1 Agreement to Act as Agency
1.1 The Client, the company named in any relevant Statement of Work (“SOW”), Media Plan, estimate or invoice to which these Terms & Conditions apply (the “Document”), appoints Way to Blue Ltd or any associate, including parent company or subsidiary undertaking, as defined in section 1162 and Schedule 7 of the United Kingdom Companies Act 2006 (the “Agency”) to carry out, and the Agency agrees to provide, the services outlined in any relevant SOW or Purchase Order (the “Services”) to the Client during the Term (as defined below) in accordance with these Terms & Conditions.
1.2 Any changes or additions to the Services provided by the Agency must be agreed in writing between the Agency and the Client. The Agency will take all reasonable steps to comply with any such request from the Client provided that the Agency is able to do so within its contractual obligations to suppliers.
1.3 In the event of any such cancellation, amendment or addition to the Services provided the Client will reimburse the Agency for any charges or expenses committed to or incurred by the Agency. The Client shall also pay the Agency’s remuneration covering the cancelled or amended Services as well as any charges imposed on the Agency by third parties arising from the cancellation or amendment.
1.4 The Agency will allocate suitable personnel with appropriate levels of experience and seniority to provide the Services. The Client acknowledges and agrees that it may be necessary for the Agency to replace the personnel with alternative personnel with similar levels of seniority and experience.
1.5 The Agency acts in all its contracts as a principal at law and the Client appoints the Agency as sole provider to perform the Services.
1.6 The Agency may outsource or subcontract its performance of the Services or part thereof with the prior consent of the Client, such consent not to be unreasonably withheld or delayed.
2 Term of Appointment
2.1 These Terms & Conditions shall be effective from the date of the first relevant Document and shall continue until all Services are completed and delivered pursuant to any and all relevant Document, or unless terminated pursuant to clause 8 (the “Term”).
3.1 The Client will give the Agency clear briefings and ensure that all the facts given about the Account are accurate. The Agency will cooperate fully with the Client and use reasonable care and skill to make the Materials (as defined below) as successful as is to be expected from a competent communications agency. The Client will help the Agency do this by making available to the Agency all relevant information and cooperating with the Agency.
4 Media Services
4.1 The specific terms of any Services relating to media spend may be set out in media plans (“Media Plans”) that will be approved by both parties (“Media Services”). As applicable, each Media Plan may specify: (i) the type(s) and amount(s) of deliverables; (ii) the price(s) for such deliverables; (iii) the maximum amount of money to be spent pursuant to the Media Plan; and (iv) the start and end dates of the campaign. Other items that may be included are, but are not limited to, reporting requirements, and any ad delivery and/or ad placement requirements.
4.2 In respect of Media Services provided by Agency, unless agreed otherwise the Agency shall not in any way be responsible for: (i) any materials once such materials are released or posted in the public domain as requested or approved by the Client, including, without limitation, via seeding materials on social media (being any digital platform which allows individuals or businesses to post content for viewing by others) and/or video sharing websites or internet-based “widgets”; and (ii) ensuring the accuracy of what any third party publishes or any other resulting third party acts or omissions, except, in each case, where specifically agreed by the parties in a Media Plan.
5.1 The Client shall pay the Agency the fee for the Services as set out in any relevant Document or as otherwise agreed between the parties in writing (the “Fee”). The Fee is, earned on non-reconcilable basis and shall be payable in addition to all media, production, studio costs (“Other Production Costs”) and other disbursements and expenses committed to or incurred.
5.2 All Other Production Costs are normally invoiced at the value of estimates.
5.3 The Client will pay all Fees and Other Production Costs and expenses within 30 days of the date of the invoice, or as otherwise agreed between the parties in writing. Where suppliers require payment in advance or at various stages of a campaign or production, the Agency will notify and obtain the Client’s written agreement in advance (including by email) and payment will be made immediately upon presentation of invoice or by the date specified thereon. Payment shall be no later than 15 days of the invoice date or date of booking of media spend, whichever is the earlier, in the case of media.
5.4 POs will be issued in advance for all work to be paid for by the Client. Should this not be possible, the Client must approve the estimate in writing in advance and this will serve as sufficient authority until the PO is issued or in the event no PO is issued.
5.5 All Fees and other charges issued by Agency shall be exclusive of VAT or other applicable taxes. In addition to the charges issued by Agency, Client shall be solely responsible to pay all VAT and other tax charges that are levied or imposed by reason of the transactions contemplated by these Terms & Conditions.
5.6 In the event of overdue invoices, Agency shall be entitled to accrue interest at an annual rate equal to the then current base lending rate of Royal Bank of Scotland plus 3%, commencing on the due date for payment specified in the invoice(s) concerned and continuing until amounts due hereunder are fully paid together with any such accrued interest.
