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Agreement for the provision of advertising services.
General terms and conditions.
ALWAYS BE CONTENT LIMITED, incorporated and registered in Scotland with company number SC558181 whose registered office is at Bond Chartered Accountants, PO Box 23200, 17-19 East London Street, Edinburgh, Scotland, EH7 4ZD (“ABC”)
BACKGROUND
(A) ABC is in the business of providing services relating to the advertising and promotion of goods and services.
(B) Advertising services include but are not limited to strategic and creative consultancy, content marketing, customer experience, brand development and design, media planning and buying, communications planning, digital development, film and video production, experiential events, employer brand and internal communications and PR.
(C) The Client wishes ABC to provide, and ABC is willing to provide, advertising services to the Client on and subject to the terms of this framework agreement.
AGREED TERMS
1 Interpretation
The following definitions and rules of interpretation apply in this agreement.
1.1 Definitions:
1.1.1 “ABC Materials” means those Materials specifically created by ABC 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
1.1.2 “Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
1.1.3 “Business Day” means a day other than a Saturday, Sunday or public holiday in Scotland when banks in Scotland are open for business.
1.1.4 “Project” means the advertising project produced by ABC pursuant to the Project Plan.
1.1.5 “Project Plan” means a plan for an advertising services project formulated by ABC that is detailed within the Schedule to this framework agreement.
1.1.6 “Client Materials” means any and all materials, documents, records, research, photography, logos, designs, software or other property (including all Intellectual Property rights therein) owned by or licensed to the Client and/or any of its Personnel, which are provided to ABC by or on behalf of the Client in connection with the provision of the Services.
1.1.7 “Commencement Date” means the first day on which ABC works on the deliverables.
1.1.8 “Confidential Information” has the meaning given in clause.
1.1.9 “Control” means 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.
1.1.10 “Data Protection Laws” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.1.11 “Deliverable(s)” means all copy, layouts, artwork, storyboards, scripts, presentations, drawings, documents, charts, graphics, photographs, films and/or other materials created or produced by or on behalf of ABC for the Client in the course of providing the Services, on any media (whether any media exist at the Commencement Date or are subsequently developed). The Deliverables shall include all items that are identified in a Project Plan.
1.1.12 “Expenses” means expenses of the type detailed in the Schedule.
1.1.13 “Fees” means the fees for the Services, as set out in the Schedule.
1.1.14 “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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.
1.1.15 “Materials” means any artwork, copy, models, designs, photographs, commercial, feature film, character, music, voice over, sound recording, performance, book, painting, logo, or any other material protected by Intellectual Property Rights, but not including any software;
1.1.16 “Personnel” means officers, employees, consultants, agents, representatives and advisers (including, in relation to ABC).
1.1.17 “Services” means the advertising services to be provided by ABC to the Client as set out in each Project Plan.
1.1.18 “Term” means the term of this framework agreement as determined in accordance with clause 3.
1.1.19 “Third-Party Fees” means fees payable by ABC to third parties relating to the provision of the Services which are not included in the Fees and are not Expenses.
1.1.20 “Third-Party Materials” means any work or materials authored, created or performed by a third party and either commissioned for, or used in relation to, the Services, including library images.
1.1.21 “Timetable” means the timetable for the provision of the Services and the Deliverables as set out in the relevant Project Plan.
1.1.22 “Trade Marks” means the registered trade marks and trade mark applications, and all unregistered trade marks and logos, specified in a Project Plan and/or notified by the Client to ABC from time to time in writing.
1.1.23 “VAT” means value added tax chargeable under the Value Added Tax Act 1994.
1.2 The terms “controller”, “processor”, “data subject”, “personal data” and “processing” shall have the meaning given to them in the Data Protection Laws;
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 framework agreement and shall have effect as if set out in full in the body of this framework agreement. Any reference to this framework 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 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.8 A reference to writing or written includes email.
1.9 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.10 References to clauses and Schedules are to the clauses and Schedules of this framework agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.11 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.
4 Performance of the Service
In consideration for the payment of the Fees by the Client, ABC shall perform the Services for, and provide the Deliverables to, the Client.
5.1 The Client shall co-operate with ABC and shall provide ABC with full and clear instructions as to the Client’s requirements in respect of the Services and the Project to which the Services relate to enable ABC to perform the Services.
5.2 If ABC requests further information in respect of the Services to be provided or requires approval from the Client, the Client shall respond promptly to any such request by ABC.
5.3 The Client will promptly supply to ABC (at no charge) any Client Materials reasonably required by ABC or otherwise necessary to provide the Services and Deliverables and shall ensure that it has all rights and licences in place to enable use by ABC of all Client Materials.
5.4 If the Client does not fulfil its obligations under or in connection with this framework agreement (including its payment obligations), then to the extent that such failure prevents ABC from performing any Services and/or providing any Deliverables in accordance with this framework agreement, ABC will be relieved of its obligations to the Client, and ABC shall not be liable for any losses incurred by the Client as a result of any such failure.
6.1 Without limiting any other obligations of ABC under this framework agreement, ABC shall, and shall procure that each of its Personnel shall, perform the Services in a professional manner, in accordance with best industry practice, using all due skill, care and diligence.
6.2 If at any time ABC becomes aware that it may not be able to perform the Services or deliver any Deliverables by any date set out in the applicable Project Plan (or any other deadline agreed by the parties in writing), ABC will promptly notify the Client and give details of the reasons for the delay.
7.1 In consideration for the provision of the Services in accordance with this framework agreement, the Client shall pay the Fees to ABC.
7.2 The Client shall reimburse ABC for all Third-Party Fees and/or Expenses incurred by ABC and agreed in any Project Plan.
7.3 ABC may invoice the Client for the Fees at such times and/or in such instalments (as applicable) as are set out in the Project Plan.
7.4 If any payment of the Fees, Expenses or Third-Party Fees is subject to tax (whether by way of direct assessment or withholding at its source), ABC shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to ABC of the Fees, Expenses and Third-Party Fees after tax in respect of the payment is the same as it would have been were the payment not subject to such tax.
8.1 Except as otherwise agreed between the parties, the Client shall pay all invoices submitted by ABC within 30 days of receipt of that invoice by the Client.
8.2 All sums payable under this framework agreement:
8.2.1 are exclusive of any VAT or any other sales tax or duties, which, where applicable, shall be payable by the Client to ABC in addition; and
8.2.2 shall be paid in British Pounds Sterling to the credit of ABC’s bank account, details of which shall be notified to the Client as and when necessary.
8.3 In relation to payments disputed in good faith, interest under this clause is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.
8.4 If the Client is overdue with any payment hereunder, then without prejudice to ABC’s other rights or remedies, ABC shall have the right to:
8.4.1 suspend performance of the Services on seven (7) days’ written notice until ABC has received payment of the overdue amount together with any accrued interest; and/or
8.4.2 terminate the applicable Project Plan immediately upon seven (7) days’ written notice to the Client.
8.5 Where a surcharge is levied by a supplier against ABC due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to ABC the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.
8.6 Where a late copy charge is levied by a media owner against ABC due to copy being delivered late, and this does not result from ABC’s negligent or wilful act or omission, then the Client shall immediately reimburse the amount of such late copy charge to ABC.
8.7 Each party shall pay all monies which are payable by it to the other without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party.
9.1 Once a Project Plan has been agreed by the parties, ABC shall submit to the Client, and/or any of the Client’s Affiliates as the Client may specify to ABC, materials for the Project, including copy, layouts, artwork, storyboards (including concept artwork) and scripts, for written approval.
9.2 The Client will provide written approval or an update to ABC within 10 Business Days of receipt of individual Deliverables produced by or on behalf of ABC.
9.3 In relation to any Deliverable ABC may proceed to produce the Deliverable and enter into contracts with third parties in relation thereto when it has obtained the Client’s written approval of:
9.3.1 the relevant copy, layouts, artwork, storyboards (including concept artwork) and scripts;
9.3.2 any related Third-Party Fees and Expenses;
9.3.3 the appointment of any third party; and
9.3.4 the terms of acquisition of any Third-Party Material to be included in the Deliverable.
9.4 During the Term, ABC shall promptly advise the Client of any material changes in plans, schedules or work-in-progress previously approved by the Client in accordance with this framework agreement.
10 Ownership of Intellectual Property Rights
10.1 Subject to ABC receiving payment of all Fees attributable to the ABC Materials, ABC grants to the Client a licence to use the ABC Materials, for inclusion in the Deliverables and for the purposes and in the media and period of time set out in the Project Plan.
10.2 In relation to the Deliverables:
10.2.1 ABC grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding the Client Materials) for the purpose of receiving and using the Works and the Deliverables in its business.
