1. Definitions and Interpretation
1.1 The following words and phrases shall have the following meanings (except where the context otherwise requires):
Advertising means all the Client’s advertising in relation to which tmwi performs Services for the Client under this Agreement;
Agreement means these Terms and any SOW(s) and Media Plan(s);
Applicable Laws means the law of the United Kingdom or of a part of the United Kingdom;
Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Client means the company which purchases the Services and Deliverables from tmwi as specified in the Media Plan and/or the SOW;
Client Default has the meaning set out in clause 4.10;
Client Materials means any data, client equipment, computer systems, software, documents, copy, Intellectual Property Rights, artwork, logos and any other materials or information owned by or licensed to the Client which are provided to tmwi by the Client;
Client Personal Data: any Personal Data which tmwi processes in connection with this Agreement, in the capacity of a Processor on behalf of the Client;
Commencement Date means the date specified in clause 3;
Data Protection Legislation means:
- To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data;
- To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which tmwi is subject, which relates to the protection of personal data;
Deliverables means the advertising, creative and other materials which are to be provided by tmwi as specified in the SOW, including any tmwi Materials, tmwi Proprietary Materials, and Third Party Materials where applicable;
EU GDPR means the General Data Protection Regulation ((EU) 2016/679);
Expenses means any additional cost incurred by tmwi including but not limited to travel as detailed in clauses 5.3 and 7.15;
Fees means the fees for the Services and Deliverables as detailed in the SOW and clauses 7.1 and 7.2;
Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation any law or any action taken by a government or public authority, imposing an export or import restriction, quota or prohibition, epidemic, pandemic, act of God, drought, earthquake, collapse of buildings, explosion or accident, fire, flood, industrial action or organised protests by third parties, natural disaster, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, interruption or failure of utility service, failure of payment systems, or any event beyond the reasonable control of the party claiming to be excused from performance of its obligations;
Guarantee Minimum Supply means an agreed minimum total amount (in any 12 month period) of gross expenditure on advertisement space to be paid by the Client via tmwi to a Media Supplier, or the agreed minimum total amount (in any 12 month period) of advertisement space to be purchased by the Client via tmwi from a Media Supplier;
Intellectual Property Rights means any patents, trade marks rights to inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; copyright neighbouring and related rights, design rights; database rights, rights in computer software, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets); 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; and any and all other intellectual or proprietary 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;
Media Costs means all of the costs of Advertising from third parties including but not limited to ad serving; bid management; brand tracking; and/ or analytics management required to assist in the delivery and optimisation of the Advertising;
Media Plan means one or more documents approved and signed by the Client from time to time detailing proposed media purchases and costs;
Media Supplier means any third party engaged by tmwi to provide advertisement space, reporting or otherwise in connection with the Services or Deliverables.
Parties means the Client and tmwi;
Request for Quotation (RfQ): the Client’s request for tmwi to provide a quotation for the supply of Services and Deliverables, made either in writing, over the telephone or however else communicated by the Client to tmwi.
Residuals means information in intangible form, which may be retained by persons performing the Services, including, without limitation, ideas, concepts, know-how, and techniques which do not contain confidential information belonging to the Client;
Services means those services tmwi will perform for the Client as agreed between the parties or specified in the SOW and/or Media Plan and these Terms as applicable including but not limited to media planning and buying, search engine optimisation, pay per click advertising, creative, performance display including connected TV, strategic marketing, user experience and CRM management, brand services and positioning, data led optimisation of the evolving interconnected global media landscape;
SOW means the statement of work which comprise one or more documents agreed and signed by the Parties from time to time detailing the Services and Deliverables to be provided by tmwi to the Client, which may take the form of a Media Plan;
Term means the period from the Commencement Date until the termination of this Agreement;
Terms means these terms and conditions as amended from time to time in accordance with clause 19.1;
Territory means the United Kingdom, unless expressly specified otherwise in the applicable SOW or Media Plan;
Third Party Materials means any work or materials which are authored, created or performed by a third party and either commissioned by tmwi for, or used in relation to, the Services and/or incorporated into the Deliverables;
tmwi means tmwi Limited, a company registered in England and Wales with registration number 4047669 whose registered office is at tmwi House, 7 Shottery Brook Office Park, Timothy’s Bridge Road, Stratford Upon Avon, Warwickshire, CV37 9NR;
tmwi Materials means those materials specifically created by tmwi for the Client for the purposes of this Agreement by officers, employees or contractors of tmwi;
tmwi Proprietary Materials means content, materials, information, software, methodology, know-how and processes in existence prior to the date on which it is intended to use them in connection with performance under this Agreement and in relation to which the Intellectual Property Rights are owned by tmwi; and
UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
1.2 The SOW and Media Plan(s), together with these Terms, form part of the Agreement and any reference to the Agreement includes the SOW, the Media Plan(s) and these Terms.
