Marketing Services Agreement (MSA)

The following terms and conditions in this MSA shall apply to all Services provided by STRUTO to you (the “CLIENT”) when signing a Statement of Work (“SOW”)

1. Interpretation

1.1 Definitions

In this MSA, the words and expressions set out below will, unless the context otherwise requires, have the following meanings:

”Business Day” means 7.5 hours on any day, other than a Saturday, a Sunday, or a public holiday in England and Wales.

“Charges” means the charges for the Services as set out in the SOW.

“Start Date” means the date of the SOW;

“Confidential Information” means all information which is imparted or obtained under or in connection with this MSA or any SOW on, before or after the Start Date in confidence (whether in writing, verbally or by other means and whether directly or indirectly) or is of a confidential nature, relating to the business or prospective business, current or projected plans or internal affairs of either of the parties, including in particular, but not limited to, the terms of this MSA all know-how, trade secrets, products, operations, processes, product information and unpublished information relating to either party’s Intellectual Property Rights, and any other commercial, financial or technical information relating to the business or prospective business of either of the parties;

“Employee(s)” means employee, personnel or sub-contractors of STRUTO who will be providing the Services to Client under this MSA and SOW;

“Data” means all data and information received or processed by STRUTO from or on behalf of CLIENT in performing the Services;

“Intellectual Property Rights” any current and future intellectual property rights, including:

- copyrights, trade marks, trade names, domain names, rights in logos and get-up, inventions, confidential information, trade secrets and know-how including commercial know-how, design rights, patents, utility models, all rights of whatsoever nature in computer software and data, rights in databases, privacy rights; and

- all intangible rights and privileges of a nature similar, analogous or allied to any of the above.

- in every case in any part of the world and;

- all granted registrations and all applications for registration;- all renewals, reversions or extensions;

- all forms of protection of a similar nature which may subsist anywhere in the world;

“Pre-existing Materials” all documents, information and materials created or provided by STRUTO relating to the Services which existed prior to the commencement of the MSA.

“Services” the services provided by STRUTO to CLIENT as set out in each SOW;

“Term” is the duration of the SOW;

“VAT” value added tax pursuant to either the Value Added Tax Act 1994 or the EU Sixth Directive 77/388 or any analagous law in any other jurisdiction;

1.2. In this MSA, unless the context requires otherwise:

(a) any act or regulation, will be construed as referring also to any amendment or re-enactment of such act or regulation (whether before or after the date of this MSA);

(b) references to any party will, where relevant, be deemed to be references to or include, as appropriate, their lawful successors, assigns and transferees,

(c) use of the singular is deemed to include the plural;

(d) the headings will not affect interpretation;

(e) references to a “month” are to a calendar month, unless otherwise stated; and

(f) reference to a Clause or Schedule, unless the context otherwise requires, is a reference to a Clause of, or Schedule to, this MSA.

2. Overview

2.1 STRUTO will carry out the Services for CLIENT in accordance with the agreed SOW and the terms of this MSA.

2.2 Each party will provide the other party with all information reasonably requested by that other party, so that the other party can perform its obligations under this MSA.

2.3 STRUTO acknowledges that there is no guaranteed minimum amount of work to be referred to STRUTO by CLIENT under this MSA.

3. Provision of the Services

3.1 STRUTO shall, in accordance with the terms and conditions of this MSA:

(a) from the Start Date of each SOW provide the Services in accordance with the terms of this MSA and the SOW;

(b) implement and maintain appropriate security procedures to prevent the unauthorised disclosure, destruction, damage, loss or alteration of Data;

(c) be responsible for complying with any applicable laws, statutes, regulations and codes of practice, relating to the provision of the Services and all of its other obligations under this MSA;

(d) comply with all reasonable and lawful policies and procedures of CLIENT.

3.2 In addition to its obligations set out elsewhere in this MSA the CLIENT shall:

(a) ensure that its employees and any sub-contractors and other independent contractors co-operate fully with STRUTO in relation to the provision of the Services and that such employees and any such sub-contractors will be qualified to carry out any tasks which they may be assigned in relation to any Project;

(b) promptly furnish STRUTO with such information and documents as STRUTO may reasonably require for the proper performance of the Services under this MSA and be responsible for ensuring that such information is true, accurate, complete and not misleading in any material respect;

(c) obtain all third party consents, licenses and rights reasonably required in order to allow STRUTO to perform the Services and be responsible for complying with any applicable laws, statutes, regulations and codes of practice, relating to the CLIENT in connection with the Services and all of its other obligations under this MSA; and

(d) put in place adequate security and virus checking procedures in relation to any computer facilities to which it provides STRUTO with access.

(e) the CLIENT shall not at any time from the date of this agreement until the date falling 12 calendar months after the expiry or termination of this agreement, whether directly or indirectly, solicit or entice away or attempt to solicit or entice away from STRUTO or employ or attempt to employ any member of STRUTO’s Team. The CLIENT shall pay to STRUTO, on demand, all reasonable costs, charges or losses sustained or incurred by STRUTO in connection with the breach by the CLIENT of this clause 3.2 (e) (including, for the avoidance of doubt, any costs, charges or losses arising out of the transfer by operation of law of the employment of any member of STRUTO’s Team to the CLIENT).

3.3 Should CLIENT fail to perform any of the following (other than a delay by Client for which Client is excused under Clause 10):

3.3.1 its obligations under this MSA

3.3.2 fail to provide data and/or information required

3.3.3 provide data and/or information which is inaccurate and/or incomplete Then STRUTO will not be responsible for any delay, cost increase or other consequences arising from such failure. CLIENT shall reimburse STRUTO in the event that any failure to perform in accordance with this Clause which causes STRUTO to suffer any loss and/or damage or incur additional expense

3.4 Any further additional costs or expenses will be agreed between the parties and will become the subject of a new SOW.

4. Data Protection

4.1 The terms “personal data”, “data”, “data subject” and “processing” shall have the meanings ascribed to them in The General Data Protection Regulation (GDPR) (EU) 2016/679.

4.2 Each party shall comply with any data protection, privacy or similar laws anywhere in the world (“Data Protection Laws”), including, The General Data Protection Regulation (GDPR) (EU) 2016/679, that apply in relation to any personal data processed in connection with this MSA and any SOW under it (“Protected Data”), and render such assistance and co-operation as is reasonably necessary or reasonably requested by the other party.

4.3 Without prejudice to the generality of this Clause in respect of Protected Data disclosed to STRUTO (if any) in connection with this MSA (and whether disclosed by CLIENT, data subjects or otherwise), STRUTO shall ensure that it only processes such Protected Data for purposes notified to it by CLIENT and/or the relevant data subjects.

4.4 STRUTO will take all steps required and communicated in writing to STRUTO by CLIENT that CLIENT reasonably considers are necessary in order to comply with CLIENT’s own obligations under Data Protection Laws.

5. Intellectual Property Rights

5.1 In respect of any Intellectual Property Rights owned by a party as at the Start Date, that party shall continue to own such Intellectual Property Rights.

5.2 Subject to Clause 5.3, STRUTO licenses all such rights to the CLIENT free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the CLIENT to make reasonable use of the Services.

5.3 The CLIENT acknowledges that, where STRUTO does not own any of the Pre-existing Materials, the CLIENT's use of those rights in Pre-existing Materials is conditional on STRUTO obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle STRUTO to license such rights to the CLIENT.

5.4 STRUTO will grant CLIENT or its agents or assigns (provided they comply with Clause 9) a royalty free licence to use any Intellectual Property or Confidential Information which is necessary for the maintenance or upgrade of the website created under a SOW.

6. Term and Termination

6.1 This MSA shall take effect from the Start Date. Except as otherwise specified in the applicable SOW, any ongoing contracts shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 3 months before the end of the relevant subscription term. The pricing during any such renewal term shall be the same as that during the prior term unless STRUTO have given CLIENT written notice of a pricing increase at least 3 months before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

6.2 Either party may terminate this MSA or SOW by written notice to the other with immediate effect only :

(a) in the event that the other party has a receiver or administrative receiver appointed over it or any part of its undertaking or assets or shall pass a resolution for winding up (except for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if that other party shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order or shall cease to carry on business, or anything analogous in any jurisdiction in which that other party is located;

(b) if the other party is in material breach of this MSA or SOW and the breach is not capable of remedy;

(c) if the other party is in material breach of this MSA or SOW and the breach is capable of remedy and the breaching party shall have failed to remedy the breach within thirty (30) days of written notice from non-breaching party specifying the breach and requiring its remedy;

6.3 Upon termination of this MSA:

(a) all rights and obligations of the parties under this MSA shall automatically terminate except:

i. for such rights of action as shall have accrued prior to such termination and any obligations which expressly or by implication are intended to come into or continue in force on or after such termination;

ii. (that, in the event that this MSA has been terminated by notice given by STRUTO pursuant to Clause 6.4, STRUTO shall, at the request of CLIENT, complete any work to be performed under any existing SOW and to that extent and for that purpose the provisions of this MSA shall continue in effect until the Services under such SOW has been completed.

