SCHEDULE 1 – GENERAL TERMS AND CONDITIONS
Appointment & Term
1.1During the Term, Halo shall exclusively perform the Services to the Client in the Territory in relation to the Accounts. The Services to be provided by Halo to the Client are set out in the Deal Terms of this Agreement. Halo acts in all its contracts with third parties with regard to the provision of Services (including with all Media Owners) as a principal at law.
1.2This Agreement shall commence on the Start Date and, subject to early termination, shall continue until the End Date.
1.3The Client hereby appoints Halo on an exclusive basis. As such, the Client shall not, during the Term, either itself and/or through another agency or other third party entity, procure services which are the same or substantially similar to the Services in the Territory.
1.4Halo shall not in any way be responsible for the preparation, content, production or supply of copy for any of the Advertising.
1.5In the event that either party wishes to make any material amendment to the Services, any such amendment shall be subject to the agreement of both parties.
Third Party Services
1.6Halo enters into contracts with third party suppliers in respect of Services (including with all Media Owners) in accordance with such suppliers’ standard or individual conditions and contracts as a principal at law (“Third Party Contracts”). Where the terms of any such Third Party Contracts differ from industry standard terms, the Agency will share such Third Party Contract with the Client for its approval in writing (not to be unreasonably withheld, delayed or conditioned). The Client:
(a)hereby acknowledges that in connection with the placing of all Advertising, the rights and liabilities between the Client and Halo shall correspond to those between Halo and the Media Owner under such Third Party Contracts;
(b)hereby acknowledges that any charges or liabilities (to the extent caused by an act or omission of the Client or its Affiliates or any third party acting for or on its behalf) for which Halo is liable under such Third Party Contracts (including cancellation payments) shall be the responsibility of the Client; and
(c)hereby indemnifies and shall keep Halo indemnified against any Losses caused by any act or omission of the Client which puts Halo in breach of any such Third Party Contracts.
Approvals and Authority
1.7For the purposes of this Agreement, any reference to “approval” to be given by the Client shall mean the Client giving approval by one of the following methods:
(a)the client issuing a purchase order;
(b)e-mail from the individual business e-mail address of the Client; or
(c)the signature of an authorised Client representative on Halo’s documentation (including on the Deal Terms).
1.8Halo will seek the Client’s prior approval of:
(a)media schedules for time, space and other facilities;
(b)any key words and/or other tagging algorithms that the Client wishes Halo to deploy as part of the Media Placement of Client’s Advertising; and
(c)any estimates or quotations for any other third party costs or expenses to be paid by the Client,
and the Client’s approval of such estimates and schedules will be Halo’s authority to enter into contracts with relevant third parties and to make reservations for such media. For the avoidance of doubt, once approval has been given, the Client is not entitled to withhold payment of any invoice or part of an invoice relating to that approval due to that invoice not complying with the Client’s own billing system (such as the requirements of a PO number).
1.9In consideration of Halo providing the Services, the Client shall pay Halo all Commission, Media Costs, Expenses and any other sums set out in the Deal Terms.
1.10Subject to clause 4.3 and 8, Halo will invoice the Client in respect of all Commission, Media Costs, Expenses and any other sums set out in the Deal Terms on or around the 15th day of each month in respect of Advertising that appears during that month and the Client shall pay each such invoice by no later than the 15th day of the following month in which the invoice is dated. In the event of additional activity approved and committed subsequent to the raising of the monthly invoices Halo will issue a further invoice during the month of activity for payment by the due date.
1.11In the event that any Media Costs require payment in advance or sooner than the payment terms set out in clause 4.2, Halo will notify the Client as soon as reasonably practicable in advance and the Client shall pay such costs within the period set out in the relevant invoice.
1.12The actual cost to Halo in respect of media or services purchased overseas may be more or less than the cost anticipated at the date when Halo ordered the relevant media or services (or obtained the Client’s approval for such costs) as a result of fluctuations in the rate of currency exchange. If so, Halo will charge the Client at the rate of currency exchange in operation on the date Halo pays for the relevant costs, which shall be deemed to be the rate charged to Halo by Lloyds Bank for any such conversion.
1.13In order to fund the self-regulatory system on advertising a non-commissionable levy of 0.1% of advertising cost is payable by advertisers through agencies to:
(a)the Advertising Standards Board of Finance (“ASBOF”) in respect of U.K. outdoor, cinema, digital, direct mail and press display advertisements (excluding classified lineage and semi-display); or
(b)the Broadcast Advertising Standards Board of Finance (“BASBOF”) in respect of U.K television and radio advertising
Such levies will be an additional charge and will be transmitted by Halo on the Client’s behalf direct to the relevant body.
1.14All sums stated in this Agreement exclude VAT and any other applicable sales tax (unless otherwise stated) which shall also be payable by the Client at the rate prevailing from time to time.
1.15The terms of remuneration set out in this Agreement do not cover the performance of services which are outside of the Services nor do they cover the performance of services outside the Territory. If any such services are required the terms relating to their provision together with the applicable commission, fees, expenses and costs will be agreed in writing by the parties.
1.16The Client reserves the right to withhold payment of any invoice or part of an invoice where the Client (acting reasonably and in good faith) has a bona fide reason to challenge the validity or accuracy of such invoice. On receipt of any such invoice the Client shall:
(a)immediately notify Halo in writing of the reason for such withholding;
(b)pay the undisputed part of such invoice in accordance with this clause; and
(c)work promptly and in good faith with Halo to resolve any such dispute over the relevant invoice.
1.17The Client is not entitled to withhold payment of any invoice or part of an invoice due to that invoice not complying the Client’s own billing system (such as the requirement of a PO number).
1.18In the event that the Client fails to make any payment in full when due to Halo under this Agreement, then without prejudice to its other rights and remedies under or in connection with this Agreement or otherwise in law, Halo shall be entitled to charge the Client interest on such overdue sum at the rate of three (3)% above the base rate of Lloyds Bank plc in force from time to time calculated from the due date up to the date of payment.
1.19If any payment of sums due under this Agreement is subject to tax (whether by way of direct assessment or withholding at its source), Halo shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to Halo after tax in respect of the payment is the same as it would have been were the payment not subject to such tax.
1.20If the Client is overdue with any payment hereunder, then without prejudice to Halo’s other rights or remedies:
(a)Halo shall have the right to suspend performance of the Services on seven (7) days’ written notice until Halo has received payment of the overdue amount together with accrued interest; and/or;
(b)Halo shall have the right to terminate the Agreement immediately upon seven (7) days’ written notice to the Client.
1.21Where a surcharge is levied by a supplier against Halo due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to Halo the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.
1.22Where a late copy charge is levied by a Media Owner against Halo to copy being delivered late then the Client shall immediately reimburse the amount of such late copy charge to Halo where Halo has been unable to negotiate a waiver of such charge with the Media Owner.
1.23Each 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.
1.24The parties each acknowledge that whether by virtue of and in the course of this Agreement or otherwise, they shall receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
1.25Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which ought reasonably to expect the other party would regard as confidential.
1.26Each of the parties shall at all times during the continuance of this Agreement and after its termination:
(a)use their reasonable endeavours to keep all Confidential Information and the provisions of this Agreement confidential; and
(b)not use any Confidential Information other than for the sole purpose of the exercise of their rights and/or the performance of their obligations under this Agreement.
1.27Neither party shall be in breach of this clause 5 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
1.28Confidential Information shall exclude information which:
(a)at the time of receipt by the recipient is in the public domain;
(b)subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
(c)is lawfully received by the recipient from a third party on an unrestricted basis; and/or
(d)is already known to the recipient before receipt hereunder.
1.29The terms of and obligations imposed by this clause 5 shall survive termination of this Agreement for any reason.
