Client Terms & Conditions
Client Terms & Conditions
BACKGROUND
(A) You (the “Client”) wish to receive and The Fifth Limited, with registered company number 16360217 and registered address at 2 Stephen Street, London, W1T 1AN (“Agency”), wishes to provide a range of services as further described in the booking form that you’ve been sent (the “booking form”) and, where applicable, in one or more schedules on a per project basis.
(B) The parties agree that such services shall be supplied in accordance with the terms of this agreement (the “Agreement”).
(C) This Agreement, including the booking form, these terms and conditions and any schedules, constitutes a binding agreement.
In consideration of the mutual promises, covenants, undertakings and agreements contained herein, the parties agree as follows:
1. Services and Appointment.
1.1 Statements of Work. Client appoints Agency as its advertising agency to perform certain advertising, marketing and/or promotional services as set forth in the applicable statement of work (each, an “SOW”), which shall be in substantially the same form as the SOW attached hereto as Exhibit A (the “Services”). Accordingly, Client hereby engages and appoints Agency, and Agency accepts such appointment, as Client’s non-exclusive agency to perform the Services. In the event of any conflict between this Agreement and an SOW, the terms of the SOW shall prevail. Nothing in this Agreement shall require Client to request the provision of any Services or, until such time as a relevant purchase order and/or SOW has been issued by the Client, require the Agency to provide any Services.
1.2 Events/Experiential Services. In the event the Services include any events and/or experiential services, the terms and conditions set forth in Exhibit B (attached hereto and incorporated herein) shall apply.
1.3 Production/Post-Production Services. In the event the Services include any production or post-production services, the terms and conditions set forth in Exhibit C (attached hereto and incorporated herein) shall apply.
1.4 Talent and Influencer Services. In the event the Services include any influencer services, the terms and conditions set forth in Exhibit D (attached hereto and incorporated herein) shall apply.
1.5 Creative Services. In the event the Services include any creative services, the terms and conditions set forth in Exhibit E (attached hereto and incorporated herein) shall apply.
2. Agent Relationship. Agency is authorised to act as Client’s agent in purchasing the materials and services required to provide the Services on Client’s behalf. Agency agrees to secure Client’s approval of all substantial expenditures on Client’s behalf. To the extent any rights to such Materials (as defined below) and Services are acquired, they will be Client’s property upon purchase, except as otherwise stated herein. All Materials prepared by Agency and accepted by Client for use shall become Client’s property when paid for, except as otherwise stated herein. It is understood that there may be limitations on the use and ownership of materials by virtue of the rights of third parties. Whenever possible, Agency shall advise Client of the existence of such limitations.
3. Affiliates; Subcontractors. Due to the fact that creation and production of advertising and marketing services and materials normally involves the use of third-party suppliers, vendors and/or subcontractors (collectively “Subcontractors”), Client agrees that Agency will be free to engage such Subcontractors to provide Services for Client, provided that Agency shall have, and will retain, general responsibility for having the Services provided in compliance with the terms of this Agreement. Client agrees that Agency may routinely use its Affiliates to provide such services because of the efficiencies, quality of work, and control inherent in such relationship and the Affiliate’s familiarity (through Agency) with the Client’s business and marketing needs. For purpose of this Agreement, “Affiliate” means (in relation to a party) any business entity (including, as used in this paragraph, any entity such as a division, subsidiary, sister or parent company) that is either directly or indirectly controlling, controlled by or under common control of a party.
4. Care of Client Property. Agency shall take every reasonable precaution to safeguard any and all Client Property (as defined below) entrusted to Agency’s custody or control.
5. Fees; Invoicing. Client agrees to compensate Agency for its Services as set forth in each applicable SOW (individually and collectively, the “Fee”) in accordance with the invoicing terms set forth below (or as otherwise mutually agreed upon by the parties in writing).
5.1 Unless otherwise set forth in the applicable SOW, Agency will submit an invoice in the month prior to the month of service for payment consistent with the Fee set forth in the applicable SOW. Invoices will be payable within thirty (30) days of the invoice date.
5.2 All fees agreed between the parties in writing (including email) in relation to each Purchase Order Number are non-refundable (unless agreed by both of the parties). To the extent the fees agreed for a specific Purchase Order Number are greater than the costs incurred in relation to the corresponding Campaign, any amount not spent on such Campaign shall be held by The Fifth on account and then applied to additional aspects of the Campaign, and/or to any subsequent Campaign(s) during the Term.
5.3 In case of a dispute between the parties regarding reimbursement of Agency by Client, Client, within five (5) business days after receiving a disputed invoice from Agency, or of learning of a potential payment dispute, must inform Agency in writing of the specific basis or bases of any dispute. Client agrees that if Client disputes an invoice or other payment, it cannot withhold payment from Agency for the disputed amount if Agency has advanced monies to Subcontractors or third-party vendors. Agency will make a reconciliation on the next monthly billing (or other frequency as set forth in the applicable SOW) following Agency’s discovery and resolution of a billing error if Agency was in error or if Agency otherwise agrees not to seek reimbursement or payment from Client. The parties agree that their course of dealing may be used to resolve any disputes, and agree to make best efforts to resolve disputes amicably and in good faith. Each party, however, is thereafter free to take any action or seek any remedy available at law and/or in equity.
6. Expenses and Reimbursements.
6.1 Agency shall be responsible for, pay and discharge all costs and expenses reasonably and necessarily incurred in the performance of its Services hereunder. Client shall reimburse Agency for such actual costs and expenses incurred in connection with this Agreement, within thirty (30) days of Agency’s invoice. Notwithstanding the foregoing, Agency shall seek Client’s prior approval (email to suffice) for all costs and expenses that exceed five hundred pounds sterling (£500).
7. Modification and Discontinuance. Either party may, upon notice to the other, request a change in the scope of Services to be provided under an applicable SOW (“Change Notice”). Upon receipt of the Change Notice from Client to cancel any Services, Agency shall promptly discontinue all Services on a project and instruct the Subcontractors to do the same. If the terms of the Change Notice materially alter the scope of the previously agreed upon Services as set forth in the applicable SOW, Agency reserves the right to re-estimate the associated costs and Fees and will perform no additional relevant Services until receipt of Client’s written approval for the re-estimates. Client will reimburse Agency for the actual costs incurred for modifications made necessary by changes in Client’s plans or instructions, and the modification or cancellation of any Services as a result of a Change Order. Client will also reimburse Agency for all liabilities, judgments, and expenses (including legal fees and associated costs) incurred as a consequence of carrying out the modifications or cancellations requested by Client, and for the actual Agency fees and expenses charged or incurred by Agency resulting from any such modifications or cancellations for Services performed up to the time of modification or cancellation. Under no circumstances will Agency be obliged to breach any lawful contractual commitment to others on Client’s behalf.
8. Approval Process. Agency will submit to Client for its approval (not to be unreasonably withheld or delayed) all elements of any Materials (as defined below) to be produced under this Agreement, including, but not limited to, copy, layouts, photography, scripts, recordings, storyboards, websites and commercials. Submission for prior approval of any of these elements will not be required to the extent that they are preliminary only. Client shall provide its approval or rejection to Agency in writing no later than three (3) business days following Agency’s notice (or such shorter period of time as may be communicated by Agency due to exigent business circumstances). In the event that Client rejects any Materials, Agency shall revise such Materials within a reasonable time, it being understood that Agency shall notify Client in the event Agency will incur additional fees in connection with any revisions, modifications, edits, or updates to any Materials as requested by Client except to the extent such revision, modification, edit, or update is a result of Agency’s failure to deliver the Materials as agreed upon in the relevant SOW (unless otherwise mutually agreed to by the parties in writing). For the avoidance of doubt, in the event Client requests changes to Materials that otherwise adhered to all requirements herein, Client acknowledges and agrees that such changes may be subject to additional fees and any delay in delivery of such Materials not within Agency’s control shall not be deemed a breach of this Agreement.
9. Intellectual Property. Excluding and subject to any Third Party Materials (defined below), Agency Property, and subject to full and complete payment to Agency for Services rendered, it is understood that any copyrights, trade marks/service marks and advertising materials developed by Agency and produced by Agency in Final Form (defined below) for Client pursuant to this Agreement (collectively, “Materials”) shall, except as otherwise agreed to by the parties, be the property of Client. For purposes of this Agreement, “full and complete payment” means payment of all production costs, charges, expenses and fees (including Fees) due Agency under this Agreement; and “Final Form” shall, for radio and television advertisements, mean works produced through the “rough cut” stage; for newspaper, magazine, outdoor, direct mail and similar “print” advertisements Final Form means the near final, full color artwork and text created by Agency from which the actual advertisement is produced; for on-line advertisements, Final Form means the creative work of Agency, Influencers, and/or Talent (collectively, “Agency Parties”) at the stage when the work is ready to be moved from the staging server to the production server or is otherwise ready to be distributed or posted publicly. If Agency has not yet received full and complete payment, and/or advertising or other materials have not yet been produced by Agency in Final Form, then such materials presented to Client shall remain the sole property of Agency.
9.1 Agency agrees to assign all rights it may have in Materials created by it for the Client (including copyright), provided such Materials have been produced by Agency in Final Form, and provided Client has made full and complete payment to Agency for such Materials. Subject to the terms of this paragraph, Agency agrees to execute any document(s) that Client may reasonably require to transfer or assign ownership from Agency and/or its Subcontractors to Client.
9.2 Creative ideas and materials presented to Client, but not ultimately produced in Final Form by Agency Parties, shall remain the sole property of such Agency Parties, and such Agency Parties shall
retain all intellectual property rights in and to such creative ideas and materials, including, without limitation, copyright.
9.3 Notwithstanding the foregoing, Client acknowledges that Agency possesses general knowledge, experience, skill, talent, know-how and other information of a first-class agency in the field in which it will provide the Services, Materials, and unless otherwise previously agreed to by the parties in writing, any applicable pitch materials, including, without limitation, ideas, concepts, or strategies disclosed pursuant to Agency’s pitch or response to Client’s requests for proposal, that was or will be independently developed or acquired by Agency other than on the account of Client shall remain the property of Agency (collectively, “Agency Property”). Agency hereby grants to Client and its Affiliates a perpetual, royalty-free, non-exclusive, non-transferable worldwide licence granted to Client and its Affiliates to use such Agency Property solely in connection with the use of the Materials and set forth herein.
9.4 In connection with providing the Services, Agency or Agency Parties may wish to utilise the service marks, trade marks, trade dress or logos belonging to Client. Agency or Agency Parties shall have no right to use Client’s names, trade marks, service marks, trade dress or logos (collectively, the “Client Property”) unless otherwise expressly permitted in this Agreement or the SOW or as otherwise consented to by an authorised representative of Client in writing. If permission is granted, Agency or Agency Parties may use the Client Property in the manner in which they are provided to Agency or Agency Parties pursuant to the terms of this Agreement or the SOW in the manner in which the materials the Client Property appear in have been approved (or instructed) in writing in advance by Client and subject to any restrictions noted herein. Agency or Agency Parties will not contest or dispute, directly or indirectly, Client’s proprietary interest in or ownership of the Client Property.
