1. INTERPRETATION
The following definitions shall have the following meanings in this Agreement:
Affiliates: in respect of any person to whom the term Affiliate refers a company, corporation or partnership or other business entity (“entity”) which is directly or indirectly controlled by or under substantially common control with or controls (as the case may be) the person so referred to and for this purpose “control” means the power of an entity to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership, Agreement or other document regulating the entity in question) that the entity’s affairs are conducted in accordance with its wishes.
Agreement: the Order and these Terms and Conditions.
Copyright: all copyright and rights in the nature of copyright subsisting in the Products in any part of the world to which the Service Provider is, or may become, entitled.
Customer’s Marks: the Customer’s name and all proprietary marks, brands and logos associated therewith;
Good Professional Practice: the exercise of that degree of skill, care, diligence, prudence and foresight which would reasonably and ordinarily be expected from time to time from a skilled and experienced contractor engaged in the same type of undertaking and in the same or similar circumstances and conditions as those envisaged by this Agreement
Order: the order form provided by the Service Prover setting out certain agreed particulars in respect of the delivery of the Services pursuant to this Agreement.
Product: any work, report or advice produced by the Service Provider pursuant to the provision of the Services.
Service Provider: as set out in the Order
Service Provider Marks: all trademarks and service marks (whether registered or unregistered) associated with the Service Provider’s name, marks, publications and websites
Services: those services whose details are set out in the Order
Sponsorship Rights: as set out in the Order marked as ‘Deliverables’.
Start Date: as set out in the Order.
Term: as set out in the Order.
2. FORM AND DELIVERY OF THE WORK
2.1 The Service Provider agrees to deliver the Services to the Customer in accordance with Good Professional Practice.
2.2 Delivery of the Services shall be in accordance with such timescales as have been agreed by the parties from time to time.
2.3 The Service Provider shall obtain all and any necessary approvals, permissions and consents required to use any content appearing or otherwise incorporated in the Products.
2.4 During the performance of the Services the Service Provider may provide interim comment and analysis in respect of which no duty of care is owed to the Customer.
2.5 The Customer shall provide the Service Provider with such information and assistance as it may reasonably require from time to time on a timely basis.
3. GRANT OF RIGHTS AND RESERVATIONS
3.1 The Service Provider grants and the Customer accepts the Sponsorship Rights in accordance with the terms and conditions set out in this Agreement.
3.2 All rights not expressly granted to the Customer under this Agreement are reserved to the Service Provider. The Customer acknowledges and agrees that the Service Provider is the owner or controller of the Sponsorship Rights;
3.3 The Customer grants and the Service Provider accepts a worldwide, non-exclusive, royalty free, sub-licensable licence to use the Customer’s Marks during the Term for the delivery of the Sponsorship Rights.
4. FEES
4.1 The Customer shall pay all fees due in respect of the provision of the Services to the Service Provider (or its designee) in accordance with the terms of the Order and any applicable invoice. For the avoidance of doubt, time for payment of such fees shall be of the essence.
4.2 All sums due to the Service Provider under this Agreement are exclusive of VAT and shall be paid without deduction, set-off, counterclaim or withholding.
4.3 The provisions of this clause 4 shall remain in effect notwithstanding termination or expiry of this Agreement until the settlement of all subsisting claims previously identified by the Service Provider.
5. LICENCE AND RESERVATION OF RIGHTS IN THE SERVICES
5.1 Subject to the provisions of the Schedule, the Service Provider retains all Copyright and other intellectual property rights in the Products and Services throughout the world and hereby grants to the Customer the non-exclusive right for the Term to copy, reproduce and distribute the Product in whole, partial or adapted form. For the avoidance of doubt, on expiry of the Term, the foregoing licence may be exercised perpetually without payment of royalty provided that distribution of the Product is restricted to employees of the Customer from time to time.
5.2 The Customer shall procure that its employees or agents and those of its Affiliates do not, without the Service Provider’s prior written consent:
(a) Attempt to duplicate or modify any portion of the Products except as expressly permitted in this Agreement; or
(b) Alter any part of the Products; or
(c) Sell or market any of the Products or any material contained within the Products (including by using it as part of any library, archive or similar service); or
(d) Remove the copyright or trade mark notice from any of the Products, including without limitation, reports issued pursuant to this Agreement; or
(e) Create a database in electronic or structured manual form by systematically downloading and storing all or any of the Products;
(f) Extract any of the contents from the Products in whatever format such contents take.
5.3 The Customer may cite the Products on a commercial basis only after obtaining the Service Provider’s prior written consent, which consent may be provided on such terms as the Service Provider requires at its absolute discretion from time to time.
5.4 The Customer acknowledges that it retains responsibility for configuring its information technology, computer programs and platform in order to access any part of the Products provided by computer networks and for the deployment of anti-virus software.
