It is hereby agreed…
1.1 The following definitions and rules of interpretation apply in this agreement:
Applicable Laws: all applicable laws, statutes, regulation and codes from time to time in force.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010 OR the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Client Materials: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Agency in connection with the Creative Works, including the items provided pursuant to clause 4.1(d).
Creative Works: the design, creation and production of creative concepts and materials (including digital materials) described in a Statement of Work.
Deliverables: any output of the Creative Works to be provided by the Agency to the Client as specified in a Statement of Work.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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.
Milestone: a date by which a part or all of the Creative Works is to be completed, as set out in a Statement of Work.
SoW Charges: the sums payable for the Creative Works as set out in a Statement of Work.
Statement of Work: a detailed plan, describing the services to be provided by the Agency, the timetable for their performance and any other the related matters.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
1.2 Clause headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
1.8 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.11 A reference to writing or written includes email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 A reference to this agreement or to any other agreement or document is a reference to this agreement or such other agreement or document, in each case as varied or novated from time to time.
1.14 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Commencement and duration
2.1 This agreement shall commence on the date when it has been signed by all the parties and shall continue, unless terminated earlier in accordance with clause 11 (Termination), until either party gives to the other party written notice to terminate or as stated in a Statement of Works.
2.2 If there are no uncompleted Statements of Work as at the date notice to terminate is served under clause 1 such notice shall terminate this agreement with immediate effect.
2.3 The parties shall not enter into any further Statements of Work after the date on which notice to terminate is served under clause 1.
2.4 The Agency shall provide Creative Works from the date specified in the relevant Statement of Work.
2.5 If the Client wishes to cancel a Statement of Work before it is completed or delivered, a cancellation fee will be payable as follows:
(a) 50% of the Charges if cancellation takes place before submission of the first draft of the Deliverables; or
(b) 100% of the Charges if cancellation occurs after delivery of the first draft of the Deliverables and cancellation.
2.6 If the Client wishes to exercise its cancellation rights, it must do so in writing and immediately return to the Agency all draft Deliverables and any documents provided by the Agency. The Client will not retain any copies whether in digital, electronic or hard copy format. From the date of cancellation, the Client will have no rights in relation to the Creative Work.
3. Agency’s responsibilities
3.1 The Agency shall use reasonable endeavours to manage and complete the Creative Works, and deliver the Deliverables to the Client, in accordance with a Statement of Work in all material respects.
3.2 The Agency shall use reasonable endeavours to meet any performance dates or the Milestones (as applicable) specified in a Statement of Work but any such dates shall be estimates only and time for performance by the Agency shall not be of the essence of this agreement.
3.3 If applicable the Agency shall appoint the manager identified in the Statement of Work in respect of the Creative Works to be performed under that Statement of Work. The manager shall have authority to contractually bind the Agency on all matters relating to the relevant Creative Works (including by signing Change Orders). The Agency shall use all reasonable endeavours to ensure that the same person acts as the Agency’s manager throughout the term of the relevant Statement of Work, but may replace that person from time to time where reasonably necessary in the interests of the Agency’s business.
4. Client’s obligations
4.1 The Client shall:
(a) co-operate with the Agency in all matters relating to the Creative Works;
(b) appoint the manager identified in the Statement of Work in respect of the Creative Works to be performed under that Statement of Work. The manager shall have authority to contractually bind the Client on all matters relating to the relevant Creative Works (including by signing Change Orders);
(c) provide, for the Agency, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client’s premises, office accommodation, data and other facilities as required by the Agency including any such access as is specified in a Statement of Work;
(d) provide to the Agency in a timely manner all documents, information, items and materials in any form (whether owned by the Client or a third party) required under a Statement of Work or otherwise reasonably required by the Agency in connection with the Creative Works and ensure that they are accurate and complete in all material respects; and
(e) comply with any additional responsibilities of the Client as set out in the relevant Statement of Work.
4.2 If the Agency’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, the Agency shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
5. Non-solicitation and employment
5.1 The Client shall not, without the prior written consent of the Agency, at any time from the date on which any Creative Works commence to the expiry of 12 months after the completion of such Creative Works, solicit or entice away from the Agency or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Agency in the provision of such Creative Works.
5.2 Any consent given by the Agency in accordance with clause 1 shall be subject to the Client paying to the Agency a sum equal to 20% of the then current annual remuneration of the Agency’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.
6. Revisions to a statement of work
6.1 Either party may propose changes to the scope or execution of the Creative Works but no proposed changes shall come into effect until a revised Statement of Work has been signed by both parties.
6.2 The Agency reserves the right to amend the SoW Charges as a result of any changes agreed under clause 6.1.
7. Charges and payment
7.1 The Client shall pay the SoW Charges.
7.2 The Agency shall invoice the Client for the SoW Charges at the intervals specified, or on the achievement of the Milestones indicated, in the Statement of Work. If no intervals are so specified, the Agency shall invoice the Client at the end of each month for Creative Works performed during that month.
