Thank you for choosing Explosion Digital Ltd as your digital partner.

This Digital Agency Framework Agreement (together with its Annexes, referred to as the “Agreement”) is dated April 28th 2020, and is made between Explosion Digital, a company organized and existing under the laws of the United Kingdom, having its registered office at 73 Woodside Road, Amersham, Buckinghamshire, HP6 6AA, listed at Companies House Number 11710496 (“We”, “Us”, “Our”), and the client

Definition

These capitalized terms have the meanings below whenever they are used in this Agreement (including in any Annex):

“Acceptance” means the process by which You determine that the Services and/or the Deliverables meet the Specification, as described in or referenced by the Work Schedule (and “Accept” and “Accepted” shall be interpreted accordingly).

“Annex” means an annex to this document setting out additional terms and conditions that relate to a particular Service, and which should be read together with the main body of this Agreement if You are buying that Service.

“Break Point” means a point in the course of a Contract at which either You or We may terminate the Contract for convenience and will be specified in the Work Schedule if applicable. The mechanism for, and consequences of, exercising a Break Point are described in Clause 6 below.

“Client Materials” means images, graphics, logos, text, and other materials that You supply to Us for incorporation in the Deliverables or for Us to use in performing the Services.

“Commencement Date” means the commencement date of this Agreement (which is specified above) or of any Contract (which will be specified in the applicable Work Schedule).

“Contract” means this Agreement together with a Work Schedule that has been agreed by Both of Us, either by email or by physical signature.

“Contract Year” means a twelve-month period beginning on the Commencement Date of the relevant Contract, or on any subsequent anniversary thereof.

“Deliverable” means an item of software, documentation or other work product that We create for You in the course of the Services.

“Extras” means additions or modifications to the Services or the Deliverables that might be agreed by Both of Us during the course of a particular Contract, and that may incur changes to the time and/or cost of the Contract.

“Fees” means any applicable Service Fee and/or Usage Fee.

“Licensed Materials” means any Deliverable that is provided to You under licence and is identified as such in the Work Schedule, such as (but not limited to) developed software, web sites, mobile telephone apps, Third Party Software and content management systems.

“Project Plan” means the plan (if any) for the delivery of the Services and/or the Deliverables, and included within or referenced by the Work Schedule.

“Service Fee” means the fee payable by You to Us in respect of the Services as set out in the applicable Work Schedule.

“Services” means the services provided by Us as described in the Specification.

“Specification” means the document setting out the functional and technical specification for certain Services and/or Deliverables, which is included within or referenced by the Work Schedule, as amended by any Extras.

“Third Party Software” means software that has not been developed by Us, but is provided to You by Us under a Contract, and is considered to be part of the Licensed Materials.

“Usage Fee” means the fee paid by You to Us in respect of Your licence to use the Licensed Materials in accordance with Clause A.4, as set out in the applicable Work Schedule.

“Work Schedule” means a written work schedule that has been signed by Both of Us and specifies:

1.1 that it is subject to the terms and conditions of this Agreement;
1.2 a description of any Services to be supplied, together with the applicable Service Fee;
1.3 the Annexes that will apply to these Services;
1.4 a description of any Deliverables to be supplied and identification of any that constitute Licensed Materials, together with any applicable Usage Fee;
1.5 details of, or reference to, the Project Plan;
1.6 details of, or reference to, the Specification;
1.7 details of the Break Point, if any;
1.8 any assumptions and specific obligations for You that will apply to the Work Schedule (including but not limited to any Client Materials that You are to supply); and
1.9 details of or reference to the applicable Acceptance timescales for achieving Acceptance.

Making a Contract

2.1 Because We offer many different Services and seek to keep this Agreement as simple as possible, the main body of this Agreement contains only the terms and conditions that apply to all of the Services We offer. Some Services require additional terms, and each set of additional terms relating to such services is set out in an Annex to this Agreement. If You purchase Services which require additional terms, the relevant Annex(es) will be specified in the Work Schedule.
2.2 This Agreement is a framework that enables You and Us to create legally binding Contracts for the
delivery of Services. To create a new Contract, You and We must agree the contents of a Work Schedule, either by email or by signing a physical copy of the Work Schedule. Unless You and We expressly agree otherwise in writing, We are entitled to accept signature or email approval from any member of Your team as binding authority to proceed with a new or amended Contract or any Extras, and to Accept any Services or Deliverables.
2.3 Each Contract relates to the purchase and supply of the Services and Deliverables set out in the applicable Work Schedule, and is independent of all other Contracts that might exist between You and Us.
2.4 If this Agreement is terminated it will not be possible to agree any new Contracts, but those that already exist will continue under these terms until completed or terminated.
2.5 Any special conditions set out in a Work Schedule that expressly references and amend or remove a provision of this Agreement shall take precedence over this Agreement. Otherwise, in the event of any conflict, this Agreement shall take precedence over any Work Schedule.
2.6 Any terms and conditions set out in any order or other document supplied by You that are in addition to or at variance with the terms and conditions in this Agreement shall be void and of no effect unless We expressly agree otherwise in writing.

