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Agency Terms & Conditions

The SuccessHub’s Agency Terms and Conditions For Inbound Growth Engine & Club Advantage Services [GDPR] Compliant

Privacy & GDPR Compliance

THIS AGREEMENT is dated as per the electronic signature assigned to the order and its associated prescription

BETWEEN:

  1. Gungarffe Limited trading as The SuccessHub, a company registered in England and Wales under number 05321462 whose registered office is at Plumtree Farm, Wormley Hill, Sykehouse, East Yorkshire, DN149AG (hereinafter known as the “Company”); and

  1. << CLIENT NAME >>,a company registered in England and Wales under number <<CO REG NO>> whose registered office is at << CLIENT ADDRESS >> (hereinafter known as the “Client”)

 

WHEREAS:

A. The Client’s business comprises of the description in the Prescription

B. The Company is in the business of providing inbound services relating to the promotion of UK based enterprises, and promotion of their goods and services in the UK.

C. The Client wishes the Company to provide, and the Company is willing to provide, inbound services to the Client from time to time on and subject to the terms of this Agreement.

1. Definitions and Interpretation

1.1. In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

 

“Inbound Services”

Means all Inbound Services produced by the Company for the Client under this Agreement;

“Advertising Regulator”

Means the Advertising Standards Authority (“ASA”) and any other regulator or statutory or regulatory body relevant to the Services;

“Advertising Regulation”

Means any applicable code of practice, adjudication, decision, guideline, direction or rule of any Advertising Regulator;

“Agency Material”

Means all material created during the Term by the Company for the Inbound Services in connection with Client’s Business;

“Agreement”

Means this Agreement including its Schedule & Prescription[s];

“Client Approval”

Means approval in writing of the Company’s work and/or expenditure by a person authorised by the Client or oral approval confirmed by such person in writing within one Working Day after oral approval;

“Client’s Business”

Means all the Client’s products and services and its corporate image;

"Commencement Date”

Means the date as specified in the prescription investment schedule

“Commissioned Material”

Means all material commissioned by the Company and created for the Inbound Services during the Term by third parties

“Data Protection Legislation”

Means 1) unless and until EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations, and secondary legislation (as amended from time to time), in the UK and subsequently 2) any legislation which succeeds the GDPR

“Existing Material”

Means any material protected by Rights, created by a third party and in existence at the time Company wishes to make use of it for the promotion through its Inbound Services;

“Fee”

Means the amount as quoted in the Prescription Investment Schedule, and excludes any third party software subscriptions required.

“Force Majeure”

Means any cause beyond a Party’s reasonable control, including, but not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the reasonable control of the Party in question;

“Independent Auditor”

Means a suitably qualified and independent auditor;

“Initial Period”

Means the period specified in Clause 3;

“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;

“Records”

Means accounts and records of the Company of expenditure reimbursable by the Client under this Agreement as are reasonably necessary to enable the Client to audit that expenditure, including (but not limited to) evidence of promotions of Inbound Services appearing in accordance with any agreed media schedule;

“Rights”

Means any copyright, trademark or other intellectual property right, including an application for registration of such right;

“Services”


"Software Subscriptions"

“Prescription”

Means those services the Company is to carry out for the Client specified in [the] Schedule [1] and or Prescription; 


Means any company that the Client undertakes a separate agreement for software subscriptions with a third party  that is out of the Company’s control;


Means the pre-sale and consult, diagnose and prescribe process and associated quotation used to define the Inbound Services to be undertaken, the fees to be paid.

“Term”

Means the period from the Commencement Date until the termination of this Agreement;

“Working Day”

Means a day (other than a Saturday or a Sunday) on which the clearing banks in the City of London are open for business; and

“Year”

Means each succeeding period of twelve months during the Term the first of which begins on the Commencement Date.

 

1.2. Unless the context otherwise requires, each reference in this Agreement to a Clause or sub-Clause is a reference to a Clause of this Agreement.

1.3. The headings used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.

1.4. Words signifying the singular number shall include the plural and vice versa.

1.5. References to any gender shall include the other gender.

 

2. Agreement of Company to Act as an Inbound  Agency

 

The Client appoints the Company to carry out and the Company agrees to provide the Services to the Client in relation to the Client’s Business during the Term in accordance with this Agreement.

 

3. Term of Appointment

This Agreement shall commence on the Commencement Date and unless terminated sooner by either party under clause 27 shall continue for the period as stated in the Prescription (the “Initial Period”). After that Initial Period, the Agreement will continue in full force and effect (subject to clause 27) unless and until terminated by either party giving 30 days’ notice in writing to the other party such notice to expire no sooner than the end of the Initial Period

 

4. Company Services.

4.1. In order to provide the Inbound Services, the Company will perform for the Client the Services described in the Schedule [1] and Prescription. The company undertakes to provide the Services using due care and diligence at all times.

4.2. The Company will assign suitable staff with appropriate experience and seniority to provide the Services and if necessary may replace any of them with alternative staff with similar seniority and experience. 

 

5. Co-Operation

5.1. The Client shall co-operate with the Company and provide it, at its request, with such information concerning the Client and the Client's requirements in respect of the Services as is reasonably necessary so that the Company can perform the Services. The Client will ensure that all facts it gives about the Client’s Business are accurate.

5.2. The Client shall co-operate with the Company and provide it, at its request, and provide the content, which is defined as copy, images, videos, contact information and other associated materials as required for the Company to undertake its obligations in a formatted submission through the project management system or other means including but not limited to Google Drive, Slack but not by email.

5.3. The Company will co-operate fully with the Client and use reasonable care and skill to make the Inbound Services as successful as can be expected from a competent Certified HubSpot Agency Partner subject to the Client meeting its obligations under Sub-Clause 5.1.

 

6. Company’s Status

The Company acts in all its contracts as a principal at law.


7. Other Appointments

7.1. During the Term the Company will not offer exclusivity to the Client’s business niche as the Company specialises in business and inbound services growth across a broad spectrum of niches. 


8. Approvals and Authority

8.1. The Company shall not be responsible for any delay due to the Client failing to provide Client Approval.

8.2. The Company shall, after obtaining Client Approval of its campaign or project plans, submit to the Client for specific Client Approval:

8.2.1.  Copy, layouts, artwork, storyboards, ideas and/or scripts;

8.2.2. Publication schedules for campaigns and other facilities; and

8.2.3. Estimates or quotes of the cost of the traffic and other services covered by the Agreement together with terms of payment [if excluded from the inclusive services as described in the Schedule [1] and Prescription.

8.3. Client Approval of copy, layouts or artwork will be authority for the Company to proceed and schedule production materials and prepare proofs. Client Approval of proofs will be authority for the Company to publish.

8.4. Client Approval of scripts and/or storyboards with estimates or quotations of the production cost will be the Company’s authority to enter into production and design contracts and engage performers. Client Approval of video and audio recordings with estimates or quotations of the cost will be authority to the Company to transmit.

8.5. Client Approval of media schedules and estimates will be authority to the Company to make any such reservations and contracts for space, time and other facilities under the terms and conditions required by media or channel suppliers. 

8.6. The Company will promptly advise the Client of changes in either the estimated costs of Inbound Services or the plans, schedules or work in progress for which the Company has Client Approval.

 

9. Changes to Work in Progress

9.1. The Client may request the Company to cancel or amend any and all plans, schedules or work in progress. The Company will take reasonable steps to comply with any such request provided that it can do so within its contractual obligations to any external media/channels or suppliers.

9.2. Where there is any such cancellation or amendment the Client will reimburse the Company for any charges or expenses it incurs to which it is committed. The Client shall also pay the Company’s remuneration covering the cancelled or amended Services and any third party charges imposed arising from the cancellation or amendment.

