THESE TERMS AND CONDITIONS apply to the provision of services by CHALLENGE MARKETING GROP LIMITED, a company incorporated in England and Wales with company registration number 10564511 and whose registered office is at 48 Oakway, St Johns, Woking, Surrey GU21 8TR (CMG)

CMG shall provide the Services to the Client solely on the terms of the agreement comprising these terms and conditions and the SoW. No other terms will apply to the provision of Services to the Client and all other terms, whether provided by the Client or implied by trade, custom, practice or course of dealing are specifically excluded.

1. PRELIMINARY

1.1 In the agreement, the following terms shall have the following meanings:

• the agreement means these terms and conditions and the SoW and any further documents specifying in greater detail the Services to be performed by CMG pursuant to the agreement.
• Appointment means the appointment of CMG under the agreement.
• Background IPR means any Intellectual Property Rights other than the Foreground IPR.
• Client means the client whose details are set out in the SoW.
• Client Materials means all or any know-how, expertise, business systems, documentation, or other materials provided by the Client to CMG during the course of the agreement.
• CMG Materials means all or any know-how, expertise, business systems or documentation delivered to the Client by CMG containing Background IPR during the course of the Agreement.
• Commencement Date means the date set out in the SoW as the date on which CMG shall start providing the Services.
• Confidential Information means all information of a confidential nature belonging to a party, its business, customers and products, including but not limited to technical and non-technical information, financial information, business and marketing plans and policies, client lists, terms of contracts or agreements, business systems, methodologies, and other similar information.
• CMG Personnel means the employees and consultants engaged by CMG to provide the Services.
• Deliverables means any information, ideas, reports and other written material, business, marketing or project plans, marketing or advertising copy or any other materials CMG provides to the Client in relation to the Services.
• Fees means sums payable by the Client under the agreement for the carrying out of the Services which shall be calculated in the manner set out in the SoW.
• Foreground IPR means any Intellectual Property Rights in (a) the Client Materials and (b) in the Deliverables developed specifically for the Client in the course of providing the Services and not of general application.
• Intellectual Property Rights means any patent, trade mark, copyright, trade secret, know-how, Confidential Information, database right, design right, registered design or similar right or any application for any of the foregoing.
• Permitted Purposes means the purposes for which the CMG Materials may be used as expressly set out in the SoW or if not specified, then as may reasonably be implied by their production.
• the Services means the Services to be provided by CMG as detailed in the SoW;
• Termination means termination of the Appointment howsoever it occurs whether lawful or not.
• Third Party IPR means Intellectual Property Rights of a party other than the Client or CMG.
• Third Party Licences means licences of Intellectual Property Rights required to be obtained from third parties to enable either CMG to perform the Services or the Client to use the Deliverables, including a sub-licence of Third Party IPR granted by CMG to the Client in accordance with clause 11.4.
• SoW means the statement of work as the same may be amended by agreement from time to time specifying the Services to be provided by CMG, including the Deliverables, the timetable for delivering the Services, the assistance required to be provided by the Client to enable CMG to provide the Services and the Fees payable.
• Term means the term of the agreement as set out in the Schedule as may be extended by agreement between the parties.

1.2 Each gender includes each other gender, the singular includes the plural (and vice versa) and clause headings shall be ignored in interpretation.

1.3 In the event of any conflict between the terms of the agreement and any SoW, the terms of the SoW shall prevail.

2. TERM

2.1 The Term shall be the period from the Commencement Date until the completion of the Services or the earlier termination of the agreement.

2.2 The Client and CMG shall review on a regular basis the Services to be provided as set out in the SoW and shall amend or extend the descriptions of the Services as required.

3. CMG’S OBLIGATIONS

3.1. During the Term, CMG shall:

3.1.1 carry out the Services diligently and in a good, proper and professional manner and in accordance with such requirements as the Client may from time to time reasonably specify;

3.1.2 act in good faith to the Client;

3.1.3 attend such meetings and make itself available to the Client at such normal business times and locations as the Client from time to time reasonably requests and upon reasonable notice;

3.1.4 when attending the Client’s premises, observe the Client’s health and safety procedures and comply with all reasonable requests made by the Client in relation to data protection, working hours and security.