(b) CLIENT shall pay STRUTO for all unpaid fees and reimbursable expenses accrued up to the date of termination;

(c) Both parties shall return or destroy (at the other’s option) and without taking copies, all information, analyses, compilations, notes, slides, memoranda or other documents prepared by or for that party or any of that party’s professional advisers to the extent that such items derive from or contain Confidential Information of the other party;

6.4 Either party may terminate this MSA as follows

(a) where there is a current SOW between the parties, by giving the required notice as stipulated in the SOW. The MSA will terminate 3 months from the final date of the SOW.

(b) where this is no current SOW between the parties, by giving to the other party no less than 3 month’s notice, unless agreed otherwise between the parties.

7. Charges

7.1 In consideration of the services rendered by STRUTO to CLIENT pursuant to each SOW, CLIENT will pay STRUTO the Charges as set out below. The amounts set out in each SOW are exclusive of any applicable VAT that shall additionally be paid by CLIENT if applicable.

7.2 Unless otherwise agreed in a SOW, Charges shall accrue monthly and STRUTO shall render monthly invoices to CLIENT in respect of the same.

7.3 All Charges payable by CLIENT shall be paid to STRUTO as per the terms laid out in the SOW. If not specified then the standard terms of 7 days from date of invoice will apply.

7.4 CLIENT shall reimburse to STRUTO (on production of receipts in respect of the same) all reasonable and proper expenses authorised by the CLIENT and incurred by STRUTO in connection with his duties under this MSA.

7.5 All payments must be made to STRUTO by CLIENT in full without deduction or set-off of any kind. Nothing in this MSA shall entitle CLIENT to withhold or delay any payment on non disputed invoices due to STRUTO after the date upon which it falls due or in any way prejudice or affect STRUTO’s rights in relation to this non-payment. CLIENT must issue a formal notification of a dispute of an invoice with the STRUTO account manager within 7 days of the invoice being issued.

7.6 Provided that the right to issue proceedings is not prejudiced by a delay and save as set out below, neither party may commence any court proceedings in relation to any dispute arising out of this MSA until it has attempted to settle the dispute in accordance with this Clause. If any dispute arises in connection with this MSA, the primary contacts at STRUTO and the CLIENT shall, within 14 calendar days of a written request from one party to the other, meet in a good faith effort to resolve the dispute. If the dispute is not resolved at that meeting, the chief executive officers of the parties shall, within 14 calendar days of the meeting between the primary contacts, meet in a good faith effort to resolve the dispute as soon as practicable. If the dispute has not been resolved within 14 calendar days of the meeting of the chief executive officers of the parties, either party shall be free to commence court proceedings. The parties acknowledge that nothing in this MSA shall prevent either party from bringing proceedings to protect the Intellectual Property Rights or Confidential Information of that party without having first complied with this Clause.

7.7 If payment is not made by CLIENT to STRUTO by the due date in respect of such payment STRUTO reserves the right without prejudice to any other remedy which it may have either under this MSA or in law, to charge daily interest on the outstanding balance at the rate of four per cent (4%) per annum above the Bank of England Base Rate or the prevailing rate pursuant to statute to the date of actual payment (both dates inclusive) and to either cancel this MSA or any other MSA or SOW between CLIENT and STRUTO and/or cease or suspend delivery of the Services until payment in respect of the same shall have been received by STRUTO in full.

8. Indemnities and Liability

8.1 Either party shall indemnify the other party and keep the other party fully and effectively indemnified on demand against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or breach of this MSA by itself, its employees, agents or sub-contractors.

8.2 Except in respect of injury to or death of any person or any other liability which cannot be limited or excluded by law (for which no limit applies), the maximum liability of either party to the other, whether under Clause 8.1, in contract, negligence or other torts or otherwise arising out of or in connection with this MSA, will not under any circumstance exceed all charges paid or payable by CLIENT to STRUTO under the SOW to which the liability relates.

8.3 Not withstanding anything else contained in this MSA STRUTO shall not be liable to CLIENT for loss of data, profit, goodwill or business opportunity or contracts, or other special, indirect or consequential loss whether arising from negligence, breach of contract or howsoever caused.

