DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context otherwise requires:
“Agreement”: means these terms and conditions and the applicable Proposal;
“Client”: means the Client identified in the Proposal;
“Client Materials”: means the software, data, equipment, documentation owned by or licensed to Client by a third party and which are supplied to Threepipe under or in connection with this Agreement;
“Fees & Expenses”: has the meaning set out in clause 3;
“Intellectual Property Rights”: means the following rights, or any analogous rights wherever in the world enforceable including all reversions, renewals and extensions: (a) any patents or patent applications; (b) any trade marks (whether or not registered) including any applications for registration of the same; (c) performer’s property rights, copyright, design rights (whether registered or unregistered), and rights in any database; (d) any goodwill in any trade or service name, trading style or get-up; and (e) any and all other intellectual or industrial property rights;
“Proposal : means a proposal (including correspondence between the parties) issued by Threepipe and which incorporates these Terms;
“Products” means products supplied by Threepipe to the Client and may include, but shall not be limited to database information, computer software and documentation;
“Media Fees” means the costs and expenses payable to a media supplier for the supply of any of the Services set out in the Proposal;
“Media Supplier” any services provided by a media supplier to Threepipe in accordance with the Client’s instructions for the provision of the Services set out in the Proposal ;
“Services”: means Services provided by Threepipe to the Client as agreed prior to the commencement of the Term or as specified in the Proposal;
“Term”: means the duration of the Services as specified in the Proposal;
“Threepipe”: means Threepipe Limited;
“Threepipe Materials”: means the software, data, equipment, documentation and any other materials owned by or licensed to Threepipe and supplied to Client under or in connection with this Agreement.
- Subject to the terms and conditions of this Agreement, Threepipe shall perform the Services. Client acknowledges that Threepipe shall only be obliged to supply the Services described in the Proposal.
- Unless specifically agreed by Threepipe in writing on each and every occasion, any indications as to the time of completion of any part of the Services are estimates given for guidance purposes only.
- Client or its nominated agents or contractors shall provide Threepipe with the following materials by such dates agreed by the parties: In the case of SEO Services, Google Analytics and Google Webmaster Tools and such other reporting tools as the parties may agree from time to time.
- Where Client delegates its obligations in clause 2.3 to any of its nominated agents or contractors, Client shall remain responsible for the delivery of such materials by any dates agreed by the parties and in conformity with Threepipe’s specifications. If the materials do not conform to Threepipe’s technical specifications or do not arrive by any dates agreed by the parties then Threepipe, in its sole discretion, may: (a) reject such materials and refund any applicable amounts paid in advance; or (b) suspend the Services until such materials are received.
- Client acknowledges that save where Threepipe has been negligent, any advice given to Client by Threepipe in the provision of the Services is given without liability on the part of Threepipe to the fullest extent permissible in law. Without limiting the generality of the foregoing, in the event that Client’s adoption or rejection of Threepipe’s non-negligent advice results in a deterioration of the Services and/or the results of the Services then Client acknowledges that Threepipe shall not be liable under or in connection with this Agreement to the fullest extent permissible in law.
- If Client or its agents or contractors do not fulfil their obligations under this Agreement, then (without prejudice to Threepipe’s other rights and remedies) Threepipe will be relieved of its obligations to Client to the extent that Threepipe is prevented from performing the Services in accordance with this Agreement. Without limitation to the foregoing, Threepipe shall not be liable for any loss or damage whatsoever resulting from any delays in or failure to complete the Services, which are caused either directly or indirectly by Client or its nominated third parties.
- The parties shall co-operate with each other in order to ensure that the other is at all times kept fully informed of any matter which may materially impact on the performance of the Services. Both parties shall at all times promptly respond to all requests for approvals and the Client shall ensure that any third parties contracted to it fully co-operate with Threepipe.
- Client acknowledges that the delivery, results and success of the Services is dependent upon third party service providers and platforms and third party equipment and networks not under Threepipe’s control and that the operation of and/or changes made to third party platforms and services by third parties not under the control of Threepipe such as Google may have a detrimental effect on the delivery, results and/or success of the Services. Accordingly, Threepipe does not assume liability for the acts or omissions of such third parties and nor does it guarantee that: (i) the Services will be uninterrupted, secure or error-free; or (ii) any data generated, stored, transmitted or used via or in connection with the Services will be complete, accurate, secure, up to date, received or delivered correctly or at all; or (iii) the Services and/or the information obtained by Client through the Services will meet Client’s requirements.
FEES AND EXPENSES
- In consideration of the Services to be provided by Threepipe hereunder, Client shall pay to Threepipe the Fees and Expenses stated in the Proposal or as otherwise agreed between the parties.
- If it is agreed that Threepipe shall provide Services that are outside the scope of the Services, or that the scope of an agreed Campaign shall be extended, Threepipe reserves the right to charge a further fee for any such additional work. Any such additional fee shall be subject to the Client’s prior written approval, such approval not to be unreasonably withheld, conditioned or delayed.
- Threepipe shall charge an additional Fee, based on the above rates, for all annual planning, creative concept development and proposals that fall outside of the scope of the agreed Services, with the prior agreement of the Client.
- Threepipe shall charge the Client a premium fee of plus 20% for any crisis management and response work required based on the level of staff required.
OPERATING EXPENSES, PROGRAMME COSTS, MEDIA FEES, DIGITAL TRACKING FEES
In addition to Threepipe’s Fees set out in the Proposal, Threepipe will invoice the Client on a monthly basis after the initial agreed budget for
Operating Expenses: including couriers, media monitoring, specialist subscriptions, travel, accommodation and subsistence [in accordance with the Client’s travel policy, if any] incurred specifically in the performance of the Services together with a handling charge;
Programme Costs: including costs for goods and services bought from third party suppliers on behalf of the Client including photography, reproduction, artwork, design, printing, advertising, market research, exhibition and display materials, press distribution and major mailing, artist/celebrity fees, evaluation, venues, legal advice and other third party costs approved by the Client in advance together with a handling charge.
Handling charges for expenses and programme costs are dependent on the individual value of the goods or services being provided. The handling fee will be as outlined in Schedule 2.
Media Fees: includes any media costs incurred by the Agency on the behalf of the Client and as agreed, and from time to time.
Digital Tracking Fees: includes all the fees
- Fees, Media Fees and Digital Tracking Fees shall be invoiced monthly in arrears on the last Working Day of each month.
- Operating Expenses and Programme Costs shall be invoiced monthly in arrears by the last Working Day of the following month.
- Subject to Paragraph 5.5 below, all invoices rendered by Threepipe shall be due and payable within 30 days of the invoice date.
- All sums referred to in this Agreement shall be payable in full without deduction, withholding or set-off and are exclusive of VAT and any other duty or tax which shall (if and to the extent applicable) be payable by the Client.
- The Client acknowledges that Threepipe shall from time to time enter into agreements with a Supplier and that Threepipe shall use reasonable endeavours to seek credit insurance for the amount of financial liability owed to Threepipe. In the event that the financial liability exceeds the maximum amount of credit insurance available, the Client shall pay to Threepipe in advance an amount equal to the difference between the financial liability and the maximum level of credit insurance available.
- If Threepipe is required to make a significant cost commitment to commence or complete an agreed campaign Threepipe may require the Client to pay sufficient funds prior to Threepipe undertaking such a commitment
- The Client shall be liable to pay interest on any overdue amount at an annual rate of 4% above the prevailing base rate of Lloyds TSB Bank plc, which interest shall accrue on a daily basis from the date payment becomes due until the date that Threepipe has received payment of the overdue amount together with all accrued interest..
- Threepipe, and/or persons or companies acting on its behalf, or as agents, reserve the right to charge and recover all costs incurred in connection with the pursuance and/or recovery of outstanding monies and property from the Client.
- The cost to Threepipe of materials or services purchased overseas for the Services may be more or less than the cost anticipated at the date when the Consultancy ordered the relevant materials or services (or obtained the Client’s approval for such costs) as a result of fluctuations in the rate of currency exchange. If so, Threepipe may charge the Client at the rate of currency exchange in operation on the date Threepipe pays for the relevant materials or services, 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.
- The Fees are based on information provided to Threepipe by Client at the time the Fees were estimated. In the event that any incorrect or incomplete information is given, Threepipe may increase or decrease the Fees (by written notice to Client setting out the reasons for such increase or decrease) in order to make such reasonable adjustment to the Fees as is reasonable to take account of such incorrect or incomplete information.
- If either party wishes to change the Services or any provision of this Agreement, it shall submit to the other party in writing details of the requested change.
- In the event that the Client requests such change, Threepipe shall have a reasonable time to consider such a request and its likely impact. Threepipe shall respond in writing to Client setting out the effect of the change on the Services, the Agreement, the Fees and Expenses, how such change could be carried out and the date for Client’s response (a “Change Assessment”). Client shall reject or accept a Change Assessment within the requested timeframe for Client’s response. If accepted and signed by the parties’ representatives, the terms of the Change Assessment shall be deemed to have amended this Agreement. If rejected this Agreement shall continue as before.
- During the continuation of the procedure outlined in clause 6.3, any obligations of Threepipe in respect of the Services which may be affected by the proposed change shall be suspended until completion of this procedure. Any previously agreed timescales for completion of the Services shall be extended by a corresponding period.
- Each party shall treat as confidential all information obtained from the other in the course of the relationship governed by this Agreement and shall not divulge such information to any person without the other party’s written consent provided that this clause 7 shall not extend to information which: (a) was rightfully in the possession of such party prior to the commencement of the negotiations leading to this Agreement; (b) is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause); or (c) is required to be disclosed by law.
- Notwithstanding this clause 7, Threepipe shall be entitled to refer to Client in client lists and for its own marketing and promotional purposes. Threepipe shall not, however, issue any staement or press release relating to Client or the Services without Client’s prior written appoval not to be unreasonably withheld.
- Threepipe will ensure that its employees used to deliver the Services shall not work on any other accounts for clients where those clients compete with Client’s business.
- The obligations of the parties under this clause 7 shall survive the expiry or termination of this Agreement for whatever reason.
WARRANTIES & INDEMNITY
- Threepipe warrants that the Services shall be performed in a competent and professional manner and with reasonable skill and care.
- Client warrants that the Client Materials are accurate and complete, that they comply with the technical specifications requested by Threepipe in the Proposal (if any) and that the use of the Client Materials in connection with the Services shall not infringe the Intellectual Property Rights of any third party and shall comply with all applicable laws and codes of practice.
- Subject to clause 8.4, each party agrees to defend, indemnify and hold the other party, its officers, directors and employees harmless from and against any third party claims, alleged claims, demands, losses, damages, liabilities, expenses (including legal costs), judgments, actions, causes of action, made or brought against or incurred by the other party in connection with or related to the breach of any of the warranties given by it in this Agreement.
- The party providing indemnification will only do so to the extent that: (a) the indemnified party provides prompt written notice of any claims or actions for which it claims indemnification; (b) the indemnified party provides the party providing indemnification with reasonable assistance and cooperation in the defence of such claim or action; and (c) the party providing indemnification will have sole control over the defence and settlement of any such claim or action.
- Subject to clause 9.3, neither party shall be liable under or in connection with this Agreement for any loss of actual or anticipated income or profits, loss of contracts, loss of goodwill, loss of any benefit or for any special, 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.
- Subject to clause 9.3 Threepipe’s total aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the Fees paid or payable by Client in the 6 months’ period preceding the date that the claim first arose. Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its own negligence or any other liability to the extent that the same may not be excluded or limited as a matter of law.
- Client acknowledges that it shall not be entitled to bring a claim against Threepipe more than 12 months after the date that Client first became aware or should have been aware of the cause of action giving rise to the claim.
- Save as specifically stated in this Agreement, Threepipe shall not be bound by any conditions, warranties, representations or other terms concerning the performance of the Services which might otherwise be implied into or incorporated into this Agreement, whether by statute, common law or otherwise, all of which are hereby excluded to the fullest extent permissible by law.
TERM & TERMINATION
- This Agreement shall have effect on and from the date specified in the Proposal.
- Either party may terminate this Agreement immediately upon written notice to the other: (a) in the event of any breach of this Agreement by the other party which breach is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the party not in default of a written notice on the other party, specifying the nature of the breach and requiring that the same be remedied; or (b) the other party becoming insolvent, entering into liquidation, whether voluntary or compulsory, passing a resolution for its winding up, having a receiver or administrator appointed over the whole or any part of its assets, making any composition or arrangement with its creditors or taking or suffering any similar action in consequence of its debt.
- Threepipe shall be entitled to terminate this Agreement if Client sells all of its assets or there is a change of control of Client. For the purposes of this Agreement “control” is defined as in Section 1124 of the Corporation Tax Act 2010
- The termination of this Agreement shall be without prejudice to the accrued rights of either party in respect of any prior breach of this Agreement, including (without limitation) the liability of the Client to Threepipe for all Fees, Operating Expenses and Programme Costs due in respect of Services performed up to the effective date of termination.
- When this Agreement terminates each party shall return to the other (or destroy on written request by the other party) all materials including the type described in clause 5 above which belongs to the other.
- If any Digital Tracking Service is provided by the Agency to the Client during the Term and is not removed from the Client’s site prior to the expiration of the Term, the Client shall continue to be responsible for the payment to the Agency of all charges and expenses due and until such time that the Client removes all such Digital Tracking code from their site.
CONSEQUENCES OF TERMINATION
Upon termination of this Agreement for any reason: (a) each party shall immediately deliver to, or dispose of as directed by, the other party any and all materials and property belonging or relating to the other party, including all Confidential Information then in its possession, custody or control; (b) Client shall pay all Fees & Expenses due up to and including the effective date of termination together with all costs incurred by Threepipe which it is committed to pay arising from such termination; and (c) provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.
INTELLECTUAL PROPERTY RIGHTS
- Threepipe acknowledges that ownership of (including ownership of all Intellectual Property Rights in) any Client Materials shall remain vested in Client or Client’s licensors. Client hereby grants to Threepipe a world-wide, non-exclusive, royalty-free licence during the term of this Agreement to use, reproduce, distribute, modify, alter and integrate the Client Materials with other works in connection with the provision of the Services. Without limiting the foregoing Client acknowledges that Threepipe may upload, distribute and place Client Materials across all online media including but not limited to branded websites and blogs, search engines, and similar applications on social networking platforms such as, but not limited to, Facebook, Twitter, mobile apps and devices.
- Threepipe shall retain ownership of all Intellectual Property Rights in the Threepipe Materials. Threepipe hereby grants to Client a world-wide, non-exclusive, royalty-free licence to use the Threepipe Materials during the term of this Agreement for the purposes of receiving the Services.
Where Threepipe processes personal data on behalf of Client, Threepipe shall: (a) only process such data solely in accordance with Client’s instructions from time to time; and (b) comply with the seventh data protection principle as though it were a Data Controller as defined in the Data Protection Act 1998.
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”). If any Force Majeure Event continues for a period of or exceeding thirty (30) days, the non-affected party shall have the right to terminate this Agreement forthwith on written notice to the affected party.
All notices required to be given under this Agreement shall be in writing and shall be deemed to have been given: (a) on the date actually delivered, if delivered, by hand; or (b) three (3) days after deposit in the mail, postage prepaid, return receipt requested, in each case sent to the person and address specified in the Proposal.
- Threepipe may appoint sub-contractors to perform any of the Services. Threepipe acknowledges that such sub-contracting shall not release it from any of its contractual obligations under this Agreement and Threepipe shall remain fully responsible for the performance of such Services.
- Threepipe shall use reasonable care and skill in the selection and appointment of suppliers and the agreement of the terms and conditions of such appointment. Should the Client request, Threepipe will obtain more than one quote for a particular supplier and discuss these with the Client before placing an order.
- Threepipe shall obtain the Client’s consent before commissioning services from any company in which Threepipe has a financial interest, such consent not to be unreasonably withheld or delayed
- The Client shall advise Threepipe of all rules and regulations relating to the conduct of the Client’s employees and specific regulations or practices that Threepipe’s personnel should comply with. Threepipe’s personnel shall endeavour to comply with such rules and regulations whenever they are on the Client’s premises, but at all times the conditions of employment of Threepipe shall apply to such personnel.
- The Client shall take all reasonable precautions to ensure the health and safety of the Threepipe’s personnel while they are on the Client’s premises.
- If either party induces an employee of the other to enter its service at any time during the Term of this Agreement, or up to 12 months after termination, that party will pay to the other party an amount being equivalent to twice the employee’s gross annual salary at the time of leaving.
- Any waiver, amendment or modification of any of the provisions of this Agreement or any right, power or remedy hereunder shall not be effective unless made in writing. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof.
- This Agreement constitutes the entire agreement and understanding between the parties with respect to their subject matter and supersede any prior agreement, understanding or arrangement between the parties, whether oral or in writing, with respect to the same. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in communications between the parties prior to this Agreement, except as set out herein. Neither party shall have any remedy in respect of any negligent or untrue statement made to it upon which it has relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedies shall be for breach of contract as provided in this Agreement.
- To the extent that there is a conflict between the terms and conditions of any Proposal or any other document (including any terms and conditions contained, or referred to, in Client’s purchase order, confirmation of order and/or acceptance of a pitch or quotation) and these terms and conditions, these terms and conditions shall govern unless otherwise specifically indicated to the contrary in a Proposal.
- No person who is not a party to this Agreement shall acquire any rights under it or be entitled to enforce any of its terms whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
- The construction, validity and performance of this Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute between them arising under or in connection with this Agreement.