3.2 Subject to clause 1.3 and 3.1.4, CMG may carry out the Services at such times and places as it chooses.

3.3 CMG will make all reasonable efforts to meet any dates or time-frames set out in the SoW, such dates and time-frames will constitute estimates only and CMG will not be liable for any delay or failure in meeting them.

3.4 The parties agree that it may be necessary to adapt or alter the Services. Any changes or additions to the Services will be valid only if agreed in writing or by email by the Client and CMG.

3.5 CMG undertakes that it shall not, and shall procure that CMG’s Personnel shall not, during the Term and for a period of twelve months after the Term solicit or endeavour to employ, or engage as a consultant, any of the Client’s employees.

4. CLIENT’S RESPONSIBILITIES

4.1 The Client agrees to co-operate with CMG to the extent necessary for CMG to perform the Services. Such co-operation will include, but not be limited to, providing all necessary material, information, assistance and access to the Client’s personnel as required.

4.2. Without prejudice to the generality of clause 4.1, the Client shall provide the resource and assistance, and otherwise comply with its obligations, as set out in the SoW.

4.3 The Client warrants and represents that the use by CMG of the Client Materials will not infringe the Intellectual Property Rights of any third party.

4.4 The Client will take all reasonable precautions to ensure that any Client Materials the Client provides to CMG electronically will be free from all forms of malware.

5. CMG PERSONNEL

5.1 The Services will be performed by CMG’s Personnel.

5.2 CMG shall ensure that any of CMG’s Personnel who are not employees of CMG shall be engaged on terms which require them to observe the terms of the agreement.

5.3 CMG shall remain primarily liable for the provision of the Services provided by, and any acts of, any of CMG’s Personnel.

5.4 The Client undertakes that during the Term and for a period of twelve months thereafter the Client will not solicit or endeavour to employ, or engage as a consultant, any of CMG’s Personnel who are involved in providing the Services.

6. PAYMENTS BY THE CLIENT

6.1 CMG shall raise invoices for the Fees in accordance with the terms of the SoW.

6.2 Where Fees are chargeable on a time basis, CMG shall provide details of the hours provided by each of the CMG Personnel in the provision of the Services for the relevant period covered by the invoice.

6.3 The fees are stated exclusive of value added tax which shall be payable in addition at the rate prevailing on the date of the invoice.

6.4 The Client shall pay each invoice within the time limit set out in the SoW, and if no time period for payment is set out in the SoW, then within 14 days of the date of invoice.

6.5 No payment shall be deemed to have been received by CMG until CMG has received cleared funds in payment of the Fees.

6.6 Interest shall accrue from the date of the invoice to the actual date of payment of any Fees or expenses which remain unpaid after 30 days from the date of the invoice. Interest shall be calculated at or 2 per cent above the base rate of the Bank of England. The Client shall repay on a full indemnity basis all costs and expenses incurred by CMG in recovering any Fees or expenses not paid by the due date.

6.7 Without prejudice to its rights under clause 12, CMG shall be entitled to suspend its performance of the Services in the event that the Client does not pay any invoice by the due date for payment.

7. EXPENSES

7.1 The Client shall reimburse CMG for out of pocket expenses reasonably incurred by CMG in the proper performance of the Services hereunder.

7.2 Expenses shall include without limitation:

7.2.1 all expenses for travel and accommodation incurred by CMG in the delivery of the Services; and

7.2.2 all expenses incurred in the preparation of Deliverables delivered in respect of the Services.

7.3 CMG shall, wherever possible, notify the Client in advance if it proposes to incur disbursements which it is reasonable for the Client to consider are material in relation to the size of the Fees, but failure to provide such notification shall not annul the Client’s liability to pay.

8. WARRANTIES

8.1 CMG warrants that CMG’s Personnel have the appropriate skill and experience to perform the Services.

8.2 CMG further warrants that any written statements or opinions about the Services and any results of the Services will be made in good faith.

8.3 CMG makes no representations, undertakings or warranties about any results achievable by or consequences of the Services.

8.4 CMG does not warrant that all outcomes delivered to the Client shall be as the Client may have anticipated or expected.

8.5 CMG shall take all reasonable precautions to ensure that the Deliverables and any Consultant’s Materials delivered electronically to the Client will be free from all types of malware.

9. CLIENT / CONSULTANT RELATIONSHIP

9.1 Nothing in the agreement shall constitute a partnership between the parties. CMG is providing its services as an independent contractor on a non-exclusive basis and nothing in the agreement will imply exclusivity or (subject to the provisions of clause 10) restrict CMG from providing its services to any other client, even if a competitor of the Client.

9.2 Save with the Client’s consent, CMG is not, and shall not purport to be, an agent of the Client and does not, and will not purport to, have any right or power to represent or bind the Client to any obligation.

10. CONFIDENTIALITY

10.1 Each of the parties undertakes to the other:

10.1.1 to treat all Confidential Information of the other party in strict confidence;

10.1.2 not to disclose any Confidential Information of the other party to any third party;

10.1.3 to take all reasonable precautions to prevent the disclosure of the Confidential Information of the other party to any third party;

save as and to the extent expressly permitted in writing by the other provided that these undertakings shall not apply to any information which is either already in its possession or in the public domain other than by reason of a breach of this confidentiality obligation nor shall they prevent disclosure pursuant to an order by a court of competent jurisdiction but that otherwise these obligations will continue in force without limit of time.

10.2 CMG shall procure that all CMG’s Personnel, and the Client shall procure all relevant employees, associates, agents and sub-contractors, are aware of the confidentiality of the Confidential Information and the provisions of this Clause 10 and without prejudice to the generality of the foregoing take all such steps as are from time to time necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this Clause 10.

10.3 Notwithstanding anything in the agreement to the contrary, CMG will be free to use for any purpose CMG’s Materials and walkaway knowledge. The term “walkaway knowledge” means information in intangible form, which may be retained by persons working on the Services, including ideas, concepts, know-how and techniques contained therein and which do not contain any Confidential Information belonging to the Client.

10.4 The Client agrees that CMG may include the Client’s name and logo on CMG’s customer lists.

11. INTELLECTUAL PROPERTY RIGHTS

11.1 The parties acknowledge and agree that:

11.1.1 all Foreground IPR now in existence belongs to, and all future Foreground IPR shall belong to, the Client; and

11.1.2 all Background IPR now in existence belongs to, and all future Background IPR shall belong to, CMG.

11.2 CMG hereby assigns to the Client any future Foreground IPR created by CMG’s Personnel during the course of providing the Services and shall, at the request and expense of the Client, execute any document and do any act or thing necessary to vest the Foreground IPR created by CMG’s Personnel in the Client.

11.3 To the extent that any Deliverables contain Background IPR, CMG hereby grants to the Client a non-exclusive, world-wide, perpetual, royalty-free licence to use the Background IPR in the Deliverables solely for the Permitted Purposes (the Licence).

11.4 The parties recognise that to enable CMG to provide the Services or the Client to use the Deliverables, it may be necessary to obtain Third Party Licences.  CMG will set out in any SoW, or subsequently to the preparation of the SoW set out in writing, any requirement for Third Party Licences and agree with the Client the scope of the Third party Licences required and the cost of them.  To the extent that CMG is sub-licensing Third Party IPR, then it shall set out in the SoW or in a separate sub-licence the terms upon which the Third Party IPR is sublicensed to the Client.

11.5 The Client agrees that, save as permitted by the Licence or Third Party Licence, it will not, nor permit any third party to, use, copy, distribute, alter, modify or vary any Background IPR in the Deliverables.

11.6 The Client may not assign or sub-licence any of its rights granted pursuant to the Licence.

12. CANCELLATION, POSTPONEMENT AND TERMINATION

12.1 The Agreement shall commence on the Commencement Date and end on the last day of the Term.

12.2 The agreement may be terminated:

12.2.1 forthwith by CMG if the Client fails to pay any Fees within 30 days of the due date for payment;

12.2.2 forthwith by either party if the other commits any material breach of the agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request to remedy the same;

12.2.3 forthwith by either party in the event that the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or Services for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver or a similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction);

12.3 Any termination pursuant to this Clause 12 is without prejudice to any other rights or remedies a party may be entitled to under the agreement or at law and will not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into force on or after such termination.

12.4 Termination shall not affect clauses 5, 5.4, 10, 11 and 13 to 17 and any other provision of the Agreement which has or is intended to continue to have effect after Termination and shall be without prejudice to the rights of the parties arising from any antecedent breach of the Agreement.

13. LIMITATION OF LIABILITY

13.1 Subject to clauses 2, 13.3 and 13.4, CMG’s maximum aggregate liability under the agreement shall be the amount stated in the SoW, but if no limit is stated in the SoW, then the amount of Fees paid by the Client in the period of twelve months immediately preceding the relevant event giving rise to the claim by the Client.

13.2 CMG’s maximum aggregate liability under the agreement for loss or damage to tangible property shall £250,000.

13.3 CMG’s liability for death or personal injury resulting from its own negligence or that of its agents shall not be limited.

13.4 CMG excludes all other liabilities (whether in contract, tort or otherwise), representations and warranties, express or implied and in any event shall not be liable for any claims or liability in contract, tort or otherwise for loss of profits, goodwill, data or any type of special, indirect or consequential loss (including loss or damage suffered by the Client as a result of an action brought by a third party) even if such loss was reasonably foreseeable or CMG had been advised of the possibility of the Client incurring the same.

13.5 CMG will not be liable for any acts or omissions of any third parties (other than CMG’s Personnel in relation to their delivery of the Services) it introduces to the Client in relation to the Services and CMG makes no representations or warranties in relation to any third party software, equipment or services it may recommend to the Client in relation to the Services. CMG will not be liable for any losses suffered by the Client as a result of its use of any such software, equipment or services.

13.6 The Client acknowledges that the limitations of liability set out in this clause are fair and reasonable in all the circumstances and are integral to the pricing of the Services. The Client acknowledges that, to the extent that such limits impose upon it risk, it has considered whether or not to insure, and the level to which it need take out insurance, against such risk.

14. THIRD PARTIES

14.1 CMG and the Client agree that a person who is not a party to the agreement shall not have the right to enforce any term or terms of the agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.

14.2 CMG and the Client will not require the consent of any third party to amend any of the terms of the agreement.

15. FORCE MAJEURE

15.1 Neither CMG nor the Client will be liable for breach of its obligations under the agreement resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees), insurrection or riots, epidemic or pandemic, act of God, inability to obtain supplies, requirements or regulations of any civil or military authority (an Event of Force Majeure).

15.2 Each of the parties to the agreement agree to give notice immediately to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure. If a default due to an Event of Force Majeure shall continue for more than six weeks then the party not in default shall be entitled to terminate the agreement. Neither party shall have any liability to the other in respect of the termination of the agreement as a result of an event of Force Majeure other than Fees incurred prior to the Event of Force Majeure.

16. DISPUTES

16.1 All disputes or differences which shall at any time hereafter arise between CMG and the Client in respect of the construction or effect of the agreement or the rights duties and liabilities of the parties hereunder or any matter or event connected with or arising out of the agreement (a Relevant Event) shall be referred to a jointly-nominated independent third party (the Third Party). In the event that the parties cannot agree on the Third Party, either party may apply to the President of the Law Society of England and Wales to appoint a person to act as the Third Party.

16.2 The Third Party shall act as an expert (and not as an arbitrator) whose decision (including as to costs) shall except in the case of manifest error be final and binding upon both parties.

17. GENERAL

17.1 The agreement represents the whole agreement relating to the subject matter of the agreement and replaces any previous agreement, understanding or arrangement between the parties. Neither party will have any remedy in respect of any untrue statement, unless made fraudulently, upon which it relied in entering the agreement.

17.2 The agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto.

17.3 The Client may not assign or otherwise transfer any of its rights or obligations under the agreement without the prior written consent of CMG.

17.4 If any provision of the Agreement is void, voidable, illegal or unenforceable it shall be severed from the remaining provisions which shall continue in full force and effect.

17.5 No time or other indulgence allowed or granted by either party to the other shall constitute any waiver of any rights or remedies and remedies shall be cumulative and not exclusive.

17.6 Any notice or other communication hereunder shall be in writing and shall be sufficiently served:

17.6.1 by personal delivery or by pre-paid first class post or by email (such email notice to be confirmed by letter posted within 12 hours) to the other party at its registered office;

17.6.2 any such notice or other document will be deemed to have been served if delivered at the time of delivery, if sent by post upon the expiration of 48 hours after posting and if sent by email at the start of the next working day.

17.7 The Agreement shall be governed and construed in all respects in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.