9. Confidentiality

9.1 Each party undertakes to the other that during the Term and thereafter for a period of three (3) years, it will keep secret and will not without the prior written consent of that other party disclose to any third party except for a party’s legal and professional advisors any Confidential Information learned by the recipient party or disclosed to the recipient party by another party pursuant to or otherwise in connection with this MSA or any SOW, except where any Confidential Information:

(a) comes into the public domain otherwise than through unauthorised disclosure by STRUTO or anyone on its behalf;

(b) is already known to the recipient party prior to the commencement of the Services;

(c) is independently developed by the recipient party;

(d) is lawfully acquired from a third party who owes no duty of confidence to the disclosing party; or

(e) is required by any court of competent jurisdiction or by a governmental or regulatory authority to be disclosed or where there is a legal right, duty or requirement to disclose, provided that where possible and without breaching any such requirements two (2) days notice are given to the disclosing party of any such disclosure.

9.2 To the extent that it is necessary to implement the provisions of this MSA the recipient party may disclose Confidential Information to its employees and/or sub-contractors as may reasonably be necessary provided that the recipient party will:

(a) before disclosure, make such employees and/or sub-contractors aware of their obligations of confidentiality under this MSA;

(b) at all times take all reasonable steps to procure compliance with such obligations of confidentiality; and

(c) if requested by the disclosing party, procure named employees to execute a confidentiality MSA directly in favour of the disclosing party.

9.3 The provisions of this Clause shall survive the termination of this MSA.

10. Force Majeure

10.1 Neither party will be liable for any delays or failures in performance or breach of contract due to events or circumstances beyond the reasonable control of that party.

11. Terms of Contract

11.1 This MSA constitutes the whole MSA and understanding between the parties with respect to the subject matter of this MSA and supersedes all prior agreements, negotiations and discussions between the parties relating to the subject matter of this MSA.

11.2 Both parties warrant that they have the power to enter into and to execute, deliver and perform the obligations contained in this MSA; and that neither party has been induced to enter into this MSA by any prior representations or warranties, whether oral or in writing, except as specifically contained in this MSA. Both parties hereby irrevocably and unconditionally waive any right that they may have to claim damages for any misrepresentation not contained in this MSA or for breach of any warranty not contained herein (unless such misrepresentation or warranty was made fraudulently and was relied upon) and/or to rescind this MSA.

11.3 If any provision of this MSA is declared invalid or unenforceable by any court or authority of competent jurisdiction all other provisions of this MSA will remain in full force and effect and will not in any way be impaired; and the parties will meet to agree a replacement provision which is as close as is legally permissible to the provision found invalid, or unenforceable.

11.4 Any failure or delay in enforcing an obligation or exercising a right, under this MSA, does not amount to a waiver of that obligation or right. The waiver of a breach of a term of this MSA does not amount to a waiver of any other term.

11.5 No remedy conferred by any provisions of this MSA is intended to be exclusive of any other remedy and each and every such remedy will be cumulative.

11.6 STRUTO is an independent contractor of CLIENT and nothing in this MSA will be construed as to deem STRUTO, or Consultants to be an employee, servant, partner or joint venture of CLIENT.

11.7 Both parties to this contract will not assign, transfer, charge or otherwise deal with its rights or obligations under this MSA or any SOW under it, or attempt to do any of the above without the prior written consent of the other party.

11.8 In the event of any conflict or inconsistency between the various documents forming part of this MSA the following order of precedence shall apply:

(a) the SOWs;

(b) the Clauses to this MSA;

11.9 A Notice will be deemed to have been served if it is issued in writing (a “Notice”) and:

(a) if personally delivered, at the time of delivery;

(b) if posted, two Business Days after 1st class posting;

(c) if sent by email, on automatic return delivery receipt of the email to the sender, whether or not read or opened by the party receiving the Notice.

11.10 No amendment to this MSA will be effective unless made in writing and signed by the parties or their duly authorised representatives.

11.11 The parties agree that the Contracts (Rights of Third Parties) Act 1999 does not apply to this MSA and any SOW under it. No term of this MSA or any SOW under it will be enforceable by any person who is not a party to it (whether in accordance with that Act or otherwise) and this Clause will prevail in the event of any conflict between it and anything else in this MSA or any SOW under it.

11.12 This MSA will be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts.