Contract Terms & Conditions
Terms and conditions of supply for completing the IO/Scope of Work provided by The Church of London Publishing Limited a company incorporated in England whose registered office is 71A Leonard Street, London, EC2A 4QS (the “Agency” or “TCO London”)
1.1 The Client will give the Agency clear briefings and ensure that all facts given are accurate. The Agency will co-operate fully with the Client and use reasonable care and skill to make the Project as successful as is to be expected from a competent marketing agency. The Client will help the Agency do this by making available to the Agency all relevant information and co-operating with the Agency.
2. Approvals and Authority
2.1 The Client(s) authorised to approve the Agency’s work and/or expenditure shall include those named in this Scope of Work on Page 1 (“Authorised Persons”)
2.2 Approval shall mean approval signified by:
2.2.1 Any letter or purchase order on the Client’s notepaper bearing the signature of an Authorised Person;
2.2.2 Oral approval given by an Authorised Person provided this is in circumstances where time does not permit Written Approval and the said oral approval is confirmed within one Working Day by way either of a contact report from the Agency to the Client or a letter or purchase order in accordance with the preceding sub-Clause;
2.2.3 E-mail emanating from the personal or business e-mail address of an Authorised Person.
3. Contact Reports
3.1 Contact reports providing each party with a written record of all matters of substance discussed at meetings or in telephone conversations between the parties will be supplied by the Agency to the Client within 2 Working Days following the meeting or conversation. If the subject matter of a contact report is not questioned by the Client within 2 Working Days of its receipt, it will be taken to be an accurate record of the meeting or telephone conversation to which it refers.
4. Amendments to Work in Progress
4.1 The Client may request the Agency to cancel or amend any and all plans, schedules or work in progress. The Agency will take all reasonable steps to comply with any such request provided that the Agency is able to do so within its contractual obligations to suppliers.
4.2 In the event of any such cancellation or amendment the Client will reimburse the Agency for any charges or expenses incurred by the Agency to which the Agency is committed. The Client shall also pay the Agency’s remuneration covering the cancelled or amended work carried out as well as any charges imposed on the Agency by third parties arising from the cancellation or amendment.
4.3 The Agency shall complete a change request form for Client approval setting out revised costs due to any amendment and revised timing plan if appropriate.
5. Other Services and Payment Terms
5.1 The terms of remuneration set out above do not cover the usage of Agency IP in existence prior to the commencement of the Project but incorporated within it beyond the use within the Project.
5.2 The Agency reserves the right to charge interest on all invoices presented to the Client which are not paid by the relevant due date at the annual rate of 8%. Such interest will accrue on a daily basis from the date on which payment became overdue up to the date on which the Agency receives the full outstanding amount together with all accrued interest. This right extends to any part of an invoice of which payment is withheld should it be subsequently established that the amount in question was invoiced in accordance with this Agreement.
6. Suppliers: Business Terms and Selection
6.1 Unless otherwise stated in this Agreement, the Agency’s contracts with suppliers in respect of the Services shall be made in accordance with, as far as possible, standard or individual conditions and contracts. The rights and liabilities as between the Client and the Agency shall correspond, as far as possible, to those between the Agency and the various suppliers under such conditions, including in particular any rights of amendment, omission and cancellation.
7. Copyright and Other Intellectual Property Rights
7.1 The Rights in the Project Deliverables vest in the Client unless different arrangements are made in writing. Rights means any copyright, extended or revived copyright, design right, registered design right, patent, trade mark, database rights, or any similar right exercisable in any part of the world, including applications for registration of any patent trade mark, registered design or similar rights in any part of the world. The Rights (with the same meaning as above) in any Agency Material vest in the Agency. Agency Material means all artwork, copy, models, designs, photographs, software and all other materials created by the Agency for the Project or in connection with the Project.
