1.1 The following definitions and rules of interpretation apply in this Agreement (unless the context requires otherwise). Terms shown in bold throughout this Agreement are also defined terms.
| Term | Definition |
|---|---|
| Acceptance | in relation to the Application and/or Services, successful completion of the Acceptance Tests or deemed acceptance in accordance with this Agreement, and “Accepted” shall be construed accordingly. |
| Acceptance Tests | the test protocols as described in clause 9 to assess whether the Application and/or Services conform with the specification set out in a Statement of Work. |
| Agreement | these Terms and any signed Statements of Work, both as varied or updated from time to time. |
| Application | where applicable, the website or web-based application as detailed in the Statement of Work that FINALLY Agency is designing, developing, supporting, maintaining and/or hosting as part of the Services. |
| Business Day | any day (other than Saturday, Sunday or public holiday) on which ordinary banks are open for business in London for business. |
| Business Hour(s) | the hours between 9am and 5pm UK time on a Business Day. |
| Client Materials | any and all documents, information, data and materials (whether owned by the Client or a third party) including the Required Materials and any other text, images, brand names, logos, copy or content which the Client may provide to FINALLY Agency in connection with the Services. |
| Confidential Information | any and all confidential information (whether in oral, written or electronic form), including technical or other information, imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other's business, finance or technology, know-how, intellectual property, assets, strategy, products and Clients, including without limitation information relating to processes, management, financial, marketing, technical and other arrangements or operations of any associate, person, firm, or organisation associated with that party. For the avoidance of doubt the content of this Agreement is classified as Confidential Information. |
| Content | any text, copy, graphics, videos, animations, images, sound, data, wireframe, site map(s), technical tools and/or materials or other content produced or supplied by FINALLY Agency as part of the Services, including content for inclusion in or on the Client’s website, social media, mailshot(s) and/or other marketing channels. |
| Cookie | a file stored on or linked to a device by the Client’s website to record when or how a user visits or interacts with some or all of that website or other websites or when using certain features of the website. |
| Cookie Law | the relevant parts of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (and, where applicable, the UK GDPR) and all other legislation and regulations in force from time to time which may apply to a party relating to the use of Cookies. |
| Data Protection Laws | all applicable statutes, regulations and laws in force from time to time in the UK including the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Data Protection Act 2018 and the UK GDPR. |
| Deliverables | the outputs, documents, products, materials or other deliverables specified in the Statement of Work to be provided by FINALLY Agency. |
| Fees | the fees payable for the Services as set out in the Statement of Work and/or as otherwise notified to the Client by FINALLY Agency from time to time. |
| FINALLY Agency Materials | any and all documents, information, materials and data (including without limitation any passwords, text, images, brand names, logos or copy, adverts and key word lists) which FINALLY Agency may provide in connection with this Agreement. |
| Intellectual Property Rights | all patents, rights to inventions, copyright (including rights in software) and related rights, trademarks, service marks, get up and trade names, internet domain names, rights to goodwill or to sue for passing off, rights in designs, database rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world. |
| Liability | any loss, damage, liability, demand, claim, proceedings, judgement, settlement, fine, interest, penalty, award, order, cost, expenses (including all reasonable management time, and legal disbursements and costs of investigation, litigation, settlement, judgement, and other professional costs and expenses on a full indemnity basis); and “ Liabilities ” shall be construed accordingly. |
| Personnel | the employees, consultants or contractors who are engaged or employed by FINALLY Agency and who perform some or all of the Services. |
| Project Services | where the Services to be provided by FINALLY Agency under a Statement of Work are related to a specific project or piece of work and such Services are not provided on an ongoing or retained basis. |
| Proposal | as defined in clause 3.1. |
| Required Materials | the documents, information (including where applicable access to tools, software, CRM(s) and/or social or other paid media accounts), items and materials in any form (whether owned by the Client or by a third party) required under a Statement of Work or otherwise reasonably required by FINALLY Agency in connection with the Services. |
| Retained Services | where the Services to be provided by FINALLY Agency under a Statement of Work are by their nature ongoing and/or retained, including any Statement of Work which includes Retained Agency Hours, or any support, maintenance or hosting services. |
| Services | the services to be performed by FINALLY Agency under this Agreement and which are set out in the relevant Statement of Work. The Services may be Project Services or Retained Services or a combination of the two. |
| Start Date | the date on which FINALLY Agency commences the Services. |
| Statement of Work | a written document provided by FINALLY Agency which sets out the Services to be provided by FINALLY Agency and the Fees payable by the Client. |
| Terms | these Standard Terms and Conditions. |
| Third Party Additional Terms | any terms and conditions relating to the possession or use of Third Party Content. |
| Third Party Content | any text, copy, graphics, videos, animations, images, sound, data, systems, application(s), program(s), software, platform(s), plugin(s), technical tools and /or materials used in the Application and/or Services which is owned or licensed by a third party and used in the development or support of the Application and/or otherwise utilised during the performance of the Services. |
| Third Party Costs | as defined in clause 8.2. |
| 1.2 | Clause and paragraph headings shall not affect the interpretation of this Agreement. |
| 1.3 | A reference in this Agreement to: |
| 1 | a person shall include a natural person, corporate or unincorporated body; |
| 2 | a company shall include any company, corporation or other body corporate, however established; |
| 3 | one gender shall include a reference to all genders; and |
| 4 | words in the singular shall include the plural and vice versa. |
| 1.4 | A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made thereunder. |
| 1.5 | A reference to ‘writing’ or ‘written’ includes email but not fax or any internet or instant messaging service. |
| 1.6 | Any reference to the termination of any Statement of Work shall include any expiry of the Statement of Work as contemplated in clause 2.2. |