Supplying Services and Deliverables

3.1 Under each Contract, We agree to provide the Services and Deliverables set out in the Work Schedule. We shall use Our reasonable endeavors to do so:

• In a friendly, helpful and collaborative way; and
• In accordance with the Specification; and
• In line with the Project Plan (if there is one), and
• Using Our skill, experience and expertise to ensure that the Services and the Deliverables meet Your expectations and support You in achieving the objectives they were designed to meet, where these expectations and objectives are described in the Work Schedule.

3.2 While all timescales are given in good faith, because of the nature of the work undertaken they must be considered to be estimates only and meeting such timescales shall not constitute the essence of the relevant Contract. We shall let You know as soon as We become aware of any issue that might delay the performance of Services or creation of Deliverables, and shall work with You to minimise the impact of any such delays.
3.3 We may provide the Services and Deliverables Ourselves or through Our subcontractors, providing always that We shall be fully liable for the acts and omissions of Our subcontractors in the performance of their obligations in respect of any Contract.

Extras

4.1 You may request Extras from time to time. We may also give notice to You that a change in circumstances prompted by You constitutes a request for Extras even though You may not have requested them formally. In response to such requests, We shall email You a proposal including the Specification for the Extras, and their likely impact on the overall Contract Fees and timescales.
4.2 Once Both of Us have clearly agreed the Extras by email, they shall be considered as an amendment to the applicable Work Schedule, or (if the Extras are significant and of a different nature to the original Services or Deliverables) shall be used to create a new Work Schedule. All Extras shall be delivered subject to the terms and conditions of the relevant Contract. We shall not start work on any Extras, and shall be entitled to continue with the originally specified Services in accordance with the Work Schedule, until such agreement has been reached.

Your Cooperation

5.1 You acknowledge that We need Your co-operation and support to provide the Services and Deliverables effectively and on time. In addition to any specific obligations set out in the Work Schedule and any applicable Annexes, You agree to:

• respond to Our requirements and communications in a timescale appropriate to their nature;
• provide Us with Client Materials within the timescales agreed by Both of Us;
• quickly let Us know if You are likely to have problems delivering Client Materials on time, so that We may organise Our resources to minimise the impact of any delays;
• promptly review and provide feedback on work performed that needs Your input;
• make available working facilities such as but not limited to computer access, desk space, telephone access and parking when and to the extent We reasonably request; and
• make Your marketing and other personnel available as appropriate to assist Us when and to the extent as is reasonably requested by Us.

5.2 You may meet Your obligations and provide the Client Materials Yourselves or through Your subcontractors, providing always that You shall be fully liable for the acts and omissions of Your subcontractors in the performance of their obligations in respect of any Contract. While We are always happy to work with nominated third parties on Your behalf, You acknowledge that We cannot be held responsible for their performance (or lack of performance), and You must ensure that they perform their designated tasks in a timely manner.
5.3 If We are delayed in the delivery of Services and/or creation of Deliverables because of delays on Your part, We shall use Our reasonable endeavours to minimise the impact of such delays. However, You agree that We may at Our discretion pass on to You any direct costs resulting from such delays that We are not, acting reasonably, able to avoid. You shall continue to pay Us any fees that might fall due, regardless of Our failure to deliver the corresponding Services and/or Deliverables as a result of delays on Your part.

Break Points

6.1 We recognise that large projects occasionally benefit from an initial scoping or trial period, in which We find out more about You and Your requirements for particular Services or Deliverables, and You learn more about Our Services and ways of working, or the functionality of Our Licensed Materials. At the end of such a scoping or trial period, either You or We might decide that we are not a good fit for each other, or that the intended project cannot be completed in accordance with the desired specification, timescale or budget.
6.2 If the Work Schedule specifies a Break Point, either You or We may give notice to the other in writing not less than one (1) week prior to the Break Point that the notifying party wishes to terminate the Contract (a “Break Notice”)
6.3 If a Break Notice is issued, the Contract will terminate on the date of the Break Point. We shall continue delivering the Services and making available the Deliverables up to the Break Point, whereupon We shall stop. You shall be liable for all Fees incurred in accordance with the Contract up to and including the Break Point.

Looking after Our People

7.1 If We visit Your premises You shall advise Our staff, agents or subcontractors of all rules, regulations and practices with which they should comply while on those premises. Our staff, agents and subcontractors shall comply with such rules and regulations whenever they are on Your premises. You shall take reasonable precautions to ensure the health and safety of Our staff, agents and sub- contractors while they are on Your premises.
7.2 Without in any way restricting the right of an employee freely to accept employment and change employment, if either party (the “Hiring Party”) induces the other party’s employee engaged in the performance of a Contract to enter its service at any time during the term of the Contract or during a period of six months thereafter, then the Hiring Party shall pay to the other party an amount equal to fifty per cent (50%) of the employee’s net annual salary with the original employer, such sum being a genuine pre-estimate of the cost of the disruption that such inducement would cause to the efficient conduct of the affected party’s business.

