Terms & Conditions

Terms and Conditions for the Provision of marketing management services by Outsource Now Ltd (trading as ON Marketing).

These Terms and Conditions are incorporated into and form part of the Specification to which they are attached, or will apply independently if no specification / contract is in place.

1. Definitions and Interpretation

The following words and phrases shall have the following meanings (except where the context otherwise requires):

Accounts: Means those products and/or services of the Client listed in the Specification; Agreement Means this Agreement and the Specification;

Advertising Regulation: Means any present or future applicable code of practice, adjudication, decision, guideline, direction or rule of any Advertising Regulator and includes any applicable modification, extension or replacement thereof in force from time to time;

Advertising Regulator: Means the Office of Communications (‘Ofcom’), the Broadcast Committee of Advertising Practice (‘BCAP’), the Committee of Advertising Practice (‘CAP’), the Advertising Standards Authority (‘ASA’), the ASA (Broadcast) and any other UK or EU regulator or statutory or regulatory body relevant to the Advertising and/or the Services to be provided under this Agreement;

Authorised Person: As defined in clause 7.1 and identified in the Specification;

Client: Means the client of the Agency as identified in the Specification; Force Majeure Event As defined in clause 23.1;

Materials: As defined in clause 13.1;

Media Agency: Means Outsource Now Ltd a company incorporated and registered in England and Wales with company number 09061065 and whose registered office is at 80a Oswald Road, Scunthorpe, North Lincolnshire, DN15 7PA Media Agency Fees Means the fees to be charged by the Media Agency to the Client pursuant to the Specification. Such fees may include: (a) Service Fees; (b) Charges of any media supplier appointed by the Media Agent as part of the Services; and (c) any disbursements, expenses or other amounts payable by the Client under the Specification;

Media Supplier Contracts: As defined in clause 5.2;

Services: Means those services the Media Agency will perform for the Client and set out in the Specification;

Service Fees: Fees payable by the Client to the Media Agency in respect of the Media Agency’s provision of the Services;

Term: Means the period to complete the project set out in the Specification unless earlier terminated in accordance with this Agreement;

VAT: Means value added tax at the applicable rate; and 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;

1.1. In this Agreement (except where the context otherwise requires) the clause headings are included for convenience only and shall not affect the interpretation of this Agreement, use of the singular includes the plural and vice versa and the use of any gender includes the other genders.

1.2. The Specification forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement includes the Specification. The Specification defines the contents of this contract.

1.3. References to any statute or statutory provision include a reference to that statute or statutory provision as from time to time amended extended or re-enacted and to any subordinate legislation made from time to time under that provision.

1.4. All other defined words or phrases shall have the meaning given to them when they first appear in that form.

2. Agreement to Act as Agency

The Client appoints the Media Agency to carry out and the Media Agency agrees to provide the Services to the Client in accordance with the Specification during the Term in accordance with this Agreement.

3. Media Agency Services

3.1. The Media Agency will perform the Services detailed in the Specification for the Client.

3.2. The Media Agency will allocate suitable personnel with appropriate levels of experience and seniority to service the Accounts. The Client acknowledges and agrees that it may be necessary for the Media Agency to replace the personnel servicing the Accounts with alternative personnel with similar levels of seniority and experience.

3.3. Media Agency shall not in any way be responsible for the preparation, content, production or supply of copy for any of the Client’s advertising.

3.4. The Media Agency shall act in willing co-operation with creative agencies and other communications suppliers appointed by the Client from time to time when developing all communications plans and activities. The Client shall ensure that its creative agencies and other communications suppliers act in willing co-operation with the Media Agency.

4. Co-operation

The Client will give the Media Agency clear briefings and ensure that all the facts given about the Accounts are accurate. The Media Agency will co-operate fully with the Client and use reasonable care and skill to make the Advertising as successful as is to be expected from a competent media agency. The Client will help the Media Agency do this by making available to the Media Agency all relevant information and co-operating with the Media Agency.

5. Media Agency’s Status

5.1. The Media Agency acts in all its contracts as a principal at law.

5.2. The Client acknowledges and agrees that the Media Agency will be entering into contracts with media suppliers in order to provide the Services to the Client (“Media Supplier Contracts”). All charges, fees and any amounts payable by the Media Agency to any media supplier under a Media Supplier Contract relating to the Services and entered into by the Media Agency in accordance with this Agreement are payable by the Client to the Media Agency.

