Terms and Conditions (“Terms”)
(A) The Client wishes to purchase and SMP wishes to provide a range of services and deliverables as further described on the Front Sheet (provided via email).
(B) The parties agree that such services and deliverables shall be supplied in accordance with these Terms.
It is agreed as follows
Campaign: the project agreed between the parties as described in the Front Sheet.
Client Materials: 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 SMP and/or its Associates by or on behalf of the Client.
Client Obligations: those obligations (if any) set out in the Front Sheet which must be performed by the Client in order for SMP to be able to perform the Deliverables.
Deliverables: the materials which are to be provided by SMP as specified in the Front Sheet which are included in the Campaign, including Third Party Materials and SMP Proprietary Materials where applicable.
Force Majeure Event: any act, event, non-happening, omission or accident beyond a party’s reasonable control, including but not limited to: strikes; lock-outs or other industrial action; civil commotion; riot; invasion, war (whether declared or not) or threat of or preparation for war; fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster; impossibility of the use of railways, shipping, aircraft, motor transport or any other means of public or private transport; or compliance with any law or governmental order, rule, regulation or direction.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, typography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Losses: losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses (including reasonable legal and other professional expenses), subject to clause 18.
Materials: 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: 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.
SMP Proprietary Materials: 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) SMP and which are: (i) in existence prior to the date on which it is intended to use them for a Campaign; or (ii) created by or for SMP outside of a Campaign and which are intended to be reused across its business.
Services: the Services to be supplied by SMP under this Agreement as set out in the relevant Statement of Work.
Statement of Work: one or more documents describing services and/or deliverables as set out in the Schedules or otherwise agreed and signed by the parties from time to time.
Term: the period commencing on the Effective Date and ending on the effective date of termination of this Agreement in accordance with clause 17.
Third Party Materials: those Materials which are either commissioned by SMP 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.
2. Application of the Agreement
2.1 These Terms shall prevail over any inconsistent terms or clauses contained, or referred to, in any Statement of Work contained in a Schedule to this Agreement, or any purchase order or confirmation of order produced by the Client.
3. Appointment and Statements of Work
3.1 During the Term, SMP shall perform the Services and (where relevant) shall supply the Deliverables to the Client in the Territory in accordance with the Front Sheet.
3.2 The parties may agree new Services or Deliverables from time to time by agreeing a new Statement of Work in writing. Once a Statement of Work has the signature of both parties, such Statement of Work shall automatically form part of this Agreement.
4.1 This Agreement shall commence on the Effective Date and shall continue for the duration of the Term as set out in the Front Sheet until terminated in accordance with clause 17.
4.2 Each Campaign shall commence on the applicable Effective Date detailed in the Front Sheet and shall continue for the Term, subject to earlier termination in accordance with the terms of clause 17.
5.1 The Fees specified and all other sums payable to SMP are exclusive of Value Added Tax 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.
5.2 The Fees specified do not include travel, hotel or subsistence expenses. These shall be charged by SMP to Client at cost and payable by the Client without undue delay. SMP shall use reasonable endeavours to pre-agree such costs with the Client.
5.3 SMP reserves the right to revise the fee rates if a change to the Service and/or Deliverables is agreed pursuant to clause 9.1. Any such change will be notified to the Client for approval and if the Client does not agree to the revised fee then SMP is under no obligation to deliver the revised Services and/or Deliverables.
6. Third Party Costs
6.1 All third-party costs identified to be paid upfront shall be notified to Client and Client shall pay such costs upfront.
7.1 SMP shall submit an invoice in respect of the Fees and any other amounts owed and Client shall pay in full upon receipt of the date of such invoice (during first three months). Subsequent payment terms are payment in full within 30 days upon receipt of the date of such invoice.
7.2 If the Client fails to pay any sum due under this Agreement, SMP shall be entitled to: (i) charge interest from the date of issue of the applicable invoice until the date payment is made at the rate of eight (8%) per cent per annum over the base rate from time to time in force of NatWest PLC accruing daily; and (ii) without prejudice to any other remedy, suspend any Campaign in whole or part until SMP receives payment in full.
8.1 The Client agrees that during the duration of the Campaign and for twelve (12) months thereafter it shall not employ or engage whether directly or indirectly on any other basis or offer such employment or engagement to any person employed or engaged by SMP who has been associated with the Campaign without SMP’s prior agreement in writing.
8.2 If the Client breaches clause 8.1 the Client shall be liable to pay to SMP liquidated damages in an amount equal to the person’s emoluments per annum at the time of leaving the employment of SMP or if the person is an independent contractor of SMP an amount equal to the fees paid by SMP to the contractor in the last 12 months of his/ her agreement.
9. The Campaign
9.1 Either party can request changes to a Campaign at any time. Each party shall have the right to reject on reasonable grounds any such change requested by the other party. If the parties agree in writing to Campaign changes this Agreement will be so amended.
9.2 The Client recognises that SMP shall have the right not to organise a Campaign that SMP believes is likely to: (i) mislead consumers; (ii) breach the rights conferred on consumers by law; or (iii) otherwise breach applicable law or any regulatory guidance.
9.3 Should SMP wish to enact its rights under clause 9.2, SMP shall on written notice suspend all or part of the Campaign and, unless SMP confirms within 5 working days that it removes the suspension at its sole discretion, all or the applicable part of the Campaign shall automatically terminate. In this event, all fees payable on suspension of the Campaign shall be due within agreed payment terms.
10. Client Obligations
10.1 The Client acknowledges that the performance by SMP of the Campaign is dependent upon the Client’s prompt instructions and Client’s compliance with any specific Client Obligations described in this clause 10 and any applicable Statement of Work.
10.2 The Client will give SMP full and clear instructions as to its requirements for the Services and Deliverables to be included in the Front Page or Schedule, including full details of the dates by which each stage of the proposed Services and Deliverables are to commence and finish.
10.3 The Client will promptly supply to SMP (at no charge) any Client Materials reasonably required by SMP 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 SMP of all Client Materials.
10.4 Where participation by, or access by SMP to, the Client’s personnel is necessary for the Campaign, the Client shall procure such personnel to be available at the times required by SMP.
10.5 The Client shall notify SMP in writing immediately should it become aware of any information which it considers, or suspects may impact upon the Campaign, including if the Client considers that any Deliverables submitted to the Client by SMP for approval are false or misleading or in any way contrary to applicable law.
10.6 If the Client does not fulfil its obligations under or in connection with this Agreement (including its payment obligations), then to the extent that such failure prevents SMP from performing any Services and/or providing any Deliverables in accordance with this Agreement, SMP will be relieved of its obligations to the Client, and SMP shall not be liable for any Losses incurred by the Client as a result of any such failure.
11. Service Delivery
11.1 Client shall provide the Client Materials SMP reasonably requires for the purposes of performing the Services and providing the Deliverables.
11.2 SMP shall: (i) 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; and (ii) 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 Statement of Work).
12.1 SMP will allocate suitable personnel, which may include contractors, with appropriate levels of experience and seniority to provide the Services. The Client acknowledges and agrees that it may be necessary for SMP to replace the personnel providing the Services with alternative personnel with similar levels of seniority and experience.
13. Campaign Management
13.1 During the Term, SMP will keep the Client informed as to the progress and status of all Services and Deliverables. SMP will prepare and submit written reports at such intervals and in such format as is agreed by the parties and will promptly inform the Client of any actual or anticipated problems relating to delivery of the Deliverables.
14. Approval Process
14.1 Where a party is asked to give approval under or in connection with this Agreement, such approval shall not be unreasonably withheld or delayed.
14.2 SMP may from time to time seek the Client’s prior approval of any draft Deliverables and such approval will be SMP’s authority to proceed with the use of the relevant Deliverables.
14.3 In the event that the Client does not approve of any matter requiring approval it shall notify SMP of its reasons for disapproval within 5 days of SMP’s request, or in accordance with any time frame set out in the Statement of Work or as otherwise agreed in writing. If the Client does not notify SMP of its disapproval in accordance with this clause 14.3, it shall be deemed approved.
14.4 In the event of any delay or failure of the Client giving approvals (or disapprovals) requested under or in connection with this Agreement, SMP will not be liable for any resulting delays or adverse impact caused to the delivery of the Campaign.
15. Intellectual Property Rights
15.1 SMP 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 SMP a non-exclusive licence during the applicable Campaign Term to use the Client Materials solely for the purposes of providing the Services and Deliverables.
15.2 Subject to the remaining provisions of this clause 15 and subject to SMP receiving payment of all Fees and other applicable amounts owed, SMP shall assign to the Client absolutely with full title guarantee (by way of a present assignment of present and future rights) all of the Intellectual Property Rights (or a percentage thereof as set out in a the Front Sheet or any applicable Schedule)in the Territory of any Deliverables which are capable of being assigned together with the right to sue for past infringement of the Intellectual Property Rights in Deliverables. If the Client wishes to use the Deliverables outside of the Territory, such use shall be subject to usage fees agreed between the parties.
15.3 The Client acknowledges that all Intellectual Property Rights in SMP Proprietary Materials shall be owned by and remain the property of SMP. Subject to SMP receiving payment of all Fees SMP hereby grants to the Client a non-exclusive, revocable royalty-free licence to use such SMP Proprietary Materials as are included in the Deliverables, in the Territory, for the period of time and for the purposes set out in the Statement of Work, and the Client hereby indemnifies SMP and keeps SMP indemnified for any Losses suffered by SMP through Client’s or connected parties failure to use SMP Proprietary Materials as instructed or otherwise in accordance with the terms of this Agreement.
15.4 SMP shall use all reasonable endeavours to obtain all usage rights in any 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 Statement of Work. SMP shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third-Party Materials, and the Client hereby indemnifies and keeps SMP indemnified against any losses suffered by SMP as a result of the Client or a connected party breaching any such restrictions. If so requested by the Client, SMP shall use reasonable endeavours to obtain an assignment of the Intellectual Property Rights in the Third Party Materials at the Client’s cost.
15.5 SMP 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 15.
15.6 To the extent permitted by law and subject to SMP receiving payment of all Fees, SMP shall ensure that all Moral Rights in SMP Proprietary Materials included in the Deliverables are waived (or where not lawfully possible to waive Moral Rights, SMP agrees not to assert any Moral Rights in respect of Campaign Materials).
15.7 Notwithstanding any of the above and save as otherwise expressly provided for in a Statement of Work, SMP shall: (i) be able during and after the Term to use any Deliverables which have been broadcast, published, distributed or otherwise made available to the public, the Client’s name and logo and Campaign results (provided that they do not disclose absolute sales numbers) for the purposes of promoting its work and its business including on SMP’s website, in credentials pitches, showreels, presentations and webinars. Any other use by SMP shall be subject to the Client’s prior approval; and the Client retaining all know-how obtained in connection with the Services and Deliverables.
15.8 For the avoidance of doubt, SMP shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Services or 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.
15.9 The terms of and obligations imposed by this clause 15 shall survive the termination of this Agreement for any reason.
16. Confidentiality and Publicity
16.1 Neither party shall during the term of this Agreement or after its termination disclose to any third party any Confidential Information of the other party (except as required by law or with the prior written consent of the other party). “Confidential Information” means any document, material, idea, data or other information of whatever nature which is obtained either in writing, visually or electronically from the other party (including but without limitation to the generality of the foregoing, software, photographs, videos or recordings of visual images on any media and which relates either to SMP’s or the Client’s research and development, trade secrets or business affairs or which is marked confidential and disclosed by either party to the other for the purposes hereof). Confidential Information of the other party does not however include any document, material, idea, data, or other information which: (i) is known to the receiving party under no obligation of confidence, at the time of disclosure by the other party; or (ii) is or becomes publicly known through no wrongful act of the receiving party; or (ii) is lawfully obtained by the receiving party from a third party who in making such disclosure breaches no obligation of confidence to the other party; or (iii) is independently developed by the receiving party; or (iv) is disclosed by the other party to a third party under no obligation of confidence; or (v) is required to be disclosed by a government authority, provided that the party subject to such requirement to disclose, to the extent legally permissible and practical, gives the other party prompt written notice of the requirement.
16.2 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 this Agreement.
16.3 The Client acknowledges that nothing in this Agreement shall affect SMP’s right to use as it sees fit any general marketing or advertising intelligence gained by SMP in the course of its appointment.
16.4 Each party hereby indemnifies the other party from and against all losses arising out of or in connection with the other party’s breach of this clause 16, including breach by each party’s associates.
16.5 The terms of and obligations imposed by this clause 16 shall survive the termination of this Agreement for any reason.
17.1 Subject to Clause 17.2 below or as otherwise set out in the Agreement, neither party may terminate the Agreement prior to the end of the Term set out on the Front Sheet.
17.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement if: (i) the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment, or is (ii) deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; (iii) the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; (iv) 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 for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or (v) the other party files for bankruptcy or a petition is filed in relation to the winding up of that party; (vi) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
17.3 On termination of the Agreement for any reason: (i) the Client shall immediately pay to SMP all of SMP’s outstanding unpaid invoices and interest including during the notice period and, in respect of Services and Deliverables supplied but for which no invoice has been submitted, SMP may submit an invoice, which shall be payable immediately on receipt; (ii) each party shall immediately return all of the other party’s property; and (iii) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination (in particular but not limited to clauses 8.1, 8.2, and 16), shall not be affected.
18. Limitation of Liability
18.1 This clause 18 sets out the entire financial liability of SMP to the Client in respect of any breach of the Agreement including any deliberate personal repudiatory breach by SMP and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
18.2 All warranties, clauses and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
18.3 The Client recognises that: (i) the nature of SMP’s work means that although all the Deliverables will be delivered, there is no guarantee that the Campaign will lead to increased revenue or a more prominent web presence. The services offered by SMP and any Campaign will by their nature be speculative; (ii) the idea or methodology behind any Campaign and the decision to proceed with a particular Campaign will always be the Client’s and SMP will always rely on the knowledge that the Client has of its business.
18.4 Nothing in these clauses limits or excludes the liability of either party: (i) for death or personal injury resulting from negligence; (ii) for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party or any other liability which cannot be limited by law.
18.5 SMP shall not be liable to Client for: (i) loss of profits; (ii) loss of business; (iii) depletion of goodwill and/or similar losses; (iv) loss of anticipated savings; or (v) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
18.6 SMP’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Agreement shall be limited to the aggregate of the Fees paid by the Client in the previous 12 months to the date of the breach for the applicable Statement of Work;
18.7 If SMP’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, SMP shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
18.8 SMP takes no responsibility for any defects in the Campaign which are caused by: (i) information provided by the Client being incorrect or misleading; (ii) the Client’s failure to comply with the Client Obligations; (iii) the omissions or negligence of the Client (including its contractors or employees); or (iv) any problems with the Client’s own presence on marketplaces and ecommerce sites, IT systems or social accounts.
19. Client Warranties
19.1 The Client warrants and undertakes that:
19.2 it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party;
19.3 the Client Materials will not, when used in accordance with this Agreement and any written instructions given by the Client, infringe third party Intellectual Property Rights or breach any applicable laws;
19.4 the Client Materials comply with all applicable laws and regulations including all Advertising Regulations; and
19.5 the Client Materials are accurate and complete in all material respects.
20. Force Majeure
20.1 Neither party shall be liable for any delay in performing or for failure to perform any of its obligations under this Agreement to the extent that and for so long as the delay or failure results from a Force Majeure Event.
20.2 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, notify the other party in writing of the circumstances of the Force Majeure Event and the other party shall grant a reasonable extension for the performance of this Agreement, provided however that if either party shall have been so prevented from meeting its obligations for more than twenty (20) Business Days following the receipt of such notice, then either party may terminate this Agreement forthwith upon written notice. Each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.
21. Notices and other Communications
21.1 Any notice shall without prejudice to any other method of giving it be sufficiently given if it is sent by registered or recorded delivery first class post to the other party to the address (as the case maybe) SMP’s registered office, or other address as notified to the client from time to time, as well as by email to firstname.lastname@example.org, or in the case of the Client the address stated in the Front Sheet or to such other address as the respective party may advise by notice in writing from time to time.
21.2 Notices shall be deemed to have been properly given after three (3) business days.
22.1 No right or obligation under this Agreement shall be assigned or transferred by either party without the prior written approval of the other party, but SMP may assign its rights and/or obligations at any time to another company within its group. SMP may sub-contract the performance of any of its obligations under this Agreement to third parties without the Client’s consent. Where SMP informs the Client that Services and/or Deliverables are sub-contracted to third parties and to the extent that Services and/or Deliverables incorporate Third Party Materials, SMP disclaims all liability of any kind whatsoever arising therein.
23. Data Protection
23.1 Both parties shall comply with all applicable laws, enactments, regulations, regulatory policies, guidelines, and industry codes relating to the processing of personal data and privacy, including but not limited to the General Data Protection Regulation (EU) 2016/679, the UK General Data Protection Regulation, the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, and any successor or related legislation, and all other laws and regulations relating to the processing of personal data and privacy that may exist in any relevant jurisdiction, including, where applicable, the guidance and codes of practice issued by the Information Commissioner, or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction (“Data Protection and Privacy Laws”), and shall not perform its obligations under this Agreement in such a way as to cause the other to breach any of its obligations under the Data Protection and Privacy Laws.
23.2 If a party finds it necessary to share Personal Data, they shall promptly notify the other party in writing before doing so, and the parties shall then discuss in good faith the implementation of appropriate data protection measures, including potentially amending this Agreement, to comply with their respective obligations under applicable Data Protection and Privacy Laws.
23.3 No Partnership or Agency
23.4 Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.Questions and complaints
24. Legal Construction
24.1 This Agreement constitutes the entire agreement reached between the parties with respect to the Campaign. It supersedes all prior proposals (and details on the Statement of Work which are not expressly referred to in this document) and no other representations, understandings and agreements, whether oral or written, and all other communications save for any fraudulent misrepresentation shall form a term herein.
24.2 The failure of either party to enforce or exercise at any time any term or any right under this Agreement 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.
24.3 If any clause, provision or any part of this Agreement becomes invalid, illegal or unenforceable in any respect under any law or for any other reason whatsoever, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.
24.4 No modification or variation of this Agreement shall be valid unless made in writing and signed by an authorised representative of each party. No modification or variation of this Agreement shall affect any rights, obligations or liabilities under this Agreement which have already accrued to the date of such modification or waiver.
24.5 No delay or failure of either party in enforcing against the other party any term or clause of this Agreement, and no partial exercise by either party of any right hereunder, shall be deemed to be a waiver of any right of that party under this Agreement.
24.6 This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.
24.7 No third party shall acquire rights pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.