PMC Marketing Management (PMC) is a provider of marketing consultancy services and has considerable skills, knowledge and experience to perform the required services (as defined below).
In reliance upon PMC’s skill, knowledge and experience, the client has agreed to engage PMC to provide the services and PMC has agreed to accept the engagement on the terms and conditions set out in this agreement (the “Agreement”).
The following definitions and rules of interpretation apply in this Agreement.
DEFINITIONS
Change Order: means the change control template set out in Schedule 1 (Change Control) of this Agreement.
Client’s Manager: The Client’s manager for the Services, appointed in accordance with clause 4.1.
Deliverables: all Documents, products and materials developed by PMC or its agents, subcontractors, consultants and employees in relation to the Services in any form.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form. Force Majeure Event means any circumstance not within a Party’s reasonable control including, without limitation acts of God, flood, drought, earthquake or other natural attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority; collapse of buildings, fire, explosion or accident and interruption or failure of utility service.
In-put Material: all documents, information and materials provided by the Client relating to the Services, including but not limited to computer programs, data, reports and specifications.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Pre-existing Materials: all IT systems, documents, information and materials provided by PMC relating to the Services which existed prior to the commencement of this Agreement, including computer programs, data, reports and specifications.
PMC’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by PMC or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the Parties under which title passes to the Client.
PMC’s Manager: PMC’s manager for the Services appointed under clause 3.3.
Services: the services to be provided by PMC under this Agreement as set out in this Agreement (Services), together with any other services which PMC provides or agrees to provide to the Client.
1.1 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6 This Agreement shall be binding on the Parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any Party shall include that Party’s personal representatives, successors and permitted assigns.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9 A reference to writing or written includes email.
1.10 Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
1.11 References to clauses are to the clauses of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.12 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.13 Each individual signing this Agreement warrants that he/she has been given authority to sign and execute the Agreement on behalf of the Party for whom it is indicated he/she has signed, and further has been expressly given and received and accepted authority to enter into a binding Agreement on behalf of such Party with respect to the matters stated herein.
1.14 A signature transmitted by facsimile or as a pdf copy to electronic mail shall be treated as original for all purposes.
2.1 PMC shall provide the Services to the Client on the terms and conditions of this Agreement.
2.2 PMC shall provide the Services to the Client from the Effective Date specified in the Agreement.
2.3 This Agreement shall remain in force until all Services have been completed and all Charges paid by the Client, unless terminated earlier in accordance with the provisions set out in this Agreement.
3.1 PMC shall use reasonable care to provide the Services, and to deliver the Deliverables to the Client, in accordance with this Agreement.
3.2 PMC shall use reasonable endeavours to meet any Estimated Delivery Dates specified in this Agreement, but any such dates shall be an estimate only and time for performance by PMC shall not be of the essence of this Agreement.
3.3 PMC may appoint PMC’s Manager(s) who shall have authority contractually to bind PMC on all matters relating to the Services. PMC shall use reasonable endeavours to ensure that the same people act as PMC’s Managers throughout the term of this Agreement, but may replace them from time to time where reasonably necessary in the interests of PMC’s business.
3.4 PMC is only expected to work between the hours of 8am to 5pm Sunday to Thursday (and the Client acknowledges that PMC will not work outside these hours, or during public holidays).
4.1 The Client must:
(a) cooperate with PMC in all matters relating to the Services and respond to any requests in a timely manner;
(b) appoint the Client’s Manager in relation to the Services, who shall have the authority contractually to bind the Client on matters relating to the Services;
(c) provide, in a timely manner, such In-put Material and other information as PMC may require to complete the Services, and ensure that it is accurate in all material respects;
(d) consolidate all feedback, and any other communication to be sent by the Client’s Manager (multiple emails from different people cannot be accepted);
(e) remain professional and respectful in all dealings with PMC.
4.2 If PMC’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, PMC shall not be liable for any costs, charges or losses sustained or incurred by the Client (or for any delays) that arise directly or indirectly from such prevention or delay.
4.1 The Client must:
(a) cooperate with PMC in all matters relating to the Services and respond to any requests in a timely manner;
(b) appoint the Client’s Manager in relation to the Services, who shall have the authority contractually to bind the Client on matters relating to the Services;
(c) provide, in a timely manner, such In-put Material and other information as PMC may require to complete the Services, and ensure that it is accurate in all material respects;
(d) consolidate all feedback, and any other communication to be sent by the Client’s Manager (multiple emails from different people cannot be accepted);
(e) remain professional and respectful in all dealings with PMC.
4.2 If PMC’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, PMC shall not be liable for any costs, charges or losses sustained or incurred by the Client (or for any delays) that arise directly or indirectly from such prevention or delay.
5.1 The Client’s Manager and PMC’s Manager shall meet as regularly as necessary to discuss matters relating to the Services.
5.2 If either Party wishes to change the scope or execution of the Services or extend the scope of Services, it shall submit details of the requested change to the other Party via a Change Order as set out in Schedule 1 of this Agreement. Any Change Order issued in accordance with this clause 5, shall not become effective until signed in writing by both Parties.
5.3 If the Client submits a Change Order, PMC shall, within a reasonable time, provide a written estimate to the Client of:
(a) the likely time required to implement the change and associated changes to any existing Estimated Delivery Dates;
(b) any necessary variations to PMC’s Charges arising from the change;
(c) the likely effect of the change on the Services; and
(d) any other impact of the change on this agreement.
5.4 If the Client wishes PMC to proceed with the change, PMC has no obligation to do so unless and until the Parties have agreed the necessary variations to its Charges, the Services and any other relevant terms of this agreement to take account of the change and this Agreement has been varied in accordance with clause 14.
5.5 this Agreement has been varied in accordance with clause 14.
5.6 For the avoidance of doubt, If a package discount is agreed in advance and components of the Service are cancelled, then the discount will no longer be applicable to the remaining components and individual component prices will increase. The Client agrees to immediately pay such increases.
6.1 In consideration of the provision of the Services by PMC, the Client shall pay the Charges as set out in this Agreement. The Client shall pay the Charges to PMC (without deduction or set-off) as set out in this Agreement.
6.2 The Parties agree that PMC may review and increase any retainer charges set out in this Agreement. PMC shall give the Client written notice of any such increase one (1) month before the proposed date of that increase. If such increase is not acceptable to the Client, it may, within one (1)month of such notice being received or deemed to have been received in accordance with clause 23, terminate the Agreement by giving one (1) month written notice to PMC.
6.3 The Client shall pay each invoice submitted to it by PMC, in full and in cleared funds, by the Payment Dates specified by PMC in this Agreement, or by any date specified in such invoice.
6.4 Without prejudice to any other right or remedy that it may have, if the Client fails to pay PMC on the due date, PMC may:
(a) suspend all Services;
(b) seize any work/Services which have been provided but not paid for (including by entering the premises of the Client during business hours); or
(c) terminate any third-party accounts (such as social media accounts) or websites managed by PMC until payment has been received in full by PMC.
6.5 All sums payable to PMC under this Agreement shall become due immediately on its termination, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
6.6 All amounts due under this Agreement 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).
6.7 The Client acknowledges that PMC is not responsible for the payment of any third party fees, unless otherwise agreed in writing.
7.1 As between the Client and PMC, all Intellectual Property Rights and all other rights in the:
(a) Pre-existing Materials; and
(b) any Deliverables prior to full payment of all applicable Charges, shall be owned by PMC.
7.2 Once full payment is made by the Client, then ownership of the Intellectual Property Rights and all other rights in the Deliverables shall transfer to the Client.
7.3 PMC has the right to use the Deliverables for promotional and business development purposes (including on its website and in any advertising collateral, portfolio or otherwise) and once ownership in the Deliverables passes to the Client, then the Client licenses all such Intellectual Property Rights in the Deliverables to PMC free of charge on a worldwide basis to such extent as is necessary to enable such use.
7.4 The Client acknowledges that, where PMC does not own any of the Pre-existing Materials, the Client’s use of rights in Pre-existing Materials is conditional on PMC obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle PMC to license such rights to the Client.
7.5 The Client grants PMC a non exclusive, royalty free, revocable licence to use the In-put Materials and all Intellectual Property Rights to perform the Services. On expiry or termination of this Agreement however so arising, this licence will automatically terminate.
8.1 Each Party undertakes that it shall not disclose to any person technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature (including any quotes or proposals) and have been disclosed to that Party by the other Party, its employees, agents, consultants or subcontractors or of any member of the group of companies to which the other Party belongs and any other confidential information concerning the other Party’s business or its products which that Party may obtain, except as permitted by clause 8.2.
8.2 Each Party may disclose the other Party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising rights or carrying out its obligations under or in connection with this Agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other Party’s confidential information comply with this clause 8; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 Neither Party shall use the other Party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
8.4 All materials, equipment and tools, drawings, specifications and data supplied by PMC to the Client (including Pre-existing Materials and PMC’s Equipment) shall, at all times, be and remain the exclusive property of PMC, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to PMC, and shall not be disposed of or used other than in accordance with PMC’s written instructions or authorisation.
8.5 PMC may disclose the Confidential Information of the Client and its Affiliates to its personnel, representatives and subcontractors (the Authorised Recipients) on strictly need-to-know basis only provided that each of its Authorised Recipients agrees to comply with the terms of clause 8 (and any additional confidentiality agreement required by the Client) prior to any Confidential Information being disclosed to them.
9.1 The Parties acknowledge that PMC provides the Services “as is” and makes no warranty about the Services’ fitness for any particular purpose (nor that the Services will guarantee results), irrespective of whether such purpose is advised to the Client. The Client shall be solely responsible for ensuring that the Services meet its requirements. PMC hereby disclaims all other warranties to the maximum extent permitted by applicable law.
9.2 PMC does not guarantee against any defects, non-conformities or errors affecting any computer program used at the same time as the Services.
9.3 In the event that PMC materially fails to perform the Services (or any material defects arise in relation to the Services) in accordance with this Agreement and this can be demonstrated by the Client, and the failure is promptly reported to PMC within 6 (six) months from the Effective Date, then PMC will use commercially reasonable efforts to correct such failure, without additional charge to the Client. The foregoing will be the Client’s sole and exclusive remedy for any such failure. Should any payment be outstanding then this clause shall not apply.
9.4 PMC does not guarantee the Client against any defects, non-conformities or errors affecting any computer program used at the same time than the Services.
9.5 For the avoidance of doubt, PMC is not responsible for website issues or failure (nor is it required to rectify such issues or failures) that comes as a result of hosting/server malfunction, third party code/coding, any API integrations, external features, malware, hacking or viruses.
10.1 Nothing in this Agreement limits or excludes either Parties’ liability for:
(a) death or personal injury caused by negligence; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1, neither Party shall be liable to the other Party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, whether direct or indirect, arising under or in connection with this Agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information;
(g) any indirect or consequential loss.
10.3 Subject to clause 10.1 and clause 10.2, the Parties aggregate liability to each other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the total charges paid by the Client to PMC under this Agreement. This cap does not apply to intellectual property claims set out in clause 10.4.
10.4 The Client agrees to indemnity PMC and its agents and subcontractors in full for and against any Intellectual Property claims in relation to the Services, or any In-put Material provided by the Client.
10.5 The Client acknowledges that PMC has no responsibility or liability whatsoever for any Services or services provided by third parties and acts as agent only when procuring such services.
(a) the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than ten (10) days after being notified in writing to make such payment;
(b) the Client commits a breach of any term of this Agreement (including, but not limited to clause 4.1) which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ten (10) days after being notified in writing to do so; and
(c) the Client is insolvent or suspected to be insolvent, or unable to pay its debts.
11.2 Any cancellation of any Services (or part of the Services) by the Client shall be deemed termination of the Agreement and all applicable Charges (included for quotes agreed, but work not completed) shall be paid immediately, unless agreed otherwise in writing by PMC. The Client acknowledges that PMC’s services are non-refundable once quoted.
11.3 The Client is permitted to cancel this Agreement by giving 30 days written notice to PMC.
11.4 PMC may cancel a retainer Service at any time in its absolute discretion and without cause by giving 10 (ten) business days’ notice. In the event of such cancellation a refund of any paid but unutilised retainer Services will be provided to the Client.
12.1 On termination or expiry of this Agreement:
(a) the Client shall immediately pay to PMC all of PMC’s outstanding unpaid invoices and interest and, in respect of Services supplied, or quoted but for which no invoice has been submitted, PMC may submit an invoice, which shall be payable immediately on receipt;
(b) the Client shall, within a reasonable time, return all of PMC’s Equipment, Pre-existing Materials and Deliverables (including any back-up data). If the Client fails to do so, then PMC may enter the Client’s premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping;
(c) the following clauses shall continue in force: clause 7 (Intellectual property rights), clause 8 (Confidentiality and PMC’s property), clause 10 (Limitation of liability and Indemnity), clause 11 (Termination), clause 23 (Notices), clause 25 (Dispute resolution) and clause 26 (Governing law and jurisdiction).
12.2 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
13.1 Provided it has complied with clause 13.2, if a Party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event, the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
13.2 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event notify the other Party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
13.3 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than thirty (30) days, the Party not affected by the Force Majeure Event may terminate this Agreement by giving seven (7) days written notice to the Affected Party.
13.4 This clause 13 shall not affect any of the obligations set out in clause 6 of this Agreement.
Subject to clause 5, no variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
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.
17.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
17.2 If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.1 This Agreement constitutes the entire Agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
18.3 Nothing in this clause shall limit or exclude any liability for fraud.
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the Schedules shall prevail.
Neither Party may assign, subcontract, transfer, novate, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the written Agreement of the other Party.
21.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute any Party as the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
21.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
Nothing in this Agreement, whether express or implied, is intended or shall be construed to confer, directly or indirectly, upon or give to any Person, other than the Parties hereto, any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenant, condition or other provision contained herein.
23.1 A notice given to a Party under or in connection with this Agreement:
(a) shall be in writing and in English or accompanied by an accurate translation into English;
(b) shall be sent to the Party for the attention of the contact and at the details set out on page 1 of this Agreement; and (c) shall be sent by hand or reputable international courier.
23.2 A Party may change its notice details by giving notice.
23.3 A notice given under this Agreement is valid if sent by email.
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
No one other than a Party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
The Parties hereby agree that the sole and exclusive jurisdiction of any claim, action or proceeding arising under or in connection with this Agreement shall be the Dubai International Financial Centre Courts (DIFC). The language of any such hearing shall be English. Each Party hereby irrevocably consents and submits to such jurisdiction and venue.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
