BJL Terms and Conditions

1. General

1.1. These terms and conditions (the “Conditions”) apply to BJL Group Limited, a company registered in England and Wales with company number 02091777, having its registered office at 10 Triton Street, London, England, NW1 3BF and principal place of business at Sunlight House, Quay Street, Manchester M3 3JZ (“Agency”) providing certain services and delivering certain materials and work to the Client, as set out in the relevant SOW agreed between the parties.

1.2. When the SOW is signed by both parties, the Conditions and the SOW together form a binding agreement between the parties for the provision and receipt of the Services and Deliverables (the “Agreement”) unless the parties have entered into a separate negotiated agreement (such as a master services agreement) between them in respect of the same Services and Deliverables, in which case that negotiated agreement will apply.

1.3. Other than as set out above, this Agreement will prevail over any terms or conditions contained in or referred to in any quotation, purchase order, invitation to tender, request for proposal, request for information, acceptance, correspondence or elsewhere or implied by law, trade custom, practice or course of dealing. In the event of a conflict between the Conditions and a SOW, the terms or conditions of the SOW shall prevail.

1.4. No addition to or modification of the Agreement shall be binding on the parties unless made by a written instrument which the parties unequivocally mutually agree in writing.

1.5. Definitions used in this Agreement are defined at the end of this Agreement.

2. Agency’s role

2.1. The Agency is appointed on a non-exclusive basis in the Territory to provide the Services and produce the Deliverables for the Client in accordance with the agreed SOW.

2.2. The Agreement will commence on the date of last signature of the SOW and the Agency will use reasonable endeavours to provide the Services and Deliverables in accordance with the project timescales set out therein. The Agency will not be obliged to perform any work until the relevant SOW has been signed by both parties. Once the Services have been performed and the Deliverables provided, the SOW will terminate automatically.

2.3. The Agency will provide the Services and Deliverables with reasonable skill and care and in accordance with the terms of the SOW and this Agreement. The Agency will give the Client full and clear instructions as to the Client Materials it reasonably requires for the purposes of performing the Services and providing the Deliverables. The Agency shall:

  • (a)  apply such time, attention, and reasonable skill and care as may be necessary or appropriate for its proper performance of the Services and provision of the Deliverables;
  • (b)  comply with all lawful and reasonable directions regarding the Services and Deliverables communicated to it from time to time by the Client (provided such directions do not materially deviate from or add to a SOW and any such material amendment must be agreed in accordance with clause 3.6); and
  • (c)  keep Client Materials reasonably safe and secure while they are in the possession or control of the Agency.

2.4 If at any time the Agency becomes aware that it may not be able to perform the Services or deliver any Deliverables by any estimated date set out in the applicable SOW (or any other timeframe agreed by the parties in writing), the Agency will promptly notify the Client and give details of the reasons for the delay.

3. Performance of the Services

3.1. The Client will give the Agency full and clear briefings and ensure that all the facts given about its products and services are accurate. The Client will provide to the Agency all relevant information and materials concerning the Client, the Client’s requirements in respect of the Services and the advertising campaign to which the Services relate as is reasonably necessary to enable to Agency to perform the Services. Prior to the date of Service commencement, the Client will obtain all necessary licences, permissions and consents which may be required to enable use by the Agency of such information and materials.

3.2. The SOW will be agreed by the Client and the Agency and will detail all Services to be provided and Deliverables to be produced for the Client. Any changes, deletions or additions to the SOW and/or this Agreement shall be binding on the parties only if unequivocally agreed by the parties in writing.

3.3. In respect of each Service or Deliverable, where the Agency seeks approval within a specific time- scale, if no express approval or rejection is received by the Agency within that timescale the Service or Deliverable will be deemed to have approved. The Client’s approval be confirmed by any authorised representative of the Client in writing, email or verbally provided that any verbal approval is confirmed by either party in writing.

3.4. The Client will promptly supply to the Agency (at no charge) any Client Material reasonably required by the Agency or otherwise necessary to provide the Services and Deliverables and shall ensure that it has all rights and licences in place to enable use by the Agency of all Client Materials. If the Client does not fulfil its obligations under or in connection with this Agreement (including its payment obligations), then to the extent that such failure prevents the Agency from performing any Services and/or providing any Deliverables in accordance with this Agreement, the Agency will be relieved of its obligations to the Client, and the Agency shall not be liable for any Losses incurred by the Client as a result of any such failure.

