Terms & Conditions

1. Parties and Introduction

1.1    This Agreement is between Make More Noise Limited, company number 09828493 whose registered office is at Somerset House, Temple Street, Birmingham, England, B2 5DP (“MMN”) and the Client (whose details appear on the attached Order Form), collectively, the “Parties” and each, a “Party”.

• MMN is a provider of public relations and marketing services and the Client wishes to engage MMN to provide the Services on the terms and conditions of this Agreement.
• This Agreement forms a binding contract between MMN and the Client in respect of the Services.

1.4    This Agreement will only come into effect upon each of the Parties executing the Order Form (in accordance with the requirements of the Order Form) and the Services shall commence on the Services Commencement Date.

1.5     This Agreement applies to all Services provided by MMN to the Client and sets out the Parties’ respective rights and obligations in respect of the Services.

• MMN is an independent contractor to the Client, and shall not be deemed to be a partner of, or otherwise associated with, the Client in any way.
• The Services are provided for the sole benefit of the Client, unless expressly agreed otherwise by the Parties and set out in writing.

2. Definitions and Interpretation

2.1     In this Agreement the following definitions apply:

2.2     Unless the context otherwise provides or requires, or as expressly stated, references to “Clause(s)” are to clauses of these Terms and Conditions.

2.3     Any references to a statute, directive, regulation, code or guideline (“legislation“) are references to such legislation as amended, modified or re-enacted from time to time.

2.4     The headings in this Agreement are for convenience only and shall not affect its construction or interpretation.

2.5     In the event of a conflict in the interpretation of the provisions of these Terms and Conditions, the Order Form and the Agreement Letter, the documents shall be interpreted in the following priority:

2.5.1           first, the Order Form;

2.5.2           second, these Terms and Conditions; and

2.5.3           third, the Agreement Letter.

3. Services

3.1     In consideration of the payment of the Fees, MMN shall, from the Services Commencement Date, use reasonable endeavours to provide the Services specified on the Order Form in accordance with the terms of this Agreement.

3.2    Any samples, drawings, descriptive matter or advertising issued by MMN, and any descriptions or illustrations contained in MMN’s website or promotional material in relation to the Services (collectively, “Marketing Materials”), are issued or published for the sole purpose of giving an approximate idea of the Services described in them. Such Marketing Materials do not form part of this Agreement or have any contractual force.

3.3    MMN shall:

3.3.1              perform the Services with reasonable care and skill;

3.3.2              use reasonable endeavours to ensure that the same person acts as the MMN Contact throughout the Term, but may replace that person from time to time where reasonably necessary in the interests of MMN’s business, or where such person leaves MMN;

3.3.3              have the right to sub-contract, sub-license or otherwise transfer certain parts of the Services to third parties as it deems necessary or appropriate;

3.3.4              report regularly on its performance of the Services and other information to the Client via email to the Main Client Contact (using the email address specified on the Order Form), or via such other method of communication as MMN may agree with the Client from time to time during the Term;

3.3.5              implement any change to a Campaign reasonably requested by the Client and agreed by MMN in accordance with this Agreement as soon as reasonably practicable from the date that such change is agreed; and

3.3.6              comply with all Applicable Laws and regulations relating to performance of the Services.

3.4    MMN will not send any text or materials for dissemination or publication without the Client’s prior approval (granted on either a specific or general basis).

4. The Client’s Obligations

• The Client shall:

• pay all Fees and any additional charges in accordance with this Agreement;

• co-operate with MMN in all matters relating to the Services;

• ensure that MMN has all such access to the Client’s information, electronic systems and materials as MMN may reasonably require in order to supply the Services;

• promptly provide MMN with all assistance, directions, instructions or information, as reasonably required by MMN to perform the Services;

• provide timely updates on any information relevant to the Services;

• comply with all Applicable Laws and regulations in relation to its receipt of and use of the Services, and any guidelines or policies of MMN issued to the Client from time to time during the Term;

• notify MMN promptly if it wishes to change the contact details for, or replace, the Main Client Contact, providing MMN with all required information prescribed in the Order Form;

• keep all MMN Background Materials at the Client’s premises in safe custody and at its own risk and maintain the MMN Background Materials in good condition until returned to MMN, and not dispose of or use the MMN Background Materials other than in accordance with MMN’s written instructions or authorisation;

• take out and maintain insurance sufficient to cover all its liability arising out of this Agreement; and

• not develop any commercial product or service using any part of the Services or the MMN Background Materials.

