Terms of Business

1. General

1. These terms of business (these "Terms") set out the basis on which we provide our services. The specific services, fees and term of each engagement are set out in a separate engagement letter (the "Engagement Letter"). The Engagement Letter and these Terms together form the contract between us (the "Agreement"). If there is any inconsistency between them, the Engagement Letter prevails.
2. Swell is the trading name of Big Wave Technology Limited, a company registered in England and Wales with company number 17358103, whose registered office is at Unit 1c Eagle Industrial Estate, Church Green, Witney, Oxfordshire, OX28 4YR ("Swell", "we", "us" or "our"). "You" or the "Client" means the person named as the client in the Engagement Letter.
3. These Terms apply to business customers only. By signing the Engagement Letter you confirm that you are contracting in the course of a business and not as a consumer.
4. The Agreement is formed when you sign the Engagement Letter or, if earlier, when you instruct us to begin the Services or accept any part of them.
5. A reference to legislation includes that legislation as amended, extended or re-enacted from time to time, and any subordinate legislation made under it.
6. In these Terms:
   • "Advertising Platform" means Meta, Google or any other advertising platform on which we run activity for you.
   • "Ad Accounts" means your accounts, business manager, pixels, tags, audiences, catalogues, campaign history and data on any Advertising Platform.
   • "Client Materials" means content, branding, product information, data and other materials you provide to us.
   • "Deliverables" means the campaigns, creative, copy, reports and other materials we produce for you under the Services.
   • "Fees" means the fees stated in the Engagement Letter.
   • "Media Spend" means sums payable to an Advertising Platform for advertising.
   • "Services" means the services described in the Engagement Letter.

2. Services

1. We will provide the Services described in the Engagement Letter with reasonable care and skill. We are not responsible for any work that falls outside the scope of the Services unless we have agreed to it in writing.
2. Any change to the scope of the Services must be agreed in writing (email is sufficient) and may result in a change to the Fees.
3. We may use subcontractors to help deliver the Services. We remain responsible for their work as if it were our own. Where a subcontractor will process personal data on your behalf, clause 8 applies.
4. Any dates we give are estimates unless the Engagement Letter states that they are guaranteed. We will use reasonable endeavours to meet them.

3. Your obligations

1. You will:
   1. give us timely access to the Ad Accounts, your website, analytics and any other systems we need, at the access level we reasonably request;
   2. provide Client Materials, information, decisions and approvals promptly, and ensure they are accurate and complete;
   3. tell us promptly of anything that may affect the Services, including changes to your products, pricing, availability or advertising claims;
   4. keep your website, landing pages and booking or check-in pages lawful, including obtaining valid consent for cookies, pixels and similar technologies where required by the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the UK GDPR;
   5. hold and maintain the Ad Accounts in your own name and comply with each Advertising Platform's terms and policies; and
   6. pay Media Spend directly to the Advertising Platform, unless the Engagement Letter states otherwise.
2. You warrant that:
   1. you own or have the right to use the Client Materials, and our use of them under the Agreement will not infringe the rights of any third party;
   2. all claims, prices, offers and descriptions you ask us to use are accurate, substantiated and not misleading; and
   3. the Client Materials and your instructions comply with applicable law and codes, including the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code), the Digital Markets, Competition and Consumers Act 2024 and consumer protection law.
3. You are responsible for the content of your advertising. We may decline to run any advertising that we reasonably believe is unlawful, breaches an Advertising Platform's policies or exposes either party to liability, and we will tell you promptly if we do.
4. You will indemnify us against all losses, damages, costs and expenses (including reasonable legal costs) arising from any breach of clause 3.2, or from any third-party claim relating to the Client Materials or your instructions.
5. If you delay in performing any of your obligations, we may extend any affected timescales, and our own obligations are suspended to the extent that your delay prevents us from performing them. The Fees remain payable during any such delay.

4. No guarantee of results and platform risk

1. Advertising outcomes depend on many factors outside our control. We do not guarantee any particular result, return on ad spend, volume of leads or sales, cost per acquisition or other performance metric, regardless of any forecast, target, estimate or previous performance.
2. We do not control any Advertising Platform. We are not responsible for:
   1. the suspension, restriction or closure of the Ad Accounts, ad rejections, policy changes, algorithm changes, outages, delays or errors of any Advertising Platform;
   2. Media Spend charged by an Advertising Platform, including spend incurred during a platform error or before an instruction to pause or change a campaign takes effect; or
   3. any other act or omission of an Advertising Platform.
3. If an Advertising Platform suspends or restricts the Ad Accounts, we will use reasonable endeavours to assist you with any appeal. The Fees remain payable during any suspension unless the Agreement is terminated under clause 10.

5. Fees and payment

1. You will pay the Fees set out in the Engagement Letter. The Fees are exclusive of VAT, which we will add at the applicable rate.
2. Unless the Engagement Letter states otherwise, we invoice monthly in advance and each invoice is payable within 14 days of its date by bank transfer to the account stated on the invoice.
3. Where any part of the Fees is calculated by reference to Media Spend, the amount of Media Spend is the gross amount billed by the Advertising Platform for the relevant period, before VAT and before any credits, refunds or coupons applied by the platform, as shown in the platform's billing reports.
4. If you do not pay an invoice by its due date, we may:
   1. charge interest and compensation on the overdue amount under the Late Payment of Commercial Debts (Interest) Act 1998;
   2. on 5 business days' written notice, suspend the Services (including pausing live campaigns) until payment is received; and
   3. if any undisputed amount remains unpaid 30 days after its due date, terminate the Agreement under clause 10.3.
5. If you dispute an invoice in good faith you must tell us in writing within 7 days of its date, giving your reasons, and pay the undisputed part by the due date. Both parties will work in good faith to resolve the dispute promptly.
6. We may change the Fees on at least 30 days' written notice, taking effect from the start of the next renewal period. If you do not accept the change, you may terminate the Agreement by written notice given before the change takes effect.
7. Media Spend is your responsibility and is payable by you directly to the Advertising Platform. If we agree in writing to pay Media Spend on your behalf, we will re-charge it to you at cost plus any handling fee agreed in the Engagement Letter, payable in accordance with clause 5.2.
8. All sums are payable in full without set-off, deduction or withholding, except as required by law.

6. Intellectual property and advertising accounts

1. You retain ownership of the Client Materials and the Ad Accounts, including all data, audiences, pixels and campaign history within them. You grant us a non-exclusive, royalty-free licence to use the Client Materials and to access and operate the Ad Accounts for the purpose of providing the Services during the term of the Agreement.
2. We own all intellectual property rights in our methods, tools, know-how, templates, processes and materials that existed before the Agreement, are developed independently of it or are of general application ("Swell IP"), including any improvements to them made during the Services.
3. We own the intellectual property rights in the Deliverables until you have paid in full the Fees relating to them. On payment, we grant you a non-exclusive, perpetual, royalty-free, non-transferable licence to use the Deliverables for your own business purposes, including within the Ad Accounts after the Agreement ends. This licence does not extend to Swell IP except to the extent it is embedded in the Deliverables.
4. You must not resell, sub-license or make the Deliverables available to any third party without our prior written consent, except to a replacement agency or contractor acting on your behalf.
5. Deliverables may include third-party materials (such as stock images, fonts or music) that are licensed on their own terms. We will tell you of any such terms that restrict your use.
6. Nothing in the Agreement transfers to us any intellectual property rights in the Client Materials or the Ad Accounts.
7. Neither party will use the other's name, logo or trade marks without the other's consent, except as permitted by clause 11.3.

7. Confidentiality

1. Each party will keep confidential all information of a confidential nature that it receives from the other under or in connection with the Agreement (including business, financial, customer, pricing and performance information), use it only for the purposes of the Agreement, and not disclose it to any third party except:
   1. to its employees, subcontractors and professional advisers who need to know it and are bound by equivalent obligations of confidence; or
   2. as required by law, a court or a regulator, in which case it will (where lawful) tell the other party first.
2. Clause 7.1 does not apply to information that is or becomes publicly available other than through a breach of the Agreement, was already lawfully in the receiving party's possession, or is independently developed without use of the other party's information.
3. This clause continues for five years after the Agreement ends.

8. Data protection

1. In this clause, "Data Protection Laws" means the UK GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, each as amended (including by the Data (Use and Access) Act 2025), and any other applicable law relating to personal data. "Controller", "processor", "data subject", "personal data", "personal data breach" and "processing" have the meanings given in the UK GDPR.
2. Each party will comply with the Data Protection Laws. This clause is in addition to, and does not relieve either party of, its own obligations under those laws.
3. Roles. Where we process personal data on your behalf in the course of the Services (for example, customer data captured through your booking and check-in pages and used for audiences, conversion tracking or reporting), you are the controller and we are the processor. Schedule 1 sets out the details of that processing. Each party is a separate controller of the business contact details of the other's personnel.
4. Your obligations as controller. You will ensure that you have a lawful basis for the processing, that data subjects have been given the privacy information required by the Data Protection Laws, that any consents required (including consents under PECR for cookies, pixels and similar technologies) have been obtained, and that your instructions to us comply with the Data Protection Laws.
5. Our obligations as processor. In relation to personal data we process on your behalf, we will:
   1. process it only on your documented instructions (which include the Agreement and instructions given in the ordinary course of the Services), unless required to do otherwise by law, in which case we will tell you before processing unless the law prevents this;
   2. tell you immediately if, in our opinion, an instruction infringes the Data Protection Laws;
   3. ensure that persons authorised to process it are bound by obligations of confidentiality;
   4. implement appropriate technical and organisational measures to protect it against unauthorised or unlawful processing and against accidental loss, destruction or damage;
   5. not engage a sub-processor without your prior general or specific authorisation. You authorise the sub-processors listed in Schedule 1. We will give you at least 7 days' written notice of any intended addition or replacement; if you object on reasonable grounds and we cannot resolve your objection, either party may terminate the affected Services on written notice. We will impose on each sub-processor obligations equivalent to those in this clause and remain liable to you for its performance;
   6. taking into account the nature of the processing, assist you by appropriate technical and organisational measures in responding to requests from data subjects exercising their rights, and forward to you without undue delay any such request we receive;
   7. assist you in meeting your obligations relating to security, personal data breach notification, data protection impact assessments and prior consultation with the Information Commissioner, taking into account the nature of the processing and the information available to us;
   8. notify you without undue delay, and in any event within 48 hours, after becoming aware of a personal data breach affecting it, and give you the information you reasonably need to meet your own notification obligations;
   9. at your choice, delete or return all of it to you when the Services end, and delete existing copies unless the law requires us to keep them; and
   10. make available to you the information necessary to demonstrate compliance with this clause and allow for and contribute to audits and inspections by you or an auditor you mandate, on reasonable notice, no more than once in any 12-month period unless required by a regulator or following a personal data breach.
6. International transfers. We will not transfer personal data we process on your behalf outside the United Kingdom unless the destination is covered by UK adequacy regulations or the transfer is protected by an appropriate safeguard under Article 46 of the UK GDPR (such as the International Data Transfer Agreement or Addendum issued by the Information Commissioner).
7. Advertising Platforms. Your use of each Advertising Platform is governed by your own agreement with that platform, including its data processing terms. Advertising Platforms are not our sub-processors, and we are not responsible for their processing of personal data.
8. Our liability under this clause is subject to clause 9.

9. Limitation of liability

1. Nothing in the Agreement limits or excludes either party's liability for:
   1. death or personal injury caused by its negligence;
   2. fraud or fraudulent misrepresentation; or
   3. any other liability that cannot lawfully be limited or excluded.
2. Subject to clause 9.1, we are not liable to you, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for:
   1. loss of profit, revenue, sales, business, contracts or anticipated savings;
   2. loss of or damage to goodwill or reputation;
   3. loss or corruption of data, other than loss caused by our breach of clause 8;
   4. wasted Media Spend; or
   5. any indirect or consequential loss.
3. Subject to clauses 9.1 and 9.2, our total aggregate liability arising out of or in connection with the Agreement, however arising, shall not exceed the greater of:
   1. the total Fees paid or payable by you in the 12 months immediately before the event giving rise to the claim; and
   2. £25,000.
4. We are not liable for any loss to the extent it arises from the Client Materials, your instructions, your breach of the Agreement, any act or omission of an Advertising Platform (see clause 4), or our reliance on information you supplied that was inaccurate or incomplete.
5. Except as expressly set out in the Agreement, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
6. Nothing in this clause limits your obligation to pay the Fees or Media Spend.

10. Term and termination

1. The Agreement starts on the date stated in the Engagement Letter and continues for the initial term stated there. It then renews automatically for successive renewal periods until terminated by either party in accordance with the Engagement Letter or this clause.
2. Either party may terminate the Agreement immediately by written notice if the other party:
   1. commits a material breach of the Agreement which is irremediable or, if remediable, is not remedied within 14 days of a written notice requiring it to be remedied; or
   2. becomes insolvent, enters administration or liquidation, makes an arrangement with its creditors, has a receiver appointed over any of its assets, ceases to trade, or suffers any equivalent event in any jurisdiction.
3. We may also terminate the Agreement immediately by written notice if any undisputed amount remains unpaid 30 days after its due date, or if the Ad Accounts have been closed or suspended by an Advertising Platform for more than 30 days.
4. On termination or expiry:
   1. you will pay all Fees accrued up to the date of termination and, where the Agreement is terminated by us under clause 10.2 or 10.3, the Fees for the remainder of the notice period that would otherwise have applied;
   2. we will pause live campaigns unless you instruct us otherwise in writing;
   3. we will remove our access to the Ad Accounts and, on request and on payment of all outstanding Fees, provide a reasonable handover of campaign structures and settings to you or your nominated agency;
   4. each party will, on request, return or destroy the other's confidential information, and we will deal with personal data in accordance with clause 8.5(i); and
   5. the licence in clause 6.1 ends, and the licence in clause 6.3 continues in respect of any Deliverables for which the Fees have been paid.
5. Termination does not affect any rights or remedies accrued before termination. Clauses 5, 6, 7, 8.5(i), 9, 10.4, 10.5, 11, 13 and 14 continue after termination, together with any other provision which by its nature is intended to survive.

