Terms of Business

These are the Terms of Business when working with Rooster Punk Group Limited, trading as Rooster Punk, a company registered in England whose registered office is at Rodney House, Clifton, Bristol, BS8 4AL, UK, and whose company registration number is 280330334.

IT IS AGREED:

  1. Definitions and interpretation

The definitions and interpretation provisions of this Agreement are set out in Schedule 1.

  1. Term

2.1 This Agreement shall commence on the Effective Date and shall remain in place for a period of one year.  Thereafter, this Agreement shall automatically renew until such time as one Party wishes to terminate the Agreement by giving the other Party ninety (90) days’ written notice (the “Term”).

  1. Services

3.1 For each engagement under this Agreement, the Services to be provided by the Agency will be set forth in a statement of work or other similarly titled agreement (“SOW”) which shall be substantially in the form attached hereto as Schedule 2. The terms and conditions of this Agreement shall apply to all Services provided by the Agency.

3.2 Without limiting any other provision of this Agreement, the Agency shall provide the Services at all times in accordance with Best Industry Practice and use all reasonable endeavours to provide the same in a manner which does not adversely affect the normal business operations of any member of the Client Group.

3.3 Neither the Agency nor any of the Agency’s Personnel shall engage in any business or professional activity which conflicts or could conflict with any of the obligations under this Agreement.  The Agency shall notify Client immediately in writing of any actual or potential conflict together with recommendations as to how the conflict can be avoided.

The Agency will not provide any services to any Competitors identified as such in writing during the Term of any SOW governed by this contract, and for 90 days following the completion of any such SOW.

  1. Compliance

4.1 Each of the Agency and Client shall perform their respective obligations under this Agreement in accordance with all legislation, statutory instruments, regulations, orders, directions and codes of practice of any Competent Authority acting within its lawful authority.

  1. Sub-contractors and Assignment

5.1 The Agency may at time to time assign any some of its rights or sub-contract any of its obligations under this Agreement with the prior consent of Client.

5.2 In the event that Client consents to the Agency sub-contracting any of its obligations under this Agreement, the Agency shall be and shall remain responsible and liable for all its obligations hereunder notwithstanding the sub-contracting of such obligations and for all acts and omissions of its sub-contractors.

  1. Sites
    1. Subject to the Agency obtaining Client’s prior written consent, Client shall allow the Agency’s employees and permitted sub-contractors reasonable access to Client Premises during normal working hours but only to the extent such access is reasonably necessary for the Agency to provide the Services in accordance with the provisions of this Agreement.
    2. The Agency shall ensure that its employees and permitted sub-contractors attending the Client Premises:
      1. carry and keep visible suitable means of identification;
      2. comply with lawful directions given by authorised Personnel of Client relating to conduct on the Client Premises;
      3. do not prevent, disturb or interfere with the carrying out by Client of its business, affairs or duties; and
      4. immediately vacate the Client Premises upon the instructions of any authorised Personnel of Client.
    3. Unless otherwise agreed, the Agency shall be responsible for all Materials which it brings onto the Client Premises and shall remove any or all of the same from the Client Premises as soon as possible after being so requested by Client in writing.  All Materials brought onto the Client Premises by the Agency or its Personnel shall remain at all times at the risk of the Agency and Client shall have no liability whatsoever for any damage to or loss of such Materials howsoever caused.
  2. Charges
    1. In consideration of the Services being performed by the Agency, Client shall pay the relevant Charges to the Agency in accordance with Schedule 2, together with any applicable VAT on such Charges at the rate and in the manner prescribed by law from time to time.
    2. In the event that the Agency materially breaches this Agreement (in whole or in part), then for so long as and to the extent that the material breach occurs, no applicable Charges shall be payable from or by Client as relate to those Services for which the Agency is not performing in accordance with this Agreement.
    3. Any sums recoverable from the Agency under this Agreement may be deducted from the amount of any sum due from Client Group to the Agency under this Agreement or any other agreement or dealing with the Agency.
    4. Any sum due to either Party under this Agreement not paid when due shall bear non-compound interest whether before or after any judgment on a monthly basis until paid at a rate of interest equal to two percent (2%) per annum above the base rate for the time being of HSBC Bank plc or its successor.
    5. The Charges are the only amounts payable by Client under this Agreement or otherwise in respect of the Services.
  3. Force Majeure Event
    1. Neither Party shall be responsible for failure to perform any obligation under this Agreement to the extent that it is caused by any Force Majeure Event provided that such Party has taken all reasonable steps to prevent and avoid the Force Majeure Event and takes all reasonable steps to overcome and mitigate the effects of the Force Majeure Event as soon as reasonably practicable.
    2. If a Force Majeure Event arises pursuant to Clause 8.1, then for so long as and to the extent that the Force Majeure Event prevents the Agency from providing the Services no Charges shall be due or payable from or by Client in respect of such Services.  If the Force Majeure Event continues for more than twenty (20) calendar days, Client may terminate this Agreement forthwith by written notice to the Agency.
  4. Reporting
    1. The Agency shall, on reasonable written notice in advance, allow Client and any auditors of, or other advisers to, Client to access any of the Agency’s premises, personnel, relevant records and systems used by the Agency in the provision of the Services (including the Agency’s system) as may be reasonably required to verify that the Services are being provided in accordance with this Agreement.
  5. Agency’s Warranties

