BLAM WEBSITES LIMITED SOCIAL MEDIA SERVICE AGREEMENT

Definitions 


"Claim" means any claim, action or demand made or brought, or litigation or other dispute resolution process commenced, against Blam SOCIAL, its clients, affiliates, officers, directors, shareholders, agents or employees of whatsoever nature relating to the Services, including without limitation a claim in respect of defamation, intellectual property infringement or otherwise. 


“Confidential Information” means any information in written, oral or electronic form that relates to Blam SOCIAL or Group companies or its or their clients' businesses, technology, commercial arrangements, customers, employees or business partners or any such other information in Blam SOCIAL’s opinion that is to be considered as such.


“Force Majeure” means an event beyond the control of Blam SOCIAL which prevents it from complying with any of its obligations under the Agreement, including but not limited to; act of God (such as, but not limited to earthquakes, drought, waves and floods), fires, explosions, disease, war, hostilities (whether war be declared or not) invasion, act of foreign enemies, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, government regulation, action or intervention, contamination by radio-activity from any nuclear fuel, riot, commotion, strikes, go slows, lock outs or disorder, failure of electricity or telecommunications services, acts or threats of terrorism or any other cause reasonably beyond Blam SOCIAL’s control making it impracticable (including commercially impracticable) illegal, or impossible to fully perform the obligations under this Agreement. 


"Group company" means any affiliate, holding company and any subsidiaries of Blam SOCIAL or, where applicable, of its clients from time to time. 


"Intellectual Property Rights" means all existing and future copyright, design rights, registered designs, trade marks, patents, domain names, database rights, know how, applications for any of these, the right to apply for any of these and all other Intellectual Property Rights, in any part of the world, for the full term of such rights and any revisions, renewals and extensions of them.


"Material" includes all information, methods, techniques, inventions, processes, reports, drawings, plans, research, know-how, systems, software (including source and object code), confidential information, creative works, concepts and other material existing, produced, developed or discovered by Blam SOCIAL or any Group company during the Term including material relating to the business of the Client including any deliverables. 



IT IS HEREBY AGREED THAT:-



1. Term

1.1 This Agreement will commence on the "Commencement Date" as set out in the Summary and shall continue for a minimum of one (1) month. Following the initial 1 month period, either party may terminate the Agreement upon giving the other not less than 4 weeks’ written notice in writing, subject to the provisions for earlier termination as set out at clause 7 of this Agreement. The duration of the Agreement from the Commencement date to its termination shall be referred to as ‘the Term’. 


2. The Services

2.1 During this Agreement, Blam SOCIAL will provide to the Client its services as a contractor as set out in the Summary (the "Services”). Those services as set out at Schedule 1 shall commence upon completion of set-up. 


3. Client Obligations 

3.1 The Client warrants and undertakes that it will:- 

(a) perform or take such actions as may be required of it to enable Blam SOCIAL to perform the Services  and shall provide Blam SOCIAL with information and/or material requested in the welcome pack and provide reasonable access (whether physical or remote access) for Blam SOCIAL to its premises (of required), equipment including any IT hardware, information, data, materials and such other facilities as may be required by Blam SOCIAL in order to perform the Services. 


(b) ensuring that the use of any materials provided by the Client and used by Blam SOCIAL in performing the Services does not infringe the Intellectual Property Rights, or any other rights, of any third parties, including without limitation by obtaining any licences required; 


(c) advising  Blam SOCIAL immediately in the event of  any problems relating to the Services or any other matter which may impede on the provision of Services by Blam SOCIAL including any breach of security, hacker activity, misuse of the Client’s computer systems and/or data by its employees, agents, or any third parties.


4. Contracting Fee

4.1. In consideration of the Services, the Client shall pay to Blam SOCIAL the non-refundable Set-Up Fee and the Monthly Fee set out in the Summary, in full, without set-off. No payment shall be considered made until received by Blam SOCIAL in cleared funds. 

4.2. The Monthly Fee is payable monthly in advance upon completion of set-up, by direct debit. All fees payable under this Agreement are exclusive of VAT, which shall, if applicable, be paid by the Client at the prevailing rate from time to time. 


4.3. Blam SOCIAL shall have the right to claim interest on any Fees and Expenses not paid in accordance with the due date at the rate of 4% per annum above the prevailing base rate of HSBC Bank plc; 


5. Confidential Information

5.1. Each party shall treat as confidential all information, including Confidential Information, obtained from the other pursuant to this Agreement and shall not divulge such information to any person (except to such party’s own employees and/or contractors and then only to such employees and/or contractors who need to know the same) without the other party’s prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to this Agreement, which is already in the public domain or becomes so at a future date (otherwise than by breach of this Clause 5) or in respect of the disclosure of information required by law.

5.2. Subject to clause 5.1 above, Blam SOCIAL reserves the right to refer to the name of the Client as a reference on its website and/or any promotional materials, including display of the Client’s logo and a client case study. 


5.3. The provisions of this clause will continue in full force and effect following the termination of this agreement for whatever reason.


6. Intellectual Property Rights       

6.1. Blam SOCIAL retains all Intellectual Property Rights, whether owned or licensed, in the Materials including, for the avoidance of doubt, any Intellectual Property Rights created as part of the Services regardless of whether such Services have been paid for by the Client. 


6.2. If, in performing the Services and creating any Materials, Blam SOCIAL requires the right to use any Intellectual Property Rights owned by a third party, the Client shall obtain a licence for Blam SOCIAL to use such Intellectual Property Rights in performing the Services and creating any Materials and the Client shall be responsible for obtaining such rights from that third party. 


6.3. Blam SOCIAL is under no obligation to apply for or seek to obtain patent, design or other protection in relation to any of the Material or in any way to use, exploit or seek to benefit from any of the Material.


6.4. The provisions of this clause 6 will not be affected by the termination of this Agreement for whatever reason and will continue following termination.


7. Termination

7.1. Either party shall be entitled to terminate the Agreement upon giving the other 4 weeks’ notice in writing to the details notified by either party to the other from time to time, with such notice to take effect at the end of the month in which such notice is given, or in the event that such notice expires during the following month, at the end of that month. Any advance payments of the Fee made by the Client for the months following termination shall be refunded. For the avoidance of doubt, the Set-up Fee is non-refundable upon termination of this Agreement for whatever reason. Upon termination, Blam SOCIAL will provide to the Client the usernames and password details for the relevant social media websites.   


7.2. In the  absence of evidence of earlier receipt, any notice or other communication shall be deemed to have been duly given:


(a) if delivered personally, when left at the address or registered office (as appropriate) of the relevant party;

(b) if sent by registered post 2 Business Days after sending it; and

(c) if sent by e-mail or fax, on completion of its transmission.


7.3. Notwithstanding the provisions of clause 7.1 and 7.2, Blam SOCIAL shall be entitled to terminate this Agreement at any time and upon summary notice as follows:- 


(a) The Client fails to make payment properly payable by it under this Agreement, including but not limited to failure or cancellation of all or any direct debit payment(s) due under the Agreement, unless such breach is rectified within 14 days by payment of the full amount outstanding. Blam SOCIAL reserves the right to suspend the Services for the duration of any period of non-payment; 


(b) The Client ceases to carry on business or becomes insolvent and either a receiver or administrative receiver is appointed over any part of the Client’s undertakings or assets or a resolution is passed for the winding up of the Client company, or the Client enters into any voluntary arrangements with its creditors, or for any other reason that Blam SOCIAL may reasonably infer that the Client is unable to pay its debts as they fall due; 


(c) Any directors, employees, associates or affiliates of the Client are declared bankrupt or are convicted of insider dealing or any criminal offence (other than a minor motoring offence) which, in the opinion of Blam SOCIAL, may bring Blam SOCIAL into disrepute or discredit;


(d) The Client commits any material or persistent breach of any term or condition set out in this Agreement or any act or omission by the Client rendering it impracticable for Blam SOCIAL to perform the Services;


(e) The Client fails to cooperate with Blam SOCIAL as required by clause 3.1 in order for Blam SOCIAL to satisfactorily perform the Services;


(f) In the event that Blam SOCIAL is unable to perform its obligations under the Agreement as a result of a Force Majeure. 


8. Data Protection and Monitoring

8.1. The Client consents to Blam SOCIAL holding and processing, both electronically and manually, the data (including personal sensitive data and information contained in e-mail, e-mail attachments and computer systems) it collects in relation to the Client, its personnel and/or clients or consumers for the purpose of performance of the Services and in respect of Blam SOCIAL's management of contractors, employees, workers and its business and for compliance with applicable procedures, laws and regulations. The Client also consents to the transfer, storage and processing by Blam SOCIAL of such data worldwide.