Fees and Payment

8.1 We shall invoice You for the Service Fee monthly in arrears or as otherwise specified in the Work Schedule. We shall invoice You for Our reasonable expenses as approved by You in writing (to include by email) monthly in arrears.
8.2 Unless otherwise specified in the Work Schedule, You shall pay each of Our valid invoices within thirty (30) days of the date on the invoice. If You wish to dispute an invoice, You shall notify Us of the nature of the dispute in writing within ten (10) days of receiving the invoice.
8.3 You shall be liable for any national, European Union, value added, sales, excise, state, local, withholding or other taxes or customs duties applicable to the Fees. You shall pay an interest charge on any such undisputed sum that is overdue in accordance with the Late Payment of Commercial Debts (Interest) Act (1998) (as amended).
8.4 We may, from time to time, increase any Fees that are invoiced by Us on a periodic basis, provided that We notify You of the increase in writing at least thirty (30) days prior to issuing the next corresponding invoice. You may, within twenty (20) days of receiving such notice, terminate the Contract or part thereof to which the increased Fees relate without penalty, by giving Us written notice of Your desire to do so.
8.5 If payment of the Fees or any part thereof is overdue, then unless You have notified Us in writing that such payment is in dispute in accordance with Clause 8.2 We shall notify You in writing of such delay and if the fees are not paid in full within ten (10) days of the date of such notice, We may at Our option:
8.5.1 suspend provision of the Services and/or access to the Licensed Materials until the corresponding overdue fees are paid in full; or
8.5.2 treat such as a material breach and terminate the relevant Contract in accordance with Clause 12.2 (a).

Warranties and Exclusions

9.1 Subject to the exceptions set out below in Clause 9.3 and Clause 9.4 and the limitations upon Our liability in Clause 11, We warrant that for a period of thirty (30) days from the date of Acceptance (or from the date of delivery, in the event that no Acceptance process has been specified) the Deliverables will substantially comply with the Specification. We do not warrant that the operation of the Deliverables will be uninterrupted or error free.
9.2 We hereby warrant that the Services will be carried out with reasonable skill and care by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.
9.3 In respect of any Third Party Software that We provide to You under a Contract, We shall pass on to You the benefit of the warranty offered by the relevant third party vendor. You agree that We shall have no liability for the performance of such Third Party Software beyond that accepted by the relevant vendor.
9.4 The warranties set out in this Clause 9 are all subject to Our limit of liability as set out in Clause 11 and do not apply to the extent that the warranty claim arises from:
9.4.1 problems arising from Our use of Client Materials in accordance with the Contract;
9.4.2 the operation of a Deliverable other than in the operating environment set out for it in the Specification;
9.4.3 any breach of the Contract by You;
9.4.4 services or modifications not performed by Us;
9.4.5 integration with third party software or hardware without Our prior written consent; or
9.4.6 use other than as permitted under the relevant Contract.

9.5 The warranties set out in this Clause 9 are the only warranties that apply to the Services, the Deliverables and the Third Party Software. We hereby exclude all other conditions, warranties, representations or other terms that might otherwise be implied or incorporated into the relevant

Contract by law, such as (but not limited to) those of satisfactory quality, fitness for a particular or any purpose or the, ability to achieve any particular result.

1) Warranty Remedies

1. If You believe that We have failed to meet one of the warranty commitments We have set out in Clause 9, You will promptly make Us aware of the problem and give Us a reasonable opportunity to remedy it (either by Ourselves or through a third party). We shall work with You to put things right, at no additional cost to You.
2. If, despite Our reasonable efforts, We believe that We cannot remedy a material breach of warranty We will accept the return of the non-conforming Deliverables and refund the corresponding Fees, and the Contract shall immediately terminate. You agree that the remedies set out in this Clause 10 shall be Your sole remedy for any breach of warranty.

2) Limitation of Liability

1. Nothing in the relevant Contract shall exclude or limit Our liability for (i) fraud or other criminal act,
   (ii) personal injury or death caused by the negligence of Our employees in connection with the performance of their duties hereunder or by defects in any Deliverables, Third Party Software or Services supplied pursuant to the relevant Contract, or (iii) any other liability that cannot be excluded by law.
2. Subject to Clause 11.1, We shall not be liable for any damages resulting from: loss of, damage to or corruption of data, loss of use, lost profits, loss of revenue, loss of goodwill, loss of reputation or any indirect or consequential Such liability is excluded whether such damages were reasonably foreseeable or actually foreseen. We will, in the event of loss of, damage to or corruption of data arising from any act or omission of Our under this Agreement, be liable for the cost of restoring such data from backups where available, but will not be liable for the value of any lost or corrupted data that could not be so recovered.
3. Except as provided in Clause 1 and in Clause 11.2, Our maximum aggregate liability to You for any cause whatsoever shall be for direct costs and damages only and will be limited to a sum equivalent to 125% of the aggregate of the Fees paid and payable by You under the Contract that is the subject of Your claim during the Contract Year in which the issue giving rise to Your claim arose.
4. We hereby exclude, to the fullest extent permitted by law, all liability that We have not expressly accepted in the relevant Contract. These limitations will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of For the purposes of this Clause 11, “We” includes Our employees, sub-contractors and suppliers who shall therefore have the benefit of the limits and exclusions of liability set out in this Clause 11 in terms of the Contracts (Rights of Third Parties) Act 1999.
5. No action, regardless of form, arising out of transactions occurring under or contemplated under the relevant Contract may be brought by either party more than two (2) years after the cause of action has accrued.
6. Save as provided in Clause 11.7, You shall have no remedy in respect of any representation (whether written or oral) made to You upon which You relied in entering into the relevant Contract (“Misrepresentation”) and We shall have no liability to You other than pursuant to the express terms of the relevant In particular, You understand that the contents of any proposal or sales presentation that We may have made to You shall not be a binding part of Our commitment to You unless they are also incorporated in an agreed Work Schedule.
7. Nothing in the relevant Contract shall exclude or limit Our liability for any Misrepresentation made by Us fraudulently.

