Terms & Conditions
1. DEFINITIONS
Consultant Splat Marketing Client the person, firm or company purchasing the Services
Business Day a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business
Contract between the Consultant and the Client for the supply of services in accordance with these terms and conditions
Force Majeure Event an event beyond the reasonable control of the Consultant including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Consultant or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors
Order the Client’s order for the supply of Services
Services such of the services provided by the Consultant (including media services, sponsorship services, press services, new media analysis) which are the subject of an order between the Consultant and the Client
3. CONTRACT
2.1 The Order constitutes an offer by the Client to obtain Services from the Consultant as set out in the Order form
2.2 The Order is deemed to be accepted when the Consultant accepts the Order in writing (Effective Date)
2.3 These terms and conditions are the only terms and conditions on which the Consultant supplies the Services
2.4 All fees for the Services are exclusive of Value Added Tax (VAT) and the Consultant reserves the right to charge and the Client will pay any VAT or other tax payable
4. PROVISION OF SERVICES
3.1 The Consultant shall provide the Services for a period of 12 months and thereafter from year to year unless either party shall give to the other not less than 3 months written notice immediately prior to the next anniversary of the Effective Date
3.2 In performing the Services the Consultant shall provide [NUMBER] days in each calendar month
3.3 The Consultant will perform the Services with a reasonable level of skill and care in accordance with a degree of skill, diligence, prudence and foresight which, as at the relevant time, would reasonably be expected from a skilled and experienced supplier of PR services seeking in good faith to comply with its contractual obligations.
3.4 The Consultant will be entitled to make operational changes to the Services that have no material adverse effect on those Services without consultation with the Client
3.5 The Consultant will arrange a meeting with the Client not less than once every quarter at which the provision of Services can be reviewed and future action agreed upon and minuted. Any Services provided prior to that meeting which are not queried and minuted shall be deemed to have been preformed satisfactorily.
5. CLIENT RESPONSIBILITIES
4.1 The Client acknowledges that the Consultant, in providing the Services, is dependant on the Client fully and promptly cooperating with the Consultant in providing such information as the Consultant shall require from time to time and on the completeness and accuracy of information and data provided
4.2 The Client agrees to comply with the Consultant’s reasonable instructions and requests in respect to the Services, to provide all information, data and documentation reasonably required to enable the Consultant to provide the Services with all relevant information and images in an acceptable format and warrants that the Consultant may rely upon the completeness and accuracy of any information or data so provided.
4.3 The Client acknowledges that the Consultant shall not be required to publish any material which in its opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights or any third party and warrants that it will not provide any material of that nature to the Consultant
6. FEES
5.1 The Client will pay a fee of an amount per day (daily rate) (where a day means a period of 7 hours) as referred to in the Order or as varied in accordance with Clause 5.4.
5.2 Where work carried out in providing the Services exceeds the period of 7 hours any additional hours will be charged for at the pro rated daily rate
5.3 Where the number of days provided by the Consultant in any quarter exceeds the number of days it committed to provide in that quarter pursuant to Clause 3.2 by more than 10% the Consultant reserves the right either to reduce the number of days it provides in a subsequent quarter or to charge for the additional days at the daily rate
5.4 The Consultant may vary the daily rate by giving the Client four months written notice of the new rate which will then take effect on the anniversary of the Effective Date and will become the daily rate.
6. EXPENSES
6.1 The Consultant shall be entitled to charge the following expenses:
6.1.1 where travel is by rail the standard class rail fare appropriate at the time of travel
6.1.2 where travel is by road the mileage multiplied by a rate of 45p per mile
6.1.3 press releases and sample distribution at the appropriate mail rate plus the cost of photocopying, stationery and courier charges (the Client providing the press release paper)
6.1.4 entertainment and accommodation costs agreed in advance with the Client at cost to be paid within 21 days of invoice
6.2 If the Consultant assesses that any significant payments will be required to meet anticipated expenses it can require the Client to pay the anticipated expenses in advance to enable it to meet those expenses and will not be required to incur the same until the Client has provided the appropriate funds
7. PAYMENT
7.1 The Consultant will invoice for the provision of the Services monthly in advance. Any adjustments will be made in the following month or in accordance with Clause 5.2 or Clause 5.3 as appropriate and a further invoice will be issued with regard to any such adjustment. Payment will be due within 30 days of invoice
