Terms and Conditions

Terms and Condition on Sale Orders for Engage In-Health Limited

Terms and Conditions for the supply of Digital Marketing Services by Engage In-Health Limited (“Engage In-Health”) of 5 Merchant Square, London, W2 1AY

Definitions and Interpretation
1. In these terms and conditions the following definitions apply unless otherwise stated in the Order.
  
  ‘Brand Name’ means the brand name and trademarks proposed by Engage In-Health to the Client as part of the Services from time to time and the term Brand Name shall be construed accordingly;
  
  ‘Business Day’ means a day (other than Saturday, Sunday or public Holiday) when banksin London are open for business.
  ‘Business Hours’ means 9am to 5pm on a Business Day, or such other hours as notified to the Client by Engage InHealth from time to time;
  
  ‘Charges’ means the charges payable by the Client for the supply of the Services in accordance with clause 7 andincluding the Client budget (if applicable);
  
  ‘Client’ means the individual or business entity who purchases Services from the Company and whose details are setout in the Order.
  
  ‘Client Budget’ means the budget spent in respect of Online Services and Offline Services agreed between theClient and Engage In-Health;
  
  ‘Client Material’ means any material provided to Engage In-Health by the Client pursuant to these Terms to formpart of the Developed Website or otherwise to enable Engage In-Health to carry out the Services;
  ‘Contract’ means the contract between Engage In-Health and the Client for the supply of Services governed by theseTerms and the Order.
  
  ‘Deliverables’ means all documents, products and materials developed by the Supplier or its agents, contractorsand employees as part of or in relation to the Services in any form or media, including without limitation drawings,maps, plans, diagrams, designs, pictures, computer programs, data, specifications, reports, videos, clips sketches, email creatives and HTML builds.
  
  ‘Developed Material’ means material (primarily computer code and associated resources) that forms part of theDeveloped Website developed by Engage In-Health for the Client specifically for the purpose of the Client’s Order;
  
  ‘Developed Website’ means the website (being a desktop website, mobile website, tablet website, other internetbased software application or any combination thereof) described in the Functional Specification and comprising the Hosted Engage In-Health Material, the Third Party Material and the Developed Material;
  
  ‘Force Majeure Event’ means an event beyond the reasonable control of either party (Engage In-Health or theClient), including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order,rule, regulation or direction, accident, breakdown of plant or machinery, fire flood, storm or default of suppliers ofsubcontractors.
  
  ‘Functional Specification’ means the functional specification of the Services agreed between the parties and which shall accompany the Client’s Order;
  
  ‘Handover Date’ means the date on which Engage In-Health notifies to the Client that the Developed Website iscomplete and ready to be put into live operation;
  
  ‘Engage In-Health Materials’ means all materials, equipment, documents, products and other property of Engage In-Health;
  
  ‘Hosted Engage In-Health Material’ means material (primarily computer code and associated resources) thatforms part of the Developed Website developed and hosted by Engage In-Health (or Engage In-Health’s authorisedhosting provider) for use by Engage In-Health’s clients;
  
  ‘Initial Kick-Off Meeting’ – the first meeting arranged between Engage In-Health and the Client, this can be faceto-face, by e-mail, or by telephone.
  
  ‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights,trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or tosue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topographyrights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectualproperty rights, in each case whether registered or unregistered and including all applications for and renewals orextensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
  
  ‘Net Fees’ means the part of the Charges that relate solely to the Services provided directly by Engage In-Health, andfor the avoidance of doubt, excluding any element of the Charges relating to Services provided by third party suppliers;
  
  ‘Offline Services’ means the services described in clause 4;
  
  ‘Online Services’ means the services described in clause 3;
  
  ‘Order’ means the Client’s order for Services as set out in the Client's purchase order form, or the Client’s writtenacceptance of a quotation by Engage In-Health, as the case may be;
  
  ‘Quotation’ means the written quotation prepared by Engage In-Health which contains its proposals for providingServices to the Clients.
  
  ‘Services’ means the services to be provided to the Client by Engage In-Health consisting of the: 1) WebsiteDevelopment Services; 2) Online Services; and/or 3) Offline Services, each as detailed in the Order or FunctionalSpecification (as appropriate);
  
  ‘Services Commencement Date’ means the date on which Engage In-Health commences providing the Services;
  
  ‘Terms’ means the terms and conditions set out in this document; and
  
  ‘Third Party Material’ means material (primarily computer code and associated resources) that forms part of theDeveloped Website developed and/or and licensed to Engage In-Health by a third party.
  
  ‘Website Development Services’ means the design and development by Engage In-Health of a Developed Website.
2. Where these Terms use words in their singular form, they shall also be read to include the plural form of theword and vice versa. Where these conditions use words which denote a particular gender, they shall be alsoread to include all genders and vice versa.
3. The headings in this document are inserted for convenience only and shall not affect the construction andinterpretation of these Terms.
4. A reference to a statute or statutory provision is a reference to such statute or statutory provision asamended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislationmade under that statute or statutory provision, as amended or re-enacted.
Order Process
1. In order to purchase Services from Engage In-Health, the Client must submit a Purchase Order numberagainst the specific Engage In-Health work order supplied to the client outlining and detailing the scope ofservices.
2. The Purchase Order constitutes an offer by the Client to purchase Services in accordance with these Terms.The Client shall ensure that the terms of the Purchase Order and any relevant additional specification arecomplete and accurate.
3. No Contract shall exist between Engage In-Health and the Client until Engage In-Health receives the Purchaseorder.
4. The work order constitutes the agreement between Engage In-Health to provide the Services to the Client andor the Client to purchase those Services, in accordance with these Terms. The Client acknowledges that it hasnot relied on any statement, promise or representation made or given by or on behalf of Engage In-Healthwhich is not set out in the Contract.
5. Any samples, drawings, descriptive matter or advertising issued by Engage In-Health, and any descriptions,proposed ideas, case studies or illustrations contained in Engage In-Health’s catalogues or brochures or onEngage In-Health’s website, are issued or published for the sole purpose of giving an approximate idea of theServices described in them. They shall not form part of the Contract or have any contractual force.
6. These Terms apply to the Contract to the exclusion of any other terms that the Client seeks to impose orincorporate, or which are implied by trade, custom, practice or course of dealing.
7. Any quotation given by Engage In-Health outside of the work order shall not constitute a binding offer, and isonly valid for a period of 3 months from its date of issue, unless otherwise stated.
8. The Client hereby appoints Engage In-Health as supplier of the Services as described in the Order and theClient accepts and acknowledges that it may not at any time perform any part of the Services (or servicesthat are substantially similar to the Services) itself or procure them from a third party.
Online Services
1. This clause 3 applies when the Client has ordered Services in relation to one of the types of Online Servicesset out in clauses 3.3 to 3.8 The contents of those clauses shall apply to the Services if such Online Servicesare specified in the relevant Order.
2. General:
  1. With regards to Pharmaceutical Clients, Engage In-Health shall comply with all industry-specific codes, suchas the ABPI Code of Practice.
3. Large Project Functional Specification Development:
  1. Subject to clause 3.3.2, the Functional Specification in connection with a Developed Website will be agreedby the parties prior to the Purchase Order for such Developed Website being placed by the Client. In suchcases, the Client shall not be liable to pay any Charges in respect of the work carried out by Engage In-Healthin developing such Functional Specification.
  2. Where the Client has instructed or is considering instructing Engage In-Health to produce a particularlyextensive Developed Website, Engage In-Health may require that the Functional Specification in respect ofthat Developed Website be produced upfront as a separate Online Service. In such circumstances, the Clientshall be liable to pay the Charges in respect of Engage In-Health’s work in producing such FunctionalSpecification in accordance with the terms set out in the relevant Order.
4. Search Engine Optimisation (“SEO”):
  1. The Client confirms that:
    1. it has not at any time created on any website which is the subject of this Agreement: duplicate sites;duplicate pages or content; or hidden links, that it has also not undertaken any spamming activities orpurchased or otherwise acquired links, or any other online activities, which may harm the website’s rankingwithin any internet search engine or otherwise conflict with Engage In-Health’s efforts to provide the Services;or
    2. neither the Client nor any persons under the instruction of the Client (for example another agency carryingout services similar to the Services on the Client’s behalf) have done anything in conflict with or which mighthave a detrimental impact on the website’s search engine rankings or generally on Engage In-Health’sabilities to perform the Services under this Agreement. Such actions might include (but are not limited to) theremoval of paid links or the publishing of duplicate website material.
  2. As part of performing the Services in connection with SEO, Engage In-Health may carry out “Link Building”.Link Building is a service by which Engage In-Health provides internet search engines with appropriatetechnical signals to their ranking of internet resources. Engage In-Health uses a range of third partytechnology and social media elements needed to establish web authority and recognition.
  3. “Off-page” services involve associating the Clients’ website with web commodities including creativeinitiatives, integrating social media marketing, and certain Link Building techniques.
  4. Engage In-Health uses a range of Link Building tools and resources under its control that may be mobilisedfor the Clients initiative.
5. Hosting:
  1. The Client acknowledges and accepts that Engage In-Health cannot guarantee the availability of the hostedwebsite and does not accept any liability, whether direct or indirect, caused by any interruption to the hostingfacility. Engage In-Health will nevertheless use its reasonable endeavours and will act in accordance withgood industry practice in maintaining the levels of availability agreed with the Client for the hosted website.
  2. If agreed as part of an Order Engage In-Health shall migrate the hosting services to another server within onemonth of receipt of written notice from the Client of its requirement to migrate to a new hosting partner.
  3. The Client agrees that it shall not:
    1. do or include anything on its website which may be harmful, illegal, or obscene or otherwise be in breach ofany applicable laws or regulations including any search engine regulations, online and website regulations;
    2. use the Services in such a manner as to infringe the Intellectual Property Rights of Engage In-Health;
    3. use the Services for or in connection with any illegal or unethical marketing practice including but not limited to spamming; or
    4. take any action that may lead to an unreasonably large load on the networks or infrastructure of Engage InHealth.
6. Pay Per Click (“PPC”):
  1. PPC is a service by which Engage In-Health will establish and/or optimise paid for advertising internet basedsearch engine marketing campaigns for Clients and report summary of PPC tracking data. However,Pharmaceutical Clients must be aware that Engage In-Health will be subject to limitations based on the ABPIcodes and other codes that govern the pharmaceutical industry as stated in clause 3.2.
  2. “Establishment” of PPC means that Engage In-Health will either take control of an existing internet basedsearch engine marketing account(s) for the Clients (where the Client has a previously established account) orEngage In-Health will itself set-up a new internet based search engine marketing campaign for the Client, thatEngage In-Health will design and build itself.
  3. “Optimisation” of PPC means that Engage In-Health will manage the internet based search enginemarketing account(s) for the Client with the aim of maximising returns. A PPC Optimisation campaign mayinclude some or all of keyword management, bid management, match type strategy, search query analysis,site conversion analysis, ad copy testing, display advertising and affiliate management and competitormonitoring.
  4. Engage In-Health will use its reasonable endeavours to adhere to the Clients’ market regulations whereappropriate.
  5. Engage In-Health will provide regular reporting to the client as defined in the Work Order or as discussed inthe Initial kick off meeting.
7. Social Media Optimisation (“SMO”):
  1. Engage In-Health will be responsible for setting up and maintaining a social media account (e.g. Facebook,Twitter etc.) on behalf of the Client as described in the Order.
  2. By entering into the Contract the Client acknowledges that Engage In-Health has full responsibility to act onits behalf on the social media platforms as described in the Order. The Order will set out the generalparameters and any restrictions regarding Engage In-Health’s performance of the SMO Services as agreedwith the Client. Provided that Engage In-Health acts within the terms of the Order it shall not need to seek theClient’s approval for any content posted or activity undertaken on the Client’s behalf.
  3. Engage In-Health shall have no liability whatsoever in respect of postings or communications made with theClients approval as described in clause 3.7.2.
8. Online Media and E-mail Marketing – Buying Services Online from a Third Party Provider
  1. Engage In-Health shall plan and procure medical publisher advertisement placements and email marketingbroadcast positions via third party, GDPR compliant, opted-in e-mail database providers on behalf of theClient (“Bookings”). By providing a purchase order (“PO”), the Client confirms it wants to proceed with theBookings as per the media or email schedule accompanying such PO. No Bookings can be made on behalf ofthe Client without a valid PO.
  2. Engage In-Health will not be held responsible for the misplacement of advertisements or any errors made inrelation to a Booking by the publisher or creative agency concerned.
  3. The Client must provide Engage In-Health with at least six weeks’ notice of cancellation to cancel a Booking.Engage In-Health reserves the right to charge a reasonable cancellation charge (up to the total amount of theapplicable Charges) in respect of any Bookings cancelled with less than six weeks’ notice.
Offline Services
1. This clause 4 applies when the Client has ordered Services in relation to one of the types of Offline Servicesset out in clauses 4.3 to 4.5. The contents of those clauses shall apply to the Services if such Offline Servicesare specified in the relevant Order.
2. General:
  1. Engage In-Health will, at its option, replace or repair any materials it produces or provides to the Client as partof the Services (“Deliverables”) that are found to be defective, or refund the price thereof provided thatnotice is given to Engage In-Health in accordance with these Terms.
  2. Engage In-Health shall not be liable for any loss caused to Client’s goods whilst in Engage In-Health’spossession unless such loss may be caused by wilful recklessness of Engage In-Health’s employees oragents in which case Engage In-Health shall account to the Client for any monies that it receives under anyinsurance policy (Engage In-Health not being under any obligation to insure).
  3. Risk in any Deliverables shall pass to the Client at time of despatch to the Client. Title in any suchDeliverables shall pass to the Client on receipt by Engage In-Health of full payment for those Deliverables.
  4. If any claim is made against Engage In-Health that any Client Materials provided to Engage In-Health by theClient in connection with the Offline Services either infringe or their use or resale would infringe the patent,copyright, design, trademark or other industrial or intellectual property rights of any other person, then unlessthe claim arises from the use of any drawing, design or specification supplied by Engage In-Health, the Clientshall indemnify Engage In-Health against all loss, damages, costs and expenses awarded against or incurredby Engage In-Health in connection with the claim, or paid or agreed to be paid by the Client in settlement ofthe claim. In particular, it is stressed that the Client is responsible for all copy, slogans, words or methodssupplied or suggested by it to Engage In-Health, and also such items approved by it after suggestion byEngage In-Health. Such indemnity shall extend to claims for copyright, trademark or patent infringement, libelor other defamation.
  5. The Client further hereby indemnifies Engage In-Health in respect of all damage or injury occurring to anyperson, firm, company or property and against all actions, suits, claims, demands, charges or expenses inconnection therewith for which Engage In-Health may become liable in respect of any breach of contract bythe Client in respect of the provision of the Services.
  6. With regards to pharmaceutical clients, Engage In-Health shall comply with all industry-specific codes, suchas the ABPI Code of Practice.
3. Print Media Bookings:
  1. Engage In-Health shall plan and procure press advertisement placements on behalf of the Customer(“Bookings”). By providing a purchase order (“PO”), the Customer confirms it wants to proceed with theBookings as per the media schedule accompanying such PO. No Bookings can be made on behalf of theCustomer without a valid PO.
  2. Engage In-Health will not be held responsible for the misplacement of advertisements or any errors made inrelation to a Booking by the publisher or creative agency concerned.
  3. The Customer must provide Engage In-Health at least six weeks’ notice of cancellation to cancel a Booking.Engage In-Health reserves the right to charge a reasonable cancellation charge (up to the total amount of theapplicable Charges) in respect of any Bookings cancelled with less than six weeks’ notice.
4. Advertising Services:
  1. Engage In-Health guarantees that the Services supplied by it shall comply with each Order, provided thatEngage In-Health reserves the right to alter that specification of the Services (as it reasonably sees fit)without prior reference to the Customer so long as the Services shall comply with all known requirements ofthe Customer.
  2. Engage In-Health shall procure the promotion and advertising of the Customer’s products or services(including design and artwork services) as agreed in the Customer Budget.
  3. The Services shall encompass (but are not limited to) the following as more particularly described in therelevant Order (and all as agreed and charged at the rate agreed in the Customer Budget):
    1. the provision of advice in relation to any advertising and promotional campaign;
    2. the production work required to produce the Services including film production work, photography,recordings, block making, typesetting and print work;
    3. the preparation of packaging labels and cartons, exhibition and display material, booklets, sales letters,product publicity and other promotional materials or services; and
    4. all costs incurred in the despatch of advertising material to or from publishers and other media and otherspecial deliveries incurred in carrying out the Customer’s instructions and safeguarding the Customer’sinterests.
  4. The Customer shall inspect the Materials within forty eight hours after delivery and, unless the Customergives notice in Writing within that period specifying any defect in or other proper objection to the Services, itshall be conclusively presumed that the Customer has examined such Materials and found them to becomplete and in accordance with the Order in respect of which they were made in good order and condition,and fit for the purpose for which it is required.
  5. Engage In-Health reserves the right to charge for additional copies of such goods and materials.
  6. Engage In-Health shall endeavour to ensure that the Services comply with all terms and conditions of anymedia recognition agreement (including codes of advertising practice and conditions laid down by mediaproprietors and contractors) and the Customer hereby authorises Engage In-Health to make any variation oramendment it considers expedient to any wording, sounds, images or concept agreed between the Customerand Engage In-Health to comply with the same or any other legal requirements.
  7. Any illustrations, layouts, storyboards, visuals or mock-ups, etc. shall be regarded as approximate and areintended to represent a general idea of the Services only and shall not form part of any contract unless sospecified.
  8. Subject to clause 8, unless otherwise agreed all photography, image hire and model usage commissioned onbehalf of the Customer by the agency form a licence. This licence can only be used for duration of 12 monthsfrom date of first usage. Licences are only for general use (leaflet, brochure editorial and advertising). Web,viral, exhibitions, advertorial, outdoor, packaging, point of sale and trade advertising are not included.
  9. The Customer is responsible for all descriptive technical or proprietary aspects of the Services and shallindemnify Engage In-Health for any liability arising from a breach of this Agreement incurred by Engage InHealth as a result of performing the Services on the terms of any Order.
  10. The Customer is ultimately responsible for the trademark investigations including search and subsequenttrademark application for all conceptual ideas presented by Engage In-Health. This includes brand, range andproduct names proposed, brand and product identities, design concepts, advertisement concepts, packagingconcepts and any other creative or intellectual ideas Engage In-health may propose. Engage In-Health is alsonot responsible for any such costs associated with any search or applications.
  11. The Materials, including without limitation any proofs, are not colour calibrated by Engage In-Health andtherefore colour and resolution may vary when produced by third party printers. It is the Customer’sresponsibility to approve a full size, fully calibrated, high resolution proof and mock-up from any third partyprinter and ensure that material supplied by any third party printer corresponds with the Materials.
5. Media Services:
  1. Engage In-Health shall make such bookings and placements of advertising space, in any medium, and anyairtime with any broadcasting or information transmission or delivery organisation as agreed in the CustomerBudget.
  2. The Charges for the Services shall depend on the rate of charge prevailing at the date of transmission orpublication including any agreed commission payable to Engage In-Health.
  3. Engage In-Health shall not be liable to the Customer for any delay or omission in relation to (including withoutlimitation if arising in negligence) the transmission or publication of any advertisement.
  4. The Customer shall indemnify Engage In-Health against any costs, claims, proceedings, losses and expenses(including reasonable legal fees) arising out of or in connection with any material submitted by or on theCustomer’s behalf for publication or transmission or other exploitation in connection with the Services or inrespect of any allegation that any of the Customer’s products or services are harmful or defective.
Performance of the Services
1. Engage In-Health shall use its reasonable endeavours to meet any performance dates specified in the Orderor Functional Specification (as appropriate), and any target outcomes specified in the Client Budget, but any such dates or target outcomes shall be estimates only, due to the nature of services Engage In-Health has tooffer. Time shall not be of the essence for performance of the Services.
2. Engage In-Health shall have the right to make any changes to the Services which are necessary to complywith any applicable law or safety requirement, or which do not materially affect the nature or quality of theServices, and Engage In-Health shall notify the Client in any such event. Pharmaceutical clients should alsobe made aware that Engage In-Health must comply with all pharmaceutical industry-specific codes, such asthe ABPI Code of Practice, and these may result in limitations to the performance of Engage In-Health’sservices.
3. Engage In-Health warrants that the Developed Website will perform in accordance with the FunctionalSpecification for a period of three months after the Handover Date. This is provided that the warranty set outin this clause shall not apply to any defect or problem in, or which is solely caused by, any Third Party Materialincorporated into the Developed Website as agreed with the Client, or any delays caused by circumstancesbeyond Engage In-Health’s control.
Client's obligations
1. The Client shall:
  1. ensure that the terms of the Purchase Order and the work order Specification are complete and accurate;
  2. co-operate with Engage In-Health in all matters relating to the Services;
  3. provide Engage In-Health with such information and materials as Engage In-Health may reasonably require inorder to supply the Services, and ensure that such information is accurate in all material respects;
  4. obtain and maintain all necessary licences, permissions and consents which may be required before the dateon which the Services are to start;
  5. ensure that Engage In-Health is made aware of any agency relationships or anything another agency mighthave done that might impact on Engage In-Health’s ability to perform the Services;
  6. If Engage In-Health's performance of any of its obligations under the Contract is prevented or delayed by anyact or omission by the Client or failure by the Client to perform any relevant obligation (a “Client Default”):
  7. Engage In-Health shall, without limiting its other rights or remedies, have the right to suspend performance ofthe Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from theperformance of any of its obligations to the extent the Client Default prevents or delays Engage In-Health'sperformance of any of its obligations;
  8. Engage In-Health shall not be liable for any costs or losses sustained or incurred by the Client arising directlyor indirectly from Engage In-Health's failure or delay to perform any of its obligations as set out in this clause
  9. the Client shall reimburse Engage In-Health on written demand for any costs or losses sustained or incurredby Engage In-Health arising directly or indirectly from the Client Default.
2. The Client acknowledges and accepts that failure to comply with clauses 6 may affect the success of theServices for which Engage In-Health cannot be liable.
Price and Payment
1. Subject to the formation of a Contract, the Charges for the Services shall be as set out in the relevant workorder. Engage In-Health reserves the right to vary the price in relation to each Order by any reasonableamount attributable to:
  1. any alteration to the Services by reason of a variation or lack of the Client’s instructions in relation to eachOrder; and
  2. any variation of the rates of taxation or costs, third party charges, or fluctuations in foreign exchange rates orimport duty, significant increases in the costs of labour, materials or other costs involved in providing theServices, any change in delivery dates between the date of Order and the date of delivery of the Services orcompletion of payment.
2. Subject to clause 12.3, Engage In-Health shall be entitled to invoice the Client for the Charges as follows:
  1. in respect of any sums specified in the Work Order
3. A fixed charge of £850 per day will be issued to the Client by Engage In-Health for any subsequentamendments made after the Client’s first two rounds of amendments, unless otherwise stated or agreed inthe Functional Specification or Client Budget.
4. The Client shall pay each invoice submitted by Engage In-Health in full and in cleared funds to a bankaccount nominated in writing by Engage In-Health within the number of days specified in the Order or, if notime period for payment is specified in the Order, thirty (30) days of the date of the invoice. Time for paymentshall be of the essence in the Contract.
5. All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added taxchargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under theContract by Engage In-Health to the Client, the Client shall, on receipt of a valid VAT invoice from Engage InHealth, pay to Engage In-Health such additional amounts in respect of VAT as are chargeable on the supply ofthe Services at the same time as payment is due for the supply of the Services.
6. Without limiting any other right or remedy of Engage In-Health, if the Client fails to make any payment due toEngage In-Health under the Contract by the due date for payment (the “Due Date”), Engage In-Health shallhave the right to charge interest on the overdue amount at the rate of four per cent per annum above thethen current HSBC Bank Plc's base rate accruing on a daily basis from the Due Date until the date of actualpayment of the overdue amount, whether before or after judgment, and compounding quarterly.
7. The Client shall pay all amounts due under the Contract in full without any deduction or withholding except asrequired by law and the Client shall not be entitled to assert any credit, set-off or counterclaim againstEngage In-Health in order to justify withholding payment of any such amount in whole or in part. Engage InHealth may, without limiting its other rights or remedies, set off any amount owing to it by the Client againstany amount payable by Engage In-Health to the Client.
Intellectual Property Rights
1. Where the Services include Website Development Services:
  1. All Intellectual Property Rights in the Developed Material shall be owned by Engage In-Health unlessotherwise stated. Following full payment of the Charges in accordance with clause 10, Engage In-Health shallgrant to the Client a non-exclusive, perpetual, royalty free license to use the Developed Material solely for thepurposes of hosting and maintaining the Developed Website;
  2. the Hosted Engage In-Health Material and Third Party Material shall be licensed to the Client as follows:
    1. in relation to the Hosted Engage In-Health Material, a non-exclusive, personal, non-transferable licence to usesuch Hosted Engage In-Health Material for the purpose of hosting and maintaining the Developed Website,provided that such Hosted Engage In-Health Material remains hosted by Engage In-Health or another hostingprovider as notified to the Client by Engage In-Health from time to time; and
    2. in relation to the Third Party Material, a licence to use such Third Party Material in accordance with clause8.1.4 below;
  3. the Client shall not copy, modify, or disclose to any third party any of the Hosted Engage In-Health Materialunder any circumstances;
  4. the Client accepts that, in respect of any Third Party Material, the Client's use of any such IntellectualProperty Rights is conditional on Engage In-Health obtaining a written licence from the relevant licensor onsuch terms that will entitle Engage In-Health to license such rights to the Client. The Client shall comply withthe terms of any such licence and any requirements or conditions set out therein; and
  5. the Client grants to Engage In-Health a non-exclusive licence to use the Client Material as reasonablyrequired by Engage In-Health to perform the Services and develop the Developed Website.
2. Where the Services include Online Services or Offline Services:
  1. all Intellectual Property Rights in brand design, artwork, logos, paid search, organic search, banners, websitedesign, artwork and concepts for adverts (both for television and printed press) created exclusively byEngage In-Health for the Client pursuant to either Online Services or Offline Services shall, following fullpayment of the Charges in accordance with clause 8, be owned exclusively by the Client.
  2. subject to clause 8.2.1, all other Intellectual Property Rights arising out of or in connection with the OnlineServices or Offline Services shall be owned exclusively by Engage In-Health or its licensors.
Revision to Work Order
1. Either party may request a revision to the Work order, resulting in a subsequent change to the Servicesprovided under the Contract, provided that this revision is given in sufficient detail to allow the receiving partyto respond in accordance with this clause 9. This is explained in detail below.
2. The party which receives the request for revision shall within ten (10) Business Days respond to the requestfor revision with a written estimate of costs for or cost implications (as applicable) and time involved incarrying out or incorporating the change referred to in the request. (the “Revision”) (as applicable) (which inrelation to both the costs for and time involved in carrying out the Change shall be reasonable in all thecircumstances) and any implications the change will have on the performance of the Services and/orproduction of the Developed Website.
3. Unless the party which receives the request for Change notifies the requesting party within ten (10) BusinessDays that it does not wish to proceed (and the Client shall not unreasonably refuse such a request fromEngage In-Health), the parties shall negotiate in good faith to implement such Change, and if such Change isagreed a CCN signed by the Client and by Engage In-Health shall constitute an amendment to the Contract.
4. As a means of preventing delay in the operations of Engage In-Health’s business, once the client hassubmitted two successful requests for review the client will be charged a fixed rate of £850 for every furtherrevision amendment made. This is compliant with Clauses 3.3.2 and 7.4.
5. A request for the revision of the Work Order shall contain (but need not be limited to) the following:
  1. the originator of the Change and date of the request or recommendation for the Change;
  2. the reason for the Change;
  3. full details of the Change including any specifications;
  4. price, if any, for the Change (or impact on the Charges); and any other information as the other party mayreasonably request.
6. Until such time as a Change is made in accordance with the provisions above, the Client and Engage InHealth shall, unless otherwise agreed in writing, continue to perform the Contract in compliance with itsterms and the Functional Specification prior to such Change.
7. Any discussions which may take place between the Client and Engage In-Health in connection with a requestor recommendation before the authorisation of a resultant Change shall be without prejudice to the rights ofeither party.
Confidentiality
1. A party (“Receiving Party”) 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 disclosedto the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, andany other confidential information concerning the Disclosing Party's business or its products or its serviceswhich the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidentialinformation to such of its employees, agents or subcontractors as need to know it for the purpose ofdischarging the Receiving Party's obligations under the Contract, and shall ensure that such employees,agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind theReceiving Party. This clause shall survive termination of the Contract.
Liability
1. Nothing in these Terms shall limit or exclude Engage In-Health’s liability for:
  1. death or personal injury caused by its negligence, or the negligence of its employees, agents orsubcontractors;
  2. fraud or fraudulent misrepresentation; or
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quietpossession).
2. Subject to clause 11.1:
  1. Engage In-Health shall under no circumstances whatsoever be liable to the Client (including pursuant to anindemnity), whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any lossof profit, or any indirect or consequential loss arising under or in connection with the Contract; and
  2. Engage In-Health’s total liability to the Client (including pursuant to an indemnity) in respect of all lossesarising under or in connection with the Contract, whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise, shall in no circumstances exceed a sum equal to the total Net Fees received byEngage In-Health in that calendar year.
3. Except as set out in these Terms, all warranties, conditions and other terms implied by statute or commonlaw are, to the fullest extent permitted by law, excluded from the Contract.
4. Both parties shall use their reasonable endeavours to mitigate any losses arising out of or in connection withthe Contract.
5. Without limitation to clause 11.3, where Engage In-Health provides advice in relation to any issue inconnection with the Services (including without limitation any advice relating to website design, searchengine optimisation or analytics) then the Client acknowledges that it is solely responsible for any actiontaken (or not taken) as a result of that advice, and that Engage In-Health does not make any warranty orrepresentation that the implementation or following of that advice will necessarily result in any particularoutcome or result.
6. This clause 11 shall survive termination of the Contract.
Termination
1. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect bygiving written notice to the other party if:
  1. the other party commits a material breach of the Contract and (if such a breach is remediable) fails toremedy that breach within five days of that party being notified in writing of the breach
  2. the other party stops trading or gets into a position whereby it cannot pay its debts and/ or an insolvencysituation arises (for example a receiver, liquidator or administrator, trustee or someone similar is appointedover any of its assets or it proposes to make any arrangement with its creditors or goes into liquidation); or
  3. any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subjectthat has an effect equivalent or similar to any of the events mentioned in clause 12.1.2
2. Without limiting its other rights or remedies, Engage In-Health may terminate the contract without any liabilityto the Client with immediate effect by giving written notice to the Client if the Client fails to pay any amountdue under any Contract on the due date for payment.
3. Without limiting its other rights or remedies, each party shall have the right to terminate the Contract bygiving the other party 30 days written notice. Where the Client has ordered Website Development Servicesand a Developed Website is to be produced, the full amount of the Charges in respect of the DevelopedWebsite shall fall due and payable by the Client on the date of termination.
4. Without limiting it other right or remedies, Engage In-Health shall have the right to suspend provision of theServices Under the Contract or any other contract between the Client and Engage In-Health if the Clientbecomes subject to any of the events listed in clause 12.1.2, or Engage In-Health reasonably believes thatthe Client is about to become subject to any of them, or if the Client fails to pay any amount due under anyContract on the due date for payment.
Consequences of Termination
1. On termination of the Contract for any reason:
  1. the Client shall immediately pay to Engage In-Health all of Engage In-Health's outstanding unpaid invoicesand interest and, in respect of Services supplied but for which no invoice has been submitted, Engage InHealth shall submit an invoice, which shall be payable by the Client immediately on receipt;
  2. the Client shall return all of the Engage In-Health Materials and any Developed Materials which have notbeen fully paid for. If the Client fails to do so, then Engage In-Health may enter the Client's premises and takepossession of them. Until they have been returned, the Client shall be solely responsible for their safekeeping and will not use them for any purpose not connected with this Contract;
  3. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not beaffected, including the right to claim damages in respect of any breach of the Contract which existed at orbefore the date of termination or expiry; and
  4. clauses which expressly or by implication have effect after termination shall continue in full force and effect.
2. Following termination of this Agreement Engage In-Health reserves the right to charge the Client in fullfor any costs associated with compiling a handover file for another agency if so requested by the Client.
General
1. Force majeure:
  1. For the purposes of each Contract, “Force Majeure Event” means an event beyond the reasonable controlof Engage In-Health including but not limited to strikes, lock-outs or other industrial disputes (whetherinvolving the workforce of Engage In-Health or any other party), failure of a utility service or transport network,act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order,rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default ofsuppliers or subcontractors.
  2. Engage In-Health shall not be liable to the Client as a result of any delay or failure to perform its obligationsunder this Contract as a result of a Force Majeure Event.
  3. If the Force Majeure Event prevents Engage In-Health from providing any of the Services for more than twoweeks, Engage In-Health shall, without limiting its other rights or remedies, have the right to terminate theaffected Contract(s) immediately by giving written to the Client.
2. Assignment and subcontracting:
  1. Engage In-Health may at any time assign, transfer, charge, subcontract or deal in any other manner with all orany of its rights under the Contract and may subcontract or delegate in any manner any or all of itsobligations under the Contract to any third party or agent.
  2. The Client shall not, without the prior written consent of Engage In-Health, assign, transfer, charge,subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
3. Notices:
  1. Any notice or other communication required to be given to a party under or in connection with this Contractshall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post,recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) itsprincipal place of business, or sent by fax to the other party's main fax number.
  2. Any notice or other communication shall be deemed to have been duly received if delivered personally, whenleft at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00am onthe second Business Day after posting, or if delivered by commercial courier, on the date and at the time thatthe courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
  3. This clause 14.3 shall not apply to the service of any proceedings or other documents in any legal action. Forthe purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice givenunder this Contract shall not be validly served if sent by e-mail.
4. Waiver:
  1. A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be awaiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedyunder the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude orrestrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict thefurther exercise of that or any other right or remedy.
  2. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not excluderights provided by law.
5. Severance:
  1. If a court or any other competent authority finds that any provision of the Contract (or part of any provision) isinvalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemeddeleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
  2. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if somepart of it were deleted, the provision shall apply with the minimum modification necessary to make it legal,valid and enforceable.
6. No partnership:
  1. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of anykind between any of the parties, nor constitute any party the agent of another party for any purpose. No partyshall have authority to act as agent for, or to bind, the other party in any way.
7. Third parties:
  1. A person who is not a party to the Contract shall not have any rights under or in connection with it.
8. Variation:
  1. Except as set out in these Terms, any variation, including the introduction of any additional terms andconditions, to the Contract, shall only be binding when agreed in writing and signed by Engage In-Health.
9. Governing law and jurisdiction:
  1. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter orformation (including non-contractual disputes or claims), shall be governed by, and construed in accordancewith, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England andWales.

Terms and Condition on Sale Orders for Engage In-Health Limited

Terms and Conditions for the supply of Digital Marketing Services by Engage In-Health Limited (“Engage In-Health”) of 5 Merchant Square, London, W2 1AY

Definitions and Interpretation

In these terms and conditions the following definitions apply unless otherwise stated in the Order.

‘Brand Name’ means the brand name and trademarks proposed by Engage In-Health to the Client as part of the Services from time to time and the term Brand Name shall be construed accordingly;

‘Business Day’ means a day (other than Saturday, Sunday or public Holiday) when banksin London are open for business.
‘Business Hours’ means 9am to 5pm on a Business Day, or such other hours as notified to the Client by Engage InHealth from time to time;

‘Charges’ means the charges payable by the Client for the supply of the Services in accordance with clause 7 andincluding the Client budget (if applicable);

‘Client’ means the individual or business entity who purchases Services from the Company and whose details are setout in the Order.

‘Client Budget’ means the budget spent in respect of Online Services and Offline Services agreed between theClient and Engage In-Health;

‘Client Material’ means any material provided to Engage In-Health by the Client pursuant to these Terms to formpart of the Developed Website or otherwise to enable Engage In-Health to carry out the Services;
‘Contract’ means the contract between Engage In-Health and the Client for the supply of Services governed by theseTerms and the Order.

‘Deliverables’ means all documents, products and materials developed by the Supplier or its agents, contractorsand employees as part of or in relation to the Services in any form or media, including without limitation drawings,maps, plans, diagrams, designs, pictures, computer programs, data, specifications, reports, videos, clips sketches, email creatives and HTML builds.

‘Developed Material’ means material (primarily computer code and associated resources) that forms part of theDeveloped Website developed by Engage In-Health for the Client specifically for the purpose of the Client’s Order;

‘Developed Website’ means the website (being a desktop website, mobile website, tablet website, other internetbased software application or any combination thereof) described in the Functional Specification and comprising the Hosted Engage In-Health Material, the Third Party Material and the Developed Material;

‘Force Majeure Event’ means an event beyond the reasonable control of either party (Engage In-Health or theClient), including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order,rule, regulation or direction, accident, breakdown of plant or machinery, fire flood, storm or default of suppliers ofsubcontractors.

‘Functional Specification’ means the functional specification of the Services agreed between the parties and which shall accompany the Client’s Order;

‘Handover Date’ means the date on which Engage In-Health notifies to the Client that the Developed Website iscomplete and ready to be put into live operation;

‘Engage In-Health Materials’ means all materials, equipment, documents, products and other property of Engage In-Health;

‘Hosted Engage In-Health Material’ means material (primarily computer code and associated resources) thatforms part of the Developed Website developed and hosted by Engage In-Health (or Engage In-Health’s authorisedhosting provider) for use by Engage In-Health’s clients;

‘Initial Kick-Off Meeting’ – the first meeting arranged between Engage In-Health and the Client, this can be faceto-face, by e-mail, or by telephone.

‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights,trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or tosue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topographyrights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectualproperty rights, in each case whether registered or unregistered and including all applications for and renewals orextensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

‘Net Fees’ means the part of the Charges that relate solely to the Services provided directly by Engage In-Health, andfor the avoidance of doubt, excluding any element of the Charges relating to Services provided by third party suppliers;

‘Offline Services’ means the services described in clause 4;

‘Online Services’ means the services described in clause 3;

‘Order’ means the Client’s order for Services as set out in the Client's purchase order form, or the Client’s writtenacceptance of a quotation by Engage In-Health, as the case may be;

‘Quotation’ means the written quotation prepared by Engage In-Health which contains its proposals for providingServices to the Clients.

‘Services’ means the services to be provided to the Client by Engage In-Health consisting of the: 1) WebsiteDevelopment Services; 2) Online Services; and/or 3) Offline Services, each as detailed in the Order or FunctionalSpecification (as appropriate);

‘Services Commencement Date’ means the date on which Engage In-Health commences providing the Services;

‘Terms’ means the terms and conditions set out in this document; and

‘Third Party Material’ means material (primarily computer code and associated resources) that forms part of theDeveloped Website developed and/or and licensed to Engage In-Health by a third party.

‘Website Development Services’ means the design and development by Engage In-Health of a Developed Website.
Where these Terms use words in their singular form, they shall also be read to include the plural form of theword and vice versa. Where these conditions use words which denote a particular gender, they shall be alsoread to include all genders and vice versa.
The headings in this document are inserted for convenience only and shall not affect the construction andinterpretation of these Terms.
A reference to a statute or statutory provision is a reference to such statute or statutory provision asamended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislationmade under that statute or statutory provision, as amended or re-enacted.

Order Process

In order to purchase Services from Engage In-Health, the Client must submit a Purchase Order numberagainst the specific Engage In-Health work order supplied to the client outlining and detailing the scope ofservices.
The Purchase Order constitutes an offer by the Client to purchase Services in accordance with these Terms.The Client shall ensure that the terms of the Purchase Order and any relevant additional specification arecomplete and accurate.
No Contract shall exist between Engage In-Health and the Client until Engage In-Health receives the Purchaseorder.
The work order constitutes the agreement between Engage In-Health to provide the Services to the Client andor the Client to purchase those Services, in accordance with these Terms. The Client acknowledges that it hasnot relied on any statement, promise or representation made or given by or on behalf of Engage In-Healthwhich is not set out in the Contract.
Any samples, drawings, descriptive matter or advertising issued by Engage In-Health, and any descriptions,proposed ideas, case studies or illustrations contained in Engage In-Health’s catalogues or brochures or onEngage In-Health’s website, are issued or published for the sole purpose of giving an approximate idea of theServices described in them. They shall not form part of the Contract or have any contractual force.
These Terms apply to the Contract to the exclusion of any other terms that the Client seeks to impose orincorporate, or which are implied by trade, custom, practice or course of dealing.
Any quotation given by Engage In-Health outside of the work order shall not constitute a binding offer, and isonly valid for a period of 3 months from its date of issue, unless otherwise stated.
The Client hereby appoints Engage In-Health as supplier of the Services as described in the Order and theClient accepts and acknowledges that it may not at any time perform any part of the Services (or servicesthat are substantially similar to the Services) itself or procure them from a third party.

Online Services

This clause 3 applies when the Client has ordered Services in relation to one of the types of Online Servicesset out in clauses 3.3 to 3.8 The contents of those clauses shall apply to the Services if such Online Servicesare specified in the relevant Order.
General:
1. With regards to Pharmaceutical Clients, Engage In-Health shall comply with all industry-specific codes, suchas the ABPI Code of Practice.
Large Project Functional Specification Development:
1. Subject to clause 3.3.2, the Functional Specification in connection with a Developed Website will be agreedby the parties prior to the Purchase Order for such Developed Website being placed by the Client. In suchcases, the Client shall not be liable to pay any Charges in respect of the work carried out by Engage In-Healthin developing such Functional Specification.
2. Where the Client has instructed or is considering instructing Engage In-Health to produce a particularlyextensive Developed Website, Engage In-Health may require that the Functional Specification in respect ofthat Developed Website be produced upfront as a separate Online Service. In such circumstances, the Clientshall be liable to pay the Charges in respect of Engage In-Health’s work in producing such FunctionalSpecification in accordance with the terms set out in the relevant Order.
Search Engine Optimisation (“SEO”):
1. The Client confirms that:
  1. it has not at any time created on any website which is the subject of this Agreement: duplicate sites;duplicate pages or content; or hidden links, that it has also not undertaken any spamming activities orpurchased or otherwise acquired links, or any other online activities, which may harm the website’s rankingwithin any internet search engine or otherwise conflict with Engage In-Health’s efforts to provide the Services;or
  2. neither the Client nor any persons under the instruction of the Client (for example another agency carryingout services similar to the Services on the Client’s behalf) have done anything in conflict with or which mighthave a detrimental impact on the website’s search engine rankings or generally on Engage In-Health’sabilities to perform the Services under this Agreement. Such actions might include (but are not limited to) theremoval of paid links or the publishing of duplicate website material.
2. As part of performing the Services in connection with SEO, Engage In-Health may carry out “Link Building”.Link Building is a service by which Engage In-Health provides internet search engines with appropriatetechnical signals to their ranking of internet resources. Engage In-Health uses a range of third partytechnology and social media elements needed to establish web authority and recognition.
3. “Off-page” services involve associating the Clients’ website with web commodities including creativeinitiatives, integrating social media marketing, and certain Link Building techniques.
4. Engage In-Health uses a range of Link Building tools and resources under its control that may be mobilisedfor the Clients initiative.
Hosting:
1. The Client acknowledges and accepts that Engage In-Health cannot guarantee the availability of the hostedwebsite and does not accept any liability, whether direct or indirect, caused by any interruption to the hostingfacility. Engage In-Health will nevertheless use its reasonable endeavours and will act in accordance withgood industry practice in maintaining the levels of availability agreed with the Client for the hosted website.
2. If agreed as part of an Order Engage In-Health shall migrate the hosting services to another server within onemonth of receipt of written notice from the Client of its requirement to migrate to a new hosting partner.
3. The Client agrees that it shall not:
  1. do or include anything on its website which may be harmful, illegal, or obscene or otherwise be in breach ofany applicable laws or regulations including any search engine regulations, online and website regulations;
  2. use the Services in such a manner as to infringe the Intellectual Property Rights of Engage In-Health;
  3. use the Services for or in connection with any illegal or unethical marketing practice including but not limited to spamming; or
  4. take any action that may lead to an unreasonably large load on the networks or infrastructure of Engage InHealth.
Pay Per Click (“PPC”):
1. PPC is a service by which Engage In-Health will establish and/or optimise paid for advertising internet basedsearch engine marketing campaigns for Clients and report summary of PPC tracking data. However,Pharmaceutical Clients must be aware that Engage In-Health will be subject to limitations based on the ABPIcodes and other codes that govern the pharmaceutical industry as stated in clause 3.2.
2. “Establishment” of PPC means that Engage In-Health will either take control of an existing internet basedsearch engine marketing account(s) for the Clients (where the Client has a previously established account) orEngage In-Health will itself set-up a new internet based search engine marketing campaign for the Client, thatEngage In-Health will design and build itself.
3. “Optimisation” of PPC means that Engage In-Health will manage the internet based search enginemarketing account(s) for the Client with the aim of maximising returns. A PPC Optimisation campaign mayinclude some or all of keyword management, bid management, match type strategy, search query analysis,site conversion analysis, ad copy testing, display advertising and affiliate management and competitormonitoring.
4. Engage In-Health will use its reasonable endeavours to adhere to the Clients’ market regulations whereappropriate.
5. Engage In-Health will provide regular reporting to the client as defined in the Work Order or as discussed inthe Initial kick off meeting.
Social Media Optimisation (“SMO”):
1. Engage In-Health will be responsible for setting up and maintaining a social media account (e.g. Facebook,Twitter etc.) on behalf of the Client as described in the Order.
2. By entering into the Contract the Client acknowledges that Engage In-Health has full responsibility to act onits behalf on the social media platforms as described in the Order. The Order will set out the generalparameters and any restrictions regarding Engage In-Health’s performance of the SMO Services as agreedwith the Client. Provided that Engage In-Health acts within the terms of the Order it shall not need to seek theClient’s approval for any content posted or activity undertaken on the Client’s behalf.
3. Engage In-Health shall have no liability whatsoever in respect of postings or communications made with theClients approval as described in clause 3.7.2.
Online Media and E-mail Marketing – Buying Services Online from a Third Party Provider
1. Engage In-Health shall plan and procure medical publisher advertisement placements and email marketingbroadcast positions via third party, GDPR compliant, opted-in e-mail database providers on behalf of theClient (“Bookings”). By providing a purchase order (“PO”), the Client confirms it wants to proceed with theBookings as per the media or email schedule accompanying such PO. No Bookings can be made on behalf ofthe Client without a valid PO.
2. Engage In-Health will not be held responsible for the misplacement of advertisements or any errors made inrelation to a Booking by the publisher or creative agency concerned.
3. The Client must provide Engage In-Health with at least six weeks’ notice of cancellation to cancel a Booking.Engage In-Health reserves the right to charge a reasonable cancellation charge (up to the total amount of theapplicable Charges) in respect of any Bookings cancelled with less than six weeks’ notice.

Offline Services

This clause 4 applies when the Client has ordered Services in relation to one of the types of Offline Servicesset out in clauses 4.3 to 4.5. The contents of those clauses shall apply to the Services if such Offline Servicesare specified in the relevant Order.
General:
1. Engage In-Health will, at its option, replace or repair any materials it produces or provides to the Client as partof the Services (“Deliverables”) that are found to be defective, or refund the price thereof provided thatnotice is given to Engage In-Health in accordance with these Terms.
2. Engage In-Health shall not be liable for any loss caused to Client’s goods whilst in Engage In-Health’spossession unless such loss may be caused by wilful recklessness of Engage In-Health’s employees oragents in which case Engage In-Health shall account to the Client for any monies that it receives under anyinsurance policy (Engage In-Health not being under any obligation to insure).
3. Risk in any Deliverables shall pass to the Client at time of despatch to the Client. Title in any suchDeliverables shall pass to the Client on receipt by Engage In-Health of full payment for those Deliverables.
4. If any claim is made against Engage In-Health that any Client Materials provided to Engage In-Health by theClient in connection with the Offline Services either infringe or their use or resale would infringe the patent,copyright, design, trademark or other industrial or intellectual property rights of any other person, then unlessthe claim arises from the use of any drawing, design or specification supplied by Engage In-Health, the Clientshall indemnify Engage In-Health against all loss, damages, costs and expenses awarded against or incurredby Engage In-Health in connection with the claim, or paid or agreed to be paid by the Client in settlement ofthe claim. In particular, it is stressed that the Client is responsible for all copy, slogans, words or methodssupplied or suggested by it to Engage In-Health, and also such items approved by it after suggestion byEngage In-Health. Such indemnity shall extend to claims for copyright, trademark or patent infringement, libelor other defamation.
5. The Client further hereby indemnifies Engage In-Health in respect of all damage or injury occurring to anyperson, firm, company or property and against all actions, suits, claims, demands, charges or expenses inconnection therewith for which Engage In-Health may become liable in respect of any breach of contract bythe Client in respect of the provision of the Services.
6. With regards to pharmaceutical clients, Engage In-Health shall comply with all industry-specific codes, suchas the ABPI Code of Practice.
Print Media Bookings:
1. Engage In-Health shall plan and procure press advertisement placements on behalf of the Customer(“Bookings”). By providing a purchase order (“PO”), the Customer confirms it wants to proceed with theBookings as per the media schedule accompanying such PO. No Bookings can be made on behalf of theCustomer without a valid PO.
2. Engage In-Health will not be held responsible for the misplacement of advertisements or any errors made inrelation to a Booking by the publisher or creative agency concerned.
3. The Customer must provide Engage In-Health at least six weeks’ notice of cancellation to cancel a Booking.Engage In-Health reserves the right to charge a reasonable cancellation charge (up to the total amount of theapplicable Charges) in respect of any Bookings cancelled with less than six weeks’ notice.
Advertising Services:
1. Engage In-Health guarantees that the Services supplied by it shall comply with each Order, provided thatEngage In-Health reserves the right to alter that specification of the Services (as it reasonably sees fit)without prior reference to the Customer so long as the Services shall comply with all known requirements ofthe Customer.
2. Engage In-Health shall procure the promotion and advertising of the Customer’s products or services(including design and artwork services) as agreed in the Customer Budget.
3. The Services shall encompass (but are not limited to) the following as more particularly described in therelevant Order (and all as agreed and charged at the rate agreed in the Customer Budget):
  1. the provision of advice in relation to any advertising and promotional campaign;
  2. the production work required to produce the Services including film production work, photography,recordings, block making, typesetting and print work;
  3. the preparation of packaging labels and cartons, exhibition and display material, booklets, sales letters,product publicity and other promotional materials or services; and
  4. all costs incurred in the despatch of advertising material to or from publishers and other media and otherspecial deliveries incurred in carrying out the Customer’s instructions and safeguarding the Customer’sinterests.
4. The Customer shall inspect the Materials within forty eight hours after delivery and, unless the Customergives notice in Writing within that period specifying any defect in or other proper objection to the Services, itshall be conclusively presumed that the Customer has examined such Materials and found them to becomplete and in accordance with the Order in respect of which they were made in good order and condition,and fit for the purpose for which it is required.
5. Engage In-Health reserves the right to charge for additional copies of such goods and materials.
6. Engage In-Health shall endeavour to ensure that the Services comply with all terms and conditions of anymedia recognition agreement (including codes of advertising practice and conditions laid down by mediaproprietors and contractors) and the Customer hereby authorises Engage In-Health to make any variation oramendment it considers expedient to any wording, sounds, images or concept agreed between the Customerand Engage In-Health to comply with the same or any other legal requirements.
7. Any illustrations, layouts, storyboards, visuals or mock-ups, etc. shall be regarded as approximate and areintended to represent a general idea of the Services only and shall not form part of any contract unless sospecified.
8. Subject to clause 8, unless otherwise agreed all photography, image hire and model usage commissioned onbehalf of the Customer by the agency form a licence. This licence can only be used for duration of 12 monthsfrom date of first usage. Licences are only for general use (leaflet, brochure editorial and advertising). Web,viral, exhibitions, advertorial, outdoor, packaging, point of sale and trade advertising are not included.
9. The Customer is responsible for all descriptive technical or proprietary aspects of the Services and shallindemnify Engage In-Health for any liability arising from a breach of this Agreement incurred by Engage InHealth as a result of performing the Services on the terms of any Order.
10. The Customer is ultimately responsible for the trademark investigations including search and subsequenttrademark application for all conceptual ideas presented by Engage In-Health. This includes brand, range andproduct names proposed, brand and product identities, design concepts, advertisement concepts, packagingconcepts and any other creative or intellectual ideas Engage In-health may propose. Engage In-Health is alsonot responsible for any such costs associated with any search or applications.
11. The Materials, including without limitation any proofs, are not colour calibrated by Engage In-Health andtherefore colour and resolution may vary when produced by third party printers. It is the Customer’sresponsibility to approve a full size, fully calibrated, high resolution proof and mock-up from any third partyprinter and ensure that material supplied by any third party printer corresponds with the Materials.
Media Services:
1. Engage In-Health shall make such bookings and placements of advertising space, in any medium, and anyairtime with any broadcasting or information transmission or delivery organisation as agreed in the CustomerBudget.
2. The Charges for the Services shall depend on the rate of charge prevailing at the date of transmission orpublication including any agreed commission payable to Engage In-Health.
3. Engage In-Health shall not be liable to the Customer for any delay or omission in relation to (including withoutlimitation if arising in negligence) the transmission or publication of any advertisement.
4. The Customer shall indemnify Engage In-Health against any costs, claims, proceedings, losses and expenses(including reasonable legal fees) arising out of or in connection with any material submitted by or on theCustomer’s behalf for publication or transmission or other exploitation in connection with the Services or inrespect of any allegation that any of the Customer’s products or services are harmful or defective.

Performance of the Services

Engage In-Health shall use its reasonable endeavours to meet any performance dates specified in the Orderor Functional Specification (as appropriate), and any target outcomes specified in the Client Budget, but any such dates or target outcomes shall be estimates only, due to the nature of services Engage In-Health has tooffer. Time shall not be of the essence for performance of the Services.
Engage In-Health shall have the right to make any changes to the Services which are necessary to complywith any applicable law or safety requirement, or which do not materially affect the nature or quality of theServices, and Engage In-Health shall notify the Client in any such event. Pharmaceutical clients should alsobe made aware that Engage In-Health must comply with all pharmaceutical industry-specific codes, such asthe ABPI Code of Practice, and these may result in limitations to the performance of Engage In-Health’sservices.
Engage In-Health warrants that the Developed Website will perform in accordance with the FunctionalSpecification for a period of three months after the Handover Date. This is provided that the warranty set outin this clause shall not apply to any defect or problem in, or which is solely caused by, any Third Party Materialincorporated into the Developed Website as agreed with the Client, or any delays caused by circumstancesbeyond Engage In-Health’s control.

Client's obligations

The Client shall:
1. ensure that the terms of the Purchase Order and the work order Specification are complete and accurate;
2. co-operate with Engage In-Health in all matters relating to the Services;
3. provide Engage In-Health with such information and materials as Engage In-Health may reasonably require inorder to supply the Services, and ensure that such information is accurate in all material respects;
4. obtain and maintain all necessary licences, permissions and consents which may be required before the dateon which the Services are to start;
5. ensure that Engage In-Health is made aware of any agency relationships or anything another agency mighthave done that might impact on Engage In-Health’s ability to perform the Services;
6. If Engage In-Health's performance of any of its obligations under the Contract is prevented or delayed by anyact or omission by the Client or failure by the Client to perform any relevant obligation (a “Client Default”):
7. Engage In-Health shall, without limiting its other rights or remedies, have the right to suspend performance ofthe Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from theperformance of any of its obligations to the extent the Client Default prevents or delays Engage In-Health'sperformance of any of its obligations;
8. Engage In-Health shall not be liable for any costs or losses sustained or incurred by the Client arising directlyor indirectly from Engage In-Health's failure or delay to perform any of its obligations as set out in this clause
9. the Client shall reimburse Engage In-Health on written demand for any costs or losses sustained or incurredby Engage In-Health arising directly or indirectly from the Client Default.
The Client acknowledges and accepts that failure to comply with clauses 6 may affect the success of theServices for which Engage In-Health cannot be liable.

Price and Payment

Subject to the formation of a Contract, the Charges for the Services shall be as set out in the relevant workorder. Engage In-Health reserves the right to vary the price in relation to each Order by any reasonableamount attributable to:
1. any alteration to the Services by reason of a variation or lack of the Client’s instructions in relation to eachOrder; and
2. any variation of the rates of taxation or costs, third party charges, or fluctuations in foreign exchange rates orimport duty, significant increases in the costs of labour, materials or other costs involved in providing theServices, any change in delivery dates between the date of Order and the date of delivery of the Services orcompletion of payment.
Subject to clause 12.3, Engage In-Health shall be entitled to invoice the Client for the Charges as follows:
1. in respect of any sums specified in the Work Order
A fixed charge of £850 per day will be issued to the Client by Engage In-Health for any subsequentamendments made after the Client’s first two rounds of amendments, unless otherwise stated or agreed inthe Functional Specification or Client Budget.
The Client shall pay each invoice submitted by Engage In-Health in full and in cleared funds to a bankaccount nominated in writing by Engage In-Health within the number of days specified in the Order or, if notime period for payment is specified in the Order, thirty (30) days of the date of the invoice. Time for paymentshall be of the essence in the Contract.
All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added taxchargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under theContract by Engage In-Health to the Client, the Client shall, on receipt of a valid VAT invoice from Engage InHealth, pay to Engage In-Health such additional amounts in respect of VAT as are chargeable on the supply ofthe Services at the same time as payment is due for the supply of the Services.
Without limiting any other right or remedy of Engage In-Health, if the Client fails to make any payment due toEngage In-Health under the Contract by the due date for payment (the “Due Date”), Engage In-Health shallhave the right to charge interest on the overdue amount at the rate of four per cent per annum above thethen current HSBC Bank Plc's base rate accruing on a daily basis from the Due Date until the date of actualpayment of the overdue amount, whether before or after judgment, and compounding quarterly.
The Client shall pay all amounts due under the Contract in full without any deduction or withholding except asrequired by law and the Client shall not be entitled to assert any credit, set-off or counterclaim againstEngage In-Health in order to justify withholding payment of any such amount in whole or in part. Engage InHealth may, without limiting its other rights or remedies, set off any amount owing to it by the Client againstany amount payable by Engage In-Health to the Client.

Intellectual Property Rights

Where the Services include Website Development Services:
1. All Intellectual Property Rights in the Developed Material shall be owned by Engage In-Health unlessotherwise stated. Following full payment of the Charges in accordance with clause 10, Engage In-Health shallgrant to the Client a non-exclusive, perpetual, royalty free license to use the Developed Material solely for thepurposes of hosting and maintaining the Developed Website;
2. the Hosted Engage In-Health Material and Third Party Material shall be licensed to the Client as follows:
  1. in relation to the Hosted Engage In-Health Material, a non-exclusive, personal, non-transferable licence to usesuch Hosted Engage In-Health Material for the purpose of hosting and maintaining the Developed Website,provided that such Hosted Engage In-Health Material remains hosted by Engage In-Health or another hostingprovider as notified to the Client by Engage In-Health from time to time; and
  2. in relation to the Third Party Material, a licence to use such Third Party Material in accordance with clause8.1.4 below;
3. the Client shall not copy, modify, or disclose to any third party any of the Hosted Engage In-Health Materialunder any circumstances;
4. the Client accepts that, in respect of any Third Party Material, the Client's use of any such IntellectualProperty Rights is conditional on Engage In-Health obtaining a written licence from the relevant licensor onsuch terms that will entitle Engage In-Health to license such rights to the Client. The Client shall comply withthe terms of any such licence and any requirements or conditions set out therein; and
5. the Client grants to Engage In-Health a non-exclusive licence to use the Client Material as reasonablyrequired by Engage In-Health to perform the Services and develop the Developed Website.
Where the Services include Online Services or Offline Services:
1. all Intellectual Property Rights in brand design, artwork, logos, paid search, organic search, banners, websitedesign, artwork and concepts for adverts (both for television and printed press) created exclusively byEngage In-Health for the Client pursuant to either Online Services or Offline Services shall, following fullpayment of the Charges in accordance with clause 8, be owned exclusively by the Client.
2. subject to clause 8.2.1, all other Intellectual Property Rights arising out of or in connection with the OnlineServices or Offline Services shall be owned exclusively by Engage In-Health or its licensors.

Revision to Work Order

Either party may request a revision to the Work order, resulting in a subsequent change to the Servicesprovided under the Contract, provided that this revision is given in sufficient detail to allow the receiving partyto respond in accordance with this clause 9. This is explained in detail below.
The party which receives the request for revision shall within ten (10) Business Days respond to the requestfor revision with a written estimate of costs for or cost implications (as applicable) and time involved incarrying out or incorporating the change referred to in the request. (the “Revision”) (as applicable) (which inrelation to both the costs for and time involved in carrying out the Change shall be reasonable in all thecircumstances) and any implications the change will have on the performance of the Services and/orproduction of the Developed Website.
Unless the party which receives the request for Change notifies the requesting party within ten (10) BusinessDays that it does not wish to proceed (and the Client shall not unreasonably refuse such a request fromEngage In-Health), the parties shall negotiate in good faith to implement such Change, and if such Change isagreed a CCN signed by the Client and by Engage In-Health shall constitute an amendment to the Contract.
As a means of preventing delay in the operations of Engage In-Health’s business, once the client hassubmitted two successful requests for review the client will be charged a fixed rate of £850 for every furtherrevision amendment made. This is compliant with Clauses 3.3.2 and 7.4.
A request for the revision of the Work Order shall contain (but need not be limited to) the following:
1. the originator of the Change and date of the request or recommendation for the Change;
2. the reason for the Change;
3. full details of the Change including any specifications;
4. price, if any, for the Change (or impact on the Charges); and any other information as the other party mayreasonably request.
Until such time as a Change is made in accordance with the provisions above, the Client and Engage InHealth shall, unless otherwise agreed in writing, continue to perform the Contract in compliance with itsterms and the Functional Specification prior to such Change.
Any discussions which may take place between the Client and Engage In-Health in connection with a requestor recommendation before the authorisation of a resultant Change shall be without prejudice to the rights ofeither party.

Confidentiality

A party (“Receiving Party”) 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 disclosedto the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, andany other confidential information concerning the Disclosing Party's business or its products or its serviceswhich the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidentialinformation to such of its employees, agents or subcontractors as need to know it for the purpose ofdischarging the Receiving Party's obligations under the Contract, and shall ensure that such employees,agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind theReceiving Party. This clause shall survive termination of the Contract.

Liability

Nothing in these Terms shall limit or exclude Engage In-Health’s liability for:
1. death or personal injury caused by its negligence, or the negligence of its employees, agents orsubcontractors;
2. fraud or fraudulent misrepresentation; or
3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quietpossession).
Subject to clause 11.1:
1. Engage In-Health shall under no circumstances whatsoever be liable to the Client (including pursuant to anindemnity), whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any lossof profit, or any indirect or consequential loss arising under or in connection with the Contract; and
2. Engage In-Health’s total liability to the Client (including pursuant to an indemnity) in respect of all lossesarising under or in connection with the Contract, whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise, shall in no circumstances exceed a sum equal to the total Net Fees received byEngage In-Health in that calendar year.
Except as set out in these Terms, all warranties, conditions and other terms implied by statute or commonlaw are, to the fullest extent permitted by law, excluded from the Contract.
Both parties shall use their reasonable endeavours to mitigate any losses arising out of or in connection withthe Contract.
Without limitation to clause 11.3, where Engage In-Health provides advice in relation to any issue inconnection with the Services (including without limitation any advice relating to website design, searchengine optimisation or analytics) then the Client acknowledges that it is solely responsible for any actiontaken (or not taken) as a result of that advice, and that Engage In-Health does not make any warranty orrepresentation that the implementation or following of that advice will necessarily result in any particularoutcome or result.
This clause 11 shall survive termination of the Contract.

Termination

Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect bygiving written notice to the other party if:
1. the other party commits a material breach of the Contract and (if such a breach is remediable) fails toremedy that breach within five days of that party being notified in writing of the breach
2. the other party stops trading or gets into a position whereby it cannot pay its debts and/ or an insolvencysituation arises (for example a receiver, liquidator or administrator, trustee or someone similar is appointedover any of its assets or it proposes to make any arrangement with its creditors or goes into liquidation); or
3. any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subjectthat has an effect equivalent or similar to any of the events mentioned in clause 12.1.2
Without limiting its other rights or remedies, Engage In-Health may terminate the contract without any liabilityto the Client with immediate effect by giving written notice to the Client if the Client fails to pay any amountdue under any Contract on the due date for payment.
Without limiting its other rights or remedies, each party shall have the right to terminate the Contract bygiving the other party 30 days written notice. Where the Client has ordered Website Development Servicesand a Developed Website is to be produced, the full amount of the Charges in respect of the DevelopedWebsite shall fall due and payable by the Client on the date of termination.
Without limiting it other right or remedies, Engage In-Health shall have the right to suspend provision of theServices Under the Contract or any other contract between the Client and Engage In-Health if the Clientbecomes subject to any of the events listed in clause 12.1.2, or Engage In-Health reasonably believes thatthe Client is about to become subject to any of them, or if the Client fails to pay any amount due under anyContract on the due date for payment.

Consequences of Termination

On termination of the Contract for any reason:
1. the Client shall immediately pay to Engage In-Health all of Engage In-Health's outstanding unpaid invoicesand interest and, in respect of Services supplied but for which no invoice has been submitted, Engage InHealth shall submit an invoice, which shall be payable by the Client immediately on receipt;
2. the Client shall return all of the Engage In-Health Materials and any Developed Materials which have notbeen fully paid for. If the Client fails to do so, then Engage In-Health may enter the Client's premises and takepossession of them. Until they have been returned, the Client shall be solely responsible for their safekeeping and will not use them for any purpose not connected with this Contract;
3. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not beaffected, including the right to claim damages in respect of any breach of the Contract which existed at orbefore the date of termination or expiry; and
4. clauses which expressly or by implication have effect after termination shall continue in full force and effect.
Following termination of this Agreement Engage In-Health reserves the right to charge the Client in fullfor any costs associated with compiling a handover file for another agency if so requested by the Client.

General

Force majeure:
1. For the purposes of each Contract, “Force Majeure Event” means an event beyond the reasonable controlof Engage In-Health including but not limited to strikes, lock-outs or other industrial disputes (whetherinvolving the workforce of Engage In-Health or any other party), failure of a utility service or transport network,act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order,rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default ofsuppliers or subcontractors.
2. Engage In-Health shall not be liable to the Client as a result of any delay or failure to perform its obligationsunder this Contract as a result of a Force Majeure Event.
3. If the Force Majeure Event prevents Engage In-Health from providing any of the Services for more than twoweeks, Engage In-Health shall, without limiting its other rights or remedies, have the right to terminate theaffected Contract(s) immediately by giving written to the Client.
Assignment and subcontracting:
1. Engage In-Health may at any time assign, transfer, charge, subcontract or deal in any other manner with all orany of its rights under the Contract and may subcontract or delegate in any manner any or all of itsobligations under the Contract to any third party or agent.
2. The Client shall not, without the prior written consent of Engage In-Health, assign, transfer, charge,subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
Notices:
1. Any notice or other communication required to be given to a party under or in connection with this Contractshall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post,recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) itsprincipal place of business, or sent by fax to the other party's main fax number.
2. Any notice or other communication shall be deemed to have been duly received if delivered personally, whenleft at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00am onthe second Business Day after posting, or if delivered by commercial courier, on the date and at the time thatthe courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
3. This clause 14.3 shall not apply to the service of any proceedings or other documents in any legal action. Forthe purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice givenunder this Contract shall not be validly served if sent by e-mail.
Waiver:
1. A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be awaiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedyunder the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude orrestrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict thefurther exercise of that or any other right or remedy.
2. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not excluderights provided by law.
Severance:
1. If a court or any other competent authority finds that any provision of the Contract (or part of any provision) isinvalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemeddeleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
2. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if somepart of it were deleted, the provision shall apply with the minimum modification necessary to make it legal,valid and enforceable.
No partnership:
1. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of anykind between any of the parties, nor constitute any party the agent of another party for any purpose. No partyshall have authority to act as agent for, or to bind, the other party in any way.
Third parties:
1. A person who is not a party to the Contract shall not have any rights under or in connection with it.
Variation:
1. Except as set out in these Terms, any variation, including the introduction of any additional terms andconditions, to the Contract, shall only be binding when agreed in writing and signed by Engage In-Health.
Governing law and jurisdiction:
1. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter orformation (including non-contractual disputes or claims), shall be governed by, and construed in accordancewith, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England andWales.