PromoVeritas Standard Terms of Service
Unless we have agreed something different with you, these Terms of Service “Terms”, together with any Proposal (or amended Proposal) accepted by you, constitutes the entire agreement between us “the Contract”. All Services carried out by us shall be in accordance with the Contract. Any amendments to the Contract shall be agreed in writing and if they are not, they are not binding on us. By accepting a Proposal, you authorise us to commence the Services outlined in the Proposal, and this shall amount to acceptance of these Terms. If you are acting in a capacity as an Agent or Agency, then these Terms are binding on your clients and/or the brands you work for.
“Cancellation Charges”: The amount payable on cancellation of a Project or Services.
“Confidential Information”: Any information in whatever form transferred or disclosed by either of us, including but not limited to business, financial, commercial and technical information, business plans, trade secrets, product concepts, specifications, data, including personal data, samples, material formulations, know-how, experience and product related information including: a) in an oral, visual and written form b) in the form of record bearing media e.g. storage devices, software and related documents, computer print-outs, other data base forms, programmes c) in the form of samples or models and/or any other documents, media, drawings, plans, descriptions, specifications including minutes of meetings. Confidential Information does not include information that the recipient can show by written record (i) is or becomes generally available to the public through no breach of the Contract; (ii) was in the possession of the recipient prior to the Contract and is not otherwise subject to a confidentiality obligation; or (iii) is provided to the recipient by a third party under no obligation of confidentiality.
“Contract”: The Terms and the Proposal.
“Fee”: The fee for the provision of the Services on any Project as set out in the Proposal.
“Intellectual Property Rights”: All copyright, design rights, registered designs, trademarks, patents, confidential information, ideas, moral rights and all other rights whatsoever whether those rights are registered or not arising from the provision of the Services under the Contract.
“Project”: The Services that we have agreed to carry out for you in accordance with the Proposal.
“Proposal”: Details information such as the Project, the Services, the Fees and the associated costs and includes any agreed amendments.
“Services”: The services to be performed by us for you as set out in the Proposal.
“Territory”: The country/countries as set out in each relevant Proposal.
1.1 The Services will be performed as set out in the Proposal. The Proposal was submitted by us to you in response to a brief and/or enquiry from you. Any amendment to the Services, or additional services to be provided by us will incur additional costs and should be agreed in writing by both of us and may result in a revised Proposal setting out revised Services and Fees. For the avoidance of any doubt, your instruction by email will constitute deemed approval for us to proceed with the Project or the amended Services at the agreed Fee.
1.2 Although Tax may be a factor to consider in a Project, we are not in a position to, and do not provide taxation advice either in relation to tax payable by you, your client or any other third party.
1.3 We will use reasonable care and skill in the selection and appointment of any third party suppliers required for the provision of the Services.
1.4 When we appoint a supplier, we act as a principal at law and not your agent. We will use reasonable commercial endeavours to negotiate the best terms with third party suppliers, but you acknowledge and accept that we may be bound by the terms imposed on us by a third party supplier including terms contained in a suppliers standard terms of business.
2.1 The Fees payable for the Services will be set out in the Proposal.
2.2 When multiple services are contained in a Proposal the Fee for the Services is based upon the purchase of the specific combination of Services as stated in the Proposal. The Fee represents a discount on our standard pricing due to the purchase of multiple services from us as a package deal, and shall not be taken to represent the price of any individual service offered by us in the event any such service is sold separately.
2.3 Unless we have agreed something different with you, all Fees are payable within thirty (30) days from the date of our invoice. VAT will be due on the Fees at the rate in place on the date of our invoice
2.4 Without prejudice to any of our other rights, if you fail to pay the Fees (or any part) when due, we will have the right to withhold delivery of all or any part of the Services and charge you late payment interest on a daily basis at the rate of 2% over the base rate of The Bank of England from time to time and you will reimburse us all reasonable costs and expenses (including reasonable legal costs) incurred in the collection of any overdue amount. We will also be entitled to cancel the Contract and/or suspend any further Services. This may result in serious difficulties for you, and we accept no liability for any losses you may suffer as a result
2.5 No deduction or set-off or withholding payment in relation to Fees owed is permitted.
2.6 Any additional Services requested by you in writing which are not included within the initial Proposal will be quoted for separately and, will be invoiced and payable within thirty (30) days from the date of such separate invoice or as agreed.
