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 Booking Form entered into pursuant to it (together the “Agreement”), the Client hereby engages the Agency to provide, and the Agency hereby agrees to provide to the Client, the Services set out in each Booking Form.
1.2 This Agreement will govern the relationship between the Parties for the term of this Agreement, to the exclusion of any Client 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. Booking Form
2.1. As and when the Client requires any Services from the Agency, the Agency will provide a Booking Form in relation to those Services. The Parties will agree and sign the relevant Booking Form, at which time it shall
become binding on both Parties and the Client makes a commitment for the Agency to provide the Services detailed in the Booking Form.
2.2 The Client shall provide the relevant Client Materials to the Agency upon signing the Booking Form to enable the Agency to deliver the Services. The Agency may disclose any relevant information (including but not limited to distribution store lists, media activity store lists, secondary space store lists, promotional dates, artwork) to relevant third parties in the course of implementing the Services.
2.3 The Client shall be solely responsible for ensuring that the Client Materials and any other information it supplies to the Agency is correct, accurate and complies with all applicable law (including, without limitation, the Advertising Regulations).
2.4. The Client acknowledges and agrees that once the Agency makes a media booking on the Client’s behalf pursuant to a Booking Form, the Agency is bound by the terms of the Media Owner’s cancellation periods. By proxy, in signing a Booking Form, the Client agrees that it is also bound by the Media Owners’ terms and
conditions in addition to the terms of this Agreement. Therefore, while the Agency will use reasonable endeavours to obtain a full refund if requested to cancel a media booking by the Client (in accordance with this Agreement), the Client acknowledges and agrees that this outcome cannot be guaranteed and the Client may be liable for the full cost of the cancelled media booking made as part of the Services. If requested, the Agency can provide the relevant Media Owners’ terms and conditions to the Client.
2.5 In performing the Services, the Agency will comply with:
a. the terms of this Agreement and any Booking Form; and
b. all applicable laws, including the Advertising Regulations.
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 Booking Form.
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 The Client acknowledges and agrees that the Estimates and/or Quotes provided to it by the Agency are the Agency’s Confidential Information.
3.4 If the Client would like any information to be kept confidential from a third party, the Client will confirm this with the Agency in writing at the time of supplying such information. The Agency will advise if / how withholding such Confidential Information will impact or detriment the Services detailed.
3.5 This clause 3 will survive termination or expiry of this Agreement.
4. Payment Terms
4.1. On request from the Client for Services from the Agency, the Agency shall provide a booking form with Quotes for all applicable Services and Estimates for any media. Estimates are accurate at the time of provision. In a case
a. the final booked cost is lower than the agreed amount stated on the Booking Form, the Agency will either up-weight the coverage, keep the cost difference in credit for the Client to spend on future Services or not invoice the difference to the Client.b. the final cost is higher than the agreed amount stated on the Booking Form, a new Booking Form will be supplied for further approval, which overwrites the details on the original Booking Form. All Estimates are
subject to availability at the time of booking.
4.2. The full value of any media booked and the Campaign Management Fee will be invoiced by the Agency as soon as the first element of media goes live as detailed on the Booking Form. Other Service elements such as consultancy, creative, artwork and evaluations will be invoiced to the Client by the Agency on delivery. Subject to clause 4.4, the Client shall pay each invoice submitted by the Agency within 30 days of the date of the invoice tothe bank account nominated by the Agency, unless agreed otherwise in writing.
4.3. All amounts payable by the Client under the Booking Form or this Agreement 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 a Booking Form which, if applicable, shall be payable in addition by the Client at the rate and in the manner prescribed by applicable law, subject to
receipt of a valid tax invoice.
4.4. If a payment dispute arises, the Client shall notify the Agency of the amount in dispute and the basis of such dispute no later than 20 days from receipt of the invoice in question. The Client shall pay the undisputed amount of the relevant invoice in accordance with this Agreement. The Client shall not be in default of its obligation to pay the disputed part of the invoice while the dispute remains unresolved.
4.5. If the Client fails to make any payment due to the Agency under the Booking Form by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 1% per cent per month above the Bank of England base rate from time to time. Such interest shall accrue on a monthly 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.
4.6. In the instance where a full or partial refund has been agreed by the Agency with the Media Owner on the Client’s behalf, in such circumstances including but not limited to cases of non-compliance by the Media Owner with the relevant order placed by the Agency, the Agency reserves the right to charge a 15% admin charge of the amount refunded in order to refund the Client. If the Client chooses to hold the value in credit with the Agency, no such admin charge will apply.
5. Intellectual Property Rights
5.1 Other than as expressly stated in this Agreement, each Party (or its licensors) shall retain ownership of its Background IPRs. Other than as expressly set out, nothing in this Agreement transfers or grants the Agency any
rights in or to the Client Materials.
5.2. Unless otherwise stated in the Booking Form and subject to clauses 5.1, 5.3 and 5.4, the Agency will use all commercially reasonable endeavours to ensure that all IPRs in or arising out of or in connection with:
a. the billed artwork Services provided by the Agency excluding all Service IPR;
b. the data Services provided by the Agency under any Booking Form; and
c. evaluation results arising from any data Services provided by the Agency under any Booking Form,
(together, “Client IPR”) is transferred to or vests in the Client on the completion of the relevant Services or payment in full for the relevant Services, with the exception of stock imagery, which may incur extra cost when
used in mediums outside of the intended use.
5.3. The Client hereby grants to the Agency (and any of its affiliates, agents or contractors) an irrevocable, world- wide, non-exclusive, royalty-free and fully paid-up licence to use:
a. the Client’s Background IPRs and the Client Materials provided to it in order to perform the Services set out in any relevant Booking Form. The Agency agrees not to modify any Client Materials, other than as agreed in advance with the Client; and
b. the Client IPR (and to the extent necessary for the Agency to use the Client IPR in accordance with this
Agreement, the Client’s Background IPRs) for the Agency’s business use. The Client acknowledges that the results of all evaluations licensed by the Client to the Agency under this clause 5.3, will form part of the Agency’s central evaluation database. These results will be aggregated and anonymized, and can be used
at the discretion of the Agency without any further approval required from the Client.
5.4. Subject to clause 5.1, in relation to planning, training and consultancy Services provided by the Agency, all IPRs in or arising out of or in connection with the Deliverables and/or Services shall be owned by the Agency on creation (“Service IPR”). The Agency hereby grants to the Client (and its contractors) a revocable, world-wide, non-exclusive, royalty-free licence to use the Service IPR only for the Client’s internal purposes (for the avoidance of doubt, this will not include sharing the Service IPRs with, or allowing access to the Service IPRs by, any third
parties, including media agencies).
5.5. Where necessary, the Agency shall procure that all employees, agents, consultants and sub-contractors of the Agency shall waive absolutely and irrevocably their moral rights granted under the Copyright, Designs and Patents Act 1988 or equivalent or analogous rights under laws of other jurisdictions in relation to Client IPRs.
5.6. Without limitation to clause 5.3, the Client agrees that the Agency can reference the output of the Agency’s work for the Client under any Booking Form as well the Client’s name and/or logo within marketing tools, unless otherwise agreed in writing.
7.1. The Client warrants that the Client Materials:
a. including any Client Background IPRs, supplied by Client to the Agency, and the use by the Agency of such Client Materials in accordance with this Agreement, shall not infringe any third party IPRs;
b. are provided in accordance with any specifications and guidelines as determined by the Media Owner and notified to the Client and shall be supplied on, or before, the art work deadline as outlined on the Booking Form;
c. shall be compliant with Advertising Regulations, applicable law, regulation and code and will not otherwise be defamatory, libelous, obscene or deceptive; and
d. shall have any necessary licenses, permissions, and consents which are required for the use of such
Client Materials as contemplated in the Booking Form.
8. Liability and Indemnification
8.1. The Agency shall not be liable to the Client:
a. where the Client Materials forming part of the Services do not go live as expected due to a fault from the Media Owner or retailer. This includes situations where the Media Owner cancels or rejects any of the Client Materials, as well as instances where the Client Materials have not been found to be fully compliant
with this Agreement;
b. where the Client is in breach of any of the warranties set out in clause 7 above;
c. for any cancellations, delays or non-compliance occurred due to late submission of Client Materials by the Client; or
d. where inaccurate store lists and/or promotional dates are supplied by the Client for any media going live aligned to specific stores and/or promoting a price message pursuant to a Booking Form. The Agency shall not liable for any delays, cancellations or non-compliance related to in-correct store lists or promotional dates provided by the Client as part of the Client Materials.
8.2. The Client 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 allLosses suffered or incurred by any of the Indemnitees arising out of or in connection with (a) the breach of any term of this Agreement by the Client; or (b) any claim or allegation that any of the Client’s Background IPRs or Client Materials infringe the IPRs of any third party. The foregoing indemnity shall not be limited in any manner whatsoever by any required or other insurance coverage maintained by the Client.