9. Liability & Indemnity

9.1. Notwithstanding the unenforceability or invalidity of any other provision in this Agreement, whether in contract, tort (including negligence) or otherwise, Blam SOCIAL’s maximum liability will in no circumstances exceed the sums paid to Blam SOCIAL under this Agreement. 


9.2. The Client shall indemnify Blam SOCIAL in respect of any loss, damage, liability, expenses (including legal costs), action or claims against Blam SOCIAL or any Group company caused as a result of breach of this Agreement, including but not limited to any claims by third parties relating to the infringement of intellectual property rights as referred to at clause 3.1(b) above. 

9.3. Blam SOCIAL will in no event be liable for: 


(a) The availability, reliability, timeliness and /or performance of any platforms, external sites or resources or any damage or loss of data to the Client’s IT systems as a result of use of the installation or download of any such applications. Blam SOCIAL does not endorse and is not responsible or liable for any application, content, advertising, products, or other materials on or available from such sites or resources; or


(b) any loss, damage, liability, expense, action or claim arising from or in connection with its use of any materials, property or information of/or provided by the Client; or


(c) any loss or damage due to any delay or failure by Blam SOCIAL to perform its obligations under this Agreement to the extent such delay or failure is caused by the Client’s failure to perform or delay in performing its obligations under this Agreement, or to provide any information or materials as may be required or necessary for Blam SOCIAL to perform the Services; or 


(d) any loss or damage due to any delay or failure by Blam SOCIAL to perform its obligations under this Agreement to the extent that such delay or failure is caused by any event or circumstance beyond Blam SOCIAL’s reasonable control including any delay or failure in performance by any third party supplier or contractor of Blam SOCIAL to the extent caused by any event or circumstance beyond its reasonable control; or


(e) any failure or delay in meeting its obligations under this Agreement caused by any modifications or changes to the Services requested by the Client; or 


(f) ensuring that the use of any materials or Intellectual Property Rights requested and/or provided by the Client do not infringe the Intellectual Property Rights, or any other rights, of any third party; or


(g) any matter outside Blam SOCIAL’s reasonable control, including but not limited to, misuse of the Client’s IT systems and/or data by its employees, agents, or any third parties, hacker activity, breach of security and/or confidentiality (including but not limited to display of unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, racial, pornographic, libellous, inflammatory, or otherwise objectionable content) and Force Majeure. 


10. Miscellaneous

10.1. This Agreement shall take effect on and from the Commencement Date and supersedes all other agreements or arrangements, whether written or oral, express or implied, between the Client and Blam SOCIAL. 


10.2. The Client has no right to assign, transfer, charge or in any manner alienate or purport to assign, transfer, charge or alienate the engagement under this Agreement or any rights or interests relating to it or any part of it without the prior written consent of Blam SOCIAL. 


10.3. Blam SOCIAL may assign the benefit and/or burden of this agreement to any Group company. In addition to Blam SOCIAL, any Group company and any of its or their officers may enforce the terms of this agreement and the Contracts (Rights of Third Parties) Act 1999 shall apply accordingly. 


10.4. Nothing contained in this Agreement shall be construed or have effect as constituting any relationship of employer and employee, principal and agent, or as constituting a partnership or joint venture between Blam SOCIAL and the Client. 


10.5. No waiver of any breach of any provisions of this Agreement shall constitute a waiver of a prior, concurrent or subsequent breach of the same or any other provisions and no waiver shall be effective unless made in writing.



10.6. This Agreement sets out the entire agreement of the parties. Neither party shall seek to rely upon any representation (other than fraudulent or negligent misrepresentations) which may have been made to the other prior to the making of this Agreement.


10.7. The expiry or termination of this Agreement for whatsoever reason shall not affect such of the provisions of it as are expressed to operate or have effect after its termination and shall be without prejudice to any right of action already accrued to either party in respect of any breach by the other party of the terms and conditions set out in this Agreement. 


10.8. No amendment, modification or waiver of any of the provisions set out in this Agreement shall be binding upon the parties unless made in writing and duly signed by both parties.


10.9. If any provision of the Agreement is held by any court or other competent authority to be void or unenforceable in whole or part, this Agreement shall continue to be valid as to the other provisions thereof and the remainder of the affected provision.


11. Jurisdiction 

11.1 The construction, validity and performance of the provisions set out in this Agreement shall be governed by the laws of England and the parties hereby submit to the exclusive jurisdiction of the English Courts.