correct.
5.14 Website transfers to or from MFL’s hosting environment will be charged at £50 per transfer
6.1 Subject to any special terms agreed in writing between the Client and MFL, MFL shall invoice the Client for the price of the Services as agreed between the Parties.
6.2 You must provide a VAT number where you are registered for VAT.
6.3 The Client is liable for all payment s of VAT and taxes that are due by them.
6.4 All payments shall be made to MFL as indicated on the form of acceptance or invoice issued by MFL.
6.5 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 the Client it may give notice in writing to the Client that no further credit will be allowed to the Client in which event no further Services will be delivered or provided to the Client other than against prepayment.
6.6 In the event of non-payment or default in payment by the 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.
6.7 Where the Client is a limited company then the directors named at Companies House agree they will accept and incur personal liability for any fees or disbursements accrued by the limited company. Where the legal entity is an LLP then the named partner(s) who agreed the contract accept personal liability for any fees due to MFL.
6.8 Sums payable pursuant to these Terms or any Agreement are exclusive of Valued Added Tax (“VAT”). which shall be paid at the prevailing rate providing it is properly detailed on an invoice in compliance with prevailing legislation.
6.9 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.
6.10 If the 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 the Client.
6.11 Where the Client operates on post-pay and are late paying the Client agrees that MFL are merely operating as an agent, connecting Client(s) to publishers via third party ad servers including but not limited to Google and/or Facebook. Any monies that are owed to third party publishers will be collected as a debt with the terms of sub clause 6.6 & 6.7.
6.12 A Client cannot withhold payment or apply set off against any issued invoice for any allegation of Click Fraud that a Client claims has taken place in the delivery of any Services by MFL. Invoices must be paid in full and recourse to the Dispute Procedure must be enacted.
6.13 Payment terms for post-pay are strictly 30 days from the date of our invoices, dated the last day of each month, unless explicitly agreed otherwise in writing
6.14 Amounts owed for media are as per the media serving platforms, for example Google Ads, Facebook Ads, LinkedIn Ads
7.1 Cancelation periods will be communicated by email along with any quotations and/or cost confirmation emails.
7.2 Where charges have been incurred by MFL the Client remains liable for these charges and will be invoiced.
7.3 Where a Client cancels an Agreement less than 14 days of the Agreed Date then MFL reserve the right to charge back the cost of any pre-booked labour and any cancellation charges for specialist equipment hired that are due by MFL and set out in any Brief Document.
7.4 MFL may cancel any Agreement at any time before the Agreed Date and shall refund all sums paid, including any deposit and any expenditure for materials paid by the Client.
8. Client’s Obligations
8.1 If any consents, licenses or other permissions are needed from any third parties, it shall be the Client’s responsibility to obtain the same in advance of the commencement of the Services.
8.2 The Client shall ensure that MFL have 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.
8.3 Any agreed spend will be communicated via email. Work will commence 24hrs after we send an email detailing costs agreed.
8.4 Your website or platform will not contain malware, spyware, adware or any other badware.
8.5 You contend that at all times all content on your sites & services is legal and will indemnify MFL for any claims for any illegal content you transmit or publish.
8.6 Your promoted website will abide by any MFL rules at all times and agree not to engage in any fraud or misuse at any time.
8.7 You agree that no adult content will be displayed or promoted and you not use content that promotes illegal activities including but not limited to drugs, hacking.
8.8 You contend that at all times that all your content does not break any patent, trademark or copyright laws
8.9 Where you use one of our website templates, or using our hosting packages, you are responsible for privacy rules on your website or the website you are renting or have bought from MFL.
8.10 MFL reserve the right to reject any website at their sole discretion for any reason.
8.11 You agree to comply with all requirements of data protection and the General Data Protection Regulations 2016/679 (GDPR 2018) and you will indemnify MFL for any breaches you enact of the GDPR 2018.
Website conversion performance
8.12 MFL are not responsible for the conversion performance of your website.
8.13 MFL have experience with websites and regularly see what works and doesn’t work, and can offer paid advice on conversion rate optimization (CRO)
8.14 Spend on CRO services is entirely s at the client’s risk, MFL do not guarantee performance.
Website development services
8.15 MFL provide website development services
8.16 MFL will provide experienced staff to work on websites at a fixed hourly rate.
8.17 It is Client responsibility to ensure your website is backed up regularly. Any updates lost due to lack of backups are not MFL’s responsibility and work will still be charged for.
8.18 MFL do not guarantee performance of any website.
8.19 Clients will have all required privacy policies on their sites & services; it is their responsibility to abide by all privacy rules. This includes EU Directive 2009/136/EC for cookies and shared objects.
8.20 This includes informing users that third party cookies may be used on their site / service: including how you collect, use, store & disclose users’ personal data if any is collected, including email addresses.
8.21 It also includes informing users on how to opt out of such data collection.
8.22 To view the MFL privacy statement, visit our website https://clicksincontext.com
8.23 Any Client who breaks any content terms may have their details passed on to any publisher or authority affected by their misuse upon their request, and they may take further action.
9. Unlawful use of any Services
9.1 Where MFL operate a web hosting service the Client warrants and undertake that neither the Client nor any person authorised by you 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.
9.2 You hereby agree to indemnify and hold us harmless from any and all demands losses claims proceedings damages costs and expenses including legal fees arising out of any claim against us in relation to such materials.
10. Liability, Indemnity
10.1 The Client shall indemnify MFL against all damages, costs, claims and expenses suffered by arising from loss or damage to any equipment (including that of third parties) caused by the Client, its agents or employees.
10.2 Where the Client consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Client shall be joint and several obligations of such persons.
10.3 MFL shall not be liable to the 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.
10.4 MFL will accept liability for:
(i) death or personal injury resulting from its negligence;
(ii) fraud or fraudulent misrepresentation;
(iii) any other liability which cannot be excluded by law.
10.5 Except as provided in clause 10.4, MFL’s total liability in respect of any one default under any order shall not exceed the sum of any annual charge in any Agreement. 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.
10.6 MFL shall not be liable for loss of profit or goodwill of the Client or any other person arising, directly or indirectly, from any breach of these Terms or any Agreement or for any other indirect or consequential damage whatsoever save as provided in this clause.
10.7 Except as provided in clause 10.4, MFL shall not be liable for:
(i) loss of business, profits, revenue, anticipated savings, (even where the same arise directly from a breach of these Terms);
(ii) special, indirect or consequential losses, even if foreseeable by or in the contemplation of MFL; or
(iii) any claim made against the Client by any other person.
10.8 MFL is not liable for any loss or damage suffered by the Client which results from the Client’s failure to follow any instructions given by MFL.
10.9 MFL is not liable for any event that causes third party servers to go down, howsoever caused. If servers go down, it is out of MFL’s control.
10.10 The Client shall indemnify MFL against any 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.
10.11 On website hosting MFL are not liable for any disruptions or downtime under any circumstances.
10.12 Save for fraud or negligence by MFL, MFL accept no liability for adverts appearing in inappropriate ad serving slot.
10.13 The Client will indemnify MFL against all claims (including reasonable legal fees) where any of the content rules set out in clause 4 under Advertising are broken either directly or indirectly.
10.14 Client is responsible for the content on any website, including any privacy obligations or regulations.
10.15 Client agrees MFL are not responsible for any breach of rules of any third party being broken on Client’s website including but not limited to Google, Facebook and including but not limited to such acts as ‘contact mining all app data mining all contacts in someone’s phone or secretly billing app downloaders save for fraud or negligence by MFL.)
11.1 The 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 the Client’s product, quality of advertising networks, levels of competition in that product area, technical difficulties, and much more.
11.2 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
11.3 MFL will do everything possible to ensure adverts appear in appropriate slots and adhere to any specific requirements, for example to not to appear on illegal file sharing sites.
11.4 The Client understands that due to reasons beyond MFL’s control, including but not limited to; third party technical errors, publishers being tagged incorrectly, human error, it is possible that adverts could appear in inappropriate slots, or in slots specifically requested not to appear.
12.1 “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.
12.2 Each Party shall:
(i) treat all Confidential Information as secret and confidential and safeguard it accordingly;
(ii) 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,
(iii) not use any Confidential Information otherwise than for the purposes of this Agreement.
12.3 The provisions of clause 12.2 and 12.3 shall not apply to any information which is: –
(i) or becomes public knowledge (otherwise than by breach of this clause 12); or
(ii) in the possession of the Party concerned, without restriction as to its disclosure, before receiving it from the disclosing Party; or
(iii) received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or
(iv) independently developed without access to the Confidential Information.
12.4 Nothing in this clause 12 shall prevent either Party:-
(i) 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.