| 1.7 | The terms “include”, “including” and “in particular” shall not be interpreted as limiting the generality of any foregoing words. |
| 1.8 | If there is an inconsistency between any parts of the Agreement, the order of precedence is: |
| 1 | the Statement of Work; then |
| 2 | these Terms. |
| In particular, where the Statement of Work includes any terms and conditions in the Special Terms section of the Statement of Work, those Special Terms shall expressly override and replace any conflicting provisions set out in these Terms. |
| 2.1 | These Terms shall commence on the date that they are signed by both parties. |
| 2.2 | Each Statement of Work shall commence on the date that it is signed by the parties and shall remain valid and in force unless and until: |
| 1 | either party terminates the Statement of Work, or the Agreement in its entirety, in accordance with clause 23; or |
| 2 | the Services as detailed in that Statement of Work have been performed, the Deliverables delivered to the Client, and the Client has paid all relevant Fees, Expenses and/or other sums payable under that Statement of Work, in which case the Statement of Work shall automatically expire. |
| 3.1 | The parties shall from time to time discuss the Client’s requirements and how FINALLY Agency may be able to support those requirements. The details of any proposed services will be issued to the Client by FINALLY Agency in writing but shall not be contractually binding (“ Proposal ”). FINALLY Agency reserves the right to charge the Client for the scoping, drafting and/or presenting of the Proposal (including any meetings with the Client, whether conducted face-to-face or remotely) at a rate of £500 per hour (plus VAT where applicable), up to a maximum of £1680 (plus VAT where applicable). Where the Client engages FINALLY Agency by signing a Statement of Work in relation to the services offered in the Proposal, no charges relating to the Proposal shall be payable. Any payments due under this clause shall be invoiced by FINALLY Agency upon completion of the Proposal and are payable by the Client within twenty-eight (28) days of receipt of invoice. |
| 3.2 | Once the Services have been agreed by the parties, FINALLY Agency shall issue a Statement of Work. Each Statement of Work shall be read in conjunction and construed in accordance with these Terms. Once a Statement of Work has been agreed and signed by the parties, no amendment shall be made to it except in accordance with the provisions set out in these Terms or the relevant Statement of Work. |
| 3.3 | FINALLY Agency shall at all times during the term of this Agreement provide the Services as an independent contractor. FINALLY Agency shall be responsible for all taxes and contributions in respect of the Fees payable to FINALLY Agency under this Agreement. |
| 3.4 | The engagement of FINALLY Agency under this Agreement is mutually non-exclusive. That is to say that at any time: |
| 1 | FINALLY Agency can provide services to other Clients and clients which are the same as or similar to the Services; and |
| 2 | the Client can engage other service providers to provide the Client with services which are the same as or similar to the Services. |
| 4.1 | FINALLY Agency shall: |
| 1 | use all reasonable endeavours to provide the Services and deliver the Deliverables to the Client substantively in accordance with the Statement of Work; and |
| 2 | provide the Services to the Client with reasonable skill and care, commensurate with prevailing standards in the industry in the United Kingdom. |
| 4.2 | FINALLY Agency shall use reasonable endeavours to meet any performance dates specified in the Statement of Work, however any such dates shall be estimates only. Accordingly, time for performance by FINALLY Agency shall not be of the essence of this Agreement. |
| 4.3 | To the extent any delay in meeting any agreed performance dates results solely from Finally Agency, then after 5 Business Days after failing to deliver the Deliverables the Client shall be entitled to claim a reduction in the Fees of 2% per week up to a maximum of 6% of the total Fees in the relevant SOW. |
| 4.4 | FINALLY Agency shall use all reasonable endeavours to comply with reasonable instructions given to it by the Client, provided that such instructions are compatible with the scope and subject-matter of this Agreement. |
| 5.1 | The Client shall co-operate with FINALLY Agency in all matters relating to the Services and respond promptly to all reasonable requests of FINALLY Agency. |
| 5.2 | Without prejudice to the generality of clause 5.1, the Client warrants and undertakes that it: |
| 1 | shall provide the Required Materials to FINALLY Agency in a timely manner and in the format required by FINALLY Agency, ensure that they are accurate and complete in all respects and are not misleading or out of date, and acknowledges that FINALLY Agency shall be entitled to rely on the accuracy and completeness of the Required Materials; |
| 2 | is permitted to provide the Required Materials referred to in clause 5.1.1 to FINALLY Agency; |
| 3 | shall provide in a timely manner to FINALLY Agency any other Client Materials or any other documents, information or access to systems or other accounts that FINALLY Agency reasonably requests from time to time; |
| 4 | shall inform FINALLY Agency without delay if the access credentials or any of the information contained in the Required Materials or Client Materials shall change; |
| 5 | shall obtain and maintain all necessary licences, permissions and consents which may be required for FINALLY Agency to provide the Services (including without limitation those required in respect of the Client Materials); |
| 6 | shall ensure that the Client Materials do not contain any viruses or other harmful or intrusive programs or other code; do not infringe any laws, regulations or any third party rights; and do not include material which is, in FINALLY Agency’s view, obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite hatred, menacing, blasphemous, or illegal; |
| 7 | shall maintain back-ups of all Client Materials; |
| 8 | shall keep and maintain all FINALLY Agency Materials (including but not limited to any account details or passwords) safe and secure, and not dispose of the said FINALLY Agency Materials or disclose them to any other person other than in accordance with FINALLY Agency’s written instructions or otherwise in accordance with the terms of this Agreement; |
| 9 | except where clause 8.2 applies, shall be liable for and pay all third party charges in connection with the Services, and agrees that should the Client fail to pay those charges, and access to the relevant third party service or account is blocked, FINALLY Agency shall be under no obligation to provide the Services whilst the service or account access is blocked, but the Client shall still be required to pay the Fees to FINALLY Agency under this Agreement; and |
| 10 | shall comply with any additional responsibilities of the Client as set out in the relevant Statement of Work. |
| 5.3 | The Client’s designated contact for the Services is identified in the relevant Statement of Work. The designated contact shall have the authority to contractually bind the Client on all matters relating to the relevant Services, including any changes or variations to that Statement of Work. |