The Agency warrants and represents to Client that:

    1. so far as it is aware or should reasonably be aware it has all information it requires in order to provide the Services in accordance with this Agreement;
    2. it has full right, power and authority to provide the Services to enter into and to perform this Agreement;
    3. the provision of the Services and Client’s use of any items developed or delivered by or on behalf of the Agency under this Agreement shall not infringe any Intellectual Property rights of any third party;
    4. it is not aware, as of the date of this Agreement, of any matters within its reasonable control which may or will adversely affect its ability to perform its obligations in accordance with this Agreement;
    5. the Services shall be provided by appropriately experienced, qualified and trained Personnel with all due care, skill and diligence;
    6. the Services shall be provided in accordance with all legislation, statutory instruments, regulations, orders, directions and codes of practice of any Competent Authority
  1. Indemnities
    1. The Agency shall indemnify Client against all Liabilities, which any member of Client Group incurs directly or indirectly as a result of any act, omission or default of the Agency or its Personnel in respect of any breach of the warranties in Clause 10.
    2. The Agency shall indemnify and save harmless Client against all Liabilities incurred by Client in connection with:
      1. any infringement or alleged infringement of third party Intellectual Property rights arising from or in connection with any use of the Agency IP or the Client Project Intellectual Property;
      2. Publication Deliverables breaching any legislation, statutory instruments, regulations, orders, directions and codes of practice of any Competent Authority
  2. Limitations of liability

The liability of each Party to the other under or in connection with this Agreement, whether arising from contract, negligence or otherwise, shall be limited for any single event or series of connected events as follows:

for liability arising from death or injury to persons there shall be no limit;

for liability arising from fraud, including without limitation fraudulent misrepresentation, there shall be no limit;

for any other Liability, the aggregate liability for the same in any one year shall be limited to the greater of £2 million or the annual aggregate of the Charges paid or payable over the twelve (12) month period immediately preceding the relevant Liability arising.

  1. Insurance

13.1 Without prejudice to any other Clause in this Agreement, the Agency shall maintain in force (at its own expense) for the Term of this Agreement and for claims made after the Term in respect of events occurring during the Term:

employer’s liability insurance of £5million;

professional indemnity insurance of £1million per claim; and

comprehensive public liability insurance of £5million per claim.

13.2 Within fourteen (14) calendar days of a request by Client, the Agency shall provide evidence of the insurances which it is obliged to maintain under Clause 13.1.

  1. Intellectual Property Rights

The Parties acknowledge that:

    1. the Agency is the owner or licensed user of the Agency IP and that, except as specified in Clause 14.3, nothing in this Agreement shall confer on Client any right, title or interest in the Agency IP; and
    2. Client is the owner or licensed user of Client IP and that, except as expressly specified in 14.2, nothing in this Agreement or otherwise shall confer on the Agency or its Personnel any right, title or interest in the Client IP.
    3. Subject to Client obtaining all necessary consents from third party licensors, Client hereby grants to the Agency a non-exclusive, non-transferable royalty-free licence for the Term only to use such of the Client IP as relates to the Services in the United Kingdom strictly for the purposes of and to the extent necessary to perform the Services.
    4. The Agency hereby grants Client Group a non-exclusive, royalty-free, perpetual and irrevocable worldwide licence and right to use the Agency IP, and all relevant Materials for the purposes of and to the extent necessary to receive and obtain the full benefit of the Services.
    5. The Parties acknowledge and agree that any Intellectual Property in any data collected by the Agency from third parties in the course of providing the Services, including in customer lists or databases, shall be the property of Client.
    6. The Parties acknowledge and agree that all Project Intellectual Property shall be the property of or licensed to Client. The Agency hereby:
      1. assigns with full title guarantee to Client all right, title and interest in any Project Intellectual Property which is owned by the Agency, including without limitation such Project Intellectual Property that is created by the Agency in the course of providing the Services;
      2. grants or undertakes to procure the grant to Client of a non-exclusive, perpetual and irrevocable, royalty-free, worldwide licence to use any Project Intellectual Property which is not owned by the Agency for the benefit of the Client Group; and
      3. agrees to perform all further acts necessary to perfect any of the foregoing, including by the execution of any and all deeds and documents, at the request of Client but at the Agency’s own expense.
    7. Client agrees to and shall grant to the Agency a royalty free, UK non-transferrable, non-exclusive licence to use the Project Intellectual Property for the sole purpose of providing the Services to Client pursuant to this Agreement.
    8. The Agency must submit all materials on which the Client Brand is proposed to be used for Client’s written approval.  Client may in its absolute discretion withhold such approval or grant it on conditions as it thinks fit.
  1. Confidentiality and publicity

The Parties agree that the provisions relating to confidentiality and publicity in Schedule 3 shall apply.

  1. Termination
    1. Client shall have the right at any time and for any reason to terminate the Agreement in whole or in part by giving the Agency ninety (90) days’ written notice.
    2. Either Party may terminate this Agreement (in whole or in part) with immediate effect if:
      1. the other Party persistently breaches this Agreement (in whole or in part) or commits a fundamental or material breach of this Agreement and if capable of remedy does not remedy such fundamental or material breach within 30 days of being notified in writing of the breach.
      2. the other party becomes subject to bankruptcy proceedings, an administration order, sequestration proceedings, winding up proceedings (except for the purpose of reconstruction or amalgamation) or a receiver, administrator or similar officer is appointed over the whole or any part of the assets or business of the Agency; or
      3. the other party stops or threatens to stop trading or becomes insolvent.
    3. Client may terminate this Agreement immediately by writing to the Agency if there is a change of control of the Agency, as defined by Section 416 of the Income and Corporation Taxes Act 1988, in the Agency.
  2. Termination Consequences
    1. Upon expiry or termination of this Agreement for any reason, the Agency undertakes to assist and co-operate with Client and to continue to provide the Services and perform its obligations hereunder for such further period as may be determined by Client to ensure an orderly and efficient transition from provision of the Services by the Agency to the provision of such or similar services by Client or a third party.
    2. The Agency shall, at Client’s sole option, return or destroy all data (including Personal Data), records, documentation and information relating to or which is relevant to the provision of the Services (“Client Data”), in a format acceptable to Client within 30 days of the expiry or termination of this Agreement.  The Agency shall warrant and confirm in writing to Client within five (5) days of the return or destruction of such Client Data this Clause has been complied with.
  3. Data protection
    1. If in the provision of the Services under this Agreement, Agency shall process Personal Data on behalf of Client this clause will apply. The Parties agree that Client is the Data Controller and Agency the Data Processor of such Personal Data, except when Client acts as a Data Processor of Personal Data, in which case Agency is a Sub-Processor. Agency acknowledges and is aware of the fact that Client acts for and on its own behalf and might act for its affiliated companies (hereinafter referred to as “Affiliates”). Affiliates have allowed Client to commission Agency as Processor or Sub-Processor, respectively, to process personal data of Affiliates. In such a case, this Agreement shall govern the processing of Personal Data of Client and its Affiliates by Agency.
    2. Definitions: All references to Personal Data, Data Controller, Data Processor, Data Processing Subcontractor (and Subcontractor), Processing (and Process), Data Subject and Personal Data Breach (and Data Breach), shall have the meaning given in the “General Data Protection Regulation” or “GDPR” regulation EU (2016/679/EC) on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data.
    3. Subject-matter and duration of the Processing: Client appoints Agency as a Data Processor or Data Sub-Processor to Process the Personal Data detailed in this Agreement to fulfil the objectives of the Agreement. Agency shall Process Personal Data in accordance with the Agreement and based on instructions from Client on the type, scope, and method of the Processing and shall not do anything which may put Client in breach of applicable data protection legislation.
    4. Agency shall not Process the Personal Data for any other purpose, except to the extent that any EU Law to which the Agency is subject prevents the Agency from complying with such instructions or requires the Processing of Personal Data other than as instructed by Client. In such a case the Agency shall inform Client of the legal requirement under EU Law before Processing, unless that law prohibits such information on important grounds of public interest.
    5. Client shall issue all instructions or confirm oral instructions in written or electronic form. The Agency shall accept the same in written or in electronic form. Agency shall inform Client immediately if it considers that an instruction violates data protection regulations.
    6. Duration of the Processing: The duration of the Processing corresponds to the duration of this Agreement.
    7. Purpose of the Processing: The Purpose of the Processing are all contract purposes required to render the agreed performance.
    8. Categories of Personal Data and Data Subjects:
      1. 18.8.1.Categories of Data Subjects concerned are employees of CLIENT; b) CLIENT group companies; and c) sub-contractors of a) and b).
      2. 18.8.2.Types of Personal Data concerned are names, e-mail addresses, job titles, phone numbers, places of employment.
    9. Confidentiality: Agency shall ensure that access to Personal Data is limited to those members of its personnel who need access to Personal Data to meet the Agency’s obligations under this Agreement and in the case of any access by any personnel, such part or parts of the Personal Data accessed is strictly necessary for the performance of the duties of the personnel. Agency shall take reasonable steps to ensure the reliability of any members of personnel that have access to the Personal Data. All such confidentiality and secrecy obligations shall survive the termination or expiration of the Agreement.
    10. 18.10.Security: Agency shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk (as specified in the Art 32 of the GDPR) to protect the Personal Data  (i) from unauthorised or unlawful destruction and (ii) loss, alteration, unauthorised disclosure of, or access to the Personal Data (Personal Data Breach). The Agency shall periodically monitor its internal processes and technical and organizational measures to ensure that processing within its area of responsibility is in accordance with the requirements of applicable data protection law and the protection of the rights of the Data Subject.
    11. 18.11.Subcontracting: Subcontracting is only allowed if (i) Client has agreed to the subcontracting in writing or in electronic form;  (ii) Agency has entered into a sub-processing contact with the Data Processing Subcontractor that stipulates a minimum all data protection obligations contained therein; and (iii) Agency shall remain fully liable to Client for the performance of the Data Processing Subcontractors obligations
    12. 18.12.International Transfers: Agency shall not transfer any Personal Data to locations in a “third country”, i.a. a country outside the European Economic Area, without the prior written consent of Client. When required by Client and if necessary, the Agency agrees to enter into Standard Contractual Clauses as provided by the European Commission (the “Model Clauses”) or any equivalent agreement with Client or other relevant entity or to provide other appropriate safeguards in order to legalize the data transfer to said third country. If the Agency is not the ‘Data Importer’ as contemplated by the Model Clauses, it agrees to arrange the conclusion of Model Clauses or the provision of appropriate safeguards by the ‘Data Importer’.
    13. 18.13.Cooperation and Data Subject’s Rights: Agency shall provide reasonable assistance to Client in fulfilling Data Subjects’ requests and claims. The Agency shall inform Client immediately of any requests or queries from a Data Subject, regulatory authority or any other law enforcement authority regarding processing of Personal Data under this Agreement and provide Client with any information and assistance that may reasonably be required to respond to any such requests of queries.
    14. 18.14.Security Incidents: Agency shall notify Client without undue delay on becoming aware of any serious incidences disrupting the Agency’s operations, any violation or suspicion of a violation of applicable data protection laws and regulations and other irregularities in the Processing of Client’ Data. After becoming aware of it, the Agency will take all necessary measures to protect the data and to mitigate possible adverse effects for Data Subjects and Client. The notification must contain – to the fullest extent possible – all information needed by Client to fulfil its statutory obligations.
    15. 18.15.Data Protection Impact Assessment: Agency shall provide Client with reasonable cooperation to enable Client to conduct any data protection impact assessment that it is required to undertake under the GDPR.
    16. 18.16.Termination: After conclusion of the contracted work, or earlier upon request by Client, at the latest upon termination of the Agreement, the Agency shall return to Client or – subject to prior consent – destroy all data, documents, processing and utilization results, and data sets related to the contract that have come into its possession. The log of the destruction or deletion shall be provided on request. The Agency is obligated to immediately ensure the return or deletion of the data, documents etc. from all Data Processing Subcontractors in the same way.
    17. 18.17.Audit: Agency shall ensure that Client is able to verify the Agency’s compliance with data protection and data security legislations and any contractual obligations to the extent that is required and reasonable. The Agency shall make available to Client all information reasonably necessary to demonstrate compliance with Agency’s Personal Data processing obligations under this Agreement, in particular, to demonstrate the execution of the technical and organisational measures.
    18. 18.18.Evidence of such measures may be provided by: compliance with approved codes of conduct and/or certification according to an approved certification procedure.
  1. Compliance: anti-bribery and corruption

