Marketing Options Ltd
(Company number 2117910) whose registered office is at Waterloo House, 40 Baker Street, Weybridge, Surrey KT13 8AR (“MOI Global”)
Further to the Statement of work, the Client and Marketing Options Ltd (MOI Global) have agreed that MOI Global shall plan, create and implement the campaign and provide the Services on the terms and subject to the conditions set out in this Agreement.
The Statement of Work includes, schedules, project plans and budgets and are part of this Agreement are incorporated into it and form part of it.
- This Agreement shall take effect on the Commencement Date as stated in the Statement of Work, which accompanies these terms, and shall continue in force for the Term or until terminated earlier in accordance with the provisions of Clause 7.
- In consideration of the agreement by Client to pay the Fees, MOI Global agrees to provide the Services to Client.
- The Services will be provided using reasonable skill and care in accordance with the generally accepted industry standards.
- MOI Global shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to Client, in material accordance with the Project Plan.
- MOI Global shall use reasonable endeavours to meet any performance dates or project milestones specified in the Project Plan, but Client acknowledges and accepts that any such dates shall be estimates only and time for performance by MOI Global shall not be of the essence of this agreement.
Client acknowledges and accepts that:
- although MOI Global will make reasonable endeavours to procure such licences as are required in relation to the Campaign (including, without limitation, music, image, alcohol and beverage licences), MOI Global cannot guarantee that it shall be able to obtain any or all of such licences, and accordingly MOI Global shall not be in breach of this Agreement or otherwise liable in any way, or subject to any reduction in the Fees payable, for any failure to obtain such licences in relation to the Campaign;
- MOI Global may make such changes to the specification of the Campaign as are reasonably required in order to ensure conformity with any applicable, compliance, safety or other statutory requirements;
- The services to be provided by MOI Global in relation to the Campaign consist solely of the services listed in the Statement of Work. In the event that Client wishes to alter or add to such Services following signature of this Agreement, Client acknowledges and accepts that such amendments or additions shall in each case be subject to the prior written approval of MOI Global, and that such changes may be subject to additional charges to be confirmed by MOI Global.
- Any dates quoted by MOI Global for the commencement or completion of the Services are non-binding, indicative estimates only and MOI Global will not be liable to Client for any loss or damage (whether direct, indirect or consequential and howsoever arising) sustained by Client as a result of any delay in the performance of the Services. Time for supply shall not be of the essence.
- MOI Global shall not be liable for any delay in the provision of the Services that is caused by Client’s failure to fulfil its obligations or any failure by Client to provide MOI Global with: (i) adequate instructions, personnel, access to facilities; (ii) any other requirements or instructions that are required for the supply of the Services.
- MOI Global will provide updates to Client in relation to the progress of the Services in a weekly progress meeting and in contact reports produced following each review meeting/call (or at such other intervals as agreed by the parties from time to time).
- In the event that the Services are not completed by date, this Agreement shall remain in force subject to them being supplied with an acceptable timetable for its conclusion.
Fees and Payment
- In consideration for the supply of the Services, Client agrees to pay all Fees and such other amounts as are due to MOI Global in accordance with this clause 3
- The Fees shall be calculated in accordance with the prices set out in the Statement of Work which accompanies these terms.
- Client acknowledges and accepts that the Fees have been assessed on the basis of the prices quoted by third party suppliers to MOI Global, and accordingly acknowledges and accepts that in the campaign such third party suppliers raise the applicable fees, MOI Global shall be entitled to increase the Fees upon reasonable notice to Client.
- Client agrees to reimburse any and all third-party deposits and costs incurred by MOI Global in relation to the Campaign (including, without limitation, venue charges, AV, speakers, translation, and entertainment) immediately on receipt of an invoice for such costs from MOI Global.
- Other than such amounts referred to in clause 3.4, all Fees payable hereunder shall be payable by Client within 30 days of date of invoice. Time for payment shall be of the essence.
- The Fees are exclusive of VAT, which shall be added to invoices where applicable
- Any expenses which are not included within the Fees shall not be incurred by Client without prior approval and they shall be under no obligation to pay any expenses which are so incurred without the necessary approval having been obtained in advance
- Any extra expenses incurred over and above the total anticipated cost of the programme are to be paid on receipt of invoice.
If Client fails to make payment by the due dates then without prejudice to any other right or remedy available to it MOI Global shall be entitled to:-
- cancel this Agreement and/or suspend the supply of any further campaign services to Client (whether under this Agreement or any other contract) until full payment together with interest is received by MOI Global;
- charge Client interest (before and after any judgment) on the amount unpaid at the rate of 4 per cent per annum above the Lloyds TSB base rate from time to time until payment in full is made (a part of the month being treated as a full month for the purpose of calculating interest); and/or
- claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 as amended from time to time.
- All payments due from Client shall be made without any set-off, deduction or deferment of any nature.
- Any queries arising from the invoice must be communicated to MOI Global within 7 days of the invoice date. Failure to notify MOI Global of any query within 14 days will render the full invoice payable on the Due Date.
- Client fully indemnifies MOI Global and undertakes to hold MOI Global harmless from any and all losses, damages, costs and expenses (including without limitation legal fees or the payment of settlements to third parties) in connection with the Campaign, except to the extent that such losses are caused by the fault of negligence of MOI Global.
- MOI Global hereby grants to Client a royalty-free licence to use the Deliverables (and any copyright, database rights, design rights, and other intellectual property rights therein) in connection with the Campaign.
- Client hereby grants to MOI Global the right to use their name together with any trademarks or logos supplied to MOI Global by Client, for the purpose of providing the Services and promoting the Campaign. MOI Global acknowledges that its right to use such trademarks shall cease upon termination or expiry of this Agreement.
- For the avoidance of doubt, should the Campaign be wholly or partly cancelled or postponed owing to circumstances beyond the control of MOI Global, no Fees paid or payable to MOI Global shall be returnable or refundable, except such amounts that MOI Global has successfully reclaimed from third parties following cancellation and which Client has already reimbursed to MOI Global pursuant to clause 3.4.
Client shall indemnify MOI Global against, and keep MOI Global indemnified against all costs, expenses, and damages suffered or incurred by MOI Global, arising out of or in connection with the cancellation or postponement of the Campaign for any reason outside the reasonable control of MOI Global. For the avoidance of doubt, this indemnity shall include (without limitation) MOI Global’s costs, expenses and damage arising out of:
the cancellation of or alteration to the booking of the Venue in relation to the Campaign;
the cancellation of or alteration to any goods or services ordered in relation to the Campaign;
breaches of contract and/or any other liabilities to third parties in relation to the cancellation or postponement of the Campaign; and
such ongoing input and administration of MOI Global as is reasonably necessary to administer such cancellation or postponement and make such arrangements as are (in the reasonable opinion of MOI Global) required following such cancellation or postponement.
Whilst MOI Global does not exercise direct control over the running of hotels, venues, caterers, entertainers and other services, MOI Global will make reasonable endeavours to protect the interest of it Clients by vigilant selection of third parties contracted to supply within its packages. However, MOI Global cannot be liable for any loss, damage or disappointment due to unforeseeable or unavoidable circumstances beyond their control.
If Client cancels or postpones the Event, MOI Global shall be entitled to charge the following amounts to cover costs incurred:
- 50% of the on-site campaign management budget, if the Campaign is cancelled or postponed less than 30 days prior to the intended date of the Campaign;
- 75% of the on-site campaign management budget, if the Campaign is cancelled or postponed less than 14 days prior to the intended date of the Campaign;
- 100% of the on-site campaign management budget, if the Campaign is cancelled or postponed less than 7 days prior to the intended date of the Campaign.
The parties undertake that they will not, for the duration of this Agreement and for a period of six months from the termination of this Agreement, employ:
- any employee of the other party to this Agreement who has been directly involved with the provision of the Services; or
- any agent or contractor working for the other party to this Agreement and involved directly with the provision of the Services;
without the consent of the other.
Either party may terminate this Agreement at any time by giving the other party not less than 28 days’ notice in writing of its intention to do so.
Either of us shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement immediately by written notice to the other party if:
the other party is in material or persistent breach of any of its obligations under this Agreement and either the breach is incapable of remedy or the defaulting party shall have failed to remedy the breach within 14 days after receiving written notice requiring it to remedy the breach; or
the other party becomes insolvent or an order is made or a resolution passed for its liquidation administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction) or if in administration or other receiver, manager, trustee, liquidator, administrator or similar officer should be appointed over all or any substantial part of its assets or if either party shall enter into or proposes any composition or arrangement with its creditors generally or anything analogous to the foregoing shall occur in any applicable jurisdiction.
Consequences of Termination
No termination of this Agreement (howsoever occasioned) shall affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into force or continue in force on or after that termination.
Within 7 days following the date of termination of this Agreement by either party, each of us shall at our own expense immediately return to the other or, as the other may instruct, dispose of, all copies of all documents, papers, specifications, handbooks, instructions and computer programmes whatsoever and all other property covered by this Agreement which is not its property at the date of termination, and shall certify in writing to the other party that the same has been done.
Nothing in this Agreement shall limit or exclude MOI Global’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- fraud or fraudulent misrepresentation;
- any matter in respect of which it would be unlawful for MOI Global to exclude or restrict liability.
Subject to clause 9.1:
MOI Global shall not be liable to Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss (including, without limitation, loss of profits) arising under or in connection with this Agreement (including any losses that may result from any breach of this Agreement by MOI Global, its employees, agents or subcontractors); and
MOI Global’s total liability to Client. in respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by any breach of this Agreement by MOI Global, its employees, agents or subcontractors shall not exceed the higher of (i) the price of the Services; and (ii) the actual proceeds received by MOI Global under its public liability policy (or other relevant insurance policy) in respect of the liability in question.
- Client acknowledges and accepts that MOI Global shall not be liable to take out any insurance in relation to the Campaign (including, without limitation, damage insurance, personal accident insurance, or cancellation insurance), and Client shall be responsible for taking out such insurance policies as are deemed appropriate in relation to all risks in connection with the Campaign.
- Client acknowledges and accepts that MOI Global shall not be responsible or liable in any way in relation to any loss of or damage to personal possessions brought to the event by Client or its guests.
- MOI Global representatives will make reasonable endeavours to maintain the confidentiality of all confidential information disclosed to MOI Global in relation to Client, the Campaign, the Services, except to the extent that it is necessary to disclose such information to employees, subcontractors, or other relevant third parties in the course of providing the Services.
- Each party undertakes to the other that it will keep secret and confidential any information of the other which forms the subject of any patent, copyright, registered design or other protected proprietary right, information of the other designated as “confidential” or information which is by its nature clearly confidential (“Confidential Information”) which shall come to its attention pursuant to the provision of the Services and shall not use the same for its own purposes or any purposes outside those permitted by this Agreement or disclose the same to any third party without the prior written consent of the party who disclosed the Confidential Information.
The provisions of this Clause shall not apply to:
- any information in the public domain otherwise than by breach of this Agreement;
- information in the possession of the receiving party thereof before disclosure under this Agreement;
- information obtained from a third party who is free to disclose the same.
To the extent necessary to implement the provisions of this Agreement each of us may disclose the Confidential Information to such of our employees, agents or subcontractors as may be reasonably necessary or desirable provided that before any such disclosure each of us shall ensure such employees and subcontractors are aware of and comply with these obligations as to confidentiality.
Each of us shall in all respects treat the other’s Confidential Information in like manner to our own confidential and valuable information and take all reasonable precautions to prevent any unauthorised person have access to, or copying the same.
Each of us shall bring to the other’s immediate attention any known or suspected breach of our obligations under this Clause 11 by any third party or any of our own employees, agents or subcontractors.
Nothing in this Clause 11 shall prevent either party from disclosing any Confidential Information to any holding company, subsidiary or any subsidiary of our holding company. “Holding Company” and “Subsidiary” shall have the meanings given to those expressions by section 736 of the Companies Act 1985.
Neither party shall make any press or other public announcement concerning any aspect of this Agreement (including the fact that it exists) without the prior consent of the other to the text of that announcement save to the extent required by any regulation or law.
- Any notice or other document to be served under this Agreement may be delivered or sent by prepaid first class recorded delivery post or facsimile process to the party to be served to either a) the client at their registered address or to Marketing Options Ltd at Waterloo House, 40 Baker Street, Weybridge, Surrey KT13 8AR marked for the attention of the Company Secretary.
- In proving service of a notice or document it shall be sufficient to prove that delivery was made or that the envelope containing the notice or document was properly addressed and posted as a prepaid first class recorded delivery letter or that the facsimile message was properly addressed and despatched, as the case may be.
- Neither party may assign, transfer nor otherwise dispose of any of its rights under this Agreement without the prior written consent of the other party.
MOI Global shall not be in breach of this Agreement nor liable for any failure or delay in performance of any obligations under this Agreement arising from or attributable to acts, campaigns, omissions or accidents beyond its reasonable control (“Force Majeure Campaign”), including but not limited to any of the following:
- Acts of God, flood, earthquake, windstorm or other natural disaster;
- cancellation or double-booking of venue or other services in relation to the Campaign by third party suppliers;
- epidemic or pandemic;
- war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
- terrorist attack, civil war, civil commotion or riots;
- any law or government order, rule, regulation or direction, or any action taken by a government or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary licence or consent;
- fire, explosion (other than in each case one caused by a breach of contract by, or assistance of, the party seeking to rely on this clause or companies in the same group as such party) or accidental damage;
- adverse weather conditions;
- interruption or failure of utility service, including but not limited to electric power, gas or water;
- any labour dispute, including but not limited to strikes, industrial action or lockouts;
- non-performance by suppliers or subcontractors; and
- collapse of building structures, failure of plant machinery, machinery, computers or vehicles
If the Force Majeure Campaign prevails for a continuous period of more than 1 month, either party may terminate this agreement by giving 14 days’ written notice to the other party. On the expiry of this notice period, this Agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring prior to such termination.
- A waiver (whether expressed or implied) by either of us of any of the provisions of this Agreement or of any breach of or default by the other in performing any of those provisions shall not constitute a continuing waiver and that waiver shall not prevent the waiving party from subsequently enforcing any of the provisions of this Agreement whether waived or not or from acting on any subsequent breach of or default by the other under any of the provisions of this Agreement.
- No amendment, waiver or variation of this Agreement shall be binding on either of us unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.
- Any rights of any person to enforce the terms of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 (or any successor legislation) are excluded.
- Nothing in this Agreement shall create or be deemed to create a partnership or any relationship of principal and agent between us. Each of us enters into this Agreement as principal on our own account and neither of us shall have any authority to bind the other.
- This Agreement (as amended from time to time) together with any document expressly referred to in any of its terms, contains the entire agreement between us relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement. Each party confirms that, in agreeing to enter into this Agreement, it has not relied on any representation save insofar as the same has expressly been made a representation in this Agreement and agrees that it shall have no remedy in respect of any misinterpretation which has not become a term of this Agreement save that the agreement of the parties contained in this Clause shall not apply in respect of any fraudulent representation whether or not such has become a term of this Agreement.
- These terms take precedence over any other terms in any quotation, proposal or otherwise.
- This Agreement is governed by and shall be construed in accordance with the law of England and Wales and the parties submit to the non-exclusive jurisdiction of the courts of England and Wales.