1.3 References to any statute or statutory provision include a reference to: (i) that statue or statutory provision as from time to time amended, extended or re-enacted; and (ii) any subordinate legislation made from time to time under that provision.
1.4 Where any provision contained in an SOW or Media Plan conflicts with any provision of these Terms, the following order of precedence shall apply: the Media Plan, the SOW, the Terms unless agreed otherwise in writing between the parties from time to time.
1.5 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.
1.6 A reference to writing or written includes email but not fax.
2. Agreement to act as Media Advertising agency
2.1 The Client appoints tmwi to carry out and tmwi agrees to provide the Services and Deliverables to the Client in the Territory during the Term in accordance with this Agreement.
2.2 These terms apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3. Basis of Contract and Term of appointment
3.1 From time to time, the Client may submit an RfQ to tmwi in respect of the potential procurement Services and Deliverables subject to these Terms. The Client shall ensure that it provides tmwi with as much information as tmwi reasonably requests in order to respond to the RfQ.
3.2 tmwi shall either (i) inform the Client that it declines to provide the requested Services and Deliverables; or (ii) provide a quotation to the Client in response to the Client’s RfQ for the provision of the Services and Deliverables in accordance with the details set out in the RfQ.
3.3 The Parties shall discuss and agree any provided quotation and:
3.3.1 tmwi shall provide the Client with a Media Plan (subject to clause 5.3) and / or a SOW;
3.3.2 tmwi and the Client shall discuss and agree the Media Plan and / or SOW;
3.3.3 both parties shall sign the Media Plan and / or SOW when the same (as applicable) are agreed.
3.4 This Agreement shall commence on the date specified in the Media Plan and / or SOW (as applicable) or on the date that tmwi commences provision of the Services whichever is the sooner and continue until terminated by either party under clause 16, or by either party giving to the other not less than ninety (90) days’ notice in writing.
4. The Services
4.1 tmwi will perform the Services and deliver the Deliverables detailed in the Media Plan and / or SOW for the Client in accordance with these Terms.
4.2 tmwi will allocate suitable personnel with appropriate levels of experience and seniority to provide the Services and Deliverables. tmwi shall use reasonable endeavours to ensure that any key personnel detailed in the SOW are committed to the provision of the Services and/or Deliverables.
4.3 The Client acknowledges and agrees that it may be necessary for tmwi to replace the personnel involved in providing the Services and Deliverables with alternative personnel with similar levels of seniority and experience.
4.4 Each of the parties will use its reasonable endeavours to perform its obligations under this Agreement in accordance with any written timetable detailed in the SOW. Notwithstanding the foregoing, the parties expressly agree that any dates in such timetable shall be estimates only and time is not of the essence of the Agreement unless otherwise agreed in writing between the parties from time to time and that any failure by either party to perform its obligations under this Agreement in accordance with any written timetable detailed in the SOW shall not entitle the affected party to terminate the Agreement, with the exception of the Client’s obligations under clause 7.
4.5 tmwi will co-operate with other communications suppliers appointed by the Client from time to time when developing communications plans and activities for the purposes of the Services. The Client shall ensure that its other communications suppliers co-operate with tmwi and that such other communications suppliers shall work with tmwi efficiently and in good faith.
4.6 The Client will co-operate fully with tmwi in all matters relating to the Services.
4.7 The Client will provide tmwi with such information and materials as tmwi may reasonably require in order to supply the Services (including clear briefings and instructions), and ensure that such information is complete and accurate in all material respects.
4.8 The Client will comply with any of its additional obligations as set out in the Media Plan and / or SOW.
4.9 tmwi will co-operate with the Client and use reasonable care and skill in tmwi’s performance and delivery of the Services and Deliverables.
4.10 The Client acknowledges that tmwi’s ability to perform the Services or provide the Deliverables may depend on the fulfilment of assumptions, dependencies and Client responsibilities described in the SOW and / or Media Plan. If tmwi’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (including in the event of any unmet dependency, incorrect assumption or unfulfilled Client responsibility) (Client Default):
4.10.1 without limiting or affecting any other right or remedy available to it, tmwi 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 tmwi’s performance of any of its obligations;
4.10.2 tmwi shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from tmwi’s failure or delay to perform any of its obligations as set out in the Agreement; and
4.10.3 the Client shall reimburse tmwi on written demand for any costs or losses sustained or incurred by tmwi arising directly or indirectly from the Client Default.
5. Approvals and acceptance
5.1 For the purposes of this Agreement an authorised person of the Client shall mean any director or employee of the Client (each an “Authorised Person”).
5.2 For the purposes of this Agreement, the Client’s “written approval” shall mean approval signified by:
5.2.1 any SOW, Media Plan, letter or purchase order from the Client bearing the signature of an Authorised Person; or
5.2.2 an e-mail emanating from the e-mail address of an Authorised Person provided this is in circumstances where time does not permit approval as per sub-clause 5.2.1, and any such written approval under clause 5.2.1 or clause 5.2.2 shall not be unreasonably withheld or delayed.
5.3 tmwi shall submit to the Client for its specific written approval Media Plans and estimates which include any individual Expense in excess of five hundred pounds (£500).
5.4 The Client’s written approval of Media Plans and estimates grants tmwi the authority to make reservations and contracts for advertising space, time and other facilities under the terms and conditions required by such third party media owners or suppliers from whom tmwi chooses to procure advertising space, time and/or other facilities .
5.5 tmwi will advise the Client as soon as reasonably practical of any material changes in the estimated cost of media or any material changes in Media Plans or work in progress previously approved in writing by the Client, unless such costs have been agreed as fixed.
6. Amendments or cancellations: work in progress
6.1 The Client may request tmwi to cancel or amend any and all SOWs, Media Plans or work in progress, by way of written notice. tmwi will use its reasonable endeavours to comply with any such request provided that tmwi is able to do so within its contractual obligations to media owners, suppliers and other third parties. Any amendment to the Agreement shall be in writing and signed by the parties (or their authorised representatives) and shall be recorded as a variation to this Agreement.
6.2 In the event of any such cancellation or amendment in accordance with sub-clause 6.1, the Client will reimburse and indemnify tmwi for any costs, charges or Expenses incurred by tmwi or to which tmwi is committed. The Client shall also pay for tmwi’s time as stated in the SOW (or otherwise agreed between the parties) and, if not stated in the SOW, at tmwi’s standard rates or pro-rated commission covering the cancelled or amended Services and Deliverables as well as any charges imposed on tmwi by third parties arising from the cancellation or amendment.
6.3 Cancellation of any individual SOWs or Media Plans under this clause 6 shall not affect the continuation in force of this Agreement, including any other SOWs or Media Plans entered into under these Terms.
7. Terms of payment
7.1 tmwi Fees (media buying): In consideration of tmwi’s performance of any media buying Services, the Client shall pay tmwi a commission of 15% (“Agreed Commission”) of the gross Media Costs (being the Media Costs after deduction of negotiated discounts but before deduction of standard agency commission) unless otherwise agreed in the Agreement, SOW or Media Plan. The Client shall pay tmwi for the Media Costs in accordance with the remainder of this clause 7. For the avoidance of doubt, the Client’s obligation to pay the Agreed Commission shall be in addition to the Client’s obligation to repay tmwi for the Media Costs.
7.2 tmwi Fees (other services): In consideration of tmwi’s performance of the Services (other than media buying) and the delivery of any related Deliverables, the Client shall pay the Fees set out in and/or referred to in the SOW (or as otherwise agreed in writing with tmwi), which may include commissions agreed with the Client.
7.3 tmwi will invoice the Client in respect of Agreed Commission and Fees monthly in arrears and the Client will pay the invoice within thirty (30) days of the date of invoice, unless otherwise agreed in writing between the parties from time to time. Time for payment shall be of the essence of the Agreement.
7.4 Media Costs: tmwi will invoice the Client in respect of Media Costs in accordance with the relevant Media Plan and the Client will pay such invoices within thirty (30) days of the date of invoice, unless otherwise agreed in writing between the parties from time to time. Time for payment shall be of the essence of the Agreement.
7.5 In relation to Media Costs, the Client expressly acknowledges and agrees that tmwi shall not be required to pay, refund or net off to the Client any media market rebates, volume discounts, early payment discounts, media market credits received by tmwi in respect of the Media Costs nor any price differences arising from errors and/or adjustments on third party invoices.
7.6 Any fixed rates approved by the Client on Media Plans shall be fixed and not reconcilable.
7.7 Unless stated otherwise in an SOW or Media Plan, any prices quoted for Media Costs on a Media Plan which are not stated as fixed rate will be subject to reconciliation against actual Media Costs on a monthly basis by tmwi. tmwi will then either:
7.7.1 invoice the Client for any undercharge of the actual Media Costs; or
7.7.2 roll forward any overcharge of the actual Media Costs to set off against future Media Costs.
