These Marketing Services Terms and Conditions apply to all marketing-related services supplied by Emotio Design Group Limited (“Emotio”) to the customer identified in the Proposal (the “Customer”).
1. Definitions
In this Agreement:
Agreement means the Proposal, these Marketing Services Terms and Conditions, and any schedule, statement of work, data processing schedule, specification, timeline or change request agreed in writing.
Brief means the brief set out in the Proposal or, if a separate document is referred to in the Proposal, that separate document.
Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Customer means the person, firm or company identified in the Proposal.
Customer Content means any text, corporate images, photographs, illustrations, video, data, credentials, approvals or other content supplied by the Customer to Emotio.
Customer Data means all data, content, documents, recordings, prompts, materials, credentials and information supplied by or on behalf of the Customer, or accessed by Emotio on the Customer’s behalf.
Data Protection Legislation means the UK GDPR, the Data Protection Act 2018, the Privacy and Electronic Communications Regulations 2003 (PECR), the EU GDPR (where applicable), and any other applicable data-protection or privacy law as amended or replaced from time to time.
Effective Date means the date on which the Customer accepts the Proposal (whether by signature, written confirmation, instruction to begin work, or payment of the first invoice).
Emotio means Emotio Design Group Limited (registered in England and Wales with company number 07110783) whose registered office is at William Old Centre, Ducks Hill Road, Northwood HA6 2NP.
Emotio’s Content means any content originated by Emotio.
Intellectual Property Rights means any and all vested, contingent and future rights, including any extensions or renewals as far as possible in perpetuity, of copyright, design rights, registered design rights, know-how, patents, database rights, service marks, trademarks, moral rights, and any other intellectual property rights of any description whatsoever.
Marketing Services means the marketing-related services supplied by Emotio under the Proposal, including (without limitation) paid media management, SEO, content production, social media, email marketing, marketing automation, analytics, reporting, strategy, creative production, campaign management and related services.
Personal Data has the meaning given in the Data Protection Legislation.
Proposal means the document or documents created by Emotio describing its offer to provide Marketing Services to the Customer, including any schedule, statement of work, quotation, order form or change request.
Territory means the world.
Third-Party Platform means any third-party advertising platform, analytics platform, hosting provider, registrar, CRM, CMS, ad network, social network, email service, automation tool, AI provider, telephony platform or other external service used in connection with the Marketing Services (including without limitation Google, Meta, TikTok, LinkedIn, Microsoft, X, OpenAI, Anthropic, GA4, GTM and similar).
Work means the final products and services or goods produced by Emotio pursuant to the Brief and accepted as such by the Customer.
2. Interpretation
2.1 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
2.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.3 A reference to a company includes any company, corporation or other body corporate, wherever and however incorporated or established.
2.4 Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
2.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2.6 A reference to writing or written includes email.
2.7 Any words following the terms including, include, in particular, for example or any similar expression are illustrative and shall not limit the sense of the words preceding them.
3. Emotio’s obligations
3.1 Emotio shall be responsible, subject to the Proposal, for the production and delivery of the Marketing Services and the Work specified in the Brief.
3.2 Any work outside the scope set out in the Proposal or Brief, including (without limitation) additional concepts, audiences, ad sets, creative variants, landing pages, formats, revisions, meetings, reporting, integrations, training or accelerated delivery, shall be treated as additional work and shall be charged at Emotio’s then-current rates unless otherwise agreed in writing.
3.3 Unless set out in the Proposal, all matters relating to the commissioning of stock imagery, photography, video production, voice-over, third-party copy, translations, paid placement, premium subscriptions, plugin or theme licences shall be the responsibility of the Customer. If the Customer wishes Emotio to commission any of these items they will be charged at an agreed rate, with an advance plus VAT or relevant sales tax payable in advance of any such work being commissioned.
3.4 Emotio will perform the Marketing Services with reasonable care and skill consistent with the standards reasonably expected of a UK marketing agency providing comparable services.
3.5 Unless the Proposal says otherwise, all dates given by Emotio are estimates only.
4. Customer obligations
4.1 The Customer shall be forwarded by Emotio proofs, drafts, ad creative, copy, audience plans, landing pages and other review materials for feedback and approval. The Customer undertakes to read, check and provide feedback on any amendments required to Emotio within the period agreed in the project plan or within two weeks of receipt, failing which Emotio reserves the right to raise any related invoices for payment. Once approval is received from the Customer, Emotio shall have no liability for any typographical, design, copy, configuration or content-related mistakes subsequently identified that were reasonably capable of being identified at the review stage.
4.2 Once approved, costs of all corrections and alterations made by Emotio in the approved artwork, copy, creative or campaign configuration in accordance with clause 4.1 shall be borne by the Customer.
4.3 The Customer shall perform its obligations in the Proposal and shall provide timely access to relevant personnel, accounts, systems, domains, hosting, CMS environments, advertising platforms, analytics, ad accounts, billing details, feed providers and any other dependencies reasonably required for delivery.
4.4 If the Customer is more than four weeks late in fulfilling its obligations under this Agreement (including payment of invoices, approvals, provision of content, credentials or decisions), Emotio may invoice a revisiting charge for any additional work involved at £85 per hour.
4.5 Emotio reserves the right to record meetings for accuracy, delivery notes and action tracking. Customers wishing to opt out of recordings must notify Emotio at the start of each meeting. Recordings will be handled in accordance with Emotio’s confidentiality and data protection obligations under this Agreement.
4.6 The Customer shall provide feedback and approval within the timeframes agreed in the project plan or otherwise notified by Emotio. In the absence of such feedback within a reasonable period, the Work may be deemed approved. Any changes requested following approval, launch, publication or deployment of the Work shall be treated as additional work and charged in accordance with clause 3.2.
4.7 The Customer is responsible for the quality, completeness and lawfulness of Customer Data and Customer Content; for all business rules, escalation rules, approval rules and message content approved by the Customer; and for final legal, regulatory, commercial, pricing, customer service and brand decisions.
5. Platform accounts, access and campaign control
5.1 Where Emotio creates, configures or manages accounts on Third-Party Platforms (including without limitation Google Ads, Meta, TikTok, LinkedIn, Microsoft Advertising, GA4, GTM, CRM platforms or marketing automation systems) as part of the Marketing Services, such accounts shall be managed by Emotio as part of its service delivery.
5.2 Where reasonably possible, advertising and analytics accounts will be set up in the Customer’s name with Emotio granted agency or manager access, so that historical data and account ownership remains with the Customer. Where for technical or commercial reasons an account is opened in Emotio’s name, Emotio shall manage that account on the Customer’s behalf during the term of this Agreement and the parties shall agree handover terms (which may include a separate transfer fee) on termination.
5.3 During the term of this Agreement, Emotio shall retain primary administrative control of campaigns, audiences, tracking, automated rules and configurations created by Emotio. The Customer may be granted access at a level determined by Emotio, which may include read-only or restricted access where necessary to protect campaign integrity.
5.4 In-life campaign control. The Customer shall not, and shall not permit any third party acting on its behalf to, make any direct change to live campaigns, account structures, audiences, tracking, conversion configurations, ad copy, bids, budgets, automated rules or any other campaign settings managed by Emotio. The Customer may at any time request a change in writing to its Emotio account manager, and Emotio will action reasonable requests within a reasonable period.
5.5 Emotio shall not be responsible for any degradation in performance, loss of data, wasted media spend, broken tracking, lost optimisation learnings or other adverse outcomes arising from unauthorised changes made by the Customer or by any third party acting on the Customer’s behalf, or from changes made by the Customer outside the change-request process in clause 5.4.
5.6 All campaign structures, account configurations, data organisation, optimisation methodologies, audience definitions, tracking implementations, automated rules, scripts, dashboards, naming conventions and performance learnings developed by Emotio shall form part of Emotio’s Intellectual Property, subject always to clause 9 (Proprietary Rights).
5.7 Removal of campaign assets on termination. The Customer acknowledges that the items described in clause 5.6 represent material investment by Emotio. On termination of this Agreement (including, without limitation, on expiry of any trial, pilot or initial fixed term), Emotio reserves the right, at its sole discretion, to:
(a) pause, suspend, remove or delete the campaign structures, audiences, automations, scripts, conversion configurations and other configurations created by Emotio;
(b) revoke access to dashboards, reports, internal optimisation materials and shared analytics views; and
(c) where account ownership rests with Emotio, require the Customer to migrate to a separate account before such removal occurs.
5.8 Where the Customer wishes to retain, continue using, or take in-house any campaign structures, account configurations, audiences, optimisation work or associated work product after termination, this shall be subject to a separate written licence and a transfer fee reasonably reflecting the value of Emotio’s work, historical optimisation and associated Intellectual Property.
5.9 Any migration assistance, data export, training, documentation, transition support or account handover services requested by the Customer on or following termination shall be treated as additional work, charged at Emotio’s then-current rates, provided only after all outstanding invoices have been paid in full, and subject to Emotio’s reasonable availability.
6. Media spend and platform charges
6.1 Default position: direct payment by the Customer. Unless otherwise agreed in writing, the Customer shall pay all media spend, advertising platform charges, ad credits, paid placement fees, programmatic budgets, sponsored content budgets, influencer fees and similar third-party charges directly to the relevant platform on the Customer’s own payment method. Emotio’s fees are exclusive of all such charges.
6.2 Managed media spend. Where Emotio expressly agrees in writing to manage media spend on the Customer’s behalf, the Customer shall transfer the agreed budget to Emotio in advance, and Emotio shall apply a management fee of 3% of the managed media spend (or such other rate as is set out in the Proposal) in addition to its other fees.
6.3 Unspent budget rollover. Where Emotio manages media spend on the Customer’s behalf, any unspent portion of an agreed monthly or campaign budget shall be carried forward and applied to the next billing period or campaign. On termination of this Agreement, any unspent managed media spend will be returned to the Customer subject to deduction of Emotio’s fees, any committed external costs and any sums otherwise due.
6.4 Pausing for non-payment. Without prejudice to clause 15.9, Emotio may pause, suspend or stop spending on managed campaigns where the Customer has not paid the agreed media spend in advance, and Emotio shall have no liability for any loss, missed deadline, lost optimisation or campaign degradation arising from such suspension.
6.5 No minimum spend. There is no minimum monthly media spend commitment under this Agreement. The Customer acknowledges that materially reducing media spend may affect campaign performance, learnings and competitive position, and that Emotio shall not be liable for any performance degradation arising from such reductions.
6.6 Third-party platform charges. Subscription fees, hosting fees, domain renewals, plugin or theme licences, stock licences, print costs, telephony charges, SMS charges and any other third-party disbursements are separate from Emotio’s fees unless expressly stated otherwise in the Proposal.
7. AI use in marketing services
7.1 The Customer acknowledges that Emotio may use AI tools and Third-Party Platforms in the delivery of the Marketing Services, including (without limitation) for ad copywriting, content generation, schema generation, audience modelling, creative testing, image generation, automation, analysis, reporting and similar tasks.
7.2 The Customer acknowledges that AI outputs are inherently variable and may produce occasional inaccurate, incomplete or inconsistent results. Unless expressly agreed in writing in the Proposal, AI-generated outputs are provided as drafts intended for human review (by Emotio, the Customer, or both) before publication. The Customer remains responsible for reviewing AI-assisted outputs for factual accuracy, legal compliance, regulatory compliance, tone of voice, commercial claims and suitability before publication or live use.
7.3 Emotio uses reasonable care and skill in selecting and applying AI tools but does not warrant that AI-generated outputs will be free from third-party intellectual property issues, training-data provenance issues, hallucination, bias or model limitations, where these arise from the underlying behaviour, training, policies or service of any third-party AI provider.
7.4 Emotio shall not use Customer Data to train, fine-tune or improve its own general-purpose AI models, nor any third-party AI model that is not exclusive to the Customer, save where expressly agreed in writing in the Proposal. Where third-party providers offer commercial settings restricting public model training on submitted data, Emotio will use reasonable care to apply such settings where available and within Emotio’s control.
7.5 Where the Customer also engages Emotio for AI-specific services (including AI strategy, consultancy, training, automations, custom GPTs or AI plugin development), the Emotio AI Services Terms and Conditions available at https://emotio-design-group.co.uk/aiterms shall also apply, and shall prevail in the event of conflict with these Marketing Terms in respect of those AI services.
8. Call recording, call tracking and customer communications
8.1 Where the Marketing Services involve call tracking, call recording, call transcription, SMS follow-up, inbox monitoring, CRM matching or other monitoring or use of customer communications, the Customer is responsible for ensuring that:
(a) all necessary notices are given to callers, recipients and end customers (including any pre-recorded call announcements);
(b) all necessary lawful bases, consents, opt-ins, opt-outs and suppression rules are in place;
(c) any internal approvals or sector-regulator approvals are obtained; and
(d) the use of any such data complies with the UK GDPR, the Data Protection Act 2018, PECR and any sector-specific rules.
8.2 Emotio will use reasonable care to apply appropriate platform settings (for example, opt-in pre-recordings on call tracking platforms) where these are within Emotio’s control, but does not warrant the lawfulness of the Customer’s overall use of customer communications data.
8.3 The Customer will indemnify Emotio against claims, losses, costs and reasonable professional fees arising from the Customer’s breach of this clause 8, except to the extent caused by Emotio’s own breach.
9. Proprietary rights
9.1 The Customer shall own all right, title and interest in and to the Customer Content. Subject to clause 9.2, Emotio shall own all Intellectual Property Rights, right, title and interest in and to Emotio’s Content, the Concepts, Technology, marketing concept, campaign methodology, account configurations, optimisation methods, audience frameworks, tracking implementations and any systems implemented within Third-Party Platforms.
9.2 On full payment of any sums due under clause 15, Emotio grants the Customer a perpetual, non-exclusive, non-transferable licence to use the Work in the Territory for the uses described in the Brief, subject to clauses 9.3 and 5.7.
9.3 The licence in clause 9.2 is solely in respect of the uses stated in the Brief within the Territory, and expressly excludes (unless otherwise agreed in writing) any right to use the Work, or any derivative of it, in any form or medium other than that set out in the Brief, or to resell or sublicense the Work.
9.4 Emotio retains all Intellectual Property Rights in, and grants no licence in respect of, any concepts, designs, drafts, prompts, audiences, scripts or methodologies created pursuant to the Brief but not utilised in the final Work.
9.5 Nothing in this Agreement requires Emotio to assign to the Customer any rights in relation to ideas, know-how, methodologies, technology, expertise and techniques developed by Emotio whether prior to or in the course of the performance of this Agreement, or which together constitute the expertise which Emotio brings to bear on the performance of its obligations.
9.6 The Customer shall advise Emotio of any textual, visual, audio, video or data material used in the Work from any source other than itself, and shall ensure that written permission has been secured from and fees paid to the rights holders. The Customer will advise if appropriate acknowledgement is needed in the Work.
10. Confidentiality
10.1 Each party will keep the other party’s confidential information confidential and will use it only as needed for the Agreement.
10.2 The obligation in clause 10.1 will not apply to information that: (a) is or becomes generally known or available other than through breach of this Agreement; (b) was lawfully known before disclosure; (c) is lawfully obtained from a third party without breach of confidence; (d) is independently developed without use of the other party’s confidential information; or (e) is released for publication by the disclosing party in writing.
10.3 Each party may disclose the other party’s confidential information to its employees, officers, contractors, advisers and group companies who need to know it for the Agreement and are under duties of confidentiality, or where required by law, court order or any governmental or regulatory authority.
10.4 Emotio shall not be responsible for any loss, destruction, alteration or disclosure of confidential information caused by any third party beyond Emotio’s reasonable control.
11. Data processing
11.1 Where, in the course of providing the Marketing Services, Emotio processes Personal Data on behalf of the Customer, the Customer shall be the data controller and Emotio shall be the data processor, unless otherwise agreed in writing.
11.2 Emotio shall:
(a) process Personal Data only on the documented instructions of the Customer (including with regard to international transfers), unless required to do so by law;
(b) ensure that persons authorised to process the Personal Data are subject to appropriate confidentiality obligations;
(c) implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk;
(d) be entitled, under the Customer’s general written authorisation given by clause 20.3, to appoint sub-processors and to engage employees, contractors and contracted staff to assist with the Marketing Services, and shall remain responsible for the acts and omissions of any such sub-processor or contracted staff in relation to Personal Data; Emotio will, on reasonable request, provide a list of principal sub-processors and give the Customer reasonable prior notice of the addition or replacement of any principal sub-processor;
(e) assist the Customer, taking into account the nature of processing, in responding to requests from data subjects exercising their rights;
(f) assist the Customer in ensuring compliance with its obligations relating to security, breach notification, impact assessments and consultations with supervisory authorities;
(g) notify the Customer without undue delay after becoming aware of a Personal Data breach;
(h) at the choice of the Customer, delete or return all Personal Data on termination of the Agreement, unless retention is required by law, and on the Customer’s written request provide written confirmation of such deletion within a reasonable period; and
(i) make available to the Customer information reasonably necessary to demonstrate compliance with this clause and allow for and contribute to reasonable audits.
11.3 The Customer warrants that it has all necessary rights, notices, lawful bases and consents to provide the Personal Data to Emotio and to permit Emotio to process such Personal Data in accordance with this Agreement.
12. Warranties and indemnities
12.1 Emotio warrants to the Customer that:
(a) Emotio has the right and power to enter into this Agreement;
(b) Emotio is experienced in producing the Marketing Services as set out in the Proposal and will perform the services under the Agreement in a good and workmanlike manner and in accordance with the Proposal. Emotio does not warrant that any particular results will be achieved (including without limitation specific lead volumes, sales, ROAS, conversion rates, ranking improvements, click-through rates or productivity outcomes). Where Emotio indicates targets in the Proposal, Emotio does not guarantee or warrant that those will be achieved but will use its reasonable endeavours to do so;
(c) save for any copy, images, video or other material supplied by the Customer or its contributors, Emotio will use reasonable care and skill in producing creative and copy and Emotio’s part in the Work will not knowingly give rise to a violation of any existing copyright or breach of any existing agreement; and
(d) save for any copy, images, video or other material supplied by the Customer or its contributors, Emotio’s part in the Work will contain nothing knowingly obscene, defamatory or libellous and statements purporting to be facts will be true to the best of Emotio’s knowledge at the time of delivery.
12.2 The Customer warrants that:
(a) the Customer has the right and power to enter into this Agreement;
(b) the Customer’s products, services, claims, target market and Customer Content do not, and will not, infringe any third-party rights, breach any applicable law, or breach any applicable advertising standards or sector regulator rule; and
(c) the Customer’s part in the Work will contain nothing obscene, defamatory or libellous and statements purporting to be facts will be true.
12.3 Third-party rights in creative and AI outputs. The Customer is responsible for reviewing all creative, copy, AI-generated content and other Work for third-party intellectual property issues before publication or commercial use, and for clearing any third-party rights. Emotio will use reasonable care and skill in producing the Work, and will promptly notify the Customer if Emotio becomes aware of a credible third-party rights issue before delivery.
12.4 The Customer will indemnify Emotio (and its agents and contracted staff) against any loss, injury, damage, legal costs, expenses, compensation and disbursements paid by Emotio on the advice of its legal advisers to compromise or settle any claim arising out of any breach or alleged breach of clauses 4, 8, 11 or 12.2 by the Customer.
12.5 The Customer shall indemnify Emotio against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs calculated on a full indemnity basis) suffered or incurred by Emotio arising out of or in connection with the Customer’s products, services, website, marketing activity, customer-facing claims, sales activity or social media activity, provided that the Customer is given prompt notice of any such claim, Emotio provides reasonable cooperation in defence and settlement at the Customer’s expense, and the Customer is given sole authority to defend or settle the claim.
12.6 The foregoing warranties and indemnities shall survive termination of this Agreement.
12.7 Save in respect of the warranties in this clause 12, both parties specifically disclaim all other warranties, express or implied, including warranties as to the performance of any third-party advertising platform, model or service.
13. Advertising and regulatory compliance
13.1 The Customer is responsible for ensuring that its products, services, claims, target market, customer-facing content and offers comply with all applicable laws and codes, including without limitation the CAP Code (UK Code of Non-broadcast Advertising and Direct & Promotional Marketing), the BCAP Code (where applicable), the rules of the Advertising Standards Authority (ASA), and any sector-specific rules of the FCA, MHRA, ICO, OFCOM, the Gambling Commission, the SRA or any equivalent regulator.
13.2 Emotio will use reasonable care in producing advertising creative and copy but does not provide regulatory or legal review of the Customer’s products, services, claims or target market. Where the Customer operates in a regulated sector, the Customer remains responsible for clearing all advertising materials with its own regulatory and legal advisers before publication.
14. Limitation of liability
14.1 This clause 14 sets out the entire financial liability of Emotio (including any liability for the acts or omissions of its employees, agents, contracted staff and sub-contractors) to the Customer arising under or in connection with this Agreement and in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
14.2 Except as expressly and specifically provided in this Agreement, all warranties, representations, conditions and other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded.
14.3 Nothing in this Agreement excludes or limits the liability of Emotio for death or personal injury caused by Emotio’s negligence; for fraud or fraudulent misrepresentation; or for any liability that cannot lawfully be excluded.
14.4 Subject to clause 14.3, Emotio shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise, for any loss of profits, loss of revenue, loss of business, depletion of goodwill, damage to reputation, loss or corruption of data, loss of search visibility, loss of advertising performance, loss arising from changes to Third-Party Platforms or AI providers, or any indirect or consequential loss, costs, damages, charges or expenses.
14.5 Subject to clause 14.3, Emotio’s total aggregate liability arising under or in connection with this Agreement shall be limited to the lower of (a) £250,000; or (b) the total fees paid by the Customer to Emotio under the relevant Proposal, or during the 12 months preceding the date on which the claim arose, whichever is lower. For the avoidance of doubt, managed media spend transferred under clause 6.2 is not part of Emotio’s fees for the purpose of calculating this cap.
14.6 For the avoidance of doubt, the financial limit in clause 14.5 does not apply to (a) the indemnities given by the Customer under clauses 8.3, 12.4 and 12.5; (b) the Customer’s payment obligations under this Agreement; or (c) any liability arising from the Customer’s breach of clause 11 (Data Processing) or clause 13 (Advertising and Regulatory Compliance).
15. Payment by the Customer
15.1 The Customer shall pay Emotio the fees set out in the Proposal plus VAT, or where no period is specified, within 14 days of the relevant invoice.
15.2 If the Work is not completed within three months of the Effective Date (other than for default by Emotio), Emotio may submit invoices for any work done to cover all costs and the relevant proportion of its fee, payable within 14 days. These sums are in addition to any invoice rendered under clause 4.4.
15.3 The balance of the fees set out in the Proposal plus VAT shall be paid on delivery of the Work or, where not specified, within 14 days of invoice.
15.4 In respect of any printing, photographic, video or specialist procurement work, an advance is payable on receipt of order prior to work being carried out, with the balance payable on delivery.
15.5 Emotio reserves the right, on giving reasonable notice (not less than 30 days), to increase the fees to reflect any increase in cost beyond Emotio’s reasonable control (including without limitation foreign exchange fluctuation, currency regulation, alteration of duties, increase in costs of labour, materials, manufacture or print), any change in delivery dates, quantities or specifications requested by the Customer, or any delay caused by the Customer.
15.6 Except as otherwise stated in the Proposal, all prices are quoted on an ex-works basis. Where Emotio agrees to deliver goods other than at the Customer’s premises, the Customer shall pay Emotio’s charges for transport, packaging and insurance.
15.7 Prices are exclusive of VAT or other applicable sales tax, which the Customer shall pay in addition.
15.8 The time of payment is of the essence of this Agreement. Any relaxation of that obligation shall be at Emotio’s discretion. Receipts will be issued only on request.
15.9 If the Customer fails to make any payment on or before the due date, without prejudice to any other right or remedy available to Emotio, Emotio shall be entitled to:
(a) cancel the Agreement or suspend any further deliveries or services to the Customer, including the immediate suspension of campaigns, hosted workflows, automations and managed media spend, and (following not less than 5 Business Days’ written notice) the suspension of any live website or landing page where Emotio controls the relevant service; Emotio is authorised to instruct the relevant supplier accordingly;
(b) appropriate any payment made by the Customer to such items as Emotio thinks fit;
(c) charge interest (both before and after any judgment) on the amount unpaid at 4% per annum above Barclays Bank Plc base rate from time to time, compounded quarterly, until payment in full is made; and
(d) where final payment is not received within 30 days of a website being put live, take the site offline where Emotio controls the hosting or deployment environment.
16. Delivery
16.1 Where the Work is to be delivered in instalments (and for the purposes of this Agreement each delivery in respect of any element of the Work shall be deemed to be an instalment), each delivery shall constitute a separate obligation, and failure by Emotio to deliver any one or more instalments, or any claim by the Customer in respect of any one or more instalments, shall not entitle the Customer to treat the Agreement as a whole as repudiated.
16.2 Unless expressly stated otherwise in the Proposal, post-launch support, monitoring, maintenance, content updates and enhancement requests are not included within the scope of the Work. Any bug fixes shall be limited to a period of 30 days following delivery, unless otherwise agreed in writing or covered by a separate retainer or maintenance arrangement. Updates or changes required as a result of changes to Third-Party Platforms (including without limitation browser, plugin, dependency, CMS, hosting, ad platform, analytics or AI provider changes) shall be treated as additional work and charged at Emotio’s then-current rates unless covered by a separate maintenance, retainer or support arrangement.
17. Risk and property
17.1 Risk of damage to or loss of the Work shall pass to the Customer at the time of delivery or, if the Customer wrongfully fails to take delivery, at the time when Emotio (or its agents) tenders delivery.
17.2 Unless otherwise expressly agreed in the Proposal, domain names, hosting accounts and Third-Party Platform services (including registrars, hosting providers, software licences, plugins, themes and integrations) shall be registered or maintained either in the Customer’s name or on the Customer’s behalf. The Customer shall be responsible for all renewal fees and charges relating to such services.
17.3 Where Emotio procures or manages such services on behalf of the Customer, Emotio may retain administrative control during the term of the Agreement. Transfer of access or control shall be subject to payment of all outstanding sums and may incur additional charges.
17.4 Software, theme, plugin and third-party licences supplied by Emotio may be non-transferable unless expressly stated otherwise. The Customer shall be responsible for obtaining its own licences where transfer is not permitted.
17.5 Emotio shall not be liable for any loss, interruption or degradation of services arising from the Customer’s failure to renew, maintain or properly manage any domain, hosting or third-party subscription or service.
18. Duration and termination
18.1 This Agreement shall commence on the Effective Date and shall continue for the period set out in the Proposal, unless otherwise terminated as provided in this clause 18. If the Agreement is for a fixed period, it will automatically renew for monthly periods upon expiry of the fixed period, unless either party notifies the other in writing at least 30 days before the end of the then-current term.
18.2 Following expiry of any fixed period and during any rolling monthly period, either party may terminate this Agreement by giving not less than one full billing period’s written notice. Notice shall take effect from the next billing cycle, and the Customer shall remain liable for all fees due for that full period, irrespective of the date on which notice is given. Notice given part-way through a billing period shall not shorten or reduce the fees payable for the subsequent full billing period.
18.3 If the Customer serves notice to terminate during a fixed period and that notice expires before the end of the fixed period, Emotio will invoice the Customer and the Customer will be liable for all sums due to Emotio under the Agreement from the end of the notice to the expiry of the fixed term.
18.4 Without prejudice to any other rights or remedies, either party may terminate this Agreement without liability to the other if:
(a) the other party commits a material breach which is irremediable or, if remediable, fails to remedy it within 30 days of written notice to do so;
(b) the other party suspends or threatens to suspend payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts, or is deemed unable to pay its debts within section 123 of the Insolvency Act 1986;
(c) a petition is filed, notice given, resolution passed or order made in connection with the winding up of the other party (other than for a solvent reconstruction);
(d) an administrator is appointed, or notice of intention to appoint an administrator is given, over the other party;
(e) a holder of a qualifying floating charge becomes entitled to appoint or appoints an administrative receiver;
(f) a receiver is appointed over all or any of the assets of the other party;
(g) a creditor or encumbrancer attaches or takes possession of, or distress, execution, sequestration or similar process is levied on, all or any part of the other party’s assets and is not discharged within 14 days;
(h) the other party commences negotiations with creditors with a view to rescheduling its debts, or enters into any compromise or arrangement with its creditors (other than for a solvent reconstruction);
(i) the other party suspends, ceases or threatens to suspend or cease all or a substantial part of its business;
(j) there is a change of control of the other party within section 1124 of the Corporation Tax Act 2010; or
(k) any analogous event occurs in any jurisdiction.
18.5 Save in respect of an event of force majeure, if either party is in material breach and has failed to remedy that breach within 21 days of written notice from the other, the non-defaulting party may terminate.
18.6 Upon termination under this clause 18, all rights of the Customer in the Customer Content shall remain with the Customer, but any licence granted by Emotio in the Work shall, if any sums remain outstanding, revert to Emotio without prejudice to any claim Emotio may have for monies due, damages or otherwise.
18.7 If the Customer terminates this Agreement under any provision of this clause 18, Emotio reserves the right to charge for work completed as at the date of termination, including pro-rated fees and expenses for items partially complete, payable within 7 days of the invoice. If the Customer fails to pay on or before the due date, Emotio shall be entitled to the benefit of clause 15.9. On receipt of all sums due, Emotio will deliver to the Customer copies of work on any specific matter completed to that date. Intellectual Property Rights in uncompleted work shall be dealt with, on full payment, as per clause 9.
19. Consequences of termination
19.1 On termination of this Agreement for any reason:
(a) all licences and benefits granted under this Agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and copies belonging to the other party;
(c) the accrued rights of the parties as at termination, and the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected;
(d) Emotio may exercise its rights under clause 5.7 (removal of campaign assets) and clause 5.9 (chargeable handover); and
(e) Emotio may pause, suspend or stop managed media spend, automations and live campaigns, and shall return any unspent managed media spend in accordance with clause 6.3.
19.2 Clauses which by their nature are intended to continue after termination will continue, including clauses on payment, confidentiality, intellectual property, data protection, indemnities, liability and notices.
20. Data protection
20.1 Both parties will comply with all applicable Data Protection Legislation.
20.2 The Customer will provide appropriate safeguards in relation to data that it supplies to Emotio to ensure that it cannot be unlawfully accessed by third parties.
20.3 Sub-processors and contracted staff. The Customer gives general written authorisation for Emotio to appoint sub-processors and to engage employees, contractors and contracted staff as needed to supply the Marketing Services, including providers outside the United Kingdom or the European Economic Area where lawful transfer mechanisms are used. Emotio remains responsible for the acts and omissions of its sub-processors and contracted staff in respect of Personal Data, and shall, on reasonable request, provide a list of principal sub-processors and notice of any material changes.
20.4 International transfers. Where Personal Data is transferred outside the United Kingdom or the European Economic Area, Emotio shall put in place an appropriate transfer mechanism recognised under applicable law, including (as relevant) the UK International Data Transfer Agreement (IDTA), the UK Addendum to the EU Standard Contractual Clauses, the EU Standard Contractual Clauses, an adequacy decision, or any successor mechanism. Emotio will, on reasonable request, identify the transfer mechanism relied on for any specific Third-Party Platform.
20.5 Retention. Unless the Proposal says otherwise, Emotio may retain limited logs, prompts, campaign history, optimisation records and technical records for support, security, troubleshooting, invoicing and compliance purposes for a period of up to 90 days following completion of the relevant project or termination of the Agreement, save where (a) longer retention is required by law, (b) longer retention is required for ongoing audit, accounting or tax purposes, or (c) data remains in routine encrypted backups, in which case it will be deleted in line with Emotio’s standard backup-rotation cycle.
21. Force majeure
21.1 Neither party will be in breach of this Agreement, nor liable for any delay or failure to perform, where such delay or failure results from events, circumstances or causes beyond its reasonable control (a “Force Majeure Event”), including without limitation acts of God, war, terrorism, civil unrest, pandemic or epidemic, government action, industrial dispute (other than involving the affected party’s own staff), fire, flood, failure of utilities, internet or telecommunications networks, or material outages, suspensions, account restrictions or policy changes by Third-Party Platforms.
21.2 The affected party will notify the other party as soon as reasonably practicable, identifying the Force Majeure Event, its expected impact and duration, and any reasonable mitigation.
21.3 The affected party will be entitled to a reasonable extension of time for performing its obligations.
21.4 If a Force Majeure Event continues for a period of 60 consecutive days or more, either party may terminate the Agreement on written notice with no liability to the other, save for amounts already due.
22. Waiver
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
23. Rights and remedies
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
24. Severance
24.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
24.2 If one party gives notice to the other of the possibility that any provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend it so that, as amended, it achieves the intended commercial result.
25. Entire agreement
25.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, promises, assurances, warranties, representations and understandings, whether written or oral, relating to its subject matter.
25.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether innocent or negligent) that is not set out in this Agreement.
25.3 Nothing in this clause shall limit or exclude any liability for fraud.
26. Assignment and other dealings
26.1 The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights or obligations under this Agreement without the prior written consent of Emotio.
26.2 Emotio may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
27. No partnership; non-solicitation
27.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party as the agent of the other, or authorise either party to make commitments for or on behalf of the other.
27.2 The Customer shall not, during the term of this Agreement and for a period of 12 months following its termination, directly or indirectly solicit, engage, employ or otherwise contract with any employee, contractor or consultant of Emotio who has been involved in the provision of the Work, without the prior written consent of Emotio. In the event of any breach of this clause 27.2, the Customer shall pay Emotio a recruitment fee equal to 30% of the gross annual salary or fees of the relevant individual at the date of breach.
28. Portfolio and publicity
28.1 Unless otherwise agreed in writing, Emotio may display and reference the Work (excluding any confidential or sensitive information) in its portfolio, credentials, case studies, marketing materials and award submissions.
28.2 The Customer grants Emotio a non-exclusive, worldwide, royalty-free licence to use the Work for the purposes set out in this clause 28.
29. Variation
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
30. Third party rights
A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
31. Notices
31.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to [email protected] for notices served on Emotio, and to the email address provided by the Customer on the signing of the Proposal.
31.2 A notice shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or next working day delivery service, at 9.00 am on the second Business Day after posting; if sent by email, at 9.00 am on the next Business Day after transmission, provided that no automated bounce-back or non-delivery message is received by the sender.
32. Governing law
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.
33. Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
