Media Booking Terms & Conditions
The below terms and conditions relate to all media bookings placed by the Agency with the Supplier.
1. Provision of Services
1.1. Subject to the terms and conditions set out in this agreement, together with any documents referenced or attached to it and any IO entered into pursuant to it (“Agreement”), the Agency hereby engages the Supplier to provide, and the Supplier hereby agrees to provide to the Agency, the Services set out in each IO.
1.2. The relationship between the Parties is non-exclusive, and the Supplier understands that the Agency does not guarantee that the Supplier will be given any particular level of business.
1.3 This Agreement will govern the relationship between the Parties for the term of this Agreement, to the exclusion of any Supplier terms, purchase orders, invoices or any other third party’s terms. Each party acknowledges that the terms set out in this Agreement constitutes the entire agreement and understanding between the Parties in relation to the Services
2. Insertion Order
2.1 As and when the Agency requires any Services from the Supplier, the Agency will negotiate IOs with the Supplier in relation to any Services it requires. The Parties will agree and sign the relevant IO, at which time it shall become binding on both Parties.
2.2 The Supplier will:
a) perform the Services and ensure that any deliverables and all Services comply with the service description set out in the applicable IO;
b) render the Services by the completion dates set forth in the applicable IO or as agreed in writing where accompanied by a PO; and
c) perform its obligations under this Agreement in compliance with, and ensure that the services comply with, all applicable laws, regulations, regulatory policies, guidelines and/or codes of practice in each case from time to time in force.
2.3 The Supplier will not perform any Services or incur any costs on behalf of the Agency that are not expressly authorized in an applicable IO unless the Agency has delivered to the Supplier a PO for the Services to be rendered and related costs under such IO.
2.4. Both the Supplier and the Agency shall name a project manager in each IO. The Supplier’s project manager shall be responsible for the direct management and supervision of the Supplier’s personnel in performing the Services under the IO and shall be available at all reasonable times to report and confer with the Agency’s project manager. The Supplier’s project manager will immediately inform the Agency of any circumstances or changes made which may impact adversely the Services agreed in the IO.
2.5. At the Agency’s request, the Supplier shall provide such information and prepare and submit to the Agency such documentation (including, without limitation campaign reports and/or evaluations) as may be requested or otherwise necessary to evidence the progress and results of the Services.
3.1. Each Party shall keep the other Party’s Confidential Information confidential. Neither Party will divulge or use Confidential Information disclosed by, or on behalf of, the other Party to any third party (other than to its professional advisers and contractors that need to know the Confidential Information to perform the Services and are under a duty of confidentiality) without the prior written permission of that other Party, except to the extent necessary for the purposes of performing the Services set out in the relevant IO.
3.2. The obligation of confidence shall not apply to any material or information which is:
a) in the public domain (other than as a result of a breach by the disclosing Party of this Agreement)
b) already lawfully known to the receiving third party prior to the disclosure;
c) lawfully received from a third party;
d) required to be disclosed for the purposes of any judicial proceedings arising out of a breach of this Agreement or pursuant to an order of a court or other tribunal or regulatory authority of competent jurisdiction, provided that such Confidential Information is only disclosed to the required extent; or
e) required to be disclosed by an applicable law, or by or in connection with the rules of any stock exchange.
3.3 This clause 3 will survive termination or expiry of this Agreement.
4. Payment Terms
4.1. In consideration for the Services, the Agency shall pay the Supplier the amounts as agreed and set forth in the applicable IO. The Agency will make all payments in the amounts and at the milestones agreed in the relevant IO.
4.2. It is the responsibility of the Supplier to submit invoices in a timely manner. Invoices should be issued promptly after the Services have been performed, and all invoices must be received by the Agency within 12 months of receipt of the Services (as set on the start date of the IO or as agreed in writing where accompanied by a PO). The Agency will not accept liability for payment of Supplier invoices received more than 12 months after the Supplier’s delivery of the Services.
4.3. The Supplier agrees that the Agency shall not be responsible for any fees or costs that exceed the amount stated in the IO, unless such reasonable expenditure is pre-approved by the Agency in writing.
4.4. All amounts payable under this Agreement or an IO shall be exclusive of sales, use, value added, goods and services and all other similar taxes (but not including withholding tax), if any, imposed by any federal, state or local governmental entity for any taxable supply under an IO which, if applicable, shall be payable in addition by the Agency at the rate and in the manner prescribed by applicable law, subject to receipt of a valid tax invoice.
4.5 The Supplier shall be solely responsible for its own income, profit, and other taxes and all employment-related costs and obligations to the Supplier’s personnel incurred in connection with the Services.
4.6. Provided that the Agency has received the Services from the Supplier, the Agency shall make payments to the Supplier within 30 days of the Agency’s receipt of an undisputed and accurate invoice, such invoice to be submitted in a format to be mutually agreed upon by the Parties and upon the schedule described in the applicable IO.
4.7. Payment for the Services shall not constitute the Agency’s approval or acceptance of the Services.
4.8. If the Supplier is delinquent or tardy in performing obligations relating to milestones or Services described in any IO in the Agency’s reasonable opinion, (without prejudice to any other remedies available to the Agency) the Agency may delay payment of the amount due until such milestones are met or Services fully performed.
4.9. If a payment dispute arises, the Agency shall notify the Supplier of the amount in dispute and the basis of such dispute no later than 30 days from receipt of the invoice in question. The Agency shall pay the undisputed amount of the relevant invoice in accordance with this Agreement. The Agency shall not be in default of its obligation to pay the disputed part of the invoice while the dispute remains unresolved.
5. IO amendment or termination
5.1. If either Party desires to amend an IO, then such Party shall give the other Party written notice of the requested changes including a description of their impact on the Services in the existing IO. If the Parties cannot agree on such changes, at the Agency’s sole discretion, the Supplier shall either continue to perform the original agreed Services as set out in the IO, or the Agency shall have the right to terminate the IO upon written notice to the Supplier as set out in clauses 9.2 and 9.3.
6. Representations and Warranties
6.1. The Supplier warrants and represents that:
a) it legally exists under the laws of the jurisdiction of its organisation and shall comply with all applicable laws, rules, regulations, generally applicable industry standards and codes of practice including those attributable to self-regulation (including, but not limited to, anti-corruption laws, rules, regulations, legislation and conventions);
b) it has power and authority to perform the Services under this Agreement and this Agreement is enforceable against the Supplier in accordance with its terms and conditions;
c) it has obtained, or will obtain, any and all permits, licenses and/or governmental or third party consents, approvals or assignments in a timely manner which are required in connection with the delivery or performance of this Agreement by the Supplier or in order to enable the Supplier to provide and the Agency to use any Services under this Agreement;
d) all Services will be performed in a timely manner with a high level of care, skill and diligence in accordance with the terms and conditions set forth in the applicable IO and consistent with industry acceptable practices;
e) the costs payable by the Agency hereunder are as low as or lower than amounts charged by the Supplier to any other customer purchasing the same type and quantity of Services; and
f) the Services; will be in compliance with all applicable laws, rules and regulations (including, but not limited to, anti-corruption laws, rules, regulations, legislation or conventions); will be consistent with the Marketing Code; and will not, nor will the use thereof, violate, misappropriate or infringe any third party IPR or other third party rights.
7. Intellectual Property
7.1 Other than as expressly stated in this Agreement, all IPRs owned by, or vested in, a Party prior to the Effective Date (and any modification or enhancement of any such IPRs) shall remain owned by, or vested, that Party.
7.2 The Supplier acknowledges and agrees that the Agency, or the Agency’s clients or licensors, own all IPRs in the Client Materials. Other than as expressly set out, nothing in this Agreement transfers or grants the Supplier any rights in the Client Materials. On expiry or termination of any IO or this Agreement, the Supplier must immediately cease using (and return or destroy) all Client Materials provided to Supplier by the Agency pursuant to this Agreement.
7.3 For the purposes of performing the Services for the term of the relevant IO, the Agency is granted a revocable, non-exclusive, non-transferable, non-sublicensable right to use the Client Materials in order to perform the Services as set out in the relevant IO. The Supplier may not edit or modify any Client Materials, other than as agreed in writing with the Supplier.
7.4 The Agency acknowledges and agrees that it will be responsible for providing the Client Materials to the Supplier in accordance with any agreed specifications and timeframes. The Agency will use reasonable endeavours to ensure that it meets the Supplier’s reasonable timeframes in relation to any further information or approvals required. To the Agency’s knowledge, all Client Materials it provides to the Supplier will not infringe any third party IPRs, be defamatory, libelous, obscene or deceptive, or otherwise violate any applicable law, statute or regulation.
8. Liability and Indemnification.
8.1. The Supplier shall promptly indemnify, defend and hold harmless the Agency and its officers, directors, shareholders, employees, agents, successors and assigns (the “Indemnitees”) from and against any and all claims arising out of (a) the rendering of the Services or other performance of this Agreement by the Supplier (or any of its agents); (b) the breach of any term of this Agreement by the Supplier, including (without limitation) clauses 3 (Confidentiality), 7.2 (Licence) and 11 (Data Protection) in this Agreement . The foregoing indemnity shall not be limited in any manner whatsoever by any required or other insurance coverage maintained by the Supplier.
8.2 Subject to clauses 8.3 and 8.4, the Agency’s total liability to Supplier, whether in contract, tort (including negligence), for breach of statutory duty or otherwise, arising out of or in connection with this Agreement (and all IOs entered into pursuant to its terms) shall be limited to the amounts paid and payable by the Agency under the relevant IO under which, and at the point, the claim is made.
8.3 Subject to clause 8.4, neither Party shall be liable to the other Party for any indirect, consequential or special loss arising out of, or in connection with, this Agreement.
8.4 Nothing in this Agreement shall exclude or limit:
a) either Party’s liability for death or personal injury caused by its (or its agent’s or sub-contractor’s) negligence or for fraud or fraudulent misrepresentation;
b) Supplier’s liability, whether categorised as direct or indirect Loss, to the Agency arising out of a breach of clause 2.2b) (Compliance with Laws), clause 3 (Confidentiality) or clause 11 (Personal Data);
c) Supplier’s liability under the indemnity under clause 8.1; or
d) either Party’s liability that cannot, as a matter of law, be limited or excluded.
8.5 The Supplier shall, at its own cost, ensure that commercial general liability insurance cover, professional indemnity insurance cover and public liability insurance cover insurance policies are taken out and maintained during the term with reputable insurers and that the level of cover and other terms of insurance are sufficient to cover Supplier’s obligations and liability under this Agreement and associated IOs, and in any event that each policy provides cover of not less than £5 million. Supplier shall, on request, supply to the Agency a certificate (or such other evidence as the Agency may reasonably require) of the terms of the insurances together within evidence of payment of the last premium.
9. Term and Termination
9.1 This Agreement will commence on the Effective Date following which this Agreement will continue in full force and effect, subject to earlier termination in accordance with the terms of this Agreement.
9.2. The Agency may terminate the Services under an IO in whole or in part at any time:
a) by giving 30 days prior written notice to the Supplier; and
b) by written notice to the Supplier if the Supplier fails to render the Services as, or in the manner, described in such IO (as determined by the Supplier, acting reasonably).
Upon termination under a) above, the Agency shall compensate the Supplier for the Services completed in accordance with the IO and not paid for, and pre-approved costs incurred, up to the date of termination of such IO.
9.3 Without affecting any other right or remedy available to it, either Party may terminate this Agreement or any IO with immediate effect by giving written notice to the other Party if:
a) the other Party commits a material breach of that IO and/or this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within 10 business days after being notified in writing to do so;
b) the other Party has a receiver, administrator, administrative receiver or manager appointed over the whole or any part of its assets, becomes insolvent, compounds or makes any arrangement with its creditors, commits any act of bankruptcy, is wound up or goes into liquidation; or
c) any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.3(b).
9.4 Termination or expiry of any IO will not, in itself, result in the termination of any other IO or this Agreement. Termination (but not expiry) of this Agreement for any reason, will automatically terminate all IO’s in effect at the time of such termination unless the Parties expressly agree otherwise.
9.5 On termination or expiry of any IO for any reason, Supplier shall:
a) immediately cease all further performance of the Services; and
b) deliver to the Agency, promptly, in accordance with Agency’s instructions, all deliverables and any/all Agency materials (including without limitation any Confidential Information) relating to that IO that are in its possession or control at the date of termination or expiry.
9.6 On termination or expiry of this Agreement for any reason (and except only to the extent and duration necessary for the performance of any surviving IO), each Party will promptly return to the other Party (or at the other Party’s option, destroy) all copies of Confidential Information belonging to the other Party that are in its possession or control. These obligations will, however, not apply to any Confidential Information of the other Party which it is required to retain under applicable laws or regulations.
9.7 The expiry or termination of any IO or this Agreement for any reason shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
10.1. The Supplier may not subcontract any of its obligations under this Agreement except with the prior written approval of the Agency. The Supplier shall remain fully responsible for any and all such subcontracted obligations, and for the acts and omissions of its subcontractors.
10.2. The Supplier may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agency.
11. Data Protection
11.1. For the purposes of this clause 11, “personal data”, ”data subject”, and “processing” have the meanings given to these terms in the Data Protection Law.
