Master Services Agreement

Jan 2025 | Date last updated 22 Jan 2025

  1. Interpretation
    1. The following definitions and rules of interpretation apply in this agreement:

      Affiliate: means in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time, and for these purposes “control” and “controlling” are defined as directly or indirectly possessing the power to direct or cause the direction of the management and policies of such a person, whether through ownership of voting interests, by contract or otherwise;

      Available Services: means digital marketing services of DemandMore;

      Business Day: means a day other than a Saturday, Sunday or public holiday in England on which banks in London are open for business;

      Client Materials: means all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to DemandMore in connection with the Works;

      Client Personal Data: means any personal data provided by or on behalf of the Client (or any user of the Works or Deliverables);

      Confidential Information: means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives and shall include, without limitation, (a) the existence and terms of this MSA and the Statements of Work; (b) any information that would be regarded as confidential by a reasonable business person relating to: (i) the business, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any of its Affiliates); and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any of its Affiliates); and (c) any information developed by the parties in the course of carrying out its obligations under this MSA;

      Consultancy Deliverables: means (a) any output of the Consultancy Works (if any) to be provided by DemandMore, to the Client; and/or (b) any output of the Works (but excluding the Consultancy Works) which is incidental to the provision of the same and which is solely a product of DemandMore’s digital advisory function;

      Consultancy Works: means the services, if any, specifically named and described in a Statement of Work as such, and which form part of the Works;

      Content Standards: means the mandatory content standards set by DemandMore as set out in Schedule 1 as may be amended from time to time by DemandMore and published on DemandMore’s website at (https://demandmore.co.uk/content-standards/)

      Creative Deliverables: means any output of the Works to be provided by DemandMore, to the Client, including the analytics available in connection with the provision of the Works, but excluding the Consultancy Deliverables;

      Data Protection Legislation: means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications). The terms data controller, data processor, data subject, personal data, personal data breach and processing shall all bear the respective meanings given to them in the Data Protection Legislation;

      Defect: means (a) a failure of the Works or the Deliverables (or any part thereof) to comply with the requirements set out in clause 4.1 of this MSA; or (b) any claim that the Works and/or the Deliverables breach a third party’s Intellectual Property Rights;

      Deliverables: means the Consultancy Deliverables (if any) and the Creative Deliverables;

      DemandMore: means DemandMore Limited, a company incorporated in England and Wales with company number 08644855 whose registered office is at 25 Horsell Road, London, N5 1XL

      Digital Third Party: means any search engine, third party provider of technology, networks and/or advertising platforms used in the provision of the Works;

      Digital Third Party Claim: means any claim made against DemandMore by a Digital Third Party pursuant to the terms of, in respect of a breach of, the Digital Third Party Terms, to the extent that the same is caused by any act or omission of the Client, Client Representatives or the Representatives of any Affiliate of the Client;

      Digital Third Party Terms: means any terms and conditions and/or policies of a Digital Third Party;

      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 disaster, epidemic or pandemic, terrorist 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, any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or any Affiliate of that party) and interruption or failure of utility service;

      Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, trade marks 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, 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, including the right to sue for and recover damages for past infringements;

      Quotation: means a written quotation issued by DemandMore to the Client in relation to Available Services;

      Representatives: means, in relation to a party, its officers, employees, sub-contractors, representatives and advisers;

      SOW Fees (or Fees): means the sums payable by the Client to DemandMore for the Works as set out in the Statement of Work;

      Statement of Work (or SOW): means the detailed plan, agreed and signed in accordance with clause 3, describing the Available Services to be provided by DemandMore, the timetable for their performance and any related matters;

      System: means the Client’s website and/or software in respect of which the Client is receiving the Works;

      UK Data Protection Legislation: means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;

