Terms & Conditions

General Terms & Conditions of Design Agency Services

1. Definitions & Interpretation

The following terms shall have the corresponding meanings for the purposes of these Conditions, including the Background:

“Accounts” means the Client’s products and services that are the subject of the Services as referred to in a Scope of Work;

“Account Manager” means the person who is assigned by the Agency as its account manager for the provision of the Services as identified in the Subscription Scope of Work;

“Advertising Regulation” means any present or future applicable code of practice or adjudication of the Committee of Advertising Practice, Broadcast Committee of Advertising Practice or the Advertising Standards Authority and includes any applicable modification, extension or replacement thereof in force from time to time, together with other UK laws, statutes and regulations which are directly applicable to the Services;

“Affiliates” meansany company, partnership or other entity which at any time directly or indirectly controls, is controlled by or is under common control with either party including as a subsidiary, parent or holding company;

“Agency Materials” means those Materials specifically created by the Agency for the purposes of the Subscription Services or a Sprint Project by officers, employees or freelancers of the Agency (including any Materials adapted, modified or derived from the Client Materials), but excluding any Agency Proprietary Materials;

“Agency Proprietary Materials” means software (including all programming code in object and source code form), methodology, know-how and processes and Materials in relation to which the Intellectual Property Rights are owned by (or licensed to) the Agency and which are:

in existence prior to the date on which it is intended to use them in the provision of the Services; or
created by or for the Agency outside of the provision of the Services and which are intended to be reused across its business;

“Annual Subscription Term” means a period of 12 (twelve months) from the Effective Date, and each period of 12 (twelve) months thereafter, unless otherwise terminated in accordance with these Conditions;

“approval” means approval given in accordance with clause 10.1;

“Associates” means a party’s employees, officers, agents, sub-contractors or authorised representatives;

“Authorised Agency Approver” means those personnel of the Agency specified in the applicable Scope of Work who have the authority to contractually bind the Agency in all matters relating to these Conditions (and any successor notified to the Client);

“Authorised Client Approver” means those personnel of the Client specified in the applicable Scope of Work who have the authority to contractually bind the Client in all matters relating to these Conditions (and any successor notified to the Agency);

“Business Day“ means any day other than a Saturday, Sunday or public holiday in the UK;

“Client’s Brand Guidelines” the Client’s guidelines for the use of the Client Materials, as they may be amended by the Client from time to time and notified to the Agency in writing;

“Client Materials” means any Data, client equipment, computer systems, software, documents, copy, Intellectual Property Rights, artwork, logos and any other materials or information owned by or licensed to the Client which are provided to the Agency and/or its Associates by or on behalf of the Client;

“Conditions” means these general terms and conditions of supply of services;

“Data” means the Client’s computer data (in machine readable form);

“Deliverables” means the advertising, creative and other materials which are to be provided by the Agency as specified in a Scope of Work, including Agency Materials, Third Party Materials and Agency Proprietary Materials where applicable;

“Effective Date” as set out in the Special Conditions or Sprint SoW;

“Expenses” means reasonable travelling, hotel, subsistence and other expenses incurred by the Agency in connection with the supply of Services and Deliverables, provided that such expenses have either received the Client’s prior written approval or where applicable are in accordance with any expenses policies which have been supplied to the Agency and set out in the applicable agreed Scope of Work;

“Fees” means if applicable, the Subscription Fees and, if applicable, the Sprint Project Fees;

“Good Industry Practice” means using the standards practices and methods and exercising all due care, skill, diligence, prudence, foresight and judgment which would be expected from a skilled, competent, qualified and experienced person engaged in a similar undertaking under similar circumstances.

“Independent Auditor” means a suitably qualified and independent auditor;

“Intellectual Property Rights” means any patents or patent applications; any trade marks (whether or not registered); inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; copyright or design rights (whether registered or unregistered); database rights; performer’s property rights as described in Part II, Chapter X of the Copyright Designs and Patents Act 1988 and any similar rights of performers anywhere in the world; any goodwill in any trade or service name, trading style or get-up; and any and all other intellectual or proprietary rights. wherever in the world enforceable, including all reversions and renewals and all applications for registration:

“Losses” means losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses (including reasonable legal and other professional expenses), subject to clause 18.1 and 18.3;

“Materials” means any artwork, copy, models, designs, photographs, commercial, feature film, character, music, voice over, sound recording, performance, book, painting, logo, or any other material protected by Intellectual Property Rights;

“Moral Rights” means all rights described in Part I, Chapter IV of the Copyright Designs and Patents act 1988 and any similar rights of authors anywhere in the world;

“Payment Date” means the date for the monthly payment of the Subscription Fees as set out in the Special Conditions;

“Records” means such accounts and records maintained by the Agency of all expenditure which is reimbursable by the Client under these Conditions and as are reasonably necessary for the purpose of enabling the Client to conduct an audit of that expenditure;

“Scope of Work” mean the Subscription Scope of Work and/or Sprint SoW;

