Wake Media Group Ltd - Standard Terms and Conditions
Table of Contents
1. Definitions
3. Appointment & Scopes of Work
10. Amendments and Cancellations
13. Third Party Services & Costs
14. Third Party Suppliers: Business Terms & Selection
17. Intellectual Property Rights
22. Consequences of Termination
42. Governing Law and Jurisdiction
Schedule 1 available services
1.1 Wake Media Group Limited comprises:-
Wake Media Group Limited a company incorporated in England and Wales under company number 13612635 the registered office of which is at Airport House, Purley Way, Croydon, Surrey, CR0 0XZ
Wake Media Limited a company incorporated in England and Wales under company number 9013396 the registered office of which is at Airport House, Purley Way, Croydon, Surrey, CR0 0XZ
Marketing in Maritime Limited a company incorporated in England and Wales under company number 13032536 the registered office of which is at Airport House, Purley Way, Croydon, Surrey, CR0 0XZ
Maritime Calendar Limited a company incorporated in England and Wales under company number 14440307 the registered office of which is at Airport House, Purley Way, Croydon, Surrey, CR0 0XZ
39 Degrees Limited a company incorporated in England and Wales under company number 14670861 the registered office of which is at Airport House, Purley Way, Croydon, Surrey, CR0 0XZ
Complete Marine Marketing Limited a company incorporated in England and Wales under company number 15613610 the registered office of which is at Airport House, Purley Way, Croydon, Surrey, CR0 0XZ
Wake Media Group Limited & associated companies are also referred to hereafter as ‘The Company’ or ‘The Agency’
1.2 In this agreement the following definitions apply:
“Accounts” means the Client’s products and services that are the subject of the Services as referred to in a Scope of Services Agreement;
“Advertising Regulation” means any present or future applicable code of practice or adjudication of the Committee of Advertising Practice, Broadcast Committee of Advertising Practice or the Advertising Standards Authority and includes any applicable modification, extension or replacement thereof in force from time to time, together with other UK laws, statutes and regulations which are directly applicable to the Services;
“Agency Materials” means those Materials specifically created by the Agency for the purposes of a Project by officers, employees or freelancers of the Agency (including any Materials adapted, modified or derived from the Client Materials), whether or not it is incorporated into Deliverables during the Term;
“Agency Personnel” means the personnel of the Agency involved in the performance of the Services, including its employees, agents and sub-contractors;
“Agency Proprietary Materials” means software (including all programming code in object and source code form), methodology, know-how and processes and Materials in relation to which the Intellectual Property Rights are owned by (or licensed to) the Agency and which are:
(a) in existence prior to the date on which it is intended to use them for a Project; or
(b) created by or for the Agency outside of a Project and which are intended to be reused across its business;
“approval” means approval given in accordance with clause 11.1;
“Authorised Agency Approver” means those personnel of the Agency specified in the applicable Scope of Services Agreement who have the authority to contractually bind the Agency in all matters relating to this agreement (and any successor notified to the Client);
“Authorised Client Approver” means those personnel of the Client specified in the applicable Scope of Services Agreement who have the authority to contractually bind the Client in all matters relating to this Agreement (and any successor notified to the Agency);
“Available Services” means the services set out in Schedule 1 which the Client may order from time to time by agreeing a Scope of Services Agreement with the Agency;
“Business Day” means a day other than Saturday, Sunday or a day on which banks are authorised to close in London for general banking business;
“Client Materials” means any Data, equipment, computer systems, software, documents, copy, Intellectual Property Rights, artwork, logos and any other materials or information owned by or licensed to the Client which are provided to the Agency by or on behalf of the Client;
“Commencement Date” means the date of this agreement;
“Competent Authority” means any court of competent jurisdiction and any national or supra-national agency, inspectorate, minister, ministry, official, local authority, public or statutory person (whether autonomous or not) of the government of the United Kingdom;
“Confidential Information” means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before or [after the date of this agreement in connection with the Services and the parties’ obligations under this agreement including but not limited to:
(a) the existence and terms of this agreement or any agreement entered into in connection with this agreement;
(iii) any information developed by the parties in the course of carrying out this agreement;
“Data” means the Client’s computer data (in machine readable form);
“Data Controller (or “Controller”), Data Processor (or “Processor”) Data Subject, Personal Data, Processing, and Sensitive Personal Data (or special categories of Personal Data)” all have the meanings given to those terms in the Data Protection Laws (and related terms such as Process and Processed shall have corresponding meanings);
“Data Protection Laws” means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party;
“Deliverables” means the advertising, creative and other materials which are to be provided by the Agency as specified in a WM_Scope of Services Agreement, including Agency Materials, Third Party Materials and Agency Proprietary Materials where applicable;
“Expenses” means reasonable travelling, hotel, subsistence and other expenses incurred by the Agency in connection with the supply of Services and Deliverables, provided that such Expenses have either received the Client’s prior written approval or where applicable are in accordance with any expenses policies which have been supplied to the Agency and set out in the applicable agreed WM_Scope of Services Agreement.