2.7 All Fees are payable in Pounds Sterling unless otherwise agreed.
2.8 To avoid us incurring any unforeseen costs, if for any reason Fees for Services performed are not payable in Pounds Sterling, or otherwise if the Pound Sterling equivalent of the cost to us of any materials or services purchased for the Services to be provided is more or less than the costs anticipated at the date when such Services and/or materials were ordered, we will charge you at the rate of currency exchange which is in operation on the date we submit our invoice. The rate of currency exchange in operation on any such day is deemed to be the closing mid-point rate in London for that day as subsequently quoted in the next published edition of The Financial Times.
- Additional Costs
3.1 We reserve the right to charge additional costs when there are changes to Proposals/Projects/Services and for third-party costs including:
3.1.1 changes to the Project and/or Proposal requested by you which are additional to and go beyond the Proposal, including, but not limited to, Services to be provided by us outside the Territory.
3.1.2 for any third party costs incurred by us (for which a fee or cancellation fee may be payable by us) as a result of any changes to the Project and/or Proposal requested by you.\3
3.2 We will give you prior written notice of material additional costs and will not incur these without your prior agreement.
3.3 Additional Costs will be invoiced to you and are payable bv you within thirty (30) days from the date of such invoice.
3.4 You agree to reimburse us for all out-of-pocket expenses reasonably and necessarily incurred, with your prior consent, including without limitation, travel, parking, courier services above those specified within the Proposal, unless otherwise agreed in writing.
4.1 We undertake and warrant that:
4.1.1 We have and will at all times have the right to perform the Services as set out in the relevant Proposal.
4.1.2 The Services will be performed with due skill and care, in accordance with best industry practice and all relevant laws and industry codes of practice. The Services are fit for the purpose held out by us or made known to us expressly by you.
4.1.3 We will obtain and maintain in force at all times all licenses, consents, permissions, authorisations and permits needed to perform the Services
4.1.4 We will perform the Services in accordance with all standards, descriptions and requirements set out or referred to in the relevant Proposal.
4.1.5 We will allocate sufficient numbers of appropriately skilled and experienced personnel, and all necessary equipment, resources and facilities to perform the Services.
4.1.6 All information and dates proposed by us for the provision of the Services are given in good faith and we will use reasonable commercial endeavours to ensure that any timescales are met. We will not be liable for failure to complete the Services, or any part of them, where such failure is as a result of your delay, or the delay of any third party instructed by you. For the avoidance of any doubt, time is not of the essence of the Contract
4.2 You warrant and undertake (and you will ensure that your client(s) warrant and undertake) that:
4.2.1 all necessary rights, consents, permissions and licenses for the use of all materials supplied to us have been obtained.
4.2.2 We shall not be held liable for any third party claims, copyright infringements, proprietary or other property, intellectual property or other rights, royalty claims or any other litigation resulting from such materials or information supplied to us.
4.2.3 You/ your client(s) will be responsible for verifying that all Services comply with all applicable client(s) industry laws, being all applicable laws and industry recognised and mandatory policies, guidelines or codes in each case from time to time in force issued by statutory, regulatory and industry bodies in the territory, to the extent directly relevant to the provision of the Services (“Industry Laws”) .
4.3 We shall not be liable for any delay or default in relation to the Services which is due to:
4.3.1 Your act or omission including an allegation that the use of the Services that are approved by You do not comply with Industry Laws;
4.3.2 Our use of your/your client(s) property and/or any information provided by you or on behalf of your client(s) to us.