7.8 Where a surcharge is levied by a supplier of media against tmwi due to late payment which is due to a Client Default, the Client shall immediately reimburse to tmwi the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.
7.9 If late copy charges are levied by a media owner against tmwi as a result of a Client Default, the Client shall immediately reimburse the amount of such late copy charges to tmwi.
7.10 A levy of 0.1% is payable to the Advertising Standards Board of Finance (ASBOF) in relation to non-broadcast advertising, and to the Broadcast Advertising Standards Board of Finance (BASBOF) in relation to broadcast advertising. The Client shall reimburse to tmwi any such levy, cost or expense imposed by the ASBOF or BASBOF.
7.11 In the event that tmwi is unable to obtain credit risk insurance in respect of the Client or if tmwi’s credit insurers revise or withdraw cover for the Client, tmwi reserves the right to revise its terms of payment and if necessary ask for payments in advance of media bookings and/or seek suitable guarantees from the Client. If it is not possible to reach an agreement on suitable revised terms tmwi will have the right to terminate this Agreement in accordance with clause 16.3.
7.12 tmwi reserves the right, without limiting tmwi’s remedies under clause 16, to charge interest on all invoices presented to the Client which are not paid by the relevant due date, at the annual rate of five (5) per cent above the base rate from time to time of National Westminster Bank plc, provided that the rate charged to the Client shall not be higher than the maximum rate allowable under applicable law. Such interest will accrue on a daily basis from the date on which payment became overdue up to the date on which the tmwi receives the full outstanding amount together with all accrued interest.
7.13 In the event of late payment tmwi reserves the right to:
7.13.1 withhold further delivery of Services and/or Deliverables under the SOW until payment in full has been received from the Client; and
7.13.2 alter the payment terms applicable to this Agreement including without limitation requiring the Client to pay in advance.
7.14 Each party shall pay all monies which are payable by it to the other without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party.
7.15 tmwi will invoice the Client at cost in respect of any Expenses incurred by tmwi in performing the Services and delivering the Deliverables.
7.16 Unless otherwise stated in the Media Plan or SOW, all Fees and other costs stated are in pounds sterling (GBP£) and exclusive of VAT, which the Client shall additionally be liable to pay to tmwi at the prevailing rate, subject to the receipt of a valid VAT invoice.
7.17 Client acknowledges that services provided by tmwi to the Client and to the tmwi’s other advertiser clients may, on a collective basis, qualify for rebates or volume discounts arising from full compliance with media owner, media vendor, platform, supplier and / or publisher conditions of trading and prompt payment. tmwi may receive compensation (including but not limited to remuneration and special terms, including free spots, agency function discounts and other fiscal benefits) from media owners, media vendors, platforms, suppliers and / or publishers, which in some circumstances are determined by the total agency volume. tmwi shall be entitled to retain and use all such compensation, rebates or volume discounts to the extent that such compensation, rebates and volume discounts do not arise solely from the Client’s own trading volumes or payment terms, at tmwi’s sole discretion.
8. Media: business terms and selection
8.1 tmwi enters into all contracts with third parties as principal (unless otherwise specified by the relevant third party) and enters into such contracts with media and third party suppliers in respect of Services in accordance with such suppliers’ standard or individual conditions and contracts (“Third Party Contracts”) and the Client hereby acknowledges that its right to use or otherwise benefit from any services acquired by tmwi under any Third Party Contracts shall be as set out in the terms and conditions of such Third Party Contracts. The Client hereby indemnifies and shall keep tmwi indemnified against any losses, liabilities, costs or expenses caused by any act or omission of the Client which puts tmwi in breach of any such Third Party Contracts. tmwi shall provide a copy of the relevant Third Party Contract to the Client if requested and to the extent permitted by existing confidentiality provisions with the relevant third party.
8.2 tmwi shall use reasonable care and skill in the selection and appointment of Media Supplier(s).
8.3 tmwi shall not be liable to the Client for any failure to comply with its obligations under this Agreement or for any losses, costs or expenses incurred as a result of a failure by any Media Supplier or other third party supplier to comply with the relevant Third Party Contract, or if such Media Supplier or third party enters into liquidation or into any arrangement for the benefit of its creditors generally or ceases or threatens to cease to carry on business, or if the Third Party Contract is otherwise terminated. In such an event tmwi will work with the Client to make alternative arrangements for the delivery of any Services affected by such liquidation (or otherwise as applicable).
9. Insurance
9.1 During the Term, tmwi shall take out and maintain professional indemnity insurance with reputable insurers. Upon Client’s request tmwi will provide the Client with evidence that such insurance is in place.
10. Confidential Information
10.1 Each party undertakes that it shall not at any time during the Term or thereafter disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2.
10.2 Each party may disclose the other party’s confidential information:
10.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
10.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
10.4 The Client acknowledges and agrees that any identifiable and original idea or concept presented by tmwi in relation to any promotion or advertising campaign developed by tmwi shall be acknowledged as being available only for such promotion or campaign whether or not used for such promotion or campaign and shall not be used for any other purposes whatsoever without tmwi’s express prior written approval. Even where no promotion or campaign is agreed, the ideas and concepts presented to the Client shall remain strictly confidential and shall not be used in any way, including communication to any third party, without tmwi’s prior written approval and agreement being reached regarding appropriate remuneration for tmwi.
10.5 The Client acknowledges that nothing in this Agreement shall affect tmwi’s right to use as it sees fit any techniques, ideas or know-how, general marketing and/or advertising intelligence and/or Residuals gained by tmwi during the performance of this Agreement in the course of its normal business to the extent that this use does not result in a disclosure of the Client’s confidential information.
10.6 Nothing in this Agreement shall prohibit tmwi from retaining one copy of the Deliverables for its internal archive.
11. Intellectual Property
11.1 tmwi acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services and Deliverables) shall remain vested in the Client or its licensors. The Client hereby grants to tmwi a non-exclusive, royalty-free, right and licence during the Term to use, copy, operate, process, modify and sub-license the Client Materials for the purposes of providing the Services and Deliverables in accordance with this Agreement.
11.2 The Client warrants that the receipt and use in the performance of this Agreement by tmwi, its agents, subcontractors or consultants of the Client Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party.
11.3 The Client shall indemnify tmwi 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 tmwi arising out of or in connection with any claim made against tmwi, its agents, subcontractors or consultants by a third party for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with tmwi’s use of the Client Materials (including any Client Materials incorporated into any tmwi Materials ).
11.4 Subject to clause 10.4, subject to the remaining provisions of this clause 11 and subject to tmwi receiving payment of all Fees attributable to tmwi Materials, tmwi hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in tmwi Materials which are capable of being assigned (excluding, for the avoidance of doubt, any Third Party Materials) together with the right to sue for past infringement of the Intellectual Property Rights in tmwi Materials. As such, it is the Client’s responsibility to undertake any registrations or clearance searches for trademark, design and/or patent protection.
11.5 The Client acknowledges that all Intellectual Property Rights in tmwi Proprietary Materials shall be owned by and remain the property of and vested in tmwi. Subject to tmwi receiving payment of the Fees attributable to the tmwi Proprietary Materials licensed under this clause, tmwi hereby grants to the Client a non-exclusive, non-transferrable, perpetual, royalty-free licence to use such tmwi Proprietary Material as are included in the Deliverables for the purpose of receiving and using the Services and the Deliverables. Unless otherwise agreed in writing between the parties from time to time, the Client shall not sub-license, assign or otherwise transfer the rights granted in this clause 11.5. The Client shall limit use of and access to the tmwi Materials and the tmwi Proprietary Materials to such of the Client’s employees as are directly involved in the utilisation of the Deliverables internally throughout Client’s business and who are bound to preserve the confidentiality thereof in accordance with clause 10.2.
11.6 Prior to delivery of the Deliverables, tmwi shall use its reasonable endeavours to obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Material for the purpose set out in the SOW and / or Media Plan as applicable. tmwi shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Material, and the Client hereby indemnifies and keeps tmwi indemnified against any 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 tmwi as result of the Client breaching any such restrictions.
11.7 tmwi agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in tmwi’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the tmwi Materials.
11.8 tmwi shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client.
12. Data Privacy
12.1 In this clause 12, the words “Personal Data”, “Controller”, “Processor”, “Data Subject”, “Commissioner”, “Personal Data Breach” and “processing” shall have the meaning given to them in the UK GDPR.
12.2 Client acknowledges and agrees to allow tmwi, its affiliates and sub-contractors, non-exclusive rights to collect, analyse, manipulate, and store non-personal user and customer data on behalf of Client. In particular Client agrees that tmwi and its suppliers are entitled to place cookies, pixel tags, pixel-less techniques or web beacons and related technologies and other relevant tags on, and collect information (including Client’s confidential information) from, the Client’s websites and other relevant sources of data in relation to the provision of the Services.
12.3 Both parties will comply with all applicable requirements of Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Legislation.
12.4 The Client and tmwi acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and tmwi is the Processor in respect of any Client Personal Data. The SOW and/or the Media Plan as applicable sets out the scope, nature and purpose of processing by tmwi, the duration of the processing and the types of Personal Data and categories of Data Subject.
12.5 Should the determination in clause 12.4 change, the parties shall use all reasonable endeavours to make any changes that are necessary to this clause 12.
12.6 Without prejudice to the generality of clause 12.3, Client represents and warrants that (i) all data provided by or on behalf of Client to tmwi has been collected and processed in compliance with Data Protection Legislation, (ii) it has obtained all rights, consents, authorisations and/or approvals necessary in connection with the collection and use of Client Personal Data by tmwi for the provision of the Services (including, where applicable, a Data Subject’s consent in relation to profiling), and (iii) it has the legal right and/or has obtained appropriate consents to disclose the Client Personal Data to tmwi and/or lawful collection of the Client Personal Data by tmwi on behalf of the Client in connection with the Services to be performed under this Agreement.
12.7 Without prejudice to the generality of clause 12.3, in relation to Client Personal Data processed in connection with its performance of the Services, tmwi shall:
12.7.1 process Personal Data only on documented instructions from the Client, unless tmwi is required by Applicable Laws to otherwise process that Client Personal Data. Where tmwi is relying on Applicable Laws as the basis for processing Client Processor Data, tmwi shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit tmwi from so notifying the Client;
12.7.2 only process Personal Data in the United Kingdom or European Economic Area and shall not transfer, transmit or otherwise store Client Personal Data outside of the United Kingdom or European Economic Area without the prior written consent of the Client;
12.7.3 ensure that persons authorised to process Client Personal Data are obliged to keep the Client Personal Data confidential.
12.7.4 implement appropriate technical and organisational measures to protect and safeguard the Client Personal Data against unauthorised or unlawful processing of the Client Personal Data and against its accidental loss, damage or destruction, which are 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);
12.7.5 not appoint a sub-contractor to process Personal Data without:
(a) the express prior written consent of the Client; and
(b) imposing the same contractual data protection obligations on such sub-contractor as are in this Agreement;
12.7.6 assist the Client upon request and 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 which relates to processing of Client Personal Data;
12.7.7 notify the Client without undue delay on becoming aware of a Personal Data Breach;
12.7.8 at the choice of the Client, delete or return any or all Client Personal Data to the Client upon any request of the Client after the end of the provision of the Services relating to processing, unless tmwi is required by Applicable Law to store the Client Personal Data; and
12.7.9 make available to the Client all information necessary to demonstrate compliance with the obligations laid down in this clause 12 and its compliance with the Data Protection Legislation and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client (including any regulatory bodies or accrediting bodies).
12.8 The Client agrees to indemnify and keep tmwi indemnified and defend at its own expense tmwi against all costs, claims, damages or expenses incurred by tmwi or for which tmwi may become liable due to any failure by the Client or its employees or agents to comply with any of its obligations under this clause 12.
12.9 The Client acknowledges that tmwi is reliant on the Client for direction as to the extent to which tmwi is entitled to use and process the Client Personal Data. Consequently, tmwi will not be liable for any claim brought by a Data Subject arising from any action or omission by tmwi, to the extent that such action or omission resulted directly from the Client’s instructions.
13. Warranties
13.1 tmwi shall have no liability for any error in the Advertising or delay to any release or publication in respect of the Advertising unless such error or delay is caused by tmwi’s default or negligence.
13.2 The Client warrants that to the best of its knowledge information and belief all information supplied to tmwi before and during the Term will be accurate and not in any way contrary to any law applicable in any part of the Territory.
13.3 The Client acknowledges and agrees that in providing the Services, tmwi shall use its reasonable endeavours to ensure the accuracy of all estimated and target figures relating to:
13.3.1 the number, proportion or type of people likely to be exposed to the Advertising;
13.3.2 the number of such exposures each person is likely to receive; and
13.3.3 the cost of achieving such exposures.
13.4 The Client acknowledges that the estimates and / or targets detailed in clause 13.3 are ultimately beyond tmwi’s control. tmwi gives no warranties as to the accuracy of such estimates and / or targets or as to the actual figures in respect of matters set out at subclauses 13.3.1 – 13.3.3and tmwi shall not be liable to the Client for any losses suffered by the Client or by any third party by reason of the Client’s reliance on such estimates and / or targets. tmwi will perform the search engine optimisation services with reasonable care, skill and diligence in accordance with good practice in tmwi’s industry, profession or trade but the Client acknowledges and agrees that tmwi can provide no guarantees or warranties with regard to achieving certain ranking results.
