Terms and Conditions
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 10 (LIMITATION OF LIABILITY).
1.1. The following definitions and rules of interpretation apply in these Conditions.
Affiliates: means any company, partnership or other entity which at any time directly or indirectly controls, is controlled by or is under common control with either party including as a subsidiary, parent or holding company;
Agency: registered in England and Wales;
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 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;
Brief: the Client’s request for Services as set out in the Client’s purchase order form, the Client’s written response to a quotation by the Agency, or otherwise in writing, as the case may be
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Cancellation Fee: the fee payable by the Client to the Agency for terminating a Contract or cancelling specified Services within a Project in accordance with these Conditions or the Engagement Letter;
Client: the person or firm who purchases Services from the Agency;
Client Default: has the meaning set out in clause 4.2;
Client Materials: means any data, client 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: has the meaning given in clause 2.3;
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.5;
Confidential Information: means all confidential information (however recorded or preserved) disclosed by a party or its representatives to the other party and that party’s representatives whether before or after the date of this agreement in connection with the Services, the Deliverables and/or the Contract, including but not limited to any information that would be regarded as confidential by a reasonable business person relating to the business, affairs, customers, clients, suppliers, or plans of the disclosing party (or its Affiliate) and the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or its Affiliate), or any information developed by the parties in the course of the Contract.
[Katt Frank Illustration];
Contract: the contract between the Agency and the Client underlying and governing the supply of Services for a specified Project, comprising these Conditions and the relevant Engagement Letter (subject to clause 2);
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control will be construed accordingly;
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the GDPR and any other directly applicable European Union regulation relating to privacy;
Deliverables: the deliverables set out in the Engagement Letter;
Deliverables” means the creative and other materials which are to be provided by the Agency as specified in an Engagement Letter, including Agency Materials, Third Party Materials and Agency Proprietary Materials where applicable
Engagement Letter: the specification of the Services for a given Project, provided in writing by the Agency to the Client and which reflects the Brief;
Fee: the fee payable by the Client for the performance of the Services and supply of Deliverables in accordance with clause 5 (Charges and payment), net of any bank or transfer charges;
GDPR: General Data Protection Regulation ((EU) 2016/679);
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
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 a project for which the Client engages the Agency under a Contract to perform Services and supply Deliverables to the Client;
Services: the services, including the Deliverables, supplied by the Agency to the Client for a Project as set out in the Engagement Letter.
Term: means the period commencing on the Commencement Date and ending on the effective date of termination of the Contract in accordance with clause 12 (Termination).
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 Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
1.3.1. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.3.2. Any words following the terms including, include, in particular, for example or any similar expression, will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.3.3. A reference to writing or written includes email.
2. Basis of contract
2.1. In relation to a Project, the Client will provide the Agency with the Brief.
2.2. In response to the Brief, the Agency will produce the Engagement Letter which when delivered to the Client will constitute an offer by the Agency to the Client for the Client’s purchase of Services and Deliverables.
2.3. The Agency’s offer (Engagement Letter) will be accepted when the Client confirms in writing to the Agency that it accepts the offer unconditionally (“Commencement Date”).
2.4. The Contract will come into force on the Commencement Date.
2.5. Any samples, drawings, descriptive matter or advertising issued by the Agency, and any descriptions or illustrations contained in the Agency’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They will not form part of the Contract or have any contractual force.
2.6. These Conditions and the Engagement Letter apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.7. If there is an inconsistency between any of the provisions of these Conditions and the provisions of the Engagement Letter, the provisions of the Engagement Letter will prevail.
2.8. Unless agreed otherwise in writing, the Agency’s offer (Engagement Letter) is only valid for acceptance for a period of 20 Business Days from its date of issue.
3. Supply of Services
3.1. The Agency will supply the Services to the Client in accordance with the Engagement Letter in all meterial respects.
3.2. The Agency will use reasonable endeavours to meet any performance dates specified in the Engagement Letter, but any such dates will be estimates only and time will not be of the essence for performance of the Services or supply of Deliverables. Subject to the Agency’s adherence to this clause 3.2, the exclusions in clause 10.4.2 will apply in connection with time of performance.
