Terms of Business

THE POSH AGENCY LTD

TERMS OF BUSINESS FOR THE SUPPLY OF SERVICES

1 INTERPRETATION

1.1 In these Conditions words and expressions used shall have the meanings set out in the Schedule attached at the end of these Conditions.

1.2 In these Conditions references to the singular include the plural and vice versa, headings are inserted for convenience only and shall not affect the interpretation of these Conditions, and any references to legislation are to that legislation as amended.

1.3 Where any party to the Contract comprises more than one person the obligations and liabilities of that party under the Contract shall be joint and several obligations and liabilities of those persons. Where the Customer is a partnership, all partners are deemed to accept the Customer’s obligations under the Contract on a joint and several basis.

2 INCORPORATION

2.1 The Posh Agency shall provide the Services upon its acceptance of an order placed by the Customer by signing of the Letter of Engagement for Services detailed in a Proposal. The Letter of Engagement constitutes as the Contract.

2.2 No order for Services submitted by the Customer shall be deemed to be accepted by The Posh Agency until acceptance has been confirmed in writing by an authorised representative of the customer or The Posh Agency has started to perform the Services.

2.3 The Services shall be subject to these Conditions, the Letter of Engagement and the Proposal which shall govern the Contract between the Customer and The Posh Agency to the exclusion of all other terms and conditions by reference to which an order is made or purported to be made by the Customer. Without prejudice to the generality of the foregoing, no terms or conditions endorsed upon, delivered with or contained in the Customer’s order or any other document will form part of the Contract and the Customer waives any rights which it otherwise might have to rely on such terms and conditions.

2.4 Variations to the Contract shall have no effect unless approved in writing by a duly authorised representative of both parties.

3 PROVISION OF THE SERVICES

3.1 The Posh Agency shall provide the Services using reasonable care and skill and in accordance with the Proposal.

3.2The Customer acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation or warranty (whether in writing or not) given by any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than expressly set out in the Contract.

3.3 The Posh Agency shall use reasonable endeavours to meet any performance dates, either agreed in writing between The Posh Agency and the Customer or as specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

4 CUSTOMER’S OBLIGATIONS

4.1 The Posh Agency’s obligation to provide the Services under the Contract is conditional upon the Customer providing to The Posh Agency:

4.1.1 access to and copies of all documentation, information and materials which may at any time be necessary for the purposes of performing the Services; and

4.1.2 generally such assistance and co-operation as shall be necessary or expedient for the proper performance of the Services.

4.2 If The Posh Agency’s performance of its obligations under the Contract is prevented or delayed by an act or omission of the Customer, its agents, sub-contractors or employees then The Posh Agency shall not be liable for any costs, charges or losses sustained or incurred by the Customer as a consequence and The Posh Agency shall still be allowed to be paid as though it were performing normally.

4.3 The Customer shall, for the duration of the Contract Term and for one year following the Termination Date, neither itself nor through any of its employees or associates, solicit, directly or indirectly, any employee of The Posh Agency with whom it has had contact in connection with the Contract and if it does so, it shall indemnify The Posh Agency against all costs The Posh Agency incurs as a consequence.

5 FEES

5.1 In consideration of The Posh Agency providing the Services, the Customer shall pay to The Posh Agency the Fees.

5.2 All Expenses shall be charged to the Customer at cost, and shall be payable in addition to the Fees. These will be billed in-line with the Customer’s monthly invoicing. This includes and is not limited to: airfares, car hire, taxis, train fares, underground fares, client entertaining, subsistence & accommodation when on business on behalf of the Customer.

All Fees and Expenses are exclusive of VAT which the Customer shall pay in addition. 5.3

6 PAYMENT TERMS

6.1 Unless otherwise stated in the Proposal or otherwise agreed in writing between the parties, The Posh Agency shall invoice the Customer:

6.1.1 in respect of the Management Charges and Service Delivery Charges, monthly in advance;

6.1.2 in respect of the Media Charges, monthly in advance or on an ad hoc basis in advance as such Media Charges are incurred;

6.1.3 in respect of the Project Fees, for 50% of the Project Fees on the date on which the Contract Term commences and the remainder on delivery of the given Project Deliverables; and

6.1.4 in respect of PPC management fees, monthly in arrears, but within 15 days of invoice.

