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1. INTERPRETATION The following definitions and rules of interpretation apply in this agreement. 1.1 Definitions: Advertising: the Client’s advertising which is in digital format capable of being broadcast on the Screen. Broadcast: the displaying of the Advertising on the Screen in a clear and legible manner. Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. Competent Authority: any statutory public local or other authority or regulatory body or any court of law or government department Fees: the fees for the Services, as set out in the order. Intellectual Property Rights: copyright in digital advertising. 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, rights in designs, and all other intellectual property rights, in each case whether registered or unregistered and which subsist or will subsist now or in the future in any part of the world. Location: As set out in the Order. Order: the order for the advertising on the screen. Screen: the electronic broadcast screen of ENGAGE. Timetable: the timetable for the Broadcast of the Advertising as set out in the Order. VAT: value added tax chargeable under the Value Added Tax Act 1994. 1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. 1.4 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement 1.5 Any obligation on a party not to do something includes an obligation not to allow that thing to be done. 1.6 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. 2. TERM This agreement is for the Broadcast of a defined amount of Advertising over a fixed period as set out in the Timetable and that fixed period is the term of the contract. 3. ADVERTISING 3.1 If the Client has not instructed Engage to create the Advertising, the Client shall provide the Advertising in the technical format ENGAGE specifies and which is capable of Broadcast. 3.2 Any failure in a Broadcast due to the Client not complying with those requirements shall be the fault of the Client and no refunds of Fees will be made by ENGAGE in such circumstances. 4. AMENDMENTS TO TIMETABLE 4.1 The Client may request, and ENGAGE may recommend, a change to the Timetable. 4.2 Any change to the Timetable shall be agreed in writing and is not otherwise enforceable. 5. BROADCAST OF ADVERTISING 5.1 In consideration for the payment of the Fees by the Client, ENGAGE shall transmit the Broadcast for the Client in accordance with the Timetable. 5.2 ENGAGE shall ensure that the Screen is working and able to Broadcast the Advertising 5.3 ENGAGE shall ensure for the purposes of the Broadcast that the Screen is clear and legible and in colour 5.4 Should the Screen suffer any downtime which affects the Broadcast of the Advertising, ENGAGE shall offer the Client alternate slots on the Screen at no extra Fees. 6. CLIENT OBLIGATIONS 6.1 The Client shall provide the Advertising to ENGAGE not less than 7 days before the Broadcast. Failure to provide the same within that time period will entitle ENGAGE to alter the Timetable or terminate the agreement with no refund of Fees. 6.2 The Client shall procure that its Advertising complies with all legal and regulatory requirements 6.3 The Client shall co-operate with ENGAGE and shall provide to ENGAGE, at ENGAGE’s request, such information concerning the Client and the Advertising as is reasonably necessary to enable ENGAGE to respond promptly to any demands, requests or orders made by any Competent Authority. 6.4 ENGAGE reserves the right to terminate any Broadcast or refuse to Broadcast any Advertising if requested or ordered to do so by any Competent Authority. 7. REPORTS 7.1 ENGAGE shall maintain an electronic record of the dates and times of which the Client’s Advertising is Broadcast on the Screen in accordance with the Timetable. 7.2 ENGAGE shall provide the Client with a copy of such electronic record should the Client so request in writing. 8. FEES AND EXPENSES 8.1 In consideration for the provision of the Screen, Broadcast and ENGAGE’s other obligations in accordance with this agreement, the Client shall pay the Fees to ENGAGE. 8.2 No less than 7 days prior to commencement of advertisement all Fees due shall be paid to ENGAGE. 8.3 Should any Fees be late and outstanding ENGAGE reserves the right to suspend any Broadcast until such Fees are paid. 8.4 ENGAGE shall be entitled to charge interest and penalties on unpaid Fees in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 8.5 All sums payable under this agreement: (a) are exclusive of any VAT or any other sales tax or duties, which, where applicable, shall be payable by the Client to ENGAGE in addition; and (b) shall be paid in British pounds sterling to the credit of ENGAGE’s bank account, details of which shall be notified to the Client as and when necessary.
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9. LICENCE TO USE INTELLECTUAL PROPERTY The Client warrants to ENGAGE that it has all requisite rights and authority to use any and all Intellectual Property in the Advertising. 10. INFRINGEMENT OF INTELLECTUAL PROPERY 10.1 The Client shall promptly notify ENGAGE in writing on becoming aware of any infringement of Intellectual Property rights which may affect the Advertising or the Broadcast. 10.2 ENGAGE shall have the right to suspend or terminate any Broadcast if notice in clause 10.1 is given. 11. INDEMNITY The Client shall indemnify ENGAGE and its directors against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by ENGAGE and its directors arising out of or in connection with: (a) any claim for breach of Intellectual Property rights;(b) any action taken by a Competent Authority. 12. CONFIDENTIALITY The contents and terns of this agreement are and shall remain confidential as between the parties. 13. LIMITATION OF LIABILITY ENGAGE shall have no liability whatsoever to the Client for any matter arising as a result of this agreement (save for fraud or otherwise where the law prohibits such exclusion) 14. CANCELLATION OF ADVERTISING 14.1 The Client may not cancel any Advertising agreed to be Broadcast. 14.2 If the Client does purportedly cancel within two weeks prior to the Broadcast date then the Client will remain liable to pay 100% of the Fees. If the Client does purportedly cancel more than two weeks prior to the Broadcast date then the Client will remain liable to pay 50% of the Fees. 15. ACTING FOR COMPETITORS ENGAGE shall be free to Advertise for anyone else save that ENGAGE will use reasonable endeavours to ensure that any other Advertising on the Screen which is Broadcast immediately prior to or after the Client’s Advertising does not injure the reputation of the Client and its Advertising. 16. FORCE MAJEURE Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 4 weeks the party not affected may terminate this agreement by giving 7 days’ written notice to the affected party. 17. NOTICES Any correspondence in respect of this contract to be delivered by email to info@engagemedia.co.uk 18. SEVERANCE If any provision or part-provision of this agreement 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 this agreement. 19. WAIVER No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. 20. ENTIRE AGREEMENT 20.1 This agreement 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. 20.2 Each party acknowledges that in entering into this agreement 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 this agreement. 21. VARIATION No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 22. ASSIGNMENT AND OTHER DEALINGS 22.1 ENGAGE may assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the Client. 22.2 If ENGAGE assigns or subcontracts any of its obligations under this agreement to any third party, ENGAGE shall be fully responsible to the Client for the proper performance of those obligations and for any act or omission of the third party in relation thereto. 23. GOVERNING LAW This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. 24. JURISDICTION Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). |