3.5. The Agency will advise the Client immediately of any changes in the estimated cost of Services or Deliverables or any changes in plans, schedules or work in progress previously approved in writing by the Client.

3.6. The Client may request the Agency to cancel or amend any and all plans, SOWs, 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. 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 will also pay the Agency’s remuneration covering the cancelled or amended Deliverables or Services as well as any charges imposed on the Agency by third parties arising from the cancellation or amendment.

3.7. Unless otherwise stated in the 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.

4. Fees

4.1. In consideration of providing the Services and Deliverables, the Client will pay the charges as set out in the SOW or failing which calculated hourly at the Agency’s standard hourly rates from time to time, to an agreed budget. All sums stated in this Agreement or in any SOW, 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.

4.2. The Agency will invoice the Client at the intervals set out in the SOW and unless otherwise agreed in the SOW, the Client will pay the invoice within 30 days of the date of the invoice. The terms of remuneration set out in this Agreement do not cover the performance of services which are outside of a SOW nor do they cover the performance of services outside the Territory. 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.

4.3. In the event that the Client fails to make any payment in full when due to the Agency under this Agreement, then without prejudice to its other rights and remedies under or in connection with this Agreement or otherwise in law, the Agency shall be entitled to charge the Client interest on such overdue sum at the rate of 4% above the base rate of the Bank of Scotland in force from time to time calculated from the due date up to the date of payment.

4.4. The Client reserves the right to withhold payment of any invoice or part of an invoice where the Client (acting reasonably and in good faith) has a bona fide reason to challenge the validity or accuracy of such invoice. On receipt of any such invoice the Client shall: (a) immediately notify the Agency in writing of the reason for such withholding; (b) pay the undisputed part of such invoice in accordance with clause 4.2; and (c) work promptly and in good faith with the Agency to resolve any such dispute over the relevant invoice.

4.5. Where the Agency is unable to put in place, on terms acceptable to it, credit insurance in respect of sums owed by the Client to the Agency, the Agency may require payment in advance from the Client. In the event that the Client is unable or unwilling to make payment in advance, the Agency may terminate this Agreement on written notice to the Client without further liability.

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

4.7. If a third party supplier levies late copy charges against the Agency and such charges do not result from the negligent or wilful act or omission of the Agency, the Client will immediately reimburse the amount of such late copy charges to the Agency.

5. Third party services and suppliers

5.1. The Agency will invoice the Client in respect of all third party costs incurred by the Agency on behalf of the Client in performing the Services, subject to the Client approving all such costs in advance in writing, including: (a) production work required to produce the Deliverables including illustrations, film production, artwork, photography, model fees, recordings, the services of performers, animation, print and post production work and other content; and (b) all costs incurred in taking legal or other advice or searches and enquiries, as agreed between the parties from time to time (collectively defined as “Third Party Costs”).

5.2. The Agency will advise the Client promptly of any changes in the estimated cost of items of Deliverables. The actual cost to the Agency of Third Party Costs in respect of materials or services purchased overseas for the Deliverables may be more or less than the cost anticipated at the date when the Agency ordered the relevant materials or services (or obtained the Client’s approval for such Third Party Costs) as a result of fluctuations in the rate of currency exchange. If so, the Agency will charge the Client at the rate of currency exchange in operation on the date the Agency pays for the relevant Third Party Costs, which shall be deemed to be the closing mid-point rate in London for that day as subsequently quoted in the next published edition of The Financial Times.

5.3. In the event that any Third Party Costs require payment in advance or sooner than the payment terms set out in clause 4.2, the Agency will notify the Client as soon as reasonably practicable in advance and the Client shall pay such costs within the period set out in the relevant invoice.