3.3. The Agency reserves the right to amend the Engagement Letter if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Agency will notify the Client in any such event.
3.4. The Agency warrants to the Client that the Services will be performed using reasonable care and skill. Notwithstanding this, the Agency does not warrant that the Services or Deliverables will be error-free, and hereby disclaims any liability arising out of or in connection with such errors where the Client has approved Deliverables prior to their delivery.
3.5. The Agency makes no warranty or representation to the Client regarding impact of or outcome from the Deliverables.
4. Client’s obligations
4.1. The Client will:
4.1.1. ensure that the information in and terms of the Brief are complete and accurate;
4.1.2. ensure that the Engagement Letter accurately reflects the Brief;
4.1.3. co-operate with the Agency in all matters relating to the Services; and
4.1.4. provide the Agency with such information and materials in a timely manner as the Agency may reasonably require in order to perform the Services and supply the Deliverables, and ensure that such information is complete and accurate in all material respects.
4.2. If the Agency’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
4.2.1. without limiting or affecting any other right or remedy available to it, the Agency will have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Agency’s performance of any of its obligations;
4.2.2. the Agency will not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Agency’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3. the Client will reimburse the Agency on written demand for any costs or losses sustained or incurred by the Agency arising directly or indirectly from the Client Default.
5. Charges and payment
5.1. The Fee for the Services will be set out in the Engagement Letter.
5.2. Save as otherwise provided under the terms of the Engagement Letter, the Agency will invoice 50% of the Fee to the Client prior to commencement of the Services and will invoice the remaining 50% of the Fee immediately following the Client’s approval of the Deliverables.
5.3. Notwithstanding any other provision of these Conditions, the Client will not be obliged to pay Fees for a Project and the Agency will not be obliged to supply any Services and Deliverables for a Project until each party has signed the applicable Engagement Letter.
5.4. If the Client engages a third party (which is not an Affiliate) to manage the Services on its behalf, the Agency reserves the right to charge additional fees to reflect the additional time cost to the Agency of liaising with such third party, subject to prior agreement in writing. The Agency will be under no obligation to liaise with such third party until such additional fee or basis of charging is agreed. This clause 5.4 will apply whether the Client engages such third party before or after the parties have signed the relevant Engagement Letter.
5.5. The Client is responsible to ensure that any sums it transfers to the Agency in respect of the Fee properly and fully accounts for any bank or service charges associated with such transfer.
5.6. The Client will pay each invoice submitted by the Agency:
5.6.1. unless agreed otherwise in writing in advance, within 7 days of the date of the invoice;
5.6.2. in accordance with any credit terms agreed by the Agency and confirmed in writing to the Client; and
5.6.3. in full and in cleared funds to a bank account nominated in writing by the Agency, and in any case time for payment will be of the essence of the Contract.
5.7. All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Agency to the Client, the Client will, on receipt of a valid VAT invoice from the Agency, pay to the Agency such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.8. If the Client fails to make a payment due to the Agency under the Contract by the due date, then, without limiting the Agency’s remedies under clause 11, the Client will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.8 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.9. All amounts due under the Contract will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. Intellectual property rights
6.1. The Client hereby warrants that the Client Materials do not infringe the Intellectual Property Rights of any third party and indemnifies the Agency in respect of any and all costs, expenses, losses or other liability incurred by the Agency in connection with such infringement, including reasonable legal and other professional fees.
6.2. 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) will remain vested in the Client or its licensors. The Client hereby grants to the Agency a non-exclusive licence during the applicable Term to use the Client Materials solely for the purposes of providing the Services and Deliverables.
6.3. Subject to the Agency receiving payment of all Fees attributable to the Agency Materials, the Agency grants to the Client a licence to use the Agency Materials in the Territory, for inclusion in the Deliverables and for the purposes and in the media and period of time set out in the Engagement Letter.
6.4. If the Client wishes to use the Deliverables:
6.4.1. either outside of the Territory; and/or
6.4.2. after the period of time set out in the Engagement Letter; and/or
6.4.3. outside of the purposes and/or media set out in the Engagement Letter, then the Client will notify the Agency of any intended use of Deliverables and will pay the Agency a fee [to be agreed by the parties OR as set out in the Engagement Letter].