| 6.1 | If FINALLY Agency’s performance of any of its obligations under the Agreement is prevented or delayed by any act, omission or default of the Client, or failure by the Client to perform any relevant obligation or follow any reasonable instructions given by FINALLY Agency in relation to the Services (“Client Default”): |
| FINALLY Agency shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations; FINALLY Agency shall not be liable for any Liabilities sustained or incurred by the Client arising directly or indirectly from FINALLY Agency’s failure or delay to perform any of its obligations hereunder; and | |
| the Client shall indemnify FINALLY Agency for any Liabilities suffered or incurred by FINALLY Agency arising out of or in connection with any Client Default. | |
| 6.2 | The provisions of this clause 6 shall continue in force after the termination of the Agreement. |
| 7.1 | FINALLY Agency shall provide the Services from the Start Date set out in the relevant Statement of Work and in accordance with the terms of this Agreement. |
| 7.2 | The Client may cancel a signed Statement of Work prior to the Start Date; however in such circumstances, the Client shall be liable for payment of any or all of the following: |
| 1 | costs incurred by FINALLY Agency in preparing the Proposal relating to the Services as set out in clause 3.1; |
| 2 | any Expenses incurred by FINALLY Agency prior to the Start Date; |
| 3 | any time incurred by FINALLY Agency in anticipation of the performance of the Services and/or a proportion of the Fees payable under the Statement of Work where FINALLY Agency has already commenced performance of any part of the Services. |
| 7.3 | FINALLY Agency shall have the right to make any changes to the Services which are necessary to comply with the law, or which do not materially affect the nature or quality of the Services or Deliverables. FINALLY Agency is responsible for organising when and how the Services are provided. In so doing, FINALLY Agency shall liaise with the Client to ensure that due account is taken of the Client’s reasonable requirements. |
| 7.4 | The Personnel engaged by FINALLY Agency to perform some or all of the Services will at all times be under FINALLY Agency’s exclusive supervision, direction and control. Any Personnel engaged by FINALLY Agency to provide the Services to the Client shall have the requisite skills and experience to provide the Services. |
| 7.5 | Nothing in this Agreement shall limit or constrain FINALLY Agency’s ability to add or remove services (whether these are Services or not) from its portfolio or service offering, providing always that it shall give the Client thirty (30) days written notice in advance of any changes that FINALLY Agency (acting reasonably) believes will have a material effect on the Services it is supplying to the Client. |
| 7.6 | Where the Services involve the creation and/or development of Content, the Fees for such Services include the initial creation, development and/or drafting, plus two (2) rounds of amendments based on the Client’s feedback. Any additional amendments may, at FINALLY Agency’s discretion, be chargeable to the Client based on FINALLY Agency’s current hourly rate(s). |
| 7.7 | FINALLY Agency may utilise artificial intelligence (AI) tools and technologies to support the efficient delivery of Services outlined in the relevant Statement of Work. These AI tools may assist in areas including, but not limited to, content creation, data analysis, project management, and customer engagement, provided such use aligns with applicable laws and ethical standards. FINALLY Agency assures that: |
| 1 | AI usage will not compromise the quality or confidentiality of the Services. |
| 2 | Any data processed using AI will comply with the applicable Data Protection Laws outlined in this Agreement. |
| 3 | The Client will be informed, upon request, of the nature and scope of AI technologies employed in relation to the Services. |
| 8.1 | Where FINALLY Agency agrees to manage some or all of the Client’s marketing activities and/or paid media spend as part of the Services, it will use reasonable endeavours to align spend with any budget(s) agreed in a Statement of Work. If for any reason FINALLY Agency underspends against the budgeted amount in any one month due to any delay, action or inaction of the Client, any excess will be rolled over to subsequent months, up to a maximum of sixty (60) days after the last day of the month in which the budget was allocated. If by the end of the sixty (60) day period, the excess budget has not been used, it will be considered as spent. |
| 8.2 | Where FINALLY Agency agrees to pay any third party costs on the Client’s behalf, including paid media costs, equipment hire, stock photography, website plugins and/or Third Party Content (“ Third Party Costs ”), such costs will be invoiced in advance and must be paid by the Client before FINALLY Agency incurs such Third Party Costs. FINALLY Agency accepts no responsibility for any Liabilities suffered or incurred by the Client as a result of FINALLY Agency’s failure to pay, or delay in paying, any Third Party Costs if the Client has not first made payment for those Third Party Costs to FINALLY Agency. |
| 9.1 | This clause 9 applies only where the Services include the provision of an Application for the Client. |
| 9.2 | FINALLY Agency shall use reasonable endeavours to maximise the user experience of the Application in desktop and mobile browsers identified in the Statement of Work. The Application is not required to be compatible with other browsers unless specifically stated in the Statement of Work. |
| 9.3 | The Application is not required to be compatible with, interoperate with or integrate with, any other system, application, program or software (whether owned by the Client or not), except where the Statement of Work specifically states otherwise. |
| 9.4 | The Statement of Work will confirm if Acceptance Tests will be carried out for the Application. Where the Statement of Work sets out an alternative set of Acceptance Tests to the process specified in this clause 9, the Statement of Work shall determine the Acceptance Tests and/or the parameters and timescales for Acceptance. |
| 9.5 | When the Application is ready for testing, FINALLY Agency shall provide to the Client the testing protocols for the Application. The Client may suggest additional or alternative testing protocols and FINALLY Agency shall agree such additional or alternative protocols where they are reasonable and applicable to the Application’s specification and/or the functionality of the Application. |
| 9.6 | Unless alternative Acceptance Tests as set out in the relevant Statement of Work, the protocols set out in clause 9.5 shall, once agreed by both parties, become the Acceptance Tests. |
| 9.7 | The Client shall perform such Acceptance Tests promptly upon being notified by FINALLY Agency that the Application is ready for testing and in any event within seven (7) Business Days of such notification. Upon completion of the Acceptance Tests, the Client shall promptly notify FINALLY Agency in writing whether the Acceptance Tests have passed or failed. |
| 9.8 | If the Application performs substantially in accordance with the specification set out in the Statement of Work and meets the agreed testing criteria for the Acceptance Tests, the Acceptance Tests shall be deemed to be passed. |