5.4. In the performance of its obligations under this Agreement, the Agency may enter into contracts with third party suppliers in respect of Services and Deliverables (“Third Party Contracts”). Provided that the Agency has notified the Client of any significant restrictions or contract terms contained in such Third Party Contracts: (a) the Client hereby acknowledges that its right to use or otherwise benefit from any Services or Deliverables acquired under such Third Party Contracts shall be as set out in such Third Party contracts; (b) any charges or liabilities (to the extent caused by an act or omission of the Client or its Affiliates or any third party acting for or on its behalf) for which the Agency is liable under such Third Party Contracts (including cancellation payments) shall be the responsibility of the Client; and (c) the Client hereby indemnifies and shall keep the Agency indemnified against any Losses caused by any act or omission of the Client which puts the Agency in breach of any such Third Party Contracts.

5.5. The Agency shall use reasonable care and skill in the selection and appointment of suppliers. Should the Client request, the Agency will obtain more than one quote for a particular supply and discuss these with the Client before placing an order.

6. Intellectual Property

6.1. The Agency acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services and Deliverables) shall remain vested in the Client or its licensors. The Client hereby grants to the Agency a non-exclusive licence during the applicable Project Term to use the Client Materials solely for the purposes of providing the Services and Deliverables.

6.2. Subject to the remaining provisions of this clause 6 and subject to the Agency receiving payment of all Fees attributable to the Agency Materials, the Agency hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in the Agency Materials which are capable of being assigned together with the right to sue for past infringement of the Intellectual Property Rights in the Agency Materials.

6.3. The Client acknowledges that all Intellectual Property Rights in the Agency Proprietary Materials shall be owned by and remain the property of and vested in the Agency. Subject to the Agency receiving payment of all Fees attributable to the Agency Proprietary Materials licensed under this clause, the Agency hereby grants to the Client a licence to use such Agency Proprietary Materials as are included in the Deliverables, in the Territory, for the period of time and for the purposes set out in a SOW. If the Client wishes to use the Deliverables containing Agency Proprietary Materials outside of the Territory, after the period of time set out in a SOW, and/or outside the purposes and/or media set out in a SOW, then such use shall be subject to agreement of further fees.

6.4. Prior to delivery of the Deliverables, the Agency shall obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Materials for the purposes set out in a SOW. The Agency shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Materials, and the Client hereby indemnifies and keeps the Agency indemnified against any Losses suffered by the Agency as a result of the Client or its Affiliates breaching any such restrictions.

6.5. The Agency agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the Deliverables, and shall not do or fail to do any act which would or might prejudice the Client’s rights under this clause 6.

6.6. To the extent permitted by law and subject to the Agency receiving payment of all Fees attributable to the Agency Materials, the Agency shall ensure that all Moral Rights in the Agency Material included in the Deliverables are waived (or where not lawfully possible to waive Moral Rights, the Agency agrees not to assert any Moral Rights in respect of the Agency Materials). Subject to the Agency receiving payment of all Fees attributable to the Agency Materials, the Agency shall use its reasonable endeavours to ensure that all Moral Rights in Third Party Materials are waived (or where not lawfully possible to waive Moral Rights, to procure that Moral Rights are not asserted in respect of Third Party Materials), but if the Agency cannot obtain such waiver of (or agreement not to assert) such Moral Rights in respect of any Third Party Materials, the Agency will notify the Client and shall obtain the Client’s approval prior to incorporating such Third Party Materials into the Deliverables. Where the Agency has granted a licence to the Client in accordance with the terms of this Agreement the waiver obligations on the Agency in this clause shall continue only for the duration of that licence.

6.7. Notwithstanding any of the above and save as otherwise expressly provided for in a SOW, the Agency shall: (a) 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 Agency’s website, in credentials pitches and in its showreel. Any other use by the Agency shall be subject to the Client’s prior approval; and (b) retain all know-how obtained in connection with the Services and Deliverables.

6.8. During the Term, if the Agency 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 6, the Agency shall retain ownership of all Intellectual Property Rights in any Materials forming part of the pitch process, save to the extent that the Agency is successful in such pitch and the parties agree that such Materials will be used in a Project set out in a SOW in accordance with this Agreement.

6.9. For the avoidance of doubt, the Agency 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.

6.10 The terms of and obligations imposed by this clause 6 shall survive the termination of this Agreement for any reason.

7. Advertising standards

7.1. Both parties acknowledge that they have a responsibility to comply with all Advertising Regulations.

7.2. The parties will co-operate with each other in ensuring that suitable objective factual product and other information is available as required to satisfy the requirements of any applicable Advertising Regulation.

8. Warranties and Indemnities

8.1. The Agency warrants and undertakes that: (a) it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party; (b) the personnel who perform the Services are and shall be competent and suitable, whether as to qualifications, experience or otherwise, to provide the Services; (c) subject to clause 8.4, the use of the Deliverables by the Client in accordance with this Agreement and for the purposes set out in the SOW will not infringe the copyright of any third party and; (d) to the best of its knowledge and belief and subject to clause 8.4, as at the date of delivery of the Deliverables the use of the Deliverables in accordance with this Agreement for the purposes set out in the SOW will comply with all Advertising Regulations in the UK, save that where the Client’s business involves any industry sector which is subject to its own industry specific Advertising Regulations or other code, regulation, statute or law (collectively “Specialist Advertising Regulations”) the Client shall be responsible for ensuring that the Deliverables are compliant with such Specialist Advertising Regulations.

8.2. The Agency hereby indemnifies the Client against any Losses incurred by the Client as a result of breach by the Agency of its warranty and undertaking in clause 8.1(c).

8.3. All warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise are hereby excluded to the fullest extent permitted by law, including any condition of satisfactory quality or fitness for a particular purpose.

8.4. The Client releases the Agency from any liability under or in connection with this Agreement and hereby indemnifies the Agency against any Losses incurred by the Agency, in both cases strictly to the extent that such liability or Losses arise as a result of: (a)the Deliverables infringing third party Intellectual Property Rights, breaching Advertising Regulations or other laws and regulations, where the Agency had previously notified the Client of a specific risk that the Deliverables infringed third party Intellectual Property Rights or breached Advertising Regulations or other laws and regulations and the Agency had obtained the prior approval of the Client to use such Deliverables notwithstanding such notified risk; and/ or (b) the incorporation of Client Materials into the Deliverables provided that the Agency has incorporated and used such Client Materials in the Deliverables in accordance with any instructions given by the Client from time to time.

8.5. The Client warrants and undertakes that: (a) it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party; (b) the Client Materials will not, when used in accordance with this Agreement and any written instructions given by the Client, infringe third party Intellectual Property Rights; (c) the Client Materials will comply with all applicable laws and regulations including but not limited to all Advertising Regulations; and (d)the Client Materials are accurate and complete in all material respects.

9. Termination

9.1. Either party may terminate this Agreement at any time without cause by giving not less than 3 months written notice to the other party provided that such notice to terminate cannot expire until the Initial Period has elapsed and all approved SOWs for Services (other than ongoing Services without a fixed duration or timescale) have been completed in full.

9.2. The Client may terminate or cancel a SOW subject to clause 3.6 and payment of all Third Party Costs and Fees as referred to in clause 3.6 at any time.

9.3 Either party may terminate this Agreement or any Project immediately upon written notice to the other party: (a) 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 (b) 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 (c) 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 (d) 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 (e) 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.

9.4. Upon termination of this Agreement or a SOW for any reason: (a) the Client shall pay the Agency all Fees, Expenses and Third Party Costs due to the Agency (in accordance with clause 3.6 where relevant) including during the notice period; and (b) subject to clause 9.4(a) 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.

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

10. Limitation of Liability

10.1. Subject to clause 10.2 the Agency’s maximum aggregate liability under or in connection with this Agreement (including all SOW and any indemnity contained in this Agreement), whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the Fees paid or payable under this Agreement by the Client in the relevant Year when the breach occurred.

10.2. Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, 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.

10.3 Subject to clause 10.2 (and including for the avoidance of doubt any indemnity contained in this Agreement), in no event will either party be liable under or in connection with this Agreement for: (i) loss of actual or anticipated income or profits; (ii) loss of goodwill or reputation; (iii) loss of anticipated savings; (iii) loss of data; or (iv) 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.