6. Other Appointments

During the Term the Client will not use another outside agency to provide any of the Services in respect of the Accounts, and the Client acknowledges and agrees that the Media Agency is appointed as the sole and exclusive provider of the Services during the Term.

7. Approvals and Authority

7.1. Any reference in this Agreement to the Client’s ‘written approval’ shall mean written approval by directors or employees of the Client authorised to approve the Media Agency’s plans and schedules and/or expenditure and whose names are set out in the Specification (“Authorised Person”). The Client will notify the Media Agency in writing of any change to the Authorised Persons during the Term. The Media Agency shall not be responsible for any delay in the performance of the Services resulting from the unavailability of an Authorised Person to provide approval.

7.2. For the purposes of this Agreement written approval shall mean approval signified by:

7.2.1. any fax, letter or purchase order on the Client’s notepaper bearing the signature of an Authorised Person;

7.2.2. 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 Media Agency to the Client or a fax, letter or purchase order in accordance with the preceding clause; or

7.2.3. e-mail emanating from the personal e-mail address of an Authorised Person.

7.3. By entering into this Agreement, the Client authorises the Media Agency to contract with third party media suppliers to make reservations and contracts for space, time and other facilities under the terms and conditions required by them in order to fulfil the Services as applicable.

7.4. The Media Agency will advise the Client as soon as reasonably practicable of any changes in the estimated cost of media or any changes in plans, schedules or work in progress other than as set out in the Specification or previously approved in writing by the Client.

8. Amendments to Work in Progress

8.1. The Client may request the Media Agency to cancel or amend any and all plans, schedules or work in progress as set out in the Specification. The Media Agency will take all reasonable steps to comply with any such request provided that the Media Agency is able to do so within the terms and conditions of any Media Supply Contracts and subject at all times to clause 8.2.

8.2. In the event of any such cancellation or amendment the Client will reimburse the Media Agency the Fee for the remainder of the contract set out in the Specification.

9. Media Agency Fees

The Media Agency Fees shall be set out in the Specification and unless otherwise stated shall be exclusive of VAT.

10. Value Added Tax

VAT will be included and itemised separately on Media Agency invoices, where appropriate, at the rate prevailing from time to time and shall be payable to the Media Agency by the Client.

11. Terms of Payment

11.1. The Media Agency will invoice the Client in respect of any project or retainer fees with payment to be received from the Client no more than 30 days of the invoice date, unless otherwise agreed. It is the responsibility of the Client to ensure that a purchase order reference is supplied to Outsource Now Ltd ahead of the first working day of each month, if necessary.

11.2. For project work, and unless otherwise agreed, The Media Agency will invoice the Client for 50% of the project cost up front, and 50% on completion of the project. Work will not begin on the project until the initial payment is made. The project will not be handed to the client until the final payment is made. Project work is defined as any discrete service provided by the Media Agency that has a definitive completion point.

11.3. The Media Agency reserves the right to charge interest on all invoices presented to the Client which are not paid by the relevant due date at a daily rate of 0.5% above the base rate from time to time of The Bank of England. Such interest will accrue on a daily basis from the date on which payment became overdue up to the date on which the Media Agency receives the full outstanding amount together with all accrued interest.

11.4. Without prejudice to the generality of clause 15.2.2:

11.4.1. Where a surcharge is levied under any Media Supply Contract against the Media Agency due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to the Media Agency the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount

11.1. In the event of the Client failing to comply with any of its payment obligations under this Agreement or its credit rating being impaired such that the Media Agency deems that there may be a risk to future payments, the Media Agency reserves the right to revise its terms of payment, if necessary ask for payments in advance of services delivered or seek suitable guarantees from the Client. If it is not possible to reach agreement on suitable revised terms the Media Agency will have the right of termination set out in clause 17.3.

11.2. The Client shall pay all monies which are payable by it to the Media Agency 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 Media Agency.

12. Media: Business Terms and Selection

12.1. Unless otherwise stated in this Agreement, the Media Agency shall enter into Media Supplier Contracts pursuant to this Agreement in accordance with media rate cards or other standard or individual conditions and contracts. The rights and liabilities as between the Client and the Media Agency shall correspond to those between the Media Agency and the various media suppliers under such contracts, including in particular any rights of amendment, omission and cancellation. On the Client’s written request, the Media Agency shall supply the Client with the relevant terms and conditions of any Media Supplier Contract.

12.2. The Media Agency shall use reasonable care and skill in the selection and appointment of any media supplier and the agreement of the terms and conditions of such appointment.

13. Ownership and Custody of Material

13.1. The Media Agency will keep in its care materials entrusted to the Media Agency by the Client or otherwise provided to the Media Agency by the Client in respect of the Services (the “Materials”) and will be responsible for its safekeeping. The Media Agency is entitled to use the Materials and to provide it to media suppliers or third parties as necessary to carry out the Services.

13.2. The Media Agency shall be entitled to return the Materials as is in its possession or control to the Client by delivery to the Client’s offices at the address as set out in the Specification by giving the Client 10 days’ written notice that it no longer requires the Materials.

13.3. All intellectual property rights in the Materials remain with the Client or its licensors. No ownership of intellectual property rights transfers from either party to the other under this Agreement.

14. Confidential Information

14.1. The parties acknowledge a duty not during or after the Term to 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.

14.2. In particular, during and after the Term the Media Agency acknowledges its responsibility to treat in complete confidence all the marketing and sales information and statistics relating to the Client’s business with which the Client may supply the Media Agency in the course of any work for the Client.

14.3. From now on in this clause 14 “Information” will be used to describe the categories of information referred to in clauses 14.1 and 14.2.

14.4. For the avoidance of doubt, the restrictions in this clause 14 shall not prevent:

14.4.1. the disclosure or use of Information in the proper performance of the Media Agency’s duties;

14.4.2. the disclosure of Information if required by law;

14.4.3. the disclosure of Information which has come into the public domain otherwise than through unauthorised disclosure.

14.5. The Client acknowledges that nothing in this Agreement shall affect the Media Agency’s right to use as it sees fit any general marketing or advertising intelligence gained by the Media Agency in the course of its appointment.

15. Warranties and Indemnities

15.1. The Client represents and warrants that:

15.1.1. all Account information supplied to the Media Agency before and during the Term is and will be complete, accurate and not in any way contrary to any applicable law;

15.1.2. that the Materials (and use of the Materials by the Media Agency as envisaged by this Agreement) does not and will not:

(a) infringe the intellectual property or other rights of any third party;

(b) breach any applicable laws, regulations codes of practice or Advertising Regulation;

(c) (where electronic copies of Materials are supplied) contain any viruses or other contaminants.

15.2. The Client shall indemnify the Media Agency and hold the Media Agency harmless from and against:

15.2.1. all losses, damages, liabilities and expenses (including legal expenses) which the Media Agency may incur or sustain directly or indirectly as a result of any claims, demands or civil or criminal proceedings brought or threatened against the Media Agency in connection with any breach by the Client of the terms of this Agreement or any of the representations and warranties given by the Client in this Agreement;

15.2.2. all charges and fees due under Media Supplier Contracts entered into by the Media Agency within and subject to the terms and conditions of this Agreement (including the Specification), including any amounts due as a result of cancellation or variation of the Services by the Client or termination of this Agreement (other than termination by the Client as a result of breach of this Agreement by the Media Agency).

15.3. The Client confirms that it is expressly understood and agreed that in planning and buying the Client’s media activity, the Media Agency shall use its reasonable endeavours to ensure the accuracy of all estimated and target figures relating to:

15.3.1. the number, proportion or type of people likely to be exposed to the Client’s Materials;

15.3.2. the number of exposures each person is likely to receive; and

15.3.3. the cost of achieving these exposures.

Since these are matters which are ultimately beyond the Media Agency’s control, no warranties can be given by the Media Agency as to the accuracy of such estimates/targets or as to the figures actually occurring and no liability shall attach to the Media Agency in respect of any losses suffered by the Client or by any third party by reason of the Client’s reliance on such estimates/targets.