“Fees” means the Agency fees as set out in the applicable WM_Scope of Services Agreement or otherwise agreed in writing;
“Force Majeure Event” means any cause affecting the performance by a party of its obligations arising from acts, events, omissions or non-events beyond its reasonable control, including acts of God, riots, war or armed conflict, acts of terrorism, acts of government, local government or regulatory bodies, epidemic, pandemic, fire, flood, storm or earthquake, or disaster;
“Framework Agreement” means this agreement incorporating the General Terms, Scopes of Work and schedules;
“General Terms” means the terms and conditions set out in this agreement but not including any Scopes of Work;
“Independent Auditor” means a suitably qualified and independent auditor;
“Initial Term” means the period as outlined in ‘Wake Media Group Ltd representative company’s WM_Scope of Services Agreement,
“Insolvency Event” means in relation to a party:
(a) ceases to do business in the normal course;
(b) it is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (as amended), but disregarding the references therein to proving it to the court’s satisfaction;
(c) a notice of appointment of administrator, a notice of intention to appoint an administrator, or an application to appoint an administrator to it is filed at court or served on any person, or it enters administration;
(d) it requests or suffers the appointment of a Law of Property Act 1925, court appointed or other receiver or similar officer over or in relation to the whole of its undertaking, property, revenue or assets or any part thereof;
(e) it has a winding up petition issued against it, a liquidator or provisional liquidator appointed to it, or it enters into liquidation;
(f) it or its directors resolve to enter into, or it enters into, or it or its directors commence negotiations, or make any requisite application to court in respect of, or if they convene meetings for the approval of, any composition, compromise, scheme, moratorium or other similar arrangement with its creditors or any of them (except for the purposes of amalgamation or reconstruction of a solvent company);
(g) it is dissolved, or is removed from the register of companies, or ceases to exist (whether or not capable of reinstatement or reconstitution) or its directors apply for it to be struck off the register of companies; or
(h) any event similar, equivalent or analogous to those above occurs in relation to it or its property or any part thereof in any jurisdiction other than England and Wales;
“Intellectual Property Rights” includes patents (including supplementary protection certificates), inventions, know-how, get-up, utility models, trade secrets and other confidential information, registered designs, copyrights (including future copyrights), database rights, design rights, rights affording equivalent protection to copyright, database rights and designs rights, semiconductor topography rights, trade marks, trade dress, service marks, logos, domain names, business names, trade names, Moral Rights and the style of presentation of goods or services (whether in written form, or generated by or maintained on a computer or similar system or otherwise), and all registrations or applications to register any of the aforesaid items, rights in the nature of any of the such items in any country or jurisdiction in the world (whether or not registered or capable of registration), rights in the nature of unfair competition rights and rights to sue for passing-off;
“Interest Rate” means eight per cent over the Bank of England base rate or the rate provided for from time to time pursuant to the Late Payment of Commercial Debts (Interest) Act 1998;
“Legal Requirement(s)” means any legislation, law, proclamation, decision, rule, regulation, order, resolution, notice, rule of court, bye-law, directive, statute, statutory instrument, standards, licences, mandatory codes of practice codes of conduct or other instrument or requirement having the force of law by whomsoever made, issued, declared, passed or otherwise enacted, created or given effect by, without limitation, any court or other judicial forum, any coroner or commission of inquiry, any statutory body, local authority or any statutory undertaker or other Competent Authority or any other person having such power related to or affecting the provision of the Services;
“Losses” means losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses (including reasonable legal and other professional expenses), subject to clause 21.1 and 21.2;
“Materials” means any artwork, copy, models, designs, photographs, commercial, feature film, character, music, voice over, sound recording, performance, book, painting, logo, or any other material protected by Intellectual Property Rights, but not including any software;
“Moral Rights” means all rights described in Part I, Chapter IV of the Copyright Designs and Patents act 1988 and any similar rights of authors anywhere in the world;
“Project” means any project(s) agreed between the parties from time to time under which the Agency is to perform Services and supply Deliverables to the Client, as more fully described in this agreement and the applicable Scope of Services Agreement;
“Project Commencement Date” means the commencement date of each Project as set out in the corresponding Scope of Services Agreement;
“Project Completion Date” means the date by which each Project is to be completed, as set out in the corresponding Scope of Services Agreement;
“Project Term” means the period during which the Services for each Project will be provided as specified in the applicable Scope of Services Agreement;
“Rate Card” means the Agency’s rate card (if applicable) set out in the applicable Scope of Services Agreement;
“Records” means such accounts and records maintained by the Agency of all expenditure which is reimbursable by the Client under this agreement and as are reasonably necessary for the purpose of enabling the Client to conduct an audit of that expenditure pursuant to clause 19;
“Representation” has the meaning set out in clause 34.3;
“Scope of Services Agreement” means one or more documents in the form agreed and signed by the parties from time to time containing a description of the relevant Project;
“Services” means the Available Services to be supplied by the Agency as set out in the relevant Scope of Services Agreement, which includes the provision of Deliverables;
“Term” means the period from and including the Commencement Date to and including the Termination Date;
“Termination Date” means the date of termination of this agreement;
“Third Party Costs” has the meaning set out in clause 13.1;
“Third Party Materials” means those Materials which are either commissioned by the Agency from third parties during the Term and incorporated into the Deliverables, or which have been created by a third party and which are in existence at the time it is desired to make use of them for inclusion in the Deliverables, but which excludes software which is owned or licensed by a third party.