7.2 The Agency shall obtain all usage rights in Existing Material and Commissioned Material as are deemed necessary by the Agency at the time such material is selected or obtained. Existing Material means any photograph, music, sound recording, software or any other material protected by Rights, created by a third party and in existence at the time it is desired to make use of it for the purposes of the Project. Commissioned Materials means all artwork, copy, designs, photographs, software, films, sound recordings and all other material the creation of which is commissioned by the Agency from third parties during the Term for the Advertising;
7.3 The Agency shall be able after first publication or broadcast on behalf of the Client,
for the purpose of promoting its own business by means including but not limited to a show on the Agency’s own website and for purposes associated with the entry and conduct of advertising industry awards schemes; and
7.4 The Agency shall retain the copyright in any material contained in any presentation made in competition with any other agency in the event of the Agency’s presentation being unsuccessful.
8. Confidential Information
8.1 The parties acknowledge a duty not during the Project or for one year from completion of the Project disclose without the other’s prior written permission any confidential information either concerning the other’s business, its business plans, customers or associated companies or resulting from studies or surveys commissioned and paid for by the Client.
8.2 For the avoidance of doubt, the restrictions in this Clause shall not prevent:
8.2.1 The disclosure or use of information in the proper performance of the Agency's duties;
8.2.2 The disclosure of information if required by law.
8.2.3 The disclosure of information which has come into the public domain otherwise than through unauthorised disclosure.
9. Warranties and Indemnities
9.1 If there is an error in the Project as published or publication is delayed or does not occur as planned, the Agency will not be liable unless this is caused by its default or neglect.
9.2 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.
9.3 The Client warrants that to the best of its knowledge information and belief all information supplied to the Agency before and during the Project will be accurate and not in any way contrary to any law applicable.
9.4 The Agency warrants that having taken such legal advice and undertaken such searches as the Agency considers reasonably necessary, to the best of its knowledge and belief any creative work produced by the Agency as part of the Services will be original to its authors, has not been previously published in similar 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 the Agency and communicated to the Client.
9.5 The Client accepts full legal responsibility in respect of the Project approved by it for publication and will indemnify the Agency in respect of any loss or liability, costs (including legal costs) or damages incurred as a result of any use of the Project by the Client for advertising purposes.
9.6 The Agency warrants that its personnel working on the Project are and shall be competent and suitable in every respect, whether as to qualifications, experience or otherwise, to perform the Project requirements.
10. Limitation of Liability
10.1 Nothing in this Scope of Work shall exclude or in any way limit the Agency’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 Scope of Work:
10.1.1 The Agency’s maximum aggregate liability under or in connection with this Scope of Work, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed the total remuneration (less third party costs) payable to the Agency hereunder; and
10.1.2 The Agency will not be liable under this Agreement for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
11.1. TCOLondon may, without prejudice to any other claim or actions, terminate this Agreement immediately if:-
a.Maker commits a material breach of this Agreement which is not capable of remedy or commits a breach of this Agreement which is capable of remedy and Maker fails to remedy such breach within 7 (seven) days of receipt of notice requiring its remedy;
b.Maker becomes insolvent or unable to pay its debts and steps have been taken with a view to the winding-up, administration or administrative receivership of Maker or making any composition, assignment or arrangement with any creditors of Maker.
11.2. Any termination of this Agreement shall not affect any of the rights and liabilities of either party on the date of termination of this Agreement.
12.1 Without limiting any other right(s) either party, in the event of the occurrence of an event of force majeure (where “force majeure” means that if as a result of any act of God, war or terrorist activity, accident, fire, strike, lock out or other labour controversy, riot, civil disturbance, act of public enemy, law, enactment, rule, restraint, order or act or any governmental instrumentality or military authority; failure of technical facilities; inability to obtain sufficient labour, technical or other personnel (including, without limitation, cast or crew members); failure, delay or reduction in transportation facilities or water, electricity or other public utilities; death, disability, disfigurement (with respect to cast and key personnel only) or inability to obtain visas, work licences or other governmental licences for any such persons; or other cause not reasonably within either party’s control or which either party could not by reasonable diligence have avoided, either party is hampered in the execution of this Agreement), the affected party shall have the right to suspend or terminate the Agreement and shall have the right, but not the obligation, to extend the Agreement by the length of any such suspension.
13. Entire Agreement
13.1 This Scope of Work and the documents referred to in it constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of this Agreement.
14. Governing Law and Jurisdiction
14.1 This Agreement shall be governed by and construed in accordance with the law of England and Wales