| 9.9 | Once the Application is live and/or made available to the general public or authorised users via the internet, or the Application is being used by the Client, other than for undertaking the Acceptance Tests, the Acceptance Tests shall be deemed to be passed. |
| 9.10 | If the Client has fails to complete the Acceptance Tests within ten (10) Business Days of being notified by FINALLY Agency that the Application is ready for testing, unless the Client’s failure or inability to complete the Acceptance Tests during this period is directly and solely attributable to a wilful or negligent act, omission or default of FINALLY Agency, the Acceptance Tests shall be deemed to be passed. |
| 9.11 | If the Application fails the Acceptance Tests, then subject to clauses 9.12 and 9.13, the Client shall cooperate with FINALLY Agency in identifying in what respects the Application fail to conform to the specification or otherwise fail the Acceptance Tests. The Application shall not be deemed to have failed the Acceptance Tests by reason of any failure of FINALLY Agency to provide any facility or function not specified in the specification. |
| 9.12 | FINALLY Agency shall use commercially reasonable endeavours to remedy any failure of the Application so that the Application passes the Acceptance Tests. If the Application cannot pass the Acceptance Tests after such endeavours by FINALLY Agency, the Client shall be entitled forthwith to reject the Application. FINALLY Agency shall be entitled to invoice for, and the Client shall be liable to pay, a reasonable (as determined by FINALLY Agency) proportion of the Fees, and any Expenses and/or Third Party Costs incurred by FINALLY Agency prior to the Acceptance Tests. Where the Client has rejected the Application under this clause 9.12, and once the Client has made payment for the Fees and other costs as set out in this clause, the Client shall have no further liability to pay any further Fees to FINALLY Agency. |
| 9.13 | Where the Application fails to conform with the specification due to a minor non-conformity, the Application shall be deemed as Accepted so long as FINALLY Agency rectifies such non-conformity as soon as reasonably practicable (and Acceptance will take place upon such rectification being completed). For the purposes of this clause 9.13, ‘minor non-conformity’ means a cosmetic defect or a failure of the Application to conform with the specification but which does not have a material effect on any specified functionality. |
| 9.14 | Except where the Client has rejected the Application as stated in clause 9.12, the Client’s Acceptance of the Application and/or Services shall occur at the earliest of: |
| 1 | the Client providing written Acceptance of the Application to FINALLY Agency (email format is acceptable); |
| 2 | the Application passing the Acceptance Tests in accordance with clause 9.8; |
| 3 | the Application being used in a live environment or in commercial use; or |
| 4 | where the Client has failed to complete the Acceptance Tests in accordance with clause 9.10. |
| 10.1 | In delivering the Services, FINALLY Agency may utilise Third Party Content. Such Third Party Content may be sourced by FINALLY Agency or sourced by the Client and provided to FINALLY Agency by the Client. |
| 10.2 | The use of Third Party Content within the Application and/or Services may be subject to Third-Party Additional Terms. Where Third Party Additional Terms are applicable to Third Party Content sourced by FINALLY Agency, FINALLY Agency shall notify such Third Party Additional Terms to the Client before Acceptance (if applicable). The Client is responsible for ensuring its own compliance with any Third Party Additional Terms for Third Party Content that it sources and/or provides to FINALLY Agency in the performance of the Services. |
| 10.3 | FINALLY Agency shall have no responsibility under this Agreement for Liabilities incurred by the Client where such Liabilities arise directly or indirectly through breach of any Third-Party Additional Terms by the Client, or any breach of the hosting provider terms by the Client as set out in clause 11.10. Furthermore, FINALLY Agency shall have no responsibility for Liabilities incurred by the Client to the extent that such Liabilities arise directly or indirectly through the possession or use of any Third Party Content sourced by the Client and provided to FINALLY Agency. |
| 11.1 | This clause 11 shall only apply for Retained Services where the Statement of Work confirms that support, maintenance and/or hosting services are included in the Services. |
| 11.2 | FINALLY Agency shall provide the Client with technical maintenance and support of the Application during Business Hours. The Client shall issue a support request by calling +44 01227 378 720, by emailing support@wearefinally.co.uk, or in any other manner or form as notified to it by FINALLY Agency. |
| 11.3 | For general issues and enquiries, FINALLY Agency will respond to the support request within 2 Business Days. |
| 11.4 | For degraded functionality of the Application, FINALLY Agency will respond to the support request within 1 Business Day. |
| 11.5 | In the event that the Application becomes unusable or unavailable, FINALLY Agency will respond to the support request within 4 Business Hours. In delivering the Services, FINALLY Agency may utilise Third Party Content. Such Third Party Content may be sourced by FINALLY Agency or sourced by the Client and provided to FINALLY Agency by the Client. |
| 11.6 | FINALLY Agency shall undertake support and/or remedial actions using commercially reasonable efforts to improve or restore the Application’s functionality. |
| 11.7 | Where immediate resolution of the issue(s) identified in a support request is not possible, FINALLY Agency will respond to the Client within the timescales set out above with details of the resolution actions and target timescales for completion. The Client may be required to participate in the resolution of incidents. |
| 11.8 | FINALLY Agency may, in its absolute discretion, need to implement a period of Application downtime / unavailability for upgrades, modifications, remedial activities and other support requirements. FINALLY Agency will use commercially reasonable efforts to: |
| 1 | provide the Client with advance notice of three (3) Business Days where possible; and |
| 2 | limit such unavailability to under four (4) Business Hours, |
| 3 | however the parties acknowledge that it may not be possible to provide any advance notice of downtime or unavailability of the Application, and that some maintenance, repairs or modifications may exceed the expected four (4) Business Hours window. |
| 11.9 | FINALLY Agency is not required to support any of the following: |
| 1 | failures, degradations, or fluctuations in electrical, connectivity, network, or telecommunications equipment or lines, including failures, degradations, or fluctuations caused by the Client’s conduct or use of the Application, or circumstances beyond FINALLY Agency’s control; |
| 2 | the Client’s ability to access the internet in order to use the Application; |
| 3 | any issues with the performance or functionality of the Application that are caused by: |
| 4 | i. the Client using the Application in a manner which is inconsistent with the specification set out in the Statement of Work; or |