10.2.2 ABC and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Client Materials;
10.2.3 the Client shall not sub-license, assign or otherwise transfer the rights granted in clause 10.2.1 without written permission from ABC;
10.2.4 Specifically, ABC Materials may not be passed to third parties such as other Agencies or Affiliates for their use without ABC’s prior written permission; when such written permission is given by ABC, the Materials may only be used pursuant to the Client’s Projects and specifically must not be used by third party Agencies or Affiliates to pitch for work from the Client, or in their own self-promotion including agency case studies, web pages, tenders or presentations.
10.3 In relation to the Client Materials, the Client:
10.3.1 and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials; and
10.3.2 grants to ABC a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this framework agreement for the purpose of providing the Services to the Client.
10.4 ABC warrants that the receipt and use of the Works and the Deliverables by the Client shall not infringe the rights, including any Intellectual Property Rights, of any third party.
10.5 The Client:
10.5.1 warrants that the receipt and use in the performance of this framework agreement by ABC, its agents, subcontractors or consultants of the Client Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
10.5.2 shall indemnify ABC 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 reasonable professional costs and expenses) suffered or incurred or paid by ABC arising out of or in connection with any claim brought against ABC, 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 framework agreement of the Client Materials.
11.1 Each party undertakes that it shall not at any time during this framework agreement, and for a period of five years after termination or expiry of this framework agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 11.2.1.
11.2 Each party may disclose the other party’s confidential information:
11.2.1 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 framework 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 11; and
11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 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 framework agreement.
12.1 In relation to the processing of any personal data by the parties in connection with this framework agreement, the parties:
12.1.1 acknowledge and agree that they are each independent controllers;
12.1.2 shall only share personal data where it is fair and lawful to do so; and
12.1.3 shall otherwise comply with their obligations under the Data Protection Law.
12.2 The Contractor shall at all times indemnify ABC and keep ABC indemnified against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by ABC arising from any breach of the Client’s obligations under this clause 12.
13.1 ABC shall:
13.1.1 comply with all applicable laws relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
13.1.2 not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if that activity, practice or conduct had been carried out in the UK;
13.1.3 have, and shall maintain in place throughout the Term its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and clause 13.1.2, and will enforce them where appropriate;
13.1.4 promptly report to the Client any request or demand for any undue financial or other advantage of any kind received by ABC in connection with the performance of this framework agreement;
13.1.5 within three months of the date of this framework agreement, and annually thereafter, certify to the Client in writing signed by an officer of ABC, compliance with this clause 13 by ABC and all persons associated with it under clause 13.2. ABC shall provide any supporting evidence of compliance as the Client may reasonably request.
13.2 For the purpose of this clause 13, 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), section 6(5) and (6) and section 8 of that Act respectively.
14.1 Nothing in this framework agreement limits any liability which cannot legally be limited, including but not limited to liability for:
14.1.1 death or personal injury caused by negligence;
14.1.2 fraud or fraudulent misrepresentation; and
14.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
14.2 Subject to clause 1 each party’s total liability to the other party in respect of all breaches of duty occurring within any contract year shall not exceed the cap. In this clause 14.2:
14.2.1 The cap is the greater of fifty per cent 50%of the total charges in the contract year in which the breaches occurred.
14.2.2 contract year. A contract year means a 12-month period commencing with the date of the framework agreement or any anniversary of it;
14.2.3 total charges. The total charges means all sums paid by the Client and all sums payable under the framework agreement in respect of goods and services actually supplied by ABC, whether or not invoiced to the Client (including Fees, Third-Party Fees and Expenses); and
14.2.4 total liability. ABC’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the framework agreement.
14.3 Subject to clause 1 and notwithstanding clause 14.2, the following types of loss listed are wholly excluded by the parties: i) loss of profits; ii) loss of sales or business; iii) loss of agreements or contracts; iv) loss of anticipated savings; v) loss of use or corruption of software, data or information; vi) loss of or damage to goodwill; and/or vii) indirect or consequential loss. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
15 Cancellation of Project Plans
15.1 The Client may cancel an individual Project, by giving 1 month’s written notice of cancellation to ABC (specifying the Project Plan to be cancelled).