The Agency shall:

    1. comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (the “Relevant Requirements”);
    2. not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
    3. have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and clause 19.1, and will enforce them where appropriate;
    4. promptly report to Client any request or demand for any undue financial or other advantage of any kind received by the Agency in connection with the performance of this agreement;
    5. certify to Client in writing signed by an officer of the Agency, compliance with this clause  by the Agency and all persons associated with it. The Agency shall provide such supporting evidence of compliance as Client may reasonably request.
    6. The Agency shall ensure that any person associated with the Agency who is performing services in connection with this agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Agency in this clause 19 (“Relevant Terms”). The Agency shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to Client for any breach by such persons of any of the Relevant Terms.
    7. Breach of this clause 19 shall be deemed a material breach of this Agreement.
    8. For the purpose of this clause 19, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause 20 a person associated with the Agency includes but is not limited to any subcontractor of the Agency.
  1. Variation

The terms of this Agreement may only be varied by written agreement between the Parties.

  1. Waiver

If either Party delays in enforcing, or does not enforce, any right, which either Party may have under this Agreement, this does not imply that that right has been waived.  If either Party waives any specific obligation or Liability under the Agreement, such waiver will not extend to any other obligations or Liabilities under the Agreement.

  1. Notices

Any notice to be given by a Party under this Agreement must be in writing in the English language and must be sent by recorded delivery or digitally tracked means (e.g. including delivery receipt) post to the email/postal address of the other Party set out below (or a replacement address notified to the other Party in writing).

Addresses for service:

Client:

[company]

Marked for the attention of:  [                                            ]

With a separate copy sent to:  [                                            ]

Agency:

Rooster Punk Group Ltd

James.trezona@roosterpunk.com and/or Paul.cash@roosterpunk.com

Post: Marked for the attention of:  James Trezona and Paul Cash

Rodney House,

Clifton

Bristol

BS8 2AL

  1. Survival of clauses

Termination of this Agreement shall not affect either of the Party’s accrued rights or Liabilities or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination, including without limitation Clauses 7, 8, 11-21 and all of the Schedules.

  1. Entire Agreement

Unless otherwise agreed in writing this Agreement constitutes the only terms governing the contractual relationship between Client and the Agency in relation to the Services and (with the exception of any fraudulent statements) supersedes all previous agreements and understandings between the Parties with respect to this Agreement.

  1. Remedies

Except as otherwise expressly provided in this Agreement, each and all of the rights and remedies provided in this Agreement, and each and all of the remedies allowed at law or in equity, shall be cumulative, and the exercise of one right or remedy shall not be exclusive of the right to exercise or resort to any and all other rights or remedies provided in this Agreement, at law or in equity.

  1. Severability

If any provision of this Agreement is held to be invalid or unenforceable, that provision will be severed from the Agreement and the remainder of the Agreement will remain in full force and effect.  Client and the Agency shall use their respective reasonable endeavours to negotiate in good faith so as to agree on a valid clause to replace any invalid clause.

  1. Relationship

The Agency is an independent contractor and nothing in this Agreement shall be deemed to constitute a partnership or any employment relationship between the Parties, nor shall anything in this Agreement be deemed to constitute one Party the agent of the other for any purpose.

  1. Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with English law and the Courts of England and Wales shall have exclusive jurisdiction to settle and resolve any dispute which may arise in connection with the validity, effect, interpretation and/or performance of this Agreement or otherwise arising in connection with this Agreement.

  1. Third Party Rights

The Parties to this Agreement do not intend that any term of this Agreement should be enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999, by any person who is not a party to this Agreement.

  1. Counterparts

This Agreement may be entered into in any number of counterparts and by the parties to it on separate counterparts each of which when executed and delivered shall be an original but all these counterparts shall together constitute one and the same instrument.

Schedule 1

Definitions and Interpretation

Definitions

In this Agreement the following expressions have the following meanings:

“Affiliate”:  means, in relation to any company, any subsidiary or holding company of such company or any other subsidiary of any such holding company, or any other undertaking in the company’s group, for which purpose “group”, “subsidiary” and “holding company” shall have the meanings ascribed to them in Sections 474(1) and 1159 of the Companies Act 2006;

“Agreement”:  means these terms and conditions, together with all schedules and annexes hereto which shall for all purposes be incorporated into and form part of this agreement;

“Best Industry Practice”:  means, in relation to any activity or requirement relevant to this Agreement, the exercise of that degree of skill, care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of such activity or requirement under the same or similar circumstances and conditions;

“Charges”:  means the charges specified in Schedule 2;

“Competent Authority”:  means any national or local agency, authority, department, inspectorate, minister, ministry official, parliament or public or statutory person (whether autonomous or not) of any government or professional body having jurisdiction over either any of the activities contemplated by this Agreement or the Parties;

“Confidential Information”:  means all Information other than Non-Confidential Information;

“Data Protection Act”:  means the Data Protection Act 1998 implementing the Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data as the same may be amended, modified or replaced from time to time, and including all Codes of Practice;

“GDPR” means the General Data Protection Regulation (EU) 2016/679

“Disclosing Party”:  means the Party disclosing an item of Confidential Information;

“Effective Date”:  means the date of this Agreement.

“Force Majeure Event”:  means an event beyond the reasonable control of a Party which has a material adverse effect on its ability to perform its obligations under this Agreement, including:

war, riot, invasion, act of foreign enemies, hostilities (whether or not war has been declared), acts of terrorism or sabotage, civil war, rebellion, revolution, ionising radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel or radioactive, toxic, explosive or other hazardous properties of any nuclear assembly or nuclear component of such matter; or

earthquake, flood, fire, explosion, epidemic, or other natural physical disaster or severe weather;

“Group”: means a Party, the Affiliates of that Party, together with the authorised contractors and the personnel of that Party and its Affiliates;

“Information”:  means any information, communications or data, in any form, including, all plans, technical, business, employee, customer or financial information and all plans, proposals, forecasts, sketches, models, samples, databases, know-how, methodologies, computer programs or documentation, drawings or specifications, whether oral, written, graphic, electromagnetic or otherwise;

“Intellectual Property”:  means all copyrights, patents, trade marks, design rights, database rights, rights in know-how, trade secrets, rights in confidential information and any other intellectual property rights or rights of a similar nature including domain names, registered and unregistered rights and any applications for registration, renewal, extension, division or reissue of the foregoing, in any jurisdiction;

