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Master Service Agreement

ACCELERATE COMMERCE LTD (UK) & MAGNET MONSTER PRE LTD (SG) MASTER SERVICES AGREEMENT
& STANDARD TERMS AND CONDITIONS

BACKGROUND

Whereas the Customer desires to obtain the benefit of the Services of the Supplier, and the Supplier desires to render such Services on the Terms and Conditions set forth. In consideration of the promises and other good valuable consideration, the Parties agree to the following Terms.

YOUR ATTENTION IS PARTICULARLY DRAWN TO CLAUSE 10, WHICH SETS OUT OUR LIABILITY TO YOU.

All of the services provided by Accelerate Commerce Ltd (UK) & MAGNET MONSTER PTE LTD (SG) trading as MagnetMonster (“the Services”) provided by (“us”/“we”/“our”) to you, the Customer, (“you”/”your”) are subject to the following standard terms and conditions (“Conditions” the "Agreement").

(“MagnetMonster” "Magnet Monster" "Supplier" “us”/“we”/“our”) means Accelerate Commerce Ltd trading as MagnetMonster, a company incorporated under the laws of England (company number: 12292469), having its registered office at Marsland Chambers, 1A Marsland Rd, Sale, Cheshire, M33 3HP, United Kingdom, and/or MAGNET MONSTER PTE LTD (company number: 202304611R), having its registered office at 77 High Street, #10-12, High Street Plaza, Singapore, 179433.

Scope of Services

Accelerate Commerce Ltd (UK) trading as MagnetMonster, and/or Magnet Monster PTE Ltd (SG) shall provide all the services described in the executed Proposal or Statement(s) of Work (“SOW”). Additional consulting services may be contracted through Accelerate Commerce Ltd trading as MagnetMonster by means of a subsequent SOW executed between Accelerate Commerce Ltd trading as MagnetMonster and the Customer. All work performed under any SOW is subject to the terms of this Agreement unless otherwise explicitly indicated in the SOW.

Statement(s) of Works

This Master Services Agreement operates as a binding contractual framework under which the parties may agree Statements of Works by agreeing the attached statement of work pro forma. Each agreed Statement of Work is a separate contract for the Services. An agreed Statement of Work incorporates all the terms of this Master Services Agreement that directly or indirectly relate to that Statement of Work.

A Statement of Work is agreed and binding on the parties when it is signed by both parties.

In the event of conflict between a Statement of Work and this Master Services Agreement, the Statement of Work shall prevail.

Statement of Work is an Estimate

Each SOW will include Accelerate Commerce Ltd (UK) trading as MagnetMonster’s, and/or Magnet Monster PTE ltd (SG) estimate of the cost to complete the project. Accelerate Commerce Ltd trading as MagnetMonster, and/or Magnet Monster PTE ltd (SG) does its best to accurately estimate project costs upfront based on the scope as it is defined in the Customer’s work request. The estimate is based upon the list of features documented in the SOW. Any feature not specifically referenced and estimated in the SOW is not included in the current scope of the project. All costs listed in the SOW are an ESTIMATE and NOT a FIXED BID.

For each associated SOW, as soon as Accelerate Commerce Ltd trading as MagnetMonster, and/or Magnet Monster PTE ltd (SG) identifies that a task or deliverable may go over the estimate, the Customer will be alerted, and the parties will mutually agree in writing to proceed before any additional work is done which exceeds the approved estimate.

These Conditions and the Schedules attached to them supersede all previous representations, understandings or agreements unless otherwise confirmed in writing by us.

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these Conditions and all definitions contained in the schedules and the Particulars.

- Definitions

Acceptance Tests: your confirmation that the Deliverables provided to you are agreed.

Agreement: this Agreement and any associated schedule or annex and any amendments agreed, in writing, between the Parties and no other document.

Business Day: any day other than a Saturday, Sunday or public holiday in England.

Charges: The monetary charges payable by the customer for the supply of the Services by the Supplier.

Conditions: The clauses, terms and conditions set out within this contract and all relevant schedules.
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Contract: As defined by section 1124 of the Corporation Tax Act 2010 and the expression change of control shall be construed accordingly.
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Customer materials: All materials, equipment and tools, drawings specifications and data supplied by the Customer to the Supplier.

Deliverables: all Documents, products and materials developed by us or our agents, subcontractors, consultants and employees in relation to a Proposal or the Services in any form, including computer programs, data, reports and specifications (including drafts), the deliverables specified in the Proposal or Statements of Work.

Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

Engagement: the Customer will, from time to time, instruct the Supplier in respect of projects to be Undertaken.

Fees: Charges - The monetary charges payable by the customer for the supply of the Services by the Supplier.

‍Intellectual Property Rights (“IPR”): all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, chip topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Materials: all Documents, information and materials provided by you relating to the Services, including computer programs, data, reports and specifications or the in-put materials specified in the Proposal or Statements of Work.

Monthly Cycle: The monthly service cycle based on the agreed Start Date

Our Equipment: any equipment, including tools, systems, cabling or facilities, provided by us or our subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between us under which title passes to you.

Particulars: the Particulars to this Agreement contained in page 1.

Party: each Party to this Agreement

Parties: the Supplier and the Customer are the Parties to this Agreement

Pre-existing Materials: all Documents, information and materials provided by us relating to the Services which existed prior to the commencement of these Conditions, including computer programs, data, reports and specifications or the pre-existing materials specified in the Proposal or Statements of Work.

Project: each a separately negotiated agreement (a project), as agreed in writing by the Parties as described in the Proposal or Statements of Work.

Project Milestones: a date by which a part of the Proposal or Statements of Work is estimated to be completed, as set out in the Proposal or Statements of Work.

Proposal/Statements of Work: the detailed plan setting out the specific services and estimated timetable (including Project Milestones) and responsibilities for the provision of the Services agreed in accordance with clause 3.

Schedules: the schedules to these Conditions which are fully incorporated into these Conditions.

Services: the specific services to be provided by us as set out in a Proposal or Statements of Work, together with any other services which we provide or agree to provide to you in accordance with the Schedules to be provided by the Supplier pursuant to this Contract.

Start Date: The Agreed date for the start of the first Monthly Cycle.

Term: This Contract shall continue indefinitely unless terminated earlier in accordance with the terms set herein.

VAT: value added tax chargeable under English law for the time being and any similar additional tax. VAT is charged at the standard rate where applicable.

Your Equipment: any equipment, systems or facilities provided by you and used directly or indirectly in the supply of the Services.

Clause, schedule and paragraph headings shall not affect the interpretation of these Conditions.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
The schedules form part of these Conditions and shall have effect as if set out in full in the body of these Conditions. Any reference to these Conditions includes the schedules.
Words in the singular shall include the plural and vice versa.
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.
A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
A reference to writing or written includes faxes and e-mail.
Where the words include(s), including or in particular are used in these Conditions, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
Any obligation in these Conditions on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
Reference to clauses and schedules are to the clauses and schedules of these Conditions.
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Commencement and duration

2.1 We shall provide the Services to you from the Commencement Date (Effective Date) until expiry of the Term. Following expiry of the Term, unless agreed with you, we will continue to supply the Services to you on a monthly rolling contract, subject to 1 month’s written notice by either one of us.

2.2 Once you have accepted the Proposal/Statements of Work in writing we shall confirm that we are prepared to undertake your instructions, from which point the contract is formed between us.

2.3 Term: This Contract shall continue indefinitely unless terminated earlier in accordance with the terms set herein.

3. Proposal/Statements of Work

3.1 The Project shall be agreed in the following manner:

(a) where appropriate, you shall provide us with a request for a Proposal or Statements of Work, setting out the requirements and specifications of the services which you are requesting from us, including a description of what work is to be done, dates by which each stage of the work is requested to be started and finished, acceptance tests criteria as appropriate, Deliverables, Materials and such other information as we may request to allow us to prepare a draft Proposal or Statements of Work;

(b) we shall, as soon as reasonably practicable, provide you with a draft Proposal or Statements of Work; and

3.2 Once the Proposal/Statements of Work has been agreed, no amendment shall be made to it except in accordance with clause 6 and clause 14 (e).

4.Our Obligations

4.1 We shall use reasonable endeavours to manage and complete the Services, and to deliver the Deliverables to you, in accordance with the Proposal/Statements of Work in all material respects.

4.2 We shall use reasonable endeavours to meet any performance dates specified in the Proposal/Statements of Work, as agreed in writing, but any such dates shall be estimates only and time for performance by us shall not be of the essence of these Conditions.

4.3 Where applicable we shall obtain your approval to the Services as follows:

(a) we will send you an e-mail or contact you with the proposed Deliverables for your Acceptance;

(b) you will let us know within the timescales specified whether the Deliverables are approved in writing, based on your objectives, as set out in the Proposal or Statements of Work;

4.4 Acceptance of the Deliverables shall be deemed to have taken place when you use any part of the Deliverables for any revenue-earning purposes or to provide any Services to third parties.

4.5 Some of the Services we provide to you are hosted on platforms or websites owned by third parties. We do not provide any guarantees that the Services will be available at all times, and may be subject to downtime. We shall not be liable to you for any damages you may suffer (whether direct or indirect) as a result of any such downtime or interruption to the Services.

4.6 If we are providing Services to you which are hosted on third party servers, our Services to you are merely to provide content and we have no responsibility or liability for the hosting of the content.

4.7 In the event that the third party hosting services were interrupted, we would use our reasonable endeavours to do what we can to restore the hosting services and may migrate the content hosted on the third party server to another third party hosting provider. In the event that this was deemed necessary, charges may apply and you will be responsible for paying these charges. We will try and agree any such charges with you in advance, where possible.

4.8 We do not guarantee that any of the Services will be virus or error free or uninterrupted.

5. Your Obligations

5.1 You shall:

co-operate with us in all matters relating to the Services and appoint an authorised person to act as a point of contact in relation to the Services, who shall have the authority contractually to bind you on matters relating to the Services;
if necessary, provide access to your premises and data, as required by us;
provide, in a timely manner, such Materials and other information as we may reasonably require, and ensure that it is accurate and complete in all material respects;
be responsible (at your own cost) for preparing and maintaining the relevant premises for the supply of the Services;
ensure that all Your Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services;
obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of Our Equipment, the use of Materials and the use of Your Equipment in relation to Our Equipment; and
keep and maintain Our Equipment in accordance with our instructions as notified in writing from time to time and not to dispose of or use the equipment other than in accordance with our written instructions or authorisation.

5.2 If the performance of our obligations under these Conditions is prevented or delayed by any act or omission by you, your agents, subcontractors, consultants or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay.

5.4 You shall be liable to pay to us, on demand, all reasonable costs, charges or losses sustained or incurred by us (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of your obligations under these Conditions, subject to us confirming such costs, charges and losses to you in writing.

5.5 You shall not, without our prior written consent, at any time from the date of these Conditions to the expiry of 12 months after the termination of these Conditions, solicit or entice away from us or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of ours.

5.6 Additional expenses may be incurred for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services and these will be payable by you on demand but will at all times be set out in our Proposal or Statements of Work.

6. Change control

6.1 If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.

6.2 If either party requests a change to the scope or execution of the Services, we shall, within a reasonable time, provide a written estimate to you of:

the likely time required to implement the change;
any necessary variations to our charges arising from the change;
the likely effect of the change on the Proposal or Statements of Work; and
any other impact of the change on these Conditions.

6.3 If you wish us to proceed with the change, we have no obligation to do so unless and until we have agreed the necessary variations to our charges, the Services, the relevant Proposal/Statements of Work and any other relevant terms of these Conditions to take account of the change and these Conditions has been varied in accordance with clause 14.

6.4 Notwithstanding clause 6.3, we may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. We may, from time to time and subject to your prior written consent, which shall not be unreasonably withheld or delayed, change the Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, we will give you at least three months’ notice of any change.

6.5 We may charge for the time we spend assessing a request for change from you on a time and materials basis in accordance with clause 7.

Revisions and Alterations
What is included in the scope of the project, and what is excluded from the scope of the project.

Charges for design services to be provided by MagnetMonster will be set out in the written estimate or quotation (SOW) that is provided to the client. At the time of the client’s signed acceptance of this estimate or quotation, indicating acceptance of the Terms & Conditions, a non-refundable payment will become immediately due.

The Client agrees that changes required over and above the estimated work, or in addition to the agreed scope, or where the client makes changes to the supplied copy or changes required to be carried out after acceptance of the draft design, will be liable to a separate charge.

The customer also agrees that MagnetMonster holds no responsibility for any amendments made by any third party, before or after a design is published.

Any and all revision requests, updates, corrections, additions or variations MUST be furnished to MagnetMonster in writing. Revisions may be discussed verbally, however, no work will be carried out until the Client submits their revisions in writing by email.

The Client understands that any and all revision requests, updates, corrections, additions or variations outside of the agreed number of revisions, will incur an hourly billable or project charge. Design work is not done free of charge unless otherwise arranged with MagnetMonster explicitly and clearly in writing.

Unless otherwise agreed, MagnetMonster will complete ONE (1) large revision stage, and typically ONE (1), but up to TWO (2) [where specified] minor revision stages. Revision requests are to be made within FIVE (5) business days of receiving the proofs*. If no revisions are requested within this time, it is assumed that the submitted proof is the accepted final. Any revisions made after this point are subject to additional fees at the hourly rate.

A large revision stage would include, but not be limited to, moving photos and text around the page, amending branding/theme design, and larger structural design changes; meaning we are doing layout changes and that would be classed as a major revision.

A minor revision stage would include, but not be limited to, changing a short text phrase or small copy edits, swapping image choice, or amending titles; which do not impact the theme branding or layout and would be a minor revision.

The total project quote or rate provided by MagnetMonster is based on a reasonable average or specified number of revisions per design item, and associated number of billable hours. On the occasion the Client requests drafts or revisions that go beyond the scope of the original quote or rate, MagnetMonster reserves the right to charge an additional hourly rate upon informing the Client that the request will incur an additional cost.

*It is essential to note that should feedback not be received within five (5) business days, the email will be deployed as per the proposed schedule date and accepted as approved by the Client.

7. Charges and payment

7.1 In consideration of the provision of the Services by us, you shall pay our charges as set out in the Particulars which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both. Clause 7.3 shall apply if we provide Services on a time and materials basis and clause 7.4 shall apply if we provide Services for a fixed price. The remainder of this clause 7 shall apply in either case.

7.2 Any deposit paid by you is non-refundable on cancellation of our Services.

7.3 Where Services are provided on a time and materials basis:

the charges payable for the Services shall be calculated in accordance with our Proposal, as amended from time to time by us giving not less than three months’ written notice to you;
our standard fee rates are calculated on an hourly basis for each individual person. Daily fee rates are calculated on the basis of an eight-hour day, worked between 9.00 am and 5.30 pm on weekdays (excluding public holidays);
we shall be entitled to charge an overtime rate of 25% of the normal daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Project or Services outside the hours referred to in clause 7.3(b);
all charges quoted to you shall be exclusive of VAT, which we shall add to our invoices at the appropriate rate; and
we shall invoice you in accordance with the Proposal and our invoice terms are 50% deposit prior to commencing the project, and the final 50% to be paid no later than 30 days following completion of the project.

7.4 Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Particulars as amended from time to time in accordance with clause 7.6. You shall pay the total price to us (without deduction or set-off) in monthly instalments or as a lump sum, as set out in the Particulars. At the end of the Term, we shall invoice you for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in clause 7.5.

7.5 Any fixed price contained in the Proposal or Particulars excludes, unless otherwise agreed with you:

expenses (cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred), the cost of any materials and the cost of services reasonably and properly provided by third parties, and required by us for the supply of the Services. Such expenses, materials and third party services shall be invoiced by us; and
VAT, which we shall add to its invoices at the appropriate rate.

7.6 You agree that we may review and increase the charges set out in the Particulars, provided that such charges cannot be increased more than once in any 6 month period. We shall give you written notice of any such increase three months before the proposed date of that increase. If such increase is not acceptable to you, you may, within one week of such notice being received terminate the agreement by giving one month’s written notice to us.

7.7 You shall pay each invoice submitted to you by us, in full and in cleared funds.

7.8 Without prejudice to any other right or remedy that you may have, if you fail to pay us on the due date, we may:

charge interest on such sum from the due date for payment at the annual rate of 8% above the base rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and you shall pay the interest immediately on demand;
suspend all Services until payment has been made in full; and/or
retain or remove the Deliverables (such as taking down your website) if sums payable to us remain due for five days or over.

7.9 All sums payable to us under these Conditions shall become due immediately on its termination, despite any other provision. This clause 7.8 is without prejudice to any right to claim for interest under the law, or any such right under these Conditions.

7.10 For the provision of some of our Services money on account will be required before we are able to proceed with your instructions. We shall not be liable for any delay caused by your delay or failure to pay the requested sums on account.

‍8. Intellectual property rights

8.1 As between you and us, all Intellectual Property Rights and all other rights and all other Pre-existing Materials shall be owned by us but, upon full payment of any outstanding sums due to us for the Services, shall be licensed to you, free of charge, on a non-exclusive, worldwide basis.

8.2 You acknowledge that, where we do not own any of the Pre-existing Materials, your use of rights in Pre-existing Materials is conditional on us obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle us to license such rights to you.

8.3 We own the Intellectual Property Rights arising from or connected in any way to the Services and they shall at all times be owned by us.

8.4 By supplying materials to us, you declare that you hold the appropriate Intellectual Property Rights in these, or a licence to use them. The ownership of such materials will remain with you, or rightful copyright or trademark owner. You will, however, provide us with a perpetual non-exclusive licence to use and modify the Intellectual Property Rights in the Materials for the purpose of providing the Services.

8.5 You undertake to defend us from and against any claim or action that the possession, use, development, modification or maintenance of the Materials (or any part thereof) infringes the Intellectual Property Rights of a third party (“Claim”) and shall fully indemnify and hold us harmless from and against any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against us as a result of, or in connection with, any such Claim.

9. Confidentiality and our property

9.1 You shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to you by us, our employees, agents, consultants or subcontractors and any other confidential information concerning our business or its products which you may obtain.

9.2 You may only disclose such information:

to your employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out your obligations under these Conditions; and
as may be required by law, court order or any governmental or regulatory authority.

9.3 You shall ensure that your employees, officers, representatives, advisers, agents or subcontractors to whom you disclose such information comply with this clause 9.

9.4 You shall not use any such information for any purpose other than to perform your obligations under these Conditions.

9.5 All materials, equipment and tools, drawings, specifications and data supplied by us to you (including Pre-existing Materials and Our Equipment) shall, at all times, be and remain our exclusive property, but shall be held by you in safe custody at your own risk and maintained and kept in good condition by you until returned to us, and shall not be disposed of or used other than in accordance with our written instructions or authorisation.

10. LIMITATION OF LIABILITY – YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

10.1 Nothing in these Conditions limits or excludes our liability for:

death or personal injury caused by our negligence;
fraud or fraudulent misrepresentation; or
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

10.2 Subject to clause 10.1 we shall not be liable to you, whether in contract or tort (including negligence, libel and defamation), for breach of statutory duty, or otherwise, arising under or in connection with these Conditions for:

loss of profits or anticipated profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of or damage to goodwill or business opportunity;
loss of use or corruption of software, data or information;
any indirect or consequential loss;
loss or damage caused by any errors, interruptions, loss of data, viruses or any third party acts or omissions of any nature.

10.3 Subject to clause 10.1 and clause 10.2, our total liability to you, whether in contract or tort (including negligence, libel and defamation), for breach of statutory duty, or otherwise, arising under or in connection with these Conditions shall be limited to the amount of the charges set out in the Proposal or Statements of Work which you have paid in the last six months in respect of the Services.

10.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Conditions.

10.5 In granting us access to your Social Media Sites you acknowledge and understand that we will freely be allowed to comment and communicate and represent you to the public or any part of the public or any group or individual in any way whatsoever on your Social Media Sites without your express consent.

10.6 You warrant to us that you own the IPR of any materials that you provide to us to upload to the Social Media Sites (“the Social Media Materials”) and you will fully indemnify us for any losses or damages we may suffer arising from a claim that the Materials infringe the IPR of a third party.

11. Data protection and third party consent

11.1 You acknowledge and agree that details of your name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of us in connection with the Services.

11.2 You undertake to us that all third parties involved in any of the Services we undertake on your behalf (“Third Parties”) have provided their express written consent to you to be involved in the Service whether this be by way of having their photos, images or video footage captured or otherwise. You will provide us with a list of parties that are not to be used in the provision of any of our Services in advance of the Services commencing.

11.3 You will indemnify us fully for all losses and damages we may suffer as a result of your breach of clause 11.2, or losses and damages we may suffer as a result of Third Parties asking to be removed from any of the Deliverables.

12. Termination

12.1 Each of us shall be able to terminate our contractual relationship with 1 month’s written notice to the other following expiry of the Term. Without prejudice to any other rights or remedies which we both may have, either of us may terminate our contractual relationship without liability to the other immediately on giving notice to the other if the other party:

fails to pay any amount due under these Conditions on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
commits a breach of any of the terms of these Conditions and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
repeatedly breaches any of the terms of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Conditions; or
ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement); or
becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
the ability of that party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).

12.2 On termination of our contractual relationship for any reason:

you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services or Deliverables supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt;
you shall, within a reasonable time, return all of Our Equipment, Pre-existing Materials and Deliverables. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned or repossessed, you shall be solely responsible for their safe keeping;
the accrued rights, remedies, obligations and liabilities of us both as at termination shall not be affected, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination; and
clauses which expressly or by implication have effect after termination shall continue in full force and effect.

13. Force majeure

13.1 A party, provided that it has complied with the provisions of clause 13.3, shall not be in breach of these Conditions, nor liable for any failure or delay in performance of any obligations under these Conditions arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including but not limited to any of the following:

acts of God, including but not limited to fire, explosion, accidental damage, flood, earthquake, windstorm or other natural disaster;
war, threat of or preparation for war, armed conflict, terrorist attack, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
compliance with any law;
collapse of building structures, failure of plant machinery, machinery, computers or vehicles;
any labour dispute, including but not limited to strikes, industrial action or lockouts;
non-performance by suppliers or subcontractors; and
interruption or failure of utility service, including but not limited to electric power, gas or water.

13.2 The corresponding obligations of the other party will be suspended to the same extent.

13.3 Any party that is subject to a Force Majeure Event shall not be in breach of these Conditions provided that:

it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under these Conditions in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.

13.4 If the Force Majeure Event prevails for a continuous period of more than six months, either party may terminate these Conditions by giving 7 days’ written notice to all the other party. On the expiry of this notice period, these Conditions will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of these Conditions occurring prior to such termination.

14. General

We are not in partnership with each other, nor are we agents of each other.
Any notice given under this agreement shall be in writing and shall be delivered by hand, transmitted by fax, or sent by pre-paid first class post or recorded delivery post to the address of the party as set out in the Particulars. A notice delivered by hand is deemed to have been received when delivered (or if delivery is not in business hours, 9.00 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax to the fax number of the relevant party shall be deemed to have been received at the time of transmission. The addresses for service of notices shall be as set out in the Particulars.

3. If any provision of this agreement (or part of any provision) is found by any court or other body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties. Any variation of this agreement shall be in writing and signed by or on behalf of all the parties for the time being.

4. If a party fails to or delays exercising any right or remedy provided under this agreement or by law, it shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

5. Unless specifically provided otherwise, rights and remedies arising under this agreement are cumulative and do not exclude rights and remedies provided by law.

6. No party may assign, or grant any encumbrance over, or deal in any way with, any of his rights under this agreement or any document referred to in it or purport to do any of the same in each case without the prior written consent of all the parties for the time being [(such consent not to be unreasonably conditioned, withheld or delayed)].

7. Each party that has rights under this agreement is acting on his own behalf and shall pay its own costs relating to the negotiation, preparation, execution and implementation of this agreement.

8. This agreement constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

9. Each party acknowledges that, in entering into this agreement, he does not rely on, and shall have no remedy in respect of, any statement, representation, assurance or warranty of any person other than as expressly set out in this agreement or those documents.

10. Nothing in this clause 14 operates to limit or exclude any liability for fraud.

11. A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

12. This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart.

13. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.

14. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims)

15. A waiver of any right or remedy under these Conditions is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.

16. No single or partial exercise of any right or remedy provided under these Conditions or by law shall preclude or restrict the further exercise of any such right or remedy.

17. Unless specifically provided otherwise, rights arising under these Conditions are cumulative and do not exclude rights provided by law.

18. All media releases, public announcements and public disclosures by either party relating to this agreement or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties prior to release.
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15. THIRD PARTY PERFORMANCE

15.1. If the Supplier's performance of its obligations under this Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall:
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15.1.1. Not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;

15.1.2. Be entitled to payment of the Charges despite any such prevention or delay; and

15.1.3. Be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.

APIs & 3rd Party Services

MagnetMonster is not responsible for the uptime, performance or stability of any 3rd party service. Should an API or service change and in any way affect the application or alter scope, additional budget may become required and the timeline may be affected. MagnetMonster will document all required integration points.

Response Time: Accelerate Commerce Ltd (UK) trading as MagnetMonster, and/or Magnet Monster PTE Ltd (SG) will aim to reply to written support requests within the standard response times for project work. Should the Customer require real time support, the SOW will specify the terms and costs for real-time or high priority support. Written requests must be submitted through the approved project management system as set forth in section “Project Management & Communication”. Please note that email, project management software or Slack is often subject to personal schedules and while it should be included in the communication chain, is not subject to triggering a response time window. MagnetMonster will define the priority level of a request as part of the triage and response process.

Resolution Time: Resolution of issues will be handled by priority and urgent requests may affect the delivery of regular sprint based work. Accelerate Commerce Ltd (UK) trading as MagnetMonster, and/or Magnet Monster PTE Ltd (SG) provides average and top resolution times as a benchmark, but will not guarantee delivery through a service level agreement. The times listed below are estimates only.

Project Management & Communication

Business Day / Hour: For the purposes of this contract, “business days” and “business hours” shall be defined as Monday-Friday, from 9 a.m. to 5 p.m. [GMT].

Project Tracking Software: MagnetMonster will manage work using a proprietary project tracking software (including ClickUp, MIRO, wikis, issue tracking, Git integration, Basecamp, Trello, Slack, Dropbox, announcements and timelines) and Google documents. The Customer’s PoC, stakeholders, and collaborators will all have appropriate access to the project and all associated assets. This system will serve as a primary mode of communication, documentation, and reporting. Any approval made within the system by the PoC will be considered official written approval. If more than one Customer contact needs access to this system, additional access fees may apply and will be sent to the Customer for approval before access is given.

Text Chat: MagnetMonster will create and use a dedicated Slack channel for general project communication. Slack will not be used as a method for tracking bugs or feature requests, but rather as a place for MagnetMonster and our Customer to discuss questions or general project updates.

MagnetMonster project managers may ask for formal approval in any communication method (Central, Slack, Email), and receive it back from the client. The project manager will articulate that it is a request for approval.

Project Response Times

Due to the nature of our project load, MagnetMonster is not set up to support on demand services outside of business hours and any window of time otherwise defined within the SOW. Within the duration of this Agreement, MagnetMonster will make every effort to reply to inquiries within two business days except where the Customer has been previously notified of a period of limited availability. MagnetMonster will respond in good faith but cannot guarantee any specific action within a given time frame.

Should a specific Service Level Agreement for technical support or dev-ops be included in the SOW, response time expectations will be defined in the appropriate section and for those offering supersede our standard response timeframe.

Credit

We take great pride in our work and like to share our combined success. Customer agrees that MagnetMonster shall have the right to include the relevant Customer brand within its roster of clients. When publicly available, the Customer’s project will be directly referenced as part of MagnetMonster’s business portfolio.

Publicity

The Client hereby consents to MagnetMonster referring to the Client in its sales and marketing literature (including its website).

FEEDBACK

Agency may freely use Client feedback. Client agrees that Agency may use feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. Client grants Agency a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use Client provided feedback in any way.
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SCHEDULE 1

EMAIL MARKETING SERVICES & RETENTION MARKETING SERVICES

In addition to the standard Terms and Conditions set out above, the following terms shall apply to all Email Marketing Services.

The Supplier will plan, create and execute the Customer's entire E-mail Marketing Strategy which Includes the following:

Email Campaigns

The Supplier will manage the Customers entire email marketing campaign strategy as agreed and in accordance with the deliverables set out in the associated SOW. Including the following deliverables: Content calendar creation, creation of all written and visual email marketing material, scheduling campaigns, performance analysis, list segmentation, split testing and regular reporting. The Supplier will deliver a maximum number of campaigns per Monthly Cycle as determined by the SOW.

Email Flows

The Supplier will create, manage and optimise the Customers entire automated email flow system. Including the following deliverables: Creation of all written and visual email marketing material, creation of flows within Klaviyo, technical management of flows, split testing, performance analysis and regular reporting. The Supplier will create or optimise a maximum number of flows per Monthly Cycle as determined by the SOW.

Pop-Ups

The Supplier will create, manage and optimise the Customers Pop Up and Lead Magnet system.
Including the following deliverables: Creation of pop ups, regular optimisation testing, technical integration, list growth reporting and management.

Monthly Reporting

The Supplier will produce a formal end of month report for Customer. Alongside this the supplier will regularly update and report on proceedings and give the opportunity for a weekly 15 - 30 minute report call.

Intellectual Property

Contractor retains all intellectual property rights in any property invented, created or composed in the course of or incident to the performance of Contractor’s work required under this Agreement including but not limited to the Email Automation Program as defined below (the “Intellectual Property”).

Client acquires no right or interest in any such Intellectual Property, by virtue of this Agreement or the work performed under this Agreement. As contemplated in this Agreement, Contractor is creating an Email Automation Program for the temporary use by Client. The Email Automation Program includes but is not limited to all of the components listed in the SOW under Email Automation Program Details and all email designs, automation workflows, website user’s behaviour data, CRM tagging, Google Analytics dashboard, and email collection forms, customer databases created by Contractor, and the EMS campaign account (the “Email Automation Program”).

The parties herein understand and acknowledge that the Email Automation Program will be created with proprietary know-how and a unique personal analysis of marketing trends and information formulated exclusively by Contractor. Therefore, Contractor shall maintain ownership of the Email Automation Program throughout the lifetime of the agreement and after its termination. If Client wishes to continue operating the Email Automation Program after the termination of this Agreement, Contractor may, in Contractors sole discretion license the use of the Email Automation Program to Client at a, ‘fair market value’ price, as determined by Contractor, in its sole discretion. Contractor shall not by virtue of its ownership of the Intellectual Property be required to deliver any of the Intellectual Property to the customer at the conclusion of this Agreement.

GDPR DATA PRIVACY ADDENDUM

This Data Privacy Addendum (“Addendum”) is subject to the terms of, and fully incorporated and made part of, the MagnetMonster Master Services Agreement. It applies in respect of the provision of MagnetMonster to the Customer if the Processing of User Personal Data is subject to the GDPR, only to the extent the Customer is a Controller (or Processor, as applicable) of User Personal Data and MagnetMonster is a Processor or sub-Processor of User Personal Data (as defined below). This Addendum shall amend and supplement any provisions relating to the processing of User Personal Data contained in the Agreement and shall be effective for the term of the Agreement.

1. DEFINITIONS

1.1. For the purposes of this Addendum:

“User Personal Data” means Personal Data uploaded to or published, displayed or backed up through the MagnetMonster Services, as further described under Section 3 of this Addendum;

“GDPR” means the General Data Protection Regulation (EU) 2016/679, together with any national implementing laws in any Member State of the European Union, as amended, repealed, consolidated or replaced from time to time; and

“Personal Data”, “Personal Data Breach”, “Data Subject”, “Data Protection Authority”, “Data Protection Impact Assessment”, “Process”, “Processor” and “Controller” will each have the meaning given to them in Article 4 of the GDPR.

1.2. Capitalised terms not otherwise defined herein shall have the meaning given to them in the Agreement.

2. DETAILS OF THE PROCESSING

2.1. Categories of Data Subjects. This Addendum applies to the Processing of User Personal Data relating to Customer’s clients or prospects, suppliers, business partners, vendors and other end users, the extent of which is determined and controlled by Customer in its sole discretion.

2.2. Types of Personal Data. User Personal Data includes Personal Data, the extent of which is determined and controlled by Customer in its sole discretion, contained in any applications, files, data, information or other content uploaded to or published, displayed or backed up by Customer or its end users through the MagnetMonster Services.

3. PROCESSING OF USER PERSONAL DATA

3.1. For purposes of this Addendum, Customer and MagnetMonster agree that Customer is the Controller of User Personal Data and MagnetMonster is the Processor of such data, or when Customer acts as a Processor of User Personal Data for a third-party Controller, MagnetMonster is a sub-Processor. Customer warrants that Customer’s instructions to MagnetMonster with respect to the User Personal Data, including Customer’s designation of MagnetMonster as a Processor or sub-Processor, have been authorised by itself or by the relevant third-party Controller.

3.2. MagnetMonster will only Process User Personal Data on behalf of and in accordance with the Customer’s prior written instructions and for no other purpose. MagnetMonster is hereby instructed to Process User Personal Data to the extent necessary to enable MagnetMonster to provide the MagnetMonster Services in accordance with the Agreement.

3.3. Each of the Customer and MagnetMonster will comply with their respective obligations under the GDPR, to the extent applicable to the Processing of any User Personal Data in the context of the provision of the MagnetMonster Services. Customer will (i) comply with all applicable privacy and data protection laws with respect to Customer’s Processing of User Personal Data and any Processing instructions that Customer issues to MagnetMonster, and (ii) ensure that Customer has obtained (or will obtain) all consents and rights necessary for MagnetMonster to Process User Personal Data in accordance with this Addendum.

3.4. Customer consents to the storage of User Personal Data in the United States. By uploading User Personal Data to the Services, Customer acknowledges that Customer may transfer and access User Personal Data from around the world, including to and from the United States.

3.5. For Customers located in the European Economic Area or Switzerland, Customer acknowledges that MagnetMonster may process User Personal Data in countries outside of the European Economic Area and Switzerland as necessary to provide the MagnetMonster Services and in accordance with the terms of this Addendum. Where this is the case, MagnetMonster will take such measures as are necessary to ensure that the transfer is in compliance with applicable data protection laws.

3.6. The Customer acknowledges that MagnetMonster is reliant on the Customer for direction as to the extent to which MagnetMonster is entitled to use and Process User Personal Data on behalf of Customer in performance of the MagnetMonster Services. Consequently, MagnetMonster will not be liable under the Agreement for any claim brought by a Data Subject arising from any action or omission by MagnetMonster, to the extent that such action or omission resulted directly from the Customer’s instructions or from Customer’s failure to comply with its obligations under the applicable data protection law.

3.7. If for any reason (including a change in applicable law) MagnetMonster becomes unable to comply with any instructions of the Customer regarding the Processing of User Personal Data, MagnetMonster will (a) promptly notify the Customer of such inability, providing a reasonable level of detail as to the instructions with which it cannot comply and the reasons why it cannot comply, to the greatest extent permitted by applicable law; and (b) cease all Processing of the affected User Personal Data (other than merely storing and maintaining the security of the affected User Personal Data) until such time as the Customer issues new instructions with which MagnetMonster is able to comply. If this provision applies, MagnetMonster will not be liable to Customer under the Agreement in respect of any failure to perform the MagnetMonster Services due to its inability to process User Personal Data until the Customer issues new instructions in regard to such Processing.

ACCEPTABLE USE POLICY

This Acceptable Use Policy sets forth guidelines relating to the types of content that you may transmit to or from web and email servers under your agreement with MagnetMonster for services (the “Services”). MagnetMonster may remove any materials that, in its sole discretion, may be illegal, may subject it to liability, or which may violate this Acceptable Use Policy. MagnetMonster will cooperate with legal authorities in the investigation of any suspected or alleged crime or civil wrong arising from any use of the Services. Your violation of this Acceptable Use Policy may result in the suspension or termination of either your access to the Services and/or your account or other actions as detailed in the Services Agreement. MagnetMonster reserves the right, in our sole discretion, to update this policy from time to time.

Acceptable Use
The following constitute violations of this Acceptable Use Policy:

1. Using the Services to transmit or post any material that contains or contains links to nudity, pornography, adult content, sex, or extreme violence.

2. Using the Services to transmit or post any material that, intentionally or unintentionally, violates any applicable local, state, national or international law, or any rules or regulations promulgated thereunder.

3. Using the Services to harm, or attempt to harm, minors in any way.

4. Using the Services to transmit or post any material that harasses, threatens or encourages bodily harm or destruction of property.

5. Using the Services to make fraudulent misrepresentations or offers including, but not limited to, offers relating to “pyramid schemes” and “Ponzi schemes.”

6. Using the Services to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of MagnetMonster or another entity’s computer software or hardware, electronic communications system or telecommunications system, whether or not the intrusion results in the corruption or loss of data.

7. Using the Services to transmit or post any material that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to, the unauthorised copying and/or distribution of copyrighted material, the digitisation and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorised transmittal of copyrighted software.

8. Using the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent.

9. Reselling the Services without the prior written authorisation of MagnetMonster.

10. Using the Services for any activity that adversely affects the ability of other people or systems to use the Services or the Internet. This includes but is not limited to “denial of service” (DoS) attacks against another network, MagnetMonster or individual user. Interference with or disruption of other network users, network services or network equipment is prohibited.

Schedule 2 Hosting

NB: The Definitions contained in Clause 1 of this Agreement will apply to this Schedule.

Hosting

If requested by you, we may provide Hosting Services from time to time, in accordance with the Proposal and subject to the Charges.

Your responsibilities

You shall be responsible for the accuracy and completeness of the Materials.

Site content

You shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”) and will indemnify us in full in the event of a breach of this clause.

You acknowledge that we have no control over any content placed on the Software by visitors and do not purport to monitor the content of the Software. We reserve the right to remove content from the Software where we reasonably suspect such content is Inappropriate Content. We shall notify you if we become aware of any allegation that content in the Software may be Inappropriate Content.

We may include the statement “Powered by Accelerate Commerce Ltd” in the Software in a form to be agreed.

Software availability

We shall use reasonable endeavours to provide 99% service availability as set out in the Proposal, but will have no liability for any downtime caused by:

your act or omission or that of your agents;
your computer Hardware;
any failure by you to comply with the terms of the Agreement;
a force majeure event, as defined in the Agreement; or
domain name server issues outside our control.

Network downtime is measured from the time you or a third party hosting service notifies us by email or phone to the time the server can receive and transmit data.

We reserve the right to take the Software off-line to update it or fix problems at any time and will provide you with advance notice of any such update.

SCHEDULE 3

Part 1 SEO and Other Digital Marketing Services

NB: The definitions contained in Clause 1 of this Agreement will apply to this Schedule.

Unsuitable Content: any material or content that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party’s Intellectual Property Rights.

Virus: anything or device(including any software, code, file or programme) whose purpose or possible function is to deliberately disable a computer or network or impair or adversely affect its performance or prevent or hinder access to any programme or data or impair the operation of any programme or the reliability of any data including a computer virus, trojan horse, worm, logic bomb, back door or similar item.

Services

1.1 We shall:

provide the Services to include those set out in Part 2;
develop the SEO Pages in accordance with the Proposals or Statements of Work set out in the Proposal;
comply with your information and IT security measures as communicated to us when performing the Services;
perform the Services set out in Part 2,

all in accordance with the terms of this Agreement and any other instructions provided by you with the objective of enhancing and optimising the rankings and prominence of your Website(s) in the results pages of Internet search engines and any other objectives, as agreed between us from time to time.

1.2 You acknowledge and agree that we do not guarantee first position or consistent top ten positions for any particular keyword, phrase or search term as it is solely at the discretion of the search engines themselves to list a website.

You acknowledge that we have no control over the policies of search engines with respect to the type of websites and/or content that they accept or the way in which websites are ranked either now or in the future. As a result search engines may:

stop accepting submissions from us for an indefinite period of time with or without notice; or
cease to list a website at its discretion, however should a website not reappear within thirty (30) days of it not being listed then we will re-optimise the applicable website based on the current policies of the relevant search engine at a cost to be agreed between us,

and we shall not be liable to you for any such actions of search engines.

We are not responsible for changes made to the your Website by:

other parties; or
you in choosing to link to or obtain a link from a particular website without prior consultation with us,

that adversely affects the search engine rankings of the Website.

SEO Pages Content

1. We shall include in the SEO Pages any Materials and any other content developed pursuant to the Proposal or Statements of Work.

2. In order to provide you with our SEO:

we shall send you a pre-proposal questionnaire;
we shall present a Proposal and or Statements of Work;
you shall sign off the Proposal and or Statements of Work;
we shall agree key words between us.

3. We warrant, represent and undertake that all content (excluding the Materials) that we develop for the Deliverables pursuant to this Agreement do not contain unsuitable content. We shall notify you immediately if we become aware that any content in the Deliverables may be unsuitable content.‍

4. Acceptance Tests

Once we have completed the Services and/or the Deliverables, as the case may be where applicable, we shall carry out tests (“Acceptance Tests”) to determine whether the Services and/or the Deliverables conform to the Proposals or Statements of Work in all material respects.
If any aspect of the Deliverables or the Services fails to meet the Proposals or Statements of Work, we shall remedy the defects and resubmit the relevant aspect for Acceptance Tests promptly. If any such aspect fails to pass an Acceptance Test after three attempts (or any other number of attempts as we may agree in writing), those aspects shall be deemed to be incomplete. You shall be entitled to reject such aspects and terminate the Agreement immediately, upon providing written notice to us or accept such aspects, with a pro rate reduction in the Charges.
If the Acceptance Tests demonstrate that the aspect in question conforms fully to the Proposal or Statements of Work, you shall accept such aspects.

5. Client obligations

Solely for the purposes of us providing the Services, you agree to provide the following:

administrative or back-end access to your website(s) for analysis of its content and structure;
permission for us to make changes to your website(s) for the purpose of optimisation;
permission for us to communicate directly with any applicable third parties connected with your website (for example, your web designer) in order to provide the Services;
permission for us to access any client databases, including sensitive client data, for the purpose of newsletter emailing campaigns. Should you wish any client that is a member of your client database, not to be emailed or contacted, as part of a campaign, you must provide us with prior written notice;
access to existing traffic statistics for the your website in order for analysis and tracking purposes; and
where your website is lacking in textual content, you will provide additional text content in electronic format for the purpose of creating additional or richer web pages.

Part 2 Digital Marketing Services

Deliverables

1. Website Audit & Benchmark

We will provide the following, non-exhaustive list of services relating to website audit and benchmark and other digital marketing services:

Review and use your client database for the purpose of creating a newsletter emailing campaign;
Review of the current site (onsite) looking at URL structure, navigation, Meta data, page structure, content, internal linking, calls to action, site search, images/video, filenames/downloads, site speed, tracking and goals;
Review of current site (offsite) looking at the domain age, inbound links (authority, anchor text and depth of links), indexed pages, Google Universal exposure and selected competitor information;
Production of a prioritised list of both onsite and offsite recommendations which will need to be carried out either by you, your web design/development agency or by us;
There will also follow a benchmark initial report document. This will note down the current site tracking statistics and for a basis for future monthly reports to determine campaign progress and seasonal trends.

2. Keyword Research Report

This provides list of keywords that can bring highest volume of relevant traffic to the Website along with their search volume as well as benchmarks the position within the search engines of your site at the commencement of the campaign.

3. SEM (Search Engine Management) Analysis & Reporting

We will continuously monitor the effectiveness of our SEM campaign and send you traffic and rankings reports monthly if required under the Proposal or Statements of Work.

Services

4. On-Site Optimisation

We try to fix all the issues we have identified during Website audit, so that the Website works for your business and is able to convert relevant traffic into sales or leads. However this may require additional development work which will need to be charged outside of the contract and will be quoted for separately. As part of the SEM work we will modify the title tags, Meta tags, contents and other on-page factors (not code) of your Website to make it relevant to search engines (Google, Yahoo and Bing) for targeted keywords.

5. Pay Per Click Campaign Management

We will monitor and amend the Pay per Click (PPC) campaign in order to improve the click through rate of the campaign which in turn improves traffic and ultimately the conversion rate of the campaign, allowing for a better return on investment (ROl).

6. Off-Site Optimisation

We acquire/request/buy links from a vast array of Websites to improve the ranking potential of your Website in search engines and to rank for targeted keyword phrases. We develop and promote content (press releases, articles, blogs, link bait etc.) which help in getting additional traffic and links to your site and also helps in improving the conversion rate.

SCHEDULE 4

CREATIVE DESIGN SERVICES

In addition to the standard Terms and Conditions set out above, the following terms shall apply to all Print and Creative Design Services.

1. Designs

1.1 Copyright is retained by us on all design work including words, pictures, ideas, visuals and illustrations (unless specifically released in writing) and after all costs have been settled.

1.2 If a choice of design is presented, only one solution is deemed to be given by us as fulfilling the contract. All other designs remain our property, unless agreed in writing that this arrangement has been changed.

2. Design Credits

You agree to allow us to place a small credit on printed material, exhibition displays and/or advertisements. This will usually be in the form of a small logo or line of text placed towards the bottom of the page.

3. Revisions and Alterations

What is included in the scope of the project, and what is excluded from the scope of the project.

The customer also agrees that MagnetMonster holds no responsibility for any amendments made by any third party, before or after a design is published.

Unless otherwise agreed, MagnetMonster will complete ONE (1) large revision stage, and TWO (2) minor revision stages. Revision requests are to be made within FIVE (5) business days of receiving the proofs. If no revisions are requested within this time, it is assumed that the submitted proof is the accepted final. Any revisions made after this point are subject to additional fees at the hourly rate.

SCHEDULE 5

WEBSITE DESIGN AND DEVELOPMENT

In addition to the standard MASTER SERVICES AGREEMENT & Terms and Conditions set out above, the following terms shall apply to all Website Design and Development.

The following definitions shall apply to this Schedule, in addition to the definitions contained in clause 1 of the conditions:

Acceptance Tests: the internal tests carried out by us in relation to the Deliverables. Following this we will ask you to confirm in writing that the Deliverables meet your objectives and are approved.

Acceptance: the acceptance or deemed acceptance of the Site by you, pursuant to clause 2 of this Schedule.

Site: the website to be hosted, pursuant to these Conditions.

Site Software: the software for the Site commissioned by you.

Visitor: a visitor to the Site.

1.Scope of the project

We shall:

design, develop and deliver the Site in accordance with the Proposal or Statements of Work; and
provide the Services.
Development and Acceptance of Site
All sites created and provided by us are designed to work in the current version, and the version released prior to this, of the most widely used browsers. We do not guarantee the site working in all browsers.

2.2 Once we have completed the design and development of the Site we run a number of internal tests but then in accordance with the Proposal or Statements of Work, we shall run the Acceptance Tests. The procedures set out in this clause shall be repeated and any further development works will be agreed between us from time to time. The Acceptance Tests shall test compliance of the Site. The form and detail of such tests is set out in the Proposal or Statements of Work.

2.3 Acceptance of the Site shall occur when the Site has passed the Acceptance Tests. 2.4 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of yours, or by one of your sub-contractors or agents for whom we have no responsibility (Non-Supplier Defect), the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. We shall provide assistance reasonably requested by you in remedying any Non-Supplier Defect by supplying additional services or products. You shall pay us in full for all such additional services and products at our then current fees and prices.

2.5 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:

you use any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
you unreasonably delay the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which we are ready to commence running such Acceptance Tests or retests.
Site content

We shall update the Site with Materials provided from time to time by you. You shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights (“Inappropriate content”).

We will provide patches and bug fixes for issues included in a Statement of Work concerning website development reported within thirty (30) days following the date of Statement of Work completion.

All requests for bug fixes outside said thirty (30) day period are the sole responsibility of the Client, provided however, the bug has been evaluated by both parties and are confirmed as an error in MagnetMonster’s code, the bug will be fixed at no cost to the Client.

4. Inappropriate Content.

4.1 We will only have access to your server where you have granted us access as agreed.

4.2 We shall include only Materials on the Site. You acknowledge that we have no control over any content placed on the Site by Visitors and do not purport to monitor the content of the Site. We reserve the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. We shall notify you promptly if we become aware of any allegation that any content on the Site may be Inappropriate Content.

4.3 You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.

4.4 We may include the statement “Website Designed by MagnetMonster” on the home page of the Site in a form to be agreed.

5. Domain Names

5.1 When instructed to do so we will register the domain name for the site we have created.

5.2 You acknowledge that the contract for any domain name registered will be between you and the relevant third party.

5.3 We do not guarantee that we will be able to register any specifically requested domain name.

5.4 We do not give any warranty that the domain name you have requested us to register will not infringe any third party rights.

5.5 You are responsible for all costs incurred in registering a domain name for you.
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SCHEDULE 6

CLIENT OBLIGATIONS

1. To appoint, in writing, a sole representative with full authority to provide any necessary information and approvals that may be required by MagnetMonster (the “Client Representative”).

2. To ensure that Client’s personnel assigned to the project are available as may be reasonably required by MagnetMonster to more fully and efficiently complete the Services.

3. To attend and participate in scheduled calls and meetings;

4. To complete mutually agreed upon client responsibilities;

5. To review work in process on a regular basis and provide feedback to the personnel assigned by MagnetMonster on in-process and completed work;

6. To notify MagnetMonster immediately should Client require changes to the Services under the Statement of Work, at which time all outstanding amounts payable to MagnetMonster shall be invoiced to Client, and the parties shall, in writing and acting reasonably, amend the Statement of Work to reflect the required changes to the Services;

Client acknowledges that its timely participation and cooperation is necessary for MagnetMonster to provide the Services as anticipated in the applicable Statement(s) of Work. Client’s failure to provide necessary information, attend scheduled meetings and phone calls, provide feedback or participate or cooperate in any other reasonable manner will create delays, hinder the performance and results of the Services and impact the estimated cost and schedule detailed in the applicable Statement of Work.

If MagnetMonster believes that Client is not providing or carrying out the required Client obligations, MagnetMonster shall promptly, and in any event within ten (10) Business Days of becoming aware of the alleged deficiency, notify Client in writing of such deficiency. Each such Notice shall specify, in reasonable detail, the Client obligations that have not been met, what is required of Client, the employees of Client to whom such requirement relates, the date by which such requirement must be fulfilled, and the effect or result upon the Services and the Deliverables if such requirement is not fulfilled.

MagnetMonster is not responsible for delays, errors or omissions resulting from Client’s breach of Client’s Obligations and will not be liable for any claims related to materials, specifications, and information provided by Client to MagnetMonster for the Services.

Except as expressly set forth in this agreement, MagnetMonster’s services are provided “as is.”

MagnetMonster does not warrant that the services will be completely error-free, completely secure or uninterrupted. Services are reliant upon the workings and operability of third party providers, such as the internet or social media websites.

MagnetMonster shall not be liable to the client or any third party for any unavailability or inoperability of telecommunications systems, the internet, search engines, social media sites, technical malfunction, computer error, corruption or loss of information, or other injury, damage or disruption of any kind beyond the reasonable control of impact.

The client assumes all risks related to processing of transactions related to electronic commerce.

Customer Sign Off

Accelerate Commerce Ltd (UK) trading as MagnetMonster, and/or Magnet Monster PTE Ltd (SG) takes great pride in the quality of our work, and as such, will have a QA lead assigned to all technical projects. The engagement of internal Customer QA resources is also highly recommended. Accelerate Commerce Ltd (UK) trading as MagnetMonster, and/or Magnet Monster PTE Ltd (SG) is happy to work with a 3rd party QA team or with the Customer’s in house QA team. Accelerate Commerce Ltd (UK) trading as MagnetMonster, and/or Magnet Monster PTE Ltd (SG) will identify sign-off milestones of deliverables, features, and sprints during the roadmapping phase of the project. The Customer and their QA team will be responsible for ensuring that each milestone and the end product adhere to the agreed-upon requirements. Sign-off by the PoC will be delivered in writing upon completion of each milestone. If a written response is not received from the PoC within 5 working days - 2 weeks (as defined in the SOW) after completion of the applicable milestone and/or end product, deliverable shall be deemed as automatically approved by Customer.

THESE CONDITIONS WERE LAST UPDATED ON 19.06.23

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