General Terms & Conditions
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Talon Outdoor Ltd, registered in England and Wales, company number 06347960, registered address 57 Rathbone Place, London, W1T 1JU
1.1 Partner shall at all times to (i) co-operate with Talon and approve purchases and authorizes Talon to purchase media placements and corresponding services; (ii) provide, in a timely manner, accurate and up to date information and support, as may be required; and (iii) ensure that each campaign and all deliverables and their broadcast, publication or otherwise making available to the public, in all material respects (whether delivered by Partner directly to media owners or by Talon), (a) complies with all applicable laws in the Territory and any other applicable laws, regulations, regulatory policies, guidelines or codes in each case from time to time in force, including all such guidelines and codes issued by statutory, regulatory and industry bodies such as but not limited to the CAP Code; (b) not infringe the Intellectual Property Rights or proprietary rights of any third party; and (c) not be blasphemous, defamatory, libellous, obscene, indecent or otherwise offensive or unlawful.
2. PAYMENT TERMS
2.1 In consideration of the services provided the following shall become payable: (i) Partner shall pay to Talon the fees for the services including if applicable any charges for Additional Services, as agreed in writing between the Parties. Partner acknowledges and accepts that payments may have to be in advance of Talon purchasing media placements on behalf of Partner. The Parties acknowledge the importance of cash management, and unless otherwise agreed Partner shall pay all invoices delivered by Talon within thirty (30) days of the date of the invoice to enable Talon to meet its obligations to media owners. All sums payable under this Agreement are exclusive of any VAT or other applicable sales tax. If any payment is not received from Partner by the due date, Talon will be entitled to charge interest at the base rate of the Bank of England plus 4% from time to time on the unpaid balance from the due date until payment in full is made. Partner shall raise any invoice queries in writing in good faith no later than seven (7) days after receipt of the invoice specifying the reasons for disputing the invoice. Partner shall pay all amounts not disputed on the due date. The Parties shall attempt to resolve any dispute in good faith promptly. Any dispute not resolved within 30 days of Partner giving notice to Talon shall be referred to a mutually agreed expert for determination.
2.2 If Partner cancels any media placement hereunder, provided such request is in writing Talon will use reasonable endeavours to comply with any such request. subject to contractual obligations to media owners. Notwithstanding any of the above Partner shall remain responsible for any and all associated costs including, without limitation, the Fee. In the event any such cancellation or amendment results in Talon incurring any expense or charge, Partner will reimburse Talon for any charges or expenses incurred. Talon reserves the right to cancel and rescind all arrangements and transactions under this agreement or any other agreement between Partner and Talon if Partner fails to make any payment when due.
3.1 Each Party undertakes and warrants that it: (i) is authorised to enter into this Agreement and has obtained all necessary approvals to do so; and (ii) shall comply with all applicable laws, regulations and any requirements of any regulatory, governmental or quasi-governmental body or agency when fulfilling its obligations under this Agreement.
3.2 Talon makes no warranty, express or implied warranty other than the above. In no event will Talon be liable for any loss damage or expense directly or indirectly caused by or arising out of any actual or alleged breach by Talon, Talon’s handling of any material or for any indirect incidental consequential special or exemplary damages regardless of whether it has been advised of the possibility of such damage. The aggregate liability of Talon will be limited to the amounts paid to Talon by Partner in that year. If there is an error in a campaign as published or publication is delayed or does not occur as planned, Talon will not be liable unless directly caused by its default or neglect.
3.3 Partner warrants that (i) it has all requisite rights, powers, and authority to act as the agent of the advertiser in connection with transactions under this Agreement, including, without limitation, in case Partner is an agency the rights to buy the media placement on behalf of the advertiser, (ii) all costs in connection with media placement will be paid by Partner.
4.1 Nothing in this Agreement shall limit or exclude the liability of either Party for death or personal injury caused by its negligence, or the negligence of its employees, affiliates or subcontractors (as applicable), fraud or fraudulent misrepresentation or any matter in respect of which it would be unlawful to exclude or restrict liability.
4.2 Subject to clause 4.1 and without prejudice to Partner’s indemnification obligations in this Agreement, neither Party shall under any circumstances be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, revenue, or anticipated savings or any loss that is an indirect or secondary consequence of any act or omission of the Party in question.
4.3 The total liability of Talon to Partner in respect of all other loss or damage arising under or in connection with this Agreement whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the charges due and payable to Talon by Partner for the year in which the loss arose.
4.4 Partner shall indemnify and hold harmless Talon 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 professional costs and expenses) suffered or incurred by Talon arising out of or in connection with any third-party claims or any action, adjudication or decision taken against Talon by any regulatory body, in each case directly or indirectly arising (in whole or in part) out of any breach by Partner of the terms set out herein.