15.2 On cancellation of any individual Project Plan under clause 15:
15.2.1 ABC shall immediately cease performing all Services in relation to that Project Plan only;
15.2.2 ABC shall be entitled to invoice the Client for any outstanding, properly incurred Fees, Third-Party Fees and Expenses in respect of that Project Plan only, which shall be payable by the Client in accordance with the provisions of clause 8;
15.2.3 ABC shall deliver to the Client promptly, in accordance with the Client’s instructions, all Deliverables relating to the cancelled Project and existing at the date of that cancellation, whether or not then complete; and
15.2.4 the Client shall pay to ABC any sums payable by ABC to any third party under any legally binding commitment entered into by ABC, in relation to the cancelled Project Plan only, to the extent that ABC is unable to cancel or otherwise mitigate that commitment (except where those costs are already covered by any Fees, Third-Party Fees or Expenses paid or payable in respect of the cancelled Project Plan).
15.3 Cancellation of any individual Project Plan under this clause 15 shall not affect the continuation in force of this framework agreement, including any other Project Plan(s) entered into under this framework agreement.
16.1 Either party may terminate this framework agreement without cause at any time after by giving not less than 1 month’s written notice to the other party.
16.2 Either party may terminate this framework agreement or any Project immediately upon written notice to the other party:
16.2.1 under clause 18;
16.2.2 in the event of any material breach of this framework agreement by the other party which breach is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the party not in default of a written notice on the defaulting party, specifying the nature of the breach and requiring such breach to be remedied; or
16.2.3 if the other party suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
16.2.4 if 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 or enters into any compromise or arrangement with its creditors (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or
16.2.5 if a petition is filed, or a notice is given, or a resolution is passed or an order is made for or in connection with the winding up of that other party (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or
16.2.6 if an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party.
17 Consequences of termination
17.1 Termination of a Project in accordance with the terms of this framework agreement by either party shall not serve to terminate this framework agreement which shall continue in full force and effect.
17.2 Upon termination of this framework agreement under Clause 16 all outstanding Projects shall also be terminated.
17.3 Upon termination of this framework agreement or a Project for any reason:
17.3.1 the Client shall pay ABC all Fees, Expenses and Third Party Costs due to ABC including during the notice period; and
17.3.2 subject to clause
17.3.1 each party shall on the reasonable request of the other party promptly deliver or dispose of any and all materials and property belonging or relating to the other party (including all Confidential Information) and all copies of the same, which are then in its possession, custody or control and which relate to all affected Projects, and shall on the request of the other party certify in writing that the same has been done.
17.4 Termination or expiry of this framework 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 framework agreement which existed at or before the date of termination or expiry.
17.5 On termination or expiry of this framework agreement, the following clauses shall continue in force: clause 1.1 to clause 1.11 (inclusive), clause 10, clause 11, clause 14, clause 17, clause 19 and clause 20.
Neither party shall be in breach of this framework agreement nor liable for delay in performing, or failure to perform, any of its obligations under this framework 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. If the period of delay or non-performance continues for 3 months the party not affected may terminate this framework agreement by giving 30 days’ written notice to the affected party.
19.1 Any notice given to a party under or in connection with this framework agreement shall be in writing and shall be:
19.1.1 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
19.1.2 sent by email to its main email address.
19.2 Any notice shall be deemed to have been received:
19.2.1 if delivered by hand, on signature of a delivery receipt;
19.2.2 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;
19.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20.1 During the Term and for a further period of twelve (12) months after its termination, neither party shall (except with the prior written approval of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party either in the provision or receipt of any Services or Deliverables, other than by means of a national recruitment campaign open to all comers and not specifically targeted at any of the staff of the other party.
20.2 If any provision or part-provision of this framework agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this framework agreement.
20.3 If any provision or part-provision of this framework agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
20.4 No failure or delay by a party to exercise any right or remedy provided under this framework agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20.5 This framework 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.
20.6 Each party acknowledges that in entering into this framework agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this framework agreement.
20.7 No variation of this framework agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.8 Nothing in this framework 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.
20.9 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20.10 Neither party shall assign, transfer, subcontract, or deal in any other manner with any or all of its rights and obligations under this framework agreement without the prior written consent of the other party to this framework agreement. If either party assigns or subcontracts any of its obligations under this framework agreement to any third party, it shall be fully responsible to the other party for the proper performance of those obligations and for any act or omission of the third party in relation thereto.
20.11 A person who is not a party to this framework agreement shall not have any rights under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce any term of this framework agreement.
20.12 This framework agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Scotland.
20.13 Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this framework agreement or its subject matter or formation (including non-contractual disputes or claims).