6 Confidential Information
6.1 The parties acknowledge a duty not during or after the Term to disclose without the other’s prior written permission any confidential information either concerning the other’s business, its business plans, marketing and sales information, customers or associated companies (Information”).
6.2 Each party shall use its reasonable endeavours to ensure these obligations are observed by its own personnel and any third parties to whom Information has to be disclosed in order to enable that party to carry out its obligations under these Terms & Conditions.
6.3 For the avoidance of doubt, the restrictions in this clause shall not prevent: (i) the disclosure or use of Information in the proper performance of a party’s duties under these Terms & Conditions; (ii) the disclosure of Information if required by law; (iii) the disclosure of Information which has come into the public domain otherwise than through unauthorised disclosure.
6.4 The Client acknowledges that nothing in these Terms & Conditions shall affect Agency’s right to use as it sees fit any general marketing or advertising intelligence gained by Agency in the course of its appointment and use as defined in clause 7.4.
7 Intellectual Property Rights
7.1 The Agency shall discuss with Client on a case-by-case basis which usage rights in pre-existing materials and commissioned materials are required and negotiate to obtain these on Client’s behalf at the Client’s cost.
7.2 At the end of the Term or relevant SOW, the Agency shall upon the Client’s request, and provided all material obligations of the Client arising from these Terms & Conditions have been met, assign to the Client such of the intellectual property rights in the material created solely by the Agency specifically for the Client and the material commissioned by the Agency for the Client as may be owned by the Agency (the “Materials”) and capable of assignment. To the extent that any intellectual property rights in the Materials are not capable of assignment pursuant to this clause, the Agency shall procure for the Client an agreed and most appropriate licence.
7.3 The Agency warrants that its own work in the Materials is original work of the Agency and does not infringe any third party rights and that where work is commissioned or licenced that appropriate licences are obtained.
7.4 Notwithstanding the above the Agency shall, with the Client’s written consent (where stipulated in writing as a requirement), be able during and after the relationship to use the materials created for the purpose of promoting its own business and for purposes associated with the entry and conduct of advertising industry awards schemes.
8.1 Either party may terminate these Terms & Conditions by giving the other party written notice as set out in the relevant Document. In the absence of a specific notice period in the relevant Document, the terminating party shall provide such notice as is reasonable having regard to the relevant SOW.
8.2 Either party may terminate these Terms & Conditions immediately by notice in writing to the other if the other party is in material breach of any of these Terms & Conditions and, in the case of a breach capable of remedy, fails to remedy such breach within 30 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it.
9.1 The Agency’s maximum aggregate liability under these Terms & Conditions is no greater than the total fees paid to the Agency under the relevant Document and in any case no greater than £1,000,000 in aggregate. Neither party shall be liable for any indirect or consequential losses.
10.1 The parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during or for a period of 12 months from the end of the Term solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any key executive of the other party who has worked on the Services at any time during the last 12 months of the Term.
11 Force Majeure
11.1 Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under these Terms & Conditions caused by circumstances beyond the reasonable control of a party to these Terms & Conditions, including (but not limited to) a labour dispute between a third party and its employees, failure in performance on the part of a supplier, and malicious attacks (a “Force Majeure Event”).
11.2 The party claiming the Force Majeure Event shall promptly notify the other party in writing of its reasons for the delay or stoppage to the Services and its likely duration and shall take all reasonable steps to overcome the delay or stoppage.
12.1 The cost to the Agency of materials or services purchased overseas may be more or less than the cost anticipated as a result of fluctuations in the rate of currency exchange. If so, the Agency will charge the Client at Royal Bank of Scotland’s exchange rate on the date the Agency pays for the relevant materials or services. All foreign exchange losses and related bank charges, resulting directly from the provision of Services, will be paid by Client.
12.2 A person who is not a party to these Terms & Conditions has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms & Conditions.
12.3 These Terms & Conditions constitute the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of these Terms & Conditions. No variation of these Terms & Conditions or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties. Unless specifically stated in these Terms & Conditions or in any relevant Document, where there is any discrepancy between the terms contained herein and those stated on any relevant Document the terms of these Terms & Conditions shall take precedence.
12.4 Any written notice, invoice or other communication which either party is required by these Terms & Conditions to serve on the other party shall be sufficiently served if sent to the other party at its specified address as follows: by hand; or by registered or first class post or recorded delivery; or by email. Notices sent by registered post or recorded delivery shall be deemed to be served three (3) Working Days following the day of posting. In all other cases, notices are deemed to be served on the day when they are actually received.
12.5 The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales and agree that these Terms & Conditions will be governed by and construed in accordance with the laws of England and Wales.
Way To Blue Ltd. 03872642. VAT Registration: 7489193377