8.3 Subject to clauses 8.4 and 8.5, the Agency’s total liability to the Client, whether in contract, tort (including negligence), for breach of statutory duty or otherwise, arising out of or in connection with this Agreement is limited to the amounts paid and payable to the Agency pursuant to the relevant Booking Form under which the claim is made.
8.4 Subject to clause 8.5, 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.
8.5 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. Client’s liability, whether categorised as direct or indirect Loss, to the Agency arising out of a breach of clause 7.1(d) (Compliance with Laws), clause 3 (Confidentiality) or clause 10 (Data Protection);
c. Client’s liability under the indemnity under clause 8.2(b); or
d. either Party’s liability that cannot, as a matter of law, be limited or excluded.
8.6 Each Party 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 each Party’s obligations and liability under this Agreement and associated Booking Forms, and in any event that each policy provides cover of not less than £5 million. Client 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 Without affecting any other right or remedy available to it, either Party may terminate this Agreement or any Booking Form with immediate effect by giving written notice to the other Party if:
a. the other Party commits a material breach of that Booking Form 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 9.2b.
9.3 Termination or expiry of any Booking Form will not, in itself, result in the termination of any other Booking Form or this Agreement. Termination (but not expiry) of this Agreement for any reason, will automatically terminate all Booking Form’s in effect at the time of such termination unless the Parties expressly agree otherwise.
9.4 On termination or expiry of any Booking Form for any reason:
a. the Agency shall immediately cease all further performance of the Services; and
b. the Client shall compensate the Agency for the Services completed in accordance with the Booking Form and not paid for, and pre-approved costs incurred, up to the date of termination of such Booking Form.
9.6 Other than as expressly stated in this Agreement, 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 Booking form), 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
9.7 The expiry or termination of any Booking Form 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
here of which is expressly or by implication intended to come into or continue in force on or after such termination.
10. Data Protection
10.1. For the purposes of this clause 10, “personal data”, ”data subject”, and “processing” have the meanings given to these terms in the Data Protection Law.
10.2 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
11. Governing Law and Jurisdiction
11.1 This Agreement and any non-contractual matters arising out of or in connection with it (including the formation of 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.
12. Dispute Resolution
12.1. 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 clause 11 (Governing Law and Jurisdiction).
13. Force Majeure
13.1. 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.
14.1 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.
14.2. Assignment: The Agency may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Booking Form and may subcontract or delegate in any manner any or all of its obligations under the Booking Form to any third party or agent.
14.3. Variation. No variation of the Booking Form shall be effective unless it is agreed by both parties in writing.
14.4. 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.
14.5. Severance. If any provision or part-provision of the Booking Form 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 Booking Form.
15.1. In this Agreement the following words and expressions will have the following meanings:
“Advertising Regulations”: any law, legislation, instrument, rule, order, regulation, directive, by-law, industry code or decision which applies to, concerns or otherwise affects Client Materials or Services, including (without limitation), Consumer Protection from Unfair Trading Regulations 2008, Business Protection from Misleading Marketing Regulations 2008, The UK Code of Non-broadcast Advertising and Direct and Promotional Marketing, The UK Code of Broadcast Advertising, The Portman Group Code; and the Data Protection Law.
“Background IPRs”: means all IPRs owned by, or vested in, a Party (or its licensors) prior to the Effective Date (and any modification or enhancement of any such IPRs) or developed independently of the Booking Form.
“Booking Form”: the form headed ‘Booking Form’ agreed by the Client and the Agency and forming part of this Agreement.
“Campaign Management Fee”: The fee charged to the Client for the Services as agreed on the Booking Form.
“Client Materials” means any work, artwork, logos, marketing, branding and any other materials provided (in whatever format) by the Client in relation to any Booking Form.
“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, the Data Protection Act 2018 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.
“Estimates”: Estimated costs associated with media bookings pursuant to a Booking Form provided by the Agency to the Client, subject to change and availability.
“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 arisingthrough 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.
“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).
“Losses”: all liabilities, costs, expenses, damages and losses (including but not limited to loss of profit, interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses).
“Media Owners”: includes all Media Owners and promotional partners subcontracted by the Agency to provide the ultimate deliverables detailed in the Booking Form.
“Services”: the services supplied by the Agency to the Client as set out in a Booking Form. This includes but is not limited to campaign planning, media buying, campaign management, consultancy projects, creative / artwork and evaluations.
15.2 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.