TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
1. 1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
Affiliate: means any subsidiaries or holding companies of AIA, any entity which controls, is controlled by or is under common control with AIA and/or a member of AIA’s group of companies controlled and/or owned by TMP Worldwide Advertising & Communications LLC.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 5 (Charges and payment).
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between AIA and the Client for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Client: the person or firm who purchases Services from AIA.
Client Default: has the meaning set out in clause 4.2.
Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Deliverables: the deliverables set out in the Order produced by AIA for the Client.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Client's order for Services as set out in the Client's purchase order form, the Client's written acceptance of a quotation by AIA, a statement of work (SOW) signed by AIA and the Client, or overleaf, as the case may be.
Services: the services, including the Deliverables, supplied by AIA to the Client as set out in the Specification.
Specification: the description or specification of the Services provided [in writing] by AIA to the Client.
AIA: Associates in Advertising Limited registered in England and Wales with company number 01976952 with its registered office at 200 Aldersgate Street, London EC1A 4HD.
AIA Materials: has the meaning set out in clause 4.1(h).
- (a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- (b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- (c) A reference to writing or written includes fax but not email.
2. Basis of contract
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when AIA issues written acceptance of the Order or signs the relevant SOW at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by AIA, and any descriptions or illustrations contained in AIA's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by AIA shall not constitute an offer, and is only valid for a period of  Business Days from its date of issue.
3. Supply of Services
3.1 AIA shall supply the Services to the Client in accordance with the Specification in all material respects.
3.2 AIA shall use all reasonable endeavours to meet any performance dates specified in an Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 AIA reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and AIA shall notify the Client in any such event.
3.4 AIA warrants to the Client that the Services will be provided using reasonable care and skill.
4. Client's obligations
4.1 The Client shall:
- (a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
- (b) co-operate with AIA in all matters relating to the Services;
- (c) provide AIA, its employees, agents, consultants and subcontractors, with access to the Client's premises, office accommodation and other facilities as reasonably required by AIA;
- (d) provide AIA with such information and materials as AIA may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
- (e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
- (f) comply with all applicable laws, including health and safety laws;
- (g) keep all materials, equipment, documents and other property of AIA (AIA Materials) at the Client's premises in safe custody at its own risk, maintain AIA Materials in good condition until returned to AIA, and not dispose of or use AIA Materials other than in accordance with AIA's written instructions or authorisation; and
- (h) comply with any additional obligations as set out in the Specification.
4.2 The Client hereby warrants, for the purposes of any Contract for the provision of Services entered into between the Client and AIA, that, in entering into the Contract, there has not been (and/or there will not be), vis a vis the Client, a related transfer of an undertaking or a service provision change (within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“the Regulations”)) that would or will affect AIA in any manner whatsoever (hereinafter referred to as a “relevant transfer”). Furthermore, it is a condition of each Contract that if, contrary to (and in breach of) the foregoing warranty, there has been a relevant transfer, AIA shall not be obliged to employ or otherwise engage any employee or worker that has been the subject of the relevant transfer and the Client hereby agrees to indemnify AIA against any and all liability whatsoever (including any liability in connection with the termination of the employment or engagement of the said employee or worker by AIA) that AIA may incur to the employee(s) or worker(s) in question as a consequence of, or pursuant to, the relevant transfer.
4.3 If AIA's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
- (a) without limiting or affecting any other right or remedy available to it, AIA shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays AIA's performance of any of its obligations;
- (b) AIA shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from AIA's failure or delay to perform any of its obligations as set out in this clause 4.2; and
- (c) the Client shall reimburse AIA on written demand for any costs or losses sustained or incurred by AIA arising directly or indirectly from the Client Default.
5. Charges and payment
5.1 The Charges for the Services shall be set out in the Order.
5.2 AIA shall invoice the Client on completion of the Services.
5.3 The Client shall pay each invoice submitted by AIA:
- (a) within 30 days of the date of the invoice; and
- (b) in full and in cleared funds to a bank account nominated in writing by AIA, and
- (c) time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by AIA to the Client, the Client shall, on receipt of a valid VAT invoice from AIA, pay to AIA such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 If the Client fails to make a payment due to AIA under the Contract by the due date, then, without limiting AIA's remedies under clause 9, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. Intellectual property rights
6.1 Subject to (i) the Client paying in full AIA’s Charges for producing the Deliverables and (ii) sub-clauses 6.2 and 6.3 below, the Intellectual Property Rights in the Deliverables shall vest solely and absolutely in the Client and AIA shall co- operate with the Client and do everything necessary to give effect to such vesting.
6.2 All Intellectual Property Rights subsisting in and in relation to any software (“the Software”) comprised in the Deliverables and any related coding of whatever type (including, without limitation, any HTML, CGI, Perl, Java and other scripts and coding) which are created by AIA in the course of providing the Services:-
- (i) shall (subject to such rights as are owned by persons and entities which are not party to this Agreement) be beneficially owned by AIA; and
- (ii) from the Date of Acceptance of the Software, AIA shall be deemed to grant to the Client a non-exclusive, perpetual, royalty-free licence in respect of the Intellectual Property Rights referred to in sub-clause 6.2(a) to use, copy (for its own use only), maintain, modify and update the Software for the purposes for which it was commissioned by the Client; and
- (iii) AIA also undertakes to procure that a licence in similar terms to that contained in sub-clause 6.2(b) is granted to the Client, in respect of any third party Intellectual Property Rights which subsist in the Software. Any fee charged by the third party for such a licence shall be met by the Client.
6.3 Where any Client Product incorporates any material(s) prepared or developed by a third party, AIA shall, to the extent it is able to negotiate the same, obtain the Intellectual Property Rights in such material(s) solely and absolutely for the benefit of the Client. In the event that it is not able to obtain absolute rights of ownership in the same in favour of the Client, AIA shall obtain a non-exclusive, perpetual, royalty-free licence in favour of the Client from such third party to enable the Client to use the materials in question for the purposes required by the Client in accordance with the terms of the Contract.
6.4 The Client shall not sub-license, assign or otherwise transfer the rights granted in these Conditions.
6.5 The Client grants AIA a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to AIA for the term of the Contract for the purpose of providing the Services to the Client.
7. Data protection and data processing
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and AIA is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
7.3 Without prejudice to the generality of clause 7.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to AIA for the duration and purposes of the Contract.
7.4 Without prejudice to the generality of clause 7.1, AIA shall, in relation to any Personal Data processed in connection with the performance by AIA of its obligations under the Contract:
- (a) process that Personal Data only on the written instructions of the Client unless AIA is required by the laws of any member of the European Union or by the laws of the European Union applicable to AIA to process Personal Data (Applicable Data Processing Laws). Where AIA is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, AIA shall promptly notify the Client of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit AIA from so notifying the Client;
- (b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- (c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
- (d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
- (i) the Client or AIA has provided appropriate safeguards in relation to the transfer;
- (ii) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
- (iii) AIA complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
- (iv) AIA complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
- (e) assist the Client, at the Client's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- (f) notify the Client without undue delay on becoming aware of a Personal Data breach;
- (g) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data.
7.5 The Client consents to AIA appointing an Affiliate as a third-party processor of Personal Data under the Contract. AIA confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 7. As between the Client and AIA, AIA shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 7.
7.6 Either party may, at any time on not less than 30 days' notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
8. Limitation of liability: THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
8.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
- (a) death or personal injury caused by negligence;
- (b) fraud or fraudulent misrepresentation; and
- (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 AIA shall not be liable for any damage or loss suffered by the Client by reason of any breach by AIA of any of the terms and conditions of the Contract (whether express or implied) arising other than by reason of AIA’s negligence, in so far as such damage or loss exceeds the amount of the Charges received by AIA from the Client pursuant to the Contract. (For the avoidance of doubt, the Charges, for this purpose, shall exclude any element of the same referable to third party costs or charges (eg media owner charges or photographers’ fees).)
8.3 AIA shall not be liable, in respect of any event or related series of events, for any loss or damage due to its negligence, which is not otherwise limited under any other clause of the Contract, in so far as the same exceeds £3,000,000 in respect of tangible property and £1,000,000 in all other cases.
8.4 Subject to clause 8.1, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
- (a) loss of profits;
- (b) loss of sales or business;
- (c) loss of agreements or contracts;
- (d) loss of anticipated savings;
- (e) loss of or damage to goodwill;
- (f) loss of use or corruption of software, data or information; or
- (g) any indirect or consequential loss.
8.5 AIA has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.6 Unless the Client notifies AIA that it intends to make a claim in respect of an event within the notice period, AIA shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 24 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.7 This clause 8 shall survive termination of the Contract.
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 3 months' written notice.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
- (a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing to do so;
- (b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- (c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- (d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, AIA may terminate the Contract with immediate effect by giving written notice to the Client if:
- (a) the Client fails to pay any amount due under the Contract on the due date for payment; or
- (b) there is a change of control of the Client.
9.4 Without affecting any other right or remedy available to it, AIA may suspend the supply of Services under the Contract or any other contract between the Client and AIA if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(d), or AIA reasonably believes that the Client is about to become subject to any of them.
10. Consequences of termination
10.1 On termination of the Contract:
- (a) the Client shall immediately pay to AIA all of AIA's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, AIA shall submit an invoice, which shall be payable by the Client immediately on receipt;
- (b) the Client shall return all of AIA Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then AIA may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination [or expiry], including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings.
- (a) AIA may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
- (b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
- (a) Each party undertakes that it shall not at any time during the Contract, and for a period of three years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or AIAs of the other party, except as permitted by clause 11.3(b).
- (b) Each party may disclose the other party's confidential information:
- (i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.3; and
- (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- (c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement.
- (a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- (b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
- (c) Nothing in this clause shall limit or exclude any liability for fraud.
11.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- (a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number.
- (b) Any notice shall be deemed to have been received:
- (i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
- (ii) 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 at the time recorded by the delivery service; and
- (iii) if sent by fax, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
- (c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9 Third party rights.
- (a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- (b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.