 

10. Remuneration

10.1. The Client shall pay the Company the Fee for the Services for each specified in the Schedule [1] and Prescription. Payable as per the stated investment schedule. 

 

11. Media Space and Time Charges

Media charges will be based on the current published rates for Advertising in all media and specifically excluded, all charges will be made direct to The Client by the respective platform.

 

12.Discounts

The Company shall pass on to the Client any discounts it may receive from handling the Client’s Business under this Agreement.

13. Materials, Services and Disbursements

13.1. The Company will invoice the Client in respect of the following costs for which the Company has obtained Client Approval and which it has incurred in performing the Services: 

13.1.1. The cost of all production work required to produce the Inbound Services  [including, photography, stock images and print work], if the Client authorises the Company to purchase these on their behalf, and where they are specifically outside of the inclusive services.

13.1.2. Production costs involved in the preparation of packaging, exhibition and display material, booklets, sales letters, product publicity and other] promotion material or services prepared or suggested by the Company and agreed by the Client.

13.1.3. All costs incurred in the dispatch of Inbound Services material to or from publishers and other media and other special deliveries incurred for the Client in carrying out its instructions and to safeguard its interests.

13.1.4. All costs incurred in taking legal or other advice and undertaking any searches or enquiries, as agreed by the parties from time to time;

13.1.5. Travel and hotel expenses of Company personnel when attending any place at the request of the Client outside a radius of 75 miles from the Company’s offices with the exception of any Company personnel travel to the Client’s premises required in the ordinary course of providing the Services.

13.1.6.  Any other item agreed between the parties in writing.

14. Market research Services

Where any market research services are to be carried out for the Client to obtain data to use for Inbound Services strategies, the basis of the Company’s charges for those services will not be as provided by Clause 10 but will instead be agreed in writing between the Company and the Client in advance. Such research to gather data may include background studies of the market, consumer attitudes, consumer product acceptance, and projects to establish the effect of Inbound Services that has been published.

15. Other Services

The terms of remuneration cover only those services included in the Services listed in the Schedule [1] and Prescription. Certain market research activities are not included in the “Services”, and charges for such activities will be as provided in Clause 14. Charges for any other services required which are not within the “Services” will be the subject of a separate remuneration arrangement.

16. Value Added Tax [VAT]

VAT will be applied and itemised separately on Company invoices, where appropriate, at the rate prevailing from time to time.

17. Evaluation

The parties will carry out an evaluation and review of their relationship every three Months, including (without limitation) the performance of the staff of both parties. Any changes then agreed to Services, remuneration or any other aspect of the Agreement shall be agreed in writing, and in the absence of such agreement, the arrangements in place at the time of the evaluation will continue to apply.

 

18. Terms of Payment

18.1. In this clause, where the payment of an invoice is to be within a stated period, that period begins when that invoice is presented.

18.2. The Company will invoice the Client for the Inbound Services monthly in advance and payment will be as per the Investment schedule as stated in the prescription, the Client is required to pay by debit or credit card on the due date in advance or by BACs transfer.

18.3. The Company will normally invoice the Client for any additional production costs [if applicable] as per the Investment schedule as stated in the prescription, the Client is required to pay by debit or credit card on the due date in advance or by BACs transfer.

18.4. The Company will invoice the Client for any additional traffic costs [if applicable] as per the Investment schedule as stated in the prescription, the Client is required to pay by debit or credit card on the due date in advance or by BACs transfer.

18.5. The Client may withhold payment of any invoice (or part) if that invoice (or part) is not in accordance with this Agreement if, immediately on receipt of any such invoice, the Client notifies the Company in writing of the reason for such withholding and pays the undisputed part of such invoice.

18.6. The Company may charge interest on all invoices or any part/s of any invoice/s presented to the Client not paid by the relevant due date at the annual rate of 5% above the base rate from time to time of Santander bank. Such interest will accrue on a daily basis until the Company receives the full outstanding amount with all accrued interest.

18.7. If surcharges are levied by a third party supplier against Company due to late payment by the Client, the Client shall immediately reimburse Company the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.