• The Client shall not use any trade mark, copyright, branding elements, or other Intellectual Property Rights of MMN without MMN’s prior written consent, unless the Client is entitled to do so under Applicable Law.

• If MMN’s performance of any of its obligations under this Agreement is prevented or delayed by any act by or omission of the Client, or by any failure by the Client to perform any relevant obligation (“Client Default”):

• without limiting or affecting any other right or remedy available to it, MMN shall have the right to immediately suspend performance of the Services until the Client remedies such Client Default, and to rely on such Client Default to relieve it from the performance of any of its obligations, in each case to the extent that such Client Default prevents or delays MMN’s performance of any of its obligations;

• MMN shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Client’s failure or delay to perform any of its obligations as set out in this Clause 4.3; and

• the Client shall reimburse MMN on written demand for any and all costs or losses sustained or incurred by MMN arising directly or indirectly from any Client Default.

5. Intellectual Property Rights

5.1     MMN and its licensors own, and shall retain ownership of, all Intellectual Property Rights in the MMN Background Materials.

5.2     MMN grants the Client a non-exclusive, non-transferrable, revocable, limited licence to use the MMN Background Materials during the Term solely in relation to its receipt of the Services. Such licence is at all times conditional upon: (i) the Client paying all Fees to MMN as they fall due; and (ii) the Client’s full compliance with this Agreement. For the avoidance of doubt, the Client may not sub-license, assign or otherwise transfer the rights in the MMN Background Materials without MMN’s prior written consent.

5.3     All Intellectual Property Rights in the MMN Bespoke Materials will vest in the Client automatically upon their creation. MMN hereby assigns (by way of present and, where appropriate, future assignment) all Intellectual Property Rights in the MMN Bespoke Materials to the Client.

5.4    The Client:

5.4.1           and its licensors own, and shall retain ownership of, all Intellectual Property Rights in the Client Materials;

5.4.2           hereby grants MMN a fully paid-up, non-exclusive, royalty-free, worldwide, transferable licence to copy, modify and use the Client Materials and the MMN Bespoke Materials during the Term for any purpose in connection with this Agreement and providing the Services;

5.4.3           warrants that the receipt and use of the Client Materials in the performance of this Agreement by MMN, its agents, subcontractors or consultants does not, and shall not, infringe the rights, including any Intellectual Property Rights, of any third party; and

5.4.4           shall hold MMN harmless from, and on demand indemnify MMN and keep MMN indemnified in full from and against, all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by MMN, and any sums agreed to in settlement, as a result of, or in connection with, any claim brought against MMN, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, MMN’s (or its sub-contractors’) receipt or use of the Client Materials in accordance with this Agreement.

6. Fees

6.1     Unless otherwise agreed in writing, the Fees payable by the Client for the Services shall be the amounts specified on the Order Form of this Agreement.

6.2    The Client acknowledges and agrees that it shall pay the Fees to MMN monthly in advance (unless otherwise agreed by the Parties in writing).

6.3    The Client acknowledges and agrees that the Fees exclude the following, which MMN shall be entitled to charge the Client, and the Client shall pay monthly in arrears (unless otherwise agreed in writing), following submission of an appropriate invoice:

6.3.1           the cost of any agreed out-of-pocket expenses and ancillary expenses reasonably incurred by MMN, its Personnel and/or its sub-contractors in connection with the Services (including without limitation, any travelling expenses, hotel costs, subsistence and any associated expenses);

6.3.2           the cost of providing the Services in languages other than English (as may be requested by the Client and agreed between the Parties); and

6.3.3           the cost to MMN of any materials or services procured by MMN from third parties for the provision of the Services, as such items and their cost are approved by the Client in advance from time to time.

6.4    In the event of cancellation of the Services or termination of this Agreement, MMN may determine in its absolute discretion whether to refund any advance payment for Services (which shall exclude any costs that are not reimbursed by third parties).

6.5    Without prejudice to any other right or remedy it might have, if the Client fails to pay MMN any sum due under this Agreement (including, without limitation, any third party costs that MMN incurs on the Client’s behalf) on the due date for payment:

6.5.1           MMN may charge the Client for any additional administration and legal costs that MMN may incur as a consequence of such late payment;

6.5.2           MMN may charge the Client interest (both before and after judgment) on the amount unpaid at the rate for the time being that would be applicable if the debt were a qualifying debt under the Late Payment of Commercial Debts (Interest) Act 1998; and

6.5.3           MMN may, at its election, suspend the supply of all or part of the Services under this Agreement (or any other contract between the Client and MMN) until payment has been made or terminate this Agreement on written notice to the Client.

6.6    MMN shall be entitled to set off or withhold any amount owed to the Client under this Agreement against any amount payable by the Client to MMN.

6.7     All sums payable to MMN under this Agreement:

6.7.1           are exclusive of VAT, which shall be payable by the Client in addition at the rate and in the manner for the time being prescribed by law;

• exclude any surcharges for payment methods used by the Client to pay the Fees; and

6.7.3           shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6.8     If any payment pursuant to this Agreement constitutes the whole or any part of the consideration for a taxable or deemed taxable supply to the Client, MMN shall increase that payment by an amount equal to the VAT which is chargeable in respect of the taxable or deemed taxable supply, provided that the Client shall have delivered a valid VAT invoice in respect of such VAT.

7. Confidentiality

7.1     Subject to Clause 7.2, MMN will hold all content and information that the Client has provided and either marked as confidential, or is notified to MMN as being confidential (“Client Confidential Information”), in the strictest confidence, and MMN will not disclose any such content or information to any other person, company or organisation. Client Confidential Information shall include any Personal Data provided by or on behalf of Client (“Client Personal Data“) pursuant to this Agreement.

7.2     The confidentiality obligations in Clause 7.1 shall not apply:

7.2.1        to the extent that the Client has given its prior approval to MMN sharing such Confidential Information as part of any campaign and/or as part of the Services;

7.2.2        to any disclosures that MMN is required to make by law, by a court of competent jurisdiction, or by any regulatory body;

7.2.3        to information that has come into the public domain through no fault of MMN;

7.2.4        to information that MMN develops independently (without benefit of the Client Confidential Information) or receives from a third party (which is not in breach of a continuing obligation of confidentiality to the Client); and

7.2.5    in respect of MMN’s right to share the Client Confidential Information with its Personnel, sub-contractors, professional advisors, consultants and auditors, who will each be informed of the confidential nature of the Client Confidential Information and instructed to treat such information confidentially.

7.3    Subject to Clause 7.4, the Client will hold all MMN Confidential Information in the strictest confidence. “MMN Confidential Information” for the purposes of these Terms and Conditions is defined as anything provided by, or on behalf of, MMN that is marked as “confidential”, is notified to the Client as being confidential or that could reasonably be considered to be confidential (including, without limitation, any Personal Data accessed and/or processed by the Client’s Personnel) and any confidential information relating to the business, affairs, strategies, suppliers or staff of MMN.

7.4     The confidentiality obligations in Clause 7.3 shall not apply to:

7.4.1        any disclosures that the Client is required to make by law, by a court of competent jurisdiction, or by any regulatory body, but only to the minimum extent required, and provided that the Client first notifies MMN of the requirement (if not prohibited by Applicable Law) and, upon the request of MMN, the Client shall use commercially reasonable efforts to assist MMN, at MMN’s sole expense, in seeking an appropriate protective order;

7.4.2        information that has come into the public domain through no fault of the Client;

7.4.3        information that the Client develops independently (without the benefit of MMN Confidential Information) or receives from a third party (which is not in breach of a continuing obligation of confidentiality to MMN); and

7.4.4        the Client’s right to share the MMN Confidential Information with its Personnel, professional advisors, consultants and auditors, who will each be informed of the confidential nature of the MMN Confidential Information and instructed to treat such information confidentially and the Client shall be liable to MMN if any such Party should fail to comply with the terms of such confidentiality obligation.