7.3 The Client shall pay each invoice submitted to it by the Agency within 30 days of receipt to a bank account nominated in writing by the Agency from time to time.
7.4 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Agency any sum due under this agreement on the due date:
(a) the Client shall 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 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%; and
(b) the Agency may suspend part or all of the Creative Works until payment has been made in full.
7.5 All sums payable to the Agency under this agreement:
(a) In the currency specified in the Contract Details;
(b) are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(c) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Intellectual property rights
8.1 In relation to the Deliverables:
(a) the Agency and its licensors shall retain ownership of all Agency IPRs.
(b) the Agency grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free and perpetual licence to copy and modify the Deliverables (excluding the Client Materials) for the purpose of receiving and using the Creative Works and the Deliverables in its business; and
(c) the Client may sub-license the rights granted in clause 8.1(b) to its Affiliates and clients.
8.2 In relation to the Client Materials, the Client:
(a) and its licensors shall retain ownership of all IPRs in the Client Materials; and
(b) grants to the Agency a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this agreement for the purpose of providing the Creative Works to the Client.
8.3 The Agency:
(a) warrants that the receipt, use and onward supply of the Creative Works and the Deliverables by the Client and its permitted sub-licensees shall not infringe the rights, including any Intellectual Property Rights, of any third party;
(b) shall indemnify the Client against all reasonable liabilities, costs, expenses, damages and losses suffered or incurred or paid by the Client arising out of or in connection with any claim brought against the Client for actual infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt, use or onward supply of the Creative Works and Deliverables;
(c) shall not be in breach of the warranty at clause 8.3(a), and the Client shall have no claim under the indemnity at clause 8.3(b) to the extent the infringement arises from:
(i) the use of Client Materials in the development of, or the inclusion of the Client Materials in, the Creative Works or any Deliverable;
(ii) any modification of the Creative Works or any Deliverable, other than by or on behalf of the Agency; and
(iii) compliance with the Client’s specifications or instructions.
8.4 The Client:
(a) warrants that the receipt and use in the performance of this agreement by the Agency, its agents, subcontractors or consultants of the Client Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(b) 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 or paid by the Agency arising out of or in connection with any claim brought against the Agency, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Client Materials.
8.5 If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this clause 8, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 8.3(b) or clause 8.4(b) (as applicable) (IPRs Claim);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
9.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, clients or agents of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause and 9.2 and 9.3(a).
9.2 The Agency may promote the Deliverables and association with the Client through the Agency’s website and promotional material unless the Client specifically request the Agency not to do so.
9.3 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 9; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.4 No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
10. Limitation of liability
10.1 The restrictions on liability in this clause 10 apply to every liability arising under or in connection with this agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
10.3 Nothing in this agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.4 Subject to clause 10.3:
(a) the Agency shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) the Agency’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Fees paid for the Creative Works during the 12 months immediately preceding the date on which the claim arose.
11.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors [other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(d) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(b).
11.2 Without affecting any other right or remedy available to it, the Agency may terminate this agreement with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment: or
(b) there is a change of Control of the Client.
12. Obligations on termination and survival
12.1 Obligations on termination or expiry
(a) the Client shall immediately pay to the Agency all of the Agency’s outstanding unpaid invoices and interest and, in respect of the Creative Works supplied but for which no invoice has been submitted, the Agency may submit an invoice, which shall be payable immediately on receipt; and
(b) the Agency shall on request return any of the Client Materials not used up in the provision of the Creative Works.
(a) On termination or expiry of this agreement, all existing Statements at Work shall terminate automatically.
(b) Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
(c) Termination or expiry of this agreement shall 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 agreement which existed at or before the date of termination or expiry.
13. Force majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
14. Assignment and other dealings
14.1 The Client shall 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 this agreement.
14.2 The Agency may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this agreement.
Subject to clause 6 (Change control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
16.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall 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 this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.3 A party that waives a right or remedy provided under this agreement or by law in relation to one party or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
17. Rights and remedies
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
18.2 If any provision or part-provision of this agreement is deemed deleted under clause 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
19. Entire agreement
19.1 This agreement 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.
19.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.
21. No partnership or agency
21.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
21.2 – Each party confirms it is acting on its own behalf and not for the benefit of any other person.
22. Third party rights
22.1 Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
22.2 The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
23.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) 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
(b) sent by email to the address customarily used by the recipient party in relation this agreement.
23.2 Any notice shall 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 (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.
23.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
24.1 This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
24.2 No counterpart shall be effective until each party has executed and delivered at least one counterpart.
25. Governing law
This agreement 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 shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation provided that the Agency shall be entitled to enforce any judgement of the Courts in England and Wales in the courts of any jurisdiction.