Terms and Conditions

AIA Worldwide Standard Terms and Conditions

1. INTERPRETATION

In these terms and conditions the following expressions shall bear the following meanings:

“Charges” means the charges payable by the Client to aia Worldwide in respect of the Client Product and/or Services

"Contract" means any contract between aia Worldwide and the Client incorporating these conditions

“Client” means the party to whom aia Worldwide is providing the Client Product and/or Services pursuant to a Contract

"Client Product" The product agreed to be supplied to the Client by aia Worldwide pursuant to the terms of a Contract.

"aia Worldwide" Associates in Advertising Limited.

“Intellectual Property Rights” means all intellectual property rights and applications for the same existing in any jurisdiction, whether registered or unregistered and including, without limitation, copyright, patents, trademarks and know-how

“Quotation” means the formal written offer made by aia Worldwide to the Client specifying the Services to be undertaken by and the Charges to be paid by the Client in respect of the same

“Services” means the services to be provided by aia Worldwide pursuant to a Contract entered into between aia Worldwide and the Client

“the Specification” means the description of the Services and/or the design, appearance and functionality of the Client Product which are/is the subject of a Contract

2. TERMS APPLICABLE TO ALL CONTRACTS

(a) A Contract between aia Worldwide and the Client incorporating these terms and conditions shall be deemed to have been entered into by the parties upon receipt by AIA WORLDWIDE of a purchase order issued by the Client in response to a Quotation carrying these terms on its reverse. aia Worldwide shall not be under any obligation to commence work on or provide the Services, or any part of them, until:

(i) it has received a purchase order from the Client covering the specific Services upon which the Client wishes it to commence work; and

(ii) where aia Worldwide has requested the same, the Client has provided it with the Specification and the same has been agreed by aia Worldwide.

(b) For the avoidance of doubt, by submitting a purchase order in response to a Quotation, the Client hereby acknowledges and confirms that the terms and conditions contained herein take precedence over any other terms and conditions which might have been put forward by the Client at any time.

(c) aia Worldwide will use all reasonable endeavours to meet any date proposed by the Client for the completion of the Services, but time shall not be of the essence in respect of the same, unless expressly agreed by the parties in writing.

(d) aia Worldwide will provide the Services in consideration of the payment of the Charges by the Client.

(e) aia Worldwide reserves the right to levy additional Charges in respect of extra work undertaken as a result of any agreed changes to the Specification. The additional sum to be paid by the Client in respect of any extra work undertaken in such circumstances shall be agreed between the parties and, in the absence of agreement, shall be calculated by multiplying the time spent by aia Worldwide’s personnel in carrying out the same by their applicable hourly rates.

(f) If the Client does not notify aia Worldwide within 7 days of receipt of any Client Product provided as a part of the Services of any defect in the same or any non-compliance with the Specification in respect of it, it shall be deemed to have accepted the Client Product (“the Date of Acceptance”).

(g) Subject to sub-clause (h) below, once aia Worldwide has received a purchase order from the Client, the Contract cannot be cancelled by either party.

(h) In the event that the Client requests that any media booking for advertising be cancelled, aia Worldwide will use reasonable endeavours to effect the cancellation, but cannot guarantee to do so if it is bound by media owners’ standard forms of contract. aia Worldwide will advise the Client of any media owners’ charge for which it will be liable as a result of cancellation, and the Client will reimburse aia Worldwide in full in respect of such charge.

(i) In addition to any other rights which it has pursuant to these terms and conditions, aia Worldwide reserves the right to suspend the performance of its duties under a Contract whilst any Charges that have fallen due from the Client remain outstanding.

3. CHARGES

(a) All Charges are exclusive of value added tax or any similar taxes, levies or duties, as well as delivery costs, which will be added to or charged on invoices at the appropriate rates.

(b) For the avoidance of doubt, the Client will reimburse aia Worldwide in full for media owners’ gross charges (or any cancellation charge, as applicable) for advertising booked by aia Worldwide for the Client within 30 days of the date of the invoice raised by aia Worldwide in respect of the same.

(c) All Charges shall be payable in accordance with the Quotation and any payment schedule contained in it and, in any event, within 30 days of the date of the invoice raised by aia Worldwide in respect of the same.

(d) aia Worldwide may charge interest on any and all outstanding amounts due pursuant to the Contract until it receives payment in full at a rate equal to 4 per cent per annum above the base lending rate of the National Westminster Bank Plc, whether before or after judgment. Interest shall continue to accrue notwithstanding termination of the Contract for any reason whatsoever.

(e) For the avoidance of doubt, any failure by the Client to pay an invoice in accordance with the foregoing terms of this clause will constitute a fundamental breach of the Contract for the purposes of clause 7 below.

(f) aia Worldwide shall be entitled to add to the Charges all reasonable out-of-pocket expenses and other disbursements incurred by it (including hotel, travelling expenses, courier charges and any other specific disbursements incurred by AIA WORLDWIDE at the Client’s request).

4. INTELLECTUAL PROPERTY RIGHTS

(a) Subject to (i) the Client paying in full aia Worldwide’s Charges for producing the Client Product and (ii) sub-clauses 4 (b) and (c) below, the literary and artistic copyright in the Client Product shall vest solely and absolutely in the Client and AIA WORLDWIDE shall co- operate with the Client and do everything necessary to give effect to such vesting.

(b) All Intellectual Property Rights subsisting in and in relation to any software (“the Software”) comprised in the Client Product 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 Worldwide 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 Worldwide; and

(ii) from the Date of Acceptance of the Software, aia Worldwide 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 4(b)(i) 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 Worldwide also undertakes to procure that a licence in similar terms to that contained in sub-clause 4(b)(ii) 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.

(c) Where any Client Product incorporates any material(s) prepared or developed by a third party, aia Worldwide 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 Worldwide 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.

5. WARRANTIES AND INDEMNITIES

aia Worldwide

(a) Subject to the limitations upon its liability set out in clause 6 below, aia Worldwide warrants that:

(i) In performing its obligations under these terms and conditions, it will exercise the reasonable skill and care of someone holding himself out as capable of providing services of the nature of the Services; and

(ii) In so far as the Client Product comprises any Software, that Software will, for a period of 30 days from the Date of Acceptance, function free from defects in accordance with the Specification, in so far as the Software has not been modified by the Client after such date.

(b) The Client shall give notice to aia Worldwide as soon as it is reasonably able upon becoming aware of a breach of warranty.

(c) aia Worldwide shall forthwith upon receipt of a notice in respect of a breach of the warranty at clause 5(a)(i) or (ii) above remedy the same free of charge. Client

(d) The Client hereby warrants, for the purposes of any Contract for the provision of Services entered into between the Client and aia Worldwide, 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 Worldwide 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 Worldwide 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 Worldwide 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 Worldwide) that aia Worldwide may incur to the employee(s) or worker(s) in question as a consequence of, or pursuant to, the relevant transfer.

6. LIMITATION OF LIABILITY

(a) aia Worldwide shall not be liable for any damage or loss suffered by the Client by reason of any breach by aia Worldwide of any of the terms and conditions of the Contract (whether express or implied) arising other than by reason of aia Worldwide’s negligence, in so far as such damage or loss exceeds the amount of the Charges received by aia Worldwide 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).)

(b) aia Worldwide does not purport to exclude or limit liability for death or personal injury caused by its negligence or that of any of its employees.

(c) aia Worldwide shall not be liable, in respect of any event or related series of events, for any loss or damage due to its negligence (which shall include, for this purpose, a breach of clause 5(a)(i) above), which is not otherwise limited under any other clause of the Contract, in so far as the same exceeds £1,000,000 [OR, alternatively, “£3,000,000 in respect of tangible property and £1,000,000 in all other cases”].

(d) Without prejudice to clause 6(b) above, aia Worldwide’s liability under the Contract for consequential, indirect or special loss for any damage or loss suffered by the Client as a result of aia Worldwide’s negligence and/or breach of contract shall be wholly excluded. For the avoidance of doubt, consequential, indirect or special loss for the purposes of this clause shall mean loss or damage which is (i) not, either, loss or damage to property of the Client caused directly by the negligence and/or breach of contract of aia Worldwide, or, loss or damage which arises directly and naturally from aia Worldwide’s negligence and/or breach of contract, and (ii) which is purely economic,, and includes, but is not limited to, any loss of business or revenue, savings the Client anticipated it would make as a result of the proper performance of the Contract, wasted expenditure, and corruption or destruction of data. Clauses 6(a) and 6(c) shall be read subject to this clause 6(d).

7. DISCRIMINATION

7.1 The Client shall indemnify aia Worldwide against any liability incurred by aia Worldwide to any third party as a result of:

(i) any act of discrimination of the Client in connection with the Services; or

(ii) aia Worldwide carrying out any instructions given to it by the Client in connection with the performance of the Services by aia Worldwide.

7.2 Save where the same falls within clause 7.1(ii) above, aia Worldwide shall indemnify the Client against any liability incurred by the Client to any third party as a result of any act of discrimination of aia Worldwide in the performance of any of the Services.

8. TERMINATION

(a) Either party may terminate the Contract at any time on three months’ written notice to the other.

(b) Either party to the Contract ("the Aggrieved Party") shall be entitled forthwith to terminate the Contract by written notice to the other party ("the Defaulting Party") if:-

(i) the Defaulting Party commits any fundamental breach of the Contract and fails to remedy the same within 30 days after receipt from the Aggrieved Party of a written notice giving particulars of the breach and requiring it to be remedied;

(ii) an encumbrancer takes possession of, or a receiver is appointed over, any of the property or assets of the Defaulting Party;

(iii) the Defaulting Party makes any voluntary arrangement with, or any assignment in favour of, its creditors or becomes subject to an administration order;

(iv) the Defaulting Party goes into liquidation or is declared insolvent;

(v) a Court makes any composition in satisfaction of the debts of, or a scheme of arrangement of the affairs of, the Defaulting Party;

(vi) any event analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the Defaulting Party; or

(vii) the Defaulting Party ceases, or threatens to cease, to carry on business.

b) The rights of either party to terminate the Contract under this Clause 7 shall be without prejudice to any other right or remedy of either party arising under or in respect of the Contract.

(c) The termination of the Contract for whatever reason shall be without prejudice to the respective rights and liabilities of the parties, which have accrued prior to the date of termination.

9. FORCE MAJEURE

aia Worldwide will not be liable for any failure to perform or difference in performance attributable to accidents or circumstances beyond its reasonable control and in particular (but not exclusively) industrial action, war, shortage of materials, fire, natural physical disaster, epidemic, act or restraint of government. In any such event, aia Worldwide shall be at liberty on notice to the Client, to make partial delivery or performance only or to determine the Contract, and in either case without prejudice to its rights accrued there under.

10. AMENDMENTS

Any amendment, waiver or variation of any provision of the Contract shall not be binding on the parties unless set out in writing, expressed to amend the Contract and signed by or on behalf of each party.

11. WAIVER

No forbearance or delay by either party in enforcing its rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.

12. SEVERABILITY

If any provision of the Contract judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions will not be prejudiced.

13. ASSIGNMENT

The Client may only assign the Contract with the prior written agreement of aia Worldwide, which shall not be unreasonably withheld. aia Worldwide reserves the right to assign all or part of the Contract at any time to any company or person.

14. ENTIRE AGREEMENT

(a) These terms and conditions, the Quotation, Purchase Order and the Specification (where there is one) embody the entire understanding of the parties and supersedes any prior promises, representations, undertakings or implications. This condition shall not exclude any liability in respect of any statement made fraudulently by either party prior to the date of the Contract.

(b) In entering into the Contract, the Client acknowledges that it does not rely on any promises, representations, undertakings or implications other than those contained in the Contract.

15. LAW

The law applicable to the Contract shall be English Law and the parties agree to submit to the exclusive jurisdiction of the English Courts.

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