“Affiliate” shall mean an entity, directly or indirectly, Controlling, Controlled by or under common Control with a party.
“The Agency” or “Agency” shall mean Hyped Marketing Ltd (Registered in England no: 10499194) and any successors or assigns.
“Authorised Representatives” means in the case of the Agency, any director, and in the case of the Client, any director, partner or sole proprietor.
“Client Data” means all information collected or developed by (a) Client regarding customers or (b) The Agency regarding Client customers (but only in their capacity as customers), including, under each of the clauses (a) and (b) of this definition, location-based information, phone or other identification numbers issued to customers, electronic serial numbers, IP addresses when associated with individuals, customers’ personalisation information and automatic number identification information, content created, owned or stored by customers.
“Confidential Information” means (a) the Agreement and the discussions, negotiations and proposals related to the Agreement, (b) any information exchanged in connection with the Agreement concerning the other party’s or its Affiliates’ business, including without limitation tangible, intangible, visual, electronic, written, or oral information, whether received directly or indirectly from the other party, its Affiliates or, in the case of Client, from Client’s customers, and (c) in the case of Client, Client Data.
“Damages” means any and all damages, fines, penalties, deficiencies, losses (including diminutions in value), liabilities (including settlements and judgments), costs and expenses (including interest, court costs, fees and expenses of attorneys, accountants, and other experts and professionals or other fees and expenses of litigation, or other proceedings, or of any claim, default, or assessment).
“The Contract” means any agreement for the provision of Services and/or Materials by the Agency to the Client.
“Estimate” means any estimate or revised estimate sent to the Client by the Agency on the Agency’s headed notepaper or by email detailing, inter alia, the description and price of the Materials and/or Services.
“Indemnified Party” means a party seeking indemnification pursuant to Section 11.0.
“Indemnifying Party” means a party obligated to provide indemnification pursuant to Section 11.0.
“Indemnitee” means each party and its Affiliates (including any Affiliate that has been subsequently divested) and their respective directors, officers, agents, employees and customers who may be entitled to indemnification pursuant to Section 11.0.
“Intellectual Property” means patents and all filed, pending or potential applications for patents, trade secrets, copyrights, trademarks, trade names and all other similar rights.
“The Services” means any contracts for the provision of design consultancy services to the Client of whatsoever nature, including the Materials.
“The Sub Contractor” shall mean exhibition display organisers, bureaus, printers and other suppliers engaged by the Agency.
“Materials” shall mean design visuals, disc located digital reproduction/artwork, films, display material, printed items, digital media and all matter analogous to the above.
“Work Product” means all works of authorship ideas, inventions, designs, creations and deliverables prepared or developed for Client or for Client’s Affiliate by, or for, Agency under these terms.
2.1 The Client has 30 days within which to accept the Estimate of the Agency to provide the Services in accordance with these terms. For the avoidance of doubt, the current costs for any Contract shall be the costs indicated on the latest Estimate (by date).
2.2 The Client shall pay the Agency for the Services and the Materials such sums at such times as specified in the Estimate, which shall include any revised charges for changes to the Contract.
2.3 Estimates are based on the Client’s current costs of production and, unless otherwise agreed in writing by the Client, the Agency reserves the right to amend on or at any time after acceptance of an Estimate on giving notice to meet any rise or all in such costs which is due to any factor beyond the Agency’s control.
2.4 Where a Sub Contractor is employed by the Agency, the Agency shall get an estimate from the Sub Contractor and seek the Client’s pre-written approval to the Sub Contractor’s fees.
2.5 The Client may not cancel, rescind or repudiate any Contract which has been accepted by the Agency except with the prior written agreement of the Agency.
2.6 Time for payment for the Services and/or the Materials shall be 14 days from receipt of an invoice. Project work requires 50% payment on instruction and 50% on Go Live.
2.7 The Client shall be deemed to have authorised the Agency to purchase all Materials once any Estimate is accepted in writing by the Client.
2.8 Except as otherwise agreed between the parties, the Materials and/or Services are accepted by the Client on the basis that the price quoted is ex works and is exclusive of any value added tax, special packing materials, carrier charges, delivery, insurance or customs duties, which costs shall be borne directly by the Client.
2.9 The Client shall pay monthly package marketing agreements via Direct Debit. A Direct Debit mandate will be distributed on engagement.
The Agency reserves the right to charge the amount of any Value Added Tax payable whether or not included on the estimate or invoice.
4. Copyright and work product
4.1 Agency will promptly disclose and hereby assigns and agrees to assign to Client all right, title and interest in the Work Product as they arise, including all copyrights, patent rights, mask work rights, trade secret rights, and other intellectual property and proprietary rights in the Work Product to secure intellectual property protection, including assistance in the preparation and filing of any patent applications, copyright registrations, and the execution of all applications, assignments or other instruments for perfection or protection of title.
4.2 Agency retains ownership of its previously developed items. If the Work Product includes previously developed items, Agency grants to Client and its Affiliates a worldwide, unrestricted, fully paid-up, perpetual, irrevocable, transferable license to make, have made, use, market, import, distribute, copy, modify, prepare derivative works of, perform, display, disclose and sublicense such items. This license applies to third parties, including contractors, agents, customers and the public, in connection with the business of Client and its Affiliates.
4.3 At no additional charge, Agency will provide reasonable assistance to Client and Agency will pay Agency Personnel any compensation due in connection with the assignment of any intellectual property or invention. Agency warrants to Client that Agency Personnel are subject to agreements that will secure Client’s rights under this Section.
4.4 Unless otherwise agreed in writing by the parties, the Work Product will not contain any notices or terms that purport to reserve the rights of Agency or third party in the Work Product, that limit use, copying or distribution of, or rights to the Work Product of Client or its Affiliates or that conflict with, supplement or modify any provision of the Agreement. The Work Product will be, and will be designated as, Confidential Information of Client, and, if provided in documentary form, will contain the words “Confidential Information of Client” in the footer of each page.
5. Client’s property
Agency must return to Client property owned or provided by Client that is no longer needed to perform its obligations under the non-terminated portions of the Agreement within 15 days of the termination or expiration of the Agreement, all such owned or provided property possessed or used by an Agency Personnel within 48 hours after that Agency Personnel’s assignment under this Agreement ends for any reason, and at any time upon request by Client. Agency is responsible and must account for all property owned or provided by Client, and bears the risk of loss while the property is in Agency’s possession. Such property may only be used in connection with Agency’s performance of its obligations under the Agreement. Client may inspect any agreements and associated records, including, without limitation, invoices, by which Agency acquires such owned or provided property. Agency acknowledges that it has no implied license to use such owned or provided property other than for the benefit of Client as contemplated under these terms.
Variations to these Terms shall only be permissible if agreed in writing by Authorised Representatives of the parties.
7. Illegal matter
The Agency shall be under no obligation to print any matter which in its opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights or any third party.
8. Liability for loss or damaged goods
Advice of damage, delay or partial loss of goods in transit or of non-delivery must be given in writing to the Agency and the carrier within three clear days of delivery (or, in the case of non-delivery, within 28 days of dispatch of the goods) and any claim in respect thereof must be made in writing to the Agency and the carrier within seven clear days of delivery (or, in the case of non-delivery, within 42 days of dispatch). All other claims must be made in writing to the Agency within 28 days of delivery. The Agency shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except in any particular case where the Client proves that (i) it was not possible to comply with the requirements and (ii) advice (where required) was given and the claim made as soon as reasonably possible.
9. Client’s obligations
The Client undertakes to do the following:
9.1 Give clear and precise instructions and in respect of matters important to the Client, these must be confirmed in writing.
9.2 To pay in full, within 30 days of receipt of an undisputed invoice, each and every invoice or as otherwise detailed in any Estimate; in default, the Agency reserves the right to charge interest from the invoice date at the rate of 2 percent over the base rate, providing there is no dispute between the parties with respect to the invoice content.
9.3 The Client is to adhere to any agreed interim or stage payment billing and payment agreement as agreed between the parties from time to time.
10. Standard terms
The Agency will use reasonable endeavours to comply with the Printing Industry’s Best Practice documents and Codes of Practice provided from time to time and in the event of a conflict between those and these Terms, then these Terms shall prevail.
11. Delivery and payment
11.1 Delivery of work shall be accepted when tendered.
11.2 Unless otherwise specified, the price quoted excludes delivery.
11.3 Should expedited delivery be agreed an extra charge may be made to the Client to cover any overtime or any other additional costs involved.
11.4 Should work be suspended at the request of or delayed through any default of the Client for a period of 30 days the Agency shall immediately upon the expiry of the 30 day period be entitled to payment for work already carried out, materials specially ordered and other additional costs including storage.
11.5 The Client will either pay each invoice in full in cash or cleared funds within 30 days from the date of such invoice or on terms detailed in any relevant Estimate, failing which the Agency shall be entitled to cease all further work on behalf of the Client without liability in respect of any loss or damage sustained by the Client as a result.
11.6 Notwithstanding the Agency’s liability to cease any further work in accordance with clause 11.5 of these Terms, the Client shall not in any respect be released from its obligations to the Agency under any Contract.
All prices quoted are dependent upon sight of relevant instructions, brief, copy, images, artwork and other such materials.
If a timetable is agreed between the parties, the Agency will only be expected to comply with the deadlines if the Client does likewise and in as much as the Client has not delayed or altered the brief in any way.
14. Risk of loss
Risk of loss in the Materials shall pass to the Client on delivery.
15. Variations in quantity
Every endeavour will be made to deliver the correct quantity ordered, but estimates are conditional upon margins of five percent for work in one colour only and 10 per cent for other work being allowed for overs or shortage (4 per cent and 8 per cent respectively for quantities over 50,000) the same to be charged or deducted.
16.1 The Agency will use reasonable endeavours to comply with any date or dates for the supply of the Services and/or the Materials, save that unless the Contract otherwise expressly provides. Accordingly, the time of the supply of the Services or the Materials is of the essence of the Contract.
16.2 If the Agency shall be prevented or hindered from supplying the Services and/ or the Materials or any part thereof by any circumstances beyond its reasonable control (Force Majeure) for any Materials and/or Services deliverable (within the United Kingdom, by close of business on the fiftieth day from the date of acceptance of the Contract and for any Materials and/or Services deliverable outside the United Kingdom, by close of business on the one hundredth day from the date of acceptance of the Contract), performance of the Contract shall be suspended for so long as the Agency is so prevented or hindered PROVIDED THAT if the performance of the Contract shall be suspended for more than one hundred and fifty days the Agency shall be entitled by notice in writing to the Client forthwith to terminate the Contract or cancel any outstanding part thereof and in such circumstances the Client shall pay at the rates specified above for all the Services and/or the Materials supplied and materials used by the Agency to the actual date of such termination and the Agency shall not have any liability to the Client for any direct or consequential loss or damage suffered by the Client as a result of the Agency’s inability to perform its obligations under the Contract in the circumstances mentioned above.
16.3 For the purposes of clause 16.2, Force Majeure shall mean fires, strikes, insurrection or riots, embargoes, or delays in transportation, inability to obtain supplies and raw materials or any other circumstances of any kind whatsoever beyond the reasonable control of the Agency which results in the party being in breach of its obligations under this Agreement.
16.4 Without prejudice to the generality of the foregoing nothing herein contained shall operate to exclude or restrict liability for breach of any obligation arising from the Supply of Goods and Services Act 1982 as against the Client if he is dealing as a consumer as defined by Section 12 of the Unfair Contract Terms Act 1977.
16.5 The Agency makes no representations as to the benefit of the Customer arising out of the provision of the Services and there is neither expressed nor shall there by implied into the Contract any conditions or warranties as to the same.
Neither party may assign its rights or delegate its obligations under this Agreement and any Statement of Work in whole or in part without the other party’s prior written consent. This Agreement is binding on and enforceable by each party’s permitted successors and assignees. Any assignment in violation of this Section is null and void.
Any waiver of any breach of these Terms shall not prejudice the Agency’s rights in respect of any subsequent breach.
19. Dispute resolution
All disputes, differences or questions arising out of these terms of business or as to the rights and liabilities of the parties hereto or as to the construction or interpretation hereof shall be referred to the decision of a single arbitrator to be agreed between the parties or in default of agreement to be appointed at the request of either party by the President for the time being of the Chartered Institute of Arbitrators. The arbitrator shall act as an expert whose decision (including as to costs) shall, expect in the case of manifest error, be final and binding on the parties.
Any notices required to be given to the Client or to the Agency must be given in writing and delivered by hand, by mail, by telex, by facsimile with mail confirmation, at the addresses set out in the main contract (or such other addresses as shall have been notified to the other party in writing). If hand delivered, notices are deemed served upon the day following delivery. If sent by first class mail, notices are deemed served on the second day following posting. If sent by telex, notices are deemed served upon receipt of the sender’s answer back. If sent by facsimile, notices are deemed served upon receipt of the sender’s confirmation provided that such facsimile notice is followed by confirmation by first class mail.
If any part of these terms of business shall be found by any court to be invalid, the invalidity should not affect the remaining conditions and the parties shall attempt to substitute therefore invalid condition having as near the same effect as the invalid condition as shall be legally permissible.
22. Entire agreement
22.1 The terms contain the entire subject matter of the Agreement, and supersedes all prior or contemporaneous agreements, proposals, discussions or correspondence, The Agreement constitutes the entire agreement of the parties as to the whether written or oral.
22.2 The Agreement may not be amended or modified except in writing signed by an authorised representative of each party.
23.1 If the Client ceases to pay his debts in the ordinary course of business or cannot pay his debts as they become due or being a company is deemed to be unable to pay its debts or has a winding-up petition issued against it or being a person commits an act of bankruptcy or has a bankruptcy petition issued against him, the Agency without prejudice to other remedies shall:
23.1.1 have the right not to proceed further with the contract or any other work for the customer and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the customer, such charge to be an immediate debt due to him, and
23.1.2 in respect of all unpaid debts due from the customer have a general lien on all goods and property in possession (whether worked on or not) and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property in such manner and at such price as he thinks fit and to apply the proceeds towards such debts.
These conditions and all other express terms of the contract shall be governed and construed in accordance with the Laws of England. These Terms do not affect your statutory rights.
25. Third party suppliers
The Agency shall not be liable in respect of any act or omission of any third party and any agreement made between the Client and any third party shall be a contract between the Client and the third party and the Agency shall not be a party to that contract, even if the Agency introduced the Client and the Third Party.
26.1 The Agency does not have control over the content of the Client’s website and shall not be liable in relation to any action made relating to inaccurate or incorrect information and shall not be liable in relation to any other action brought in relation to the content of the website.
26.2 Any dispute between the Client and the Party hosting the website will be dealt with in accordance with Clause 25 above.
27. Mutual third party indemnity
Each party will indemnify and defend the other party’s Indemnitees from and against all Damages arising out of a claim by a third party against an Indemnitee resulting from or alleged to have resulted (i) from a breach of any warranty, representation or any other obligation expressly set forth in the Agreement; (ii) from any act or omission by the indemnifying party that results in personal injury, death or damage to real or personal property; (iii) from any failure to pay Agency Personnel compensation or benefits in accordance with applicable from any Service or Deliverable provided by Agency under or related to this Agreement.
28. Infringement Indemnity
The Agency will indemnify and defend Client from and against all Damages arising out of any claim that the Services or Materials or any resulting use of any Services or Materials constitutes an infringement of a third party’s rights in any Intellectual Property.
29. Indemnification Procedures
a) Promptly becoming aware of a claim, the Indemnified Party must give notice to the claim to the Indemnifying Party, accompanied by a copy of any written documentation regarding the claim received by the Indemnifying Party.
b) The Indemnifying Party will, at its option, settle or defend, at its own expense and with its own counsel, the claim. The Indemnified Party will have the right, at its option, to participate in the settlement or defense of the claim, with its own counsel and at its own expense; but the Indemnifying Party will have the right to control the settlement or defense. The Indemnifying Party will not enter into any settlement that imposes any liability or obligation on the Indemnified Party without the Indemnified Party’s prior written consent. The parties will cooperate in the settlement or defense and give each other full access to all relevant information.
c) If the Indemnifying Party fails to (i) notify the Indemnified arty of the Indemnifying Party’s intent to take any action within 30 days after receipt of a notice of a claim or (ii) proceed in good faith with the prompt resolution of the claim, the Indemnified Party, with prior written notice to the Indemnifying Party and without waiving any rights to the indemnification, including reimbursement of reasonable legal fees and legal costs, may defend or settle the claim without the prior written consent of the Indemnified Party. The Indemnifying Party will reimburse the Indemnified Party on demand for all Damages incurred by the Indemnified Party in defending or settling the claim.
d) Neither party is obligated to indemnify and defend the other with respect to a claim (or portions of a claim) if the Indemnified Party fails to promptly notify the Indemnifying Party of the claim and fails to provide reasonable cooperation and information to defend or settle the claim; and if, and only to the extent that, the failure materially prejudices the Indemnifying Party’s ability to satisfactorily defend or settle the claim.
30. Limitation of Damages
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES FOR ANY CUASE OF ACTION WHETHER IN TORT, OR OTHERWISE, EXECEPT;
a) DAMAGES FOR WHICH A PARTY HAS AN OBLIGATION OF INDEMNITY UNDER THIS AGREEMENT
b) ANY GROSSLY NEGLIGENT, WILLFUL OR FRAUDULENT ACT OR OMISSION; OR
c) ANY BREACH OF PROVISIONS RELATED TO MARKS, INDEMNTIY OR CONFIDENTIALITY
d) FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE
e) FOR FRAUD OR FRAUDULENT MISREPRESENTATION
f) FOR ANY OTHER LIABILITY WHICH CANNOT LAWFULLY BE EXCLUDED OR LIMITED
CONSEQUENTIAL DAMAGES INCLUDE BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES AND LOST BUSINESS OPPORTUNITIES, WHETHER THE OTHER PARTY WAS OR SHOULD HAVE BEEN AWARE OF THESE DAMAGES.
Without limiting the liabilities or indemnification obligations of Agency, Agency will, at its own cost and expense, provide and maintain in force during the term of this Agreement, such insurance as required hereunder. The insurance coverage will be from a company, or companies, having an A.M. Best’s rating of A-VII or better or a Standard and Poor’s rating of BBB or higher and a license to do business in each state or country where Agency will perform work under this Agreement. Agency will require its subcontractors who perform Services under this Agreement to maintain proper insurance applicable to the type and scope of the work to be performed. It is expressly understood that Agency is ultimately responsible for its subcontractors, including without limitation ensuring that the appropriate insurance is maintained by its subcontractors.
a) Work Injury and Employers’ Liability Insurance: Work Injury and Employers’ Liability insurance or similar social insurance or government scheme in accordance with applicable laws or regulations in the country where the work will be performed by Agency employees. The United Kingdom (UK) Employers’ Liability insurance limit shall not be less than 10M GBP.
b) Third Party Liability Insurance (Public Liability Insurance): Third Party Liability Insurance (Public Liability Insurance) with limits not less than 3M GBP per occurrence and 5M GBP in the aggregate covering personal injury, bodily injury, property damage, products/completed operations, and independent contractors coverage.
c) Third Party Automobile Liability (including all owned, non-owned and hired vehicles): If vehicles will be used in performance of this Agreement in the UK or the European Union (EU), the limit of Third Party Automobile Liability insurance shall be as required by applicable law.
d) Commercial Crime, Employee Dishonesty Insurance: Agency will provide blanket Commercial Crime covering all loss arising out of or in connection with any fraudulent act, dishonesty, disappearance and destruction, computer theft and funds transfer fraud with limits of not less than 1M GBP each occurrence. This coverage will include 3rd Party or Client Coverage for the benefit of Client.
Policies will be endorsed to provide that Insurers waive subrogation against Client its Affiliates, subsidiaries, and parent, as well as the officers, directors, employees and agents of all such entities for the policies described in subsections Work Injury and Employers’ Liability, Third Party Liability and Third Party Auto Liability unless such endorsement is prohibited by law or regulation.
32. Personnel – required compliance with Client terms
The Client may permit the Agency access to its facilities and facilities of Customers and contractors as necessary or desirable in connection with the Agency Services or delivery of Products under this Agreement. Upon request, the Agency will provide the names, addresses, telephone numbers, job duties, key assignments and any other information regarding Agency Personnel that the Client deems necessary to safeguard its property and operations.
Each party acknowledges that while performing its obligations under the Agreement it may have access to the other party’s Confidential Information. With respect to all the Confidential Information, the parties agree as follows;
a) The receiving party may use the Confidential Information only to exercise its rights and perform its obligations under the Agreement. The receiving party must use the same care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information. In no event will the receiving party fail to use reasonable care to avoid unauthorised use, including disclosure, loss, or alteration of the disclosing party’s Confidential Information. Copies the receiving party makes of Confidential Information must contain the same confidential or proprietary notices or legends as the original.
b) Either party may disclose the other party’s Confidential Information to its respective employees, affiliates, agents, contractors and legal representatives if they have a need to know and an obligation to protect the Confidential Information that is at least as restrictive as the Agreement. The receiving party is responsible for compliance with this Agreement by all persons or entities to which it grants access to Confidential Information, and will advise them of their obligations under this Agreement.
c) Neither party will disclose the other party any confidential information of a third party without such third party’s consent.
d) Upon termination of expiration of this Agreement or upon cessation of work or written request, the receiving party will return or destroy, at its option, all Confidential Information of the disclosing party. The receiving party may retain only such copies as are reasonably required to comply with applicable law and document retention requirements. Such Confidential Information must be maintained subject to the terms of this Agreement. Any destruction will be by shredding or secure erasure using current, commercially-reasonable methods. Upon request of the disclosing party, the receiving party will furnish an officer’s certificate certifying that the disclosing party’s Confidential Information has been returned or destroyed.