“Services” means the services to be supplied by the Agency under these Conditions as set out in the relevant Scope of Work, which includes the provision of Deliverables;

“Special Conditions” means the special conditions in relation to the supply of the Services as agreed between the parties to which these Conditions are attached;

“Sprint Commencement Date” means the commencement date of each Sprint Project as set out in the corresponding Sprint SoW;

“Sprint Completion Date” means the date by which each Sprint Project is to be completed, as set out in the corresponding Sprint SoW;

“Sprint Project” means a one off project agreed between the parties from time to time under which the Agency is to provide the Services to the Client, that is provided outside a Subscription Scope of Work, as more fully described in these Conditions and the applicable Sprint SoW;

“Sprint Project Fee” means the Agency fees for a Sprint Project as set out in the applicable Sprint SoW;

“Sprint Project Notice Period” means the period of notice for cancellation of a Sprint Project as set out in the Sprint SoW;

“Sprint SoW” means a scope of work for a Sprint Project agreed by the parties in writing from time to time as provided to the Client from the Agency’s online system, containing, without limitation, the details of the Sprint Project, fees, deliverables; payment terms; project start date and timescales;

“Sprint Project Term” means the period during which the Services for each Sprint Project will be provided as specified in the applicable Sprint SoW;

“Subscription Fees” means the Agency fees for the Services to be provided under the Subscription Scope of Work as set out in Appendix 2 to the Special Conditions, as may be amended by the parties from time to time in accordance with these Conditions and/or the Special Conditions;

“Subscription Scope of Work” means the outsourced design service to be provided in respect of the Subscription Fee by the Agency, as detailed in Appendix 1 to the Special Conditions and as may be amended by the parties from time to time in writing;

“Subscription Services” means the services being provided by the Agency to the Client under the Subscription Scope of Work;

“Subscription Term” means the period during which the Subscription Services will be provided by the Agency to the Client as set out in the Special Conditions;

“Term” means the duration of these Conditions as more particularly described in clause 4.1;

“Territory” means the United Kingdom, unless expressly specified otherwise in the applicable Scope of Work. Publication and marketing on globally accessible mediums such as the internet shall not mean that the Territory is deemed to be world-wide;

“Third Party Costs” has the meaning set out in clause 13.1;

“Third Party Materials” means those Materials which are either commissioned by the Agency from third parties during the Term and incorporated into the Deliverables, or which have been created by a third party and which are in existence at the time it is desired to make use of them for inclusion in the Deliverables, but which excludes software which is owned or licensed by a third party;

“Year” means a twelve month period commencing on the Effective Date and each anniversary of the Effective Date during the Term.

Unless the context otherwise requires:
1. a person includes a legal person (such as a limited company) as well as a natural person;
2. the words “include” and “including” shall be construed without limitation; and
3. any reference to an enactment of legislation includes any subordinate legislation made from time to time under it and is to be construed as references to that enactment as from time to time amended or modified or any enactment replacing it.
The headings in these Conditions are for ease of reference only and shall be disregarded in construing or interpreting these Conditions.
Reference to a clause or Schedule shall be to a clause of or Schedule to these Conditions.

2. Application of Terms

These Conditions are a framework agreement under which the Client may request the Agency to provide and the Agency shall provide, the Services. The specific details of any Sprint Projects, Sprint Project Plans and Deliverables to be provided shall be separately negotiated and agreed in writing between the parties from time to time in a Statement of Work.
Except in relation to any Special Conditions, these Conditions are the only terms and conditions upon which the Agency is prepared to deal with the Client and they shall govern all dealings with the Client to the entire exclusion of all other terms or conditions contained or referred to in any correspondence or documentation submitted by the Client or elsewhere or implied by custom, practice or course of dealing.
In the event of any conflict between these Conditions and the Special Conditions, the Special Conditions shall prevail.
The Client waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Client that is inconsistent with these Conditions and the Special Conditions.

3. Appointment & Scopes of Work

During the Term, the Agency shall perform the Services and (where relevant) shall supply the Deliverables to the Client in the Territory in accordance with the Subscription Scope of Work and/or any Sprint SoW (if applicable) which are agreed between the parties from time to time in writing.
The parties may agree Sprint Projects from time to time in writing. Once a Sprint SoW has the signature of both the Authorised Agency Approver and Authorised Client Approver, such Sprint SoW shall automatically form part of these Conditions.
The Agency shall appoint the Account Manager to liaise with and work with the Client on the provision of the Services.
These Conditions shall apply to the Subscription Services and/or services provided under a Sprint SoW.

4. Term

These Conditions shall commence on the Effective Date and in relation to the Subscription Services, shall continue for the Subscription Term, unless terminated earlier in accordance with these Conditions.
At the end of the Subscription Term:
1. in the event the Subscription Term is 3 (three) months, these Conditions shall terminate; or
2. in the event that the Annual Subscription Term applies, these Conditions shall continue for a further period of 12 (twelve) months, unless terminated by either party on at least 1 (one) month’s written notice to expire at the end of any Annual Subscription Term.
Where the parties agree Sprint Projects, each such Sprint Project shall commence on the Sprint Project Commencement Date and shall continue until the Sprint Project Completion Date, subject to earlier termination in accordance with the terms of clause 23.