• Neither Party shall use the other Party’s confidential information (the Client Confidential Information, or the MMN Confidential Information (as applicable)) for any purpose other than to perform its obligations under this Agreement.

8. Data Protection

• Both Parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 8.1 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under the Data Protection Legislation.

• Without prejudice to the generality of Clause 8.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to MMN for the duration and purposes of this Agreement.

• The Parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Data Controller and MMN is the Data Processor in respect of any Client Personal Data processed in accordance with this Agreement, except in respect of MMN’s use of the Client Personal Data of the Main Client Contact for MMN’s own business, operational and administrative purposes other than the provision of the Services, in which case MMN shall act as the Data Controller.

• MMN may email the Client occasionally with information about the Services. Such emails are important, and the Client acknowledges and agrees that the Client will not be able to unsubscribe from them during the Term.

• MMN shall, when acting as a Data Processor in respect of the Client Personal Data:

• Process the Client Personal Data only in accordance with this Agreement and/or the Client’s written instructions from time to time, and shall not Process the Client Personal Data (other than the Personal Data of the Main Client Contact) for any purposes other than those expressly authorised in writing by the Client or this Agreement, unless required to do so by Applicable Law. Where MMN is relying on Applicable Law as the basis for Processing Client Personal Data, MMN shall promptly notify the Client of this before performing the Processing required by the Applicable Law unless the Applicable Law prohibits MMN from so notifying the Client;

• take appropriate technical and organisational measures against the unauthorised or unlawful Processing of the Client Personal Data and against the accidental loss or destruction of, or damage to, the Client Personal Data to ensure a level of security appropriate to:
  • the harm that might result from such unauthorised or unlawful Processing or accidental loss, destruction or damage; and
  • the nature of the data to be protected;
• ensure that all of its Personnel who have access to and/or Process Client Personal Data are obliged to keep the Client Personal Data confidential;

• not transfer any Client Personal Data outside of the UK and/or the European Economic Area unless the following conditions are fulfilled:
  • the Client or MMN has provided appropriate safeguards in relation to the transfer;
  • the data subject has enforceable rights and effective legal remedies;
  • MMN complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
  • MMN complies with reasonable instructions notified to it in advance by the Client with respect to the Processing of the Personal Data;
• provide the Client, at the Client’s cost, with reasonable assistance in responding to any request from any individual whose Personal Data forms part of the Client Personal Data and in ensuring the Client’s compliance with its obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

• notify the Client without undue delay on becoming aware of any security breach in respect of Client Personal Data;

• at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the Agreement, except to the extent required by Applicable Law;

• maintain complete and accurate records and information to demonstrate its compliance with this Clause 8.5 and shall make such records available to the Client to the extent necessary to demonstrate MMN and/or the Client’s compliance with Data Protection Legislation. Prior to making any such records and information available to the Client, MMN may redact any commercially sensitive or confidential information contained therein to the extent it considers necessary;

• on reasonable notice, and upon reasonable terms (including, without limitation, the Client’s execution of a non-disclosure agreement) permit the Client to audit and/or inspect the records specified in Clause 8.5.8 above for compliance with Data Protection Legislation;
• give the Client prior notice if MMN intends to add or replace any third-party processor; and
• notify the Client immediately if, in MMN’s opinion, any of the Client’s instructions infringes Data Protection Legislation.

• The Client consents to MMN:
  • transferring Client Personal Data out of the UK and/or the EEA, provided that the conditions set out in Clause 8.5.4 are satisfied; and
  • appointing subcontractors as third-party processors of Client Personal Data under this Agreement. MMN confirms that it has entered or (as the case may be) will enter with such third-party processors into written agreements substantially in conformance with MMN’s obligations under Clauses 7 and 8 of this Agreement. As between the Client and MMN, MMN shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this Clause 8.6.2.

9. Warranties and Indemnities: The client’s attention is particularly drawn to this clause

9.1     Each Party warrants to the other that it has the full power, capacity and authority to enter into this Agreement and to perform its obligations under this Agreement.

9.2     The Client hereby warrants and represents that:

9.2.1    the Client’s receipt and use of the Services shall be for legitimate business purposes and in compliance with all Applicable Laws and regulations;

9.2.2    the Client has obtained all necessary approvals, consents and permissions from any relevant authority or third party in connection with its receipt and use of the Services; and

9.2.3    the Client Materials are accurate, complete and up to date, and the Client accepts sole responsibility and liability for such Client Materials.

9.3     The Client will hold MMN harmless from, and indemnify MMN on demand and keep fully and effectively indemnified MMN from and against, any liability, losses, damages, costs (including legal fees) and expenses of any nature incurred by MMN directly or indirectly from:

9.3.1        any breach of the Client’s confidentiality obligations under Clause 7.3 of these Terms and Conditions; and

9.3.2        any breach by the Client of Clauses 8.1, 8.2 and/or 9.2 of these Terms and Conditions.

The indemnities in this Clause shall remain in full force and effect notwithstanding the termination or expiry of this Agreement.

9.4     If any third party makes a claim, or notifies MMN that it is intending to make a claim, against MMN, which may reasonably be considered to be likely to give rise to a liability under an indemnity given under Clause 5.5.4 or Clause 9.3 of this Agreement, MMN will give the Client written notice of such claim and allow the Client to have sole authority to dispute, compromise or defend such claim with the assistance of MMN as reasonably requested by the Client (and the Client agrees to reimburse MMN in full and in a timely manner for all such assistance).

10. Limitations of liability: The client’s attention is particularly drawn to this clause

10.1  Subject to Clauses 10.2 to 10.3 (inclusive), MMN’s liability to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise arising out of, or in connection with, this Agreement shall not exceed an amount which is equal to twelve (12) times the average monthly Fees paid or payable by the Client as at the date that the relevant liability accrued. The average monthly Fees shall be calculated as the mean of the monthly Fees paid or payable by the Client from the Effective Date until the date of the event giving rise to MMN’s liability.

10.2  Subject to Clause 10.3, MMN shall have no liability to the Client in any circumstances, whether in tort (including, without limitation, for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for respect of any: (i) loss of income, sales, business or revenue; (ii) loss of profits; (iii) loss or corruption of software, data or information; (iv) loss of business opportunity, goodwill or reputation; (v) business interruption; (vi) loss of anticipated savings; or (vii) for any indirect or consequential loss or damage of any kind.

10.3  Notwithstanding anything contained in this Agreement, neither Party excludes or limits its liability for: (i) personal injury or death resulting from its negligence; (ii) fraud or fraudulent misrepresentation; or (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 or any other liability which cannot be excluded or limited by law.

10.4  Save as expressly set out in this Agreement, the Services, the MMN Background Materials and the MMN Bespoke Materials are provided to the Client ‘as is’, and ‘as available’, and to the maximum extent permitted by Applicable Law, no warranties (whether express or implied) are made by MMN as to their suitability, fitness for purpose, accuracy or otherwise. The Client acknowledges and agrees that MMN cannot, and does not, guarantee that the Services will yield any specific results, benefits or outcomes.

10.5  All warranties, conditions and other terms, express or implied (by statute or otherwise) are, unless expressly set out in this Agreement, excluded from this Agreement to the fullest extent permitted by Applicable Law.

11. Duration and Termination

11.1  This Agreement shall commence on the Effective Date and, subject to earlier termination in accordance with its terms, will continue in force for the duration of the Initial Services Term. Following expiry of the Initial Services Term, this Agreement, subject to earlier termination in accordance with its terms, will continue in force thereafter unless and until terminated by either Party giving not less than sixty (60) days’ written notice of termination to the other, such termination to take effect no earlier than expiry of the Initial Services Term (the “Term”).

11.2  Either Party may terminate one or more of the Services or this Agreement in accordance with Clause 13.2 (Force Majeure).

