Terms and Conditions of sale
TERMS AND CONDITIONS OF SALE

This agreement sets forth the terms and conditions under which Fuerte Aventura Limited of 71-75 Shelton Street, Greater London, WC2H 9J` (“Consultant”) agrees to provides, marketing communications and related consulting services to you (“Client”) (together known as the “Parties”), effective as of the date of successful payment of cleared funds received by Consultant for the FABS programme (the “Effective Date”).
1. DEFINITIONS
As used herein and throughout this Agreement: 
1.1. “Agreement” means the entire content of this document, and the Statement of Work (“SOW”) (if any).
1.2. “Client Materials” means all content, materials, information, photography, writings and other content provided by Client for use in the preparation of and/or incorporation in the Further Deliverables.
1.3. “Confidential Information” means all information disclosed by one party (the disclosing party) to the other party (the receiving party) in connection with the Services which is marked as confidential or which by its nature would reasonably be regarded as confidential.
1.4. “FABS Program” means the Fuerte Aventura Business Solutions Program, as detailed on the Consultant’s website, services of which are outlined at clause 2 of this Agreement.
1.5. “FABS Membership Fee” means the fee agreed by the parties as detailed in clause 4.1 below, in consideration for membership of the FABS Program.
1.6. “Further Deliverables” means the services and work product, as mutually agreed upon by Client and Consultant, to be delivered by Consultant to Client, in the form specified in a SOW 
1.7. “Services” (or “Consultant’s Services”) means all services and the work product to be provided to Client by Consultant under the FABS Program and any Further Deliverables.
2. FABS PROGRAM
2.1. For the duration of the Client’s membership in the FABS Program, the Consultant shall provide the following services: 
a) One one-to-one session to be held at your place of principal business;
b) bespoke planning of an advertising and marketing campaign through various channels (subject to availability), terms of which to be agreed with the Client (the “Campaign”). The specifics of the Campaign plan shall be detailed in a separate SOW, where facilitation services (if required) will be outlined; 
c) face-to-face consultation sessions (as agreed from time to time) at your principal place of business or an agreed local venue;
d) updates to the Campaign post launch date and access to any new promotional tools developed by the Consultant, details of which will be set out in a separate SOW, where any extra requirements/payments from the Client (if any) will be outlined. (Progress updates will be covered in the face-to-face consultations and via correspondence on an as and when needed basis);
e) weekly current affairs publications sent to the email address provided by subscribing via the subscription link on the Consultant’s website, and/or via express written request by the Client to the Consultant. 
2.2. In addition to the services listed under clause 2.1(a)-(e) above, the Consultant endeavours to provide the following opportunities:
a) To feature in some of the Consultant’s own marketing material, as specified and agreed by both parties from time to time including but not limited to, the Consultant’s website(s), social media, promotional events and media advertising;
b) Consultant will seek out advertising and advertorial opportunities; on Client’s behalf and inform Client of said opportunities as they arise;
c) to join and participate in building a business community, by attending meetings hosted by the Consultant and/or third parties with other local businesses and occasional guest speakers; and
d) client and marketing events and functions identified by the Consultant, from time to time. 
3. INTELLECTUAL PROPERTY 
3.1. Upon completion of the Services provided the Client has paid all invoices due and owing to Consultant (including costs and out-of-pocket expenses) pursuant to this Agreement, Consultant shall assign to Client all right, title and interest, including without limitation, copyright and other intellectual property rights, in the final works which Consultant has created on behalf of the Client (as defined in the relevant SOW). Client understands that its rights in third party materials are subject to terms and conditions set forth by the applicable licensor, and the Client will be required to abide to such terms and conditions, and any restrictions contained therein. 
3.2. Client Materials shall remain the sole property of the Client. Client hereby grants to Consultant a non-exclusive, transferrable, sub-licensable, royalty-free licence to use, copy, alter, adapt, modify, distribute, edit, translate and reformat the Client Materials worldwide, for the purposes of performing the Services and the production of the final works under this Agreement. 
3.3. Consultant retains all of its rights, title and interest in and to: (i) all materials (and all modifications thereof) owned by or licensed to Consultant prior to, or independent from, the performance of Services under this Agreement; and (ii) all generic or proprietary information; (iii) all ideas, methodologies, software, applications, processes or procedures used, created or developed by Consultant in the general conduct of its business.
4. FEES
4.1. Client shall pay the Consultant the FABS Membership Fee as directed on the written agreement of said fee and duration of membership of FABS made and signed by both parties. Payment of the FABS Membership Fee can be made through PayPal and in this case will be governed by PayPal terms and conditions (“PayPal Terms”) which can be accessed via the following link: https://www.paypal.com/uk/webapps/mpp/ua/legalhub-full  
4.2. Any additional agreed fees outlined in a SOW shall be paid to the Consultant according to the Payment Terms as set forth herein:
2.a) In the absence of any invoicing schedule in the SOW, such fees shall be invoiced monthly in arrears. Payment is due on invoice but no later than twenty one (21) days from the invoice date time being of the essence.  
2.b) Consultant reserves the right to charge Client a late payment penalty of 1.5% per month on overdue payments.
2.c) Should Client be in default with respect to payment under this Agreement, Consultant reserves the right to suspend some or all services hereunder until any outstanding payment has been made. 
2.d) Client agrees to reimburse Consultant for any costs incurred (including reasonable solicitors' fees and court costs) in connection with Consultant’s attempts to collect any sums that are over 21 days past due. In the event of a disputed charge, Client shall notify Consultant in writing of the disputed amount within 7 days of the invoice date, specifically identify the reason for the dispute, and pay all undisputed amounts owed while the dispute is under negotiation.
4.3. Work requested by Client to be performed by Consultant that is not specifically detailed in SOW or FABS Program may be completed under the terms of this Agreement on a time and materials basis against Consultant’s then prevailing standard hourly rates. Such Work will be tracked by Consultant by recording time worked in quarter-hour increments, to be invoiced on the final day of month in which said work was completed.
5. TERM & TERMINATION
5.1. This Agreement shall commence upon the Effective Date and shall remain effective for the duration of the Client’s subscription to the FABS Program.
5.2. The Client has an opportunity to terminate this contract in accordance with the termination/ rights to cancellation provisions contained in the PayPal Terms. Upon expiry of these rights, Client can terminate the Agreement, with immediate effect, by serving notice of that effect to the Consultant, if one of the following conditions are satisfied: 
2.a) the Consultant breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 20 working days from receipt of written notice of such breach;
2.b) the Consultant goes into compulsory or voluntary liquidation other than for the purposes of a bona fide amalgamation or if such party enters into any arrangement for the benefit of its creditors generally.
5.3. Consultant can terminate this Agreement, with immediate effect, by serving notice to the Client, if one of the following conditions are satisfied: 
3.a) the Client breaches any of its responsibilities or obligations under this Agreement; 
3.b) the Client is the subject of a bankruptcy petition, application or order or is subject to any equivalent insolvency-related event in any jurisdiction or goes into compulsory or voluntary liquidation other than for the purposes of a bona fide amalgamation or reconstruction or if an administrator or receiver is appointed over the whole or substantially all of its assets (which appointment is not set aside within ninety (90) days or if such party enters into any arrangement for the benefit of its creditors generally or is subject to any equivalent insolvency-related event in any jurisdiction.
5.4. Upon expiration or termination of this Agreement: 
4.a) Each party shall return, or at the disclosing party’s request, destroy the Confidential Information of the other party, except for Confidential Information which is stored in (i) network back-ups or (ii) any network shadow-copies, in each case recorded in the ordinary course of business. Any Confidential Information so retained by the recipient party shall be subject to an ongoing obligation of confidentiality.
4.b) Client shall reimburse any expenses incurred by the Consultant as a result of Clients breach of the Agreement. 
6. CLIENT RESPONSIBILITIES
6.1. Client shall be responsible for: 
1.a) Any ideas or directions provided to the Consultant by Client;
1.b) the accuracy of the information concerning Client’s business; 
1.c) providing any approvals (if required) in a timely manner; and
1.d) provision of Client Materials which do not infringe any third-party rights. 
7. WARRANTIES & INDEMNITY 
7.1. Client warrants to Consultant that: 
1.a) Client has the authority to enter into this Agreement and comply with its obligations and grant the rights set out in this Agreement;
1.b) Client owns all rights, title, and interest in, or has full rights and authority to permit the use of Client Materials; and
1.c) use of the Client Materials shall not infringe any third party rights.
7.2. Consultant warrants to Client that: 
2.a) it has the authority to enter into this Agreement and comply with its obligations and grant the rights set out in this Agreement; and
2.b) it will provide the Services in a professional manner and to the best of its ability using all reasonable skill, care and diligence as would be expected from a professional providing the same or similar services. 
7.3. The Client hereby indemnifies the Consultant and shall hold the Consultant harmless and keep it fully and effectively indemnified against all costs (including but not limited to legal costs), damages, loss and liability incurred by the Consultant by reason of (i) any breach of the Client responsibilities and/or Client warranties set out in this Agreement and (ii) its employees, personnel (including freelancers), and subcontractors.
8. LIMITATION OF LIABILITY
8.1. Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.
8.2. Subject to Clause 8.1 (and including for the avoidance of doubt any indemnity contained in this Agreement), in no event will the Consultant be liable under or in connection with this Agreement for:
i.a) loss of actual or anticipated income or profits;
i.b) loss of goodwill or reputation; 
i.c) loss of anticipated savings; or,
i.d) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
8.3. Subject to clause 8.1, Consultant’s maximum aggregate liability under this Agreement whether in contract, tort, (including negligence) shall in no circumstances exceed the FABS Membership Fee payable under this Agreement.
9. USE OF MATERIALS BY THIRD PARTIES 
9.1. After material has been issued by Consultant to the news media or to another third party, its use is no longer under Consultant’s control. The Consultant cannot assure the use of material by any news organisation. Similarly, Consultant cannot control the form or manner of use by the news media or others of the material, including, but not limited to, the accurate presentation of information supplied by Consultant. It is understood and agreed that the Consultant does not stipulate or guarantee specific or overall results or returns from public relations, publicity, research or any other activity performed by the Consultant.
10. CONFIDENTIALITY 
10.1. Each Party, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations pursuant to this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality, and/or is independently developed by the receiving party without reference to Confidential Information.
11. PUBLICITY 
12. Consultant may use Client’s name and any materials produced hereunder in Consultant’s portfolios, websites, galleries and other media or exhibits, for the purposes of recognition of creative excellence. Either party, subject to the other’s written approval (email shall suffice), may include a link to the other party’s website. Consultant may also use any materials produced under this Agreement for internal purposes. 
13. GENERAL
13.1. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement, nor shall such headings otherwise be given any legal effect. 

13.2. For the purposes of the Contracts (Rights of Third Parties) Act 1999, and notwithstanding any other provision of this Agreement, this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions. 

13.3. Neither party shall be liable to the other party for any failure to perform its obligations under the Agreement where such failure is caused by a force majeure event including, without limitation, an act of God, act of Government, acts of terrorism or war, extreme adverse weather conditions, interruption or failure of utilities or any other event which occurs beyond the parties’ reasonable control and which could not have reasonably been avoided.
13.4. In the event that any provision of this Agreement shall be illegal or otherwise unenforceable, such provision shall be severed, and the balance of the other provisions of this Agreement shall continue in full force and effect.
13.5. No waiver shall be effective unless it is in writing and signed by an authorised representative of the party authorised to give that waiver. Any waiver given by a party shall not amount to a waiver of any subsequent breach of the same obligation or amount to a waiver of a breach of any other provision under the Agreement. Any delay or failure by a party to enforce any right or remedy under the Agreement shall not constitute a waiver of that right or remedy nor shall any partial exercise of such right or remedy prevent any further exercise of that right or remedy.
13.6. Those provisions which by their nature are intended to survive expiration or termination of this Agreement shall remain in full force and effect after such expiration or termination.
13.7. All notices required under this Agreement shall be in writing by electronic mail with return confirmation of receipt, to the email address provided on the Consultant’s website under ‘Contact Us’ (for the Consultant), and the Client’s email address provided on completion of order form for FABS program on order page of Consultants website (for the Client).
13.8. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be exclusively governed by and construed in accordance with the laws of England and Wales. 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 this Agreement or its subject matter or formation (including non-contractual disputes or claims). However, the Consultant shall be entitled to bring proceedings for injunctive or similar relief in any part of the world.
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