3) Duration & Termination

1. This Agreement and each Contract shall become effective on the corresponding Commencement Date and shall continue unless and until:
   the Agreement or Contract is terminated in accordance with the provisions of Clause 12.2, Clause 12.3 or Clause 6.3; or
   in the case of a Contract, if all of the Deliverables set out in the Work Schedule have been delivered, Accepted (if Acceptance is specified in the Work Schedule) and paid for in full, at which time the relevant Contract will expire.
2. Either party may forthwith terminate this Agreement or any Contract at any time:
   on giving written notice to the other party if it commits any material breach of any term of the relevant Contract, and in the case of a breach which is reasonably capable of remedy fails to remedy that breach to the reasonable satisfaction of the initiating party within thirty (30) days of a written request to remedy the same; or
   if the other party shall have a receiver or administrative receiver appointed over it or any of its undertaking or assets, or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it), or a court of competent jurisdiction shall make an order to that effect, or if it shall become subject to an administration order, or shall enter into any voluntary arrangement with its creditors, or shall cease or threaten to cease to carry on its business, or if any substantially similar event shall take place under the laws of another
3. You may terminate this Agreement or any Contract at any time without cause upon giving Us written notice, provided that You shall remain liable for all Fees incurred up to the date of such notice plus a sum equal to twenty per cent (20%) of the Fees expected to be billed for the remainder of the relevant Contract term (the “Remaining Fees”) to compensate Us for Your early In the event that the Contract is to be billed according to Our actual time spent, rather than on a fixed price basis, the amount of the Remaining Fees shall be determined by taking the average amount of Fees billed per week during the Contract up to the date of termination and extrapolating that sum for the planned duration of the Contract as set out in the Work Schedule.
4. Upon Contract termination as described in Clause 12.1a), You will immediately cease to use any Licensed Materials and shall, at Our request, either return or destroy the Licensed Materials and any copies You may You may retain all other Deliverables for use as You choose, subject to the terms of the Contract.
5. If a Contract expires as described in Clause 12.1b), Your right to continue using any Licensed Materials after such expiry shall be determined by the provisions of the relevant Work Schedule and, if the relevant Licence Term (as defined in Annex A) extends beyond the expiry date of the Contract then Your continued use of the Licensed Materials shall be subject to Your continued compliance with the terms of this Agreement and in particular of Annex A.
6. The termination or expiry of a Contract for whatever reasons shall be without prejudice to any other rights or remedies a party may be entitled to under law and shall not affect the respective rights and liabilities of the parties accrued prior to such termination.

4) Intellectual Property

• Subject to Clause 13.4, We are the owner or licensee of any and all patents, copyright, trade secrets, trademarks and any other intellectual property rights that subsist in the Title to the Deliverables shall remain vested in Us or Our licensors. For the avoidance of doubt, title and all intellectual property rights to any design, new software, new protocol, new interface, enhancement, update, derivative works, images, text content or any other items that We create for You shall remain vested in Us or Our licensors. Any rights not expressly granted herein are reserved to Us.
• Any Licensed Materials included within the Deliverables shall be licensed to You in accordance with the licence terms in Annex A.
• When You have paid the corresponding Fees in full You will be granted an exclusive, irrevocable, perpetual licence to use all Deliverables that are not Licensed Materials, provided that You agree that such Deliverables are provided for Your own internal use only unless otherwise agreed by Us in
  Such internal use may include the reproduction and modification of the Deliverables by You for the purposes of Your marketing and business development, but shall exclude the provision of the Deliverables to a third party to use for their own purposes.
• You are the owner or licensee of the patent, copyright, trade secrets, trademarks and any other intellectual property rights which subsist in the Client Materials. Title to the Client Materials shall remain vested in You or Your licensors. You hereby grant to Us a non-exclusive, irrevocable licence to use the Client Materials for the purpose of performing Our obligations under the corresponding Contract, for the term of that Contract. You also agree that We may use them (to the extent that the Client Materials are incorporated in any Deliverables) for the purpose of showing the Deliverables to potential new clients as examples of Our work.
• Subject to the provisions of this Clause 13, You shall defend at Your own expense any claim brought against Us alleging that the normal use of the Client Materials in accordance with the Contract infringes any intellectual property right belonging to a third party (“Materials IP Claim”) and You shall pay all damages awarded or agreed to be paid to any third party in settlement of a Materials IP Claim provided that We:
  1. 1. promptly furnish You with written notice of the Materials IP Claim upon becoming aware of the same;
     2. make no admissions or settlements without Your prior written consent;
     3. act in accordance with Your reasonable instructions and provide You with reasonable assistance in respect of the Materials IP Claim; and
     4. give to You the sole authority to defend or settle the Materials IP Claim.
• Subject to the provisions of this Clause 13, and in particular subject to Clause 13.5, We shall defend at Our own expense any claim brought against You alleging that the normal use of the Deliverables in accordance with the Contract infringes any intellectual property right belonging to a third party (“Deliverables IP Claim”) and We shall pay all damages awarded or agreed to be paid to any third party in settlement of a Deliverables IP Claim provided that You:
  1. 1. promptly furnish Us with written notice of the Deliverables IP Claim upon becoming aware of the same;
     2. make no admissions or settlements without Our prior written consent;
     3. act in accordance with Our reasonable instructions and provide Us with reasonable assistance in respect of the Deliverables IP Claim; and
     4. give to Us the sole authority to defend or settle the Deliverables IP Claim.
• If in Our reasonable opinion the Deliverables are or may become the subject of a Deliverables IP Claim then We shall either:
  • 1. obtain for You the right to continue using the Deliverables which are the subject of the Deliverables IP Claim;
    2. replace or modify the Deliverables which are the subject of the Deliverables IP Claim so they become non-infringing; or
    3. if such remedies in (a) and/or (b) above are not in Our opinion reasonably available, then You shall return the Deliverables which are or may become the subject of the Deliverables IP Claim and We shall refund to You the corresponding portion of the Services Fee or the Usage Fee (as applicable to the relevant Deliverable), as depreciated on a three (3) year straight line
• We shall reimburse Your reasonable costs incurred in complying with the provisions of Clause 2.
• We shall have no liability for any Deliverables IP Claim resulting from the combination of the Deliverables with other products that were neither supplied nor combined with the
• Deliverables by Us, or if the same results from any breach of Your obligations under the relevant Contract.
• This clause states Our entire obligation and liability and Your sole remedy in respect of any infringement or alleged infringement of any intellectual property rights arising from its acquisition, possession or use of the Deliverables. We hereby exclude all other obligations and liabilities in relation to infringement or alleged infringement of the intellectual property rights of any person to the fullest extent permitted by law.
• You acknowledge that the Deliverables and their design and specification are Our exclusive intellectual property and that You shall acquire no rights in the Deliverables or any other deliverables created hereunder (including but not limited to the Extras), other than as expressly set out in Clause 3.