11.3  Either Party may terminate this Agreement immediately by written notice if the other Party:

11.3.1     commits any material or persistent breach of any of its obligations under this Agreement or any part of this Agreement which relates to the Services and, in the case of a breach which is capable of remedy, fails to remedy it within thirty (30) days of being required to do so by notice in writing from the other Party; and/or

11.3.2     is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if it has a receiver, administrator or administrative receiver appointed over it or over any part of its undertaking or assets, or if it passes a resolution for winding-up (except for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or if a court of competent jurisdiction makes an order to that effect, or if it becomes subject to an administration order, or if it enters into any voluntary agreement with its creditors, or if any similar process to any of the above is begun in any jurisdiction, or if it ceases or threatens to cease to carry on business.

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

• the Client fails to pay any amount due under the Agreement on the due date for payment; or

• there is a change of Control of the Client.

• Without affecting any other right or remedy available to it, MMN may suspend the supply of all or part of the Services under the Agreement or any other contract between the Client and MMN if the Client becomes subject to any of the events listed in Clause 11.3.2, or MMN reasonably believes that the Client is about to become subject to any of them.

12. Consequences of Termination

12.1  The termination or expiry of this Agreement (howsoever caused) will not affect any rights and/or liabilities of either Party which have accrued before termination or expiry.

12.2  Any provision of this Agreement which expressly, or by implication, is intended to come into or continue in effect on or after termination or expiry (including, without limitation, Clauses 2, 4.4.2, 4.4.3, 5, 7, 8, 9, 10, 12 and 14) shall remain in full force and effect.

12.3  Upon termination or expiry of this Agreement (for any reason):

12.3.1     all unpaid Fees due to MMN shall become immediately due and payable, and the Client shall immediately pay to MMN all of MMN’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, MMN shall submit an invoice, which shall be payable by the Client immediately on receipt;

12.3.2     the Client shall (at MMN’s request and election) promptly return to MMN, or render permanently inaccessible, all MMN Confidential Information and MMN Background Materials, together with all other materials in its possession that were disclosed to it by MMN under this Agreement; and

12.3.3     MMN’s obligations to the Client under this Agreement, and all licences granted under this Agreement by either Party, shall immediately cease.

13. Force Majeure

13.1  Neither Party shall be liable to the other for any delay or non-performance of its obligations under this Agreement (other than an obligation to pay the Fees) arising from any cause or causes beyond its reasonable control, including, but not limited to, any Services not being available due to mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems, outages from cloud providers, power shortage, network failure, server crashes, deletion, corruption, or loss or removal of data, where the Client ceases to be entitled to access the Internet or ceases to have access to the Internet for whatever reason, fire, explosion, storm, flood, tempest, drought, earthquake, accident, epidemic or disease, war, hostilities, riots, acts of terrorism, legislative changes or any other changes by any government or authorised body in any relevant territory, failure or shortage of power supplies, failure of computer systems, non-performance by suppliers or subcontractors (other than by companies in the same group as the Party seeking to rely on this Clause), labour dispute or any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency (a “Force Majeure Event“). The Party subject to a Force Majeure Event shall promptly notify the other Party of that fact and will use its reasonable endeavours to minimise the impact of such Force Majeure Event.

13.2  If a Party is prevented from performing its obligations under this Agreement in relation to any of the Services by a Force Majeure Event which continues for more than ninety (90) days then either Party will be entitled to terminate this Agreement with immediate effect, in relation to that Service (or those Services) in question only, without liability to the other Party on giving written notice of termination to the other Party.

14. Miscellaneous

• The Client shall not during the Term, nor for a period of twelve (12) months following the termination or expiry of this Agreement for any reason, on its own behalf or on behalf of any third party, directly induce, or attempt to induce, any person employed by MMN who has been engaged in the provision of the Services to the Client to leave the employment of MMN or employ or engage in any capacity any such employee, provided that this restriction shall not apply to any such person who makes an unsolicited reply to a bona fide public advertisement, including by the Client on its website, or solicitations conducted by an entity that is acquired by or merged with the Client, so long as such solicitations were conducted prior to the date of such acquisition or merger.