18.8. If late copy charges are levied by a media owner against the Company and such charges do not result from the negligent or willful act or omission of the Company, the Client shall immediately reimburse the amount of such late copy charges to the Company.

18.9. If the Company’s credit insurers decline cover for the Client, the Company may revise its terms of payment and if necessary ask for payments in advance of providing Inbound Services or seek suitable guarantees or a financial bond from the Client. If it is not possible to resolve the matter in that way, the Company will have the right of termination set out in Clause 27.3.

18.10. Subject to Clause 18.5, 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.

 

19. Audit

19.1. The Company shall maintain Records in respect of all expenditure that is reimbursable by the Client under this Agreement.

19.2. In order to audit contract compliance, during the Term and for 6 months afterwards, the Company will allow the Client or an Independent Auditor access to all of the Records other than confidential records of the Company that do not relate directly to the Client.

19.3. For the purpose of any such audit the Client and the Company shall agree the scope of the audit before beginning the audit and the Client will give the Company at least 30 days’ prior written notice of such audit.

19.4. Unless the Client reasonably suspects any fraudulent activity, access for such audit or inspection of the Records shall not be more than once during any 12 month period.

19.5. If an audit or inspection of the Records by the Client shows that the Client has been overcharged for traffic, the Company shall reimburse to the Client the amount of the overcharge within 7 days.

19.6. The Company will give reasonable assistance in the carrying out of such audit.

20. Media and Suppliers: Business Terms Selection

20.1. The Company’s contracts with media and/or traffic channel suppliers shall be in accordance with their rate cards or other standard or individual conditions and contracts. The rights and liabilities as between the Client and the Company shall correspond to those between the Company and the various media/traffic channels and other suppliers under such conditions. On the Client’s written request the Company shall supply the Client with the relevant terms and conditions.

20.2. The Company shall use reasonable care and skill in the selection and appointment of media/traffic channel suppliers and the agreement of the terms and conditions of such appointment. 

21. Copyright

21.1. Upon the Client’s written request at the end of the Term, the Company shall assign to the Client with full title guarantee all Rights in the Agency Material together with the right to sue for damages for past infringement, provided that the Client has complied with all of its obligations under the Agreement (including obligations relating to payment and the period of notice). 

21.2. The Company shall use reasonable endeavours to obtain all usage rights in Commissioned Material as is deemed reasonably necessary by the Company. 

21.3. The Company shall use reasonable endeavours to obtain all usage rights in Existing Material as is deemed reasonably necessary by the Company. 

21.4. The Company shall ensure that all Moral Rights in the Agency Material and Commissioned Material are waived, but if this is not possible in respect of any Commissioned Material, the Company will discuss this with the Client in advance of concluding the relevant commissioning contract and proceed as agreed. Performers’ Property Rights in Commissioned Material, if any shall be assigned by the Company to the Client at the end of the Term provided that the Client has complied with all of its obligations under the Agreement subject to any repeat fees previously agreed with the approval of the Client and any legal un waivable right such as the right to equitable remuneration.

21.5. The Client shall be entitled to use the Inbound Services after the end of the Term, subject to complying with the terms of all licences in respect of Commissioned Material and Existing Material, including payment of any additional licence fees[if applicable] including Software subscriptions.

21.6. Notwithstanding any of the above, the Company shall:

21.6.1. Be able during and after the Term to use the Inbound Services to the extent that it consists of Existing Material;

21.6.2. Be able during and after the Term to use the Inbound Services for the purpose of promoting its own business by any means and for purposes associated with the entry and conduct of promoting industry awards schemes; and

 

22. Ownership and Custody of Material
22.1. All Inbound Services materials prepared by the Company and paid for by the Client will be the Client's property.

22.2. The Company will take reasonable care of materials which the Client provides to the Company (the “Property”) and will mark it to identify it as the Client’s property.

22.3. The Company shall either return the Property to the Client on at least 7 days’ notice, or, with the Client’s prior written consent, destroy it. 