5) Confidentiality

• Confidential Information shall be defined as any information (whether disclosed in oral, written or electronic form) belonging or relating to a party’s business affairs or activities and which: (i) has been marked as confidential or proprietary, (ii) has been identified orally or in writing as being of a confidential nature, or (iii) may reasonably be supposed to be confidential in the circumstances.
• Each party undertakes that for a period of three (3) years from the date of disclosure it will not, without the prior written consent of the other party, use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than is necessary for the performance of its rights and obligations under the relevant Contract. In any event, each party hereby agrees that it shall treat the other’s Confidential Information with the same degree of care as it employs with regard to its own Confidential Information of a like nature, disclosing such Confidential Information only to those of its employees, consultants and bona fide professional advisers who need to have such information for the purposes of the relevant Contract, and ensuring that such employees, consultants and professional advisers shall be bound by the same confidentiality obligations as are set out in this Clause 14.
• The provisions of Clause 14.2 shall not apply to:
  1. any information in the public domain otherwise than by breach of the relevant Contract;
  2. information lawfully in the possession of the receiving party thereof before disclosure by the disclosing party, as evidenced by written documents;
  3. information lawfully obtained without restriction from a third party, as evidenced by written documents; and
  4. information required to be disclosed by a court of competent jurisdiction, governmental body or applicable regulatory authority provided that the party under such duty to disclose shall use all reasonable endeavours to give the other party as much prior notice of such disclosure as is reasonably practicable and permitted by law.
• We may publicise Our involvement with You with Your prior written consent, such consent not to be unreasonably withheld or delayed.

6) Data Protection

You hereby acknowledge that in providing any Services which require access to personal data We are acting as a data processor and You are the data controller as defined in the Data Protection Act 1998 (the “Act”). In Our capacity as a data processor We agree to comply with the Seventh Data Protection Principle as set out in the Data Protection Act 1998 relating to data security, and that We shall only use and process such personal data as required for the purposes of fulfilling Our obligations under the relevant Contract.

7) Assignment

You may not assign the relevant Contract or otherwise transfer any rights or obligations under the relevant Contract except with Our prior written consent.

8) Force Majeure

Neither party is responsible for failure to fulfil its obligations hereunder due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance hereunder. Dates or times by which each party is required to render performance under the relevant Contract shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by such causes.

9) Notices

All notices made pursuant to this Agreement or the relevant Contract must be made in writing. Unless expressly stated otherwise in this Agreement, notice by email is not acceptable and any written notice shall be sent postage prepaid by registered or recorded mail or reputable courier service, addressed to the other party’s address stated above and shall be marked for the attention of the directors. Unless otherwise provided in the relevant Contract, all notices shall be deemed as given on the day of their receipt by the receiving party.

10) Entire Agreement

Each Contract constitutes the entire agreement between the parties with respect to its subject matter and shall supersede all previous representations, agreements and other communications between the parties, both oral and written. In particular (but not by way of limitation), no proposal or sales presentation shall be considered to be part of any Contract between You and Us and You are encouraged to ensure that each Work Schedule contains all of the details of the Deliverables You require. The terms and conditions of the relevant Contract shall prevail notwithstanding any variance with the terms and conditions of any order or purchase order submitted by You.