| 5 | ii. the Client’s or a third party’s equipment, software or other technology (including any Third Party Content). |
| 11.10 | The Client acknowledges that FINALLY Agency uses a third party hosting provider. The Client expressly agrees to the hosting provider’s terms of use as a condition of FINALLY Agency agreeing to provide hosting services. |
| 11.11 | Where a support request relates to an issue with FINALLY Agency’s hosting provider, FINALLY Agency will liaise with the hosting provider on the issue and inform the Client of the hosting provider’s actions to rectify the issue and any timescales for resolution that the hosting provider has provided to FINALLY Agency. |
| 11.12 | The Client acknowledges and agrees that the Application may be inaccessible or inoperable from time to time including as a result of equipment malfunctions, repairs or replacements carried out by FINALLY Agency’s hosting provider or other reasons beyond FINALLY Agency’s reasonable control. |
| 11.13 | For the avoidance of doubt, while FINALLY Agency has taken reasonable care to select a hosting provider that it reasonably believes will be suitable and sustainable for the provision of the hosting, FINALLY Agency shall accept no Liability for any defects, errors or malfunctions, or the Client’s inability to access or use the Application which is caused, or materially contributed to, by the acts or omissions of the hosting provider. |
| 11.14 | If the Client exceeds the maximum storage allowed in relation to the Application, FINALLY Agency: |
| 1 | shall notify the Client that it is exceeding the maximum storage; and |
| 2 | may at its discretion charge the Client additional fees per annum for each 1GB of additional storage required for the Application. |
| 12.1 | For Project Services (as set out in a Statement of Work): |
| a | the Fees are as set out in the Statement of Work; |
| b | Fees may not be increased during the term of the Statement of Work unless such increases comply with any other provision in these Terms or the relevant Statement of Work allows for such increase(s); |
| c | unless stated otherwise in a Statement of Work, the Fees are invoiced as follows: |
| i. a deposit of twenty-five per cent (25%) of the total value of the Fees, payable by the Client in advance prior to commencement of the Services: and | |
| ii. then on the date(s) specified in a Statement of Work where payment milestones have been agreed; or | |
| iii. the remainder upon completion of the Services; and | |
| d | all invoices are payable within twenty-eight (28) days of receipt of invoice. |
| 12.2 | Fees are calculated in accordance with FINALLY Agency’s currently applicable hourly rates multiplied by the expected time incurred to perform the Services. FINALLY Agency expressly reserves the right to amend fixed rate Fees where the actual effort incurred to perform the Services exceeds twenty per cent (20%) of the value stated in the Statement of Work. |
| 12.3 | FINALLY Agency shall have the right to increase its Fees for the Services on an annual basis, providing always that the increase does not exceed the Consumer Price Index (where such percentage is positive) plus 3% and subject to the Client’s prior approval. FINALLY Agency shall notify the Client of such Fee increases at least one (1) month before the increase takes effect. The Client has the right to terminate the Statement of Work for convenience on giving at least one (1) month’s written notice to FINALLY Agency if it does not agree to such increases to the Fees. No increase in Fees shall take effect during the notice period where the Client terminates a Statement of Work under this clause. |
| 12.4 | The Client shall reimburse FINALLY Agency for any expenses reasonably incurred in the proper performance of the Services (the “Expenses”). FINALLY Agency shall agree any Expenses with the Client in advance and shall provide the Client with such evidence of actual payment of the Expenses as the Client may reasonably require. Expenses relating to travel, accommodation and subsistence are payable only where the Personnel are required to travel in excess of fifty (50) miles from the relevant FINALLY Agency office or location in order to meet with the Client and/or perform the Services in a specific location. |
| 12.5 | All Fees, Expenses, Third Party Costs and/or any other sums due that are stated or referred to in this Agreement: |
| 1 | are invoiced in pounds sterling, euros, US dollars or Australian dollars, as set out in the Statement of Work, and are payable by the Client in the same currency; |
| 2 | are non-refundable unless FINALLY fails to remedy the Services within a reasonable time; |
| 3 | are exclusive of VAT, which shall be added to FINALLY Agency’s invoice(s) at the appropriate rate; and |
| 4 | are exclusive of any withholding or other similar taxes, local or international bank or transfer charges, any currency conversion costs or any other deductions. |
| 12.6 | For Retained Services (as set out in a Statement of Work): |
| a | the Fees are as set out in the Statement of Work; |
| b | Fees may not be increased during the term of the Statement of Work unless such increases comply with any other provision in these Terms or the relevant Statement of Work allows for such increase(s); |
| c | unless stated otherwise in a Statement of Work, the Fees are invoiced on a monthly basis in arrears. |
| 12.7 | FINALLY Agency reserves the right: |
| 1 | to charge interest on any overdue sums at the rate of 4% above the base rate of the Barclays Bank plc from time to time from the due date for payment until payment is made in full, compounding quarterly; |
| 2 | to suspend performance of the Services until payment has been made in full; and / or, |
| 3 | to terminate the relevant Statement of Work, or the Agreement (including all Statements of Work currently in force) for non-payment, in accordance with clause 23.5.a. |
| 12.8 | The Client shall indemnify FINALLY Agency against all Liabilities, late payment charges, and including debt recovery costs on a full indemnity basis (irrespective of whether or not the same may be claimed in full pursuant to the Civil Procedure Rules), arising out of or in connection with FINALLY Agency’s enforcement of any non-payment by the Client of any sums due under this Agreement. |
| 13.1 | Subject to clause 7.5, no variation of this Agreement or any part thereof shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives) and is made in accordance with this clause 13. |
| 13.2 | The Client shall indemnify FINALLY Agency against all Liabilities, late payment charges, and including debt recovery costs on a full indemnity basis (irrespective of whether or not the same may be claimed in full pursuant to the Civil Procedure Rules), arising out of or in connection with FINALLY Agency’s enforcement of any non-payment by the Client of any sums due under this Agreement. |
| 13.3 | Subject to clause 13.4, a Statement of Work may only be amended when confirmed in writing and signed by both parties. Any changes agreed to by the parties should detail any new or amended: |
| Services; | |
| Fees; | |
| timetable(s) for the Services and/or Deliverables; and/ or, | |
| any other terms of the relevant Statement of Work. | |
| 13.4 | The parties may agree any changes to the Terms where such amendments are confirmed in writing and signed by both parties. |