“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018;
“VAT” means United Kingdom value added tax;
2.1 Unless otherwise expressly stated the rules of interpretation set out in this clause 2 apply in this agreement.
2.3 Words in the singular include the plural and vice versa.
2.4 The masculine includes the feminine and vice versa.
2.8 A reference to a clause, paragraph or schedule is to a clause or paragraph of or schedule to this agreement and a reference to this agreement includes its schedules and appendices.
2.10.1 Acts of Parliament; and
2.10.2 orders, regulations, consents, licences, notices and bye laws made or granted:
(a) under any Act of Parliament; or
(b) by a local authority or by a court of competent jurisdiction.
3. Appointment & Scopes of Work
3.1 The Agency acts in all its contracts with third parties with regard to the provision of Services set out in the Scope of Services Agreement as a principal at law.
3.2 During the Term, the Agency shall perform the Services and (where relevant) shall supply the Deliverables to the Client in relation to the Accounts in accordance with agreed Scopes of Work.
3.3 The parties may agree new Scopes of Work from time to time in writing. Once a Scope of Services Agreement has the signature of both the Agency and Client, such Scope of Services Agreement shall automatically form part of this agreement.
3.4 A Scope of Services Agreement may incorporate additions and amendments to these General Terms to reflect the different types of Services to be provided.
3.5 The Agency will not be obliged to perform any work on behalf of the Client until the Scope of Services Agreement has been signed by both parties.
4.1 This agreement has been duly signed on the date of WM_Scope of Services Agreement between the parties, and shall continue until terminated in accordance with clause 21.
5.1 The Client will give the Agency full and clear instructions as to its requirements for the Services and Deliverables to be included in a Scope of Services Agreement, including full details of the dates by which each stage of the proposed Services and Deliverables are to commence and finish. The Client will give the Agency clear briefings and ensure that all the facts given about the Accounts are accurate and shall ensure that its other suppliers and agencies act in willing co-operation with the Agency. The Client will promptly inform the Agency if the Client considers that any Deliverables submitted to the Client by the Agency for approval are false or misleading or in any way contrary to law or applicable Advertising Regulation.
5.2 The Client will promptly supply to the Agency (at no charge) any Client Materials reasonably required by the Agency or otherwise necessary to provide the Services and Deliverables and shall ensure that it has all rights and licences in place to enable use by the Agency of all Client Materials.
5.3 If the Client does not fulfil its obligations under or in connection with this agreement (including its payment obligations), then to the extent that such failure prevents the Agency from performing any Services and/or providing any deliverables in accordance with this agreement, the Agency will be relieved of its obligations to the Client, and the Agency shall not be liable for any losses incurred by the Client as a result of any such failure. Allocation of agency capacity and associated outsourcing must be agreed in advance and approved within any agreement, thereby precluding the rollover of Scope of Services within any agreement.
6.1 The Agency will give the Client full and clear instructions as to the Client Materials it reasonably requires for the purposes of performing the Services and providing the Deliverables.
6.2 The Agency shall:
6.2.1 apply such time, attention, and reasonable skill and care as may be necessary or appropriate for its proper performance of the Services and provision of the Deliverables;
6.2.2 comply with all lawful and reasonable directions regarding the Services and Deliverables communicated to it from time to time by the Client (provided such directions do not materially deviate from or add to the Scope of Services Agreement and any such material amendment must be agreed in accordance with clause 10.1);
6.2.3 keep Client Materials reasonably safe and secure while they are in the possession or control of the Agency; and
6.2.4 deliver all Deliverables by the dates set out in the applicable Scope of Services Agreement or any other delivery date(s) agreed by the parties in writing.
6.3 If at any time the Agency becomes aware that it may not be able to perform the Services or deliver any Deliverables by any date set out in the applicable Scope of Services Agreement (or any other deadline agreed by the parties in writing), the Agency will promptly notify the Client and give details of the reasons for the delay.
7.1 The relationship between the parties is non-exclusive and the Agency shall therefore be entitled to provide any services or deliverables the same or similar to the Services and/or Deliverables to any third party.
8.1 The Client’ will endeavour to actively prioritise ‘The Company’’ interests in all services outlined in a Scope of Services Agreement. Specifically, ‘The Client’ commits to ensuring that ‘The Company’ service offerings outlined in the agreement are not served by any third party during the agreement term.
10. Amendments and Cancellations
10.2 In the event of any amendment to a Scope of Services Agreements by the Client, the Fees payable to the Agency in respect of the amended Scope of Services Agreements shall not decrease below the level of Fees that would have been payable had the Scope of Services Agreements not been amended, save with the prior written approval of the Agency.
