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Terms and Conditions.

Terms and Conditions

PARTIES

(1) Bamboo Nine Media Ltd incorporated and registered in England and Wales with company number 09115432 whose registered office is at 3rd Floor 19a Portland Street, Brighton, England, BN1 1RN (“Bamboo Nine”);

(2) The company, organisation or legal person which agrees to these terms when they confirm by email that they agree to an Assignment Sheet and to these terms (the “Client”).

BACKGROUND

(A) Bamboo Nine is in the business of providing various types of digital marketing services as set out on its website https://www.bamboonine.co.uk/ from time to time.

(B) The Client wishes Bamboo Nine to provide, and Bamboo Nine is willing to provide, digital marketing services to the Client on and subject to the terms of this Agreement and any Campaign Plan.

IT IS HEREBY AGREED

  1. Interpretation

    The following definitions and rules of interpretation apply in this Agreement.

    1.1 Definitions:

    “Affiliates”; any entity that directly or indirectly Controls, is controlled by, or is under common control with another entity.

    “Business Day”; a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

    “Campaign”; the digital marketing services campaign setup and run by Bamboo Nine pursuant to the Campaign Plan.

    “Campaign Plan”; a plan for a Campaign formulated by Bamboo Nine that is agreed by email, signed or otherwise agreed to under the terms of this Agreement by the duly authorised representatives of both parties in accordance with clause 4.4 – any plan proposed but not agreed by the parties is only a draft plan and has no binding effect. The plan will generally take the format of Bamboo Nine’s usual written communication of the services agreed with the Client and which is sent by email and which would usually contain a link to these terms.

    “Client’s Brand Guidelines”; the Client’s guidelines for the use of the Trade Marks, as they may be amended by the Client from time to time and notified to Bamboo Nine.

    “Client’s Marketing Policies”; the Client’s policies relating to advertising and/or marketing, copies of which have been provided to Bamboo Nine by the Client, as they may be amended by the Client from time to time and notified to Bamboo Nine.

    “Client’s Property”; any and all materials, documents, records, research, photography, logos, designs, software or other property (including all Intellectual Property rights therein) belonging to the Client and/or any of its Affiliates, which are provided to Bamboo Nine by or on behalf of the Client (including copies of the Client Brand Guidelines and/or the Client’s Marketing Policies) and/or otherwise come into the possession, custody or control of Bamboo Nine in connection with the provision of the Services.

    “Commencement Date”; means the date this Agreement is agreed between the parties.

    “Control”; the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls and controlled shall be construed accordingly where applicable.

    “Data Protection Legislation”; all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR), the Data Protection Act 2018 (and regulations made thereunder) or any successor legislation, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

    “Deliverable(s)”; as applicable to a Campaign, all copy, layouts, artwork, storyboards, scripts, presentations, drawings, documents, charts, graphics, photographs, films, software, webpages, content for websites and advertisements, reports and/or other materials created or produced by or on behalf of Bamboo Nine for the Client in the course of providing the Services, on any media (whether any media exist at the Commencement Date or are subsequently developed). The Deliverables shall include all items that are identified in a Campaign Plan.

    “Expenses”; expenses of the type agreed in a Campaign Plan or otherwise in writing or digital acceptance between the parties from time to time for Bamboo Nine to incur and expense to the Client for the proper performance of the Services.

    “Fees”; the fees for the Services, agreed in a Campaign Plan or otherwise in writing or digital acceptance between the parties from time to time.

    “Intellectual Property Rights”; patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

    “Personnel”; officers, employees, consultants, agents, representatives and advisers.

    “Services”; the digital marketing services to be provided by Bamboo Nine to the Client as set out in each Campaign Plan.

    “Term”; the term of this Agreement as determined in accordance with clause 3.

    “Territory”; those countries in which the Services are to be provided as set out in each Campaign Plan. The Territory shall include websites and other globally accessible media to the extent that they are specifically targeted at persons located in such countries.

    “Third-Party Materials”; any work or materials authored, created or performed by a third party and either commissioned for, or used in relation to, the Services, including library images.

    “Trade Marks”; the registered trade marks and trade mark applications, and all unregistered trade marks and logos, specified in a Campaign Plan and/or notified by the Client to Bamboo Nine from time to time in writing.
    “VAT”; value added tax chargeable under the Value Added Tax Act 1994.