14.2  MMN may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.

14.3  The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of MMN.

14.4   If a dispute arises out of, or in connection with, this Agreement or the performance, validity or enforceability of it (a “Dispute”) then except as expressly provided in this Agreement, the Parties shall follow the procedure set out in this Clause:

14.4.1        either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the Main Client Contact and an Authorised Representative of MMN Contact shall attempt in good faith to resolve the Dispute;

14.4.2        if the Main Client Contact and the MMN Contact are for any reason unable to resolve the Dispute within fourteen (14) days of service of the Dispute Notice, the Dispute shall immediately be referred to a senior management representative of the Client and an Authorised Management Representative of MMN who shall attempt in good faith to resolve it within a further fourteen (14) days.

14.5  Neither Party may commence any court proceedings in relation to the whole or part of a Dispute until twenty-eight (28) days after service of the Dispute Notice, provided that the right to issue proceedings is not prejudiced by such delay.

14.6  If the Dispute is not resolved within twenty-eight (28) days after service of the Dispute Notice, the Dispute shall be finally resolved by the courts of England and Wales in accordance with Clause 14.7 of this Agreement.

14.7  This Agreement shall be governed by the laws of England and Wales whose courts shall have exclusive jurisdiction in the event of a failure to resolve any dispute (including non-contractual disputes) arising between the Parties.

14.8  This Agreement, together with the Agreement Letter, constitutes the entire agreement between the Parties relating to the matters provided for herein and supersedes all previous agreements, understandings or arrangements between the Parties relating to these matters and each of the Parties acknowledges and agrees that in entering into the Agreement it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether Party to the Agreement or not) other than as expressly set out in the Agreement or the Agreement Letter (subject always to the rules of interpretation in Clause 2.5 above). Nothing in this Clause shall limit or exclude any liability for fraud.

14.9     The Parties may propose changes to the Fees, and add, remove or make changes to the Services, from time to time during the Term, including by agreeing revised Work Plans from time to time. If both Parties agree to any such changes:

14.9.1        MMN’s Authorised Representative shall ask the Client to confirm its agreement to such changes by sending an email in the form set out in Annex A to this Agreement;

14.9.2        the Main Client Contact shall confirm their agreement to the same (in accordance with the requirements of Annex A) by return email; and

14.9.3        the changes will come into effect on the date specified in the notice.

14.10   If MMN wishes to vary the terms of this Agreement, it will notify the Client of such variation(s), and require the Client to accept such variation(s) before continuing to use the Services. MMN reserves the right to suspend or terminate this Agreement (including the provision of the Services) with immediate effect if the Client does not accept any such variation(s).

14.11   The waiver by either of the Parties of any breach of any of the provisions of this Agreement shall not prevent the subsequent enforcement of that provision and shall not be deemed a waiver of any subsequent breach. The rights of either of the Parties shall not be prejudiced or restricted by any time, indulgence or forbearance extended to the other.

14.12   Any notices to be given under this Agreement shall, unless otherwise expressly stated, be in writing and shall be given by sending the same by email (if to the Client, to the Main Client Contact specified on the Order Form of this Agreement, or such other email address as the Client may notify to MMN in writing from time to time during the Term; if to MMN, to Hannah Haffield (hhaffield@makemorenoise.co.uk), with a copy sent to accounts@makemorenoise.co.uk, or such other email address as MMN may notify to the Client in writing from time to time during the Term). Any notice by email shall be deemed to have been delivered on the same day (if sent before 17:00) and with a valid read receipt that is successfully returned to the sender. If a return read receipt is not received by the sender, the email shall not be deemed to be received. This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

14.13   A person who is not a Party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

14.14  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.

14.15  The invalidity or unenforceability of any provision, part-provision or any right arising under this Agreement shall not affect the validity or enforceability of any other provisions or rights. If any provision or part-provision is adjudged to be invalid or unenforceable, but would be adjudged valid or enforceable if any part(s) of their wording were deleted or modified, the relevant provisions shall apply with such deletions or modifications as may be necessary to make them valid and effective.