10.3 Pending approval (in accordance with clause 11) of any amendments to a Scope of Services Agreements, the Agency shall (unless otherwise agreed) continue to perform and be paid for the Services as if such change had not been requested.
10.4 Subject to clause 10.5, 10.6 and 22.3 the Client may request, in writing, the Agency to cancel any Scope of Services Agreements or part thereof, including any plans, schedules or work in progress. The Agency will take all reasonable steps to comply with any such request provided that the Agency is able to do so within its contractual obligations to suppliers.
10.6 In addition to the above, in the event of cancellation by the Client of a Scope of Services Agreements or part thereof, including any and all plans or work in progress, the Client shall pay the cancellation fees set out in the WM_Scope of Services Agreement.
11.1.1 the Client issuing a purchase order bearing the signature of an Authorised Client Approver; or
11.1.2 e-mail from the individual business e-mail address of an Authorised Client Approver; or
11.1.3 the signature of an Authorised Client Approver on the Agency’s documentation.
11.2 For the purposes of this agreement, any reference to “approval” to be given by the Agency shall mean the Agency giving approval by one of the following methods:
11.2.1 e-mail from the individual business e-mail address of a Director/Duly Authorised Signatory; or
11.2.2 the signature of a Director/Duly Authorised Signatory on the Client’s documentation.
11.3 Where a party is asked to give approval under or in connection with this agreement, such approval shall not be unreasonably withheld or delayed.
11.4 The Agency will seek the Client’s prior approval of:
11.4.1 any estimates or quotations for any third party costs to be paid by the Client; and
11.4.2 any creative treatments, including scripts, storyboards, copy, layouts, design, artwork, proposed marketing activity,
and the Client’s approval of such estimates and creative treatments will be the Agency’s authority to enter into contracts with relevant third parties and to prepare draft Deliverables.
11.5 The Agency will seek the Client’s prior approval of any draft Deliverables and such approval will be the Agency’s authority to proceed with the use of the relevant Deliverables.
11.6 In the event that the Client does not approve of any matter requiring approval it shall notify the Agency of its reasons for disapproval within five Business Days of the Agency’s request. If the Client does not notify the Agency of its disapproval in accordance with this clause 11.6, it shall be deemed approved.
11.7 In the event of any delay or failure of the Authorised Client Approver giving approvals (or disapprovals) requested under or in connection with this agreement, the Agency will not be liable for any resulting delays or adverse impact caused to the delivery of the Project.
12.1 In consideration of the Agency providing the Services set out in Scopes of Work, the Client shall pay the Fees to the Agency in accordance with clause 12.5. For the avoidance of doubt, the Fees are payable in addition to all payments for Expenses and Third Party Costs.
12.2 The Agency will invoice the Client in respect of all Fees, Expenses and Third Party Costs.
12.3 Unless otherwise approved by the Client, or set out in a Scope of Services Agreement, all Third Party Costs shall be charged to the Client at net cost.
12.4 Notwithstanding any other provision of this agreement, the Client shall not be obliged to pay Fees for a Project and the Agency shall not be obliged to supply any Services and Deliverables for a Project until each party has signed the applicable Scope of Services Agreement. Where relevant, the Agency shall not be obliged to supply any Services and/or Deliverables for a Project until the Client has supplied a valid purchase order number or an order confirmation for such Services and Deliverables.
12.5 The Fees, Expenses and Third Party Costs will be invoiced in accordance with the payment terms set out in the applicable Scope of Services Agreement and shall be payable (subject to clause 13.4) within fourteen (14) days of the date of the relevant invoice, or such other reasonable period as the parties may agree in the applicable Scope of Services Agreement.
12.6 The terms of remuneration set out in this agreement do not cover the performance of services which are outside of a Scope of Services Agreement. If any such services are required, the terms relating to their provision together with the applicable fees will be agreed in writing by the parties.
12.7 In the event that the Client fails to make any payment in full when due to the Agency under this agreement, then without prejudice to its other rights and remedies under or in connection with this agreement or otherwise in law, the Agency shall be entitled to charge the Client interest on such overdue sum at the Interest Rate calculated from the due date up to the date of payment.
12.8 We will exercise our statutory right to claim interest (at 8% over the Bank of England base rate) and compensation for debt recovery costs under the Late Payment legislation https://www.legislation.gov.uk/ukpga/1998/20/contents) if we are not paid according to our agreed credit terms.
12.9 If any payment of the Fees, Expenses or Third Party Costs is subject to tax (whether by way of direct assessment or withholding at its source), the Agency shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to the Agency of the Fees, Expenses and Third Party Costs after tax in respect of the payment is the same as it would have been were the payment not subject to such tax.
12.10 If the Client is overdue with any payment hereunder, then without prejudice to the Agency’s other rights or remedies:
12.10.1 the Agency shall have the right to suspend performance of the Services on seven (7) days’ written notice until the Agency has received payment of the overdue amount together with any accrued interest; and/or
12.10.2 the Agency shall have the right to terminate the applicable Scope of Services Agreement immediately upon thirty (30) days’ written notice to the Client.