11) Law & Jurisdiction

1. In the event of any dispute arising under this Agreement or any Contract the parties will first attempt to resolve the dispute by escalating it to the senior management or board directors of their respective companies, and providing such individuals with the support and information they might reasonably need to identify a mutually acceptable resolution.
2. If internal resolution is not successful, the parties will attempt to settle their dispute by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed by the parties, the mediator will be appointed by No party may commence court proceedings in respect of any dispute arising out of this Agreement or any Contract (other than a simple request for payment of an undisputed invoice) until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
3. Subject to the provisions of Clause 20.1 and Clause 20.2, each party hereby irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any disputes of whatever nature arising out of or relating to this Agreement or any Contract.
4. Notwithstanding the provisions of Clause 20.1, nothing in this Agreement or any Contract shall limit either party’s right to seek injunctive relief.
5. This Agreement and all Contracts hereunder shall be governed by English law.

12) Survival

The following clauses shall continue to be in effect after the termination or expiration of this Agreement or the relevant Contract: 1, 2.4, 2.5, 2.6, 7.2, 8, 9, 10, 11, 12.3, 12.6, 13, 14, 18, 19, 20, 21 and 22.

13) General

If any provision of this Agreement or the relevant Contract is adjudged by a court of competent jurisdiction to be invalid, void, or unenforceable, the parties agree that the remaining provisions of the relevant Contract shall not be affected thereby and shall remain valid and enforceable. No waiver by either party of any term hereof shall constitute a waiver of any such term in any other case whether prior or subsequent thereto. No single or partial exercise of any power or right by either party shall preclude any other or further exercise thereof or the exercise of any such power or right under the relevant Contract. Subject to the provisions of Clause 4, no Contract may be changed, modified, amended, released or discharged except by a subsequent written agreement or amendment executed by duly authorised representatives of Us and You. A person who is not a party to the relevant Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of it except as expressly set out herein, but this does not affect any right or remedy that such third party may have without reference to the Contracts (Rights of Third Parties) Act 1999.

ANNEX A: SOFTWARE-SPECIFIC TERMS

• The terms and conditions in this Annex A shall apply to the supply of Licensed Materials or of Third Party Software, such as:
  1. Web sites
  2. Mobile phone apps
  3. Social media apps
  4. Back-end applications
  5. Integration with third-party software
  6. Content management systems
  7. Any other software design and development, or software licensing, where the relevant Work Schedule references this Annex
• All capitalized terms in this document shall have the meanings defined for them in the Agreement unless expressly stated otherwise.

These capitalised terms shall have the meanings below when used in this Annex:

Licence Grant

1. For the duration of the Licence Term and subject to the terms and conditions of this Annex and relevant Contract, We hereby grant to You a personal, royalty-free, non-transferable licence to use the Licensed Materials up to the Licence Limit.
2. If We become aware that Your use of the Licensed Materials is, or will soon be, in excess of the Licence Limit, We shall notify You of such and shall invoice You for the relevant increase in the Usage Fee corresponding to the necessary increase to Your License Limit.
3. Save as provided in Clause A.7, You shall not make any copies or print outs of the Licensed Materials and will not procure, authorise or assist others to do so.
4. You may make copies of the Licensed Materials for backup and archive purposes only. You shall reproduce all copyright and other notices placed upon the Licensed Materials by Us or Our subcontractors on all such Any such copies shall in all respects be subject to the terms and conditions of the relevant Contract and shall be deemed to form part of the Licensed Materials.

License Restrictions

You agree that You:

1. will install the Licensed Materials only on equipment that complies in full with the minimum specification provided to You by Us and, in the case of Apps, will submit it only to the App Vendor for whose platform the App has been developed;
2. will ensure that Your use of the Licensed Materials remains within the Licence Limit;
3. will not reverse engineer, decompile, or disassemble the Licensed Materials except to the extent that We cannot prohibit such acts by the applicable law, and will not permit any third party to do so;
4. will not sell, assign, license, lease, rent, loan, lend, transmit, network, or otherwise distribute, transfer or make available the Licensed Materials in any manner to third parties, except that You may make the Web Site available to visitors via the internet, and may make the App available for download to all visitors to the App Vendor’s web site (subject, in each case, to any Licence Limit);
5. are expressly prohibited (except where expressly permitted in writing by Us) from adapting, modifying, merging, revising, improving, translating, upgrading, enhancing and creating derivative works of the Licensed Materials or any part of them for any purpose including error correction or any other type of maintenance, other than (in the case of a Web Site) via the CMS;
6. will use the Licensed Materials for Your own business purposes only and will not use it to provide services to third parties through a service bureau or other arrangement unless otherwise stated in the Work Schedule; and
7. will maintain and not remove any notices placed on the Licensed Materials by Us or Our

You shall:

1. ensure that the Licensed Materials are managed in a proper manner and that all persons with administrative authority over the Licensed Materials shall be competent trained employees or shall be persons under their supervision; and
2. use the latest version of the Licensed Materials made available to You by Us.

App-Specific Terms

1. While We shall use Our reasonable endeavours to ensure the App meets the criteria set by each of the App Vendors for whose network it is intended, You understand that We cannot guarantee that any App will be accepted for sale by an App Vendor.
2. If You have requested Us to submit the App to the relevant App Vendor(s) on Your behalf, We shall do so in accordance with the terms and conditions of the relevant App Vendor and You agree that the sale of the App to potential end users shall be done by the App Vendor in accordance with those terms.

Web Site-Specific Terms

1. We shall [if specified in the Work Schedule] use Our reasonable endeavours to ensure that the Web Site meets the Enhanced Accessibility If You have specific accessibility requirements in addition to those required for Enhanced Accessibility, these must be set out clearly in the Specification.
2. We shall use Our reasonable endeavours to develop the Web Site using software and techniques designed to keep the Web Site secure and to protect the Web Site from unauthorised access, viruses, Trojan horses and other malicious attacks, in accordance with good industry practice.
3. Notwithstanding the provisions of Clause A.13, You appreciate that the internet is a harsh environment in which new forms of malicious attack are constantly being developed and deployed by individuals and organisations seeking to cause mischief or distress to web site owners or to create opportunities for commercial gain for themselves and We accept no liability for any loss or damage caused by such malicious You agree that this is reasonable in the circumstances.
4. The CMS includes functionality permitting You to perform certain administration tasks in respect of the Web Site, including the uploading, downloading and editing of Content (the “Administrative Functions”). You undertake to keep all usernames, passwords and other access details relating to the Administrative Functions confidential and You agree that We shall have no liability for any loss or damage arising from Your failure to do so.
5. You agree to comply with, and ensure Your employees and sub-contractors comply with, the Acceptable Use Policy at Annex D in respect of the Web Site and the CMS.

Internet Access to Licensed Materials

1. If there is functionality in the Licensed Materials that can be used to allow You to permit Your employees to access certain parts of Your system on which the Licensed Materials are installed using a web browser, it is Your responsibility to employ sufficient security measures and undertake security audits to keep the system on which the Licensed Materials are installed and all data thereon secure from unauthorised access or use.
2. In any event, We shall not be liable for any unauthorised access to Your system or data and We shall have no liability for any loss or damage incurred by You as a result of the use of access facilities or other features of the Licensed Materials for unauthorised purposes.
3. You agree that You will be liable for any loss or damage arising from the infringement of any third party’s rights under the Data Protection Act 1998 as a result of Your failure to comply with the provisions of Clause 17, and We shall have no liability in respect of any loss or damage You that may incur as a result of such failure.

ANNEX B: SOCIAL MEDIA AND CONTENT CREATION SERVICES

• The terms and conditions in this Annex B shall apply to the supply by Us, and the purchase by You, of social media and content creation Services relating to:
  1. Blogging
  2. Tweeting
  3. Facebooking
  4. Email marketing campaigns
  5. Creating web site content
  6. Posting on or monitoring any other social media platform that might come along in the years to come
  7. Any other social media Service where the relevant Work Schedule references this Annex
• All capitalized terms in this document shall have the meanings defined for them in the Agreement unless expressly stated otherwise.

These capitalised terms shall have the meanings below when used in this Annex:

Content Creation

1. We shall create the Content in accordance with the Specification in the relevant Work Schedule.
2. You may amend the Specification for the Content from time to time at Your sole discretion, by giving Us not less than five (5) working days’ notice of any changes via email. All Content created by Us after the end of this notice period shall be created in accordance with the updated Specification.
3. In creating the Content, We shall comply with the Acceptable Use Policy and also with any rules and content guidelines imposed by the Platform Owner.
4. You warrant that any Client Material supplied by You for incorporation into the Content shall comply with the Acceptable Use Policy and also with any rules and content guidelines imposed by the Platform Owner.

Content Publication

1. We shall publish the Content on the Platform with the frequency set out in the Specification in the relevant Work Schedule, and shall comply with the rules and guidelines imposed by the Platform Owner in all such publishing activities.
2. If the Content is created for an email marketing campaign, either You or We shall schedule the Content for emailing on the Platform, as specified in the relevant Work Schedule.
3. You warrant that all Targets are individuals who have opted-in to receiving emails from You, and that Our emailing such Targets shall not be in breach of the Data Protection Act 1998 or the Privacy and Electronic Communications (EC Directive) Regulations 2003.
4. You acknowledge that publishing Content on Platforms not controlled by Us is subject to certain factors beyond Our control, such as Platform availability, network connectivity and other technical issues. If the publication of Content is delayed due to such issues, We shall endeavour to find alternative publication methods and to publish the Content as soon as is reasonably possible, and You agree that We shall not be liable for any such delays.
5. You agree that We shall not be liable for the availability of any Platform not controlled by Us, or for the continued visibility of the Content on such Platform.

Content Monitoring

• We shall monitor the Content on the Platform as set out in the Specification, to measure its effectiveness in meeting any objectives set out in the Specification, and shall report to You on the results of that monitoring. Reportable metrics may include, but shall not be limited to:
  1. Number of re-postings of the Content on the same or different Platforms
  2. Number of links to the Content
  3. Number and nature of ‘comments’ on the Content
  4. Number of ‘forwards’ or ‘shares’ of the Content
  5. Number of ‘click throughs’ from the Content to Your web site or other target destination
• You acknowledge that while We shall use Our reasonable endeavours to meet any objectives set out in the Specification through the publication of Content, We are not able to guarantee any particular results.
• You understand that We do not have control over comments posted or added to Content by third parties on public Platforms, and that We accept no liability for any such comments. We will, at Your request and expense, use Our reasonable endeavours to secure the removal of any comments that are defamatory or libellous or in any way infringe the rules and guidelines imposed by the Platform Owner.

ANNEX C: SEARCH ENGINE OPTIMISATION SERVICES

1. The client understands that search engines are independent companies who select and rank sites using their own criteria and therefore to obtain a high ranking the client must follow Our recommendations for optimising their website for search engine listing. If the client fails to follow Our recommendations then the results achieved by Us will have considerably less importance than would be achieved otherwise.
2. We stress that it is not possible to give 100% guarantees for any specific result on any search engine, nor can we quantify the level of increased traffic.
3. We must have the ability to optimise the structure and content of your web pages. Such changes generally have a minimal visual impact. Your Digital Partner Ltd will work directly with you in order to maintain the original look and feel of your website.
4. The client must provide us with log-in information (FTP username and password) to allow us to gain access to your website. We will maintain confidentiality of log-in information. You must inform your webmaster or anyone else who has access to the Web site that Your Digital Partner Ltd are performing Search engine optimisation services on your site.
5. The search engines targeted will be those search engines that We consider to be the most important with regards to popularity, language, content, location, coverage or any other criteria that we consider
6. We will choose suitable sets of words to search for in the search engines and the position in the results obtained using these words will be used for assessing search engine listings. A listing is where a search engine is queried with the words chosen by us and the client’s website address or a link to that address appears in the results returned.

ANNEX D: ACCEPTABLE USE POLICY

1. This Annex C sets out the Acceptable Use Policy for Your use of the software or web site in respect of which it has been referenced. All capitalized terms in this document shall have the meanings defined for them in the Agreement unless expressly stated otherwise
2. These capitalised terms shall have the meanings below when used in this Annex:

Use of the Software

1. All use of the Software shall be strictly in accordance with any guidance and instructions set out in any online help that is available, or that is provided during any training session provided by Us.
2. If at any time You believe or suspect that any user of the Software is acting or intends to act in breach of this Acceptable Use Policy, You shall promptly notify Us.
3. Where access to the Software is permitted to named users only, We shall immediately terminate or suspend any user’s access to the Software where requested by You at Your discretion and will co-operate with You in relation to any investigation into any misuse or potential misuse on the part of such user where requested by You.
4. You agree that in the event of any actual or suspected breach of this Acceptable Use Policy We may, without further reference to You, examine materials created by You using the Software solely for the purpose of monitoring Your compliance with the Contract.

SPAM

1. You acknowledge that the sending of unsolicited emails to third parties who have not given their consent to receive emails from You is considered to be ‘Spam’ and may cause the Software to be identified by companies or internet service providers as a source of Spam and to have subsequent emails sent by the Software to such companies or email addresses using such internet service providers to be blocked by their Spam-filtering facilities.
2. You acknowledge that the identification of the Software as a source of Spam may cause difficulty to other users of the Software not connected with You and may therefore have significant impact on Our ability to conduct Our business.
3. In recognition of the provisions of Clause D.7 You hereby consent to comply with the provisions of the CAN- SPAM Act of 2003 as enacted in the United States of America (the “Act”), and compliance with the Act is a condition of Your use of the Software.
4. You hereby agree that You shall comply in full with the provisions of the Privacy and Electronic Communications (EC Directive) Regulations 2003.
5. You agree that You shall not use the Software to send any commercial electronic mail message (as that term is defined in the Act) to any person who has opted out or otherwise objected to receiving such messages from You.
6. You may not use the Software to email to distribution lists, newsgroups, or spam or unsolicited email addresses, where such email addresses have been purchased by You from a third party or acquired by You other than through best-practice permission based marketing.
7. If We receive notification from any third party or otherwise have cause to believe that Your use of the Software is generating a higher than average number of Spam complaints, we shall notify You of such immediately and may, in Our discretion:
   • • Suspend Your access to the Software until the issue resulting in the Spam complaints has been resolved; or
     • Terminate the Contract in accordance with the provisions of Clause 12.2a) of the Agreement.

Prohibited Content

You may not use the Software to:

1. provide, sell or offer to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons; or any products, services or content that it is unlawful to sell or offer to sell in the geographical territory in which the email recipient is located; or
2. display or market material that exploits children, or otherwise exploit children under 18 years of age; or
3. provide material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or profanity or includes any obscene, lewd, lascivious, violent, harassing or otherwise objectionable content; or
4. disclose personal data or sensitive personal data in breach of the terms of the Data Protection Act 1998; or
5. send emails containing or otherwise introducing viruses, worms, harmful code and/or Trojan horses into the recipient’s computer or computer network; or
6. engage in any libellous, defamatory, scandalous, threatening or harassing activity; or
7. post any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence; or
8. provide content, including images, that are the property of a third party such as but not limited to authors, artists, photographers or others without the express written consent of the content owner; or
9. in any way breach the intellectual property rights of any third party.

• If We receive notification from any third party or otherwise have cause to believe that Your use of the Software is in breach of the provisions of Clause D.13 above, We shall notify You of such immediately and may, in Our discretion:
  1. Delete any breaching emails or content without notice to You; and
  2. Suspend Your access to the Software until the issue has been resolved; and/or
  3. Terminate the Contract in accordance with the provisions of Clause 12.2a) of the Agreement.