1. INTERPRETATION
1.1 Definitions:
AED: United Arab Emirates dirhams, the lawful currency of the United Arab Emirates.
Agreement: the agreement between Emma Marketing and the Client for the supply of Services in accordance with these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in the United Arab Emirates when banks in the United Arab Emirates are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance with Clause 5.
Client: the person or firm who purchases Services from Emma Marketing.
Client Default: has the meaning set out in Clause 4.2.
Commencement Date: has the meaning set out in Clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with Clause 10.5.
Deliverables: the deliverables set out in the Scope of Work produced by Emma Marketing for the Client.
DIFC: has the meaning set out in Clause 10.10.
Emma Marketing: Emma Marketing FZCO registered in Dubai Silicon Oasis with license number 9736 and with its registered office at DOP, Building A2, Dubai Silicon Oasis, Dubai, United Arab Emirates.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world.
Materials: All materials, equipment, documents and other property of Emma Marketing.
Scope of Work: the Client’s order for Services as set out in the quotation contained within the Scope of Work document or engagement letter provided to the Client by Emma Marketing, the Client’s written acceptance of a quotation contained within the Scope of Work document by Emma Marketing.
Services: the services, including the Deliverables, supplied by Emma Marketing to the Client as set out in the Scope of Work.
1.2 Interpretation:
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes email.
2. BASIS OF CONTRACT
2.1 The Scope of Work constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Scope of Work shall only be deemed to be accepted when Emma Marketing issues written acceptance (which can be by email) of the Scope of Work at which point and on which date the Agreement shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by Emma Marketing, and any descriptions or illustrations contained in Emma Marketing’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.
2.4 These Conditions apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by Emma Marketing shall not constitute an offer and is only valid for a period of three (3) months from its date of issue.
3. SUPPLY OF SERVICES
3.1 Emma Marketing shall supply the Services to the Client in accordance with the Scope of Work in all material respects.
3.2 Emma Marketing shall use reasonable endeavours to meet any performance dates specified in the Scope of Work, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Emma Marketing shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Emma Marketing shall notify the Client in any such event.
3.4 The Client may request an alteration to the Services to be provided within the Scope of Work by providing a written request by way of email to Emma Marketing. Until such time as any alteration is formally agreed, the parties shall, unless otherwise agreed, continue as if such alteration had not been requested. The Client shall have to pay any reasonable administration charge for each such alteration which is agreed by Emma Marketing and the Client, in respect of the Scope of work or Services provided by Emma Marketing. Emma Marketing warrants to the Client that the Services shall be provided using reasonable care and skill.
4. CLIENT’S OBLIGATIONS
4.1 The Client shall:
(a) ensure that the terms of the Scope of Work and any information it provides in the Scope of Work are complete and accurate;
(b) co-operate with Emma Marketing in all matters relating to the Services;
(c) provide Emma Marketing, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by Emma Marketing;
(d) provide Emma Marketing with such information and materials as Emma Marketing may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the Client’s premises for the supply of the Services;
(f) obtain and maintain and provide to Emma Marketing at least one (1) week before the commencement of the supply of Services copies of all necessary licences, permissions and consents which may be required before the date on which the Services are to start and indemnify and hold harmless Emma Marketing and any of its employees, agents, subcontractors from and against all claims, losses, liabilities and damages (including reasonable legal fees and costs) arising from or in connection with any claims (including patent and copyright infringement) made against Emma Marketing, alleged to have occurred as a result of the Client’s failure to obtain all necessary licences, permissions and consents; and
(g) comply with any additional obligations as set out in the Scope of Work.
4.2 If Emma Marketing’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) Emma Marketing shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Emma Marketing’s performance of any of its obligations;
(b) in the event Emma Marketing is required (at the sole discretion of Emma Marketing) to carry out works to remedy the Client Default, Emma Marketing shall be able to invoice the time spent carrying out the remedy works at a rate of AED 600 plus VAT per hour;
(c) Emma Marketing shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Emma Marketing’s failure or delay performing any of its obligations as set out in this Clause 4.2; and
(d) in the event of a Client Default, the Client shall be immediately liable to pay Emma Marketing’s standard hourly fees immediately on demand; and
(e) the Client shall reimburse Emma Marketing on written demand for any costs or losses sustained or incurred by Emma Marketing arising directly or indirectly from the Client Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be on a time and materials basis as specified in the Scope of Work and/or as follows:
(a) the Charges shall be calculated in accordance with Emma Marketing’s quote as set out in the Scope of Work;
(b) Emma Marketing’s standard daily fee rates are calculated on the basis of a 7.5 hour day from 9.00 am to 5.30 pm in the United Arab Emirates worked on Business Days;
(c) Emma Marketing shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom Emma Marketing engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Emma Marketing for the performance of the Services, and for the cost of any materials.
(d) Emma Marketing shall be entitled to charge the Client additionally for any work undertaken at the written request of the Client which is outside the Scope of Work. Such additional work shall be charged on a time basis and the hourly charge for such work shall be AED 600 plus VAT (in the case of administrative staff) and AED 1500 plus VAT (in the case of a senior manager).
5.2 Emma Marketing reserves the right to increase its standard daily fee rates, provided that such charges cannot be increased more than once during any order within the Scope of Work. Emma Marketing shall give the Client written notice of any such increase as soon as reasonably practicable before the proposed date of the increase. If such increase is not acceptable to the Client, it shall notify Emma Marketing in writing within seven (7) days of the date of Emma Marketing’s notice and Emma Marketing shall have the right, without limiting its other rights or remedies to terminate, the Agreement by giving written notice to the Client.
5.3 The Client shall pay for each invoice properly submitted by Emma Marketing. Emma Marketing shall submit invoices to the Client in accordance with the payment proposal set out in the Scope of Work. Emma Marketing shall not be required to provide time records for work undertaken by it for the Client unless the Scope of Work specifies that work undertaken by Emma Marketing shall be performed on a time basis.
5.4 The Client shall promptly pay each invoice submitted by Emma Marketing immediately upon delivery of the invoice. Payment shall be made in full and in cleared funds to a bank account nominated in writing from time to time by Emma Marketing, and time for payment shall be of the essence of the Agreement.
5.5 All amounts payable by the Client under the Agreement are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Agreement by Emma Marketing to the Client, the Client shall, on receipt of a valid VAT invoice from Emma Marketing, pay to Emma Marketing such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 If the Client fails to make any payment due to Emma Marketing under the Agreement by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of twelve percent (12%) per cent per annum above the EIBOR base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
5.7 The Client shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Emma Marketing may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Emma Marketing to the Client.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Emma Marketing unless it is stated in the Scope of Work such ownership shall pass to the Client on the termination of and following the payment in full of all Emma Marketing’s invoices.
6.2 The Client acknowledges that, in respect of any third-party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights in relation to a Deliverable is conditional on the Client obtaining a written licence from the relevant licensor on such terms as shall entitle the Client to use such Intellectual Property Rights. Emma Marketing shall have no liability in respect of the use by the Client of any third-party Intellectual Property Rights purchased by it for use in relation to a Deliverable as part of the Scope of Work.
6.3 All Supplier Materials are the exclusive property of Emma Marketing.
7. LIMITATION OF LIABILITY
7.1 Nothing in the Agreement shall limit or exclude Emma Marketing’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of any other liability which cannot be limited or excluded by applicable law.
7.2 Subject to Clause 7.1, Emma Marketing shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect or consequential loss.
7.3 Without prejudice to Clause 7.2, Emma Marketing shall not be liable to the Client for, nor shall it provide any guarantees in relation to, the success or failure of any social media marketing campaign (e.g. Googleads, Instagram, Facebook, Twitter or otherwise) or other SEO campaign undertaken as part of the Scope of Work.
7.4 Emma Marketing shall not be liable for the crash or failure of operation of any website or application developed by it for the Client as part of the Scope of Work otherwise than as a result of the gross negligence of Emma Marketing. Emma Marketing shall provide all reasonable assistance in relation to the remediation of such crash or failure on terms to be agreed at the time between Emma Marketing and the Client. The Client shall be responsible for approving a website or application developed for it by the Emma Marketing prior to it going live, after which time Emma Marketing shall have no liability whatsoever in relation to its ongoing operation.
Subject to Clause 7.1, Emma Marketing’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement shall be limited to the Charges for the Services quoted in the Scope of Work.
7.5 This Clause 7 shall survive termination of the Agreement.
8. TERMINATION
8.1 Without limiting its other rights or remedies, either party may terminate the Agreement by giving the other party ninety (90) days’ written notice unless otherwise agreed, PROVIDED ALWAYS such notice shall not be valid if delivered within the first twelve (12) month period following the Commencement Date.
8.2 In the event the Client terminates the provision of Services (howsoever determined), the Client shall become immediately liable on demand of pay for the remainder of the Charges due, or anticipated under, the Scope of Work.
8.3 Without limiting its other rights or remedies, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
8.4 Without limiting its other rights or remedies, Emma Marketing may terminate the Agreement with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than ten (10) days after being notified in writing to make such payment; or
(b) there is a change of control of the Client.
8.5 Without limiting its other rights or remedies, Emma Marketing may suspend provision of the Services under the Agreement or any other contract between the Client and Emma Marketing if the Client becomes subject to any of the events listed in Clause 9.3(b) to Clause 9.3(d) or Emma Marketing reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Agreement on the due date for payment.
9. CONSEQUENCES OF TERMINATION
On termination of the Agreement for any reason:
(a) the Client shall immediately pay to Emma Marketing all of Emma Marketing’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Emma Marketing shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the Client shall return all Materials to Emma Marketing;
(c) and any Deliverables which have not been fully paid for. If the Client fails to do so, then Emma Marketing may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and shall not use them for any purpose not connected with this Agreement;
(d) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and
(e) clauses which expressly or by implication survive termination shall continue in full force and effect.
10. GENERAL
10.1 Force majeure. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.2 Assignment and other dealings.
(a) Emma Marketing may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent.
(b) The Client shall not, without the prior written consent of Emma Marketing, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement.
10.3 Confidentiality.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 10.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 10.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
10.4 Entire agreement.
(a) This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
10.5 Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
10.7 Severance. If any provision or part-provision of the 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. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
10.8 Notices.
(a) Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified or, in the case of an email: info@emma-marketing.ae, to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service or commercial courier or by email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 10.8(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; if sent by email, twenty-four (24) hours after being sent.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.9 Third parties. No one other than a party to the Agreement shall have any right to enforce any of its terms.
10.10 Governing law. The 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 laws of the Dubai International Financial Centre (DIFC).
10.11 Jurisdiction. Each party irrevocably agrees that the DIFC Courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.