6. OBLIGATIONS OF THE CUSTOMER
6.1 The Customer undertakes to the Service Provider:
(a) to submit to the Service Provider for its prior written approval, not to be unreasonably withheld or delayed, pre-production samples of any advertising, promotional or other material or press release which associates the Customer with the Product, before its distribution;
(b) to provide to the Service Provider, at the Customer’s sole cost and expense, all suitable material including artwork of the Customer’s Marks in a format and within print deadlines reasonably specified by the Service Provider for it to be reproduced under the control of the Service Provider for the fulfilment of the Sponsorship Rights;
(c) not to apply for registration of any part of the Service Provider Marks or anything confusingly similar to the Service Provider Marks as a trade mark for any goods or services;
(d) not to use the Service Provider Marks or any part of them or anything confusingly similar to them in its trading or corporate name or otherwise, except as authorised under this Agreement;
(e) to use all reasonable endeavours to assist the Service Provider in protecting the Service Provider Marks and not to knowingly do, or cause or permit anything to be done, which may prejudice or harm or has the potential to prejudice or harm the Service Provider Marks or the Service Provider’s title to the Service Provider Marks;
(f) to notify the Service Provider of any suspected infringement of the Service Provider Marks, but not to take any steps or action whatsoever in relation to that suspected infringement unless requested to do so by the Service Provider.
6.2 The Customer has no right to sub-license, assign or otherwise dispose of any of the Sponsorship Rights, without the Service Provider’s prior written consent.
7. WARRANTIES
7.1 the Service Provider represents and warrants that:
(a) as far as it is aware, the exploitation of the rights granted by this Agreement has not infringed, and will not infringe, the rights of any third party; and
(b) the Products will contain nothing that is defamatory or obscene, or unlawful in any other way;
(c) it will comply with the requirements of applicable data protection law (including, without limitation, the General Data Protection Regulation).
7.2 No warranties are provided that the Products will identify of all matters that may be of interest to the Customer.
7.3 Except as expressly and specifically provided in this Agreement all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
8. ASSIGNMENT AND OTHER DEALINGS
8.1 The Customer shall not assign any of its rights or obligations under this Agreement or subject any of its rights or obligations under this Agreement to any mortgage, charge, pledge, lien, option or anything equivalent.
8.2 the Service Provider shall not assign any of its rights or obligations under this Agreement or subject any of its rights or obligations under this Agreement to any mortgage, charge, pledge, lien, option or anything equivalent.
9. CONFIDENTIALITY
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) Is or becomes publicly known other than through any act or omission of the receiving party; or
(b) Was in the other party’s lawful possession before the disclosure; or
(c) Is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) Is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) Is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.2 Each party shall hold the other’s Confidential Information in strict confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
9.3 Each party shall use its best endeavours to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed except in accordance with the terms of this Agreement.
9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.5 The Products and any advice provided by the Service Provider pursuant to this Agreement shall be deemed to be Confidential Information pursuant to this clause 7.
9.6 This clause shall survive termination of this Agreement, however arising.
9.7 the Service Provider shall not publicize in any manner information regarding the existence of this Agreement or its terms, including, without limitation, the Customer’s identity, without the prior written consent of the Customer, provided, however, that the Service Provider shall not be prohibited from making disclosures to the extent required by law, provided further, that, the Service Provider shall immediately notify the Customer of such requirement, prior to any disclosure.
10. TAX EVASION FACILITATION PREVENTION
10.1 For the purposes of this clause 10:
(a) the expressions ‘Prevention Procedures’, ‘UK Tax Evasion Offence’ and ‘Foreign Tax Evasion Offence’ will be construed in accordance with Part 3 of the Criminal Finances Act 2017 (‘CFA 2017’) and guidance published under it;
(b) Corporate Failure to Prevent Offence means an offence under section 45 and/or section 46 of CFA 2017 and any other applicable United Kingdom laws, legislation, statutory instruments and regulations in relation to preventing the facilitation of tax evasion and any similar or equivalent laws in any other relevant jurisdiction;
10.2 The Customer will ensure that s/he will not by any act or omission commit, or cause, facilitate or contribute to the commission by any person including the Service Provider, of a:
(a) Corporate Failure to Prevent Offence;
(b) UK Tax Evasion Offence; or
(c) Foreign Tax Evasion Offence
in connection with this Agreement.
10.3 The Customer will not solicit or engage with or take steps to solicit or engage with any person associated with the Service Provider to facilitate the commission of a UK Tax Evasion Offence or a Foreign Tax Evasion Offence in connection with this Agreement.
10.4 The Customer will pay, in full and in a timely manner, all taxes due and payable relating to all monies, remuneration, profit and value received or payable by it in connection with this Agreement.
10.5 Without prejudice to clause 10.2, the Customer shall comply with the Service Provider’s Prevention Procedures as notified to it from time to time.