13.5 Each party warrants that it has the full power and authority to enter into this Agreement.
14. Guarantee minimum supply
14.1 tmwi shall not without the Client’s prior written approval agree with any Media Supplier on the Client’s behalf to a Guarantee Minimum Supply.
14.2 In the event that the Client gives written approval to tmwi to agree on the Client’s behalf a Guarantee Minimum Supply, the Client agrees without prejudice to the generality of the provisions of clause 8.1 to indemnify and keep indemnified tmwi against all actions, proceedings, costs, damages, demands, expenses, liabilities, penalties, surcharges, fines, losses (including without limitation economic or consequential loss) suffered or to be suffered by tmwi in connection with or arising out of tmwi agreeing to a Guarantee Minimum Supply with a Media Supplier on the Client’s behalf.
15. Limitation of liability
15.1 References to liability in this clause 15 include every kind of liability arising under or in connection with the Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
15.2 Nothing in this Agreement shall exclude or in any way limit the Parties’ liability for fraud or fraudulent misrepresentation, or for death or personal injury caused by its negligence (or the negligence of its employees, agents or subcontractors) or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability to the extent such liability may not be excluded or limited as a matter of law.
15.3 Subject to clause 15.2, the following types of loss are wholly excluded:
15.3.1 Loss of profits;
15.3.2 Loss of sales or business;
15.3.3 Loss of agreements or contracts;
15.3.4 Loss of anticipated savings;
15.3.5 Loss of use or occupation of software, data or information;
15.3.6 Loss or damage to goodwill; and
15.3.7 Indirect or consequential loss.
15.4 Subject to clause 15.2, clause 15.3 and excluding any liability arising under any indemnity under this agreement, tmwi’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed the lower of £10,000 (ten thousand pounds) and the total net Fees paid to tmwi hereunder during the preceding twelve (12) months.
15.5 This Agreement states the full extent of the Parties obligations and liabilities in respect of the Advertising and the performance of the Services and delivery of the Deliverables.
15.6 The Parties agree that any condition, warranty representation or other term concerning the delivery of the Deliverables and/or the performance of the Services which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise (including sections 3 to 5 of the Supply of Goods and Services Act 1982), is excluded to the maximum extent permitted by law.
15.7 Nothing in the foregoing provisions shall preclude either party obtaining injunctive or other non-financial relief to which it is entitled.
15.8 This clause 15 shall survive termination of the Agreement.
16. Termination
16.1 Without affecting any other right or remedy available to it, either Party may terminate this Agreement by service of notice in accordance with clause 3.4.
16.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement immediately without financial penalty upon giving written notice to the other party if:
16.2.1 the other party materially breaches this Agreement and, where the breach is capable of being remedied, fails to remedy the breach within 30 days’ of receiving such written notice;
16.2.2 the other party takes any step or action in connection with its entering into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, 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 an administrator or receiver is appointed over the whole of any part of the other’s assets or if the other enters into any arrangement for the benefit of its creditors generally or ceases or threatens to cease to carry on business;
16.2.3 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
16.2.4 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy
16.3 tmwi shall be entitled forthwith to terminate this Agreement by written notice to the Client if tmwi is unable to obtain normal credit insurance in respect of the Client and advance payments or acceptable guarantees have not been made available by the Client within fourteen (14) days after tmwi’s written request under the provisions of clause 7.11. During the period between tmwi’s request for advance payments or suitable guarantees and the earlier of either the Client providing them or the end of the Term, all tmwi’s obligations in relation to the booking of media shall be automatically suspended, as will any other tmwi obligation to enter into any commitments involving significant expenditure as principal on the Client’s behalf.
16.4 The parties’ rights, duties and responsibilities shall continue in full force during the agreed period of notice and, whether or not there is a period of notice, the Client shall pay all sums due in respect of work done, any Fees due and expenditure committed by tmwi until the end of the Term. For avoidance of doubt the Term includes any notice period and payments due include commission on media booked during any notice period but where transmission falls outside such period.
16.5 Upon the termination of this Agreement and payment by the Client of all items properly chargeable to the Client hereunder, tmwi will give the Client all reasonable co-operation in transferring, subject to the approval of third parties where required, all reservations, contracts and arrangements with media owners, third parties or others for space or time yet to be used and subject to, all rights and claims thereto.