4.4 You warrant and undertake that any facts, opinions or client(s) property provided by you to us which will be the basis of any representation or statement about your client(s) or its property and/or will be contained within the Services, is accurate, is not misleading or defamatory and will be authorised to be available to the public and used in any sales promotion communication and otherwise complies with all Industry Laws. You further acknowledge that we shall not verify the accuracy or make any further enquiry into the accuracy of any such facts, opinions or client(s) property.
4.5 You undertake to indemnify us, our officers, directors, employees and agents from and against all actions, proceedings, claims, demands, costs (including reasonable legal costs) awards and damages however arising directly or indirectly or incurred by reason of any infringement or alleged infringement of any intellectual property or other proprietary right in any material supplied by you/them to us relating to a Project
- Intellectual Property
5.1 All present and future Intellectual Property Rights of whatever nature in all final, selected material arising from a Project will remain with us until the Fee is paid in full at which time all Intellectual Property Rights will transfer to you.
5.2 Notwithstanding the above, nothing will be deemed to grant any right or licence to you in the Intellectual Property Rights insofar as they incorporate any tools, including utility models, know-how, proprietary methodologies, systems, software and programmes as are owned and/or utilised by us to generate the Services, or used or developed otherwise in the course of provision of the Services.
5.3 If agreed by of us, you hereby grant to us a non-exclusive royalty free licence throughout the world in perpetuity to use the Project as part of a library of works and for the purposes of our own promotion.
- Sub-contractors and Third Party Rights
6.1 Notwithstanding the provisions of section 7, we reserve the right to sub-contract the Services, or any part of the Services, to a third party provided any such persons possess the necessary skills to perform the Services to an acceptable level. You acknowledge that as an independent business, you will not be entitled nor will you seek to supervise, direct or control the manner in which we provide the Services.
6.2 We will ensure that if and when necessary third parties contracted by us in the provision of the Services will enter into written agreements and assign all intellectual property created specifically during the course of a Project to us, and waive any non-transferable rights if and when required.
6.3 No term contained in these Terms is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person not a party to the Contract.
- Data Protection and Data Processing
7.2 This section is intended to protect the fundamental rights and freedoms of individuals and their right to privacy with respect the processing of personal data including where a data controller/exporter is established in a Member State and where the processor/importer is not a Member State.
7.3 We agree that, both of us will comply with the provisions of the relevant data protection legislation, including but not limited to the Data Protection Act 2018 and the EU General Data Protection Regulation 2016 (in force from 25 May 2018) (in this section referred to collectively as Data Protection Legislation or DPL).
7.4 The terms used in this section have the same meanings as may be found in the DPL and the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data as the case may be.
7.5 This section will be effective if Art 44 of the General Data Protection Regulation (the “GDPR”) applies to a transfer of personal data from the rest of the world to the UK, because the UK has left the European Union, and the transfer is not permitted under Art 45 and as and when this event occurs unless the UK exits the EU with an arrangement which allows personal data to flow from the rest of the world to the UK without an adequacy decision
7.6 You warrant, undertake and agree that the following provisions will apply:
7.6.1 You will control, process and / transfer all personal data (as defined under the DPL) strictly in accordance with the terms of the Contract and your direct obligations under the DPL as well as any industry related guidance or best practice.
7.6.2 You will, while processing and during the transfer of any personal data do so in a manner consistent with the requirements of the DPL and with any guidance issued by the European Data Protection Board or relevant supervisory authority under the DPL (together known as the Supervisory Body), or any other competent authorities.
7.6.3 You will implement appropriate due diligence, technical and organisational security measures, policies and procedures to safeguard all personal data from all and any form of unauthorised, unlawful or accidental processing, loss, alternation, destruction or damage as well as ensuring against unauthorised access or disclosure including while data is being transferred over a network while the personal data is under your control.
7.6.4 You will, in a manner consistent with the requirements of the DPL and with any Supervisory Body, maintain adequate documentation to evidence the policies and procedures implemented as set out above.