6.5. The Client acknowledges that all Intellectual Property Rights in the Agency Proprietary Materials will 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 licence to use such Agency Proprietary Materials as are included in the Deliverables, in the Territory, for the period of time and for the purposes set out in the Engagement Letter.
6.6. Prior to delivery of the Deliverables, the Agency will obtain such licences or consents in respect of Third Party Materials as will be necessary in order that the Client can use such Third Party Materials for the purposes set out in the Engagement Letter. The Agency will 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 or its Affiliates breaching any such restrictions.
6.7. 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 will not do or fail to do any act which would or might prejudice the Client’s rights under this clause 6.
6.8. To the extent permitted by law and subject to the Agency receiving payment of all Fees attributable to the Agency Materials, the Agency will 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 will 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 will obtain the Client’s approval prior to incorporating such Third Party Materials into the Deliverables. Where the Agency has granted a licence to the Client pursuant to clause 6.2 the waiver obligations on the Agency in this clause 6.7 will continue only for the duration of that licence.
6.9. Notwithstanding any of the above and save as otherwise expressly provided for in an Engagement Letter, the Agency will:
6.9.1. 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, social media channels, in credentials pitches and in its showreel. Any other use by the Agency will be subject to the Client’s prior approval; and
6.9.2. retain all know-how obtained in connection with the Services and Deliverables.
6.10. For the avoidance of doubt, the Agency will not be liable under or in connection with these Conditions 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.
6.11. The terms of and obligations imposed by this clause 6 will survive the termination of the Contract for any reason, save that if the Client ceases to exist (as a result of any form of liquidation or winding-up procedure or being struck off), any licence granted pursuant to clause 6.3 or 6.4 will automatically terminate.
7. Data protection and data processing
7.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
7.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Agency is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The Agency may collect, store and otherwise process Personal Data on behalf of the Client including name, email address and phone number of employees of the Client, and login details for a commissioned website or a social media channel of the Client, in order to fulfil the Agency’s obligations under the Contract. The The Agency will only process such Personal Data for the purposes of the Contract and for so long as the Contract remains in force.
7.3. Without prejudice to the generality of clause 7.1, the Client will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Agency for the duration and purposes of the Contract.
7.4. Without prejudice to the generality of clause 7.1, the Agency will, in relation to any Personal Data processed in connection with the performance by the Agency of its obligations under the Contract:
7.4.1. process that Personal Data only on the written instructions of the Client unless the Agency is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Agency to process Personal Data (Applicable Data Processing Laws). Where the Agency is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Agency will promptly notify the Client of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Agency from so notifying the Client;
7.4.2. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
7.4.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
7.4.4. save for within the Privacy Shield framework, not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(a) the Client or the Agency has provided appropriate safeguards in relation to the transfer;
(b) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(c) the Agency complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) the Agency complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
7.4.5. assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.4.6. notify the Client without undue delay on becoming aware of a Personal Data breach;
7.4.7. at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Contract unless required by Applicable Data Processing Law to store the Personal Data; and
7.4.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 7.
7.5. The Client consents to the Agency appointing third-party processors of Personal Data under the Contract, provided that the Agency notifies the Client of the identity of such third-party processors and provided that the Agency informs the Client of any intended changes to such third-party processors. The Agency confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business as set out in clause 9 below. As between the Client and the Agency, the Agency will remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 7.
7.6. The Agency may, at any time on not less than 30 days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which will apply when replaced by attachment to the Contract).
7.7. The Client shall indemnify the Agency against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Agency arising out of or in connection with the
Client’s breach of the Data Protection Legislation or any provisions of this clause 7 (including, without limitation, clause 7.3).
8. Third party suppliers: services and costs
8.1. The Agency will invoice the Client in respect of all third party costs incurred by the Agency on behalf of the Client in performing the Services, subject to the Client approving all such costs in advance in writing, including without limitation:
8.1.1. third party services required to produce the Deliverables including illustration, film production, artwork, photography, back-end coding for websites, recordings, the services of performers, animation, print and post-production work and other content; and
8.1.2. 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”).
8.2. The Agency will advise the Client promptly of any changes in the estimated cost of items of Deliveables.
8.3. 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 will 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.
8.4. In the event that any Third Party Costs require payment in advance or sooner than the payment terms set out in clause 5, the Agency will notify the Client as soon as reasonably practicable in advance and the Client will pay such costs within the period set out in the relevant invoice.
9. Third party suppliers: business terms and selection
9.1. 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“).
9.2. Provided that the Agency has notified the Client of any significant restrictions or contract terms contained in such Third Party Contracts:
9.2.1. the Client hereby acknowledges that its right to use or otherwise benefit from any Services or Deliverables acquired under such Third Party Contracts will be as set out in such Third Party Contracts;
9.2.2. any fee or liabilities (to the extent caused by an act or omission of the Client or its Affiliates or any third party acting for or on its behalf) for which the Agency is liable under such Third Party Contracts (including cancellation payments) will be the responsibility of the Client; and
9.2.3. the Client hereby indemnifies and will 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.
9.3. The Agency will provide the Client with a copy of any relevant Third Party Contract if requested to do so in writing and if authorised by the relevant third party.
9.4. The Agency will use reasonable care and skill in the selection and appointment of suppliers. Should the Client request, the Agency will obtain more than one quote for a particular supply and discuss these with the Client before placing an order.
9.5. The Agency will obtain the Client’s approval before commissioning services from any Affiliate.
10. Limitation of liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
10.1. The Agency has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1 million per claim. The limits and exclusions in this clause reflect the insurance cover the Agency has been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess loss.
10.2. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
10.2.1. death or personal injury caused by negligence;
10.2.2. fraud or fraudulent misrepresentation; and
10.2.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.3. Subject to clause 10.2, the Agency’s total liability to the Client under the Contract will not exceed the Fee. The Agency’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
10.4. This clause 10.4 UPDATE FCsets out specific heads of excluded loss:
10.4.1. Subject to clause 10.2, the types of loss listed in clause 10.4.2 are wholly excluded by theparties.
10.4.2. The following types of loss are wholly excluded:
(a) Loss of profits
(b) Loss of sales or business.
(c) Loss of agreements or contracts.
(d) Loss of anticipated savings.
(e) Loss of use or corruption of software, data or information.
(f) Loss of or damage to goodwill.
(g) Indirect or consequential loss.
10.5. The Agency will in no circumstances be liable (subject to clause 10.2) for any loss suffered by the Client in connection with Services where the Client has not paid the Agency in full for those Services (including Third Party Costs).
10.6. The Agency will not be liable for any mistakes identified by the Client following approval of the draft Deliverables pursuant to clause 11.1.
10.7. The Agency will under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss, to include but not be limited to any loss relating to failure of or the Client’s misuse of the Deliverables, and arising under or in connection with the Contract.
10.8. The Agency makes no warranty or representation, nor does it guarantee, that any of the Services or the Deliverables provided to the Client will in any way deliver an improvement to the Client’s business. This includes without limitation increases in sales, following on social media and so on.
10.9. The Agency has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.10. This clause 10 will survive termination of the Contract.
11. Approvals and amendments
11.1. The Agency will deliver the Deliverables subject to the Client’s prior approval in writing, and such approval will be final.
11.2. Subject to clause 11.3 and any variation under the terms of the Engagement Letter, amendments will be limited for all Services and Deliverables to two rounds of minor, non-material amendments (“amendment” and any derivative thereof will have the same meaning throughout the Contract). Any amendments required beyond this will be charged at £175 per hour.
11.3. In the event that either party wishes to make any material amendment to a Project, any such amendment will be subject to the agreement of both parties in writing.
11.4. [In the event of any amendment to a Project by the Client, the Fees payable to the Agency in respect of the amended Project will not decrease below the level of Fees that would have been payable had the Project not been amended, save with the prior written approval of the Agency.]
11.5. Pending agreement in writing of any amendments to a Project, the Agency will (unless otherwise agreed) continue to perform and be paid for the Services as if such change had not been requested.