16.6 If, prior to notice of termination of this Agreement, tmwi has at the request of the Client prepared detailed Media Plans or proposals for future advertising in respect of which tmwi has not been remunerated, the Client shall pay to tmwi fair compensation for work done at tmwi’s standard rates.
16.7 If the Client wishes to use, after the Term and through another agency, a Media Plan drawn up by tmwi during the Term for the Client’s future use, the Client shall not do so without tmwi’s prior written consent and agreement being reached regarding appropriate remuneration for tmwi.
16.8 Provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive termination, shall remain in full force and effect notwithstanding such termination.
16.9 Any Third Party Contracts that cannot be cancelled or assigned by tmwi to the Client shall be carried to completion by tmwi, and Client shall remain liable and shall indemnify tmwi for any payments, costs, Expenses or charges incurred by tmwi or to which tmwi is committed (including any charges imposed on tmwi under any Third Party Contract as a result of cancellation).
17. Compliance
17.1 Each party shall comply with all legislation, regulations, and other rules having equivalent force in the United Kingdom which are applicable to that party in connection with this Agreement.
17.2 The Client acknowledges its responsibility for compliance with all data and privacy laws and regulations, including but not limited to the requirements to have up to date and accurate privacy and cookie notices on their websites where relevant.
17.3 tmwi will use reasonable endeavours to ensure that any Service and/or Deliverable complies with all legislation, regulations, and other rules in the United Kingdom relating to the performance of the Services and/or the Deliverables.
18. General
18.1 This Agreement constitutes the entire agreement between the parties, and supersedes any and all agreements and terms, whether written or oral, implied or explicit, and may only be amended or modified by a written agreement by both parties (or their authorised representatives). Each party acknowledges that in entering into the 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 the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
18.2 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. Failure or delay by either party in exercising any rights or remedy under this Agreement shall not operate as a waiver of any such right or remedy.
18.3 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deleted under this clause the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.4 Neither party shall be in breach of the Agreement nor liable for any failure to perform or delay in performance of any of its obligations under this Agreement if such delay or failure is caused by a Force Majeure Event.
18.5 Notices
18.5.1 Any notice, invoice or other communication given to a party under or in connection with this Agreement shall be in 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 email to the address specified in the Media Plan and/or SOW.
18.5.2 Any notice, invoice or other communication shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) 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
(c) if sent by email 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, 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.
18.6 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.
19. Assignment and other dealings
19.1 tmwi 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 Agreement.
19.2 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 Agreement without the prior written consent of tmwi.
19.3 A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
20. Annual Review
20.1 The Parties agree to meet annually and at least sixty (60) days prior to the anniversary of the Commencement Date (or more frequently if agreed between the parties from time to time) in order to; review their relationship, the Services and Fees the subject of this Agreement and agree to negotiate in good faith any necessary amends effective from the anniversary of the Commencement Date. Should the review and negotiations not be concluded prior to the anniversary of the Commencement Date, the Parties agree that tmwi is entitled to continue invoicing the Client on the terms of the SOW or this Agreement until such new Services and Fees are applicable. For the avoidance of doubt, any changes in the Fees will be backdated to the anniversary of the Commencement Date, always provided that new Fees are not lower than prior year Fees in which case new Fees will then be effective only upon agreement and prospectively for the remainder of the annual period. Changes in Fees payable to tmwi will be related to changes agreed in the SOW or level of services provided by tmwi.
21. Non-solicitation
21.1 Neither Party shall, during the term of this Agreement and for a period of twelve (12) months from termination, (except with the prior written consent of the other Party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment or engagement of that Party, any employee, worker or independent contractor of that Party who is employed or engaged in providing or receiving the Services under this Agreement at any time during the Term;
21.2 A Party shall not be in breach of clause 21.1as a result of running a national advertising campaign open to all comers and not specifically targeted at any of the staff or contractors of the other Party.
22. Governing law and jurisdiction
22.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it is its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
22.2 Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any dispute, claim or matter (including non-contractual disputes or claims) arising under or in connection with this Agreement or its subject matter or formation or the legal relationships established by this Agreement.
23. Client Logo
23.1 Nothing in this Agreement shall prohibit tmwi from including the Client’s name and logo on its public customer lists and disclosing and summarising generally the nature of any work being performed hereunder or under any SOW and / or Media Plan as applicable. The Client hereby grants to tmwi a non-exclusive, royalty-free, perpetual right and licence to use the Client’s name and logo for such purposes.
23.2 tmwi shall not publish any detailed case studies relating to the Client without the prior written approval of the Client, such approval not to be unreasonably withheld, delayed or conditioned.