11.2 Each Party agrees to comply with its relevant obligations under Data Protection Law in relation to the processing of any personal data pursuant to this Agreement and to ensure the protection of the rights of the data subjects.
12. Governing Law and Jurisdiction
12.1 This Agreement shall be governed exclusively by, and enforced in accordance with, the laws of England and Wales. Each Party hereby (a) submits to the exclusive jurisdiction and forum of the courts that have jurisdiction in England and Wales; and (b) waives, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.
13. Dispute Resolution
13.1. In the event of any dispute between the Parties arising hereunder, each Party will use commercially reasonable efforts to amicably resolve such dispute prior to seeking redress through formal legal action, provided, that actions by either Party seeking equitable or declaratory relief may be brought in court pursuant to Section 12 (Governing Law and Jurisdiction).
14. Force Majeure
14.1. Each Party shall promptly notify the other Party upon becoming aware that a Force Majeure Event has occurred or is likely to occur and shall use its reasonable best efforts (at its own cost) to minimize any resulting delay in or interference with the performance of its obligations hereunder. Subject to the foregoing, neither Party shall be liable for any delay resulting from a Force Majeure Event and relevant performance dates shall be extended to the extent of any such delay.
15.1. Variation. No variation of this Agreement shall be effective unless it is agreed by both parties in writing.
15.2 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.
15.3. Severance. If any provision or part-provision of this Agreement or any part of the IO 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 or IO.
15.4 Counterparts: This Agreement may be executed in any number of counterparts and by different Parties on separate counterparts, each of which shall be an original and all of which shall together constitute a single agreement.
16.1. In this Agreement the following words and expressions will have the following meanings:
“Agency”: Capture Marketing Ltd.
“Client Materials”: means any work, artwork, logos, marketing, branding and any other materials provided (in whatever format) by the Agency in relation to any IO.
“Confidential Information”: any information, however conveyed or presented (whether disclosed orally or in writing), and/or made available by or on behalf of a Party to the other party whether before or after the Effective Date, that relates to the business, affairs, operations, customers, members, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, personnel and suppliers of the disclosing Party, or its affiliates, together with all information derived by the receiving party from any such information and any other information clearly designated by a Party as being confidential to it (whether or not it is marked “confidential”), or which ought reasonably be considered to be confidential.
“Data Protection Law”: means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) or equivalent legislation, or, until such date as the Regulation shall apply, the Data Protection Directive 95/46/EC; the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003), and all other applicable laws (including judgements of any relevant court of law) and regulations relating to the processing of personal data, data privacy and data security, as amended or updated from time to time.
“Force Majeure Event”: with respect to either Party, means any event which is beyond the reasonable control of the affected Party, including a natural disaster; any communication line or power failure arising through no fault of such Party; and/or any judicial or governmental order or action not arising out of any action or omission of such Party.
“Intellectual Property Rights” or “IPRs”: means patents, applications for patents, utility models, applications for utility models, domain names, trade marks, service marks or trading names (whether or not registered or unregistered rights, including rights to prevent passing off), rights in know-how (including trade secrets, technology, methods of manufacture, specifications and other information), designs (registered or unregistered and including applications for registered designs), database rights, rights to use and protect the confidentiality of confidential information, copyright (including rights in any design or computer software), topography rights and other rights in semi-conductor chips, rights in inventions, the right to apply for any or all of such rights, the right to claim damages for past infringements of any or all such rights and all rights having equivalent or similar effect wherever situated (whether or not the same are registered or capable of registration).
“IO”: means the insertion order (the form of which may vary from time to time), on which the Agency orders media from the Supplier.
“PO”: means purchase order, the form or equivalent official confirmation of a media order from the Agency to the Supplier.
“Party”: the Agency or the Supplier and “Parties” means both.
“Services”: means the Supplier’s delivery of the media described in the relevant IO, as agreed by the Parties.
“Supplier”: the media Supplier to whom the Agency has supplied a PO.
16.2 In this Agreement:
a) use of the singular includes the plural and vice versa, and use of any gender includes the other genders;
b) a reference to a Party is to a party to this Agreement and includes that Party’s personal representatives, successors and permitted assignees;
c) a reference to persons includes individuals, corporations, unincorporated bodies and associations which are recognised at law (whether or not having separate legal personality);
d) any reference to a statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under it as from time to time amended, consolidated or re-enacted; and
e) general words are not to be given a restrictive meaning because they are followed by examples, and any words introduced by the word “including” or any similar expression are to be construed as illustrative and shall not limit the sense of the related general words.