23. Insurance

23.1. The Company shall effect and maintain with reputable insurers such policy or policies of insurance as may be necessary to cover the Company’s obligations and liabilities under this Agreement, including but not limited to insurance against loss or damage to the Client’s Property and items coming into existence for the purpose of producing the Inbound Services while in the Company’s possession and Professional Indemnity Insurance with a limit of not less than £2,000,000 per annum.

23.2. Upon the Client’s reasonable request, the Company shall provide the Client with proper evidence of the Company’s continuing compliance with its obligations to insure under this sub-clause

24. Confidential Information

24.1. The parties may not during or after the Term disclose without the other’s prior written permission any confidential information concerning the other’s business, its business plans, or its customers.

24.2. In particular, during and after the Term, the Company will keep confidential all the marketing and sales information and statistics relating to the Client’s business with which the Client may supply the Company in the course of any work for the Client, and the Client will keep confidential all concepts, ideas, rates, projections and forecasts submitted by the Company.

24.3. “Information” in sub-Clauses 24.4 – 24.5 means the information referred to in Clauses 24.1 and 24.2.

24.4. The Company shall impose obligations in terms equivalent to those in Clauses 24.1 and 24.2 on its own personnel. Upon written request by the Client, the Company shall also obtain written assurances from any third parties to whom Information has to be disclosed in order to enable the Company to carry out its obligations under this Agreement.

24.5. For the avoidance of doubt, the restrictions in this Clause 24 shall not prevent:

24.5.1. The disclosure or use of Information in the proper performance of the Company's duties;

24.5.2. The disclosure of Information if required by law;

24.5.3. The disclosure of Information which has come into the public domain otherwise than through unauthorised disclosure; and

24.5.4. The Company from using as it sees fit any general or marketing or advertising intelligence gained by it in the course of its appointment.

25. Warranties and Indemnities

25.1. The Client warrants that to the best of its knowledge information and belief all Client’s Business information supplied to the Company before and during the Term will be accurate and not in any way contrary to English law.

25.2. The Company warrants that having taken such legal advice and undertaken such searches as it considers reasonably necessary, to the best of its knowledge and belief any creative work produced by it as part of the Services will be original to its authors, has not been previously published in any form in the United Kingdom (the “UK”), will not infringe the copyright of any third party in the UK and will not contain anything obscene, blasphemous, libellous or otherwise unlawful in the UK other than as contained in any legal or other advice provided to it and communicated to the Client. The Client accepts full legal responsibility in respect of any Advertising approved by it for publication and will indemnify the Company in respect of any loss or liability, costs (including legal costs) or damages incurred as a result of any use of the Advertising by the Client for advertising purposes.

25.3. The Company warrants that its personnel working on the Services are and shall be competent and suitable in every respect, whether as to qualifications, experience or otherwise, to perform the Services.

25.4. The Company does not give any warranty concerning the exposure of people to any of the Inbound Services.

25.5. The parties agree that any condition, warranty, representation or other term concerning the Advertising and/or the performance of the Services which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by law.

25.6. The Company will not be liable for any error in Inbound Services or delayed distribution or non-publication or if it does not occur as planned, unless due its default or neglect.

25.7. Should either party or its employees sustain any loss or liability, costs (including legal costs) or damages as a result of the other’s breach of this Agreement, the party in breach shall indemnify the other subject to Clause 26.


26. Limitations of Liability

26.1. Nothing in this Agreement shall exclude or in any way limit the Company’s liability for fraud, or for 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 this but including any liability arising under any indemnity under this Agreement:

26.1.1. Any loss of actual or anticipated income or profits, contracts, business, savings, or goodwill; or

26.1.2. 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.

26.2. This Agreement and its Prescription states the full extent of the Company’s obligations and liabilities in respect of the Inbound Services and the performance of the Services.

27. Termination

27.1. Either party may terminate this Agreement by service of notice in accordance with Clause 3.

27.2. Either party may terminate this Agreement forthwith by notice in writing to the other if the other party:

27.3. The Company may terminate this Agreement forthwith by written notice to the Client if the Company cannot obtain normal credit insurance in respect of the Client and advance payments, or the Client does not make suitable guarantees available by within 7 days after the Company’s written request under the provisions of Clause 18.9. During the period between the Company’s request for advance payments and suitable guarantees and the earlier of either the Client providing them or the end of the Term, all the Company’s obligations in relation to the booking of media and traffic through channels shall be automatically suspended, as will any other Company obligation to enter into any commitments involving significant expenditure as principal on the Client’s behalf.

27.4. The parties’ rights, duties and responsibilities shall continue in full force during the agreed period of notice and whether or not there is a period of notice, the Client shall pay all sums due in respect of work done and expenditure committed by the Company until the end of the Term.

27.5. Upon the termination of this Agreement and payment by the Client of all items properly chargeable to the Client hereunder, the Company will give the Client all reasonable co-operation in transferring, subject to the approval of third parties where required, all reservations, contracts and arrangements with media or others for space, time or materials yet to be used and subject to Clause 21, all rights and claims thereto.

27.6. If the Client wishes to engage Inbound Services directly or through another agency, during the agreed period of notice it may do so provided that it pays the Company a sum equivalent to the remuneration which the Company would have been entitled to receive had it delivered the Inbound Services under this Agreement.

 

28. Survival of Obligations on Termination

The following clauses shall continue in effect after the end of the Term:

- Clause 19    Audit

- Clause 21    Copyright

- Clause 22    Ownership and Custody of Material

- Clause 24    Confidential Information

- Clause 25    Warranties and Indemnities

- Clause 26    Limitation of Liability

- Clause 34    Non-Solicitation

- Clause 39    Notices

- Clause 40    Alternative Dispute Resolution

- Clause 41    Law and Jurisdiction

 

29. Advertising Standards and Levies

29.1. Both parties shall comply with all applicable laws and Advertising Regulations issued, made or given by any Advertising Regulator or respective terms and conditions assigned under placing Inbound Services through traffic channels.

29.2. 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 law or Advertising Regulation. 

29.3. The Client shall inform the Company without delay if the Client considers that any Inbound Services, Advertising or Traffic submitted to the Client by the Company for approval is false or misleading or in any way contrary to law or to any applicable Advertising regulation or Traffic Channel Terms and Conditions.

29.4. In order to fund the UK self-regulatory system, a levy is payable to the Advertising Standards Board of Finance (“ASBOF”) in relation to non-broadcast advertising. This levy will be a percentage (such percentage to be determined by ASBOF from time to time) of the gross media cost of outdoor, cinema and press display advertisements (excluding classified lineage, semi-display and any displays, screenings and publications outside the UK), the postage cost of direct mailings in the UK, and the cost of internet advertising in paid for space. The Company shall add such levies to all relevant invoices submitted to the Client [if applicable]. The parties agree that the Client shall be solely liable for payment of such levy.

30. Mailing Lists, Customer databases

Each Party shall ensure that any mailing list or customer database supplied to the other Party shall comply with the requirements of all legislation in force from time to time including, without limitation, the GDPR & Data Protection Legislation.

31. Data Protection [And Data Processing]

31.1. The Parties hereby agree that they shall both comply with all applicable data protection requirements set out in the Data Protection Legislation. 

31.2. Further, the provisions of Schedule 2 shall apply as if set out in this Clause 31, but nothing in Schedule 2 or any other provisions of this Agreement shall relieve either Party of any obligations set out in the Data Protection Legislation and does not remove or replace any of those obligations

..

32. Waiver

No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

33. Force Majeure

33.1.  Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from Force Majeure affecting that Party.

33.2. In the event that a Party to this Agreement cannot perform their obligations hereunder as a result of force majeure for a continuous period of 30 days

,,

the other Party may at its discretion terminate this Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all work completed up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of this Agreement.

34. Non-Solicitation

The parties agree that neither of them will, whether directly or indirectly, during or for a period of 12 months from the end of the Term solicit or entice away or attempt to solicit or entice away any employee of the other party who has worked on the Inbound Services at any time during the last 12 months of the Term.

35. Severance

In the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.

 

36. Assignment

Neither party shall assign, transfer, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise deal in any other manner with this Agreement or any of its rights under it without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

37. Third Party Rights

No part of this Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

38. Entire Agreement

38.1. This Agreement contains the entire agreement with the associated prescription between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.

38.2. Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty, assurance or other provision made innocently or negligently except as expressly provided in this Agreement.

38.3. No variation of this Agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.

39. Notices

39.1. All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.

39.2. Notices shall be deemed to have been duly given:

39.2.1. When delivered, if delivered by courier or other messengers (including special delivery mail) during normal business hours of the recipient; or

39.2.2. When sent, if transmitted by e-mail; or

39.2.3. When sent through the Companies project management system; or

In each case, notices shall be addressed to the most recent address or e-mail address notified to the other Party.

 

40. Alternative Dispute Resolution

40.1. The Parties shall attempt to resolve any dispute arising out of or relating to the Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.

40.2. If negotiations under sub-Clause 40.1 do not resolve the matter within 14 days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.]
40.3. If the ADR procedure under sub-Clause 40.2 does not resolve the matter within 60 of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.

40.4. The seat of the arbitration under sub-Clause 40.3 shall be England and Wales. The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the Parties. In the event that the Parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either Party may, upon giving written notice to the other Party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.

40.5. Nothing in this Clause 40 shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.

40.6. The decision and outcome of the final method of dispute resolution under this Clause 40 shall be final and binding on both Parties. 

41. Law and Jurisdiction 

41.1. This Agreement including any non-contractual matters and obligations arising therefrom or associated therewith shall be governed by, and construed in accordance with, the laws of England and Wales.

41.2. Subject to the provisions of Clause 40, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement including any non-contractual matters and obligations arising therefrom or associated therewith shall fall within the jurisdiction of the courts of England and Wales.

 

Schedule [1] 

The Services as detailed in the Prescription plus where applicable the following;

1. Overall Services

1.1. Study the Client’s Business.

1.2. Analyse the Client’s present and potential markets.

1.3. Create, prepare and submit to the Client for approval Inbound Services ideas, and campaigns.

1.4. Propose and interpret market research activity useful to the Client in promoting the Client’s Business.

 

2. Media

2.1. Evaluate all traffic and promotional media relevant to the Client in promoting the Client’s Business.

2.2. Formulate and submit to the Client for approval marketing and inbound campaigns plans an subsequent implementation.

2.3. Develop, formulate and submit a detailed inbound campaigns schedule for the Client’s approval.

2.4. General Inbound Services planning


3. Production Supervision

3.1. Preparation and submission of Inbound Services for production following all applicable industry best practice guidelines.

3.2. Supervision of production companies and other suppliers [as required].

3.3. Organising dispatch of necessary materials to the traffic channels.

3.4. Making the necessary arrangements for the use of artists, models, music, etc. including licences, buyouts and fees wherever practicable prior to commissioning.


4. Other Services

4.1. Negotiation and agreeing sponsorship deals on behalf of the Client and the formulation of all appropriate sponsorship credits and idents.

4.2. Formulation, development and submission to the Client of merchandising and other promotional schemes.

4.3. Analysing the relevance and usefulness of the internet and other new media as they become available and the formulation, submission and, with the Client’s approval, execution of new media projects.

 

Schedule [2] 

Data Processing – Clause 31.2 refer

1. In this Schedule 2, “personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” shall have the meaning defined in Article 4, EU Regulation 2016/679 General Data Protection Regulation (“GDPR”).
2. All personal data to be processed by the Company on behalf of the Client under this Agreement shall be processed in accordance with the terms of the Companies Privacy Policy.