“Liability/Liabilities”:  means any and all claims, demands, actions, awards, compensation costs (including legal costs and disbursements), expenses, damages, losses, fines and other liabilities of whatsoever nature;

“Materials”:  means all computer hardware, computer software, equipment, appliances, cables, furniture, fittings, stationery, and any other materials, consumables, supplies or property of any kind;

“Non-Confidential Information”: means any item of Information:

(a) which is in the public domain at the date of its disclosure to the Receiving Party or which thereafter enters the public domain through no fault of the Receiving Party (but only after it becomes part of the public domain);

(b) which is already known to the Receiving Party at the time of its disclosure to the Receiving Party by the Disclosing Party and is not subject to confidentiality restrictions;

(c) which, following its disclosure by the Disclosing Party to the Receiving Party, is received by the Receiving Party without obligation of confidence from a third party who the Receiving Party had no reason to believe was not lawfully in possession of such Information free of any obligation of confidence;

provided that any combination of the Information which comprises part of the Confidential Information shall not be deemed to be Non-Confidential Information merely because individual parts of that Information were within the public domain or within the prior possession of the Receiving Party or were received by the Receiving Party as provided in paragraphs a), b) and c) above, unless the combination itself was in the public domain, in the prior possession of the Receiving Party, or was so received by the Receiving Party;

“Notice” and “Notify”: and any variations of such words, as the context requires, a notice or the act of delivering a notice, all in accordance with Clause 22;

“Party”:  means each of Client and the Agency;

“Person”: means any natural or legal person, including a company, firm, partnership, association or body corporate;

“Personal Data”:  means the personal data (as defined in the Data Protection Act) provided by Client Group to the Agency from time to time or processed (as defined in the Data Protection Act) by the Agency in connection with the provision of the Services under this Agreement;

“Personnel”:  means officers, directors, employees, workers and agents (including any persons hired as consultants or contract staff);

“Project Intellectual Property”:  means all Intellectual Property arising in any deliverables and any proposals, Information, data, documents and reports, whether accepted or rejected, which are developed or delivered pursuant to the provision of or relating to the Services, excluding Client IP or anything which uses or contains Client IP;

“Publication Deliverables”: means any documents, images, words, text, fonts, video, sounds or other deliverables provided by the Agency to Client for the purposes of publication, or to use in any marketing or advertising;

“Receiving Party”:  means, the Party receiving an item of Confidential Information;

“Reports”:  means the reports to be prepared by the Agency and to be provided to Client pursuant to Clause 9;

“Service/Services”:  means all services provided by the Agency to Client in accordance with the terms of this Agreement, an SOW or generally;

“Agency IP”:  means the Intellectual Property which is owned by or licensed to the Agency and which is used for the provision of the Services;

“Term”:  as defined in Clause 2.1;

“Client Brand”:  means any Client Group trade marks whether registered or unregistered including without limitation its logo and Client’s name

“Client IP”:  means the Intellectual Property owned or licensed by Client which is used in connection with the Services;

“Client Premises”:  means any premises controlled by Client and to which it may permit access by the Agency; and

Interpretation

In this Agreement:

  1. words in the singular include the plural and words in the plural include the singular;
  2. unless otherwise indicated, references to Clauses or Schedules mean Clauses or Schedules of this Agreement;
  3. the table of contents and headings used in this Agreement are for convenience of reference only and shall not be construed as having any substantive significance or as indicating that all the provisions of this Agreement relating to any topic are to be found in any particular Clause;
  4. references to any act, regulation, code of practice or statutory order include any amendment, re-enactment or extension of that act, regulation, code of practice or statutory order and in the case of an act include any relevant regulation, code of practice or order made under it;
  5. in the event of any conflict or inconsistency between any Schedule and the other terms and conditions of this Agreement, the provisions of the other terms and conditions of this Agreement shall prevail;
  6. except as expressly otherwise provided in this Agreement, any reference to “writing” or “written” includes faxes and any legible reproduction of words delivered in permanent and tangible form but does not include e-mail; and
  7. reference to the words “include” or “including” are to be construed without limitation to the generality of the preceding words.