7.2 Unless payment is required in advance Expenses will be due 21 days after invoice.
7.3 Time for payment of any sums due to the Consultant is of the essence
7.4 If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in these terms and conditions the Consultant shall be entitled
7.4.1 to charge interest on the outstanding amount at the rate of 3.5% per year above the base lending rate of Lloyds TSB Bank plc, accruing daily
7.4.2 to require the Client to pay in advance for any Services which have not been performed
7.4.3 not to perform any further Services (or any part of the Services)
7.4.4 to recover any costs
8. CONFIDENTIALITY
8.1 The parties acknowledge a duty during or after the period that Services are provided not to disclose without the prior written consent of the other any confidential information either concerning the other’s business , its business plans, customers or associated companies or resulting from studies or surveys commissioned and paid for by the Client
8.2 The Client acknowledges and agrees that any identifiable and original idea or concept presented by the Consultant in relation to any promotion or advertising campaign invented or developed by the Consultant shall be acknowledged as being available only for such promotion or campaign and shall not be used for any other purposes without the prior written consent of the Consultant and that any ideas, even where a promotion or campaign has not been agreed, presented to the Client shall remain strictly confidential and shall not be used in any way without the Consultant’s prior written consent, including communications to a third party
8.3 This Clause 8 shall survive termination of the Contract
9. INDEMNITY
9.1 The Client shall indemnify the Consultant in respect of all damage or injury occurring to any person, firm, company or property and against all actions, suits, claims, demands, charges or expenses in connection therewith for which the Consultant may become liable in respect of any breach of contract or in respect of the Services sold under any contract.
9.2 The Client is responsible for all copy, slogans, words or methods supplied or suggested by it to the Consultant, and also such items approved by it after suggestion by the Consultant and therefore the indemnity referred to in Clause 9.1 shall extend to claims for copywriter or patent infringement, libel or other defamation
9.3 The Client shall indemnify the Consultant in respect of all actions, suits, claims, demands, charges or expenses in connection with any breach of the Client’s warranties set out in Clause 4 of these terms and conditions
9.4 This Clause 9 shall survive termination of the Contract
10. LIMITED LIABILITY
10.1 The Consultant’s maximum aggregate liability under these terms and conditions whether in contract, tort (including negligence to the extent permitted by law) or otherwise will in no circumstances exceed the total remuneration paid to the Consultant by the Client during the previous 12 months
10.2 The Consultant will not be liable for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind whatsoever and whether caused by tort (including negligence) breach of contract or otherwise, whether such loss or damage is foreseeable, forseen or known
10.3 This Clause 10 shall survive termination of the Contract
11. TERMINATION
11.1 Without limiting its other rights or remedies, the Consultant may terminate the Contract with immediate effect by giving written notice to the Client if
11.1.1 the Client commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 5 Business Days after receipt of the notice in writing of breach;
11.1.2 the Client (being a company) passes a resolution of winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect;
11.1.3 the Client (being a partnership or other unincorporated association) is dissolved or (being a person) dies;
11.1.4 the Client becomes or is declared insolvent or convenes a meeting of or makes or proposed to make any arrangement or composition with its creditors;
11.1.5 the Client has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets or
11.1.6 the Client ceases, or threatens to cease, to carry on business
11.2 Where the Contract is terminated in accordance with the provisions of Clause
11.1 or Clause 14.3 the Client will
11.2.1 pay immediately all outstanding sums due to the Consultant
11.2.2 pay immediately any invoices submitted by the Consultant for fees due under Clause 5
11.2.3 pay immediately any invoices submitted by the Consultant for expenses due under Clause 6
11.3 Where the Contract is terminated in accordance with the provisions of Clause 3.1 the Client shall pay all fees and expenses incurred during the period of notice at the times specified in accordance with these terms and conditions
11.4 The accrued the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry and any clauses which expressly or by implication have effect after termination shall continue in full force and effect
12. SEVERANCE
In the event that any or any part of these terms and conditions shall be determined by any competent authority to be invalid, unlawful, or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
13. RIGHTS OF THIRD PARTIES
A party who is not party to these Terms of Business has no right under the Contracts (Right of Third Parties) Act 1999 to enforce any term of these Terms of Business, but this does not affect any right or remedy of a third party that exists or is available apart from that Act.
14. FORCE MAJEURE
14.1 The Consultant shall not be under any liability if it shall be unable to carry out any provision of the Contract by reason of a Force Majeure event
14.2 The Consultant shall promptly notify the Client in writing when such circumstances cause a delay or failure in performance and when they cease to do so
14.3 If such circumstances continue for a continuous period of two months the Client may terminate the Contract by written notice to the Consultant
15 NO PARTNERSHIP
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
16. GOVERNING LAW AND JURISDICTION
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales