V1, December 2022
The terms and conditions set out below (“Terms of Business”) govern the provision of services and/or deliverables by Hugo & Cat Ltd. (“Hugo & Cat” or “Agency”), (collectively, the “Services”) agreed in a statement of work (“Statement of Work” or “SOW”) with the client identified in the SOW (“Client”). These Terms of Business will apply to Hugo & Cat’s provision of Services to the exclusion of any other terms imposed or incorporated by Client, or that are implied by trade, customer, practice, or course of dealing. Accordingly, these Terms of Business override any additional, inconsistent or conflicting terms or any purchase order, quotation, confirmation, invoice, acknowledgement, release or other written correspondence.
The Terms of Business will not apply where Hugo & Cat and Client have a pre-existing agreement for the supply of particular services and/or deliverables described in those agreements.
- SOW and Agreement. Agency shall provide to Client the Services set out in a SOW. In the event of a conflict between the terms of any SOW and the Terms of Business, the terms of the SOW shall govern with respect to the Services. Each SOW together with the Terms of Business, including any exhibits, attachments and schedules referenced and/or incorporated herein or a SOW, constitute one agreement (“Agreement”).
- Affiliates. The parties agree that Client’s affiliates (each a “Client Affiliate”) may also request services from the Agency or its affiliates (each an “Agency Affiliate”). Where Client Affiliates request services of Agency or Agency Affiliates or Client requests services of Agency Affiliates directly, such services shall be contracted pursuant to a SOW between those parties and shall be provided subject to the terms of the Terms of Business, except as may be varied in the SOW because of any local law requirements and service-specific terms, and with all references to Agency and Client in the Terms of Business being read as referring to Agency Affiliate and Client Affiliate concerned. An affiliate is a company owned by, that owns or is under direct or indirect ultimate common ownership as Client or Agency respectively.
- Digital Services. Where any Services provided by Agency pursuant to a SOW includes the provision of Digital Services (as defined in Exhibit A), the terms set out in Exhibit A (“Digital Services Terms”) shall also apply to the provision of such Services. In the event of a conflict or inconsistency between the Terms of Business and any SOW and/or the Digital Service Terms, the order of precedence (in descending order) will be as follows: (1) Digital Services Terms (Exhibit A); (2) the Terms of Business and (3) SOW, unless a SOW expressly states otherwise by reference to this clause.
- Branding Services. Where any Services provided by Agency pursuant to a SOW includes the provision of any branding services, the following additional terms shall also apply to the provision of such Services:
- Agency may request Client to deliver to it proof copies or mock-ups of anything designed by Agency so that Agency may determine whether the examples accurately represent the Agency’s recommendations. Agency retains the right to retain such copies solely for its own records.
- Client is responsible for correcting proofs submitted by Agency or an associated third party to Client. Agency shall not be liable for any errors not corrected by Client in any such proofs submitted to Client. Client’s alterations and additional proofs necessitated thereby shall be charged in addition to the Fee. When style, type or layout is left to Agency’s judgement, changes thereafter made by Client shall be charged in addition to the Fee.
- The Client shall be responsible for ensuring that goods designed by the Agency are safe when used for their specified purpose.
2. Compensation & Expenses
For the Services and outlays on Client’s behalf, Client agrees to pay Agency compensation as follows:
- Fees. Client shall pay Agency the fees (“Fees”) set out in each SOW. In circumstances of the provision by Agency of services to Client without any agreement as to Fees then services shall be provided on a time and materials basis against Agency’s then prevailing standard hourly rates (as set out in the SOW) for the staff concerned. Client understands that Agency staff may include workers and self-employed contractors who may be engaged directly or via a third-party and shall be charged at the equivalent rates (based on skill and experience) as Agency’s employed staff. Agency shall be responsible for ensuring that all staff comply with all terms of the Agreement. Where Client’s issuance of a purchase order or other document is, within its own processes, a condition precedent to its payment of any invoice, then Client shall issue such document promptly upon the entering into of any SOW. The Agreement and the obligation to pay arising out of it and associated SOW shall be binding on Client and the Agreement shall override any terms printed on any such purchase order or other document. If a purchase order or such other document has not been issued as at the point in time of Agency’s entitlement to first invoice, then Agency may at its election (i) add a delay surcharge to its Fees; and/or (ii) suspend its provision of Services pending issuing of the purchase order or other document required.
- Expenses. Client shall reimburse Agency for Agency’s reasonable, actual out-of-pocket expenditures, including but not limited to media luncheons, travel, sales tax, freight, shipping, printing, postage, messenger, telephone, fax, copy charges and courier services. Any expenses paid directly by the Agency shall be invoiced to the Client at the net cost. Agency reserves the right to pre-bill any expense in excess of £10,000 and to require pre-payment of any expense in excess of £50,000.
- Billing. Agency shall bill Client for the Fees as set out in each SOW and for reimbursable expenses incurred by Agency during the previous and/or prior months. In the absence of any invoicing schedule in the SOW, such Fees shall be invoiced monthly in arrears. Payment is due no later than thirty (30) days from the invoice date, time being of the essence.
- Late payment. Agency reserves the right to charge Client a late payment penalty of one and one-half percent (1.5%) per month on overdue accounts; provided, however, that Agency agrees to not assess a late penalty until an account is more than thirty (30) days past due. In no event will the rate of such penalty be higher than the maximum rate allowable under applicable law. In case of delinquency of Client’s payments or any impairment of Client’s credit as Agency reasonably deems might endanger future payments, Agency reserves the right to change the requirements as to terms of payment under the Agreement. If Client is in default with respect to payment under the Agreement, Agency reserves the right to suspend some or all of the Service until arrangements satisfactory to Agency are made. Client agrees to reimburse Agency for any costs incurred (including reasonable solicitors' fees and court costs) in connection with Agency’s attempts to collect any sums that are over thirty (30) days past due. In the event of a disputed charge, Client shall notify the Agency in writing of the disputed amount within thirty (30) days of the invoice date, specifically identify the reason for the dispute, and pay all undisputed amounts owed while the dispute is under negotiation. In the event of a termination due to Client’s failure to pay, Client shall be liable to pay Agency according to the terms of the Agreement for any Services performed, including but not limited to (i) reimbursing Agency for all expenses incurred prior to the effective date of such termination; (ii) assuming Agency’s liability for all contracts and commitments Agency is unable to cancel; and (iii) reimbursing Agency for any cancellation penalties incurred.
4. Term; Termination
- The Agreement is effective as of the date of commencement of the Services or as provided in the applicable SOW, and shall continue until completion of the Services or on the date agreed in the SOW. Either party may terminate a SOW by providing the other party at least ninety (90) days’ prior written notice to terminate. During any notice period, the Agreement will re main in full force and effect and the rights, duties and responsibilities of Agency and Client shall continue, including the placing of advertising materials in any media whose dates fall within the notice period. With respect to the notice period, as applicable:
- for Services provided on the basis of a fixed or minimum monthly fee, Agency will be entitled to receive the fixed or minimum monthly fee through the date of termination of the Agreement, and the fixed or minimum monthly fee for any partial month shall be prorated based on the number of days elapsed in such partial month prior to the date of termination of the Agreement;
- for Services provided on an hourly basis, Agency will be entitled to receive, at a minimum, Fees in an amount not less than the fees due to Agency for the ninety (90) day period immediately preceding the date notice is delivered; and the hourly time charges for any Services provided during the notice period, including any transition services, shall be credited against the minimum fee described herein; and
- for Services provided on a project fee basis, Agency will be entitled to receive Fees for all hours actually worked towards completion of the project, at Agency’s standard hourly rates, provided that such amount shall not exceed the total fee budget approved for the project, or where agreed expressly in a SOW, Fees for the entire phase of the project irrespective of hours worked towards completion.
- Either party terminates a SOW on thirty (30) day’s prior written notice to the other, unless otherwise agreed in a SOW, in which event, the notice period agreed in the SOW will apply.
- Either party may terminate the Agreement with prior written notice to the other, if the other party: (i) is in material breach of any of the terms of the Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 14 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or (ii) (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or (iii) becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or (iv) has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets.
- On termination of the Agreement, any materials or services Agency has committed to purchase for Client shall be paid for by Client, and Agency shall receive applicable compensation as set out in the Agreement. Agency shall transfer, assign and make available to Client or Client’s representative all property and materials in Agency’s possession or control belonging to and paid for by Client, provided that there are no overdue sums then owing by Client to Agency.
Each party (the “Receiving Party”) will treat as confidential and properly safeguard any and all information, documents, papers, programs and ideas relating to the other party (the “Disclosing Party”), its operations, finances and products and/or those of its Vendors as they pertain to the Agreement, disclosed to the Receiving Party and designated by the Disclosing Party as confidential or which should be reasonably understood to be confidential (“Confidential Information”). Confidential Information shall not include information that (a) is or falls into the public domain; (b) is disclosed to the Receiving Party by a third party which is not under an obligation of confidentiality to the Disclosing Party; (c) was already known to the Receiving Party; and/or (d) is independently developed by the Receiving Party without reference to Confidential Information. In the event the Receiving Party is required by a subpoena or other legal process to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall: (i) if legally permitted, inform the Disclosing Party of such requirement; and (ii) only provide such Confidential Information of the Disclosing Party that is legally required. In the course of performing the Services, Agency may disclose Confidential Information as Client shall have approved for disclosure and/or to an Agency Affiliate or other group or network affiliate entity which needs to know such information in connection with the Agreement and will comply with the terms of this clause in respect of such information. This provision shall survive the termination of the Agreement and shall remain in full force and effect for a period of three (3) years following the completion of Services. Notwithstanding the above, Client accepts that Agency shall be permitted to comply with its declaratory obligations to collective licensing bodies and regulatory and self-regulatory bodies to which they are required to disclose client related information (E.g. in the UK, it would include without limitation Newspaper Licensing Authority and Copyright Licensing Agency, which require as a condition of the licence to copy that Agency declare those clients to which it provides copied materials).
6. Procurement of Third Party Goods and Services
Client authorises Agency to enter into contracts with pre-approved third parties offering Third Party Materials (as defined in clause 7.a) that are ancillary or related to the Services and necessary for Agency to provide the Services, including without limitation technology partners, talent, media owners, data services, analytics services and research services (“Third Party Vendors”). Agency shall either: (i) enter into Third Party Vendor contracts as an agent for a disclosed principal and Client assumes all liability under such Third Party Vendor contracts; or (ii) pass-through or assign to Client the rights Agency obtains from the Third Party Vendors of such products and services (including warranty and indemnification rights), all to the extent that such rights are assignable. Agency will use reasonable endeavours to guard against any loss to Client resulting from the failure or improper performance by Vendors, but Agency’s liability in connection with such Third Party Vendors shall not under any circumstances exceed the amounts recoverable by Agency from such Third Party Vendors.
7. Ownership; Use of Materials
- As between Agency and Client, Client shall be sole owner of all rights in and to materials and/or deliverables developed and produced by Agency on Client’s behalf, provided Client has paid all invoices due and owing to Agency pursuant to the Agreement (“Deliverables”). Notwithstanding anything in the Agreement to the contrary, Client understands and agrees that its rights in any third party materials and/or any Third Party Vendor services including, without limitation, stock photos, licensed materials or talent and talent residuals, content, fonts, software/open source software (collectively “Third Party Materials”), are subject to any terms and conditions set forth in any applicable agreement (“Third Party Terms”). If Agency wishes to utilise any Third Party Materials that are subject to limitations on Client’s ability to use such Third Party Materials, Agency shall disclose such limitations to Client in writing and obtain Client’s written consent to utilise such Third Party Materials in the Services, and thereafter, Client agrees to comply with any such Third Party Terms.
- Notwithstanding anything in the Agreement to the contrary, Agency retains all of its rights, title and interest in and to (including, without limitation, the unlimited right to use) (i) all materials which are proprietary to and/or owned by or licensed to Agency prior to, or independent from, the performance of the Services, including any software, components, routines, subroutines, programs, information, data, and all modifications to them; and (ii) all generic or proprietary information, and all ideas, methodologies, applications, processes or procedures used, created or developed by Agency in the general conduct of its business.
- It is expressly understood and agreed that Agency shall not be responsible for ordering or performing preliminary or full trade mark searches, and/or for clearing for use and/or registering any prospective slogans, names, tag lines, trademarks and/or logos created by Agency for Client (collectively, “Marks”). Client acknowledges that it is and remains solely liable for preliminary and full trade mark searches and for clearing and/or registering any Marks. In the event of any trade mark infringement proceedings, litigation, claim, third party challenge or registration refusal, Agency will not in any way be held liable or required to participate in any defence of Client’s rights in the Marks.
During the Term and for a six-month period thereafter, neither party shall solicit, employ, or attempt to employ, directly or indirectly (whether as employee, consultant or otherwise) any employee of the other party (or any former employee whose employment terminated within the previous six months) without the other party’s prior written consent. If during the Term or six months thereafter a party engages the services of an employee of the other party without the other party’s prior written consent, the hiring party agrees to pay the other party a fee calculated as thirty percent (30%) of that person’s new annual salary and any other compensation.
9. Client Obligations
Client shall be responsible for: (a) the accuracy and completeness of information concerning Client’s organisation, products, services and Client’s competitors’ products and services, provided to Agency by Client or by a third party authorised by Client; (b) any ideas or directions, provided to Agency by Client or by a third party authorised by Client; (c) rights, licences and permissions to use any client materials, including software, data, calculations, algorithms, methods, information, content (“Client Materials”) furnished to Agency by Client or by a third party on Client’s behalf; (d) compliance with all laws and regulations applicable to Client’s business (including all securities laws); and (e) the content of any press releases or other disseminated statements, information or materials and/or Deliverables approved by Client.
- Indemnification. Client shall defend, indemnify and hold Agency harmless from and against any loss, damage, liability, claim, demand, action, cost and expense (including reasonable solicitors’ fees and costs) (collectively “Loss”) resulting from claims made against Agency by any third party, including any governmental entity, which arise out of or in connection with (i) Client’s obligations under Section 9; (ii) information or materials supplied to Agency by Client or a third party authorised by Client; (iii) as a result of any governmental investigation, proceeding or administrative hearing regarding Client and/or its marketing communications, unless due to Agency’s negligence; (iv) Client’s products, services or premiums; (v) Client’s failure to pay any and all amounts owed to third parties or any claims raised by third parties against Agency related to Authorised Contracts; and (vi) Client’s use of any Third Party Materials in violation of the terms and conditions set forth in the agreements governing the use of such Third Party Materials. In matters in which Agency is not a party, Client shall pay or reimburse Agency for all reasonable solicitors’ fees and expenses Agency incurs and for all Agency personnel time incurred (at Agency’s then current hourly rates) in connection with Agency’s response to subpoenas, depositions, discovery demands (or in each case the local legal equivalent), and other inquiries arising from suits, proceedings, legislative or regulatory hearings, investigations, or other civil or criminal proceedings in which Client is a party, subject, or target.
- Agency shall indemnify, defend and hold Client harmless for all Loss with respect to any third party claim or action against Client arising out of or in connection with (i) material prepared by Agency on Client's behalf to the extent it asserts a claim for infringement of copyright, piracy, or plagiarism; or (ii) Agency’s failure to follow Client's express written instructions. Notwithstanding the foregoing, Agency shall not be liable to Client if any Loss arises out of or in connection with the materials, data or information supplied by Client to Agency, or as a result of Client’s use of any materials, data or information in violation of the terms of any third party agreements relating thereto.
- On assertion of any claim or the commencement of any suit or proceeding against either party (“Indemnitee”) that may give rise to liability of the other party (“Indemnitor”) under the Agreement, the Indemnitee shall notify the Indemnitor of the existence of such claim and shall give the Indemnitor reasonable opportunity to defend and/or settle the claim at its own expense and with counsel of its own selection. The Indemnitee shall at all times have the right fully to participate in such defence at its own expense and shall not be obligated, against its consent, to participate in any settlement which it reasonably believes would have an adverse effect on its business. The Indemnitee shall make available to the Indemnitor all books and records relating to the claim, and the parties agree to render to each other such assistance as may reasonably be requested in order to insure a proper and adequate defence.
- This Section 9 shall survive the expiry or termination of the Agreement.
10. Limitation of Liability
- In no event whatsoever shall either party be liable to the other for any incidental, indirect, special, consequential or punitive damages or lost profits under any tort, contract, strict liability or other legal or equitable theory arising out of or pertaining to the subject matter of the Agreement, even if said party has been advised of the possibility of or could have foreseen such damages.
- To the extent permitted by law, Agency’s maximum liability (regardless of form of action, whether in contract, tort or otherwise) arising out of the Agreement shall in no event exceed the Fees payable to Agency by Client under the SOW pursuant to which the Services giving rise to the liability were being performed or pursuant to which Services were being performed when the breach of the Agreement occurred.
- Nothing in the Agreement shall exclude or restrict either party’s liability for fraud or fraudulent misrepresentation or for death or personal injury arising from its own negligence or for any other liability that cannot be excluded or limited at law.
- This Section 10 shall survive the termination of the Agreement.
11. Cancellation/Modification of Plans; Change Order
Subject to Section 14b, if Client wishes to modify or revise the Services agreed in a SOW, then it shall inform the Agency of the modifications or revisions required. Agency shall promptly provide a written estimate to Client of: (i) the likely time it will take to implement the requested change; (ii) any change to the Fees arising from the requested change and an estimate of any additional costs or expenses; and (iii) any other impact the requested change may have on the SOW concerned. If Client approves the estimate, then a revised SOW shall be issued to Client for signature. Once that is received back signed, the Agency will take steps as soon as practicable to give effect to the agreed change. Unless and until both parties agree in writing to the SOW variation, the SOW will not be modified or revised. If a SOW is cancelled in consequence of the Agreement terminating under Section 4, Client agrees to pay Agency according to the terms of the Agreement for any Services performed, including but not limited to (a) reimbursing Agency for all expenses incurred prior to the effective date of such cancellation; (b) assuming Agency’s liability for all contracts and commitments Agency is unable to cancel; and (c) reimbursing Agency for any cancellation penalties incurred. In addition, in the event of a modification, revision or cancellation, Client shall indemnify, defend and hold Agency harmless for all Losses that result from carrying out Client’s instructions.
12. Use of Materials by Third Parties
After material has been issued by Agency to the news media or to another third party its use is no longer under Agency’s control. Agency cannot assure the use of news material by any news organisation. Similarly, the Agency cannot control the form or manner of use by the news media or others of the material, including, but not limited to, the accurate presentation of information supplied by the Agency. It is understood and agreed that the Agency does not stipulate or guarantee specific or overall results or returns from public relations, publicity, research or any other activity performed by the Agency.
13. Processing of personal data
- The parties warrant that they will comply with any Data Protection Laws in force in the relevant territory (and in any other jurisdiction in which it carries on business) throughout the Term of the Agreement, in connection with and to the extent relevant to their performance of applicable obligations under the Agreement.
- To the extent the Agency processes any personal data on behalf of the Client it shall do so in accordance with its GDPR Client Pack a copy of which shall have been provided by the Agency to the Client. Should the parties enter into a standalone data processing agreement (“Data Processing Agreement”), it shall govern such processing and supersede the GDPR Client Pack. If any conflict arises between this Agreement and the Data Processing Agreement in respect of any processing of personal data in the performance of the Services, the terms of the Data Processing Agreement will take precedence.
14. Force Majeure
- Neither party shall be liable for any delay or failure to carry out or make continuously available its obligations under the Agreement if such delay or failure is due to any cause beyond such party’s control, including without limitation restrictions of law or regulations, labour disputes, acts of God, acts of terrorism or war, communicable disease, telecommunications, network or power failures or interruptions, or mechanical or electronic breakdowns (each a “Force Majeure Event”). Both parties agree that following the occurrence of a Force Majeure Event, the affected party shall take such reasonable steps as are available to it, where practicable as agreed with the other party, to mitigate the consequences of any such delay or failure to perform including the prompt cancellation of cancellable commitments with third parties where it is deemed reasonably probable that those third parties’ goods and services shall no longer be required. Following the cessation of any Force Majeure Event the affected party shall resume its obligations under the applicable SOW as soon as reasonably practicable. Notwithstanding the occurrence of any Force Majeure Event, Client shall remain obligated to pay Agency its Fees in full for its performance of Services up until the occurrence of the Force Majeure Event; reasonable Fees (in the absence of agreement between the parties, by reference to Agency’s then standard hourly rates) for those Services performed in the period in which the Force Majeure Event is continuing which Agency is able to take to mitigate the impact of the Force Majeure Event; and for all costs committed and incurred in its proper performance of the Services as provided for elsewhere in the Agreement.
- The parties expressly agree that should the COVID-19 virus or related concerns or disruption, or any event outside of the reasonable control of Agency occur that shall, result in Agency being unable to perform any of its obligations on time or at all, or which shall lead to event cancellation or cause Client to seek to cancel or modify its plans, then: (i) Agency shall not be liable for any such failure or delay in performance; and (ii) Client acknowledges that it shall be liable to pay Agency for: (a) the Services performed, including for work performed following on from any client direction to cancel or modify its plans (Fees to be calculated on a pro rata daily basis by reference to the agreed total Fees for the month concerned); and (b) all amounts paid or committed and non-cancellable to third parties related to the proper performance of the Services; and (c) any costs reasonably incurred in prematurely curtailing or re-arranging any provision of Services such as Fees incurred in rearranging travel and accommodation. Client agrees that in such circumstances Agency should take reasonable steps to recover such third party expenditure as it can and shall continue to perform those of its Services that are possible in the circumstances, unless and until Client directs to the contrary and that Agency shall make itself available to Client as soon as reasonably practicable in order to take Client direction as to how it should proceed. In the absence of any agreement as to the Fees payable in respect of any resulting additional work, then such work shall be performed by Agency against its then standard hourly rates but Agency shall as soon as reasonably practicable alert Client in advance of undertaking work on this basis and shall in no circumstances exceed time costs in excess of the Fees agreed under the relevant SOW before taking client instruction.
15. Independent Contractors
The Agreement does not constitute or create a partnership, joint venture or similar relationship between the parties and neither party shall have the power to bind the other or to create a liability against the other in any manner or for any purpose whatsoever other than as expressly provided for in the Agreement. The parties hereto shall act in all respects as independent contractors. Each party warrants to the other that it has full power and authority to enter into and perform the Agreement.
No waiver of any provision or of any breach of the Agreement shall constitute a waiver of any other provisions or any other or further breach, and no such waiver shall be effective unless made in writing and signed by an authorised representative of the party to be charged with such a waiver. Nor shall a one-time waiver of a single provision constitute a permanent waiver of that party’s rights under said provision.
All notices required under the Agreement shall be in writing and signed by the party delivering such notice and delivered to Client and Agency at their respective registered addresses or as set out in the applicable SOW; it being understood and agreed that email correspondence shall constitute written approval pursuant to the Agreement but shall not be good service of any notice of termination. Any notice of termination delivered by Client shall also be sent to: firstname.lastname@example.org.
Agency may use Client’s name and any non-confidential materials produced hereunder in Agency's portfolio, on Agency's website, intranet, and for internal and trade purposes. Agency will be required to obtain Client's advance approval to utilize Client's trademarks or any Client materials or information in press releases, Agency brochures, or award submissions.
19. Entire Agreement; Severability
The Agreement constitutes the parties’ entire understanding of the matters set forth herein and supersedes any prior understanding or agreement concerning the subject matter hereof. Each party acknowledges that it has not relied on or been induced to enter into the Agreement by any representation other than those expressly set out in the Agreement and except in relation to any liability for fraudulent misrepresentation, neither party shall be liable for or have any remedy in respect of any misrepresentation or untrue statement unless and to the extent that a claim lies under the Agreement. The Agreement may only be modified in writing signed by the parties hereto. In the event that any provision of the Agreement shall be illegal or otherwise unenforceable, such provision shall be severed, and the balance of the Agreement shall continue in full force and effect.
SOWs may be signed in counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to be one Agreement. Delivery of a signed counterpart of a signature page of the SOW by hand or portable document format (.pdf) shall be effective as the delivery of a fully signed counterpart of the Agreement.
All fees quoted and charged by the Agency shall be exclusive of taxes, duties. levies or surcharges (collectively “Taxes”). In addition to the Fees, Client shall be solely responsible to pay in addition all Taxes, however designated and of whatever nature, that are levied or imposed by reason of the transactions contemplated by the Agreement, including, without limitation, all sales, use, value added, consumption, goods and services, transfer, privilege, excise and other Taxes whether international, national, state or local, excluding, however, taxes based on Agency’s net income. Agency shall not be liable for, and Client shall hold harmless and indemnify the Agency against liability for all such Taxes.
22. Contracts (Rights of Third Parties) Act 1999
For the purposes of the Contracts (Rights of Third Parties) Act 1999, and notwithstanding any other provision of the Agreement, the Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
23. Governing Law and Jurisdiction
Any controversy or claim arising out of or related to the Agreement shall be governed by the substantive laws of England and Wales. Both parties irrevocably consent to the exclusive jurisdiction of the courts located in England and Wales.
EXHIBIT A – DIGITAL SERVICES TERMS
This Exhibit A (“Digital Services Terms”) applies to and governs the provision of any digital/software development services by Hugo & Cat to Client under the Agreement (“Digital Services”).
All capitalised terms used in the Digital Services Terms have the same meaning as that given in the Terms of Business unless otherwise defined. In the Agreement unless the context otherwise requires the following terms shall have the following meanings:
- “Agency Software”: any code/software developed by Agency prior to the date of the Agreement, or otherwise independently from the Agreement, which are incorporated into the Digital Deliverables.
- “Client Software”: any software developed by, owned by or licensed to Client and provided by Client to Agency for provision of the Digital Services under the applicable SOW.
- “Digital Deliverables”: the output of the Digital Services.
- “Digital Services”: the services described in the applicable SOW.
- “Intellectual Property Rights” or “IPR”: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks 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, 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.
- “Open Source Software”: means software subject to any form of open-source licence.
- “Project Plan”: the approximate timetable within which Agency will implement the Digital Services as set out in the applicable SOW.
- “Site”: where the Digital Deliverables as specified in the applicable SOW will be hosted.
- “Software”: Agency Software, Third Party Software and/or Open Source Software.
- “Specification”: specifications agreed between the parties in the SOW or otherwise in writing in respect of Digital Services and/or Digital Deliverables.
- “Third Party Software”: software proprietary to third parties, including Open Source Software.
- “writing” or “written”: includes email.
2. Scope of Digital Services
Agency shall provide the Digital Services and/or Digital Deliverables to Client in accordance with the Agreement and the scope and specification described in the applicable SOW. Any Software developed under the Agreement shall be delivered to the Client in object code form.
3. Hosting Services
Agency shall not provide any hosting services. Any hosting services required by Client will be supplied in accordance with the applicable hosting package purchased by Client. If the use by Client and/or any third parties authorised by Client, exceeds the bandwidth purchased within Client’s hosting package, Client will be charged at the hosting provider’s then prevailing rate. Agency cannot guarantee “uptime” greater than what is warranted by the hosting provider and any remedies in respect of breaches by the hosting provider are limited to those to which the hosting provider is legally bound to provide. Agency will not be liable to Client for any acts or omissions of, or any breach by, a hosting provider.
The parties shall agree to the Specification expeditiously in each case. If Client objects to a draft specification provided by the Agency it shall deliver such objections to the Agency within seven (7) days of receipt of the draft specification. Agency shall then have a reasonable period to modify the draft specifications to respond to Client’s objections and each party shall have a reasonable time to review the modified draft specifications. Specifications may be agreed by the parties in writing separately and shall be deemed incorporated into and made part of the applicable SOW.
5. Acceptance and Acceptance Tests
- Client may accept the Digital Deliverables on the basis of the outcome of Agency’s testing, if applicable, or may choose to carry out its own acceptance testing to inspect, test and evaluate whether the Digital Deliverable, or any part of it, complies with the applicable Specification. In either case, Client shall notify the Agency of its written acceptance or notice of non-compliance within seven (7) days (or such other time period agreed between the parties in writing) from the date of delivery of the Digital Deliverable, or any part of it.
- If the Digital Deliverable does not comply with the applicable Specification, Client shall give Agency prompt written notice that the Digital Deliverable is non-compliant and a detailed report of such non-compliance (including the affected part of the Digital Deliverable, the test that identified it and other details of the non-compliance). Agency shall from the receipt of such notice use reasonable endeavours to remedy the deficiencies. On completion of any such remediation by Agency, Client shall have seven (7) days to inspect, test and evaluate the re-performed Digital Deliverable. If it still does not comply with the applicable Specification, Client shall have the option to either: (i) repeat the procedure set out above, or (ii) terminate the affected SOW by written notice to Agency, upon which the termination and post-termination provisions of the Agreement shall apply. If Client does not give written notice to the Agency of acceptance or non-compliance within the period specified in this clause, Client shall be deemed to have accepted the Digital Deliverable upon expiration of such period.
- Agency grants Client a non-exclusive, non-transferable and revocable licence to use Agency Software, (and Agency Material if applicable) to the extent necessary to enable Client to use the Digital Deliverables in the manner and solely for the purposes envisaged in the applicable SOW. Client shall make no other commercial use of Agency Software and/or Agency Material without Agency’s prior written consent.
- Client grants Agency and its affiliates the non-exclusive, royalty-free right to use and/or modify Client Software for purposes of providing the Digital Services and/or Digital Deliverables under the applicable SOW.
- Client acquires no rights in any Software other than as expressly granted in the Digital Services Terms. Client will do such things and/or arrange and/or execute any document Agency considers necessary to perfect any rights, title or interest of Agency in any Software.
7. Warranties and Exclusions
- The Software will conform to the applicable Specification and SOW in all material respects when maintained and operated in accordance with the SOW, Specification and Agency’s instructions. Agency will not be responsible for any defects or non-conformity to the Specification where it arises from:
- equipment or software other than the equipment or software used or provided by Agency in the Digital Services and/or Digital Deliverables;
- any Third Party Software, hardware failures, power problems or outages, environmental problems or any other cause other than the Software itself;
- unauthorised use of Software, or modification of any Software (including Client Software), operating systems or computer hardware on which the Software is run, by any party other than Agency;
- misuse, errors or negligence of Client, its employees or agents in operating the Software; and/or
- Client’s failure to maintain the Software when maintenance is necessary for adequate functioning of the Software.
- Agency shall not be obliged to cure any defect unless Client notifies Agency in writing of its existence and nature of such defect promptly on discovery. Client shall provide all documented information, details and assistance as the Agency may reasonably request.
- Client acknowledges and agrees that:
- Any Software under the Agreement is provided on an “as is” basis;
- Software is never wholly free from defects, errors and bugs, and Agency gives no warranty or representation that the Software will meet Client’s needs, be wholly free from any defects, errors and bugs, or operate uninterrupted;
- Agency develops the Software to work within the environment and parameters specified in the SOW and/or Specification;
- Agency does not warrant or represent that the Software will be compatible with any application, program or software not specifically identified in the SOW; and
- The above representations and exclusions are an essential part of the Agreement and have formed the basis for determining the Fees charged for the Digital Services and Digital Deliverables under the Agreement.
- Agency makes no warranties in respect of any Third Party Materials (including but not limited to Third Party Software and hardware) nor clearance of any Digital Deliverables against third party trademarks or patents in any jurisdiction, which shall be the responsibility of Client.
- Without prejudice to any other rights or remedies, Agency shall be entitled at its own cost to replace or modify infringing material so that it becomes non-infringing so long as the Digital Deliverable as so modified or replaced conforms in all material respects with the applicable Specification.
- The warranties in the Agreement are the only warranties granted and Agency expressly disclaims and excludes all other warranties express or implied, including, but not limited to, any statutory or implied warranties of merchantability or fitness for a particular purpose. No warranties are created or offered during any course of dealing, course of performance or trade usage.
- Agency does not make any representation that any Software supplied: (i) will be fit to operate in conjunction with any hardware items or software products other than with those that are identified in the applicable SOW (specifically, any versions or models of hardware and/or software specified) as being compatible with the Software; or (ii) will operate completely uninterrupted or completely error-free.
8. Generic Software Elements
Software, programs, algorithms, source code and other programming code may be created or developed under the Agreement as a by-product of other services or as a means to achieve the underlying technological objectives of the project or assignment, or which would otherwise have general utility to Agency outside the scope of the Agreement (“New Tools & IP”). Unless specifically agreed, any New Tools & IP shall be considered as Agency’s IPR for the purposes of ownership of IPR between the parties. Client understands that any New Tools & IP may be used by the Agency in the course of its trade or for other purposes. New Tools & IP shall be distinguished from specific stand-alone software deliverables created for Client, the ownership of which shall continue to be treated in the manner set out in the Agreement.
9. App Compliance - applicable where Agency provides app development services
- Agency shall use reasonable endeavours to provide the Digital Services in accordance with App Rules applicable at the time. Client may direct the Agency to deviate from the App Rules but acknowledges it shall do so at Client’s own risk. Client agrees that Agency shall not be responsible if any Software or Client Software is found to be non-compliant with the App Rules due to the following matters:
- changes to the App Rules occurring after Agency’s provision of the Digital Services;
- user generated data/content (“UGC”);
- materials provided by Client or a third party authorised by Client; or
- removal or change of functionality to any Software due to changes or upgrades to operating systems, APIs or other third party services.
- Client acknowledges that despite Agency’s reasonable endeavours to comply with App Rules, Software may be rejected for distribution or have its distribution limited under an app platform at the discretion of the platform owner. In such instances Agency shall not be held to be in breach of the Agreement, and where the platform owner or its representatives request amendments to any Software or the Client Software, Client agrees that such further services will be considered as outside the scope of the Digital Services, and therefore subject to additional remuneration if required.
10. Client responsibilities
Client agrees and acknowledges that Agency’s ability to provide the Digital Services and/or Digital Deliverables is dependent on the full and timely co-operation and instructions of Client, and that any delays or failure in this regard may delay Agency’s delivery of Digital Services and/or Digital Deliverables. Accordingly, Client warrants and undertakes to:
- provide Agency all necessary Client Materials, including any Client business requirements as it relates to the Digital Services and/or Digital Deliverables, or as reasonably required by Agency;
- ensure that all Client Materials provided to Agency are true, accurate and not deceptive or misleading;
- in respect of any claims regarding Client products and services, that such claims are supported by objective and reliable data in its possession;
- provide access to development and test platforms and code repository; and
- where applicable, provide acceptance testing in accordance with clause 5 of these Digital Services.
11. Project management
- Each party shall appoint a project manager who shall provide professional and prompt liaison with the other party and who shall have authority to commit the respective party, as set out in the applicable SOW (each a “Project Manager”).
- The Project Managers shall meet regularly, or at least once every week until acceptance occurs, and thereafter at least once every month.