9.5 Agency may license intellectual property and other property, rights and/or materials from third-party licensors for inclusion in Materials (“Third-Party Materials”). In such circumstances neither Agency nor Client own such property, rights or materials; ownership will be retained by the third-party licensor. In such instances, Client agrees to be bound by the terms of such licence(s) and Agency will inform Client of the existence of such licence(s).
10. Legal Responsibility and Obtaining Permission to Use Third-Party Property. Except as otherwise agreed upon by the parties or as set forth in the applicable SOW, Agency will obtain releases, permissions, and/or licences from those parties whose personal or property rights (including intellectual property rights) Agency furnishes for use in Materials for Client. Client will obtain necessary rights to materials that Client supplies to Agency for use in advertising materials, and Client will be responsible for (and indemnify Agency in connection therewith) the accuracy, sufficiency, and legality of information and substantiation Client supplies to Agency concerning Client’s products or services, the products or services of Client’s competitors and information about Client’s industry or category.
Client agrees that the Services performed by Agency and the fees paid by Client do not specifically include worldwide legal due diligence with respect to Client’s legal rights to use the Materials (including without limitation, trade mark clearance, patent clearance, talent rights, etc.), unless otherwise stated in an SOW or a separate writing signed by the parties. Client agrees that it will be solely responsible for conducting due diligence prior to the publication or commercial use of the Materials, and will be solely responsible for any infringements associated therewith. Client will be responsible for making all applicable registrations and other necessary actions to perfect Client’s ownership of and rights therein.
10.1 Client agrees that if Agency brings a risk to the attention of Client or Client is aware of a risk, but directs Agency to proceed in spite of such risk, Client shall defend, indemnify and hold harmless Agency regarding such risks as described in Section 17.
11. Term and Termination.
11.1 This Agreement will commence as of the Effective Date and remain in effect until terminated by either party with or without cause upon ninety (90) days’ prior written notice (the “Term”). If
Client so notifies Agency during the first year of the Agency/Client relationship of Client’s decision to terminate the Agreement, the notice termination period shall be one hundred eighty (180) days rather than ninety (90) days. The parties agree that during the ninety (90) day period described in this Section 11.1, each party will continue to perform its services and meet its obligations as required by this Agreement.
11.2 If, during the Term, Client proposes to decrease the Fee to be paid to, and the Services required of, Agency, and if such proposed good faith reduction in the Fee is equal to or more than ten percent (10%) of the Fee set forth in the applicable SOW, or is sufficiently significant to require Agency to re-assign or terminate personnel or reduce overhead, Client agrees to compensate Agency at the agreed-to Fee set forth in the applicable SOW for a ninety (90) day period, or as long as it takes to make the necessary adjustment, whichever period is shorter. During this reduced compensation transition period, Agency will make an orderly transition for re-deploying or terminating personnel and/or reducing overhead.
11.3 Either party may terminate this Agreement immediately by giving written notice to the other Party upon the occurrence of any of the following events:
(a) the commission by the other party of a material breach of this Agreement incapable of being cured;
(b) the commission by the other party of a material breach of this Agreement capable of being cured, and the breaching party has not cured the breach within fifteen (15) business days of receipt of written notice by the non-breaching party; or
(c) the initiation of a voluntary or involuntary bankruptcy, receivership or similar proceeding with respect to such other party.
11.4 Either party may terminate an SOW with or without cause by providing not less than sixty (60) days’ prior written notice to the other party, it being understood that termination of an SOW shall not be deemed termination of this Agreement or any other outstanding SOWs.
11.5 Neither party will be entitled to any compensation or damages for loss of prospective profits, payment for goodwill, or other payment for losses arising out of the termination of this Agreement in accordance with its terms, unless otherwise agreed to by the parties. Nevertheless, if termination is based on breach by the other party, the non-breaching party will be entitled to recover direct damages resulting from such breach, and to obtain any relief available under applicable law.
12. Transfer Upon Termination. On or before the effective date of termination of this Agreement, Agency shall transfer to Client, or a third party selected by Client, in the manner directed by Client, the following: (i) as applicable, and if permitted by the agreement with the third party, any talent, music or other contracts or licences and any arrangements made by Agency with third parties on behalf of Client and with the consent of Client, made prior to the giving of notice of termination, but which continue beyond the effective date of termination; (ii) any final advertising materials that are created by Agency under this Agreement that are in Final Form and for which Agency has received full and complete payment from Client per Section 9 of this Agreement.
12.1 Any reservation, contract, or arrangement made by Agency for Client prior to the termination date which continues beyond the termination date will be carried to completion by Agency and paid for by Client in accordance with this Agreement unless Client directs Agency to transfer such reservation, contract, or arrangement to another entity and Client releases and indemnifies Agency, in which event Agency will endeavour to make such transfer, subject to obtaining any necessary consents of third parties. Agency will be entitled to any and all commissions, fees and payments for Services performed prior to accomplishing the transfer. Any archived records pertaining to marketing communication Services provided under this contract will be maintained for one (1) year after termination and may be destroyed thereafter.
12.2 In addition, on or before the effective date of termination of this Agreement, both parties shall transfer or return to the other party all Confidential Information under Section 19 in a party’s possession that had been provided by one party to the other relating to the products or services or to the business of a
party, all confidential and proprietary sales and marketing data, market research information owned by a party, and any tangible property in the other party’s possession.
13. Audits and Business Reviews.
13.1 Agency agrees to keep full and proper records of all third-party invoices and travel expenses that support charges that have been billed to Client pursuant to this Agreement, including the appropriate documentation to confirm Client’s costs and fees and the original documentation of any such charges by Subcontractors providing services to Agency (“Records”). Any such Records shall be kept for a period of not less than six (6) months after the relevant transaction or, if the Agency/Client relationship terminates or expires, six (6) months after the effective date of the termination or expiration, whichever comes first. Audits under this Section 13 shall not include Client’s review of Agency’s allocation of project funds, so long as Agency’s use thereof is in compliance with the terms of the applicable SOW. Upon thirty (30) days’ prior notice to Agency, Client through its independent auditing firm, which must be reasonably approved in advance by Agency prior to the time of the audit, will be entitled to have such Records examined, at Client’s expense, during Agency’s normal business hours, provided however, that only Records directly applicable to the Services performed pursuant to this Agreement shall be available for such examination. Under no circumstances will Client have access to Agency’s general ledger information, Agency overhead or profitability data or to payroll, salary or bonus information, or timecards or other employee, personnel, and/or individual compensation records, or information indicating the date of payment by Agency of third-party invoices, or internal or external Agency correspondence or communications regarding the keeping of Client’s records or regarding any Client audit, or documents or materials containing information of Agency’s other clients.
13.2 During the course of any project, Agency may seek a business review of its performance under the applicable SOW. Such review may include, without limitation, a review of (i) Agency’s contribution to Client’s business results, (ii) Agency’s servicing of Client’s accounts, (iii) Agency’s economics in servicing Client’s accounts, and (iv) the working relationship between Client and Agency. To the extent that such review indicates Agency’s performance is materially exceeding the required metrics or other deliverable requirements, the parties may mutually agree on an increase in Agency’s Fee, a re-allocation of the project funds, or another mutually agreed upon adjustment to the project scope to account for Agency’s positive performance.
14. Local Law and Compliance. To the extent applicable, Client shall be responsible for all submissions, filings, and posting of bonds that may be necessary to comply with legal requirements of promotions, competitions, sweepstakes, contests and games conducted by or on behalf of Client by a third party.
14.1 It is understood and agreed that Client has the final responsibility for compliance (and ensuring the compliance of all Materials) with all applicable laws, rules, consent orders, agreements, judgements, regulations, regulatory guidelines and decrees.
14.2 At Agency’s request, Client will provide Agency with substantiation for all express or implied claims and representations regarding Client’s products and services, Client’s competitors’ products and services and information regarding Client’s industry or category, made in Materials.
14.3 Nothing in this Agreement will be deemed to require Agency to undertake any act or perform any Services, which in Agency’s good faith judgement, would be misleading, false, libellous, unlawful, infringing, tortious, in breach of a contract or otherwise prejudicial to Client’s or Agency’s interests (e.g., in bad taste or offensive or insensitive to a group protected by applicable law prohibiting discrimination).
15. Representations and Warranties.
15.1 Mutual Representations and Warranties. Without limiting any representation or warranty set forth elsewhere in the Agreement, each party represents and warrants to the other the following:
(a) the party’s execution, delivery and performance of this Agreement: (i) has been authorised by all necessary corporate action, (ii) does not violate the terms of any law, regulation, or court order to which such party is subject or the terms of any material agreement to which the party or any of its assets may be subject, and (iii) are not subject to the consent or approval of any third party;
(b) this Agreement is the valid and binding obligation of the representing party, enforceable against such party in accordance with its terms; and
(c) such party is not subject to any pending or, to its knowledge, threatened litigation or governmental action which could interfere with such party’s performance of its obligations hereunder.
15.2 Additional Representations and Warranties of Agency. Agency further represents and warrants that:
(a) Agency has the full power and authority to enter into this Agreement and to grant the rights contained herein, and that the performance of this Agreement will not violate any agreement or obligation of Agency;
(b) Agency has legal ownership rights of use and/or licences and consents to any Agency Property and all Third-Party Materials that are provided by Agency to be included for authorised use in the Materials;
(c) Subject to the terms herein and the applicable SOW, the Materials provided hereunder are original and have not been previously published;
(d) Except with respect to Client-provided information, Materials will not knowingly infringe upon the intellectual property or publicity rights of any third person;
(e) In the event that Agency performs interactive Services (which may include, without limitation, digital advertising, website development, and production service) such Services and related deliverables will not contain viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
(f) Agency’s Services and the Materials will not knowingly violate any applicable law; and
(g) Except to the extent such Services or Materials are altered by Client without authorisation by Agency, Client’s use of the Services and the Materials as contemplated herein will not knowingly violate any third party’s rights or any applicable law.
15.3 Additional Representations and Warranties of Client. Client further represents and warrants that:
(a) Client has the full power and authority to enter into this Agreement and that the performance of this Agreement will not violate any agreement or obligation of Agency;
(b) Client has legal ownership rights of use and/or licences and consents to any Client Property provided to Agency to be included in the Materials;
(c) Client Property shall not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party;
(d) Any use of Client Property will not knowingly violate any applicable law;
(e) Client shall use the Services and Materials solely in accordance with the terms set forth herein and in compliance with all applicable law.
16. Indemnification. Agency shall defend, indemnify, and hold Client and its Affiliates and their officers and shareholders, agents and employees harmless from and against all costs, expenses, liabilities and losses reasonably incurred (including reasonable legal fees costs) arising directly and identifiably out of any third party claim of copyright, trade mark or trade dress infringement, or invasion of privacy or publicity based on, or in connection with, the actual authorised use of any Materials (except to the extent such Materials were altered by Client). Notwithstanding the foregoing, this indemnification may be limited in scope or totally nullified to the extent that Client knew of, or had been specifically advised of, any such risks involved in connection with the use of such Materials, and accepted such risks, by approving the use and/or dissemination of such Materials.
16.1 Client shall defend, indemnify and hold Agency, its parent and sister companies, its Affiliates and their officers, shareholders, agents and employees harmless from and against all claims, costs, expenses, liabilities and losses reasonably incurred (including reasonable legal fees) arising out of:
(a) The inaccuracy of any information supplied by Client to Agency concerning Client’s products and services (including Client Property), a competitor’s products or services, or information concerning Client’s industry product or service category;
(b) Materials provided by Client under this Agreement, or any materials or promotion, competition, game, contest or sweepstakes created pursuant to this Agreement, by Client or a third party on behalf of Client, when such materials are alleged or held to be violative of any applicable law;
(c) The use of any advertising, packaging, trade mark or other material, or components thereof, furnished to Agency or approved by Client, which is alleged to violate the personal or property rights, including intellectual property rights, of any third party;
(d) Risks known by Client, provided Client directed Agency to proceed in spite of such risks;
(e) All claims related to Client’s products and services, or use of the Client’s products and services, including without limitation, any and all products liability, safety or health-related claims;
(f) All claims brought by Client’s employees for employment discrimination, other employment or labour disputes, breach of contract, personal injury or other civil law matters, or claims brought by sellers or users of Client’s products or services and/or those parties with whom Client has a contractual or supplier relationship, regarding any matters; and
(g) Any material breach of any term of this Agreement by Client, its agents or employees, for any direct damages suffered by Agency, but not for indirect, special, exemplary, consequential or punitive damages.
16.2 Each party (after such party learns of such claim), will promptly notify the other party of any claim that may require indemnification under this Agreement. In no event will a party seeking indemnity agree to settle any claim without prior written approval (not to be unreasonably withheld or delayed) by the indemnifying party.
17. Limitation of Liability.
17.1 Nothing in this Agreement shall limit or exclude any liability for:
(a) Death or personal injury caused by negligence;
(b) Fraud or fraudulent misrepresentation;
(c) Any liability which cannot be limited or excluded by applicable law; or
(d) Any obligation of Client to make payments due to Agency under this Agreement.
17.2 Subject to Section 17.1 but notwithstanding any other provision of the Agreement, neither Agency nor Client shall have any liability arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
(a) Any loss of profit;
(b) Any loss of business or business opportunity;
(c) Any loss of anticipated savings;
(d) Any loss of goodwill or reputation; or
(e) Any indirect, consequential or special loss (whether or not the relevant party had been advised of the possibility of any such loss arising).
17.3 Subject to Sections 17.1 and 17.2 but notwithstanding any other provision of the Agreement, Agency’s maximum, aggregate liability to Client, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with this Agreement shall not exceed the Fees paid by Client to Agency in connection with the applicable SOW(s) giving rise to the liability.
17.4 Agency and Client shall each use commercially reasonable efforts to mitigate any losses or other liabilities they may suffer or incur arising under or in connection with this Agreement.
18. Insurance. Agency shall effect and maintain with reputable insurers such policy or policies of insurance as may be necessary to cover the Agency’s obligations and liabilities under this Agreement, including Public Liability Insurance and Professional Indemnity Insurance each with a limit of not less than £500,000.00 per annum. Upon Client’s reasonable request, Agency shall provide Client with all such documentation as is necessary to prove Agency’s continuing compliance with its obligations to insure under this Section 14.
19. Confidentiality.
19.1 Each party agrees to regard and preserve as strictly confidential all Confidential Information of the other party and shall maintain all Confidential Information of such party in trust and confidence and shall not disclose or otherwise make available such Confidential Information to any person, firm or enterprise except solely as may be required for the performance of its obligations hereunder. Neither party may directly or indirectly use, sell, assign, lease, dispose of or commercially exploit any Confidential
Information of the other for that party’s own benefit or the benefit of any third party. Neither party may make any copies of the other party’s Confidential Information except, in the case of Agency, as may be required in order to provide the Services. For purposes of this Agreement, “Confidential Information” shall mean all tangible and intangible data, formulae, processes, procedures, methods, documentation, information, records, drawings, designs, specifications, test results, evaluations, know-how, research, business plans, strategies, forecasts, financial information, pricing, employee, customer or vendor information, software, hardware or prospects obtained, received or developed in connection with this Agreement. Without limiting the foregoing, information that was known to Agency before receipt from Client, that is or becomes publicly available through no fault of Agency or that is rightfully received by Agency from a third party without a duty of confidentiality, shall not be Confidential Information for the purposes of this Agreement.
19.2 Each party shall use at least the same degree of care to avoid unauthorised dissemination or publication of the other party’s Confidential Information under this Agreement as it employs with respect to its own information which it does not desire to have disseminated or published. Agency shall limit access to and disclosure of Client’s Confidential Information to Agency’s employees on a “need-to-know” basis only. Each party agrees to take all other necessary steps to ensure compliance with the obligations set forth herein. Any employee of Client or Agency, as applicable, to whom Confidential Information is disclosed shall be informed of this Agreement. Each party agrees to notify the other party promptly and in writing of any circumstances in which such party has knowledge relating to any unauthorised possession, use or knowledge of all or any portion of the other party’s Confidential Information.
19.3 Notwithstanding anything to the contrary in the Agreement, Client acknowledges and agrees that Agency may collect and retain anonymous information about users of Client’s and other third-party web sites and may use data derived from Client’s use and Agency’s performance of the services to compile aggregate statistics, metrics and general trend data for Agency’s internal planning, trending, and media planning purposes, as well as for the enhancement and optimisation of Client’s campaigns and for marketing, promotional, and analytics purposes related to the services under this Agreement. Under no circumstances shall Agency share such data with any third party, including its subsidiaries, even on an anonymous basis, without Client’s express prior written approval. Any use that may be carried out by Client, from time to time, shall be carried out on an anonymous basis and Client will not be identified to any third party in connection therewith and under no circumstances will Agency provide any of Client’s Confidential Information to any other client in connection with such use. Agency agrees that it will not attempt to re-identify any de-identified or anonymous data or otherwise attempt to link any such data to an identifiable individual. To the extent that Agency augments any of its data with other data obtained from third-party sources (e.g., data brokers), it shall only obtain such data from reputable sources recognised in the industry. Any access to, use, or aggregation of data authorised by this Section 19.3 shall at all times be subject to Client’s data privacy and security policies as may be communicated to Agency in writing, if applicable, and Client may, in its sole discretion, deny Agency access to any data Client considers confidential or proprietary in accordance with the provisions laid out in this Section 19.
20. Publicity.
20.1 Each party agrees to submit to the other party all publicity, public relations materials, or statements in which the other party’s name, trade marks, or service marks or those of any of its Affiliates are used, written or displayed, or language is used (in any form including oral responses to questions) from which a party’s name or identity may be inferred or implied, without first obtaining the other party’s written permission to disseminate such publicity, public relations materials, statements, or use of such language. Such permission shall not be withheld or delayed unreasonably. Client and Agency also agree, however, that the other party, or third parties designated by a party, may use without permission or fee any advertising or other marketing materials created during the Term for each party’s archival or historical use or for self-promotion or display in all media without geographic or time limitations, including without limitation, for award show submissions. Both parties agree that such use will be in good taste and will not disparage the other party or its products or services.
20.2 Before, at, or after termination or expiration of this Agreement, each party agrees that it will not publicly criticise or disparage the other party, Services rendered pur
employees of the other party, in any manner and shall respond to inquiries about the potential or actual termination or expiration of all or portions of the Services under the Agreement or the agency-client relationship only in a positive, non-pejorative manner. Notwithstanding the above, either party may bring any action against the other party, in law and/or in equity, and may prosecute such action in the standard manner, without such prosecution constituting a violation of the provisions of this Agreement.
2.
21. Notices. All notices, requests, consents and other communications required or permitted by this Agreement shall be in writing and shall be delivered by hand, first class mail, air courier, fax, e-mail (fax and e-mail to be confirmed by mail or other form of written notice permitted under this paragraph) or sent via registered or certified mail, to the Party for whom intended to the following address, or to such other address as either party, by notice, may specify with respect to its own address:
22. Miscellaneous.
22.1 Governing Law and Jurisdiction. This Agreement and any dispute or claim relating to it or its subject matter, its enforceability or its termination (including non-contractual disputes or claims) is to be governed by and construed in accordance with the law of England and the courts of England have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
22.2 Third Party Rights. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
22.3 Force Majeure. Any delay or failure of a party to perform its obligations will be excused if, and to the extent that, it is caused by an event or occurrence beyond the reasonable control of such party and without its fault or negligence, including, but not limited to acts of God, actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, terrorist actions, natural disasters, wars, sabotage, labour problems (including lockouts, strikes and slowdowns), inability to obtain power, materials, labour equipment or transportation, or court injunction or order; provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the party claiming delay or failure under this paragraph to the other party as soon as possible after the event or occurrence (but in no event more than five (5) business days after the force majeure event begins).
22.4 Non-Solicitation.
(a) For the Term and for a period of six (6) months following termination of this Agreement, Client and its Affiliates shall not recruit or hire employees of Agency without the prior written approval of Agency’s management. Similarly, for the term of this Agreement and for a period of six (6) months following termination of this Agreement, Agency shall not recruit or hire employees of Client without the prior written approval of Client’s management. The foregoing shall not apply to either party’s personnel responding to general employment solicitations that are not directed at either party’s personnel.
(b) For the Term and for a period of twelve (12) months following the termination this Agreement, the Client and its Affiliates shall not, and shall procure that any other supplier acting on behalf of Client or its Affiliates shall not, directly or indirectly engage (or attempt to engage) for the provision of services or employment: (a) Influencers (as such term is defined in Exhibit D) engaged by Agency under this Agreement; (b) Talent (as such term is defined in Exhibit D) engaged by Agency under this Agreement; or (c) any other talent, influencer or personality which is
managed by Agency from time to time; in each case, except with the prior written consent of Agency (not to be unreasonably withheld or delayed).
22.5 Waiver. Waiver by either party of any breach or failure to comply with any provision of this Agreement will not be construed as, nor constitute, a continuing waiver of that provision or a waiver of any other provision of this Agreement.
22.6 Survival. Provisions of this Agreement, the performance of which by either or both parties, or by their sense and context, are intended to survive, will survive the completion, expiration, termination, or cancellation of this Agreement (including, without limitation, Sections 9, 14, 16, 17, and 19).
22.7 Remedies. Each party’s remedies for any breach of this Agreement by the other party may include damages, injunctive relief, specific performance and restitution. Each party acknowledges that any breach or threatened breach of Sections 1 or 19 of this Agreement could cause irreparable injury for which monetary damages may not be an adequate remedy, and, therefore, such party will be entitled to seek injunctive relief (including specific performance).