7.6.5 You will, prior to sharing any personal data with us in a manner consistent with the requirements of the DPL, and in accordance with your obligations under the Contract:
18.104.22.168 Ensure that all individuals whose personal data has been collected by you have given consent to the extent required under the DPL and
22.214.171.124 notify us regarding the scope and extent of our responsibilities and activities in relation to the personal data, including but not limited to, the purpose for which the personal data was collected, what consents were obtained from the data subject and the manner in which consent was obtained, and any time limits after which personal data can no longer be processed.
7.6.6 You will, if required under the DPL appoint a data protection officer and conduct a data protection impact assessment for any sensitive and/or high-risk processing you require us to undertake and for any changes to the nature of the processing or to the systems used to conduct the processing and compile lists of what is caught.
7.6.7 You will, if required under the DPL, notify any data breach in accordance with the DPL to the relevant Supervisory Authority, without undue delay and, where feasible, within 72 hours of becoming aware of the breach. Reasoned justification must be provided if this timeframe is not met.
7.6.8 You will, if required under the DPL, notify any data breach in accordance with the DPL to the affected data subject (as defined under the DPL) without undue delay.
7.7 You will fully indemnify and keep us indemnified against all claims, demands, actions, costs, expenses, losses and damages (including reasonable legal fees) arising from or incurred by reason of any loss, damage or distress suffered by any person as a direct result of your breach of any of your obligations under this section or any of the provisions of the DPL acting as data controller or exporter. You will have conduct of the defence of any claim which falls within this indemnity. We will supply you with all information relating to such claim as soon as we become aware of the same (including any notice or warning of such claim received by us).
7.8 We confirm that will process all personal data in accordance with the terms of the Contract, our direct obligations under the DPL, documented instructions from time to time and will maintain a written record of processing activities carried out.
7.9 If required by the DPL, we will appoint a data protection officer to account for any processing we are required by you to carry out and at all times ensure that only such of our employees who may be required to assist us in meeting our obligations under the Contract have access to the personal data.
7.10 We will, in a manner consistent with your specific requirements or the requirements of the DPL, implement appropriate technical and organisational measures to safeguard the personal data from unauthorised or unlawful processing or accidental loss, destruction or damage while the personal data is being processed by us.
7.11 We will notify you immediately if we receive a request or notice from the Supervisory Authority or from a data subject exercising his/her rights under the DPL and will assist you promptly with all such requests.
7.12 We will notify you immediately of any breach, or threatened breach, of the personal data including if any personal data is lost, destroyed or becomes damaged, corrupted or unstable while the personal data is being processed by us.
7.13 We will only make copies of personal data to the extent reasonably necessary for the provision of the Services (including, but not limited to, back-up, mirroring (and similar availability enhancement techniques), security, disaster recovery and testing of personal data).
7.14 We will not extract, re-utilise, use, exploit, redistribute, re-disseminate, copy or store the personal data other than for the agreed purpose as specified in any relevant Proposal.
7.15 We will provide to you, at your request and cost, a copy of all personal data held by us in the provision of the Services in a format and on the media reasonably specified by you.
7.16 We will promptly comply with any request from you to amend, transfer or delete any personal data and deal with any inquiries from you relating to the processing of the data.
7.17 We will be entitled to disclose personal data to, and appoint a sub-processor, of personal data provided such sub-processor is authorised and approved by you and agrees to the terms of processing as specified within the Contract.
7.18 We will assist you upon request in ensuring compliance with your obligations deriving from the carrying out of data protection impact assessments and/or from prior consultation of the Supervisory Authority.
7.19 On expiry or termination of the Contract, and in any event, upon expiration of the purpose for which personal data was collected, we will immediately cease to process such personal data and will arrange for its safe return and/or destruction as will be agreed with you.
7.20 If any personal data in our possession or control becomes lost, corrupted or rendered unusable for any reason, we will immediately notify you and promptly restore such personal data using our back-up and/or disaster recovery procedures at no cost to you.
7.21 We will maintain a record of all categories of personal data, data subjects, purpose of the processing, recipients of the data and location of the data if processed by us and make such records available to you and/or Supervising Authority, upon request.
7.22 Subject to the limitations of liability set out in these Terms, we will fully indemnify and keep you indemnified against all claims, demands, actions, costs, expenses, losses and damages (including reasonable legal fees) arising from or incurred by reason of any loss, damage or distress suffered by any person as a direct result of our breach of any of our obligations under this section or any of the provisions of the DPL acting as data processor or data importer. We will have conduct of the defence of any claim which falls within this indemnity. You will supply us with all information relating to such claim as soon as you become aware of the same (including any notice or warning of such claim received by you).
8.1 Except as permitted by the Contract, we each agree we will not disclose the other’s Confidential Information, to any third party and will use all Confidential Information solely for the Project.
8.2 We each agree we wish to receive only that Confidential Information that is necessary for accomplishing the Project and will take all reasonable steps to limit disclosure of Confidential Information to that which is necessary. We will Confidential Information to only our employees or other representatives having a need-to-know in connection with the Project, who have been advised of the confidential nature of the information, and who are bound by confidentiality and non-use obligations substantially similar to those within this section.
8.3 We each agree we will use the same degree of care we use with our own Confidential Information to safeguard each other’s Confidential Information against disclosure and misuse, but in no event less than reasonable care.
8.4 We each agree we may disclose Confidential Information if required to do so by law or by a competent court or legitimate government agency only to the extent legally required.
8.5 Upon termination of the Contract, or otherwise upon written request by the discloser, the recipient will promptly return all Confidential Information or undertake in writing that all Confidential Information has been destroyed, including all material created by the recipient based on or otherwise containing the discloser’s Confidential Information.
8.6 The recipient of any Confidential Information has no claim, right, title, property or other interest of any kind in the discloser’s Confidential Information.
8.7 We each make no representation or warranty, express or implied, as to the accuracy or completeness of our own Confidential Information.
8.8 We each acknowledge that any disclosure of any Confidential Information in breach of this section may cause the other harm, the amount of which may be difficult to determine. We will each have the right to apply to a court for an order restraining any threatened or further disclosure of Confidential Information, along with any other relief available at law.
9.1 We maintain with reputable insurers a suitable policy or policies of insurance to cover our obligations and liabilities under the Contract, including but not limited to global Professional Indemnity Insurance with a limit of not less than £10 Million. Upon reasonable request, we will provide to you evidence of such documentation to ensure continuing compliance with this section.
9.2 We do not provide insurance cover for your materials, equipment and personal effects and are not liable for any loss or damage to your materials, equipment and personal effects including accident, theft, fire, flood, explosion or any other circumstances when loss or damage may occur unless specifically stated within a Proposal.
- Limitation of Liability
10.1 Nothing in the Contract will exclude or in any way limit liability for fraud, or for death or personal injury caused by negligence, or any other liability to the extent such liability may not be excluded or limited as a matter of law. Subject to this, and unless these Terms specifically provide for same, neither of us will be liable under the Contract for any loss of actual or anticipated income or profits, loss of contracts, special, 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.
10.2 Subject to Section 11, our liability to each other arising from the performance of the Services or for breach of the Contract any other liability arising under the Contract, will not exceed the value of the Services supplied under the Contract. We each agree that the limitations on liability contained in this section are reasonable in all the circumstances and are a fundamental part of the basis of our bargain under the Contract and neither party would enter into the Contract absent such limitations.
11.1 You acknowledge that we have invested significant time, expertise and expense in recruiting and training our staff, and engaging sub-contractors and suppliers, which you acknowledge we would want to protect. You agree that, during any period in which we are providing Services to you, including but not limited to this Project, and for a period of twelve (12) months afterwards, either on your own or in conjunction any other person, firm, company, business entity or other organization whatsoever, directly or indirectly:
11.1.1 induce, solicit, entice or procure to gain employment or engagement or any contractual or commercial relationship (otherwise than as contemplated by these Terms) with any of our staff, sub-contractors or suppliers,
11.1.2 accept employment or other engagement or any contractual or commercial relationship (otherwise than as contemplated by these Terms) with any of our staff, sub-contractors or suppliers,
11.1.3 you will pay to us the equivalent of such person’s annual gross salary/earnings as such person earned in the preceding twelve (12) month period.
11.2 You shall not approach any third party with whom we have a business relationship with a view to establishing or participating in any business or service which may be competitive with us while we are providing Services to you and for a period of twelve (12) months afterwards.
- Cancellation of a Project
12.1 If you decide to cancel the Project, after a Proposal has been accepted by, you must do so in writing, and we reserve the right to levy Cancellation Charges
12.2 The actual Cancellation Charges will depend on the nature of the Project, the amount of time and costs already committed to the Project, and any third-party costs incurred to which might be incurred at the time of cancellation or as a result of the cancellation.
- Term and Termination of the Contract
13.1 The Project will start and end on the dates specified within the Proposal.
13.2 The Contract will start on the date of your signature on or your acceptance of the Proposal, or upon commencement of the Services, whichever is the earlier, and end when all obligations of both parties have been completed.
13.3 We each have the right to terminate the Contract, without cause, by giving the other party 90 days written notice.
13.4 We each have the right to terminate the Contract, with cause, with immediate effect on giving written notice of termination to the other following the occurrence of any of the following events at any time during the Contract:
13.4.1 if the other commits a material breach of the Contract which (in the case of a breach capable of remedy) is not remedied within fourteen (14) days of its receipt of a written notice identifying the breach and requiring it to be remedied; or
13.4.2 if the Insolvency Act 1986 is of application and for example, that party cannot pay its debts, takes steps towards voluntary or involuntary sequestration, winding up, administration or an officer is appointed, or it is ceases to trade or threatens to cease to trade; or
13.4.3 any step or event is taken or arises outside the United Kingdom which is similar or analogous to any of the steps or events listed above.
13.5 Termination of the Contract or cancellation of the Services will not affect any rights or obligations of either of us which may have accrued before termination.
13.6 You will be liable to us to pay all Fees for all Services performed until the date of termination or cancellation and all third-party costs reasonably and necessarily incurred by us until the end of the termination notice period.
13.7 Upon termination or cancellation, we will offer all reasonable co-operation required and will return or destroy (at your request) all documents and materials belonging to or relating to the provision of Services to you which are then in our possession or control.
- Force Majeure
14.1 Neither of us will be liable for any delay in performing or for failure to perform our obligations under the Contract or any Proposal to the extent that and for so long as the delay or failure results from any event of force majeure.
14.2 If any event of force majeure occurs, subject to the affected party promptly notifying the non-affected party in writing of the event of the force majeure, the date(s) for performance of the obligation affected will be postponed for so long as is made necessary by the event of force majeure. If performance is not resumed within thirty (30) days of the date of the affected party’s written notice, the non-affected party may immediately by notice in writing terminate any affected Services. Each party will use reasonable endeavours to minimise the effects of any event of force majeure.
15.1 Any failure by either of us to enforce any provision of the Contract and/or any Proposal will in no way constitute a waiver or affect the rights of either of us to require performance by the other party
15.2 The Contract shall not in no way suggest a partnership, association, joint venture or other co-operative entity between us, and no actions by us shall be taken to suggest same, additionally neither of us have any authority to bind the other in any way except as provided in the Contract
15.3 If any part of this Contract is declared unenforceable or invalid, the remainder will continue to be valid and enforceable
15.4 The Contract will be governed by and construed in accordance with the laws of England & Wales. In the event of a dispute, such dispute will be settled by an arbitrator to be jointly agreed by both of us. In the absence of agreement, an arbitrator will be chosen by the Chartered Institute of Arbitrators and both of us will accept the ruling of that arbitrator as final and binding
15.5 We each declare that we have the right, power and authority and have taken all action necessary to execute and deliver and to exercise our respective rights and perform our obligations under the Contract
15.6 We do not intend that the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
Issued 12 December 2019.