10.6 The Customer warrants and represents that it has not:
(a) been investigated in connection with, or charged with having committed or facilitated the commission of any UK Tax Evasion Offence or any Foreign Tax Evasion Offence;
(b) received any court orders, warrants or oral or written notices from a government prosecuting authority concerning any actual or alleged violation by it of any UK Tax Evasion Offence or any Foreign Tax Evasion Offence; or
(c) received any report (including a report from your auditors or any other person) or discovered any evidence suggesting that it has committed or facilitated the commission of any UK Tax Evasion Offence or any Foreign Tax Evasion Offence.
10.7 The Customer must immediately notify the Service Provider as soon as it becomes aware of any allegation, investigation, evidence or report relating to a breach or possible breach of any of the requirements in this clause 10.
11. IPR INDEMNITIES
11.1 The Customer shall indemnify and keep indemnified the Service Provider from and against all claims, damages, losses, costs (including all reasonable legal costs), expenses, demands or liabilities arising out of any claim that the Customer’s use of the Service Provider Marks infringes any Intellectual Property Rights or moral rights of any third party.
11.2 The Service Provider shall indemnify and keep indemnified the Customer from and against all claims, damages, losses, costs (including all reasonable legal costs), expenses, demands or liabilities arising out of any claim that the Service Provider’s use of the Customer’s Marks infringes any Intellectual Property Rights or moral rights of any third party.
11.3 The party seeking to rely on an indemnity at clause 11.1 and clause 11.2 (“Indemnified Party”) shall:
(a) promptly and fully notify the other party (“Indemnifying Party”) of any third-party claim in respect of which it wishes to rely on the indemnity (“IPR Claim”);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPR Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, which is not to be unreasonably withheld;
(c) provide the Indemnifying Party with any reasonable assistance regarding the IPR Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPR Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPR Claim diligently and in a way that does not bring the reputation of the Indemnified Party into disrepute.
12. LIABILITY
12.1 This clause sets out the Service Provider’s entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) Any breach of this Agreement;
(b) Any use made by the Customer of the Products or Services or any part thereof; and
(c) Any representation, statement or tortious act or omission (whether negligent or otherwise) arising under or in connection with this Agreement.
12.2 Nothing in this Agreement excludes the Service Provider’s liability:
(a) For death or personal injury caused by its negligence; or
(b) For fraud or fraudulent misrepresentation.
12.3 Subject to clause 12.2 above:
(a) the Service Provider shall not be liable for any loss of profits, loss of business, depletion of goodwill and/or similar losses or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising; and
(b) the Service Provider ’s total aggregate 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 this Agreement shall be limited to the fees due pursuant to clause 3.1 above.
12.4 Under this clause 12, the Service Provider’s liability includes that of any Affiliate and its and their respective agents, employees and sub-contractors.
12.5 the Service Provider shall have no liability to the Customer under this Agreement in respect of any part of the Product that is inaccurate or misleading to the extent it is occasioned by the Service Provider’s reliance on information previously provided by the Customer pursuant to this Agreement.
12.6 The Service Provider shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations or from carrying on business by acts, events, omissions or accidents beyond its reasonable control, including without limitation default of sub-contractors, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or communications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.
13. TERMINATION
13.1 Either party may terminate this Agreement with immediate effect by giving written notice if:
(a) the other commits a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if such breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so; or
(b) the other party becomes Insolvent within the meaning of section 123 of the Insolvency Act 1986.
13.2 On termination of this Agreement for any reason:
(a) All licences granted under this Agreement shall immediately terminate;
(b) Termination shall not affect or prejudice the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination.
14. MISCELLANEOUS
14.1 The Service Provider may at any time set off any liability it owes to the Customer against any liability of the Customer to the Service Provider , whether any such liability is present or future, liquidated or unliquidated, under this Agreement or not. Any exercise by the Service Provider of its rights under this clause shall be without prejudice to any other rights or remedies available to it under this Agreement or otherwise.
14.2 Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this Agreement.
14.3 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.4 This Agreement constitutes the entire Agreement between the parties and supersedes all previous Agreements between the parties relating to its subject matter. Each of the parties acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether negligently or innocently made) other than as expressly set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
14.5 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.6 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
14.7 No person other than a party to this Agreement shall have any rights to enforce any term of this Agreement.
14.8 This Agreement (and the licence granted pursuant to clause 3 above) may be assigned, transferred, sub-licensed, or charged by the Service Provider without the prior written consent of the Customer.
14.9 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
14.10 This Agreement comprises the Order, Schedule and the terms and conditions set out herein. In the event of any conflict, the Order shall prevail.
14.11 This Agreement may be executed by electronic signature. Each of the parties waives any and all rights to dispute the validity, legality or enforceability of such method of execution as evidence of the existence of legal relations pursuant to the Agreement for the purposes of proceedings issued in respect of any of its terms.