| 14.1 | All Intellectual Property Rights subsisting in the Client Materials shall at all times remain the Client’s property (or the property of the Client’s licensors, as appropriate). The Client hereby grants to FINALLY Agency (and any subcontractor appointed by FINALLY Agency) a non-exclusive, non-transferable, royalty-free, worldwide licence to use any and all Client Materials for the purposes of providing the Services in accordance with this Agreement. |
| 14.2 | All Intellectual Property Rights subsisting in FINALLY Agency Materials shall at all times remain FINALLY Agency’s property (or the property of FINALLY Agency’s licensors, as appropriate). Nothing in this Agreement shall vest in the Client any rights in FINALLY Agency Materials. FINALLY Agency hereby grants to the Client a limited, non-exclusive, non-transferable, revocable, worldwide licence to use FINALLY Agency Materials only and to the extent necessary for FINALLY Agency to provide, and for the Client to use, the Services, Deliverables and/or Content provided under this Agreement. |
| 14.3 | Subject to clauses 14.4 and 14.5, FINALLY Agency shall, by virtue of this Agreement, assign any applicable Intellectual Property Rights in the Deliverables and Content created by FINALLY Agency under that Statement of Work to the Client in proportion to any fees paid by the Client, and FINALLY Agency shall be deemed to have waived any and all moral rights in respect of the same. |
| 14.4 | Where Third Party Content requires the Client to engage directly with the Third Party Content provider (including but not limited to the Client being required to agree Third Party Additional Terms) in order for any assignment, licence or sublicence of any Intellectual Property Rights to be effective and enforceable, FINALLY Agency shall inform the Client accordingly. |
| 14.5 | FINALLY Agency shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with the performance of the Services, or otherwise in connection with this Agreement, provided always that such skills, techniques or know-how do not infringe the Client’s Intellectual Property Rights now or in the future, or disclose or breach the confidentiality of the Client’s Confidential Information. |
| 15.1 | The Client and FINALLY Agency undertake that, except as provided by sub-clauses 15.2, 15.3 and 15.4 below, or as authorised in writing by the other party, the Client and FINALLY Agency shall: (a) keep confidential all Confidential Information; (b) not disclose any Confidential Information to any other party; (c) not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement; (d) not make any copies of, record in any way or part with possession of any Confidential Information; and (e) use reasonable endeavours to ensure that none of Client’s and FINALLY Agency’s respective directors, officers, employees, agents, sub-contractors or advisers do any act which if done by the Client or FINALLY Agency would be a breach of sub-clauses (a) to (d) above. |
| 15.2 | The Client and FINALLY Agency may disclose any Confidential Information to: (a) its employees, officers, sub-contractors or advisers for the purposes of exercising its rights or carrying out its obligations under with this Agreement; or (b) any governmental or other authority or regulatory body. Disclosure under this clause may be made only to the extent necessary for the provision of the Services under this Agreement, or as required by law. In each case the disclosing party shall first inform the person, party or body in question that the Confidential Information is and must be kept confidential, and may only be used for the purpose for which the disclosure was made. |
| 15.3 | The Client or FINALLY Agency may use or disclose any Confidential Information if it is or becomes public knowledge through no fault of the disclosing party. |
| 15.4 | The provisions of this clause 15 shall continue in force after the termination of the Agreement. |
| 16.1 | During the term of this Agreement and for a period of 12 months after its termination or expiry, the Client shall not, directly or indirectly, solicit, recruit, or attempt to induce any employee, contractor, or consultant of FINALLY Agency to terminate their employment or contractual relationship in order to engage in a competing business or any other employment. |
| 17.1 | If FINALLY Agency acts as the Client’s data processor in relation to any personal data for which the Client is a data controller, FINALLY Agency shall: |
| 1 | process the personal data in compliance with the Data Protection Laws; |
| 2 | process the personal data only to the extent necessary to perform the Services; and |
| 3 | assist the Client, at the Client’s cost, in responding to any and all requests from data subjects and in ensuring its compliance with the Data Protection Laws with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the UK’s data protection commissioner); |
| 4 | notify the Client without undue delay of a personal data breach of any personal data for which the Client is a data controller; |
| 5 | implement appropriate organisational and technical measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; |
| 6 | be authorised by the Client (by way of a general authorisation) to appoint sub-processors under the Agreement, providing the requirements of sub-clause 17.1.7. are met in relation to any sub-processors based outside the UK; and |
| 7 | not transfer or store the personal data outside of the UK except where: (i) the country has received an adequacy decision from the UK’s data protection commissioner; or (ii) the transfer is subject to appropriate safeguards; |
| 8 | be liable to the Client for any data breaches which result directly from Finally Agency’s negligent acts or omissions. |
| 17.2 | The Client or FINALLY Agency may use or disclose any Confidential Information if it is or becomes public knowledge through no fault of the disclosing party. |
| 18.1 | The Client shall indemnify FINALLY Agency against all Liabilities arising out of or in connection with any breach by the Client of its obligations under the Cookie Law and/ or the Cookie Guidance (as amended from time to time). |
| 18.2 | FINALLY Agency does not warrant or guarantee that the Services shall comply with future Cookie Law and/or Cookie Guidance and the Client accepts and acknowledges that it is the Client’s sole responsibility to comply with Cookie Law and Cookie Guidance. |
| 19.1 | FINALLY Agency: |
| 1 | warrants that the receipt and use of the Deliverables and Content by the Client shall not infringe any Intellectual Property Rights belonging to a third party; and |
| 2 | shall not be in breach of the warranty at clause 19.1.1 to the extent that any infringement arises from: (i) FINALLY Agency’s use of Client Materials in the Deliverables or Content; (ii) any modification of the Deliverables or Content other than by or on behalf of FINALLY Agency; or (iii) FINALLY Agency’s compliance with the Client’s specifications or instructions. |
| 19.2 | The Client warrants that: |
| 1 | the receipt and use of the Client Materials by FINALLY Agency, its Personnel and sub-contractors shall not infringe any Intellectual Property Rights belonging to a third party; and |
| 2 | the Client Materials do not contain any material that has been obtained in violation of the Freedom of Information Act 2000, the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Official Secrets Act 1989, or Data Protection Laws. |
| 19.3 | The Client shall indemnify FINALLY Agency against all Liabilities arising out of or in connection with any advertising or marketing campaign undertaken or managed on the Client’s behalf by FINALLY Agency, unless such Liabilities were directly and solely caused by: |
| 1 | the negligence or wilful act or omission of FINALLY Agency; or |
| 2 | a breach by FINALLY Agency of any of the terms of the Agreement. |
| 19.4 | The Client shall indemnify FINALLY Agency against all Liabilities arising out of or in connection with any allegation or claim for infringement of a third party’s Intellectual Property Rights arising out of the receipt or use of the Client Materials. |
| 19.5 | FINALLY Agency expressly does not warrant that the Client’s use of the Application (where applicable) will be uninterrupted or error-free. The Client acknowledges that the complexity of the software underpinning and supporting the Application is such that FINALLY Agency cannot, and does not, warrant or represent that the Application is free from defects, errors or bugs. The warranties given by FINALLY Agency in this clause shall not apply to any non-conformance which is caused by modification or alteration of the Application by any party other than FINALLY Agency. |
| 19.6 | Each party warrants to the other that it has the full power and authority to enter into this Agreement and to perform its obligations hereunder. |
| 19.7 | The Client acknowledges that any Third Party Content or any open-source software provided or used by FINALLY Agency in the performance of the Services is provided “as is” and expressly subject to the disclaimer in clause 19.9. |
| 19.8 | Any warranties given by FINALLY Agency in this Agreement shall be subject to the Client using the Application, Services, Deliverables and/or Content for its intended purpose(s) and in compliance with this Agreement and any documentation or instructions issued by FINALLY Agency. |
| 19.9 | All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose. |
| 19.10 | The Client acknowledges that FINALLY Agency is not liable for any Liabilities incurred by the Client, howsoever arising, where such Liabilities are directly or indirectly attributable to a failure by the Client to fully comply with its obligations under this Agreement. |
| 19.11 | The provisions of this clause 19 shall continue in force after the termination of the Agreement. |
| 20.1 | FINALLY Agency shall not be liable or responsible to the Client under or in relation to this Agreement in contract, |
| tort (including any liability for negligence), breach of statutory duty or otherwise for: | |
| a | any special loss or any direct or indirect or consequential loss of revenue, business contracts, goodwill, anticipated savings, profits, or use of facilities; |
| b | any loss or corruption of, or damage to, software, data or information; |
| c | any other indirect or consequential loss howsoever arising; whether or not the same was reasonably foreseeable or actually foreseen. |
| 20.2 | FINALLY Agency shall not be liable to the Client for any Liability arising from delay in the provision of the Services, howsoever caused. Time shall not be of the essence in relation to the provision of the Services. |
| 20.3 | FINALLY Agency’s total liability to the Client in respect of any Liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, other than for death or personal injury caused by FINALLY Agency’s negligence, fraud, gross negligence, wilful misconduct, breach of confidentiality obligations or for any other Liability which cannot be excluded or limited in law, shall not exceed the amount of two times the Fees (excluding any Third Party Costs and/or Expenses) paid by the Client under that Statement of Work which resulted in the Liability. |
| 20.4 | The parties agree that the limitations on liability in this Agreement are fundamental to the Agreement and are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement. The Client acknowledges that FINALLY Agency would not provide the Services to the Client without such limitations. |
| 20.5 | The Client shall notify FINALLY Agency in writing of its intention to make a claim within six (6) months of the date on which the Client became (or ought reasonably to have become) aware of the event giving rise to that claim. FINALLY Agency shall not be liable for any Liability in respect of which the Client has failed to give notice in accordance with this clause 20.5. |
| 21.1 | If a dispute arises out of or in connection with the Agreement or any part of it or the performance, validity or enforceability of the same (“Dispute”) then the parties shall follow the procedure set out in this clause: |
| 1 | either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the Client and FINALLY Agency (or its respective authorised representatives) shall attempt in good faith to resolve the Dispute; |
| 2 | if the Client and FINALLY Agency are for any reason unable to resolve the Dispute within fifteen (15) days of service of the Dispute Notice, the Dispute shall be referred to the directors (or equivalent) of the Client and FINALLY Agency who shall attempt in good faith to resolve it; and |
| 3 | if the parties’ directors (or equivalent) are for any reason unable to resolve the Dispute within fifteen (15) days of it being referred to them, the parties may attempt to settle it by mediation. Where the parties agree to mediation, the parties must agree on a mediator within fifteen (15) days. To initiate the mediation, a party must serve notice in writing (“ADR notice”) to the other party to the Dispute, requesting mediation. The mediation will start not later than thirty (30) days after the date of the ADR notice. |
| 21.2 | The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to a Dispute under clause 26.10 which shall apply at all times. |
| 22.1 | Either party may terminate these Terms for convenience after a period of three (3) months from the commencement of the Terms, by giving the other party three (3) months’ written notice of termination. Any existing Statements of Work still in force when the Terms are terminated shall continue in full force and effect, and be bound by, and construed in accordance with, these Terms (notwithstanding the termination of the Terms) until those Statements of Work have expired under sub-clause 2.2.b, or are terminated in accordance with this clause 22. |
| 22.2 | Either party may terminate a Statement of Work for Retained Services e by giving the other party one (1) calendar months’ written notice of termination. |
| 22.3 | Neither party may terminate a Statement of Work for Project Services for convenience without serving 45 days prior written notice. |
| 22.4 | A Statement of Work shall automatically expire where sub-clause 2.2.b applies. |
| 22.5 | Without prejudice to any other right or remedy available to it, an individual Statement of Work or the Agreement in full (including these Terms and all Statements of Work) may be terminated immediately on written notice in the following circumstances: |
| 1 | by FINALLY Agency where any sum owing by the Client to FINALLY Agency is not paid within twenty-eight (28) of the due date for payment; |