12.11 Where a surcharge is levied by a supplier against the Agency due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to the Agency the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.
12.12 Where a late copy charge is levied by a media owner against the Agency due to copy being delivered late, and this does not result from the Agency’s negligent or wilful act or omission, then the Client shall immediately reimburse the amount of such late copy charge to the Agency.
12.13 Each party shall pay all monies which are payable by it to the other without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party.
13. Third Party Services & Costs
13.1.1 production work required to produce the Deliverables including illustrations, film production, artwork, photography, model fees, recordings, the services of performers, animation, print and post production work and other content; and
13.1.2 all costs incurred in taking legal or other advice or searches and enquiries, as agreed between the parties from time to time
(collectively defined as “Third Party Costs”).
13.2 The Agency will advise the Client promptly of any changes in the estimated cost of items of Deliverables.
13.3 The actual cost to the Agency of Third Party Costs in respect of materials or services purchased overseas for the Deliverables may be more or less than the cost anticipated at the date when the Agency ordered the relevant materials or services (or obtained the Client’s approval for such Third Party Costs) as a result of fluctuations in the rate of currency exchange. If so, the Agency will charge the Client at the rate of currency exchange in operation on the date the Agency pays for the relevant Third Party Costs, which shall be deemed to be the closing mid-point rate in London for that day as subsequently quoted in the next published edition of The Financial Times.
13.4 In the event that any Third Party Costs require payment in advance or sooner than the payment terms set out in clause 12.5, the Agency will notify the Client as soon as reasonably practicable in advance and the Client shall pay such costs within the period set out in the relevant invoice.
14. Third Party Suppliers: Business Terms & Selection
14.1 The Agency enters into contracts with third party suppliers in respect of Services and Deliverables in accordance with such suppliers’ standard or individual conditions and contracts (“Third Party Contracts“).
14.2 Provided that the Agency has notified the Client of any significant restrictions or contract terms contained in such Third Party Contracts (including any cancellation provisions contained in the contract):
14.2.1 the Client hereby acknowledges that its right to use or otherwise benefit from any Services or Deliverables acquired under such Third Party Contracts shall be as set out in such Third Party Contracts;
14.2.2 any charges or liabilities (to the extent caused by an act or omission of the Client or any third party acting for or on its behalf) for which the Agency is liable under such Third Party Contracts (including cancellation payments) shall be the responsibility of the Client; and
14.2.3 the Client hereby indemnifies and shall keep the Agency indemnified against any Losses caused by any act or omission of the Client which puts the Agency in breach of any such Third Party Contracts.
15.1 The Agency warrants and undertakes that:
15.1.1 it has full power and authority to enter into this agreement and that by doing so it will not be in breach of any obligation to a third party;
15.1.2 the personnel who perform the Services are and shall be competent and suitable, whether as to qualifications, experience or otherwise, to provide the Services;
15.1.3 subject to clause 16.4, the use of the Deliverables by the Client in accordance with this agreement and for the purposes set out in the Scope of Services Agreement will not infringe the copyright of any third party and;
15.1.4 to the best of its knowledge and belief and subject to clause 16.4, as at the date of delivery of the Deliverables the use of the Deliverables in accordance with this agreement for the purposes set out in the Scope of Services Agreement will comply with all Advertising Regulations in the UK, save that where the Client’s business involves any industry sector which is subject to its own industry specific Advertising Regulations or other code, regulation, statute or law (collectively “Specialist Advertising Regulations”) the Client shall be responsible for ensuring that the Deliverables are compliant with such Specialist Advertising Regulations.
15.2 The Agency hereby indemnifies the Client against any Losses incurred by the Client as a result of breach by the Agency of its warranty and undertaking in clause 16.1.3.
15.3 All warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise are hereby excluded to the fullest extent permitted by law, including any condition of satisfactory quality or fitness for a particular purpose.
15.4.1 the Deliverables infringing third party Intellectual Property Rights, breaching Advertising Regulations or other laws and regulations, where the Agency had previously notified the Client of a specific risk that the Deliverables infringed third party Intellectual Property Rights or breached Advertising Regulations or other laws and regulations and the Agency had obtained the prior approval of the Authorised Client Approver to use such Deliverables notwithstanding such notified risk; and/ or
15.4.2 the incorporation of Client Materials into the Deliverables provided that the Agency has incorporated and used such Client Materials in the Deliverables in accordance with any instructions given by the Client from time to time.
16.1 The Client warrants and undertakes that:
16.1.1 it has full power and authority to enter into this agreement and that by doing so it will not be in breach of any obligation to a third party;
16.1.2 the Client Materials will not, when used in accordance with this agreement and any written instructions given by the Client, infringe third party copyright;
16.1.4 the Client Materials are accurate and complete in all material respects.
17. Intellectual Property Rights
17.1 The Agency acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services and Deliverables) shall remain vested in the Client or its licensors. The Client hereby grants to the Agency a non-exclusive licence during the applicable Project Term to use the Client Materials solely for the purposes of providing the Services and Deliverables.