16. Limitation of Liability

16.1. Nothing in this Agreement shall exclude or in any way limit the Media 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 Agreement:

16.1.1. the Media Agency’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed the total Service Fees payable to the Media Agency hereunder during the preceding 12 months or (if shorter), during the Term); and

16.1.2. the Media Agency will not be liable under this Agreement for any loss of actual or anticipated income or profits, loss of contracts, loss of reputation or goodwill, loss or corruption of data 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.

16.2. This Agreement states the full extent of the Media Agency’s obligations and liabilities in respect of the Advertising and the performance of the Services. 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.

17. Term & Termination

17.1. The Agreement will start on the Effective Date, and continue until expiry of the defined services either in the attached specification or otherwise.

17.2. The Client may terminate any Agreement exactly 12 months after the Effective Date by providing the Agency with at least 3 months written notice, unless otherwise agreed.

17.3. Either party may terminate this Agreement on at least 3 months’ written notice to the other party, such notice to expire at the end of the Initial Term or any the Renewal Term then in effect.

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

17.4.1. is in material breach of any of the terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 1 week of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or

17.4.2. (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or

17.4.3. (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or

17.4.4. becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or

17.4.5. has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or

17.4.6. ceases, or threatens to cease, to carry on business.

17.5. The Media Agency shall be entitled to terminate this Agreement by written notice and/or (at the Media Agency’s option) suspend provision of the Services to the Client with immediate effect if the Client has failed to make any payment in accordance with the terms of this Agreement or suitable guarantees have not been made available by the Client within 1 week after the Media Agency’s written request under the provisions of clause 11.5. During the period between the Media Agency’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 Media Agency’s obligations in relation to the booking of media shall be automatically suspended, as will any other Media Agency obligation to enter into any commitments involving significant expenditure as principal on the Client’s behalf.

17.6. 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 Media Agency until the end of the Term.

18. Survival of Obligations on Termination

The following clauses shall survive the end of the Term: Clause 13 Ownership and custody of material Clause 14 Confidential information Clause 15 Warranties and indemnities Clause 16 Limitation of liability Clause 24 Non-solicitation Clause 29 Notices Clause 30 Applicable law Clause 31 Dispute resolution

19. Advertising Standards and Levies

19.1. The Client shall comply with all applicable laws and Advertising Regulations issued, made or given by any Advertising Regulator.

19.2. The Client will co-operate ensure that suitable objective factual product and other information is available as required to satisfy the requirements of any applicable law or Advertising Regulation.

19.3. The Client shall inform the Media Agency without delay if the Client considers that any Materials submitted to the Media Agency by the Client is false or misleading or in any way contrary to law or to any applicable Advertising Regulation.

19.4. In order to fund the UK self-regulatory system, a levy is payable to:

19.4.1. 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.

19.5. If applicable, the Media Agency shall add such levies to all relevant invoices submitted to the Client, but no Service Fees (as defined in the Specification if applicable) shall be payable on the amount of such levies. The parties agree that the Client shall be solely liable for payment of any such levy.

20. Financial Promotions

20.1. For the purposes of this clause 20:

20.1.1. ‘authorised person’ shall have the meaning set out in as section 31 of the FSMA (rather than the meaning set out in clause 7 of this Agreement); and

20.1.2. ‘Financial Promotion’ means any material created by the Agency for the Client pursuant to this Agreement that comprises or includes an invitation or inducement to engage in investment activity (as those terms are from time to time interpreted for the purposes of the FSMA);

20.1.3. ‘FSMA’ the Financial Services and Markets Act 2000 together with any rules, orders, regulations, codes of practice and delegated legislation made thereunder from time to time.

20.2. The Client shall be responsible for ensuring that it, and every Financial Promotion, complies with the FSMA and all relevant rules, regulations and guidance issued by Financial Services Authority from time to time (including without limitation the ‘Conduct of Business Sourcebook’, as amended from time to time).

20.3. The Client warrants in relation to each Financial Promotion that:

20.3.1. the Client is an authorised person and that such Financial Promotion will be seen and approved by the Client for the purposes of section 21 of the FSMA prior to being communicated to any person; or

20.3.2. if the Client is not required to be an authorised person, that such Financial Promotion will be approved by an authorised person for the purposes of section 21 of the FSMA prior to being communicated to any person; or

20.3.3. such Financial Promotion is otherwise permitted by the FSMA; and

20.3.4. no liability shall attach to the Media Agency or to any media suppliers appointed by it pursuant to this Agreement in respect of any Financial Promotion

21. Data Protection

21.1. 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 Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended), and that each party shall comply with the relevant obligations of the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended).

22. Waiver

The failure of either party to enforce or to exercise at any time or for any period any term of or any right pursuant to this Agreement shall not be construed as a waiver of any such term or right and shall in no way affect that party’s right later to enforce or exercise it.

23. Force Majeure

23.1. Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement caused by circumstances beyond the reasonable control of a party to this Agreement (including a labour dispute between a party to this Agreement and its employees as well as a labour dispute between a third party and its employees) (a ‘Force Majeure Event’).

23.2. The party claiming the Force Majeure Event shall promptly notify the other party in writing of its reasons for the delay or stoppage and its likely duration and shall take all reasonable steps to overcome the delay or stoppage.

23.3. If the party claiming the Force Majeure Event has complied with clause 23.1, its performance under this Agreement shall be suspended for the period that the Force Majeure Event continues and the party will have a reasonable extension of time for performance of its obligations given all the circumstances. As regards the delay or stoppage arising from the Force Majeure Event:

23.3.1. Any costs arising from such delay or stoppage shall be borne by the party incurring those costs;

23.3.2. The party claiming the Force Majeure Event shall take all reasonable steps necessary to bring that event to a close or to find a solution by which its obligations under this Agreement may be performed despite the Force Majeure Event;

23.3.3. If the Force Majeure Event continues for more than 30 consecutive days, the party which is not claiming the Force Majeure Event may terminate this Agreement with immediate effect on giving written notice to the other party and neither shall be liable to the other for such termination.

24. Non-solicitation

The parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during or for a period of 6 months from the end of the Term solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any key executive of the other party who has worked on the Account at any time during the last 6 months of the Term . 25. Severance

If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

26. Assignment

Neither party shall assign, transfer, charge or 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 conditioned, withheld or delayed.

27. Third Party Rights

A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

28. Entire Agreement

28.1. This Agreement and the documents referred to in it (the “Contractual Documentation”) constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.

28.2. The parties agree that neither of them have been induced to enter into any Contractual Documentation in reliance upon any warranty, representation, statement, agreement or undertaking of any kind (whether negligently or innocently made) of any person other than as expressly set out in this Agreement as a warranty. The only remedy available to the parties for breach of the warranties shall be for breach of contract under the terms of this Agreement and the parties unconditionally and irrevocably waive any other claims, rights or remedies that may otherwise be available. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.

28.3. 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.

29. Notices

29.1. Any notice, invoice or other communication which either party is required by this Agreement to serve on the other party shall be sufficiently served if sent to the other party at its registered address (or such other address as is notified to the other party in writing) as follows:

29.1.1. by hand;

29.1.2. by registered or first class post or recorded delivery; or

29.1.3. by facsimile transmission confirmed by registered or first class post or recorded delivery; or

29.1.4. by email confirmed by registered or first class post or recorded delivery.

Notices sent by registered post or recorded delivery shall be deemed to be served three (3) Working Days following the day of posting. Notices sent by facsimile transmission or email shall be deemed to be served on the day of transmission if transmitted before 4.00 p.m. on a Working Day, but otherwise on the next following Working Day. In all other cases, notices are deemed to be served on the day when they are actually received.

30. Governing Law and Jurisdiction

30.1. This Agreement shall be governed by and construed in accordance with the law of England and Wales.

30.2. Each party irrevocably agrees to submit to the exclusive jurisdiction of the Courts of England and Wales over any claim or matter arising under or in connection with this Agreement or the legal relationships established by this Agreement.

31. Dispute Resolution

31.1. If any claim or dispute arises under or in connection with this Agreement, the parties will attempt to settle such claim or dispute by negotiation.

31.2. If any claim or dispute cannot be settled by negotiation within 21 days after either party has made a written offer to the other party to negotiate a settlement to such claim or dispute, the parties shall, before resorting to court proceedings, attempt to resolve the claim or dispute by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure.

31.3. If the parties have not settled any claim or dispute by mediation within 42 days from the initiation of the mediation, the dispute shall be referred to and finally resolved by the courts in accordance with clause 30.

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