6.1.5 in respect of the Expenses, monthly in arrears, but within 30 days of invoice.

The Customer shall pay invoices within the days stated upon your invoice from the date 6.2the invoice is issued.

6.3 In the event the Customer fails to pay any invoice in accordance with Condition 6.2 above, The Posh Agency shall, without prejudice to any other accrued right or remedy available to The Posh Agency, be entitled to:

6.3.1 suspend all Services with immediate effect until payment has been made in full; and/or

6.3.2 charge interest on such sum from the due date for payment at the rate applicable from time to time under and in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.

6.4 Should The Posh Agency have reasonable concerns as to the creditworthiness of the Customer it may adjust the credit terms applicable to the Customer and may impose credit limits on the Customer which, if reached, allow The Posh Agency to suspend the Services or terminate the Contract in accordance with Condition 9.2.

7 VARIATIONS TO PROJECT, SERVICES AND/OR PROPOSAL

7.1 The Customer shall be entitled to request a variation to the Services and/or Proposal on reasonable written notice. In the event the Customer requests such a variation, The Posh Agency in its absolute discretion shall be entitled to either:

7.1.1 agree to accept the requested variation to the Services and/or Proposal, provided that The Posh Agency shall be entitled to reasonably increase the Fees to account for the variation to the Services and/or Proposal on giving the Customer notice of such increase in Fees, and the Customer agrees to pay any such increase; or

7.1.2 terminate the Contract in accordance with Condition 9.2.

7.2 Without prejudice to either parties’ rights under these Conditions, in the event of a variation to the Services and/or Proposal or termination of the Contract pursuant to Condition 7.1, the Customer shall be liable to pay all outstanding Fees, Expenses or such other reasonable costs incurred in respect of any aborted work in the provision of the Services up to the time of receipt of notification of the requested variation by The Posh Agency in accordance with the payment terms set out in Condition 6.

7.3 In the event of a variation of the Contract pursuant to Condition 7.1.1 above, except in so far as the requested variation amends the Contract, the Contract shall continue to govern the parties’ relationship and obligations as it did prior to the variation.

8 CANCELLATION OF PROJECT OR CONTRACT AGREEMENT

8.1 If the Customer cancels a Project or the Contract and seeks to change, terminate, cancel or postpone the Services (or such part of them that relate to the Project or the Contract) at any time prior to the Termination Date, the Customer shall indemnify The Posh Agency in full against all loss (including the Fees) costs (including the cost of all labour and materials used), damages, charges and Expenses incurred by The Posh Agency prior to and as a result of such termination, cancellation or postponement.

8.2 For the avoidance of doubt any Project Fees paid by the Customer shall not be refunded in the event a Project is cancelled or the Contract is terminated for whatever reason in accordance with Condition 9 below.

8.3 If the Customer cancels a Project at any stage after signing of the Letter of Engagement or project Kick Off, full Project payment will be required; paid in full with immediate effect.

If the Customer cancels the Contract within the first 6 months of delivery, cancellation 8.4charges of 6 months’ fees will be incurred, payable immediately.

8.5 If the Customer postpones the services or seeks to put services on hold within the first 6 months of the Contract, The POSH Agency reserves the right to the remainder of the first 6 months fees. The Contract term will be put on hold if The POSH Agency is in agreement and will pick up where it was ceased upon an agreed date.

8.6 If the Customer postpones the services or seeks to put services on hold within the first 12 months of the Contract, The POSH Agency reserves the right to the remainder of the first 12 months fees.

9 TERMINATION

9.1 The Contract shall commence on the date on which the Contract is deemed to have been accepted in accordance with Condition 2.2 and shall continue until the Termination Date.

9.2 Either party shall be entitled to terminate the Contract on giving to the other not less than ninety days’ written notice.

9.3 Either party (the “First Party”) shall be entitled to terminate the Contract immediately on written notice in the event that:

9.3.1 the other party (the “Other Party”) commits a material breach of any of the provisions of the Contract, and where such breach is remediable, fails to remedy that breach within 20 working days of notification of the breach by the First Party; or

9.3.2 the Other Party:

  1. a) makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being a firm or individual) becomes bankrupt or (being a company) goes into administration or liquidation (otherwise than for a solvent winding-up for the purposes of a bona-fide scheme of reorganisation, amalgamation or reconstruction of the Customer); or
  2. b) ceases or threatens to cease to carry on business.