| 2 | by either party where the other party commits any material breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within ten (10) Business Days after being given written notice of the breach; |
| 3 | by FINALLY Agency where the Client is unable to pay its debts, or a receiver is appointed in respect of any of the Client’s property or assets, or the Client commences negotiations with makes a voluntary arrangement with its creditors to reschedule its debts, or becomes subject to a winding-up or administration order (within the meaning of the Insolvency Act 1986) or goes into liquidation; |
| 4 | by FINALLY Agency where the Client ceases, or threaten to cease, to carry on all or a substantial part of its business; or |
| 5 | by FINALLY Agency where control of the Client is acquired by any person or connected persons not having control of the Client on commencement of the Agreement. For the purposes of this clause 22, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010. |
| 23.1 | Upon termination of this Agreement or any individual Statement of Work for any reason: |
| 1 | any sums due to FINALLY Agency under a Statement of Work shall be invoiced by FINALLY Agency and are immediately payable by the Client including: i. any Expenses; and/or ii. a reasonable proportion (as determined by FINALLY Agency, acting reasonably) of any Fees for Services performed but not yet completed and/or invoiced; to be calculated in accordance with FINALLY Agency’s then applicable hourly rates multiplied by the time spent by the Personnel performing Services from the date of the last invoice until the date of termination; |
| 2 | upon receipt of all Fees and Expenses due under the Agreement, FINALLY Agency shall provide all Deliverables (whether complete or work-in-progress) to the Client; |
| 3 | all licences granted under clause 14 shall terminate immediately; |
| 4 | FINALLY Agency shall, at the Client’s request, either promptly return or destroy all Required Materials, and any other Client Materials in FINALLY Agency’s possession and/or control; |
| 5 | the Client shall, at FINALLY Agency’s request, either promptly return or destroy all FINALLY Agency Materials in the Client’s possession and/or control (save and only to the extent that these have by that time been incorporated into the Services, Deliverables or Content already delivered to the Client); |
| 6 | each party shall immediately cease to use, either directly or indirectly, any Confidential Information belonging to the other party and shall at the other party’s request, either promptly return or destroy all such Confidential Information in its possession and/or control; |
| 7 | all clauses of the Agreement which either expressly or by their nature relate to the period after the expiry or termination of the Agreement shall remain in full force and effect; and |
| 8 | termination shall not affect or prejudice any right to damages or other remedy which the terminating party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any party may have in respect of any breach of this Agreement which existed at or before the date of termination. |
| 24.1 | This Agreement constitutes the entire agreement between the parties in relation to the Services, as set out in this Agreement and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to that subject matter. This Agreement shall prevail over any terms and conditions issued by the Client (including the terms of any purchase orders issued by the Client). |
| 24.2 | Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract. |
| 25.1 | A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at the address given in this Agreement or as otherwise notified in writing to the other party. |
| 25.2 | The following table sets out methods by which a notice may be sent and its corresponding deemed delivery date and time: |
| Delivery method | Deemed delivery date and time |
|---|---|
| Delivery by hand or courier to the recipient’s registered office or trade address. | On signature of a delivery receipt or at the time the notice is left at the address. |
| Pre-paid first-class post or other next Business Day delivery service providing proof of postage. | Midday on the second Business Day after posting or at the time recorded by the delivery service – whichever is earlier. |
| Delivery by email to the relevant party’s email address, as set out in the Statement of Work. |
At the time of transmission if on a Business Day between 9am and 5pm, otherwise at 10am on the next Business Day after transmission. |
| 25.3 |
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. |
| 26.1 | Force Majeure. FINALLY Agency shall not be liable for any failure or delay in performing its obligations where such failure or delay results from any cause that is beyond FINALLY Agency’s reasonable control. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes or other natural disaster, epidemic or pandemic, nuclear, biological or chemical contamination, acts of terrorism, acts of war, governmental or public authority action (including restriction on the freedom of movement of goods and/or people), non-performance by sub-contractors or any other event that is beyond the control of FINALLY Agency. |
| 26.2 | Further Assurance. The Client and FINALLY Agency shall execute and do all such further deeds, documents and things as may be necessary to bring the provisions of this Agreement into full force and effect. |
| 26.3 | Assignment. Except as provided in this Agreement, the Client may not assign, sub-contract or deal in any way with, any of its rights or obligations under this Agreement, unless otherwise agreed in writing by the FINALLY Agency. FINALLY Agency may assign, sub-contract or deal in any way with, any of its rights or obligations under this Agreement or any document referred to in it, without the consent of the Client. |
| 26.4 | Severance. 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. |
| 26.5 | No partnership or agency. 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, nor authorise any party to make or enter into any commitments for or on behalf of any other party. |
| 26.6 | Rights and Remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law. |
| 26.7 | No waiver. Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. |
| 26.8 | Counterparts. 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. Transmission of the executed Statement of Work signature panel of a counterpart of this Agreement by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this Agreement. Without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter. No counterpart shall be effective until each party has executed at least one counterpart. |
| 26.9 | Third Party Rights. A person who is not a party to this Agreement shall not have any rights under or in connection with it. |
| 26.10 | Governing Law. The Agreement is governed by and shall be construed in accordance with English law and, subject to the rights of FINALLY Agency below, is subject to the exclusive jurisdiction of the English courts (other than for enforcement proceedings, for which the English courts shall have non-exclusive jurisdiction). If the Client is based in another jurisdiction outside England, FINALLY Agency shall have the exclusive and sole right to issue proceedings for any dispute or claim arising out of or in connection with the Agreement against the Client in that other jurisdiction. |