22.8 Exhibits. Each Exhibit to this Agreement is incorporated into this Agreement by reference and shall be considered an integral part of this Agreement.
22.9 Conflicts. In the event of a conflict between the terms of this Agreement, an SOW, or any Exhibit hereto, the conflict shall be construed in the following precedence: the terms of the Exhibit, the SOW, then this Agreement.
22.10 Assignments. The Client shall not assign this Agreement without the written consent of Agency, provided, however, that either party, without the other party’s consent, shall be free to assign the benefit of this Agreement to an Affiliate.
22.11 Entire Agreement; Amendments. This Agreement, together with all Exhibits, constitutes the entire agreement between the parties regarding the subject matter of this Agreement and will supersede all prior oral or written representations and agreements. This Agreement may not be changed or amended except by written agreement signed by the parties to this Agreement.
22.12 Severability. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions of this Agreement shall remain in force. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
Exhibit A Statement of Work
This Statement of Work (“SOW”) is issued pursuant to the Agency Master Services Agreement (“Agreement”) dated as of [DATE] by and between The Fifth Limited, with registered company number 16360217 and registered address at 2 Stephen Street, London, W1T 1AN (“Agency”) and ______________________ with registered company number ______________________ and registered address at ______________________ (“Client”) and shall be effective as of [DATE] (“SOW Effective Date”) and will remain in effect until [DATE], unless earlier terminated under any applicable provision of the Agreement. Transactions performed under this SOW will be conducted in accordance with and be subject to this SOW, the Agreement, and the applicable Exhibits to the Agreement. Capitalised terms used but not defined in this SOW shall have the meanings set out in the Master Agreement.
1. Name of Project: [INSERT PROJECT NAME]
2. Project Purpose: [Describe overall objective of project]
3. Location of Work: [INSERT]
4. Period of Performance: The Services will be performed during the period from ______ ___, 20__, through ________ ___, 20__
5. Description of Services: The Services to be performed by Agency during the Period of Performance are as follows: [Provide a detailed description of the applicable services]
5.1 Events/Experiential Services:
5.2 Production/Post-Production Services:
5.3 Talent and Influencer Services:
5.4 Creative Services:
6. Schedule of Deliverables: Agency will produce the following Deliverables in accordance with the following schedule: [List specific deliverables, describing what is due and when]
Deliverable Description of Deliverable Estimated Completion Date
1.
2.
3.
7. Agency Point of Contact: [Identify Agency point of contact for the project].
8. Fees and Payment Schedule: The total amount payable by Client for the Services is £_____ and will be billed to Client as follows:
8.1 [INSERT PAYMENT SCHEDULE]
9. Other Terms and Conditions [placeholder] The Client agrees that any materials that the Client instructs the Agency to use in the provision of the Services (including any music or audio not sourced from the commercial library provided by the Agency) shall be considered to be materials provided by the Client to the Agency pursuant to clauses 10 and 16.1(b) of the MSA
Exhibit B Additional Terms and Conditions for Events/Experiential Services
The following additional terms will apply with respect to any Agency provision of events and/or experiential Services to Client pursuant to an SOW:
1. Services. Agency shall perform certain events and experiential services, including strategy, content development, promotions, and influencer sourcing, as more particularly described in an SOW executed by Agency and Client.
2. Agency Duties and Responsibilities. In performing its Services, Agency shall, among other things:
2.1 Generally. If requested by Client, coordinate client-sponsored events, seek and negotiate on Client’s behalf sponsorship of third party events (e.g., concert series, etc.), identify and execute product sampling, all in a professional and good workmanlike manner consistent with industry standards.
2.2 Venues. Contract with venues for events (with Client’s prior approval) and obtain in a timely manner all necessary permits, waivers, releases, registrations, approvals and/or authorisations required in connection with an event, including paying (at Client’s expense and with its prior written approval) any necessary fee.
2.3 Insurance. Confirm or secure (at Client’s expense and with its prior written approval) event insurance.
2.4 Affiliates; Subcontractors. Agency and Agency Personnel will comply, and use commercially reasonable efforts to cause its Affiliates, Subcontractors and any third party authorised or engaged by Agency pursuant to this Agreement or any SOW, to comply with all applicable laws. Without limiting the foregoing, Agency and Agency Personnel’s obligations with respect to Subcontractors shall not apply to Subcontractors engaged by Agency at the requirement of Client (“Preferred Subcontractors”).
Exhibit C Additional Terms and Conditions for Production/Post-Production Services
The following additional terms will apply with respect to any Agency provision of production and post-production Services to Client pursuant to an SOW:
1. Services.
1.1 Client has engaged Agency to perform the Services and produce, complete and deliver the Deliverables set forth herein and in the applicable SOW (collectively, “Services”).
1.2 Unless otherwise agreed to by the parties, Agency will provide Client with a production and post-production schedule for the Deliverables. Client acknowledges and agrees that such schedule reflects Agency’s then-current timing but may be subject to change based on the timing of Services, timing to receive necessary input from Client or Client Property, or other factors that may delay the Deliverables within or beyond Agency’s control. In no event will such a delay be deemed a breach of this Agreement by Agency, and Agency shall not be responsible for any costs associated with such delay, except if such delay is caused by Agency’s gross negligence or willful misconduct.
2. Staffing, Subcontractors, Vendors. Agency reserves the right, in its sole discretion, to engage third-party Subcontractors to provide the Services for Client, pursuant to Section 3 of the Agreement.
3. Network Clearances. Client shall be solely responsible for performing all network clearance activities including, without limitation, submitting any requested permissions, clearances, releases, rights of use or licences in connection with such clearance process. Notwithstanding the foregoing, Agency shall provide upon request any materials it obtained in connection with the Agency’s Services for Client’s submission to the networks for relevant clearances.
Exhibit D Additional Terms and Conditions for Talent and Influencer Services
Influencer Services. The following terms and conditions apply to Services that include the use of Influencers (as defined below):
1. Agency shall take reasonable steps to ensure that all talent, influencers, bloggers, endorsers or other third parties who maintain their own video channels, blogs or social media and who are engaged by Agency to create or distribute content which may relate to Client or its products or services (“Influencers”), comply with all applicable laws, including, but not limited to, those relating to the content of advertisements and/or promotional messages, including the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) and all other relevant codes and guidance (each as updated from time to time) under the general supervision of the Advertising Standards Authority, the Committee of Advertising Practice; the Competition and Markets Authority and/or OFCOM (or equivalents in other relevant jurisdictions; and the terms of service and applicable policies (including applicable privacy policies) of each applicable social media platform(s) (the “Guides”). In the event that Client has internal social media guidelines, Client shall provide such guidelines to Agency for insertion in agreements with Influencers.
2. Notwithstanding the foregoing, failure by an Influencer to comply with applicable laws or Client’s guidelines shall not constitute a breach by Agency of this Agreement; it being understood that Agency’s sole obligation with respect to such compliance is to include such compliance obligations in its agreements with Influencers. For the avoidance of doubt, Agency shall engage Influencers under its own template agreement with materially consistent terms set forth in this Agreement (each an “Influencer Agreement”), unless Client otherwise requires Agency, upon request, to engage Influencers under Client’s template agreement; it being understood that Client shall be solely responsible for any claims arising from or in connection with the use of Client’s template agreement.
3. In the event Client notifies Agency that any Influencer content published or distributed by Influencer in connection with this Agreement violates any applicable laws, Agency shall reach out to such Influencer and request such Influencer remove and/or revise such content.
4. Client shall be responsible for reviewing and monitoring the activities of the Influencers that Agency procures on Client’s behalf and taking all reasonable action to ensure compliance with applicable laws. Client’s monitoring shall include: (a) review of Influencer content for appropriate disclosures regarding the Influencer’s relationship with the brand; (b) review of Influencer content for supportable claims; (c) review of Influencer social media sites/pages for consistency with brand image and strategy; (d) review of Influencer social media sites/pages for compliance with Influencer contracts and applicable laws and applicable terms of service; and (e) addressing problematic Influencer content (e.g., if content lacks disclosures or makes unsupportable claims).
5. Client shall indemnify and hold Agency harmless from any third party claim brought in connection with an Influencer’s services except to the extent such claim relates to Agency’s gross negligence or willful misconduct.
Talent. The following terms and conditions apply to Services that include the hiring of Talent (as defined below):
6. Agency will execute production in a professional manner, hire quality talent, performers, singers, and musicians (collectively, “Talent”), and will pay these individuals according to applicable industry standards. Client acknowledges that Agency is not a signatory to any union collective bargaining agreement, and that the hiring of Talent and the payment of compensation and benefits to such talent will not be subject to union obligations.
7. Client acknowledges and agrees that Agency shall only be liable for the cost of the Talent to the
extent that Agency has been paid by Client for any amount payable to such Talent. For amounts not paid to Agency by Client, Client acknowledges that Talent shall seek payment solely from Client (and not from Agency). In the event Agency has not received payment from Client as of the due date for payment to Talent, then Agency shall provide Client’s contact information to enable Talent or its representative to seek payment directly from the Client.
Exhibit E Additional Terms and Conditions for Creative Services
The following additional terms will apply with respect to any Agency provision of creative Services to Client pursuant to an SOW:
1. Estimates. With respect to any creative job or project, Agency shall include on the estimate for such job or project, an estimate of any travel expenses that may be incurred in connection with such job or project. Agency agrees to submit such estimate to Client for Client’s written approval in accordance with the terms of this Agreement, provided that any estimated travel expenses up to £500.00 shall not require such prior Client approval.
2. Agency Review. Agency will proofread all Materials in their Final Form and will be responsible for correcting any proofreading errors by Agency or to present Client with a plan to remedy such problems that is mutually agreed upon. For the avoidance of doubt, Client acknowledges and agrees that Agency shall only be responsible for correcting grammatical proofreading errors and any other errors or changes in Materials in their Final Form (including, without limitation, errors in Client Property or materials provided by Client) shall be at Client’s expense.
3. Network Clearance. Client shall be solely responsible for performing all network clearance activities including, without limitation, submitting any requested permissions, clearances, releases, rights of use or licences in connection with such clearance process. Notwithstanding the foregoing, Agency shall provide upon request any materials it obtained in connection with the Agency’s Services for Client’s submission to the networks for relevant clearances.
4. Client Property.
4.1. The term “Client Property” as defined in Section 9.4 shall also include:
4.1.1. Talent supplied by Client (for which Client informs Agency that Client or a third party will obtain or has obtained permission or clearance) or with which Client, or another entity on Client’s behalf, has entered into an agreement;
4.1.2. materials provided by any Client third-party promotional partner(s) or other parties designated by Client; and
4.1.3. any product, prop, package/packaging, service, or similar materials provided by Client to Agency.
4.2. Client agrees to indemnify and hold Agency harmless for any third-party claims in connection with the Client Property, including any product liability claims or claims relating to the packaging, distribution, sale, manufacturing, or use of Client’s products or services.
BACKGROUND
(A) You (the “Client”) wish to receive and The Fifth Limited, with registered company number 16360217 and registered address at 2 Stephen Street, London, W1T 1AN (“Agency”), wishes to provide a range of services as further described in the booking form that you’ve been sent (the “booking form”) and, where applicable, in one or more schedules on a per project basis.
(B) The parties agree that such services shall be supplied in accordance with the terms of this agreement (the “Agreement”).
(C) This Agreement, including the booking form, these terms and conditions and any schedules, constitutes a binding agreement.
In consideration of the mutual promises, covenants, undertakings and agreements contained herein, the parties agree as follows:
1. Services and Appointment.
1.1 Statements of Work. Client appoints Agency as its advertising agency to perform certain advertising, marketing and/or promotional services as set forth in the applicable statement of work (each, an “SOW”), which shall be in substantially the same form as the SOW attached hereto as Exhibit A (the “Services”). Accordingly, Client hereby engages and appoints Agency, and Agency accepts such appointment, as Client’s non-exclusive agency to perform the Services. In the event of any conflict between this Agreement and an SOW, the terms of the SOW shall prevail. Nothing in this Agreement shall require Client to request the provision of any Services or, until such time as a relevant purchase order and/or SOW has been issued by the Client, require the Agency to provide any Services.
1.2 Events/Experiential Services. In the event the Services include any events and/or experiential services, the terms and conditions set forth in Exhibit B (attached hereto and incorporated herein) shall apply.
1.3 Production/Post-Production Services. In the event the Services include any production or post-production services, the terms and conditions set forth in Exhibit C (attached hereto and incorporated herein) shall apply.
1.4 Talent and Influencer Services. In the event the Services include any influencer services, the terms and conditions set forth in Exhibit D (attached hereto and incorporated herein) shall apply.
1.5 Creative Services. In the event the Services include any creative services, the terms and conditions set forth in Exhibit E (attached hereto and incorporated herein) shall apply.
2. Agent Relationship. Agency is authorised to act as Client’s agent in purchasing the materials and services required to provide the Services on Client’s behalf. Agency agrees to secure Client’s approval of all substantial expenditures on Client’s behalf. To the extent any rights to such Materials (as defined below) and Services are acquired, they will be Client’s property upon purchase, except as otherwise stated herein. All Materials prepared by Agency and accepted by Client for use shall become Client’s property when paid for, except as otherwise stated herein. It is understood that there may be limitations on the use and ownership of materials by virtue of the rights of third parties. Whenever possible, Agency shall advise Client of the existence of such limitations.
3. Affiliates; Subcontractors. Due to the fact that creation and production of advertising and marketing services and materials normally involves the use of third-party suppliers, vendors and/or subcontractors (collectively “Subcontractors”), Client agrees that Agency will be free to engage such Subcontractors to provide Services for Client, provided that Agency shall have, and will retain, general responsibility for having the Services provided in compliance with the terms of this Agreement. Client agrees that Agency may routinely use its Affiliates to provide such services because of the efficiencies, quality of work, and control inherent in such relationship and the Affiliate’s familiarity (through Agency) with the Client’s business and marketing needs. For purpose of this Agreement, “Affiliate” means (in relation to a party) any business entity (including, as used in this paragraph, any entity such as a division, subsidiary, sister or parent company) that is either directly or indirectly controlling, controlled by or under common control of a party.
4. Care of Client Property. Agency shall take every reasonable precaution to safeguard any and all Client Property (as defined below) entrusted to Agency’s custody or control.
5. Fees; Invoicing. Client agrees to compensate Agency for its Services as set forth in each applicable SOW (individually and collectively, the “Fee”) in accordance with the invoicing terms set forth below (or as otherwise mutually agreed upon by the parties in writing).
5.1 Unless otherwise set forth in the applicable SOW, Agency will submit an invoice in the month prior to the month of service for payment consistent with the Fee set forth in the applicable SOW. Invoices will be payable within thirty (30) days of the invoice date.
5.2 All fees agreed between the parties in writing (including email) in relation to each Purchase Order Number are non-refundable (unless agreed by both of the parties). To the extent the fees agreed for a specific Purchase Order Number are greater than the costs incurred in relation to the corresponding Campaign, any amount not spent on such Campaign shall be held by The Fifth on account and then applied to additional aspects of the Campaign, and/or to any subsequent Campaign(s) during the Term.
5.3 In case of a dispute between the parties regarding reimbursement of Agency by Client, Client, within five (5) business days after receiving a disputed invoice from Agency, or of learning of a potential payment dispute, must inform Agency in writing of the specific basis or bases of any dispute. Client agrees that if Client disputes an invoice or other payment, it cannot withhold payment from Agency for the disputed amount if Agency has advanced monies to Subcontractors or third-party vendors. Agency will make a reconciliation on the next monthly billing (or other frequency as set forth in the applicable SOW) following Agency’s discovery and resolution of a billing error if Agency was in error or if Agency otherwise agrees not to seek reimbursement or payment from Client. The parties agree that their course of dealing may be used to resolve any disputes, and agree to make best efforts to resolve disputes amicably and in good faith. Each party, however, is thereafter free to take any action or seek any remedy available at law and/or in equity.
6. Expenses and Reimbursements.
6.1 Agency shall be responsible for, pay and discharge all costs and expenses reasonably and necessarily incurred in the performance of its Services hereunder. Client shall reimburse Agency for such actual costs and expenses incurred in connection with this Agreement, within thirty (30) days of Agency’s invoice. Notwithstanding the foregoing, Agency shall seek Client’s prior approval (email to suffice) for all costs and expenses that exceed five hundred pounds sterling (£500).
7. Modification and Discontinuance. Either party may, upon notice to the other, request a change in the scope of Services to be provided under an applicable SOW (“Change Notice”). Upon receipt of the Change Notice from Client to cancel any Services, Agency shall promptly discontinue all Services on a project and instruct the Subcontractors to do the same. If the terms of the Change Notice materially alter the scope of the previously agreed upon Services as set forth in the applicable SOW, Agency reserves the right to re-estimate the associated costs and Fees and will perform no additional relevant Services until receipt of Client’s written approval for the re-estimates. Client will reimburse Agency for the actual costs incurred for modifications made necessary by changes in Client’s plans or instructions, and the modification or cancellation of any Services as a result of a Change Order. Client will also reimburse Agency for all liabilities, judgments, and expenses (including legal fees and associated costs) incurred as a consequence of carrying out the modifications or cancellations requested by Client, and for the actual Agency fees and expenses charged or incurred by Agency resulting from any such modifications or cancellations for Services performed up to the time of modification or cancellation. Under no circumstances will Agency be obliged to breach any lawful contractual commitment to others on Client’s behalf.
8. Approval Process. Agency will submit to Client for its approval (not to be unreasonably withheld or delayed) all elements of any Materials (as defined below) to be produced under this Agreement, including, but not limited to, copy, layouts, photography, scripts, recordings, storyboards, websites and commercials. Submission for prior approval of any of these elements will not be required to the extent that they are preliminary only. Client shall provide its approval or rejection to Agency in writing no later than three (3) business days following Agency’s notice (or such shorter period of time as may be communicated by Agency due to exigent business circumstances). In the event that Client rejects any Materials, Agency shall revise such Materials within a reasonable time, it being understood that Agency shall notify Client in the event Agency will incur additional fees in connection with any revisions, modifications, edits, or updates to any Materials as requested by Client except to the extent such revision, modification, edit, or update is a result of Agency’s failure to deliver the Materials as agreed upon in the relevant SOW (unless otherwise mutually agreed to by the parties in writing). For the avoidance of doubt, in the event Client requests changes to Materials that otherwise adhered to all requirements herein, Client acknowledges and agrees that such changes may be subject to additional fees and any delay in delivery of such Materials not within Agency’s control shall not be deemed a breach of this Agreement.
9. Intellectual Property. Excluding and subject to any Third Party Materials (defined below), Agency Property, and subject to full and complete payment to Agency for Services rendered, it is understood that any copyrights, trade marks/service marks and advertising materials developed by Agency and produced by Agency in Final Form (defined below) for Client pursuant to this Agreement (collectively, “Materials”) shall, except as otherwise agreed to by the parties, be the property of Client. For purposes of this Agreement, “full and complete payment” means payment of all production costs, charges, expenses and fees (including Fees) due Agency under this Agreement; and “Final Form” shall, for radio and television advertisements, mean works produced through the “rough cut” stage; for newspaper, magazine, outdoor, direct mail and similar “print” advertisements Final Form means the near final, full color artwork and text created by Agency from which the actual advertisement is produced; for on-line advertisements, Final Form means the creative work of Agency, Influencers, and/or Talent (collectively, “Agency Parties”) at the stage when the work is ready to be moved from the staging server to the production server or is otherwise ready to be distributed or posted publicly. If Agency has not yet received full and complete payment, and/or advertising or other materials have not yet been produced by Agency in Final Form, then such materials presented to Client shall remain the sole property of Agency.
9.1 Agency agrees to assign all rights it may have in Materials created by it for the Client (including copyright), provided such Materials have been produced by Agency in Final Form, and provided Client has made full and complete payment to Agency for such Materials. Subject to the terms of this paragraph, Agency agrees to execute any document(s) that Client may reasonably require to transfer or assign ownership from Agency and/or its Subcontractors to Client.
9.2 Creative ideas and materials presented to Client, but not ultimately produced in Final Form by Agency Parties, shall remain the sole property of such Agency Parties, and such Agency Parties shall
retain all intellectual property rights in and to such creative ideas and materials, including, without limitation, copyright.
9.3 Notwithstanding the foregoing, Client acknowledges that Agency possesses general knowledge, experience, skill, talent, know-how and other information of a first-class agency in the field in which it will provide the Services, Materials, and unless otherwise previously agreed to by the parties in writing, any applicable pitch materials, including, without limitation, ideas, concepts, or strategies disclosed pursuant to Agency’s pitch or response to Client’s requests for proposal, that was or will be independently developed or acquired by Agency other than on the account of Client shall remain the property of Agency (collectively, “Agency Property”). Agency hereby grants to Client and its Affiliates a perpetual, royalty-free, non-exclusive, non-transferable worldwide licence granted to Client and its Affiliates to use such Agency Property solely in connection with the use of the Materials and set forth herein.
9.4 In connection with providing the Services, Agency or Agency Parties may wish to utilise the service marks, trade marks, trade dress or logos belonging to Client. Agency or Agency Parties shall have no right to use Client’s names, trade marks, service marks, trade dress or logos (collectively, the “Client Property”) unless otherwise expressly permitted in this Agreement or the SOW or as otherwise consented to by an authorised representative of Client in writing. If permission is granted, Agency or Agency Parties may use the Client Property in the manner in which they are provided to Agency or Agency Parties pursuant to the terms of this Agreement or the SOW in the manner in which the materials the Client Property appear in have been approved (or instructed) in writing in advance by Client and subject to any restrictions noted herein. Agency or Agency Parties will not contest or dispute, directly or indirectly, Client’s proprietary interest in or ownership of the Client Property.
9.5 Agency may license intellectual property and other property, rights and/or materials from third-party licensors for inclusion in Materials (“Third-Party Materials”). In such circumstances neither Agency nor Client own such property, rights or materials; ownership will be retained by the third-party licensor. In such instances, Client agrees to be bound by the terms of such licence(s) and Agency will inform Client of the existence of such licence(s).
10. Legal Responsibility and Obtaining Permission to Use Third-Party Property. Except as otherwise agreed upon by the parties or as set forth in the applicable SOW, Agency will obtain releases, permissions, and/or licences from those parties whose personal or property rights (including intellectual property rights) Agency furnishes for use in Materials for Client. Client will obtain necessary rights to materials that Client supplies to Agency for use in advertising materials, and Client will be responsible for (and indemnify Agency in connection therewith) the accuracy, sufficiency, and legality of information and substantiation Client supplies to Agency concerning Client’s products or services, the products or services of Client’s competitors and information about Client’s industry or category.
Client agrees that the Services performed by Agency and the fees paid by Client do not specifically include worldwide legal due diligence with respect to Client’s legal rights to use the Materials (including without limitation, trade mark clearance, patent clearance, talent rights, etc.), unless otherwise stated in an SOW or a separate writing signed by the parties. Client agrees that it will be solely responsible for conducting due diligence prior to the publication or commercial use of the Materials, and will be solely responsible for any infringements associated therewith. Client will be responsible for making all applicable registrations and other necessary actions to perfect Client’s ownership of and rights therein.
10.1 Client agrees that if Agency brings a risk to the attention of Client or Client is aware of a risk, but directs Agency to proceed in spite of such risk, Client shall defend, indemnify and hold harmless Agency regarding such risks as described in Section 17.
11. Term and Termination.
11.1 This Agreement will commence as of the Effective Date and remain in effect until terminated by either party with or without cause upon ninety (90) days’ prior written notice (the “Term”). If
Client so notifies Agency during the first year of the Agency/Client relationship of Client’s decision to terminate the Agreement, the notice termination period shall be one hundred eighty (180) days rather than ninety (90) days. The parties agree that during the ninety (90) day period described in this Section 11.1, each party will continue to perform its services and meet its obligations as required by this Agreement.
11.2 If, during the Term, Client proposes to decrease the Fee to be paid to, and the Services required of, Agency, and if such proposed good faith reduction in the Fee is equal to or more than ten percent (10%) of the Fee set forth in the applicable SOW, or is sufficiently significant to require Agency to re-assign or terminate personnel or reduce overhead, Client agrees to compensate Agency at the agreed-to Fee set forth in the applicable SOW for a ninety (90) day period, or as long as it takes to make the necessary adjustment, whichever period is shorter. During this reduced compensation transition period, Agency will make an orderly transition for re-deploying or terminating personnel and/or reducing overhead.
11.3 Either party may terminate this Agreement immediately by giving written notice to the other Party upon the occurrence of any of the following events:
(a) the commission by the other party of a material breach of this Agreement incapable of being cured;
(b) the commission by the other party of a material breach of this Agreement capable of being cured, and the breaching party has not cured the breach within fifteen (15) business days of receipt of written notice by the non-breaching party; or
(c) the initiation of a voluntary or involuntary bankruptcy, receivership or similar proceeding with respect to such other party.
11.4 Either party may terminate an SOW with or without cause by providing not less than sixty (60) days’ prior written notice to the other party, it being understood that termination of an SOW shall not be deemed termination of this Agreement or any other outstanding SOWs.
11.5 Neither party will be entitled to any compensation or damages for loss of prospective profits, payment for goodwill, or other payment for losses arising out of the termination of this Agreement in accordance with its terms, unless otherwise agreed to by the parties. Nevertheless, if termination is based on breach by the other party, the non-breaching party will be entitled to recover direct damages resulting from such breach, and to obtain any relief available under applicable law.
12. Transfer Upon Termination. On or before the effective date of termination of this Agreement, Agency shall transfer to Client, or a third party selected by Client, in the manner directed by Client, the following: (i) as applicable, and if permitted by the agreement with the third party, any talent, music or other contracts or licences and any arrangements made by Agency with third parties on behalf of Client and with the consent of Client, made prior to the giving of notice of termination, but which continue beyond the effective date of termination; (ii) any final advertising materials that are created by Agency under this Agreement that are in Final Form and for which Agency has received full and complete payment from Client per Section 9 of this Agreement.
12.1 Any reservation, contract, or arrangement made by Agency for Client prior to the termination date which continues beyond the termination date will be carried to completion by Agency and paid for by Client in accordance with this Agreement unless Client directs Agency to transfer such reservation, contract, or arrangement to another entity and Client releases and indemnifies Agency, in which event Agency will endeavour to make such transfer, subject to obtaining any necessary consents of third parties. Agency will be entitled to any and all commissions, fees and payments for Services performed prior to accomplishing the transfer. Any archived records pertaining to marketing communication Services provided under this contract will be maintained for one (1) year after termination and may be destroyed thereafter.
12.2 In addition, on or before the effective date of termination of this Agreement, both parties shall transfer or return to the other party all Confidential Information under Section 19 in a party’s possession that had been provided by one party to the other relating to the products or services or to the business of a
party, all confidential and proprietary sales and marketing data, market research information owned by a party, and any tangible property in the other party’s possession.
13. Audits and Business Reviews.
13.1 Agency agrees to keep full and proper records of all third-party invoices and travel expenses that support charges that have been billed to Client pursuant to this Agreement, including the appropriate documentation to confirm Client’s costs and fees and the original documentation of any such charges by Subcontractors providing services to Agency (“Records”). Any such Records shall be kept for a period of not less than six (6) months after the relevant transaction or, if the Agency/Client relationship terminates or expires, six (6) months after the effective date of the termination or expiration, whichever comes first. Audits under this Section 13 shall not include Client’s review of Agency’s allocation of project funds, so long as Agency’s use thereof is in compliance with the terms of the applicable SOW. Upon thirty (30) days’ prior notice to Agency, Client through its independent auditing firm, which must be reasonably approved in advance by Agency prior to the time of the audit, will be entitled to have such Records examined, at Client’s expense, during Agency’s normal business hours, provided however, that only Records directly applicable to the Services performed pursuant to this Agreement shall be available for such examination. Under no circumstances will Client have access to Agency’s general ledger information, Agency overhead or profitability data or to payroll, salary or bonus information, or timecards or other employee, personnel, and/or individual compensation records, or information indicating the date of payment by Agency of third-party invoices, or internal or external Agency correspondence or communications regarding the keeping of Client’s records or regarding any Client audit, or documents or materials containing information of Agency’s other clients.
13.2 During the course of any project, Agency may seek a business review of its performance under the applicable SOW. Such review may include, without limitation, a review of (i) Agency’s contribution to Client’s business results, (ii) Agency’s servicing of Client’s accounts, (iii) Agency’s economics in servicing Client’s accounts, and (iv) the working relationship between Client and Agency. To the extent that such review indicates Agency’s performance is materially exceeding the required metrics or other deliverable requirements, the parties may mutually agree on an increase in Agency’s Fee, a re-allocation of the project funds, or another mutually agreed upon adjustment to the project scope to account for Agency’s positive performance.
14. Local Law and Compliance. To the extent applicable, Client shall be responsible for all submissions, filings, and posting of bonds that may be necessary to comply with legal requirements of promotions, competitions, sweepstakes, contests and games conducted by or on behalf of Client by a third party.
14.1 It is understood and agreed that Client has the final responsibility for compliance (and ensuring the compliance of all Materials) with all applicable laws, rules, consent orders, agreements, judgements, regulations, regulatory guidelines and decrees.
14.2 At Agency’s request, Client will provide Agency with substantiation for all express or implied claims and representations regarding Client’s products and services, Client’s competitors’ products and services and information regarding Client’s industry or category, made in Materials.
14.3 Nothing in this Agreement will be deemed to require Agency to undertake any act or perform any Services, which in Agency’s good faith judgement, would be misleading, false, libellous, unlawful, infringing, tortious, in breach of a contract or otherwise prejudicial to Client’s or Agency’s interests (e.g., in bad taste or offensive or insensitive to a group protected by applicable law prohibiting discrimination).
15. Representations and Warranties.
15.1 Mutual Representations and Warranties. Without limiting any representation or warranty set forth elsewhere in the Agreement, each party represents and warrants to the other the following:
(a) the party’s execution, delivery and performance of this Agreement: (i) has been authorised by all necessary corporate action, (ii) does not violate the terms of any law, regulation, or court order to which such party is subject or the terms of any material agreement to which the party or any of its assets may be subject, and (iii) are not subject to the consent or approval of any third party;
(b) this Agreement is the valid and binding obligation of the representing party, enforceable against such party in accordance with its terms; and
(c) such party is not subject to any pending or, to its knowledge, threatened litigation or governmental action which could interfere with such party’s performance of its obligations hereunder.
15.2 Additional Representations and Warranties of Agency. Agency further represents and warrants that:
(a) Agency has the full power and authority to enter into this Agreement and to grant the rights contained herein, and that the performance of this Agreement will not violate any agreement or obligation of Agency;
(b) Agency has legal ownership rights of use and/or licences and consents to any Agency Property and all Third-Party Materials that are provided by Agency to be included for authorised use in the Materials;
(c) Subject to the terms herein and the applicable SOW, the Materials provided hereunder are original and have not been previously published;
(d) Except with respect to Client-provided information, Materials will not knowingly infringe upon the intellectual property or publicity rights of any third person;
(e) In the event that Agency performs interactive Services (which may include, without limitation, digital advertising, website development, and production service) such Services and related deliverables will not contain viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
(f) Agency’s Services and the Materials will not knowingly violate any applicable law; and
(g) Except to the extent such Services or Materials are altered by Client without authorisation by Agency, Client’s use of the Services and the Materials as contemplated herein will not knowingly violate any third party’s rights or any applicable law.
15.3 Additional Representations and Warranties of Client. Client further represents and warrants that:
(a) Client has the full power and authority to enter into this Agreement and that the performance of this Agreement will not violate any agreement or obligation of Agency;
(b) Client has legal ownership rights of use and/or licences and consents to any Client Property provided to Agency to be included in the Materials;
(c) Client Property shall not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party;
(d) Any use of Client Property will not knowingly violate any applicable law;
(e) Client shall use the Services and Materials solely in accordance with the terms set forth herein and in compliance with all applicable law.
16. Indemnification. Agency shall defend, indemnify, and hold Client and its Affiliates and their officers and shareholders, agents and employees harmless from and against all costs, expenses, liabilities and losses reasonably incurred (including reasonable legal fees costs) arising directly and identifiably out of any third party claim of copyright, trade mark or trade dress infringement, or invasion of privacy or publicity based on, or in connection with, the actual authorised use of any Materials (except to the extent such Materials were altered by Client). Notwithstanding the foregoing, this indemnification may be limited in scope or totally nullified to the extent that Client knew of, or had been specifically advised of, any such risks involved in connection with the use of such Materials, and accepted such risks, by approving the use and/or dissemination of such Materials.