5. Client’s Obligations

The Client will give the Agency instructions as to its requirements for the Services and Deliverables to be included in a Scope of Work, including full details of the dates by which each stage of the proposed Services and Deliverables are to commence and finish.
In relation to the provision of Services under the Subscription Scope of Work, the Account Manager shall work with the Client on delivering one Deliverable at a time in agreed order of priority and unless otherwise agreed, multiple workstreams shall not be undertaken at any one time.
The Client will supply to the Agency (at no charge) any Client Materials reasonably required by the Agency or otherwise necessary to provide the Services and Deliverables and shall ensure that it has all rights and licences in place to enable use by the Agency of all Client Materials.
If the Client does not fulfil its obligations under or in connection with these Conditions (including its payment obligations), then to the extent that such failure prevents the Agency from performing any Services and/or providing any Deliverables in accordance with these Conditions, the Agency will be relieved of its obligations to the Client, and the Agency shall not be liable for any Losses incurred by the Client as a result of any such failure.

6. Service Delivery

The Agency shall:
1. apply such time, attention, and reasonable skill and care as may be necessary or appropriate for its proper performance of the Services and provision of the Deliverables;
2. comply with all lawful and reasonable directions regarding the Services and Deliverables communicated to it from time to time by the Client (provided such directions do not materially deviate from or add to the Scope of Work and any such material amendment must be agreed in accordance with clause 9 and clause 10);
3. keep Client Materials reasonably safe and secure while they are in the possession or control of the Agency; and
4. use its reasonable endeavours to deliver all Deliverables by the dates set out in the applicable Scope of Work or any other delivery date(s) agreed by the parties in writing.
If at any time the Agency becomes aware that it may not be able to perform the Services or deliver any Deliverables by any date set out in the applicable Scope of Work (or any other deadline agreed by the parties in writing), the Agency will notify the Client and give details of the reasons for the delay.

7. Other Appointments

The relationship between the parties is non-exclusive and the Client shall therefore be entitled to appoint any other agency to perform services and deliver deliverables which are the same or similar to the Services or Deliverables.

8. Personnel

The Agency will allocate suitable personnel with appropriate levels of experience and seniority to provide the Services and to be Account Manager. The Client acknowledges and agrees that it may be necessary for the Agency to replace the personnel providing the Services with alternative personnel with similar levels of seniority and experience from time to time.
The Agency is, and shall remain throughout the Term, the employer of all individuals who may work for the Agency in providing the Services, and the Agency shall be solely responsible for the remuneration, insurance and other obligations in respect of all these individuals. With effect from the date of any individual’s engagement in the provision of the Services, the Agency shall be in compliance with all applicable legislation, including any social security rules and regulations. If the Client is deemed liable for any taxes, social security charges or payments for pensions or for any other payments or claims or demands whatsoever relating to individuals working for the Agency and providing the Services, the Agency will fully indemnify and hold the Client harmless (on an after-tax basis) in respect of any and all of these claims and demands.

9. Amendments and Cancellations

In the event that either party wishes to make any material amendment to the Subscription Scope of Work, any such amendment shall be subject to these Conditions of both parties in writing.
If either party wishes to make any material amendment to a Sprint SoW, any such amendment shall be subject to these Conditions of both parties in writing.
Pending approval (in accordance with clause 10) of any amendments to the Subscription Scope of Work or Sprint SoW, the Agency shall (unless otherwise agreed) continue to perform and be paid for the Services as if such change had not been requested.
Subject to clause 9.5 and 23.1, the Client may request, in writing, the Agency to cancel any Sprint Project or part thereof, including any plans, schedules or work in progress in respect of any Sprint Project. The Agency will take all reasonable steps to comply with any such request provided that the Agency is able to do so within its contractual obligations to suppliers.
In the event of cancellation of a Sprint Project or part thereof, including any and all plans or work in progress, by the Client, the Client shall pay the Sprint Fees for any work undertaken by the Agency on the relevant Sprint Project up to that date of termination of that Sprint Project, on a time and materials basis. together with any third party charges or other expenses or costs reasonably incurred by the Agency or to which the Agency is committed as well as any charges or other expenses or costs imposed on the Agency by third parties arising from the cancellation.

10. Approvals and Authority

For the purposes of these Conditions, any reference to “approval” to be given by the Client shall mean the Client giving approval by one of the following methods:
1. the Client issuing a purchase order bearing the signature of an Authorised Client Approver; or
2. e-mail from the individual business e-mail address of an Authorised Client Approver; or
3. the signature of an Authorised Client Approver on the Agency’s documentation.
For the purposes of these Conditions, any reference to “approval” to be given by the Agency shall mean the Agency giving approval by one of the following methods:
1. e-mail from the individual business e-mail address of an Authorised Agency Approver; or
2. the signature of an Authorised Agency Approver on the Client’s documentation.
Where a party is asked to give approval under or in connection with these Conditions, such approval shall not be unreasonably withheld or delayed.
The Agency will seek the Client’s prior approval of:
1. any estimates or quotations for any third party costs to be paid by the Client; and
2. any creative treatments, including design, artwork, proposed marketing activity;

and the Client’s approval of such estimates and creative treatments will be the Agency’s authority to enter into contracts with relevant third parties and to prepare draft Deliverables.

The Agency will seek the Client’s prior approval of any draft Deliverables and such approval will be the Agency’s authority to proceed with the use of the relevant Deliverables.
In the event that the Client does not approve of any matter requiring approval it shall notify the Agency of its reasons for disapproval within 10 Business Days of the Agency’s request. If the Client does not notify the Agency of its disapproval in accordance with this clause 10.6, it shall be deemed approved.
In the event of any delay or failure of the Authorised Client Approver giving approvals (or disapprovals) requested under or in connection with these Conditions, the Agency will not be liable for any resulting delays or adverse impact caused to the delivery of the Deliverables.

11. Relationship Management

During the Term, the Account Manager shall work closely with the Authorised Client Approver to enable each party to review the status and provision of the Services and the Deliverables under the Subscription Scope of Work, work in progress and order of work being undertaken, and to seek to resolve any issues that have arisen. Any resulting changes to any such Services, Deliverables or any other aspect of these Conditions shall be agreed in writing in accordance with and subject to clauses 9.1 and 9.2.

12. Fees

The Agency will invoice the Client in respect of all Fees, Expenses and Third Party Costs.
For the avoidance of doubt, the Fees are payable in addition to all payments for Expenses and Third Party Costs.
In consideration of the Agency providing the Services set out in the Subscription Scope of Work and any Sprint SoW, the Client shall pay the Agency:
1. the Subscription Fee monthly in advance by direct debit to the Agency’s bank account on the Payment Date; and
2. the Sprint Project Fees which shall be payable in accordance with clause 12.5.

The Subscription Scope of Work contains all costs that the Subscription Fee includes. Any other costs shall be payable in addition.

The Subscription Fee is fixed for a Subscription Term and will not be increased or decreased during a Subscription Term, unless the parties agree in writing to amend the Subscription Scope of Work in accordance with clause 9, or as is otherwise stated in the Special Conditions. The Client shall sign the direct debit mandate provided to the Client by the Agency to set up the payments due for the Subscription Fee. The Subscription Fee is payable for the whole Subscription Term. In the event that the Client seeks to terminate these Conditions prior to the end of the Subscription Term, it shall immediately pay 50% all Subscription Fees due for the remainder of the Subscription Term, as set out in clause 23.2.
The Sprint Project Fees, Expenses and Third Party Costs will be invoiced in accordance with the payment terms set out in the applicable Scope of Work and shall be payable (subject to clause 13.4) within thirty (30) days of the date of the relevant invoice, or such other reasonable period as the parties may agree in the applicable Scope of Work.
The Client shall provide to the Agency one purchase order for the total Subscription Fee due for a Subscription Term. The Agency shall then provide monthly invoices to the Client to the address stated in the purchase order provided before the monthly Payment Date, quoting the relevant purchase order number.
All sums stated in these Conditions or in any Scope of Work exclude VAT and any other applicable sales tax (unless otherwise stated) which shall also be payable by the Client at the rate prevailing from time to time.
In the event that the Client fails to make any payment in full when due to the Agency under these Conditions, then without prejudice to its other rights and remedies under or in connection with these Conditions or otherwise in law, the Agency shall be entitled to charge the Client interest on such overdue sum at the rate of 4% above the base rate of Bank of England in force from time to time calculated from the due date up to the date of payment.
Each party shall pay all monies which are payable by it to the other without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party.

13. Third Party Services & Costs

The Agency will invoice the Client in respect of all third party costs incurred by the Agency on behalf of the Client in performing the Services, subject to the Client approving all such costs in advance in writing, including:
1. third party production work required to produce the Deliverables including illustrations, artwork, photography, model fees, recordings, the services of performers, animation, print and post production work and other content; and
2. all costs incurred in taking legal or other advice or searches and enquiries, as agreed between the parties from time to time

(collectively defined as “Third Party Costs”).

The Agency will advise the Client promptly of any changes in the estimated cost of items of Deliverables.
The actual cost to the Agency of Third Party Costs in respect of materials or services purchased overseas for the Deliverables may be more or less than the cost anticipated at the date when the Agency ordered the relevant materials or services (or obtained the Client’s approval for such Third Party Costs) as a result of fluctuations in the rate of currency exchange. If so, the Agency will charge the Client at the rate of currency exchange in operation on the date the Agency pays for the relevant Third Party Costs, which shall be deemed to be the closing mid-point rate in London for that day as subsequently quoted in the next published edition of The Financial Times.
In the event that any Third Party Costs require payment in advance or sooner than the payment terms set out in clause 12.5, the Agency will notify the Client as soon as reasonably practicable in advance and the Client shall pay such costs within the period set out in the relevant invoice.

14. Third Party Suppliers: Business Terms & Selection

The Agency shall provide the Client with a copy of any relevant Third Party Contract if requested to do so and if authorised by the relevant third party.
The Agency shall use reasonable care and skill in the selection and appointment of suppliers. Should the Client request, the Agency will obtain more than one quote for a particular supply and discuss these with the Client before placing an order.

15. Confidentiality

Each of the parties acknowledges that, whether by virtue of and in the course of these Conditions or otherwise, it may receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential.
Confidential Information shall exclude information which:
1. at the time of receipt by the recipient is in the public domain;
2. subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
3. is lawfully received by the recipient from a third party on an unrestricted basis; and/or
4. is already known to the recipient before receipt hereunder.
Each of the parties undertake to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure. Neither party shall at any time, whether during the Term or at any time thereafter, without the prior written approval of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with these Conditions.
Each of the parties undertakes to disclose the other party’s Confidential Information only to those of its Associates to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under these Conditions.
Neither party shall be in breach of this clause 15 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
The terms of and obligations imposed by this Clause 15 shall survive the termination of these Conditions for any reason.

16. Agency Warranties

The Agency warrants that:
1. it has full power and authority to enter into these Conditions and that by doing so it will not be in breach of any obligation to a third party;
2. the personnel who perform the Services are and shall be competent and suitable, whether as to qualifications, experience or otherwise, to provide the Services and the Services supplied shall be provided in a professional manner and in accordance with Good Industry Practice;
3. subject to clause 16.4, the use of the Deliverables by the Client in accordance with these Conditions and for the purposes set out in the Scope of Work will not infringe the copyright of any third party; and
4. the Deliverables shall not knowingly be defamatory, libellous, of otherwise offensive.
Subject to clause 18, the Agency hereby indemnifies the Client against any Losses incurred by the Client as a result of breach by the Agency of its warranty in clause 16.1(c).
All warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise are hereby excluded to the fullest extent permitted by law, including any condition of satisfactory quality or fitness for a particular purpose.
The Client releases the Agency from any liability under or in connection with these Conditions and hereby indemnifies the Agency against any Losses incurred by the Agency to the extent that such Losses arise as a result of the incorporation of Client Materials into the Deliverables, infringing any third party Intellectual Property Rights

17. Client Warranties

The Client warrants that:
1. it has full power and authority to enter into these Conditions and that by doing so it will not be in breach of any obligation to a third party;
2. the Client Materials will not, when used in accordance with these Conditions and any written instructions given by the Client, infringe third party copyright;
3. the Client Materials will comply with all applicable laws and regulations including all Advertising Regulations; and
4. the Client Materials are accurate and complete in all material respects.

18. Liability

Subject to clause 18.2, and excluding in relation to any indemnity given under these Conditions, the Agency’s maximum aggregate liability under or in connection with these Conditions (including all Scopes of Work and any indemnity contained in these Conditions), whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the Fees received by it under these Conditions.
Nothing in these Conditions shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.
Subject to clause 18.2 (and including for the avoidance of doubt any indemnity contained in these Conditions), in no event will either party be liable under or in connection with these Conditions for:
1. loss of actual or anticipated income or profits;
2. loss of goodwill or reputation;
3. loss of anticipated savings; or
4. any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
Where one party (“Indemnifying Party“) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under these Conditions, such indemnity is subject to the Indemnified Party complying with the following process in the event that a third party claim arises:
1. the Indemnified Party must promptly notify the Indemnifying Party in writing of such claim;
2. the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party;
3. the Indemnified Party must give the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence of the claim;
4. the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such claim as the Indemnifying Party may reasonably require at the Indemnifying Party’s cost and expense; and
5. if within ninety (90) days after the Indemnifying Party’s receipt of notice of any such claim, the Indemnifying Party fails to take action to defend or settle such claim, the Indemnified Party may at the Indemnifying Party’s expense undertake the defence, compromise or settlement of the claim as it sees fit.

19. Insurance

The Agency shall take out and maintain insurance policies to the value sufficient to meet its liabilities under or in connection with these Conditions. Upon the Client’s reasonable request the Agency will provide the Client with evidence that such insurance is in place.

20. Intellectual Property Rights

The Agency acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services and Deliverables) shall remain vested in the Client or its licensors. The Client hereby grants to the Agency a non-exclusive licence during the Term to use the Client Materials solely for the purposes of providing the Services and Deliverables. All use of the Client Materials shall be in accordance with the Client’s Brand Guidelines.
The Agency hereby assigns, subject to the payment of all Fees under these Conditions (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in the Agency Materials which are capable of being assigned together with the right to sue for infringement of the Intellectual Property Rights in the Agency Materials.
The Client acknowledges that all Intellectual Property Rights in the Agency Proprietary Materials shall be owned by and remain the property of and vested in the Agency. The Agency hereby grants to the Client a licence to use such Agency Proprietary Materials as are included in the Deliverables, in the Territory, for the period of time and for the purposes set out in the Scope of Work.
Prior to delivery of the Deliverables, the Agency shall obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Materials for the purposes set out in the Scope of Work. The Agency shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Materials.
The Agency agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the Deliverables, and shall not do or fail to do any act which would or might prejudice the Client’s rights under this clause 20.
To the extent permitted by law, the Agency shall ensure that all Moral Rights in the Agency Material included in the Deliverables are waived (or where not lawfully possible to waive Moral Rights, the Agency agrees not to assert any Moral Rights in respect of the Agency Materials).
For the avoidance of doubt, the Agency shall not be liable under or in connection with these Conditions for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client and/or its Associates.
The terms of and obligations imposed by this clause 20 shall survive the termination of these Conditions for any reason.

21. Audit

The Agency shall maintain Records in respect of all expenditure that is reimbursable by the Client under these Conditions.
The Agency will allow the Client by its own personnel or by an Independent Auditor access to all the Records during the Term and for twelve (12) months afterwards provided:
1. Records do not include confidential financial, payroll, personnel or other confidential records of the Agency that do not relate directly to the Client;
2. the purpose of such an audit of Records is solely for the purpose of auditing the Agency’s compliance with these Conditions and not for the purpose of fee negotiation or the collation by any means of planning information;
3. the Client and the Agency shall meet together and if relevant with the Independent Auditor not less than three (3) Business Days prior to the commencement of any audit and will agree the scope of the audit;
4. any such access for the purposes of auditing or otherwise inspecting the Records shall be on not less than fourteen (14) days written notice at any time during normal business hours provided that, in the absence of exceptional circumstances, the Agency shall not be obliged to allow such access or inspection more than once during any twelve (12) month period unless the Client has reasonable grounds to suspect that fraudulent activity has occurred; and
5. all audit costs will be borne by the Client.
Should any audit or inspection of the Records by the Client reveal that the Client has been overcharged, the Agency shall reimburse to the Client the amount of the overcharge within fourteen (14) days.
The Agency will afford to the Client all reasonable assistance in the carrying out of such audit. The Client will procure that its personnel and the Independent Auditor keep any information obtained in the course of the audit concerning the Agency’s business in the strictest confidence and the Client will procure that such information is not used for any purpose other than the proper conduct of the audit.

22. Advertising Standards

Both parties acknowledge that they have a responsibility to comply with all Advertising Regulations.
The parties will co-operate with each other in ensuring that suitable objective factual product and other information is available as required to satisfy the requirements of any applicable Advertising Regulation.

23. Termination

The Client may terminate or cancel a Sprint Project, in writing, subject to clause 9 and payment of all Third Party Costs and Sprint Project Fees as referred to in clause 9 at any time.
The Client may immediately terminate an Annual Subscription Term at any time by providing a notice to terminate in writing, subject always to the payment by it to the Agency of 50% of the Subscription Fees due for the remainder of the Annual Subscription Term (“Termination Payment”), beginning on the Effective Termination Date. Termination is effective on the date the Termination Payment is received by the Agency (“Effective Termination Date”) Up to the Effective Termination Date the full Subscription Fee is payable.
Any Third Party Costs incurred by the Agency shall be reimbursed by the Client or any other expenses or costs reasonably incurred by the Agency or to which the Agency is committed as well as any charges or other expenses or costs imposed on the Agency by third parties arising from the cancellation. Payment shall be made by the Client to the Agency within 30 days of the date of the invoice, setting out the sums due.
Either party may terminate these Conditions or any Sprint Project immediately upon written notice to the other party:
1. under clause 26.4; or
2. in the event of any material breach of these Conditions by the other party which breach is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the party not in default of a written notice on the defaulting party, specifying the nature of the breach and requiring such breach to be remedied; or
3. if the other party suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
4. if the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal or enters into any compromise or arrangement with its creditors (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or
5. if a petition is filed, or a notice is given, or a resolution is passed or an order is made for or in connection with the winding up of that other party (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or
6. if an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party.

24. Consequences of Termination

Termination of a Sprint Project by either party, where more than one Sprint Project is being undertaken for the Client, or the Sprint Project is additional to Subscription Services being provided by the Agency, shall not serve to terminate these Conditions which shall continue in full force and effect.
Upon termination of these Conditions under Clause 23.4 all outstanding Sprint Projects shall also be terminated.
Upon termination of these Conditions or a Sprint Project for any reason each party shall on the reasonable request of the other party promptly deliver or dispose of any and all materials and property belonging or relating to the other party (including all Confidential Information) and all copies of the same, which are then in its possession, custody or control and which relate to all affected projects, and shall on the request of the other party certify in writing that the same has been done.
Provisions of these Conditions which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination shall remain in full force and effect notwithstanding termination of these Conditions. Notwithstanding the generality of the foregoing, the following clauses shall survive termination of these Conditions:
1. Clause 15 (Confidentiality);
2. Clause 16 (Agency warranties);
3. Clause 17 (Client warranties);
4. Clause 18 (Liability);
5. Clause 19 (Insurance);
6. Clause 20 (Intellectual Property Rights);
7. Clause 21 (Audit)
8. Clause 24 (Consequences of Termination);
9. Clause 25 (Non-Solicitation);
10. Clause 27 (Notices);
11. Clause 29 (TUPE);
12. Clause 33 (General); and
13. Clause 34 (Governing law and jurisdiction).

25. Non-Solicitation

During the Term and for a further period of 12 months after its termination, neither party shall (except with the prior written approval of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party either in the provision or receipt of any Services or Deliverables, other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.

26. Force Majeure

Neither party shall be liable for any delay in performing or failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any act, event, non-happening, omission or accident beyond its reasonable control (a “Force Majeure Event”).
Force Majeure Events shall include but not be limited to the following events affecting either party or its Associates:
1. strikes, lock-outs or other industrial action (other than strikes, lock-outs or other industrial action of any Associates of the party seeking to rely on the Force Majeure Event);
2. civil commotion, riot, invasion, war (whether declared or not), terrorism, or threat of or preparation for war or terrorist attack;
3. fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster; and/or
4. compliance with any law or governmental order, rule, regulation or direction.
The party whose performance is affected by a Force Majeure Event shall, as soon as reasonably practicable after becoming aware of the Force Majeure Event, provide a written notice to the other party, giving details of the Force Majeure Event, its likely duration and the manner and extent to which its obligations are likely to be prevented or delayed.
If any Force Majeure Event occurs, the date(s) for performance of the affected obligation(s) shall be postponed for so long as is made necessary by the Force Majeure Event, provided that if any Force Majeure Event continues for a period of or exceeding two (2) months, the non-affected party shall have the right to terminate these Conditions immediately on written notice to the affected party. Each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.

27. Notices

A notice given to a party under or in connection with these Conditions shall be in writing and sent to the party at the address given in these Conditions or as otherwise notified in writing to the other party, and addressed to the Authorised Client Approver and Authorised Agency.
The following table sets out methods by which a notice may be sent and, if sent by that method, the corresponding deemed delivery date and time:

Delivery method	Deemed delivery date and time
Delivery by hand.	On signature of a delivery receipt.
Pre-paid first class recorded delivery post or other next working day delivery service providing proof of postage.	9.00 am on the second Business Day after posting.
E-mail	On receipt.

For the purpose of this clause and calculating deemed receipt all references to time are to local time in the place of deemed receipt.
This clause does not apply to the service of any proceedings or other documents in any legal action or other method of dispute resolution.
A notice given under these Conditions is not valid if sent by fax.

28. Assignment and Sub-Contracting

The Agency shall be entitled to sub-contract its performance of the Services and/or Deliverables provided that any sub-contracting shall not relieve the Agency from its obligations to the Client under these Conditions
Neither party may assign, transfer or charge or otherwise dispose of these Conditions or any of its rights or obligations arising hereunder without the prior written approval of the other party.

29. TUPE

For the purposes of this clause 29 the following terms shall have the following meaning:
1. “Agency Employee” means any employee of the Agency who transfers or would transfer to the Client or Successor Agency by virtue of TUPE;
2. “Successor Agency” means any alternative agency appointed by the Client to perform services substantially similar to the Services following termination of these Conditions;
3. “Transferring Employee” means any employee of the Client or the Outgoing Agency who transfers or would transfer to the Agency by virtue of TUPE;
4. “TUPE” means the Transfer of Undertakings (Protection of Employment) Regulations 2006.
In the event that TUPE applies on the termination of these Conditions such that the contracts of employment of any Agency Employees have effect as if originally made between such employees and the Client or Successor Agency, the Agency hereby indemnifies and keeps indemnified the Client and Successor Agency from and against all Losses whenever or howsoever arising, directly or indirectly, in connection with or as a result of any claim or demand (whether tortious, contractual, statutory or otherwise):
1. by any Agency Employee arising out of his/her employment or its termination by the Agency or any other act or omission of the Agency occurring between the Effective Date and the termination of these Conditions and for which the Client or any Successor Agency is liable by reason of the operation of TUPE;
2. by any Employee of the Agency arising from or connected with any failure by the Agency to comply with its obligations to inform and (if applicable) consult with the appropriate representatives of such employees pursuant to Regulation 13 of TUPE, except to the extent that any such failure arises either wholly or partly as a result of any act or omission of the Client or the Successor Agency to provide the Agency in good time with the information necessary for it to comply with Regulation 13(2)(d) of TUPE;
The Client hereby indemnifies and keeps indemnified the Agency from and against all Losses which the Agency incurs after the termination or expiry of these Conditions arising from any act or omission of the Client or any Successor Agency in relation to any of the Agency Employees.

30. Third Party Rights

A person who is not a party to these Conditions has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions.

31. Data Protection

For the purposes of this clause 31 the following terms shall have the following meaning:

“Client Personal Data”

shall mean client personal data:

supplied to the Agency by or on behalf of the Client; and/or
obtained by, or created by, the Agency on behalf of the Client in the course of delivery of Services,

and in each case where such client personal data is processed by the Agency for and on behalf of the Client in the performance of Services;

“Data Privacy Laws”

shall mean the following, as amended, extended, re-enacted or replaced from time to time:

UK Data Protection Act 2018 and the UK GDPR;
EC Regulation 2016/679 (the “GDPR”) on the protection of natural persons with regard to the processing of Client Personal Data and on the free movement of such data;
EC Directive 2002/58/EC on Privacy and Electronic Communications;
all local laws or regulations implementing or supplementing the EU legislation mentioned in (b)-(c) above (including the UK Privacy and Electronic Communications Regulations 2003); and
all codes of practice and guidance issued by national supervisory authorities, regulators or EU or UK institutions relating to the laws, regulations, UK legislation and EU legislation mentioned in (a)–(d) above.

“UK GDPR”

has the meaning given in the Data Protection Act 2018.

References to “processor”, “controller”, “personal data”, “process”, “processing”, “personal data breach”, “data subject” or “supervisory authority” shall have the same meanings as defined in the GDPR.
References to the GDPR and/or an Article or Chapter of the GDPR shall, where the context so requires and insofar as the Data Privacy Law(s) is that of the UK, be construed as a reference to the equivalent Data Privacy Law(s) of the UK and/or the corresponding provision of such Data Privacy Law(s).
General obligations of the parties
1. The parties agree that to the extent the Agency is processing Client Personal Data, the Client is the Data Controller and the Agency is the Data Processor of Client Personal Data.
2. Each party shall comply with applicable Data Privacy Laws in relation to Client Personal Data and neither party shall put the other party in breach of applicable Data Privacy Laws.
3. The Agency shall:
  1. process Client Personal Data during the Term only for the purposes of providing the Services (and otherwise performing its obligations) under these Conditions and at all times in accordance with the written instructions of the Client (the “Permitted Purpose”);
  2. permit access to Client Personal Data by its personnel or authorised third parties only if: (i) the person accessing Client Personal Data is under appropriate confidentiality obligations and the Agency has ensured the reliability of the relevant person; and (ii) the Agency ensures that the person accesses and processes Client Personal Data only as necessary for the Permitted Purpose;
  3. have in place and maintain appropriate technical and organisational measures to keep Client Personal Data confidential and secure and to protect Client Personal Data against accidental loss or unlawful destruction, alteration, disclosure or access (a “Data Security Breach);
  4. upon becoming aware of a Data Security Breach: (i) provide all such timely information and cooperation as the Client may require in order for the Client to fulfil its data breach reporting obligations under (and within the timescales required by) applicable Data Protection Legislation; and (ii) take all such measures and actions as are necessary to remedy or mitigate the effects of the Data Security Breach;
  5. provide all reasonable and timely assistance to enable the Client to comply with its obligations under applicable Data Protection Legislation, including those that relate to the exercising of any rights by a Data Subject or the fulfilment of obligations relating to the notification of any Client Personal Data Breach;
  6. not subcontract any processing of Client Personal Data to a third party sub- processor without the prior written consent of the Client and, where any such consent is given, provided that the Agency: (i) imposes terms on the sub-processor of no lesser standard than as provided by this Clause 32; and (ii) remains fully liable for any breach of this Clause 32 that is caused by an act, error or omission of any sub-processor.
  7. only transfer Client Personal Data outside the European Economic Area with the Client’s prior written consent and (to the extent such consent is given) provided it takes such measures as are necessary to ensure any such transfer is in compliance with applicable Data Protection Legislation;
  8. on termination or expiry of these Conditions) (and except as otherwise required under applicable law), delete or return to the Client (as the Client elects) all Client Personal Data.

32. Anti Bribery

Both parties:
1. shall comply with the Bribery Act 2010 and any guidance issued by any governmental department relating to such legislation (“Bribery Act”)
2. shall not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the Bribery Act if such activity, practice or conduct had been carried out in the UK;
3. shall maintain in place throughout the Term (and enforce where appropriate) its own policies and procedures to ensure compliance with the Bribery Act;
4. shall promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of these Conditions; and
5. shall ensure that it imposes written terms on any sub-contractor connected with the matters arising under these Conditions which are at least equivalent to those imposed on the Agency in this clause.

33. General

The failure of either party to enforce or exercise at any time any term or any right under these Conditions does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect that party’s later right to enforce or to exercise it.
If any term of these Conditions is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from these Conditions and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of these Conditions is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
These Conditions and the Special Conditions and documents referred to in them, contain all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties acknowledges and agrees that in entering into these Conditions it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in these Conditions
No modification or variation of these Conditions shall be valid unless it is in writing and signed by each of the parties to these Conditions.
Nothing in these Conditions is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.

34. Governing Law and Jurisdiction

These Conditions shall be governed by and construed in accordance with the laws of England and Wales.
Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute between them arising under or in connection with these Conditions.

Last updated June 4, 2025