12.1. Without affecting any other right or remedy available to it, either party may terminate the Contract bygiving the other party one months’ written notice.
12.2. Without affecting any other right or remedy available to it, either party may terminate the Contract withimmediate effect by giving written notice to the other party if:
12.2.1. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
12.2.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
12.2.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
12.2.4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.3. Without affecting any other right or remedy available to it, the Agency may terminate the Contract with immediate effect by giving written notice to the Client if:
12.3.1. the Client fails to pay any amount due under the Contract on the due date for payment;
12.3.2. there is a change of control of the Client; or
12.3.3. the Client consistently acts in such a way which demonstrates an unwillingness to be bound by the terms of the Contract or other applicable laws or regulations, including without limitation communicating with the Agency in a manner that is rude or aggressive.
12.4. Without affecting any other right or remedy available to it, the Agency may suspend the supply of Services under the Contract or any other contract between the Client and the Agency if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 12.2.2 to clause 12.2.4, or the Agency reasonably believes that the Client is about to become subject to any of them.
12.5. The Client acknowledges that upon termination by it of the Contract it may be subject to continuing obligations under Third Party Contracts. Upon termination by the Client, the Agency will confirm within a reasonable time any such contractual obligations to suppliers.
13. Consequences of termination
13.1. On termination of the Contract:
13.1.1. the Client will immediately pay to the Agency all of the outstanding unpaid invoices for Third Party Costs and interest and, in respect of services supplied pursuant to Third Party Contracts but for which no invoice has been submitted, the Agency will submit an invoice, which will be payable by the Client immediately on receipt;
13.1.2. the Client will return all of the Agency Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Agency may enter the Client’s premises and take possession of them. Until they have been returned, the Client will be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
13.2. Save for where the Client terminates pursuant to clause 12.2, the Client will be liable for the Fee as follows:
13.2.1. if the Agency has not commenced performance of the Services, no liability;
13.2.2. if the Agency has commenced performance of the Services, 50% of the Fee;
13.2.3. if the Agency has commenced the first round of amendments, 75% of the Fee; or
13.2.4. if the Agency has commenced the second round of amendments, 100% of the Fee, and the Agency will submit an invoice as appropriate, which will be payable by the Client immediately on receipt.
13.3. Save for where the Client terminates pursuant to clause 12.2, any licence granted by the Agency to the Client will terminate upon termination of a Contract.
13.4. Termination or expiry of the Contract will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13.5. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract will remain in full force and effect.
13.6. In addition to the above, in the event of termination of a Contract (or of part thereof by amendment), including any and all plans or work in progress, by the Client, the Client will pay any cancellation fees set out in the Engagement Letter.
14.1. Force majeure. Neither party will be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
14.2. Assignment and other dealings.
14.2.1. The Agency may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
14.2.2. The Client will not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Agency.
14.3.1. Each party undertakes that it will not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any Confidential Information of the other party, except as permitted by clause 14.3.2.
14.3.2. Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such Confidential Information for the purposes of carrying out the party’s obligations under the Contract. Each party will ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 14.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3.3. Neither party will use the other party’s Confidential Information for any purpose other than to perform its obligations under the Contract.
14.4. Entire agreement.
14.4.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
14.4.2. Each party acknowledges that in entering into the Contract it does not rely on, and will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it will have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
14.4.3. Nothing in this clause will limit or exclude any liability for fraud.
14.5. Variation. Except as set out in these Conditions, no variation of the Contract will be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.6. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law will not constitute a waiver of that or any other right or remedy, nor will it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law will prevent or restrict the further exercise of that or any other right or remedy.
14.7. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will 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 will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause will not affect the validity and enforceability of the rest of the Contract.
14.8.1. Any notice given to a party under or in connection with the Contract will be in writing and will be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address in the Engagement Letter or otherwise notified by the other party in writing from time to time.
14.8.2. Any notice will be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 14.8.2(c),business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
14.8.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
14.9. No partnership. Nothing in this agreement is intended to, or will be deemed to, establish any partnership or joint venture between the parties.
14.10. Third party rights.
14.10.1. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
14.10.2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
14.11. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by, and construed in accordance with the law of England and Wales.
14.12. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.