DEFINITIONS & INTERPRETATION

Definitions used in this Agreement are defined in Schedule 1.

Definitions which are relevant and used only within a particular clause or Schedule are defined in that clause or Schedule.

APPOINTMENT & SCOPES OF WORK

During the Term, the Supplier shall perform the Services and (where relevant) shall supply the Deliverables to the Client in relation to the Accounts in accordance with the Annual Scope of Work and any Project Scopes of Work (if applicable) which are agreed between the parties from time to time in writing.

The parties may agree new Projects from time to time by agreeing a new Project Scope of Work in writing. Once a Project Scope of Work has the signature of both the Authorised Supplier Approver and Authorised Client Approver, such Project Scope of Work shall form part of this Agreement.

The Annual Scope of Work may include one or more Schedules which incorporate additions and amendments to these General Terms to reflect the different types of Services to be provided for the Retainer Fee. Any such Schedules form part of this Agreement for the duration of the Annual Scope of Work.

A Project Scope of Work may include one or more Schedules which incorporate additions and amendments to these General Terms to reflect the different types of Services to be provided for the relevant Project. Any such Schedules form part of this Agreement for the duration of the relevant Project set out in the Project Scope of Work.

TERM

This Agreement shall commence on the Effective Date and shall continue for the Initial Period and thereafter subject to earlier termination in accordance with clause 10, unless and until terminated by either party giving not less than 90 days’ notice in writing to the other party, such notice to expire no earlier than the end of the Initial Period.

Where the parties agree Projects in addition to the Annual Scope of Work, each such Project shall commence on the Project Commencement Date set out in the Project Scope of Work and shall continue until the Project Completion Date set out in the Project Scope of Work, subject to earlier termination in accordance with the terms of clause 10.

AMENDMENTS & CANCELLATIONS

In the event that either party wishes to make any material amendment to the Annual Scope of Work, any such amendment shall be subject to the agreement of both parties in writing.

Where the parties have agreed any additional Project Scopes of Work, if either party wishes to make any material amendment to a Project Scope of Work, any such amendment shall be subject to the agreement of both parties in writing.

In the event of any amendment to the Annual Scope of Work or a Project by the Client, the Fees payable to the Supplier in respect of the amended Services shall not decrease below the level of Fees that would have been payable had the Services not been amended, save with the prior written approval of the Supplier.

Pending approval (in accordance with clause 5) of any amendments to the Annual Scope of Work or Project Scope of Work, the Supplier shall (unless otherwise agreed) continue to perform and be paid for the Services as if such change had not been requested.

Subject to clause 4.6, 4.7 and 10.2 the Client may request, in writing, the Supplier to cancel any Project or part thereof, including any plans, schedules or work in progress in respect of any Project. The Supplier will take all reasonable steps to comply with any such request provided that the Supplier is able to do so within its contractual obligations to suppliers. For the avoidance of doubt any cancellation or termination of the Annual Scope of Work shall be subject to the Client giving notice to the Supplier, and such notice shall be not less than the notice period set out in clause 10.1.

In the event of any such cancellation the Client will reimburse the Supplier for all Fees up to the date of cancellation, together with any third party charges or other expenses or costs incurred by the Supplier or to which the Supplier is committed as well as any charges or other expenses or costs imposed on the Supplier by third parties arising from the cancellation including all sums agreed to be paid by the Supplier to a production company (provided the Supplier has notified the Client in advance of any cancellation provisions contained in the contract between the Supplier and production company), provided that the Supplier shall use reasonable endeavours to mitigate any such third party charges or expenses if reasonably possible.

In addition to the above, in the event of cancellation of a Project or part thereof, including any and all plans or work in progress, by the Client, the Client shall pay the cancellation fees set out in the applicable Project Scope of Work to the Supplier.

APPROVALS AND AUTHORITY

For the purposes of this Agreement, any reference to “approval” to be given by the Client shall mean the Client giving approval by one of the following methods:

the Client issuing a purchase order bearing the signature of an Authorised Client Approver; or

e-mail from the individual business e-mail address of an Authorised Client Approver; or

the signature of an Authorised Client Approver on the Supplier’s documentation.

For the purposes of this Agreement, any reference to “approval” to be given by the Supplier shall mean the Supplier giving approval by one of the following methods:

e-mail from the individual business e-mail address of an Authorised Supplier Approver; or

the signature of an Authorised Supplier Approver on the Client’s documentation.

Where a party is asked to give approval under or in connection with this Agreement, such approval shall not be unreasonably withheld or delayed.

The Supplier will seek the Client’s prior approval of:

any estimates or quotations for any third party costs to be paid by the Client; and

any creative treatments, including scripts, storyboards, copy, layouts, design, artwork, proposed marketing activity;
and the Client’s approval of such estimates and creative treatments will be the Supplier’s authority to enter into contracts with relevant third parties and to prepare draft Deliverables.

The Supplier will seek the Client’s prior approval of any draft Deliverables and such approval will be the Supplier’s authority to proceed with the use of the relevant Deliverables.

In the event of any delay or failure of the Authorised Client Approver giving approvals (or disapprovals) requested under or in connection with this Agreement, the Supplier will not be liable for any resulting delays or adverse impact caused to the delivery of the Project.

FEES

The Supplier will invoice the Client in respect of all Fees, Expenses and third party costs.

For the avoidance of doubt, the Fees are payable in addition to all payments for Expenses and third party costs.

In consideration of the Supplier providing the Services set out in the Annual Scope of Work and any Project Scope of Work (if applicable), the Client shall pay the Supplier the Retainer Fee and the Project Fee (if applicable) which shall be payable in accordance with clause 6.6.

On or about 30 calendar days prior to the expiry of the Initial Period and in each subsequent Year, the parties shall commence negotiations in good faith to agree the Retainer Fee for the next Year of this Agreement and a new Annual Scope of Work for such Year. If the parties fail to reach agreement before the start of that Year, the preceding Year’s Retainer Fee shall automatically be adjusted with effect from the commencement of that Year in accordance with the movement during the preceding Year in the All Items Index of Retail Prices published by the UK Office for National Statistics.

The Retainer Fee has been calculated and agreed by reference to the estimated amount of time for the Supplier to deliver the Services set out in the Annual Scope of Work. The parties shall review and calculate quarterly the amount of time spent by Supplier personnel delivering the Services in the Annual Scope of Work and the value of such time (“Reconciled Fees”). In the event that there is a discrepancy between the Reconciled Fees and the actual Retainer Fees paid at the date of such review, the Supplier shall either:

(where the Retainer Fees paid to date are greater than the Reconciled Fees), reimburse to the Client the shortfall between the Reconciled Fees and the Retainer Fees; or

(where the Reconciled Fees are greater than the Retainer Fees paid to date), invoice the Client (and the Client shall pay) the shortfall between the Retainer Fees and the Reconciled Fees.

The Fees, Expenses and third party costs will be invoiced in accordance with the payment terms set out in the applicable Scope of Work and shall be payable within thirty (30) days of the date of the relevant invoice, or such other reasonable period as the parties may agree in writing in the applicable Scope of Work.

All sums stated in this Agreement or in any Scope of Work, quotation or estimate exclude VAT and any other applicable sales tax (unless otherwise stated) which shall also be payable by the Client at the rate prevailing from time to time.

The terms of remuneration set out in this Agreement do not cover the performance of services which are outside of a Scope of Work. If any such services are required, the terms relating to their provision together with the applicable fees will be agreed in writing by the parties.

If the Client is overdue with any payment hereunder, then without prejudice to the Supplier’s other rights or remedies:

the Supplier shall have the right to suspend performance of the Services on seven (7) days’ written notice until the Supplier has received payment of the overdue amount together with any accrued interest; and/or

the Supplier shall have the right to terminate the applicable Scope of Work immediately upon seven (7) days’ written notice to the Client.

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.

CONFIDENTIALITY

Each of the parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).

Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential.

Confidential Information shall exclude information which:

at the time of receipt by the recipient is in the public domain;

subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;

is lawfully received by the recipient from a third party on an unrestricted basis; or

is already known to the recipient before receipt hereunder.

Each of the parties undertake to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure. Neither party shall at any time, whether during the Term or at any time thereafter, without the prior written approval of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement.

Each of the parties undertakes to disclose the other party’s Confidential Information only to those of its Associates to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement.

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

Neither party shall be in breach of this clause 7 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that, to the extent permitted by law, the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.

Each party hereby indemnifies the other party from and against all Losses arising out of or in connection with the other party’s breach of this clause 7, including breach by each party’s Associates.

The terms of and obligations imposed by this clause 7 shall survive the termination of this Agreement for any reason.

LIABILITY

References to liability in this clause 8 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

Nothing in this clause 8 shall limit the Client’s payment obligations under this agreement.

Nothing in this Agreement shall exclude or in any way limit either party’s liability for death or personal injury caused by its negligence, fraud, fraudulent misrepresentation or any other liability to the extent such liability may not be excluded or limited as a matter of law.

Subject to clause 8.2, 8.3 and 8.4 above, in no event will either party be liable under or in connection with this Agreement for:

loss of actual or anticipated income or profits;

loss of goodwill or reputation;

loss of anticipated savings;

loss of use or corruption of software, data or information; or

any 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.

INTELLECTUAL PROPERTY RIGHTS

Subject to the remaining provisions of this clause 9 and subject to the Supplier receiving payment of all Fees attributable to the Supplier Materials the Supplier hereby assigns all of the Intellectual Property Rights in the Supplier Materials which are capable of being assigned.

The Client acknowledges that all Intellectual Property Rights in the Supplier Proprietary Materials shall be owned by and remain the property of and vested in the Supplier. Subject to the Supplier receiving payment of all Fees attributable to the Supplier Proprietary Materials licensed under this clause, the Supplier hereby grants to the Client a licence to use such Supplier Proprietary Materials as are included in the Deliverables for the period of time and for the purposes set out in the Scope of Work.

Notwithstanding any of the above and save as otherwise expressly provided for in a Scope of Work or the Schedule(s), the Supplier shall:

be able during and after the Term to use any Deliverables which have been broadcast, published, distributed or otherwise made available to the public, and the Client’s name and logo for the purposes of promoting its work and its business including on the Supplier’s website, in credentials pitches and in its showreel. Any other use by the Supplier shall be subject to the Client’s prior approval; and

retain all know how obtained in connection with the Services and Deliverables. During the Term, if the Supplier is asked to take part in a competitive pitch or other similar process for the Client, then notwithstanding any of the previous provisions of this clause 9, the Supplier shall retain ownership of all Intellectual Property Rights in any Materials forming part of the pitch process, save to the extent that the Supplier is successful in such pitch and the parties agree that such Materials will be used in accordance with Services to be provided under a Scope of Work.

For the avoidance of doubt, the Supplier shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client and/or its Associates.

The terms of and obligations imposed by this clause 9 shall survive the termination of this Agreement for any reason.

TERMINATION

Either party may terminate this Agreement without cause at any time after expiry of the Initial Period by giving not less than 3 months’ written notice to the other party.

The Client may terminate or cancel a Project, in writing, subject to clause 4 and payment of all Fees as referred to in clause 4 at any time.

Either party may terminate this Agreement or any Project immediately upon written notice to the other party:

under clause 13.4; or

in the event of any material breach of this Agreement by the other party which breach is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the party not in default of a written notice on the defaulting party, specifying the nature of the breach and requiring such breach to be remedied; or

if the other party suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

if the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal or enters into any compromise or arrangement with its creditors (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or

if a petition is filed, or a notice is given, or a resolution is passed or an order is made for or in connection with the winding up of that other party (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or

if an application is made to court, or an order is made, for the appointment of an administrator, or

if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party.

CONSEQUENCES OF TERMINATION

Termination of a Project in accordance with the terms of this Agreement by either party shall not serve to terminate this Agreement which shall continue in full force and effect.

Upon termination of this Agreement under clauses 10.1 and/or 10.3 all outstanding Projects shall also be terminated.

Upon termination of this Agreement or a Project for any reason:

the Client shall pay the Supplier all Fees and Expenses due to the Supplier (in accordance with clause 4 where relevant) including during the notice period; and

subject to clause 11.3(a) above, each party shall on the reasonable request of the other party promptly deliver or dispose of any and all materials and property belonging or relating to the other party (including all Confidential Information) and all copies of the same, which are then in its possession, custody or control and which relate to all affected Projects, and shall on the request of the other party certify in writing that the same has been done.

If prior to termination of the Agreement, the Supplier has (at the request of the Client) prepared detailed plans or proposals for future Deliverables in respect of which the Supplier has not been paid, the Supplier shall be entitled to receive remuneration from the Client based on the Supplier’s time spent preparing such plans or proposals.

Provisions of this Agreement which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination shall remain in full force and effect notwithstanding termination of this Agreement. Notwithstanding the generality of the foregoing, the following clauses shall survive termination of this Agreement:

Clause 7 (Confidentiality);
Clause 8 (Liability);
Clause 9 (Intellectual Property Rights);
Clause 11 (Consequences of Termination);
Clause 12 (Non-Solicitation);
Clause 14 (Notices);
Clause 18 (General); and
Clause 19 (Governing law and jurisdiction).

NON-SOLICITATION

During the Term and for a further period of 12 months after its termination, neither party shall (except with the prior written approval of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party either in the provision or receipt of any Services or Deliverables, other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.

FORCE MAJEURE

Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a “Force Majeure Event”).

Force Majeure Events shall include but not be limited to the following events affecting either party:

strikes, lock-outs or other industrial action;

civil commotion, riot, invasion, war (whether declared or not), terrorism, or threat of or preparation for war or terrorist attack;

fire, explosion, storm, flood,
earthquake, subsidence, epidemic, pandemic or other natural disaster;

impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and

compliance with any law or governmental order, rule, regulation or direction.

If any Force Majeure Event occurs, the date(s) for performance of the affected obligation(s) shall be postponed for so long as is made necessary by the Force Majeure Event, provided that if any Force Majeure Event continues for a period of or exceeding two (2) months, the non-affected party shall have the right to terminate this Agreement immediately on written notice to the affected party. Each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.

If any production of the Deliverables is cancelled, delayed or disrupted due to an act or threatened act of terrorism or military action:
the Supplier shall use its reasonable endeavours to recover any third party costs relating to the cancelled, delayed or disrupted Deliverables and will account to the Client for any such third party costs it is able to recover;

the Client will be liable to the Supplier and will reimburse the Supplier for any third party costs relating to the cancelled, delayed or disrupted Deliverables which the Supplier is not able to recover or which the Supplier is committed to pay, as well as any Losses suffered by the Supplier as a result of such act or threatened act of terrorism or military action.

NOTICES

A notice given to a party under or in connection with this Agreement shall: –

be in writing and in English;

shall be signed by or on behalf of the party giving it;

shall be sent to the party for the attention of the contact and to the address or email address specified in clause 14.2, or such other contact, address or email address as that party may notify in accordance with clause 14.3;

shall be sent by a method listed in clause 14.4; and

unless proved otherwise, is deemed received as set out in clause 14.4 if prepared and sent in accordance with this clause.

The addresses and email addresses for service of notices are:

Supplier address: TheMedia.Agency Limited, 21 Nevill Street, Abergavenny, Wales NP7 5AA

for the attention of: the Directors of TheMedia.Agency Limited

email addresses:

zoe@themedia.agency
pete@themedia.agency

Client as per order details

A party may change its details given in clause 14.2 by giving notice, the change taking effect for the party notified of the change at 9.00 am on the later of:

the date, if any, specified in the notice as the effective date for the change; and

the date five Business Days after deemed receipt of the notice.

This clause sets out the delivery methods for sending a notice to a party under this agreement and, for each delivery method, the date and time when the notice is deemed to have been received:

if delivered by hand, at the time the notice is left at the address;

if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

if sent by email, at the time of transmission.

If deemed receipt under clause 14.4 would occur outside business hours in the place of receipt (which, in the case of service of a notice by email shall be deemed to be the same place as is specified for service of notices on the relevant party by hand or post), it shall be deferred until business hours resume. In this clause, business hours means 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.

This clause does not apply to the service of any proceedings or other documents in any legal action or other method of dispute resolution.

ASSIGNMENT AND SUB-CONTRACTING

The Supplier shall be entitled
to sub-contract its performance of the Services and/or Deliverables provided that any sub-contracting shall not relieve the Supplier from its obligations to the Client under this Agreement.

Neither party may assign, transfer or charge or otherwise dispose of this Agreement or any of its rights or obligations arising hereunder without the prior written approval of the other party.

THIRD PARTY RIGHTS

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

DATA PROTECTION

For the purposes of this clause 17 the following terms shall have the following meaning:

“Data Privacy Laws”

shall mean the UK Data Protection Act 2018 and the UK GDPR as amended, extended, re-enacted or replaced from time to time;

“UK GDPR”

has the meaning given in the Data Protection Act 2018.

Each party shall comply with the obligations applicable to it under the Data Privacy Laws.

GENERAL

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

If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.

This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties acknowledges and agrees that:

in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in this Agreement; and

its only remedies in connection with any statements, representations, warranties and understandings expressly set out in this Agreement shall be for breach of contract as provided in this Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.

No modification or variation of this Agreement shall be valid unless it is in writing and signed by each of the parties to this Agreement. Unless expressly set out in this Agreement, no modification or variation of this Agreement shall:

be valid if made by e-mail;

be construed as a general waiver of any provisions of this Agreement; or

affect any rights, obligations or liabilities under this Agreement which have already accrued up to the date of such modification or waiver. The rights and obligations of the parties under this Agreement shall remain in full force and effect, except and only to the extent that they are so modified or varied.

Nothing in this Agreement is intended to or shall operate to: –

create a partnership or joint venture of any kind between the parties;

render or be deemed to render the Supplier an employee, worker or agent of the Client and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way nor hold themselves out as such.

GOVERNING LAW & JURISDICTION

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

Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute between them arising under or in connection with this Agreement (save in respect of enforcement of judgments where their jurisdiction shall be non-exclusive). 

SCHEDULE 1

Definitions and Interpretation

INTERPRETATION

In this Agreement, references to clauses, schedules and appendices are to clauses of and schedules to and appendices to this Agreement. Where any provision contained in the Schedules or a Scope of Work conflicts with any provision of the General Terms the following order of precedence shall apply (unless otherwise expressly stated in the Scope of Work):

Schedules;
General Terms;
Scope of Work.

Unless the context otherwise requires:

a person includes a legal person (such as a limited company) as well as a natural person;

the words “include” and “including” shall be construed without limitation; and

any reference to an enactment
of legislation includes any subordinate legislation made from time to time under it and is to be construed as references to that enactment as from time to time amended or modified or any enactment replacing it.

The headings in this Agreement are for ease of reference only and shall be disregarded in construing or interpreting the Agreement.

The following terms shall have the corresponding meanings for the purposes of this Agreement:

“Accounts” means the Client’s products and services that are the subject of the Services as referred to in a Scope of Work;

“Agreement” means this agreement including the General Terms, Scopes of Work and Schedules;

“Annual Scope of Work” means the Scope of Work setting out the Services to be provided in respect of the Retainer Fee by the Supplier on an annual basis, as set out in Schedule and as may be amended by the parties from time to time in writing;

“Approval” means approval given in accordance with clause 5;

“Associates” means a party’s employees, officers, agents, sub-contractors or authorised representatives;

“Authorised Supplier Approver” means those personnel of the Supplier specified in the applicable Scope of Work who have the authority to contractually bind the Supplier in all matters relating to this Agreement (and any successor notified to the Client);

“Authorised Client Approver” means those personnel of the Client specified in the applicable Scope of Work who have the authority to contractually bind the Client in all matters relating to this Agreement (and any successor notified to the Supplier );

“Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Client Materials” means any Data, client equipment, computer systems, software, documents, copy, Intellectual Property Rights, artwork, logos and any other materials or information owned by or licensed to the Client which are provided to the Supplier and/or its Associates by or on behalf of the Client;

“Data” means the Client’s computer data (in machine readable form);

“Deliverables” means the advertising, creative and other materials which are to be provided by the Supplier as specified in a Scope of Work, including Supplier Materials, Third Party Materials and Supplier Proprietary Materials where applicable;

“Effective Date” means date service started;

“Expenses” means reasonable travelling, hotel, subsistence and other expenses incurred by the Supplier in connection with the supply of Services and Deliverables, provided that such Expenses have either received the Client’s prior written approval or where applicable are in accordance with any expenses policies which have been supplied to the Supplier and set out in the applicable agreed Scope of Work;

“Fees” means the Retainer Fee and, if applicable, the Project Fees;

“General Terms” means the terms and conditions set out in this Agreement including this.

“Initial Period” means the period of 12 months;

“Intellectual Property Rights” means the following rights, wherever in the world enforceable, including all reversions and renewals and all applications for registration:

any patents or patent applications;

any trade marks (whether or not registered);

inventions, discoveries, utility models and
improvements whether or not capable of
protection by patent or registration;

copyright or design rights (whether registered or unregistered);

database rights;

performer’s property rights as described in Part II, Chapter X of the Copyright Designs and Patents Act 1988 and any similar rights of performers anywhere in the world;

any goodwill in any trade or service name, trading style or get-up; and

any and all other intellectual or proprietary rights.

“Losses” means losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses (including reasonable legal and other professional expenses), subject to clause 8;

“Materials” means any artwork, copy, models, designs, photographs, commercial, feature film, character, music, voice over, sound recording, performance, book, painting, logo, or any other material protected by Intellectual Property Rights, but not including any software;

“Project” means any project(s) agreed between the parties from time to time under which the Supplier is to perform Services and/or supply Deliverables to the Client over and above those under an Annual Scope of Work, as more fully described in this Agreement and the applicable Project Scope of Work;

“Project Commencement Date” means the commencement date of each Project as set out in the corresponding Project Scope of Work;

“Project Completion Date” means the date by which each Project is to be completed, as set out in the corresponding Project Scope of Work;

“Project Fee” means the Supplier fees for a Project as set out in the applicable Project Scope of Work;

“Project Scope of Work” means a Scope of Work for a Project agreed by the parties in writing from time to time;

“Retainer Fee” means the Supplier fees for the Services to be provided under the Annual Scope of Work as may be amended by the parties from time to time in accordance with this Agreement;

“Scope of Work” means one or more documents in the form set out in Schedule 2 or similar form as agreed and signed by the parties from time to time containing a description of the relevant Services, and which include the Annual Scope of Work and any Project Scopes of Work;

“Services” means the Services to be supplied by the Supplier under this Agreement as set out in the relevant Scope of Work, which includes the provision of Deliverables;

“Supplier Materials” means those Materials specifically created by the Supplier for the purposes of a Project by officers, employees or freelancers of the Supplier (including any Materials adapted, modified or derived from the Client Materials), whether or not it is incorporated into Deliverables during the Term;

“Supplier Proprietary Materials” means software (including all programming code in object and source code form), methodology, know-how and processes and Materials in relation to which the Intellectual Property Rights are owned by (or licensed to) the Supplier and which are:

in existence prior to the date on which it is intended to use them for a Project; or

created by or for the Supplier outside of a Project and which are intended to be reused across its business;

“Term” means the duration of this Agreement as more particularly described in clause 3.1;

“Year” means a twelve month period commencing on the Effective Date and each anniversary of the Effective Date during the Term.