13. Intellectual Property Rights
13.1 The Client hereby grants to MFL a perpetual non-exclusive royalty-free license to use any deliverable or material created by the performance of any Agreement in which, but for this clause 13, the Client would own the IPR (including but not limited to data, drawings, design, working papers and the contents of any report). The Client agrees that MFL may without let or hindrance publish, alter, release, license or otherwise exploit and deal with such material as it thinks fit, via any medium.
14. Data Protection
14.1 MFL agrees to abide by the provisions of the General Data Protection Regulations 2016/679 (GDPR 2018) for any works they enact under any Agreement.
14.2 MFL will not share the Client’s personal data with any third parties for any reasons without the prior consent of the Client.
14.3 Such data will only be collected, processed and held in accordance with MFL’s rights and obligations arising under the provisions and principles of the GDPR 2018.
15. Force majeure
15.1 Neither Party to this Agreement shall be liable to the other nor 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).
15.2 If either Party is prevented from performing their obligations due to any of the circumstances listed in clause 16.1 for longer than 14 days either Party may immediately terminate any Agreement upon service of 7 days written notice to the other Party.
16.1 Either Party may immediately terminate any Agreement by giving written notice to the other Party if:
16.1.1 If either Party commits a fundamental breach of its obligations without remedy under any Agreement;
16.1.2 any sum owing to that Party by the other Party under any of the provisions of any Agreement is not paid within 7 Business Days of the due date for payment;
16.1.3 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 7 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
16.1.4 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of that other Party;
16.1.5 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);
16.1.6 the other Party has a provisional liquidator, receiver, or manager of its business or undertaking duly appointed;
16.1.7 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;
16.1.8 the other Party is in circumstances that entitle the Court or a creditor to appoint, or have appointed, a receiver, a manager, or administrative receiver or which entitle the Court to make a winding-up order;
16.1.9 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;
16.1.10 where the Party is an individual if he shall die or be adjudged incapable of managing his affairs within the meaning of Part VII of the Mental Health Act 1983.
16.1.11 that other Party ceases, or threatens to cease, to carry on business; or
16.2 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.
17. Effects of Termination
17.1 Upon the termination of any Agreement for any reason:
17.1.1 any sum owing by either Party to the other under any of the provisions of any Agreement shall become immediately due and payable;
17.1.2 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;
17.1.3 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;
17.2 Subject to as provided in this Clause 18 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
17.2.1 each Party shall (except to the extent referred to in this clause 18) 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.
18. Dispute resolution
18.1 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, endeavor to resolve the disagreement or dispute themselves (or through their representatives).
18.2 In the event of a failure to reach an agreement in accordance with clause 18.1 within a reasonable time 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.
18.3 If such dispute or difference is not resolved within twenty-one days of the dispute being referred to mediation or conciliation under clause 18.2 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.
18.4 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.
19.1 All notices served under any Agreement shall be in writing (for this clause 19 ‘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 exchanges at point of Order (which addresses may themselves be amended by notice in accordance with this clause). 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 days after the day on which they were posted (excluding weekends and public holidays).
19.2 Day to day communications under any Agreement in the ordinary course of business may be sent by email.
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.
If any provision or term of any Agreement or any part of it shall become unenforceable for any reason whatsoever, including but without limitation by reason of the provisions of any legislation, Regulation, Order, Direction of the Secretary of State or other provision having the force of law or by reason of any decision of any Court of competent jurisdiction, the validity and enforceability of the remainder of any 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
22. Assignment and Sub-Contracting
22.1 MFL may assign any Agreement or any part of it to any person, firm or company without the prior consent of the Client.
22.2 The Client shall not be entitled to assign any Agreement or any part of it without the prior written consent of MFL.
23. 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.
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.
In the event that one or more of the provisions of any Agreement and/or of these Terms is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of any Agreement and/or these Terms. The remainder of any Agreement and/or these Terms shall be valid and enforceable.
If and to the extent the Client requires any licenses, permits, registrations or other authorisations of any governmental or semi-governmental body, agency, or organization in connection with the execution of Services pursuant to any Agreement, Client undertakes to obtain such licenses, permits, registrations and other authorisations and Client undertakes to indemnify and hold MFL harmless from and against any claims of such governmental or semi-governmental bodies, agencies or organisations or of any other third parties relating to the omission of Client to obtain such licenses, permits, registrations and other authorisations.
27. 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.
28. Governing law
These Terms and any Agreement 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.