Business Terms of Service
These Business Terms of Service and the Order Form referred to herein, collectively form the “Client Agreement” between Growth Society and the Client for the Services (as defined below and detailed in the Order Form).
Any references to “Growth Society” refer to Atomic Flow Limited, a company incorporated in England and Wales (company number 11249713) whose registered office is at Department, 4, The Boulevard, Leeds, England, LS10 1PZ.
Any references to “Client” refer to the business which has entered into the Client Agreement with Growth Society.
Any references to “Party” or “Parties” refer to Growth Society and the Client.
Growth Society may amend these Business Terms of Service from time to time and the revised version will be effective within fourteen (14) Calendar Days written notice to the Client and upon publication on this website. These Business Terms of Service were last updated on 9 September 2024.
Definitions
1.1. Applicable Laws: means all applicable English laws, regulations and codes from time to time in force including on anti-bribery and corruption, anti-slavery and human trafficking, anti-tax evasion and Data Protection Laws.
1.2 Business Day: means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
1.3 Calendar Day: means each day in the week including Saturday, Sunday or public holiday in England.
1.4 Confidential Information: means (a) information in whatever form including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, clients, suppliers, products, affairs and finances of the other Party; and (b) trade secrets including, without limitation, technical data and know-how relating to the business or any of its or their suppliers, clients, agents, distributors, shareholders, management or business contacts whether or not such information (if in anything other than oral form) is marked confidential.
1.5 Data Protection Laws: means the UK GDPR, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any other European Union legislation (such as the General Data Protection Regulation 2016/679) relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authorities.
1.6 Fees: means the fees due to the Growth Society pursuant to clause 8 and as set out in the Order Form.
1.7 Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights to use and preserve the Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and rights to 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 will subsist now or in the future in any part of the world.
1.8 Services: means the services provided by Growth Society as more particularly described in clause 3.2. and the Order Form.
1.9 UK GDPR: means the UK’s version of the European Union’s General Data Protection Regulation 2016/679 which has been amended and transposed into the UK law by way of the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419).
1.10 Works: means all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared by Growth Society in the provision of the Services.
Interpretation
2.1 Unless the context requires, a reference to one gender shall include a reference to the other genders.
2.2 Unless the context requires, words in the singular shall include the plural and the plural shall include the singular.
2.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
2.4 The headings in these Business Terms of Service are inserted for convenience only and shall not affect its constructions.
2.5 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.6 A reference to a clause is to the clauses in these Business Terms of Service.
2.7 In the event of any conflict or inconsistency between the Order Form and these Business Terms of Service, the terms contained in the Order Form will prevail.
Commencement and supply of services
3.1 The Client Agreement shall commence on the Start Date for the Initial Term (as outlined in the Order Form) and shall automatically renew on a rolling basis for successive two (2) calendar month periods unless terminated by either Party in accordance with clause 11.
3.2 In supplying the Services, Growth Society shall perform the Services with skill, care and diligence. Where agreed in the Order Form, Growth Society shall:
introduce the Client to suitable digital marketing agencies;
support the Client by project managing its relationship with one or more digital marketing agencies; and
support the Client by placing suitable individual digital marketing talent to advise and assist the Client in their digital marketing efforts.
4. Obligations of client
4.1 The Client acknowledges that Growth Society’s ability to provide the Services is dependent on the full and timely co-operation of the Client.
4.2 The Client shall:
provide such necessary information for the provision of the Services as Growth Society may reasonably request;
provide access to its systems, website, media/advertising accounts and data as may reasonably be requested by Growth Society and agreed with the Client in writing in advance, for the purposes of the Services;
inform Growth Society of any changes made to the Client’s digital marketing strategy and digital properties while Growth Society is delivering the Services. Such changes may be made by the Client’s own in-house digital marketing team or another third-party supplier;
provide Growth Society with any policies, procedures and guidelines that Growth Society and its digital marketing talent are required to adhere to while delivering the Services.
4.3 The Client shall retain full ownership of all media/advertising accounts and shall be responsible for paying for all media spend directly to the respective media owners. Subject to the Order Form, Growth Society shall be permitted to arrange, organise and instruct the publication of adverts via the media owners under the general or specific instruction of the Client.
Confidentiality
5.1 Each Party recognises that under the Client Agreement, it may receive Confidential Information belonging to the other Party.
5.2 Each Party undertakes that it shall not at any time during the Client Agreement, and for a period of two (2) years after termination of the Client Agreement, disclose to any person any Confidential Information except as permitted by clause 5.3.
5.3 Each Party may disclose the other Party’s Confidential Information:
to its employees, officers, representatives, contractors, sub-contractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Client Agreement. Each Party shall ensure that its employees, officers, representatives, sub-contractors or advisers to whom it discloses the other Party’s Confidential Information comply with clause 5;
if it is in the public domain or becomes public knowledge other than as a result of a breach of this Client Agreement or any other duty of confidentiality relating to that information; or
as may be required by Applicable Laws, a court of competent jurisdiction or any governmental or regulatory authority provided that the disclosing Party promptly notifies and consults with the other Party in advance in relation to the timing and content of such a disclosure (unless prohibited from doing so by Applicable Law).
5.4 Neither Party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under the Client Agreement.
Data Protection
6.1 Each Party shall ensure to comply with their obligations under Data Protection Laws.
6.2 Each Party is an independent data controller as defined in Data Protection Laws.
Intellectual Property
7.1 Each Party shall retain ownership of all of its own Intellectual Property Rights.
7.2 Each Party grants the other Party a licence to use its Intellectual Property Rights for the limited purposes of conducting and fulfilling the terms under this Client Agreement only.
7.3 The Client acknowledges and agrees that it is its solely responsible for verifying the Intellectual Property Rights in the Works. Growth Society makes no representations or warranties regarding the ownership, validity, or any infringement of Intellectual Property Rights in the Work delivered. Growth Society is a talent agency only which introduces the Client to digital marketing agencies or individual digital marketing talent.
Fees
8.1 In consideration of the provision of the Services, the Client shall pay Growth Society the Fees in accordance with clause 8 and the Order Form.
8.2 All amounts payable by the Client exclude amounts in respect of Value Added Tax (“VAT”) which the Client shall additionally be liable to pay to Growth Society.
8.3 Growth Society shall submit invoices for its Fees plus VAT to the Client on a monthly basis. The Client shall pay each invoice under clause 8.3. within fourteen (14) Calendar Days of receipt.
8.4 If the Client fails to make a payment due to Growth Society for a period in excess of fourteen (14) Calendar Days, then Growth Society may (a) suspend the Services and/or (b) without limiting Growth Society’s remedies under the Client Agreement, require the Client to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under clause 8.4. will accrue each day at 4% a year above the Bank of England's base rate from time to time.
8.5 The Client acknowledges that Growth Society may receive a referral fee from an agency if the Client instructs an agency introduced by Growth Society. The referral fee will not affect the pricing or scope of services provided to the Client by the agency.
Expenses
9.1 Growth Society shall obtain the Client’s prior written consent before incurring any expenses.
9.2 Where such expenses have been pre-agreed, the Client is required to reimburse all expenses within fourteen (14) Calendar Days receipt of an invoice from Growth Society.
Insurance and limitation of liability
10.1 Both Parties shall ensure that insurance policies are taken out with reputable insurers.
10.2 References to liability in clause 10 includes every kind of liability arising under or in connection with the Client Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.3 Nothing in the Client Agreement shall limit or exclude the liability of either Party for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors (as applicable);
fraud or fraudulent misrepresentation; and/or
any other liability cannot be excluded or limited due to Applicable Law.
10.4 Neither Party shall be liable for special, incidental, consequential, indirect or punitive damages, including but not limited to loss of revenue or profit, loss of anticipated savings, loss of goodwill, injury to reputation or loss of business opportunity.
10.5 Subject to clauses 10.3. and 10.4., the total liability of either Party arising under this Client Agreement shall in no event exceed the Fees paid or payable over a period of three (3) months preceding the claim.
10.6 Growth Society shall have no liability for any agencies which the Client instructs upon being introduced by Growth Society to the Client. Such liability shall be governed by the contractual arrangement between the Client and each agency separately.
Termination
11.1 Without affecting any other right or remedy available to it, either Party may terminate this Client Agreement with immediate effect at any time by giving written notice to the other Party if:
the other Party commits a material breach of a term in the Client Agreement and (if such breach is remediable) fails to remedy that breach within thirty (30) Calendar Days after being notified to do so;
the other Party repeatedly breaches any of the terms of the Client Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Client Agreement;
the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
the other Party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy; or
the other Party takes any step or action in connection with it entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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.
11.2 Either Party may terminate the Client Agreement without cause by providing the other Party with thirty (30) Calendar Days' written notice provided that such notice may only be served after sixty (60) Calendar Days from the Start Date outlined in the Order Form.
11.3 Termination of the Client Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination including the right to claim damages in respect of any breach of the Client Agreement which existed at or before the date of termination.
11.4 Any provision of the Client Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Client Agreement shall remain in full force and effect.
Legal Notices
12.1 Any legal notice given to a Party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at the address given in the Client Agreement or as otherwise notified in writing to the other Party.
11.2 Unless proven otherwise, any notice shall be deemed to have been received:
if delivered by hand, at the time the notice is left at the address given in the Client Agreement or given to the addressee; or
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.
12.3 If deemed receipt under clause 12.2. would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. In clause 12.3., “business hours” means 9.00am to 6.00pm Monday to Friday (inclusive) on a Business Day.
12.4 A legal notice given under the Client Agreement is not valid if sent by email.
General
13.1 Applicable laws. Both Parties shall comply with Applicable Laws at all times.
13.2 Force majeure. Neither Party shall be in breach of the Client Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Client Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for fourteen (14) Calendar Days, the Party not affected may terminate the Client Agreement by giving seven (7) Calendar Days’ written notice to the affected Party.
13.3 Non-solicitation and dealing. The Client undertakes that during the Client Agreement and for six (6) months following the termination of the Client Agreement, the Client shall not:
solicit or entice away (or attempt to solicit or entice away) any (a) agencies introduced by Growth Society; (b) employees of Growth Society; and (c) individual talent operating as sub-contractors of Growth Society; and
directly deal and enter into a contract with any (a) agencies introduced by Growth Society; (b) employees of Growth Society; and (c) individual talent operating as sub-contractors of Growth Society – without the prior written consent of Growth Society.
13.4 Entire agreement. The Client 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. Each Party acknowledges that in entering into the Client Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Client Agreement.
13.5 No partnership or agency between the Parties. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
13.6 Waiver. No failure or delay by a Party to exercise any right or remedy provided under the Client 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. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.7 Severance. Any provision or part-provision of the Client 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 clause 13.7. shall not affect the validity and enforceability of the rest of the Client Agreement.
13.8 Variation. Variations to these Business Terms of Service shall be made unilaterally by Growth Society. Variations to the Order Form shall only be effective if signed by both Parties.
13.9 Assignment. Neither Party may assign, charge, transfer or deal in any other manner with any of its rights and obligations under the Client Agreement without the prior written consent of the other Party.
13.10 Third party rights. A person who is not a Party to the Client Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Client Agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from that Contracts (Rights of Third Parties) Act 1999. The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under the Client Agreement are not subject to the consent of any other person.
13.11 Counterparts. The Client Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Client Agreement. No counterpart shall be effective until each Party has delivered to the other at least one executed counterpart.
13.12 Governing law. The Client Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
13.13 Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Client Agreement or its subject matter or formation (including non-contractual disputes or claims).