    1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

    1.3 The Schedules and any Campaign Plan form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.

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

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

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

    1.7 A reference to writing or written includes email.

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

    1.9 References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.

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

    2.1 This Agreement is a framework agreement under which the Client may request Bamboo Nine to provide, and Bamboo Nine shall provide to the Client in the Territory, the types of digital marketing services as set out on its website https://www.bamboonine.co.uk/ or otherwise noted to the Client by Bamboo Nine from time to time.

    2.2 Bamboo Nine is appointed on a non-exclusive basis and the Client is free to appoint other providers of similar services in the Territory, save where that would cause a breach of this Agreement or cause Bamboo Nine to be unable to properly perform the Services.
  3. Term

    3.1 This framework agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 18, until either party gives to the other prior written notice to terminate the Agreement on the following basis:

    (a) 30 days where the monthly budget for the Client is under £3,750 plus VAT per month; and
    (b) 60 days if the relevant Client budget is £3750 plus VAT or more.

    3.2 The parties can agree that the notice period is merely to end the Campaign Plan and not this framework agreement so that new Campaign Plans can be agreed going forward under these terms as needed.

    3.3 The Services under any ongoing Campaign Plan for which notice has been given as per clause 3.1 above will continue during any such notice period and the Client agrees that it must pay all corresponding Fees for such Services.
  4. Campaign Plans

    4.1 If the Client wishes Bamboo Nine to undertake a digital marketing services for the Client, the Client shall discuss with Bamboo Nine the services required and outcome desired. As soon as is practicable following these discussions, Bamboo Nine shall submit to the Client in writing, for approval in accordance with clause 4.2, a proposed Campaign Plan that includes:

    (a) details of the services that Bamboo Nine will provide to seek to achieve the Client’s desired outcome;
    (b) a proposed budget for the provision of those services, including details of Fees (anticipated or otherwise) and Expenses in relation to the campaign; and
    (c) other information which is relevant to agree for the particular type of digital marketing services being discussed.

    4.2 The Client shall, within five Business Days of receipt of the proposed Campaign Plan, notify Bamboo Nine in writing whether the Client:
    (a) approves the proposed Campaign Plan;
    (b) wishes modifications to be made to the proposed Campaign Plan (giving details); or
    (c) rejects the proposed Campaign Plan and requires Bamboo Nine to provide a new proposal.

    4.3 Bamboo Nine shall make any modifications to the proposed Campaign Plan requested by the Client under clause 4.2(b), or develop a new proposal if requested to do so by the Client under clause 4.2(c) unless it is not reasonable for it to do so, within five Business Days following receipt of the relevant request from the Client, and resubmit the modified or new draft Campaign Plan to the Client for approval in accordance with clause 4.2.

    4.4 Once a proposed Campaign Plan has been approved by the Client under clause 4.2, the duly authorised representative of the Client shall accept the proposed Campaign Plan and these terms by stating so by return of email to Bamboo Nine or otherwise agree the proposed Campaign Plan in writing or by digital acceptance their agreement to the terms of a Campaign Plan, which shall then become a Campaign Plan for the purposes of this Agreement, shall be binding on the parties and shall form part of, and be governed by the provisions of, this Agreement. Where any such signature or acceptance is not expressly provided but the Client accepts the receipt of and/or continues to deal with Bamboo Nine in respect of the Services for that Campaign Plan and does not protest at receiving such Services, the parties agree that the Campaign Plan is agreed and binding in that case and the Client agrees that it has incurred the relevant Fees.

    4.5 If there is any inconsistency or conflict between the provisions of any Campaign Plan and the provisions of the main body of this Agreement, the provisions of the Campaign Plan shall prevail to the extent of that inconsistency or conflict unless stated otherwise in a Campaign Plan.
  5. Amendments to Campaign Plans

    5.1 The Client may request, and Bamboo Nine may recommend, a change to a Campaign Plan (a Change) at any time before completion of the relevant Campaign. Where the Client requests any Change, Bamboo Nine shall within 5 Business Days provide the Client with a detailed note (Change Control Note), signed by Bamboo Nine. Where Bamboo Nine proposes any Change it shall submit an appropriate Change Control Note signed by Bamboo Nine to the Client. Each Change Control Note shall set out:

    (a) the title of the Change;
    (b) the originator and date of the request or recommendation for the Change;
    (c) the reason for the Change;
    (d) full details of the Change;
    (e) the effect on the Fees (anticipated or otherwise) and Expenses, if any, of the Change;
    (f) details of the likely impact, if any, of the Change on other aspects of this Agreement including:
    (i) the timetable for the provision of the Change;
    (ii) the personnel to be provided;
    (iii) working arrangements;
    (iv) other contractual issues; and
    (v) the date of expiry of validity of the Change Control Note; and
    (g) provision for signature, agreement in writing or digital acceptance by the Client and Bamboo Nine.

    5.2 Where any change to a Campaign Plan has been requested by the Client or proposed by Bamboo Nine, the parties will continue to perform their respective obligations under this Agreement, without taking account of that requested or proposed change, until that change takes effect in accordance with clause 5.4.

    5.3 Following receipt of a Change Control Note, the Client shall evaluate it within its period of validity and do one of the following:

    (a) request further information;
    (b) arrange for acceptance as per clause 5.4 below; or
    (c) notify Bamboo Nine of the rejection of the Change Control Note.

    5.4 A Change Control Note signed, agreed in writing or accepted digitally by the Client and Bamboo Nine shall constitute an amendment to this Agreement.

    5.5 Where Bamboo Nine has proposed a Change it may not, unless otherwise agreed by the Client, make any charge for time spent in the preparation of Change Control Notes or in dealing with requests for Changes. Where the Client has requested a Change, Bamboo Nine may make a reasonable charge for its time so spent, calculated by reference to the Fees.
  6. Performance of the Services

    6.1 In consideration for the payment of the Fees by the Client, Bamboo Nine shall perform the Services for, and provide the Deliverables to, the Client.

    6.2 Without limiting any other obligations of Bamboo Nine under this Agreement, Bamboo Nine shall perform the Services in a professional manner, in accordance with:

    (a) accepted industry practice, using all due skill, care and diligence and as such any implied terms for commercial agreements in prevailing legislation (such as the Supply of Goods and Services Act 1982) are excluded to the extent permitted by law;
    (b) the provisions of this Agreement and the relevant Campaign Plan; and
    (c) the Client’s Brand Guidelines and the Client’s Marketing Policies (as applicable).
  7. Client obligations

    7.1 The Client shall co-operate with Bamboo Nine and shall provide to Bamboo Nine, at Bamboo Nine’s request, such information concerning the Client, the Client’s requirements in respect of the Services and the digital marketing campaign to which the Services relate as is reasonably necessary to enable Bamboo Nine to perform the Services.

    7.2 Unless a specific time frame for the Client’s response is specified, the Client shall respond promptly (and within three Business Days) to any request by Bamboo Nine for information or approval.

    7.3 The Client agrees that its Personnel who work with Bamboo Nine have authority to instruct Bamboo Nine where required in respect of the Services and including where that will incur Fees.
  8. Fees and Expenses

    8.1 In consideration for the provision of the Services in accordance with this Agreement, the Client shall pay the Fees to Bamboo Nine.

    8.2 The Fees are inclusive of all costs of:
    (a) work to produce the Deliverables and/or provide the Services;
    (b) all materials used by or on behalf of Bamboo Nine to produce the Deliverables and/or provide the Services; and
    (c) all overheads or administration costs of Bamboo Nine,
    except to the extent that the parties agree in any Campaign Plan or otherwise from time to time in writing that any costs shall be chargeable by Bamboo Nine to the Client Expenses.

    8.3 The Fees do not cover the provision of Services outside the Territory, or any services other than the Services. If any such services are requested, the level of remuneration for them will be separately agreed by the parties.

    8.4 The Client shall reimburse Bamboo Nine for any Expenses actually incurred by Bamboo Nine.

    8.5 Bamboo Nine may invoice the Client for the Fees at such times and/or in such instalments (as applicable) as are set out in the relevant Campaign Plan.

    8.6 Bamboo Nine may invoice the Client for Expenses weekly in arrears, and shall provide the Client with supporting documentation for such Expenses (including receipts).
  9. Payment

    9.1 Except as otherwise agreed between the parties, the Client shall pay all invoices submitted by Bamboo Nine within 14 days of receipt of that invoice by the Client.

    9.2 All sums payable under this Agreement:

    (a) are exclusive of any VAT or any other sales tax or duties, which, where applicable, shall be payable by the Client to Bamboo Nine in addition; and
    (b) shall be paid in British pounds sterling to the credit of Bamboo Nine’s bank account, details of which shall be notified to the Client as and when necessary.
    9.3 Each party shall pay interest on any sum due under this Agreement, calculated as follows:
    (a) Rate. 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
    (b) Period. From when the overdue sum became due, until it is paid.

    9.3. Website builds:

    (a) A non-refundable advance payment of a minimum of 50% of the project quotation total is required when the initial quote is agreed upon and before the project commences.
    (b) The remaining 50% of the project quotation total is required upon completion of the project, prior to the handover or launch of the website.
    (c) The Client will be responsible for purchasing any premium plugins and plugin subscriptions required.
  10. Compliance with the law

    10.1 Each party shall ensure that in performing their respective obligations under this Agreement they each shall:

    (a) comply with all applicable laws in the Territory and any other applicable laws, regulations, regulatory policies, guidelines or codes in each case from time to time in force, including all such guidelines and codes issued by statutory, regulatory and industry bodies (including but not limited to data protection, advertising regulation, anti-bribery and anti-facilitation of tax evasion law);
    (b) not infringe the Intellectual Property Rights or proprietary rights of any third party; and
    (c) not be defamatory, libellous, obscene or otherwise offensive.

    10.2 If either Bamboo Nine or the Client becomes aware that there is risk that they are not in compliance with clause 10.1, each shall promptly notify the other, and, without prejudice to any other right or remedy of the other, the offending party shall make any modifications at its reasonable cost which may be necessary to remedy the relevant issue where possible.

    10.3 The Client shall ensure that Bamboo Nine’s possession and use of the Client’s Property in the exercise of Bamboo Nine’s obligations under this Agreement shall not infringe the Intellectual Property Rights or proprietary rights of any third party.
  11. Ownership of Intellectual Property Rights

    11.1 It is the intention of the parties that, except as set out otherwise in a Campaign Plan (such as for website development when the Client will have an expectation of assignment of some IP rights):

    (a) Bamboo Nine shall own all Deliverables produced by it and including but not limited to any proprietary software and technology used for a Campaign or embedded on the Client’s websites or systems for the performance of the Services;
    (b) Bamboo Nine shall own all Third-Party Materials comprised in Deliverables, where an assignment of such materials has been arranged.

    11.2 Bamboo Nine hereby provides an exclusive, revocable, non-transferable, royalty-free licence for the duration of this Agreement for the Client to make use of the Deliverables for the purposes of Campaigns.

    11.3 Bamboo Nine shall ensure that all licences of and assignments of Intellectual Property Rights in Third-Party Materials are granted directly to Bamboo Nine for use in connection with the Services.

    11.4 The Client grants Bamboo Nine a non-exclusive, revocable, non-transferable, royalty-free licence to use the Client’s Property to the extent reasonably necessary to enable Bamboo Nine to provide the Services during the Term.
  12. Confidentiality

    12.1 Each party undertakes that it shall not at any time and for any relevant period after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 12.2.

    12.2 Each party may disclose the other party’s confidential information:

    (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of or in connection with the carrying out the party’s obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12;
    (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
    (c) to make relevant protected disclosures to any relevant government authority, to report a crime and to co-operate with any criminal enforcement proceedings and investigations.

    12.3 On termination of this Agreement, each party shall:
    (a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s confidential information; and
    (b) erase all the other party’s confidential information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable).
  13. Data protection

    13.1 The parties will collect and process information relating to each other’s staff in accordance with their respective privacy notices, which each will be make available to the other.

    13.2 Bamboo Nine and the Client acknowledge that for the purposes of the Data Protection Legislation in respect of the Services, the Client is the data controller and Bamboo Nine is the data processor.

    13.3 Bamboo Nine and the Client will comply with the Data Protection Legislation.

    13.4 Schedule 1 sets out the scope, nature and purpose of the processing by Bamboo Nine, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation (Personal Data)) and categories of data subject.

    13.5 Bamboo Nine shall, and shall procure that its staff shall, in relation to any Personal Data processed in connection with the Services:

    (a) Process that Personal Data only on written instructions of the Client.
    (b) Keep the Personal Data confidential.
    (c) Comply with the Client’s relevant data protection policies as made available to it.
    (d) Comply with the Client’s reasonable instructions with respect to processing Personal Data.
    (e) Not transfer any Personal Data outside of the UK unless, in accordance with the Data Protection Legislation, Bamboo Nine ensures that (i) the transfer is to a country approved as providing an adequate level of protection for Personal Data; or (ii) there are appropriate safeguards in place for the transfer of Personal Data; or (iii) binding corporate rules are in place; or (iv) one of the derogations for specific situations applies to the transfer.
    (f) Assist the Client in responding to any data subject access request and to ensure compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities or regulators.
    (g) Notify the Client without undue delay on becoming aware of a Personal Data breach or communication which relates to the Client’s or Bamboo Nine’s compliance with the Data Protection Legislation.
    (h) At the written request of the Client, delete or return Personal Data and any copies thereof to the Client on termination of the Agreement unless required by the Data Protection Legislation to store the Personal Data.
    (i) Maintain complete and accurate records and information to demonstrate compliance with this clause 13 and allow for audits by the Client or the Client’s designated auditor.

    13.6 Bamboo Nine shall ensure that it has in place appropriate technical or organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures. Such measures may include, where appropriate:

    (a) Pseudonymising and encrypting Personal Data.
    (b) Ensuring confidentiality, integrity, availability and resilience of its systems and services
    (c) Ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident.
    (d) Regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it.

    13.7 The parties agrees that any third parties appointed by Bamboo Nine to assist with the Services and which process relevant personal data is a third-party processor of Personal Data under this agreement. Bamboo Nine confirms that it will enter into a written agreement, which incorporates terms which are substantially similar to those set out in this clause 13, with the third party.
  14. Bamboo Nine Personnel

    14.1 It is the parties’ intention that neither the commencement nor the termination of any of the Services will give rise to a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE Regulations) and the Client hereby warrants and represents that there is no incumbent digital marketing team which Bamboo Nine will replace by entering into this Agreement to perform the Services. The Client hereby indemnifies and keeps indemnified Bamboo Nine in full in relation to all reasonable, losses, costs and expenses incurred by Bamboo Nine in connection with any claims or threatened by Client staff relating to the TUPE Regulations.

    14.2 Bamboo Nine agrees to cycle its personnel used for the Services and Campaigns so as to seek to avoid the TUPE Regulations applying on its exit from this Agreement. Where the TUPE Regulations apply on exit, the parties will satisfy their respective statutory obligations.
  15. Representations and warranties

    15.1 Each party represents and warrants to the other that it has the authority and requisite corporate power to enter into this Agreement without obtaining the consent of any third party and it has conveyed appropriate authority to the signatory of this Agreement and any Campaign Plan for binding it in contract.
  16. Limitation of liability

    16.1 Nothing in this agreement shall limit or exclude the either party’s liability for:

    (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
    (b) fraud or fraudulent misrepresentation; or
    (c) for such liability which cannot be limited or excluded by applicable law.
    16.2 Subject to clause 16.1, Bamboo Nine shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement and/or services performed under it for:
    (a) loss of profits;
    (b) loss of sales or business;
    (c) loss of agreements or contracts;
    (d) loss of anticipated savings;
    (e) loss of use or corruption of software, data or information;
    (f) loss of or damage to goodwill; and
    (g) any indirect or consequential loss.

    16.3 Subject to clause 16.1, Bamboo Nine’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to the lesser of 100% of the total amounts paid under this agreement to the Company in the 12 months preceding any relevant cause of action or the level of cover under the Company’s insurance policy which applies to this agreement.

    16.4 The Company shall not be liable for any failure to comply with its obligations under this agreement as a result of any act or omission of the Client (including any failure by the Client to provide any relevant information) or if such failure results by reason of any cause beyond its reasonable control.
  17. Insurance

    17.1 During the Term, Bamboo Nine shall maintain in force, with a reputable insurance company:

    (a) professional indemnity insurance in an amount not less than £250,000;
    (b) employer’s liability insurance in an amount not less than £5,000,000;
    (c) public liability insurance in an amount not less than £1,000,000; and
    (d) such other insurance as is required by any regulatory or statutory or regulatory body anywhere in the Territory relevant to the regulation of advertising and/or the Services to be provided under this Agreement.

    17.2 Bamboo Nine shall provide to the Client, on reasonable notice and request, suitable evidence of each of the above insurance policies.
  18. Termination

    18.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

    (a) the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 Business Days after being notified in writing to do so;
    (b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
    (c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
    (d) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
    (e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
    (f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
    (g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
    (h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
    (i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
    (j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause (b) to clause (i) (inclusive);
    (k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
    (l) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
  19. Consequences of termination

    19.1 On expiry or termination of this Agreement:

    (a) Bamboo Nine shall immediately cease all further performance of the Services;
    (b) Bamboo Nine shall immediately cease all further use of the Trade Marks and Client Property and the Client has cease all use of the Deliverables except where otherwise consented to or assigned to it;
    (c) Bamboo Nine shall be entitled to invoice the Client for all outstanding Fees and Expenses, which shall be payable by the Client in accordance with the provisions of clause 9; and
    (d) the Client shall pay to Bamboo Nine any sums payable by Bamboo Nine to any third party under any legally binding commitment relating to the provision of the Services that was entered into by Bamboo Nine before the date of expiry or termination with the Client’s consent, (except to the extent that those sums are already covered by any Fees or Expenses paid or payable by the Client under this Agreement).
    19.2 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
    19.3 On termination or expiry of this Agreement, the following clauses shall continue in force t the extent applicable: clause 1.1 to clause 1.10 (inclusive), clauses 8-14 (inclusive), clause 16, clause 19, and clause 21 to clause 33 (inclusive).
  20. Force majeure

    Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for more than 5 weeks, the party not affected may terminate this Agreement by giving 1 week’s written notice to the affected party.
  21. Notices

    21.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:

    (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
    (b) sent by email to its usual email address used for the purposes of this Agreement.
    21.2 Any notice shall be deemed to have been received:
    (a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
    (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
    (c) if sent by email, at 9.00 am on the next Business Day after transmission.

    21.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  22. Severance

    22.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

    22.2 If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
  23. Waiver

    No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
  24. Entire agreement

    24.1 This Agreement (including any Campaign Plan) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

    24.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement or a Campaign Plan.

    24.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

    24.4 Nothing in this clause shall limit or exclude any liability for fraud.
  25. Variation

    No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
  26. No partnership or agency

    26.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

    26.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
  27. Assignment and other dealings

    27.1 The parties each agree that they shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of the other.
  28. Announcements

    28.1 No party shall make, or permit any person to make, any public announcement, communication or circular (announcement) concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed) except that:
    (a) Bamboo Nine may publicise the fact that it provides digital marketing services for the Client; and
    (b) either party may make an announcement which is required by law or any governmental or regulatory authority (including, without limitation, any relevant securities exchange), or by any court or other authority of competent jurisdiction, always provided that the party required to make the announcement shall promptly notify the other parties. The party concerned shall make all reasonable attempts to agree the contents of the announcement before making it.
  29. Further assurance

    Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
  30. Counterparts

    30.1 This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
  31. Third-party rights

    31.1 A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

    31.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.
  32. Governing law

    This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
  33. Jurisdiction

    Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
    This agreement has been entered into on the date when all parties have agreed to its terms.

Schedule 1 – PROCESSING, PERSONAL DATA AND DATA SUBJECTS
Part 1: PROCESSING BY BAMBOO NINE

  1. SUBJECT MATTER OF THE PROCESSING
    Digital Marketing Services
  2. DURATION OF THE PROCESSING
    For the term of this Agreement and thereafter as may be required by law
  3. NATURE AND PURPOSE OF THE PROCESSING
    Collecting, analysing, sharing with the client, personal data on lead generation targets and customers/clients of the client
    Part 2: TYPES OF PERSONAL DATA
    Identity data, voice and image data, contact information data (email, telephone number), IP addresses,
    Part 3: CATEGORIES OF DATA SUBJECT
    Customers and prospective customers of the client