9.4 All sums payable to The Posh Agency under the Contract shall become due immediately on its termination (howsoever terminated), without prejudice to any right to claim for interest under the law, or any such right under the Contract. Without prejudice to the foregoing and/or to Condition 8.1, in the event that the Contract is terminated whilst a Project is on-going, The Posh Agency shall invoice the Customer in respect of such proportion of the Project Fees that is equivalent to the proportion of the work that it has carried out on or in connection with the Project at the Termination Date (less any Project Fees already paid or invoiced).

9.5 In the event of termination of the Contract for whatever reason (except where the Customer lawfully terminates the Contract as a direct result of The Posh Agency’s material breach in accordance with the provisions of Condition 9.3.1), The Posh Agency shall not incur any liability to the Customer resulting from, or in respect of, such termination.

9.6 Upon notification of termination, all client access to POSH IP, systems and accounts will be revoked.

10 LIMITATION OF LIABILITY

10.1 The following provisions of this Condition 10 set out the entire financial liability of The Posh Agency (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer for any breach of contract and any representation, guarantee, warranty, indemnity, statement or tortious act or omission including negligence arising under or in connection with the Contract.

10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

10.3 Nothing in the Contract excludes or limits the liability of The Posh Agency in respect of:

10.3.1 death or personal injury caused by its negligence;

10.3.2 fraud or fraudulent misrepresentation; or

10.3.3 any other liability that cannot be limited or excluded under law.

10.4 Subject to Condition 10.3, The Posh Agency shall not be liable to the Customer whether in contract (whether by way of guarantee, warranty, indemnity or otherwise), tort (including negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise in respect of the Contract for any:

10.4.1 indirect or consequential loss or damage;

10.4.2 loss of profit; or

10.4.3 loss of business or depletion of goodwill; howsoever caused which arises out of or in connection with the Contract.

10.5 Subject to Condition 10.3 and without prejudice to Condition 10.4, The Posh Agency’s total liability in contract (whether by way of guarantee, warranty, indemnity or otherwise), tort (including negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise, arising from or in connection with the Contract shall be limited to the total Fees payable under the Contract.

11 CONFIDENTIALITY

11.1 Each of The Posh Agency and the Customer shall, and shall procure that its employees shall, keep secret and confidential all business and trade secrets, know-how, specifications, processes, initiatives, methods of doing business, price lists and other confidential information and material disclosed by or obtained from the other (“Confidential Information”). Each party undertakes not to disclose the other’s Confidential Information to any third party other than its responsible employees to whom disclosure is in good faith necessary for the proper performance of their duties in connection with the Contract.

11.2 The obligations of confidentiality under Condition 11.1, above, shall not apply to any information or material which:

11.2.1 was known to the recipient before its receipt from the disclosing party;

11.2.2 is lawfully in the public domain other than by reason of breach;

11.2.3 must be disclosed by law or by any regulatory body; or

11.2.4 can be reasonably shown to have been developed by the recipient independently of the disclosing party.

12 INTELLECTUAL PROPERTY

12.1 For the purpose of this Condition 12.1 intellectual property rights include, without limitation, copyright, patent rights, utility models, rights to inventions, domain names, rights in computer software, service marks, trademarks, PPC campaigns, SEO campaigns, rights in goodwill or rights to sue for passing off, design rights, data base rights, know how, trade secrets, technical information, confidential process information, trade and business names, proprietary information and all similar rights whether registered or not and all rights to apply for such registrations which subsist now or in the future in any part of the world (“Intellectual Property Rights”).

12.2 All Intellectual Property Rights in the Services and/or the Project Deliverables and/or Materials provided by The Posh Agency in connection with the Contract belong to The Posh Agency unless otherwise agreed. All Intellectual Property Rights in any Materials provided by the Customer belong to the Customer. Each party is to return to the other party any Materials it has been provided by the other party on request, on completion of the Services or on termination of the Contract (whichever is the earlier).

12.3 All PPC campaigns set up and structured by the POSH Agency will remain the sole property of the POSH Agency. If Termination of Agreement should occur, the POSH Agency will remain in ownership of these campaigns and will not pass these to the customer upon termination.

13 DATA PROTECTION

13.1 Each party agrees to comply with the provisions of the Data Protection Act 1998 in the performance of their respective obligations under the Contract and arising in connection with the provision by The Posh Agency of the Services.

14 SPECIAL CONDITIONS

14.1 The Special Conditions (if any) are hereby incorporated into the Contract and to the extent that there is any inconsistency between the Conditions and any such Special Conditions the Special Conditions shall prevail.

15 NON-SOLICITATION

15.1Prior to Contract agreement [by signing the Letter of Engagement, or by making payment to the POSH Agency for the services set out in the Contract the Customer is accepting agreement of the Contract]; the Customer should inform the POSH Agency, within reasonable limits, of any businesses the Customer views as a conflict of interest for POSH to solicit.

15.2 During the term of this Agreement the POSH Agency will not, without the prior written consent of the Company, either directly or indirectly solicit or attempt to solicit an business the Company has highlighted within this.

16 GENERAL

16.1 Each party shall perform its respective obligations under this Contract in accordance with all relevant legislation.

16.2 The Posh Agency shall not be liable if it is delayed in or prevented from performing its obligations due to circumstances outside its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes, failures in utility supply, supplier failures, systems interruption, power surges, network unavailability, equipment failures, virus attack or any comparable circumstances.

16.3 To give notice under the Contract a letter must be delivered personally or sent by pre-paid first class post to the registered office address and normal business address of the recipient. A notice delivered by hand is deemed served when delivered; a notice sent by post is deemed served once 48 hours after posting have elapsed. A notice sent by email is deemed served upon proof of read receipt being received or upon response to the notice from The POSH Agency ltd.

16.4 Each right or remedy of The Posh Agency under the Contract is without prejudice to any other right or remedy of The Posh Agency whether under the Contract or not.

16.5 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

Nothing in the Contract shall create a partnership or employment relationship. 16.6

16.7 Failure or delay by The Posh Agency in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

16.8 The Posh Agency may sub-contract the performance of any or all of its obligations under the Contract without any requirement to obtain consent (written or otherwise) from the Customer and in such circumstances The Posh Agency shall remain responsible for the acts or omissions of such sub-contractor as if they were acts or omissions of The Posh Agency. Save as set out in this Condition 16.8, neither party may assign, sub-contract, transfer, charge, create a trust over or otherwise deal in its rights and/or obligations under the Contract without the other party’s prior written consent.

16.9 No term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

16.10 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by the Law of England and Wales and the parties submit to the exclusive jurisdiction of the English courts.

16.11 The Customer should inform the POSH Agency of any processes they would like adhered to in advance of project commencement. By signing the Letter of Engagement, or by making payment to the POSH Agency for the services set out in the Contract the Customer is accepting that the website is live and stable. Any new updates should be briefed and will be quoted for via a separate agreement.

SCHEDULE

Definitions “Conditions” means these terms of business and “Condition” shall be interpreted similarly;
“Contract” means the contract between the Customer and The Posh Agency for the supply of the Services as formed following The Posh Agency’s acceptance of an order in accordance with Condition 2.2 incorporating these Conditions and the Proposal;
“Contract Term” means the period for which it is agreed the Services shall be provided under the Contract as stated in the Proposal;
“Customer” means the person, firm or company with whom The Posh Agency enters into the Contract to provide the Services;
“Expenses” means costs and charges reasonably incurred by The Posh Agency in the provision of the Services including (but not limited to) rail, air or other travel expenses, costs of accommodation, car parking, subsistence, couriers, cost and charges relating to printing, photocopies, postage and telephony services, as well as any other expenses detailed in the Proposal;
“Fees” means the Management Charges, the Media Charges and the Project Fees payable by the Customer to The Posh Agency in respect of the provision of the Services;
“Materials” means any documents, materials, data or information in any form (including computer programs, data, reports, specifications and drafts) provided in connection with the Contract by one party to the other;
“Management Charges” means the on-going monthly consultancy charges as set out in the Proposal as may be amended from time to time in accordance with these Conditions;
Media Charges means the third party media charges including but not limited to advertising on paid search, affiliate and display advertising networks;
“Project” means such project or aim as the Customer agrees with The Posh Agency (prior to starting the Services) and as is specifically set out in the Proposal;
Project Deliverables means any deliverables to be delivered to the Customer by The Posh Agency in respect of a Project as specifically set out in the