      Virus: means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and

      Works: means the Available Services which are to be provided by DemandMore under a Statement of Works.
    2. Unless the context otherwise requires, a reference to:
      1. clauses, Schedules and paragraphs are to the relevant clauses, Schedules or paragraphs of this MSA;
      2. the headings to the clauses, Schedules and paragraphs of this MSA will not affect the interpretation of the same;
      3. an enactment includes reference to that enactment as amended, supplemented, replaced or succeeded from time to time and to any subordinate legislation or byelaw made under that enactment;
      4. “writing” or “written” includes email;
      5. a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); and
      6. European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended, re-enacted or otherwise given effect on or after 11pm on 31 January 2020;
    3. 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;
  2. Commencement and duration
    1. This MSA shall commence on the date that it is agreed by both parties and shall continue, unless terminated earlier in accordance with its terms and subject to clause 2.2, until either party gives written notice to terminate to the other party.
    2. If there are uncompleted Statements of Works as at the date written notice to terminate is served under clause 2.1, such notice shall expire on the completion of all Statements of Work entered into before the date on which it is served.
    3. If there are no uncompleted Statements of Work as at the date written notice to terminate is served under clause 2.1, such notice shall terminate this MSA with immediate effect.
    4. The parties shall not enter into any further Statements of Work after the date on which notice to terminate the MSA is served under clause 2.1.
  3. Statement of Work
    1. The Client may procure any of the Available Services by agreeing a Statement of Work with DemandMore pursuant to this clause 3.
    2. The Client shall ask DemandMore in writing to provide any or all of the Available Services and provide DemandMore with as much information as DemandMore reasonably requests in order to prepare a draft Statement of Work for the Available Services requested.
    3. DemandMore reserves the right in its absolute discretion to accept or reject a request for Available Services. Where DemandMore accepts such request, it shall, within a reasonable period, issue a draft Statement of Work for discussion.
    4. The Client shall ensure that the terms of any draft Statements of Work are satisfactory for its purpose before agreeing to their terms and shall ensure that any details, information or specifications provided to DemandMore pursuant to clause 3.2 are complete and accurate.
    5. Each Statement of Work shall be agreed by the parties in writing and both parties shall sign the draft Statement of Work when it is agreed.
    6. Once a Statement of Work has been agreed and signed in accordance with this clause 3, no amendment shall be made to it except in accordance with clause 17.8 (Variation).
    7. DemandMore may use the information given to it by the Client or information it may hold about the Client, or which it receives from any enquiry made with various agencies (including but not limited to credit reference agencies) in reaching any determination as to the basis on which it deals with the Client and with a view to protecting the parties from fraudulent transactions.
    8. Subject to clause 13.4, the duration of each Statement of Work and the grounds upon which it may be terminated shall be set out therein. Expiry or termination of a Statement of Work shall not effect the validity or enforceability of this MSA.
    9. Each Statement of Work shall be part of this MSA and shall not form a separate contract to it. In the event of a conflict or inconsistency between the terms of this MSA and those of a Statement of Work, the terms of the relevant Statement of Work shall prevail.
  4. DemandMore’s obligations
    1. DemandMore shall provide the Client with the Works as set out in a Statement of Work from the services start date specified therein.
    2. In supplying the Works, DemandMore shall:
      1. perform the Works with reasonable care and skill and, in all material respects, in accordance with the applicable Statement of Work;
      2. devote such time as it deems reasonably necessary for the proper performance of the Works; and
      3. comply with all applicable laws, statutes and regulations from time to time in force, provided that DemandMore shall not be liable under this MSA and/or a Statement of Work if, as a result of such compliance, it is in breach of any of its obligations thereunder.
    3. DemandMore may, on prior written notice to the Client, make changes to the Works, provided that such changes do not have a materially adverse effect on the Client’s business operations.
    4. To the extent that the Works include Consultancy Works, in the course of the provision of the Consultancy Works, DemandMore shall:
      1. recommend and (as and when directed) execute strategies and techniques for the collection, processing, reporting, distribution, analysis and interpretation of data generated by the System; and
      2. not knowingly recommend or execute any strategy or technique that would present a risk or danger to the Client’s cyber, data and/or information security, or which would otherwise place it in contravention of any agreement with a third party which it has been made aware of in advance in writing by the Client
    5. Nothing in this MSA and/or a Statement of Work shall prevent DemandMore from being engaged, concerned or having any financial interest in any other business, trade or profession or occupation during the provision of the Works.
  5. The Client’s obligations
    1. The Client shall:
      1. co-operate with DemandMore in all matters relating to the Works;
      2. provide, for DemandMore and its Representatives, in a timely manner and at charge, access to the Client’s premises, office accommodation, data, systems (including, without limitation, the Systems) and other facilities as reasonably required by DemandMore in order to perform the Works:
      3. provide, in a timely manner, such information (and in such format) as DemandMore may reasonably require for the performance of the Works, and shall ensure that it is accurate and complete in all material respects;
      4. in respect of its receipt of the Works, comply with all applicable laws, statutes and regulations from time to time in force;
      5. obtain and maintain all necessary licences, consents, and permissions necessary for DemandMore and its Representatives to perform the Works, including the use of all Client Materials, in all cases before the date on which the Works are to start;
      6. ensure that its network and Systems comply with the relevant specifications provided by DemandMore from time to time;
      7. procure and maintain its network connections and telecommunications links from its Systems to DemandMore’s data centres, and shall be responsible for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet;
      8. comply with any additional responsibilities of the Client as set out in the relevant Statement of Work;
      9. use its best endeavours to prevent any unauthorised access to, or use of, the Consultancy Deliverables and, in the event of any such unauthorised access or use, promptly notify DemandMore;
      10. not remove or otherwise alter the statement “Written by DemandMore Limited” on any and all Deliverables or remove or alter any other copyright or similar notices; and
      11. not access, store, distribute or transmit any Viruses during the course of its receipt of the Works.
    2. If DemandMore’s performance of its obligations under this MSA and/or a Statement of Work is prevented or delayed by any act or omission of the Client and/or its Representatives, DemandMore shall:
      1. not be liable for its failure to perform;
      2. not be liable for any costs, charges, losses or any other damages sustained or incurred by the Client that arise directly or indirectly from such prevention or delay; and
      3. adjust any agreed timetable or delivery schedule to account for such act or omission.
    3. The Client agrees, represents and warrants to DemandMore that:The Client agrees, represents and warrants to DemandMore that:
      1. the Client Materials comply with the Content Standards and that it shall always provide Client Materials which comply with the Content Standards;
      2. the receipt and use of the Client Materials in accordance with the licence granted in clause 10.1(b) shall not infringe the rights (including any Intellectual Property Rights) of, or cause any harm to, any third party;
      3. it shall not require the Works to be provided in conjunction with anything which is or may reasonably be deemed by DemandMore as being contrary to the Content Standards; and
      4. its business, goods and/or services may not in any way be classified as being contrary to the terms (or the spirit) of the Content Standards, and it shall notify DemandMore immediately in the event that any circumstances arise such that the warranties included herein are, or might reasonably be considered to be, untrue, inaccurate or misleading.
    4. The Client shall:
      1. comply with all and any Digital Third Party Terms, as made known or provided to the Client from time to time; and
      2. indemnify, keep indemnified. and hold harmless, DemandMore for and against all liability, loss, damage, charges, expenses and fees (including any reasonable professional costs and expenses) suffered or incurred by DemandMore and/or its Representatives arising out of or in connection with a Digital Third Party Claim.
    5. Notwithstanding DemandMore’s acceptance of a Statement of Work, DemandMore shall retain the right to refuse to publish any advertising content or to remove advertising content from any advertising inventory if it, in its sole discretion, considers that such content, or any material to which the content links, either breaches (or might reasonably be considered as likely to breach) clause 5.3 and/or clause 5.4 of this MSA.
    6. The Client shall not, without the prior written consent of DemandMore, at any point during the term of this MSA or the twelve (12) months following its termination (howsoever arising) solicit the services of any DemandMore personnel (whether an employee, subcontractor, freelancer or agent) whom has been engaged in the provision of the Works. A breach of this clause will render the Client liable to pay DemandMore an amount equal to twelve (12) months’ of the total earnings that would otherwise be payable to the employee, sub-contractor, freelancer or agent in question.  The cap on liability set out in clause 12.7 of this MSA shall not apply to liability incurred under this clause 5.6.
  6. Proofing
    1. The Client shall be required to proof all draft Creative Deliverables prior to their finalisation and shall ensure that they are accurate, true and not misleading and that they comply with the Content Standards.  
    2. Within a reasonable timeframe from receipt of the draft Creative Deliverables, the Client shall notify DemandMore as to whether it accepts or rejects the drafts for use.  In the event that the drafts are rejected, the Client shall specify what changes it would like made to the drafts prior to their use in a clear and detailed manner (the “Revisions”). 
    3. Where DemandMore:
      1. agrees with the Revisions, it shall implement the same and the draft Creative Deliverables shall be finalised and may then be used; or
      2. disagrees with the Revisions, it shall notify the Client of its reasoning and afford the Client the opportunity to either agree with it or maintain the Revisions.  Where the Revisions are maintained by the Client, subject to clause 6.4, DemandMore shall implement the same and the draft Creative Deliverables shall be finalised and may then be used.
    4. Where DemandMore is required to implement Revisions that materially alter the scope of the Creative Deliverables, DemandMore shall be entitled to require the payment of additional fees to compensate for the change in scope. Such fees shall be negotiated in good faith and agreed upon by the parties prior to implementation of the relevant Revisions. In the event that the parties are unable to agree on such fees, DemandMore shall not be required to implement the relevant Revisions.
  7. Fees and payment
    1. In consideration of the Works, the Client shall pay DemandMore the SOW Fees. Time for payment shall be of the essence of this MSA.
    2. DemandMore shall invoice the Client for the SOW Fees at the intervals specified in the Statement of Work. If no such intervals are specified, DemandMore shall invoice the Client at the beginning of the month for Works to be performed during that month.
    3. Unless stated otherwise in the Statement of Work, the Client shall pay each invoice submitted to it by DemandMore in Pound Sterling within thirty (14) days of the date of the invoice to a bank account nominated in writing by DemandMore from time to time.
    4. No payment shall be deemed to have been received until DemandMore has received cleared funds.
    5. DemandMore may raise and issue the Client with interim invoices from time to time as it sees fit and the Client shall pay the SOW Fees applicable to such invoices within fourteen (14) days of the date of the relevant invoice.
    6. Without prejudice, and subject to, clause 17.2, all amounts payable by the Client shall be made without set off, counterclaim or deduction.
    7. Without prejudice to any other rights or remedies available to DemandMore, if DemandMore has not received payment of any SOW Fees by the due date:
      1. it may suspend or otherwise disable the provision of, or cease to provide any or all of the Works whilst the relevant SOW Fees remain unpaid; and
      2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of National Westminster Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
    8. The SOW Fees exclude value added tax and any applicable additional or substitute taxes, levies, imposts, duties, fees or charges whatsoever and whenever, all of which shall be paid additionally by the Client at the prevailing rate.
    9. In the event of a change in applicable law or regulation that materially changes the cost of delivery of the applicable Works, DemandMore may give the Client written notice thereof and the Client shall have thirty (30) days to accept such increased costs or else the applicable portion of the Statement of Work shall be deemed terminated with immediate effect.
    10. If the Client disputes any portion of an invoice, the Client must notify DemandMore of such dispute within twenty (20) days of receipt and shall pay the undisputed portion of the invoice in full notwithstanding such dispute.
  8. Confidentiality
    1. Each party undertakes that it shall not at any time during the term of this MSA, and for a period of two (2) years thereafter, disclose to any person any Confidential Information pertaining to the other party, except as permitted by clause 8.2.
    2. Each party may disclose the other party’s Confidential Information:
      1. as specifically agreed in any Statement of Work;
      2. with the prior written consent of the other party;
      3. to its Representatives and/or third parties who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this MSA and/or a Statement of Work. Each party shall ensure that its Representatives and/or third parties to whom it discloses the other party’s confidential information comply with this clause 8; and
      4. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    3. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this MSA and/or a Statement of Work.
  9. Data Protection
    1. Each party shall, in performing its obligations under this MSA and/or a Statement of Work, comply with all applicable requirements of the Data Protection Legislation. The terms of the DemandMore’s Data Processing Agreement (DPA), a copy of which can be found at (https://demandmore.co.uk/dpa), and hereby incorporated by reference and will apply to the extent any Customer Data includes Personal data. The DPA sets out how we will process Personal Data on your behalf in connection with the Services provided to you under this Agreement.