17.2 Subject to the remaining provisions of this clause 18 and subject to the Agency receiving payment of all Fees attributable to the Agency Materials the Agency hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in the Agency Materials which are capable of being assigned together with the right to sue for past infringement of the Intellectual Property Rights in the Agency Materials.
17.3 The Client acknowledges that all Intellectual Property Rights in the Agency Proprietary Materials shall be owned by and remain the property of and vested in the Agency. Subject to the Agency receiving payment of all Fees attributable to the Agency Proprietary Materials licensed under this clause, the Agency hereby grants to the Client a non-exclusive licence to use such Agency Proprietary Materials as are included in the Deliverables for the period of time and for the purposes set out in the Scope of Services Agreement.
17.4 Prior to delivery of the Deliverables, the Agency shall obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Materials for the purposes set out in the Scope of Services Agreement. The Agency shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Materials, and the Client hereby indemnifies and keeps the Agency indemnified against any Losses suffered by the Agency as a result of the Client breaching any such restrictions.
17.5 The Agency agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the Deliverables, and shall not do or fail to do any act which would or might prejudice the Client’s rights under this clause 18.
17.6 To the extent permitted by law and subject to the Agency receiving payment of all Fees attributable to the Agency Materials, the Agency shall ensure that all Moral Rights in the Agency Material included in the Deliverables are waived (or where not lawfully possible to waive Moral Rights, the Agency agrees not to assert any Moral Rights in respect of the Agency Materials). Subject to the Agency receiving payment of all Fees attributable to the Agency Materials, the Agency shall use its reasonable endeavours to ensure that all Moral Rights in Third Party Materials are waived (or where not lawfully possible to waive Moral Rights, to procure that Moral Rights are not asserted in respect of Third Party Materials), but if the Agency cannot obtain such waiver of (or agreement not to assert) such Moral Rights in respect of any Third Party Materials, the Agency will notify the Client and shall obtain the Client’s approval prior to incorporating such Third Party Materials into the Deliverables.
17.7 Notwithstanding any of the above and save as otherwise expressly provided for in a Scope of Services Agreement or the schedule(s), the Agency shall:
17.7.1 be able during and after the Term to use any Deliverables which have been broadcast, published, distributed or otherwise made available to the public, and the Client’s name and logo for the purposes of promoting its work and its business including on the Agency’s website, in credentials pitches and in its showreel. Any other use by the Agency shall be subject to the Client’s prior approval; and
17.7.2 retain all know-how obtained in connection with the Services and Deliverables.
During the Term, if the Agency is asked to take part in a competitive pitch or other similar process for the Client, then notwithstanding any of the previous provisions of this clause 18, the Agency shall retain ownership of all Intellectual Property Rights in any Materials forming part of the pitch process, save to the extent that the Agency is successful in such pitch and the parties agree that such Materials will be used in accordance with Services to be provided under a Scope of Services Agreements.
17.8 For the avoidance of doubt, the Agency shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client.
17.9 The terms of and obligations imposed by this clause 18 shall survive the termination of this agreement for any reason.
18.2 The Agency will allow the Client by its own personnel or by an Independent Auditor access to all the Records during the Term and for six (6) months afterwards provided:
18.2.1 Records do not include confidential financial, payroll, personnel or other confidential records of the Agency that do not relate directly to the Client;
18.2.2 the purpose of such an audit of Records is solely for the purpose of auditing the Agency’s compliance with this agreement and not for the purpose of fee negotiation or the collation by any means of planning information;
18.2.3 the Client and the Agency shall meet together and if relevant with the Independent Auditor not less than three (3) Business Days prior to the commencement of any audit and will agree the scope of the audit;
18.2.4 any such access for the purposes of auditing or otherwise inspecting the Records shall be on not less than fourteen (14) days written notice at any time during normal business hours provided that, in the absence of exceptional circumstances, the Agency shall not be obliged to allow such access or inspection more than once during any twelve (12) month period unless the Client has reasonable grounds to suspect that fraudulent activity has occurred; and
18.2.5 all audit costs will be borne by the Client, including the reasonable costs of the Agency incurred during the audit.
18.4 The Agency will afford to the Client all reasonable assistance in the carrying out of such audit. The Client will procure that its personnel and the Independent Auditor keep any information obtained in the course of the audit concerning the Agency’s business in the strictest confidence and the Client will procure that such information is not used for any purpose other than the proper conduct of the audit.
19.1 Both parties acknowledge that they have a responsibility to comply with all Advertising Regulations.
19.2 The parties will co-operate with each other in ensuring that suitable objective factual product and other information is available as required to satisfy the requirements of any applicable Advertising Regulation.
20.1 Subject to the provisions of clause 21.2 below, neither party is liable to the other in contract, tort (including negligence or breach of statutory duty) or otherwise for any of the following losses or damages, whether direct or indirect, arising out of, or in connection with, the supply, non-supply or delay in supplying the Services or otherwise in connection with this agreement:
20.1.1 loss of actual or anticipated profits;
20.1.2 loss of business opportunity;
20.1.3 loss of anticipated savings;
20.1.5 any indirect, special or consequential loss or damage howsoever caused.
20.2 Subject to clause 21.3 and without prejudice to clause 21.1 in no event shall the aggregate liability of the Agency to the Client in respect of any one event or series of linked events (whether in contract, tort (including negligence) or otherwise) in respect of all losses arising under or in connection with this agreement exceed a sum equivalent to the Fees paid by the Client to the Agency in the 12 months prior to the occurrence of the event (or the first in a series of linked events) or, where the agreement has been in force for less than 12 months, in the period between the Commencement Date and the occurrence of the event (or the first in a series of linked events).
20.3 Nothing in this agreement shall operate to exclude or restrict either party’s liability for:
20.3.1 death or personal injury resulting from negligence;
20.3.2 breach of the obligations arising from section 2 of the Supply of Goods and Services Act 1982;
20.4 The Agency shall have no liability for the consequences including delay in or failure to provide the Services due to any failure by the Client to follow the Agency’s advice or recommendations.
21.1.1 is subject to an Insolvency Event; or
21.3 The Client may terminate or cancel a Project, in writing, subject to clause 10 and payment of all Third Party Costs and Fees as referred to in clause 10 at any time
22. Consequences of TErmination
22.1 Termination of a Project in accordance with the terms of this agreement by either party shall not serve to terminate this agreement which shall continue in full force and effect.
22.2 Upon termination of this agreement under clauses 22.1 and/or 22.2 all outstanding Projects shall also be terminated.
22.3 Upon termination of this agreement or a Project for any reason:
22.3.1 the Client shall pay the Agency all Fees, Expenses and Third Party Costs due to the Agency (in accordance with clause 10 where relevant) including those which accrue due during the notice period; and
22.3.2 subject to clause 23.3.1 each party shall on the reasonable request of the other party promptly deliver or dispose of any and all materials and property belonging or relating to the other party (including all Confidential Information) and all copies of the same, which are then in its possession, custody or control and which relate to all affected Projects, and shall on the request of the other party certify in writing that the same has been done.
22.4 If prior to termination of the agreement, the Agency has (at the request of the Client) prepared detailed plans or proposals for future Deliverables in respect of which the Agency has not been paid, the Agency shall be entitled to receive remuneration from the Client based on the Agency’s time spent preparing such plans or proposals and the Rate Card.
22.5 Provisions of this agreement which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination shall remain in full force and effect notwithstanding termination of this agreement.
22.6 Media planning & buying cancellation by the client. The following fees will apply:-
Completion of up to 50% of total budgeted spend @ 7.5% of remaining budget payable by the client to the company.
Completion of up to 75% of total spend @ 10% of remaining budget payable by the client to the company.
Completion of 75%+ of total spend @15% of remaining budget payable by the client to the company.
23.1 The Agency shall be entitled to sub-contract its performance of the Services and/or Deliverables provided that any sub-contracting shall not relieve the Agency from its obligations to the Client under this agreement.
24.1 For the purposes of this clause 25 the following terms shall have the following meaning:
24.1.1 “Agency Employee” means any employee of the Agency who transfers or would transfer to the Client or Successor Agency by virtue of TUPE;
24.1.2 “Outgoing Agency” means the agency engaged to carry out services substantially similar to the Services immediately prior to the transfer of such services to the Agency;
24.1.3 “Successor Agency” means any alternative agency appointed by the Client to perform services substantially similar to the Services following termination of this Agreement;
24.1.4 “Transferring Employee” means any employee of the Client or the Outgoing Agency who transfers or would transfer to the Agency by virtue of TUPE;
24.1.5 “TUPE” means the Transfer of Undertakings (Protection of Employment) Regulations 2006.
24.2 The parties acknowledge that commencement of the provision of the Services and/or Deliverables under this Agreement may amount to a service provision change in accordance with TUPE.
24.3 The Client warrants that it has (or has procured that the Outgoing Agency has) compiled and provided to the Agency the employee liability information as defined by Regulation 11(2) of TUPE together with such additional information and documents relating to the Transferring Employees as the Agency may reasonably request in order to ascertain whether the provision of the Services and/or Deliverables under this agreement falls under the scope of TUPE and the extent of any liabilities which may transfer to the Agency by virtue of TUPE. The Client (or Outgoing Agency) shall have promptly informed the Agency of any material change to such information.
24.4 In the event that TUPE applies on the Commencement Date such that the contracts of employment of any Transferring Employees have effect as if originally made between such employees and the Agency (or are alleged to do so), the Client hereby indemnifies and keeps indemnified the Agency from and against all Losses whenever or howsoever arising, directly or indirectly, in connection with or as a result of any claim or demand (whether tortious, contractual, statutory or otherwise):
24.4.1 by any Transferring Employee arising out of (or alleged to arise out of) his/her employment with or its termination by the Client or the Outgoing Agency, or any other act or omission of the Client or the Outgoing Agency occurring up to and including the Commencement Date and for which the Agency is liable or alleged to be liable by reason of the operation of the TUPE; and
24.4.2 by any Transferring Employee arising from or connected with any failure by the Client or the Outgoing Agency to comply with its obligations to inform and (if applicable) consult with the appropriate representatives of such employees pursuant to Regulation 13 of TUPE or otherwise, except to the extent that any such failure arises either wholly or partly as a result of any act or omission of the Agency to provide the Client or the Outgoing Agency in good time with the information necessary for it to comply with Regulation 13(2)(d) of TUPE.
24.5 The parties acknowledge that termination or expiry of the provision of the Services and/or Deliverables under this agreement may amount to a service provision change in accordance with TUPE.
24.6 Subject to the Client and/or the Successor Agency providing a confidentiality undertaking, the Agency shall compile and provide to the Client or to the Successor Agency not less than one month after notice of termination of this agreement has been served the employee liability information as defined by Regulation 11(2) of TUPE relating to any Agency Employees. The Agency shall promptly inform the Client or the Successor Agency of any material change to such information.
24.7 In the event that TUPE applies on the termination of this agreement such that the contracts of employment of any Agency Employees have effect as if originally made between such employees and the Client or Successor Agency, the Agency hereby indemnifies and keeps indemnified the Client and Successor Agency from and against all Losses whenever or howsoever arising, directly or indirectly, in connection with or as a result of any claim or demand (whether tortious, contractual, statutory or otherwise):
24.7.1 by any Agency Employee arising out of his/her employment or its termination by the Agency or any other act or omission of the Agency occurring between the Commencement Date and the termination of this agreement and for which the Client or any Successor Agency is liable by reason of the operation of TUPE;
24.7.2 by any Agency Employee arising from or connected with any failure by the Agency to comply with its obligations to inform and (if applicable) consult with the appropriate representatives of such employees pursuant to Regulation 13 of TUPE, except to the extent that any such failure arises either wholly or partly as a result of any act or omission of the Client or the Successor Agency to provide the Agency in good time with the information necessary for it to comply with Regulation 13(2)(d) of TUPE;
24.8 The Client hereby indemnifies and keeps indemnified the Agency from and against all Losses which the Agency incurs after the termination or expiry of this agreement arising from any act or omission of the Client or any Successor Agency in relation to any of the Agency Employees.
25.1 Both parties will comply with all applicable requirements of the Data Protection Laws. This clause 26 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Laws.
25.2 Without prejudice to the generality of clause 26.1, each party will ensure that it has all necessary appropriate consents and notices in place to enable lawful processing of the Personal Data for the duration and purposes of this agreement.
25.3 Without prejudice to the generality of clause 26.1, each party (“Processor Party”) shall, in relation to any Personal Data processed in connection with the performance by the Processor Party of its obligations under this agreement:
(b) the data subject has enforceable rights and effective legal remedies;
25.3.6 notify the Controller Party without undue delay on becoming aware of a Personal Data breach;
25.5 For processing of Personal Data in connection with this agreement: the duration of the processing is the Term or such longer period as is required by law; the subject matter, nature and purpose is the storage of Personal Data and the sharing of Personal Data between the parties to allow performance of the parties' obligations pursuant to this agreement; types of Personal Data subject to processing pursuant to this agreement are names, addresses, email addresses, IP addresses; and the categories of data subject are Client and Agency contact details, employees of the Client and the Agency Personnel.
26.1 Subject to compliance with the provisions of clause 27.2, a party shall not be deemed to be in breach of this agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to Force Majeure Event and the time for performance of that obligation shall be extended accordingly.
27.1.1 not disclose to any person any Confidential Information except as permitted by clause 28.2;
27.1.2 maintain the other party’s Confidential Information in confidence; and
27.2 Each party may disclose the other party’s Confidential Information:
27.2.2 as may be required by applicable law, court order or any Competent Authority.
27.3 The provisions of this clause shall not apply to any Confidential Information that:
27.3.4 the parties agree in writing is not confidential or may be disclosed.
27.4 The obligations under this clause 28 shall continue after the termination or expiry of this agreement for a period of five years.
33.5 Nothing in this clause 34 shall limit or exclude any liability for fraud or fraudulent misrepresentation.
40.1 Nothing in this agreement confers any rights on any person under the Contracts (Rights of Third Parties) Act 1999.
41.2 This clause 42.2sets out the delivery methods for sending a notice to a party under this agreement and, for each delivery method, the date and time when the notice is deemed to have been received:
41.2.1 if delivered by hand, at the time the notice is left at the address;
41.2.2 if sent by pre-paid first class post or other next working day delivery service providing proof of postage, at 9.00am on the second Business Day after posting;
41.2.4 if sent by email, at the time of transmission.
41.3 If deemed receipt under clause 42.2 would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. In this clause 42.3, business hours means 9.00 a.m. to 5.00 p.m. Monday to Friday on a day that is not a public holiday in the place of receipt.
41.4 This clause does not apply to the service of any proceedings or other documents in any legal action.