16.1 Client shall defend, indemnify and hold Agency, its parent and sister companies, its Affiliates and their officers, shareholders, agents and employees harmless from and against all claims, costs, expenses, liabilities and losses reasonably incurred (including reasonable legal fees) arising out of:
(a) The inaccuracy of any information supplied by Client to Agency concerning Client’s products and services (including Client Property), a competitor’s products or services, or information concerning Client’s industry product or service category;
(b) Materials provided by Client under this Agreement, or any materials or promotion, competition, game, contest or sweepstakes created pursuant to this Agreement, by Client or a third party on behalf of Client, when such materials are alleged or held to be violative of any applicable law;
(c) The use of any advertising, packaging, trade mark or other material, or components thereof, furnished to Agency or approved by Client, which is alleged to violate the personal or property rights, including intellectual property rights, of any third party;
(d) Risks known by Client, provided Client directed Agency to proceed in spite of such risks;
(e) All claims related to Client’s products and services, or use of the Client’s products and services, including without limitation, any and all products liability, safety or health-related claims;
(f) All claims brought by Client’s employees for employment discrimination, other employment or labour disputes, breach of contract, personal injury or other civil law matters, or claims brought by sellers or users of Client’s products or services and/or those parties with whom Client has a contractual or supplier relationship, regarding any matters; and
(g) Any material breach of any term of this Agreement by Client, its agents or employees, for any direct damages suffered by Agency, but not for indirect, special, exemplary, consequential or punitive damages.
16.2 Each party (after such party learns of such claim), will promptly notify the other party of any claim that may require indemnification under this Agreement. In no event will a party seeking indemnity agree to settle any claim without prior written approval (not to be unreasonably withheld or delayed) by the indemnifying party.
17. Limitation of Liability.
17.1 Nothing in this Agreement shall limit or exclude any liability for:
(a) Death or personal injury caused by negligence;
(b) Fraud or fraudulent misrepresentation;
(c) Any liability which cannot be limited or excluded by applicable law; or
(d) Any obligation of Client to make payments due to Agency under this Agreement.
17.2 Subject to Section 17.1 but notwithstanding any other provision of the Agreement, neither Agency nor Client shall have any liability arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
(a) Any loss of profit;
(b) Any loss of business or business opportunity;
(c) Any loss of anticipated savings;
(d) Any loss of goodwill or reputation; or
(e) Any indirect, consequential or special loss (whether or not the relevant party had been advised of the possibility of any such loss arising).
17.3 Subject to Sections 17.1 and 17.2 but notwithstanding any other provision of the Agreement, Agency’s maximum, aggregate liability to Client, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with this Agreement shall not exceed the Fees paid by Client to Agency in connection with the applicable SOW(s) giving rise to the liability.
17.4 Agency and Client shall each use commercially reasonable efforts to mitigate any losses or other liabilities they may suffer or incur arising under or in connection with this Agreement.
18. Insurance. Agency shall effect and maintain with reputable insurers such policy or policies of insurance as may be necessary to cover the Agency’s obligations and liabilities under this Agreement, including Public Liability Insurance and Professional Indemnity Insurance each with a limit of not less than £500,000.00 per annum. Upon Client’s reasonable request, Agency shall provide Client with all such documentation as is necessary to prove Agency’s continuing compliance with its obligations to insure under this Section 14.
19. Confidentiality.
19.1 Each party agrees to regard and preserve as strictly confidential all Confidential Information of the other party and shall maintain all Confidential Information of such party in trust and confidence and shall not disclose or otherwise make available such Confidential Information to any person, firm or enterprise except solely as may be required for the performance of its obligations hereunder. Neither party may directly or indirectly use, sell, assign, lease, dispose of or commercially exploit any Confidential
Information of the other for that party’s own benefit or the benefit of any third party. Neither party may make any copies of the other party’s Confidential Information except, in the case of Agency, as may be required in order to provide the Services. For purposes of this Agreement, “Confidential Information” shall mean all tangible and intangible data, formulae, processes, procedures, methods, documentation, information, records, drawings, designs, specifications, test results, evaluations, know-how, research, business plans, strategies, forecasts, financial information, pricing, employee, customer or vendor information, software, hardware or prospects obtained, received or developed in connection with this Agreement. Without limiting the foregoing, information that was known to Agency before receipt from Client, that is or becomes publicly available through no fault of Agency or that is rightfully received by Agency from a third party without a duty of confidentiality, shall not be Confidential Information for the purposes of this Agreement.
19.2 Each party shall use at least the same degree of care to avoid unauthorised dissemination or publication of the other party’s Confidential Information under this Agreement as it employs with respect to its own information which it does not desire to have disseminated or published. Agency shall limit access to and disclosure of Client’s Confidential Information to Agency’s employees on a “need-to-know” basis only. Each party agrees to take all other necessary steps to ensure compliance with the obligations set forth herein. Any employee of Client or Agency, as applicable, to whom Confidential Information is disclosed shall be informed of this Agreement. Each party agrees to notify the other party promptly and in writing of any circumstances in which such party has knowledge relating to any unauthorised possession, use or knowledge of all or any portion of the other party’s Confidential Information.
19.3 Notwithstanding anything to the contrary in the Agreement, Client acknowledges and agrees that Agency may collect and retain anonymous information about users of Client’s and other third-party web sites and may use data derived from Client’s use and Agency’s performance of the services to compile aggregate statistics, metrics and general trend data for Agency’s internal planning, trending, and media planning purposes, as well as for the enhancement and optimisation of Client’s campaigns and for marketing, promotional, and analytics purposes related to the services under this Agreement. Under no circumstances shall Agency share such data with any third party, including its subsidiaries, even on an anonymous basis, without Client’s express prior written approval. Any use that may be carried out by Client, from time to time, shall be carried out on an anonymous basis and Client will not be identified to any third party in connection therewith and under no circumstances will Agency provide any of Client’s Confidential Information to any other client in connection with such use. Agency agrees that it will not attempt to re-identify any de-identified or anonymous data or otherwise attempt to link any such data to an identifiable individual. To the extent that Agency augments any of its data with other data obtained from third-party sources (e.g., data brokers), it shall only obtain such data from reputable sources recognised in the industry. Any access to, use, or aggregation of data authorised by this Section 19.3 shall at all times be subject to Client’s data privacy and security policies as may be communicated to Agency in writing, if applicable, and Client may, in its sole discretion, deny Agency access to any data Client considers confidential or proprietary in accordance with the provisions laid out in this Section 19.
20. Publicity.
20.1 Each party agrees to submit to the other party all publicity, public relations materials, or statements in which the other party’s name, trade marks, or service marks or those of any of its Affiliates are used, written or displayed, or language is used (in any form including oral responses to questions) from which a party’s name or identity may be inferred or implied, without first obtaining the other party’s written permission to disseminate such publicity, public relations materials, statements, or use of such language. Such permission shall not be withheld or delayed unreasonably. Client and Agency also agree, however, that the other party, or third parties designated by a party, may use without permission or fee any advertising or other marketing materials created during the Term for each party’s archival or historical use or for self-promotion or display in all media without geographic or time limitations, including without limitation, for award show submissions. Both parties agree that such use will be in good taste and will not disparage the other party or its products or services.
20.2 Before, at, or after termination or expiration of this Agreement, each party agrees that it will not publicly criticise or disparage the other party, Services rendered pur
employees of the other party, in any manner and shall respond to inquiries about the potential or actual termination or expiration of all or portions of the Services under the Agreement or the agency-client relationship only in a positive, non-pejorative manner. Notwithstanding the above, either party may bring any action against the other party, in law and/or in equity, and may prosecute such action in the standard manner, without such prosecution constituting a violation of the provisions of this Agreement.
2.
21. Notices. All notices, requests, consents and other communications required or permitted by this Agreement shall be in writing and shall be delivered by hand, first class mail, air courier, fax, e-mail (fax and e-mail to be confirmed by mail or other form of written notice permitted under this paragraph) or sent via registered or certified mail, to the Party for whom intended to the following address, or to such other address as either party, by notice, may specify with respect to its own address:
22. Miscellaneous.
22.1 Governing Law and Jurisdiction. This Agreement and any dispute or claim relating to it or its subject matter, its enforceability or its termination (including non-contractual disputes or claims) is to be governed by and construed in accordance with the law of England and the courts of England have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
22.2 Third Party Rights. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
22.3 Force Majeure. Any delay or failure of a party to perform its obligations will be excused if, and to the extent that, it is caused by an event or occurrence beyond the reasonable control of such party and without its fault or negligence, including, but not limited to acts of God, actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, terrorist actions, natural disasters, wars, sabotage, labour problems (including lockouts, strikes and slowdowns), inability to obtain power, materials, labour equipment or transportation, or court injunction or order; provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the party claiming delay or failure under this paragraph to the other party as soon as possible after the event or occurrence (but in no event more than five (5) business days after the force majeure event begins).
22.4 Non-Solicitation.
(a) For the Term and for a period of six (6) months following termination of this Agreement, Client and its Affiliates shall not recruit or hire employees of Agency without the prior written approval of Agency’s management. Similarly, for the term of this Agreement and for a period of six (6) months following termination of this Agreement, Agency shall not recruit or hire employees of Client without the prior written approval of Client’s management. The foregoing shall not apply to either party’s personnel responding to general employment solicitations that are not directed at either party’s personnel.
(b) For the Term and for a period of twelve (12) months following the termination this Agreement, the Client and its Affiliates shall not, and shall procure that any other supplier acting on behalf of Client or its Affiliates shall not, directly or indirectly engage (or attempt to engage) for the provision of services or employment: (a) Influencers (as such term is defined in Exhibit D) engaged by Agency under this Agreement; (b) Talent (as such term is defined in Exhibit D) engaged by Agency under this Agreement; or (c) any other talent, influencer or personality which is
managed by Agency from time to time; in each case, except with the prior written consent of Agency (not to be unreasonably withheld or delayed).
22.5 Waiver. Waiver by either party of any breach or failure to comply with any provision of this Agreement will not be construed as, nor constitute, a continuing waiver of that provision or a waiver of any other provision of this Agreement.
22.6 Survival. Provisions of this Agreement, the performance of which by either or both parties, or by their sense and context, are intended to survive, will survive the completion, expiration, termination, or cancellation of this Agreement (including, without limitation, Sections 9, 14, 16, 17, and 19).
22.7 Remedies. Each party’s remedies for any breach of this Agreement by the other party may include damages, injunctive relief, specific performance and restitution. Each party acknowledges that any breach or threatened breach of Sections 1 or 19 of this Agreement could cause irreparable injury for which monetary damages may not be an adequate remedy, and, therefore, such party will be entitled to seek injunctive relief (including specific performance).