    2. The parties acknowledge that for the purposes of the Data Protection Legislation, if DemandMore processes any Client Personal Data when performing its obligations under this MSA and/or a Statement of Work, the Client shall be the data controller and DemandMore shall be a data processor. To the extent that processing is required, the parties shall agree a Data Processing Addendum to the relevant Statement of Work which shall set out the scope, nature and purpose of the processing by DemandMore, the duration of the processing and the types of personal data and categories of data subject. Unless stated otherwise in a Statement of Work and where relevant, the following Data Processing Addendum will apply by default:
    3. Without prejudice to the generality of clause 9.1:
      1. the Client warrants that any Client Personal Data has been collected in accordance with Data Protection Legislation, including where necessary, that it has obtained all required authorisations, consents or other permissions to process and use the Client Personal Data in accordance with the Data Protection Legislation and all applicable regulatory requirements. As between the parties, the Client shall have sole responsibility for the accuracy, quality, and legality of the Client Personal Data and the means by which the Client acquired the Client Personal Data;
      2. the Client warrants that it has a legal basis under the Data Protection Legislation to enable the lawful transfer of the Client Personal Data to DemandMore for the term, and the purposes, of this MSA and the relevant Statement of Work and, where required under the Data Protection Legislation, it has obtained the prior and express consent (including for direct marketing where necessary or where recommended or required by Data Protection Legislation) of each data subject to transfer the Client Personal Data to DemandMore in accordance with Data Protection Legislation and that the Client is accordingly entitled to transfer the Client Personal Data to DemandMore so that it may lawfully use, process and transfer the Client Personal Data in accordance with this MSA, any relevant Statement of Work and Data Protection Legislation;
  10. Intellectual Property Rights
    1. The parties agree that, except as expressly provided to the contrary, this MSA and/or a Statement of Work shall not transfer ownership of, or create any licences (implied or otherwise), in any Intellectual Property Rights:
      1. owned by, licensed to, or otherwise vested in DemandMore prior to this MSA or any Statement of Work being executed; or
      2. in the Client Materials, save to the extent that DemandMore needs to make use of the same in connection with the provision of the Works, in which case, the Client grants to DemandMore and its Representatives a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use, copy and modify the Client Materials for the term of this MSA for the purpose of performing the Works.
    2. In relation to the Creative Deliverables, and subject always to full and proper payment by the Client in accordance with the terms of this MSA and/or a Statement of Work;
      1. DemandMore assigns to the Client all Intellectual Property Rights in the Creative Deliverables, provided that the Client grants, without prejudice and in addition to the generality of clause 17.3, to DemandMore and its Representatives a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use, copy and modify the Creative Deliverables for the term of this MSA for the purpose of performing the Works.
      2. DemandMore shall obtain waivers of all moral rights in the Creative Deliverables to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction, except that DemandMore shall retain the right to be acknowledged as the author of the Creative Deliverables (unless DemandMore expressly waives this right in writing to the Client); and
      3. DemandMore shall, promptly at the Client’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Client may from time to time reasonably require for the purpose of securing all right, title and interest in and to the Intellectual Property Rights assigned to it in accordance with this clause 10.2.
    3. In relation to the Consultancy Deliverables:
      1. DemandMore and its licensors shall retain ownership of all Intellectual Property Rights in the Consultancy Deliverables, excluding the Client Materials;
      2. subject to full and proper payment by the Client in accordance with the terms of this MSA and/or a Statement of Work, DemandMore grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free licence to copy and use the Consultancy Deliverables (excluding the Client Materials) for the purpose of receiving and benefitting from the Consultancy Works and the Consultancy Deliverables in its business;
      3. the Client may sub-license the rights granted in clause 10.3(b) to any of its Affiliates; and
      4. DemandMore reserves and retains all moral rights in the Consultancy Deliverables including but not limited to the right to:
        1. object to and prevent the Consultancy Deliverables from being modified or treated in a derogatory manner (as determined at DemandMore’s absolute discretion); and
        2. be acknowledged as the author of the Consultancy Deliverables.