11. Non-disparagement and case studies

1. Neither party will make any statement, in any medium (including social media and online forums), which disparages or defames the other party or its officers, employees or agents, during or after the Agreement.
2. Nothing in clause 11.1 prevents either party from making a truthful statement required by law or in connection with legal proceedings, raising a complaint or concern with a regulator, professional body or Advertising Platform, making a protected disclosure under the Employment Rights Act 1996, or giving honest feedback on the Services directly to the other party.
3. We may name you as a client and describe the results of the Services in percentage or comparative terms in our marketing. We will send you any case study or other publication that identifies you by name for your approval before it is published, and we will not disclose your confidential information in doing so.

12. Force majeure

1. Neither party is liable for any delay or failure to perform its obligations caused by an event beyond its reasonable control, including natural disaster, epidemic, war, terrorism, civil unrest, industrial action (other than by its own staff), government action, failure of utilities, telecommunications or the internet, or the outage, suspension, restriction or policy change of an Advertising Platform. Lack of funds is not such an event, and this clause does not excuse the payment of sums due.
2. The affected party will tell the other party promptly and use reasonable endeavours to reduce the effect of the event. If the event continues for more than 30 days, either party may terminate the Agreement on written notice.

13. General

1. Entire agreement. The Agreement is the entire agreement between the parties in relation to its subject matter and supersedes all previous agreements, proposals, representations and understandings between them, whether written or oral. Each party acknowledges that it has not relied on any statement, representation or warranty that is not set out in the Agreement. Nothing in this clause limits liability for fraud.
2. Variation. We may update these Terms on at least 30 days' written notice. Updated Terms apply from the start of the next renewal period; if you object, you may terminate the Agreement by written notice before they take effect, and the previous Terms apply until then. Any other variation, including any variation of the Engagement Letter, must be in writing and agreed by both parties (an exchange of emails between authorised representatives is sufficient).
3. Assignment. Neither party may assign or transfer the Agreement without the other's prior written consent (not to be unreasonably withheld), except that we may subcontract under clause 2.3, and either party may assign the Agreement on written notice to a successor to all or substantially all of its business.
4. Third-party rights. No person other than the parties has any right to enforce any term of the Agreement under the Contracts (Rights of Third Parties) Act 1999.
5. Notices. Notices under the Agreement must be in writing and sent to the postal or email address stated in the Engagement Letter or notified later in writing. A notice is deemed received: if delivered by hand, on delivery; if sent by first-class or recorded post, on the second business day after posting; if sent by email, at the time of sending if sent before 5pm on a business day, otherwise at 9am on the next business day.
6. Waiver. No failure or delay in exercising any right or remedy is a waiver of it, and no waiver is effective unless it is in writing.
7. Severability. If any provision of the Agreement is or becomes invalid or unenforceable, it is deemed modified to the minimum extent necessary to make it valid, and the remainder of the Agreement is not affected.
8. No partnership. Nothing in the Agreement creates a partnership, joint venture, agency or employment relationship between the parties, and neither party may bind the other.
9. Compliance. Each party will comply with the Bribery Act 2010 and the Modern Slavery Act 2015 in connection with the Agreement.
10. Disputes. Before starting proceedings, the parties will attempt in good faith to resolve any dispute by discussion between senior representatives, except where a party needs urgent relief or is recovering an undisputed debt.

14. Governing law and jurisdiction

1. The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it, its subject matter or its formation are governed by the law of England and Wales.
2. The courts of England and Wales have exclusive jurisdiction to settle any such dispute or claim, except that we may bring proceedings to recover unpaid sums in any court that has jurisdiction over you.

Schedule 1 — Data processing particulars

This Schedule describes the processing we carry out on your behalf under clause 8.

• Subject matterManagement of advertising campaigns for the Client on Meta and any other Advertising Platform named in the Engagement Letter
• DurationThe term of the Agreement, plus the period needed to return or delete the data under clause 8.5(i)
• Nature and purposeConfiguring conversion tracking and audiences; uploading customer lists for audience matching; campaign optimisation; measurement and reporting
• Types of personal dataNames, email addresses, phone numbers and postcodes; online identifiers (cookie IDs, pixel and click IDs, IP addresses); booking, check-in and transaction data; website and ad engagement data
• Categories of data subjectsThe Client's customers, prospective customers and website visitors
• RetentionReturned or deleted within 30 days after the Services end, unless the law requires otherwise
• Location of processingUnited Kingdom

Advertising Platforms (including Meta and Google) process personal data under the Client's own agreements with them and are not our sub-processors (clause 8.7).