Client Warranties and Indemnities
1.30The Client warrants and undertakes that:
(a)it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party;
(b)the Advertising will not infringe third party Intellectual Property Rights;
(c)the Advertising will comply with all applicable laws and regulations including all Advertising Regulations; and
(d)it will promptly inform Halo if it considers that any Materials submitted to the Client by Halo for approval are false or misleading or in any way contrary to law or applicable Advertising Regulation
1.31If there is any error in the Advertising as published or publication is delayed or does not occur as planned, Halo will not be liable unless this is cause by its default or negligence. The Client hereby indemnifies Halo against any Losses incurred by Halo as a result of breach by the Client of its warranties and undertakings in clause 6.1.
1.32Subject to clause 7.2, Halo’s maximum aggregate liability under or in connection with this Agreement (including any indemnity contained in this Agreement), whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed 150% of the total Commission received by it during the immediately preceding twelve month period from the time such claim or action arises.
1.33Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.
1.34Subject to clause 7.2 (and including for the avoidance of doubt any indemnity contained in this Agreement), in no event will Halo be liable under or in connection with this Agreement for:
(a)loss of actual or anticipated income or profits;
(b)loss of goodwill or reputation;
(c)loss of anticipated savings;
(d)loss of data; or
(e)any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
Client acknowledges that Halo may seek to obtain credit insurance in connection with the sums payable by the Client to Halo under this Agreement. If Halo is unable to obtain such insurance in connection with the payments due by the Client to Halo under this Agreement or Halo’s insurer revokes any such cover after providing it, Halo reserves the right to amend the payment terms set out in clause 4.2 so that all such payments are due payable by the Client in advance of Halo performing any Services. In the event that the Client does not make any payments required in advance or otherwise provide a suitable guarantee (if acceptable to Halo in its absolute satisfaction), Halo shall not be obliged to proceed with providing any part of the Services.
2.1Either party may terminate this Agreement without cause at any by giving not less than three (13 months written notice to the other party.
2.2Either party may terminate this Agreement immediately upon written notice to the other party:
(a)under clause 11; or
(b)in the event of any material breach of this Agreement by the other party which breach is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the party not in default of a written notice on the defaulting party, specifying the nature of the breach and requiring such breach to be remedied; or
(c)if the other party suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(d)if the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal or enters into any compromise or arrangement with its creditors (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or
(e)if a petition is filed, or a notice is given, or a resolution is passed or an order is made for or in connection with the winding up of that other party (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or
(f)if an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party.
Consequences of Termination
2.3Termination of work in progress in accordance with the terms of this Agreement by either party shall not serve to terminate this Agreement which shall continue in full force and effect.
2.4Upon termination of this Agreement for any reason:
(a)the Client shall pay Halo all Commission, Media Costs and Expenses and any other sums set out in the Deal Terms due to Halo including during the notice period; and
(b)subject to clause 10.2(a) each party shall on the reasonable request of the other party promptly deliver or dispose of any property belonging or relating to the other party (including all Confidential Information) and all copies of the same, which are then in its possession, custody or control, and shall on the request of the other party certify in writing that the same has been done.
2.5Provisions of this Agreement which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination shall remain in full force and effect notwithstanding termination of this Agreement. Notwithstanding the generality of the foregoing, the following clauses shall survive termination of this Agreement:
(a)Clause 5 (Confidentiality);
(b)Clause 6 (Client Warranties and Indemnities);
(c)Clause 7 (Liability);
(d)Clause 8 (Insurance);
(e)Clause 10 (Consequences of Termination);
(f)Clause 12 (Notices);
(g)Clause 15 (General);
(h)Clause 16 (Governing Law and Jurisdiction).
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 two (2) months, the party not affected may terminate this Agreement immediately by giving written notice to the affected party.
2.6Any notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at the address given in this Agreement or as otherwise notified in writing to the other party.
2.7The following table sets out methods by which a notice may be sent and, if sent by that method, the corresponding deemed delivery date and time:
Deemed delivery date and time
Delivery by hand.
On signature of a delivery receipt.
Pre-paid first class recorded delivery post or other next working day delivery service providing proof of postage.
9.00 am on the second Business Day after posting.
Pre-paid airmail providing proof of postage.
9.00 am on the fifth Business Day after posting.