    4. Except as expressly provided otherwise, this MSA and/or a Statement of Work does not transfer ownership of, or create any licences (implied or otherwise), in any Intellectual Property Rights in any data.
  11. Indemnity
    1. Subject to the limitations set out in clause 12, the Client shall indemnify, keep indemnified and hold DemandMore harmless for and against all liability, loss, damage, charges, expenses and fees (including any reasonable professional costs and expenses) suffered or incurred by DemandMore and/or its Representatives arising out of or in connection with:
      1. the Client’s breach of clause 8 or 9 of this MSA, or any representation or warranty set out in this MSA and/or a Statement of Work;
      2. use of the Works and/or the Deliverables other than in accordance with the terms of this MSA or each relevant Statement of Work; and
      3. any actual or alleged infringement of a third party’s rights (including, without limitation, Intellectual Property Rights) arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Materials.
    2. Subject to the limitations set out in clause 12, DemandMore shall indemnify and keep the Client indemnified for and against all liability, loss, damage, charges, expenses and fees (including any reasonable professional costs and expenses) suffered or incurred by the Client arising out of or in connection with:
      1. DemandMore’s breach of clause 8 of this MSA; and/or
      2. DemandMore’s breach of clause 9 of this MSA.
  12. Limitations of liability
    1. Except as expressly and specifically provided in this MSA:
      1. the Client agrees and acknowledges that DemandMore makes no warranties, undertakings or guarantees with regards to the results or sales as a result of the performance of the Works;
      2. the Client assumes sole responsibility for the results obtained from the use of the Deliverables and the Works, and for the conclusions drawn from such use. DemandMore shall have no liability for any damage caused by errors or omissions in any information provided to DemandMore by the Client in connection with the Works, or any actions taken by DemandMore at the Client’s direction; and
      3. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this MSA and/or a Statement of Work.
    2. The Client agrees and acknowledges that DemandMore’s provision of the Works is subject to and contingent upon the Digital Third Parties and that DemandMore shall not be liable to the Client for any liability, loss, damage or expense suffered or incurred by the Client as a result of:
      1. the actions or omissions of, or events affecting, the Digital Third Parties; or
      2. the treatment of the Client by the Digital Third Parties.
    3. In no event shall DemandMore or its Representatives be liable to the Client for any Defect to the extent that the same is based on:
      1. a modification of the Works or Deliverables by anyone other than DemandMore after such Works or Deliverables have been delivered to the Client (or such other third party as nominated by the Client for receipt of the same); or
      2. the Client’s use of the Works or Deliverables in a manner contrary to the instructions given to the Client by DemandMore; or
      3. the Client’s use of the Works or Deliverables after notice of the alleged or actual infringement from DemandMore or any appropriate authority; or
      4. the fraudulent or unauthorised use of any Works or Deliverables by the Client; or
      5. the Client’s installation of any applications, utilities or other software programs or re-configuration of the Deliverables or Works (including, but not limited to, hardware, firmware, software, programming, configuration and service) or otherwise modification or alteration of any of the foregoing.
    4. To the extent that there is a Defect based on the use of the Works or Deliverables, DemandMore may:
      1. procure the right for the Client to continue using the Works and/or any Deliverables;
      2. replace or modify the Works and/or any Deliverables so that they become non-infringing or no longer contain Defects; or 
      3. if such remedies are not reasonably available, terminate the relevant Statement of Work or this MSA on two (2) Business Days’ notice to the Client.
    5. Nothing in this MSA or any Statement of Work shall exclude the liability of a party:
      1. for death or personal injury caused by negligence; or
      2. for fraud or fraudulent misrepresentation; or
      3. in the case of the Client’s liability, in respect of its data protection obligations, payment obligations or its obligations pursuant to clause 5.3 and clause 5.4.
    6. Neither party shall ever be liable to the other, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise, for:
      1. any loss of an indirect, special or consequential nature howsoever arising under this MSA and/or a Statement of Work; or
      2. any loss of profits; loss of business; loss of contracts; loss of opportunity; loss of or damage to goodwill and reputation; or loss or corruption of data or information.
    7. Subject to clauses 12.3, 12.5 and 12.6, in no event shall the aggregate liability of either party for all claims, damages, lawsuits, losses and causes of action arising under or relating to this MSA and/or any Statement of Work (whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise) occurring in a given Contract Year exceed the Total Charges in respect of that Contract Year. For these purposes:

      “Contract Year” means a 12 month period commencing with the Effective Date or any anniversary of it; and

      “Total Charges” means all sums paid, and all sums payable, by the Client under this Agreement and/or any Statements of Work in respect of goods and services actually supplied by DemandMore, whether or not invoiced to the Client.
    8. Exercise by DemandMore of its right to suspend performance of its obligations under this MSA shall:
      1. be without liability to the Client; and
      2. not function as a waiver of any right of termination that DemandMore may have under this MSA and/or a Statement of Work.
    9. Unless the Client notifies DemandMore that it intends to make a claim in respect of an event within the notice period, DemandMore shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
  13. Termination
    1. A party may terminate this MSA immediately by written notice to the other party in the event that:
      1. such other party commits any breach of a material provision of this MSA and/or a Statement of Work that is irremediable or, if remediable, is not remedied by such other party within fourteen (14) days’ of receipt of written notice specifying the breach and requiring its remedy; or
      2. such other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
      3. such other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
    2. DemandMore may terminate this MSA immediately by written notice to the Client in the event that:
      1. it receives any regulatory decision or governmental order requiring it to suspend the provision of the Works or the Deliverables; or
      2. the Client fails to pay any undisputed amounts due to DemandMore in accordance with the terms of this MSA and/or a Statement of Work.
    3. In any circumstance in which DemandMore may terminate all or any portion of this MSA and/or a Statement of Work, it may exercise its right to suspend performance of any of the Works.
    4. Subject to clause 2.2, upon termination or expiry of this MSA for whatever reason, all Statements of Work shall automatically terminate.
    5. Upon termination or expiry of this MSA or a Statement of Work for whatever reason:
      1. all licences granted by DemandMore under it or a Statement of Work (as applicable) shall terminate immediately;
      2. the Client shall immediately pay to DemandMore all of its’s outstanding unpaid invoices and interest thereon and, in respect of Works supplied but for which no invoice has been submitted, DemandMore may submit an invoice, which shall be payable immediately on receipt; 
      3. any provision of this MSA and/or a Statement of Work that expressly or by implication is intended to come into or continue in force on or after termination or expiry shall remain in full force and effect; and
      4. the 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 contract which existed at or before the date of termination or expiry, shall not be affected. 
  14. Notices
    1. All notices under this MSA and/or a Statement of Work shall be in writing and shall be:
      1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
      2. sent by email to: 
        1. DemandMore at notices@demandmore.com; and 
        2. the Client at an email address provided for this purpose in any Statement of Work.
    2. Any notice shall be deemed to have been received:
      1. if delivered by hand, at the time the notice is left at the proper address;
      2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
      3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 14.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
    3. This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  15. Dispute resolution
    1. Unless otherwise provided for in this MSA, if a dispute arises out of or in connection with this MSA or a Statement of Work or the performance, validity or enforceability of the same (“Dispute”), the parties shall first attempt to resolve a Dispute informally by either party referring the matter in dispute to the Client Contact and DemandMore’s Account Director within ten (10) Business Days of the Dispute occurring.
    2. In the event that the parties’ representatives are unable to resolve the Dispute within five (5) Business Days of reference to them, then within one (1) Business Day thereafter, the Client and DemandMore shall refer the Dispute to Client’s Head of Department and Head of Client Services for DemandMore.
    3. In the event that the Dispute cannot be resolved under clause 15.2 above within five (5) Business Days of reference to it, then, within one (1) Business Day thereafter, the Client and DemandMore shall refer the Dispute to the Client’s CFO or CEO and DemandMore’s CEO.
    4. If the Client’s CFO or CEO and DemandMore’s CEO are unable to resolve the Dispute within five (5) Business Days of reference to them, then either party may refer the matter for mediation or in respect of a Dispute under clause 7.10 for resolution to an independent accountant in accordance with the procedure in clauses 15.6 to 15.9 (inclusive).
    5. Subject to clause 15.6, the parties shall seek to agree a mediator in good faith, but in default of agreement, the mediator shall be nominated by the Centre for Effective Dispute Resolution (CEDR). Any such mediation shall be conducted in accordance with the CEDR’s model mediation.
    6. Where the Dispute relates to a disputed invoice under clause 7.10, and if the parties fail to reach agreement in respect of such invoice, either party may request that the Dispute is referred for resolution to an independent accountant (the “Independent Accountant”). If the Parties fail to agree who to appoint as the Independent Accountant within three (3) Business Days, either party may apply to the President for the time being of the Institute of Chartered Accountants in England and Wales to nominate the Independent Accountant.
    7. Following such nomination, the parties shall use their reasonable endeavours to agree terms with the Independent Accountant as soon as reasonably possible (and in any event within ten (10) Business Days of its nomination) and neither party shall unreasonably withhold consent to the terms of appointment offered by the Independent Accountant. If notwithstanding the foregoing, the parties are unable to agree terms with the nominated Independent Accountant within such time frame, then either party may apply to the President for the time being of the institute of Chartered Accountants in England and Wales to nominate another Independent Accountant and the process shall be repeated until terms are agreed.
    8. The Independent Accountant shall act as an expert not as an arbitrator. The Independent Accountant’s findings shall, in the absence of fraud or manifest error, be binding on the parties.
    9. The reasonable fees of the Independent Accountant shall be borne by the parties in such proportions as the Independent Accountant may determine. Each party shall provide the Independent Accountant with such assistance and documents as the Independent Accountant requires in connection with its work to resolve the Dispute.
    10. The parties may mutually agree to extend the timescales or vary the process to attempt to resolve the Dispute.
    11. Neither party may commence court action or any other form of formal dispute resolution unless or until it has attempted to resolve the Dispute in accordance with this clause 15 except that either party may at any time may seek interim or interlocutory remedies relief in the courts.
    12. Neither party may raise or rely upon any procedural failure made by the other party in good faith in the application of this clause 15 as a defence in any subsequent court action or any other form of formal dispute resolution pursuant to clause 15.11.
  16. Entire agreement
    1. This MSA and the Statements of Work shall constitute 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.
    2. Each party acknowledges that in entering into this MSA and any Statements of Work it does not rely on and 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 MSA or a Statement of Work. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this MSA and/or a Statement of Work.
  17. General
    1. Neither party shall have any liability under or be deemed to be in breach of this MSA and/or any Statement of Work for any delays or failures in performance of the same which result from a Force Majeure Event. If such circumstances continue for a continuous period of more than three (3) months, the non-affected party may terminate the Statement of Work affected by written notice of no less than fourteen (14) days’ to the other party.
    2. Where DemandMore has incurred liability to the Client, whether under this MSA or otherwise, it may set off the amount of such liability against any sum that would otherwise be due to it by the Client.
    3. The Client agrees that DemandMore may refer to the Client and may briefly describe the Client’s business in DemandMore’s marketing materials and on its website (the “Purpose”). The Client hereby grants DemandMore a limited licence to use the Client’s trade names and trade marks solely in connection with the Purpose.
    4. If any provision of this MSA is or becomes prohibited by law or is judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be modified to the minimum extent required in order to give its intended effect, else to the extent that this is not possible, be severed from this MSA and rendered ineffective as far as possible without modifying the remaining provisions of this MSA without affecting any other circumstances of or the validity or enforcement of the remainder of this MSA.
    5. A waiver of any right or remedy under the MSA or a Statement of Work or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
    6. Except as expressly provided otherwise, this MSA and its related Statements of Work shall not be enforceable by any third party in accordance with the Contracts (Rights of Third Parties) Act 1999.
    7. This MSA shall not constitute or imply any partnership, joint venture, agency, fiduciary or other relationship between the parties.
    8. No variation of this MSA or Statement of Work shall be effective unless it is in writing and signed by the parties (or their authorised representatives). For the avoidance of doubt, no employee or representative of DemandMore, other than a duly authorised officer, has any authority to bind it.
    9. This MSA and the Statements of Work are personal to the Client and the rights and obligations thereunder may not be assigned or transferred to a third party without the prior written approval of DemandMore. DemandMore may assign and/or transfer its rights and obligations without the Client’s prior written consent.
    10. This MSA and the Statements of Work shall be binding upon, and enure to the benefit of, the parties and their respective successors and permitted assignees, and references to a party shall include its successors and permitted assignees.
    11. This MSA and the Statements of Work and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
    12. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this MSA and the Statements of Work of their subject matter or formation