10.4. Where one party (“Indemnifying Party”) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under this Agreement, such indemnity is subject to the Indemnified Party complying with the following process in the event that a third party claim arises: (a) the Indemnified Party must promptly notify the Indemnifying Party in writing of such claim; (b)the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party; (c) the Indemnified Party must give the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence of the claim; (d) the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such claim as the Indemnifying Party may reasonably require at the Indemnifying Party’s cost and expense; and (e)if within ninety (90) days after the Indemnifying Party’s receipt of notice of any such claim, the Indemnifying Party fails to take action to defend or settle such claim, the Indemnified Party may at the Indemnifying Party’s expense undertake the defence, compromise or settlement of the claim as it sees fit.

11. Confidentiality

11.1 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”).

11.2 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.

11.3. Confidential Information shall exclude information which: (a) at the time of receipt by the recipient is in the public domain; (b) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents; (c) is lawfully received by the recipient from a third party on an unrestricted basis; and/or (d) is already known to the recipient before receipt hereunder.

11.4. 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.

11.5. 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.

11.6. The Client acknowledges and agrees that any identifiable and original idea or concept presented by the Agency in relation to any promotion or advertising campaign developed by the Agency shall be acknowledged as being available only for such promotion or campaign and shall not be used for any other purposes whatsoever without the Agency’s express prior written approval. Even where no promotion or campaign is agreed, the ideas and concepts presented to the Client shall remain strictly confidential and shall not be used in any way, including communication to any third party, without the Agency’s prior written approval.

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

11.8. Neither party shall be in breach of this clause 11 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 the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same, if permitted by applicable law.

11.9. 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 11, including breach by each party’s Associates.

11.10. The terms of and obligations imposed by this clause 11 shall survive the termination of this Agreement for any reason.

12. Data protection

12.1. If the Services involve processing of personal data, the parties will ensure that a data processing agreement shall be agreed before such processing commences. “processing” and “personal data” have the meanings set out in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

13. TUPE

13.1 If upon commencement of this Agreement, there is deemed to take place a relevant transfer of any Transferring Employee for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations (“TUPE”) into the employment of Agency or any Agency affiliate, Client will indemnify, defend and hold harmless Agency from and against all claims, demands, actions, proceedings, damages, compensation, awards and fines (including legal costs, and any other costs and expenses) incurred by the Agency directly or indirectly in connection with: (a) any and all liabilities in connection with the Transferring Employee in connection with the transfer; and (b)any failure by the Client or a previous supplier to comply with the requirements of TUPE.

For the purposes of this clause a “Transferring Employee” shall mean any employee wholly or substantially employed or engaged (by the Client or other supplier) in connection with the provision of services or deliverables to the Client similar to the Services prior to the Commencement Date of the Agreement and will transfer on or after the Commencement Date of the Agreement to Agency or an Agency affiliate.

14. Anti-bribery

14.1 Both parties: (a) shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010 (“Relevant Requirements”); (b) shall not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; (c) shall maintain in place throughout the term (and enforce where appropriate) its own policies and procedures to ensure compliance with the Relevant Requirements; and (d) shall promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement.

15. Modern Slavery

15.1. The Agency shall, and shall take reasonable steps to procure (where relevant) that all persons who are performing services or providing goods in connection with the performance of this Agreement (collectively, the “Supply Chain“) shall, at all relevant times: (a) comply with all applicable laws, regulations, codes, guidance and sanctions relating to anti-slavery and human trafficking in any jurisdiction, including the Modern Slavery Act 2015 (the “Modern Slavery Requirements”); (b) not engage in any activity, practice or conduct in any jurisdiction which would constitute an offence under the Modern Slavery Act 2015; and (c) have and maintain in place throughout the term of this Agreement appropriate procedures, standards or policies with the aim of ensuring compliance with the Modern Slavery Requirements and that slavery and human trafficking is not taking place in its own business or any part of its supply chain and shall ensure that such procedures, standards or policies are provided to all relevant staff and enforced in an appropriate manner..

16. Assignment

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

16.2. 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.

17. General

17.1. 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 6 (Intellectual Property); clause 8 (Warranties and Indemnities); clause 9 (Termination); clause 10 (Limitation of liability); clause 11 (Confidentiality); clause 13 (TUPE); clause 17 (General); and Clause 18 (Governing law and jurisdiction).

17.2 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.

17.3. 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.

17.4 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.

17.5. 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: (a) in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any statement,

Losses

means losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses (including reasonable legal and other professional expenses), subject to clause 10.1 and 10.2;

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;

Moral Rights

means all rights described in Part I, Chapter IV of the Copyright Designs and Patents Act 1988 and any similar rights of authors anywhere in the world;

Project

means any project(s) agreed between the parties from time to time under which the Agency is to perform Services and supply Deliverables to the Client, as more fully described in this Agreement and the applicable SOW;

Project Term

means the period during which the Services for each Project will be provided as specified in the applicable SOW;

SOW

means one or more documents agreed and signed by the parties from time to time containing a description of the relevant Project;

Services

means the Services to be supplied by the Agency under this Agreement as set out in the relevant SOW, which includes the provision of Deliverables;

Term

means the duration of this Agreement as more particularly described in clause 2.2;

Territory

means the United Kingdom, unless expressly specified otherwise in the applicable SOW. Publication and marketing on globally accessible mediums such as the internet shall not mean that the Territory is deemed to be world-wide;

Third Party Costs

has the meaning set out in clause 5.1;

Third Party Materials

means those Materials which are either commissioned by the Agency from third parties during the Term and incorporated into the Deliverables, or which have been created by a third party and which are in existence at the time it is desired to make use of them for inclusion in the Deliverables, but which excludes software which is owned or licensed by a third party; and

Year

means a one year period commencing on the Effective Date or an anniversary thereof.

representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in this Agreement; and (b) 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.

17.6. 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: (a) be valid if made by e-mail; (b) be construed as a general waiver of any provisions of this Agreement; or (c) 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.

17.7. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.

17.8. This Agreement may be executed and delivered in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement. Transmission of the executed signature page of a counterpart of this Agreement by e-mail (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this Agreement. If either method of delivery is adopted, without prejudice to the validity of the Agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.

18. Governing law and Jurisdiction

18.1 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).

Definitions

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

Advertising Regulation

means any present or future applicable code of practice or adjudication of the Committee of Advertising Practice, Broadcast Committee of Advertising Practice or the Advertising Standards Authority and includes any applicable modification, extension or replacement thereof in force from time to time, together with other UK laws, statutes and regulations which are directly applicable to the Services;

Affiliates

means any company, partnership or other entity which at any time directly or indirectly controls, is controlled by or is under common control with either party including as a subsidiary, parent or holding company;

Agency Materials

means those Materials specifically created by the Agency for the purposes of a Project by officers, employees or freelancers of the Agency (including any Materials adapted, modified or derived from the Client Materials), provided that it is approved by the Client and incorporated into Deliverables during the Term, excluding for the avoidance of doubt Third Party Materials and Agency Proprietary Materials;

Agency 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 Agency and which are (i) in existence prior to the date on which it is intended to use them for a Project; or (ii) created by or for the Agency outside of a Project and which are intended to be reused across its business;

Agreement

means these Conditions including any SOW as set out in clause 1.2;

approval

means approval given in accordance with clause 3;

Associates

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

Client Materials

means any the Client’s computer data (in machine readable form), 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 Agency and/or its Associates by or on behalf of the Client;

Deliverables

means the advertising, creative and other materials which are to be provided by the Agency as specified in a SOW, including Agency Materials, Third Party Materials and Agency Proprietary Materials where applicable;

Effective Date

means the effective date as set out in a SOW;

Expenses

means reasonable travelling, hotel, subsistence and other expenses incurred by the Agency 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 Agency and set out in the applicable agreed SOW;

Fees

means the Agency fees for a Project as set out in the applicable SOW or otherwise agreed in writing;

Initial Period

means the Initial Period set out in a SOW

Intellectual Property Rights

means the following rights, wherever in the world enforceable, including all reversions and renewals and all applications for registration (i) any patents or patent applications; (ii) any trade marks (whether or not registered); (iii) inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; (iv) copyright or design rights (whether registered or unregistered); (v) database rights; (vi) 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; (vii) any goodwill in any trade or service name, trading style or get-up; and (viii) any and all other intellectual or proprietary rights.

BJL Terms and Conditions June 2019

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