22.8 Exhibits. Each Exhibit to this Agreement is incorporated into this Agreement by reference and shall be considered an integral part of this Agreement.
22.9 Conflicts. In the event of a conflict between the terms of this Agreement, an SOW, or any Exhibit hereto, the conflict shall be construed in the following precedence: the terms of the Exhibit, the SOW, then this Agreement.
22.10 Assignments. The Client shall not assign this Agreement without the written consent of Agency, provided, however, that either party, without the other party’s consent, shall be free to assign the benefit of this Agreement to an Affiliate.
22.11 Entire Agreement; Amendments. This Agreement, together with all Exhibits, constitutes the entire agreement between the parties regarding the subject matter of this Agreement and will supersede all prior oral or written representations and agreements. This Agreement may not be changed or amended except by written agreement signed by the parties to this Agreement.
22.12 Severability. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions of this Agreement shall remain in force. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
Exhibit A Statement of Work
This Statement of Work (“SOW”) is issued pursuant to the Agency Master Services Agreement (“Agreement”) dated as of [DATE] by and between The Fifth Limited, with registered company number 16360217 and registered address at 2 Stephen Street, London, W1T 1AN (“Agency”) and ______________________ with registered company number ______________________ and registered address at ______________________ (“Client”) and shall be effective as of [DATE] (“SOW Effective Date”) and will remain in effect until [DATE], unless earlier terminated under any applicable provision of the Agreement. Transactions performed under this SOW will be conducted in accordance with and be subject to this SOW, the Agreement, and the applicable Exhibits to the Agreement. Capitalised terms used but not defined in this SOW shall have the meanings set out in the Master Agreement.
1. Name of Project: [INSERT PROJECT NAME]
2. Project Purpose: [Describe overall objective of project]
3. Location of Work: [INSERT]
4. Period of Performance: The Services will be performed during the period from ______ ___, 20__, through ________ ___, 20__
5. Description of Services: The Services to be performed by Agency during the Period of Performance are as follows: [Provide a detailed description of the applicable services]
5.1 Events/Experiential Services:
5.2 Production/Post-Production Services:
5.3 Talent and Influencer Services:
5.4 Creative Services:
6. Schedule of Deliverables: Agency will produce the following Deliverables in accordance with the following schedule: [List specific deliverables, describing what is due and when]
Deliverable Description of Deliverable Estimated Completion Date
1.
2.
3.
7. Agency Point of Contact: [Identify Agency point of contact for the project].
8. Fees and Payment Schedule: The total amount payable by Client for the Services is £_____ and will be billed to Client as follows:
8.1 [INSERT PAYMENT SCHEDULE]
9. Other Terms and Conditions [placeholder] The Client agrees that any materials that the Client instructs the Agency to use in the provision of the Services (including any music or audio not sourced from the commercial library provided by the Agency) shall be considered to be materials provided by the Client to the Agency pursuant to clauses 10 and 16.1(b) of the MSA
Exhibit B Additional Terms and Conditions for Events/Experiential Services
The following additional terms will apply with respect to any Agency provision of events and/or experiential Services to Client pursuant to an SOW:
1. Services. Agency shall perform certain events and experiential services, including strategy, content development, promotions, and influencer sourcing, as more particularly described in an SOW executed by Agency and Client.
2. Agency Duties and Responsibilities. In performing its Services, Agency shall, among other things:
2.1 Generally. If requested by Client, coordinate client-sponsored events, seek and negotiate on Client’s behalf sponsorship of third party events (e.g., concert series, etc.), identify and execute product sampling, all in a professional and good workmanlike manner consistent with industry standards.
2.2 Venues. Contract with venues for events (with Client’s prior approval) and obtain in a timely manner all necessary permits, waivers, releases, registrations, approvals and/or authorisations required in connection with an event, including paying (at Client’s expense and with its prior written approval) any necessary fee.
2.3 Insurance. Confirm or secure (at Client’s expense and with its prior written approval) event insurance.
2.4 Affiliates; Subcontractors. Agency and Agency Personnel will comply, and use commercially reasonable efforts to cause its Affiliates, Subcontractors and any third party authorised or engaged by Agency pursuant to this Agreement or any SOW, to comply with all applicable laws. Without limiting the foregoing, Agency and Agency Personnel’s obligations with respect to Subcontractors shall not apply to Subcontractors engaged by Agency at the requirement of Client (“Preferred Subcontractors”).
Exhibit C Additional Terms and Conditions for Production/Post-Production Services
The following additional terms will apply with respect to any Agency provision of production and post-production Services to Client pursuant to an SOW:
1. Services.
1.1 Client has engaged Agency to perform the Services and produce, complete and deliver the Deliverables set forth herein and in the applicable SOW (collectively, “Services”).
1.2 Unless otherwise agreed to by the parties, Agency will provide Client with a production and post-production schedule for the Deliverables. Client acknowledges and agrees that such schedule reflects Agency’s then-current timing but may be subject to change based on the timing of Services, timing to receive necessary input from Client or Client Property, or other factors that may delay the Deliverables within or beyond Agency’s control. In no event will such a delay be deemed a breach of this Agreement by Agency, and Agency shall not be responsible for any costs associated with such delay, except if such delay is caused by Agency’s gross negligence or willful misconduct.
2. Staffing, Subcontractors, Vendors. Agency reserves the right, in its sole discretion, to engage third-party Subcontractors to provide the Services for Client, pursuant to Section 3 of the Agreement.
3. Network Clearances. Client shall be solely responsible for performing all network clearance activities including, without limitation, submitting any requested permissions, clearances, releases, rights of use or licences in connection with such clearance process. Notwithstanding the foregoing, Agency shall provide upon request any materials it obtained in connection with the Agency’s Services for Client’s submission to the networks for relevant clearances.
Exhibit D Additional Terms and Conditions for Talent and Influencer Services
Influencer Services. The following terms and conditions apply to Services that include the use of Influencers (as defined below):
1. Agency shall take reasonable steps to ensure that all talent, influencers, bloggers, endorsers or other third parties who maintain their own video channels, blogs or social media and who are engaged by Agency to create or distribute content which may relate to Client or its products or services (“Influencers”), comply with all applicable laws, including, but not limited to, those relating to the content of advertisements and/or promotional messages, including the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) and all other relevant codes and guidance (each as updated from time to time) under the general supervision of the Advertising Standards Authority, the Committee of Advertising Practice; the Competition and Markets Authority and/or OFCOM (or equivalents in other relevant jurisdictions; and the terms of service and applicable policies (including applicable privacy policies) of each applicable social media platform(s) (the “Guides”). In the event that Client has internal social media guidelines, Client shall provide such guidelines to Agency for insertion in agreements with Influencers.
2. Notwithstanding the foregoing, failure by an Influencer to comply with applicable laws or Client’s guidelines shall not constitute a breach by Agency of this Agreement; it being understood that Agency’s sole obligation with respect to such compliance is to include such compliance obligations in its agreements with Influencers. For the avoidance of doubt, Agency shall engage Influencers under its own template agreement with materially consistent terms set forth in this Agreement (each an “Influencer Agreement”), unless Client otherwise requires Agency, upon request, to engage Influencers under Client’s template agreement; it being understood that Client shall be solely responsible for any claims arising from or in connection with the use of Client’s template agreement.
3. In the event Client notifies Agency that any Influencer content published or distributed by Influencer in connection with this Agreement violates any applicable laws, Agency shall reach out to such Influencer and request such Influencer remove and/or revise such content.
4. Client shall be responsible for reviewing and monitoring the activities of the Influencers that Agency procures on Client’s behalf and taking all reasonable action to ensure compliance with applicable laws. Client’s monitoring shall include: (a) review of Influencer content for appropriate disclosures regarding the Influencer’s relationship with the brand; (b) review of Influencer content for supportable claims; (c) review of Influencer social media sites/pages for consistency with brand image and strategy; (d) review of Influencer social media sites/pages for compliance with Influencer contracts and applicable laws and applicable terms of service; and (e) addressing problematic Influencer content (e.g., if content lacks disclosures or makes unsupportable claims).
5. Client shall indemnify and hold Agency harmless from any third party claim brought in connection with an Influencer’s services except to the extent such claim relates to Agency’s gross negligence or willful misconduct.
Talent. The following terms and conditions apply to Services that include the hiring of Talent (as defined below):
6. Agency will execute production in a professional manner, hire quality talent, performers, singers, and musicians (collectively, “Talent”), and will pay these individuals according to applicable industry standards. Client acknowledges that Agency is not a signatory to any union collective bargaining agreement, and that the hiring of Talent and the payment of compensation and benefits to such talent will not be subject to union obligations.
7. Client acknowledges and agrees that Agency shall only be liable for the cost of the Talent to the
extent that Agency has been paid by Client for any amount payable to such Talent. For amounts not paid to Agency by Client, Client acknowledges that Talent shall seek payment solely from Client (and not from Agency). In the event Agency has not received payment from Client as of the due date for payment to Talent, then Agency shall provide Client’s contact information to enable Talent or its representative to seek payment directly from the Client.
Exhibit E Additional Terms and Conditions for Creative Services
The following additional terms will apply with respect to any Agency provision of creative Services to Client pursuant to an SOW:
1. Estimates. With respect to any creative job or project, Agency shall include on the estimate for such job or project, an estimate of any travel expenses that may be incurred in connection with such job or project. Agency agrees to submit such estimate to Client for Client’s written approval in accordance with the terms of this Agreement, provided that any estimated travel expenses up to £500.00 shall not require such prior Client approval.
2. Agency Review. Agency will proofread all Materials in their Final Form and will be responsible for correcting any proofreading errors by Agency or to present Client with a plan to remedy such problems that is mutually agreed upon. For the avoidance of doubt, Client acknowledges and agrees that Agency shall only be responsible for correcting grammatical proofreading errors and any other errors or changes in Materials in their Final Form (including, without limitation, errors in Client Property or materials provided by Client) shall be at Client’s expense.
3. Network Clearance. Client shall be solely responsible for performing all network clearance activities including, without limitation, submitting any requested permissions, clearances, releases, rights of use or licences in connection with such clearance process. Notwithstanding the foregoing, Agency shall provide upon request any materials it obtained in connection with the Agency’s Services for Client’s submission to the networks for relevant clearances.
4. Client Property.
4.1. The term “Client Property” as defined in Section 9.4 shall also include:
4.1.1. Talent supplied by Client (for which Client informs Agency that Client or a third party will obtain or has obtained permission or clearance) or with which Client, or another entity on Client’s behalf, has entered into an agreement;
4.1.2. materials provided by any Client third-party promotional partner(s) or other parties designated by Client; and
4.1.3. any product, prop, package/packaging, service, or similar materials provided by Client to Agency.
4.2. Client agrees to indemnify and hold Agency harmless for any third-party claims in connection with the Client Property, including any product liability claims or claims relating to the packaging, distribution, sale, manufacturing, or use of Client’s products or services.