1.1 The Client appoints the Agency as its sole provider of advertising consultancy services in respect of run advertising campaign in online and offline media directed to the Polish Community in the UK (insert relevant goods/services of Client) ("the Products") plus any other brands launched or acquired by the Client which the parties agree should be covered by this agreement. The said advertising and consultancy services are described in detail in Insertion Order ("the Services").
2.1 The Services will be provided by the Agency during the term of this agreement ("the Term"), which will be agreed in Advertising Agreement.
3.1 The Agency shall monitor all production companies and suppliers to whom work is sub-contracted to ensure that:
(a) all deadlines are met and that all agreed budgets are not exceeded;
(b) all necessary consents, clearances and licences are obtained;
(c) all necessary consents, clearances and licenses are obtained in respect of copyright and any other rights in all performances, music and all other constituent elements of the Advertising (as defined in Insertin Order);
(d) all artists are properly contracted for appearances, repeats and/or buy-outs.
4. Agency Acts as Principal
The Agency acts as a principal at law and not as the agent of the Client in all its dealings with third party suppliers and shall be directly responsible to such parties for payment of their fees/invoices.
5. Agency Remuneration
The Client agrees to remunerate the Agency for the Services in accordance with Insertion Order.
6. Approvals and Authority
6.1 The Client will nominate a named individual to whom all requests for approval should be sent. All production costs and research or creative work, if any, not covered by the remuneration as set out in Insertion Order shall be estimated in advance.
6.2 The Client's written approval of copy, layouts or artwork will be the Agency's authority to buy production materials and prepare proofs. The Client's written approval of television, internet, cinema and radio scripts and/or storyboards will be the Agency's authority to enter into production agreements and to engage performers.
7. Payment of Invoices
7.1 All invoices rendered by the Agency to the Client under this agreement shall be paid without set off 14 days from the invoice date.
8. Intellectual Property/Copyright
8.1 All intellectual property rights in all product of the Services including the Advertising shall remain the property of the Agency and/or its licensors.
8.2 The Client shall provide the Agency with copies of all trade marks and branding which are to be included in the Advertising and the Client hereby grants the Agency a royalty free licence to use, copy and reproduce such trade marks and branding for the purpose of developing the Advertising.
8.3 The Agency will use all reasonable endeavours to obtain all copyright and a waiver of moral rights in respect of work sub-contracted to or acquired from third parties but it cannot undertake that in all cases it will be able to do so. In the event that the Agency is unable to obtain copyright or a waiver of moral rights in respect of such work the Agency shall inform the Client before any appropriate agreement is entered into.
8.4 The Client agrees that on termination of this agreement the Agency shall be entitled to use the Advertising solely for its own internal and external promotional purposes.
9. Warranties and Indemnities
9.1 The Agency acknowledges that it owes the Company a duty to use all reasonable endeavours to ensure:
(i) that its work does not infringe the copyright, registered trademarks, registered designs, design rights, patents or any other rights of any third party and is not in any other way contrary to law; and
(ii) compliance with relevant codes.
9.2 The Agency may, at any time it is concerned about the possibility of a claim arising from the content of the work produced under this Agreement, at its option and expense replace or modify such work with a view to avoiding such a claim. For the avoidance of doubt, the Agency shall have no liability to the Client under any provision of this clause if any claim or action is based upon any modification to the work produced under this Agreement which is not authorised by the Agency.
9.3 The Client warrants that it owns all intellectual property rights in the trade marks and branding provided by the Client necessary for their inclusion in the Advertising.
10. Legal Liability
10.1 Nothing in this agreement shall exclude or any way limit either party's liability for death or personal injury caused by its negligence. Subject to this, neither party shall be liable to the other for any loss of contracts or loss of actual or anticipated income or profit or for any indirect, special or consequential damages, loss or expenses arising under this agreement whether or not such loss or damage is foreseeable, foreseen or known.
The Client and the Agency agree to:
(a) inform each other immediately if any claim, statement or representation in any copy to be published is, or is likely to be defamatory, in breach of copyright, in breach of the terms of any Act or provision of law, or is in any other way unlawful;
(b) inform each other without delay if it considers any claim or trade description in any copy is false or misleading in relation to the product or service to be advertised.
12.1 Either party has the right to terminate the agreement immediately if the other:
(a) has committed a material breach of this agreement, unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other party has failed to remedy the breach within 14 days after a written notice to do so; or
(b) becomes insolvent or is the subject of a bankruptcy order.
13.1 The parties agree to keep all confidential information in relation to the business of the other confidential during and after the term of the agreement. This clause 14.1 will not apply to:
(a) any information which has been published other than through a breach of this agreement;
(b) information in the possession of the recipient party before the disclosure under this agreement took place;
(c) information obtained from a third party who is free to disclose it;
(d) information which a party is required by law to disclose.
14.1 The agreement made between the parties (which consists of this agreement and the Schedules), contains the total understanding of the parties and supersedes all previous understandings between them either in writing or oral, provided that this shall not apply to fraudulent or negligent misrepresentation.
14.2 If, due to war, strike, lockout, accident, fire blockage, natural catastrophe or other obstacles over which it has not control, any party fails to comply with any obligation to the other party in the manner and time required, it shall not be held responsible for any loss or damage which may be incurred by the other party as a result of such failure.
14.3 This agreement can only be amended or modified by written agreement signed by both parties.
14.4 Neither of the parties to this agreement may assign their rights or benefits under this agreement without prior written consent from the other party.
15. Governing Law
This agreement and the rights of the parties under it shall be governed by and construed in accordance with English and Scottish Law. The parties agree to submit to the non exclusive jurisdiction of the courts of England, Scotland and Wales.