Schedule 2

Charges

The Agency shall not provide any Services to Client unless the specific Charges for the Services have been agreed in writing by Client in advance in the applicable SOW.  Where Charges are agreed for Services in advance, such Charges shall be a fixed fee (plus applicable expenses) unless specifically agreed otherwise in writing.  The Charges shall be invoiced to Client at the completion of each applicable SOW stage unless specifically agreed otherwise in writing.

Invoices should be submitted to Client at the address provided by Client to the Agency and to the Agency at the address provided to Client.  Invoices shall be due and payable 30 days following receipt of a valid and properly drawn up VAT invoice.

If any invoice is disputed by Client, it shall attempt to notify the Agency in writing within fourteen (14) days of receipt of the disputed invoice together with the reasons therefor.  If the Agency accepts that an invoice is incorrect or any part is not due then Client will pay the agreed corrected or replacement invoice issued by the Agency in accordance with the payment terms set out in this Agreement, otherwise the Parties will meet to attempt to resolve any disagreement relating to the disputed invoice.  The Parties will attempt in good faith to resolve any disagreement within thirty (30) days and agree not to commence legal action or take any other steps (whether commercial or legal) in respect of the dispute invoice during this period.  For the avoidance of doubt, this Clause shall not act as a waiver of Client’s rights if it is later discovered that the invoice was incorrect or the sums were not otherwise due or a waiver of any claims arising from any breach by the Agency of the terms of this Agreement.

Other than VAT, the amount of the Charges shall be inclusive of all taxes and duties, or any other charges assessable by any governmental or other authority.

Unless agreed with Client in writing in advance, the Agency shall not be entitled to charge Client any additional expenses, costs or disbursements to provide the Services (such expenses, costs and disbursements being incorporated into the Charges.  This includes, but is not limited to, utilities, telephone or hosting charges, printing, ink and paper charges, other stationery charges, travel, accommodation, or any other expense, cost or disbursement incurred by the Agency (whether on its own behalf or on behalf of Client).

Schedule 3

Confidentiality and Publicity

All Confidential Information shall remain the property of the Disclosing Party.

The Receiving Party may use the Confidential Information only to the extent necessary for the performance of their obligations and the exercise of their rights under this Agreement.  The Receiving Party must keep the Confidential Information confidential, keep the Confidential Information in a safe and secure location, and must not disclose or reveal the Confidential Information to any person or other party, except where expressly allowed by this Agreement.

The Receiving Party may disclose such part of the Confidential Information as is required by a court of competent jurisdiction or any Competent Authority in the exercise of its powers, provided that the Receiving Party shall provide the Disclosing Party with written notice as soon as possible of any request for disclosure so that the Disclosing Party may seek a protective order or other appropriate remedy.

Subject to the provisions of this Agreement, the Receiving Party may disclose the Confidential Information to those of its employees, agents, consultants, auditors and professional advisers that have a need to know the Confidential Information for the purposes of this Agreement provided that the Receiving Party shall ensure that any such person has a legal obligation to keep the Confidential Information confidential on terms no less strict than this Agreement.  Any disclosure of such Confidential Information by any employee, agent, consultant, auditor or professional adviser which would be a breach of this agreement if such disclosure were made by the Receiving Party shall be deemed to be a breach of this Agreement by the Receiving Party.

Upon the expiry or earlier termination of this Agreement, the Receiving Party shall within thirty (30) days:

return all Confidential Information then in its or its Personnel’s possession or control, including whole or partial copies thereof in any media, all notes, memoranda and other materials containing Confidential Information, to the Disclosing Party; and

deliver written certification to the Disclosing Party that all of the Confidential Information which it or its Personnel have had in their possession or control and which has not been returned has been securely destroyed.

A Receiving Party’s obligation to maintain the confidentiality of the Confidential Information and the restrictions on such Receiving Party’s use of the Confidential Information, as provided in this Agreement, shall survive the termination of this Agreement and shall continue for a period of five (5) Years.

The Agency shall not, without the prior written consent of Client, advertise or publicly announce or in any way publicly indicate that the Agency supplies or has supplied services to the Client Group.