4.5 If due to war, strikes, industrial action, lock outs, accidents, fire, blockades, import or export embargoes, terrorism or threats of terrorism, natural catastrophes or other obstacles such as but not limited to acts of God, war, riot, civil commotion, fire, epidemic, pandemic, warlike operations, flood or storm or any other event (“Force Majeure Event”) over which Talon has no reasonable control, Talon fails to provide the services or Additional Services in the manner and within the time required by the terms of this Agreement, Talon shall not be held responsible for any loss or damage which may be incurred by Partner as a result of such failure. Talon shall not be liable for any wasted production costs incurred in the provision of Additional Services which have been incurred as a result of a Force Majeure Event. While the Parties shall work together in good faith to mitigate any impact of a Force Majeure Event, Partner acknowledges and accepts that it will remain liable to pay the Gross Media Costs and any costs for Additional Services.
Talon shall not be liable for any delay in or omission of publication or transmission of any error in any advertisement save where the same is wholly or in part due to direct negligence or default of Talon.
5. LEGAL STATUS
Talon will act as the Partner’ agent in handling all contracts with Out-of-Home media owners and any other related party. Partner grants Talon full authority to act as agent and to create binding legal obligations on its behalf. Partner will be solely responsible for the payment of all proven and reasonable charges and costs arising out of all contracts with outdoor media owners. Talon will coordinate the payment of outdoor media owners’ invoices, Talon as, agent bears no responsibility to pay media owners in advance of receiving payment from Partner. There may be circumstances where Talon will need to act as principal at law. In such instances Talon and Partner shall agree the change in status and any applicable terms in writing in advance. Partner hereby acknowledges and agree that no obligation shall fall on Talon other than as expressly stated herein notwithstanding its role as acting as an agent of Partner.
6. CONFIDENTIALITY & PERSONAL DATA
6.1. The parties acknowledge that in the course of performing their responsibilities under this Agreement, they each may be exposed to or acquire Confidential Information as defined herein of the other party. Each party agrees (i) to hold such information in strictest confidence and in accordance with all applicable laws; (ii) to take all reasonable precautions to preserve the integrity of any Confidential Information and to prevent any corruption or loss of Confidential Information; (iii) not to copy, reproduce, sell, assign, divulge, communicate, license, market, transfer, give or otherwise disclose any/or part of such Confidential Information to third parties or use such other than as authorised herein; (iv) not to use such Confidential Information for any purposes whatsoever, without the express written consent of the other party, other than for the performance of obligations set out herein or as otherwise agreed in writing; and (v) to ensure that access to the Confidential Information is limited to those personnel who need to access the Confidential Information for the purpose of performing that party’s obligations under this Agreement and that each of those personnel is instructed to keep such information confidential. No Party shall use any other Party’s confidential information for any purpose other than to perform its obligations under this Agreement. Each party (i) must use reasonable efforts to assist the other party in identifying and preventing any unauthorised use or disclosure of the other party’s Confidential Information and to implement and maintain appropriate technical and organisational measures to protect any Confidential Information against unauthorised or unlawful access, use or disclosure, and (ii) agrees to notify the other immediately if it learns or has reason to believe there has been a breach and to reasonably cooperate with the other party in seeking injunctive relief and/or other available remedies against any such person. The confidentiality obligations of the parties set out herein do not extend to information that (i) is, as of the time of its disclosure or which after its disclosure becomes, part of the public domain through, or is otherwise learned from, a source other than the receiving party and in a manner not in violation of the disclosing party’s proprietary rights; (ii) was known to the receiving party as of the time of its disclosure; (iii) is independently developed by the receiving party without reference to or use of the disclosing party’s Confidential Information; or (iv) is required to be disclosed under a duly authorised subpoena, court order, or government authority, provided that the receiving party gives prompt notice to the disclosing party prior to such disclosure, so that the disclosing party may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, the receiving party agrees to disclose only that portion of the Confidential Information which is required by law.
6.2. If Partner provides any personal data Partner shall agrees to comply with all applicable laws relating to the collection, processing, maintenance and transfer of personal data (each as defined by applicable data protection laws).
6.3. The parties acknowledge that any breach of a party’s obligations arising under this clause 6, may give rise to irreparable damage to the other party and that such breach may be inadequately compensated by way of damages. Accordingly, either party, reasonably believing the other party to be in breach of its obligations hereunder, seek injunctive relief or other equitable remedies against such breach or threatened breach, in addition to any other legal remedies which may be available. The parties agree that the covenants contained in this clause are necessary for the protection of legitimate business interests of owners of the Confidential Information and are reasonable in scope and content.
7.1 By making a booking you agree to abide by all the terms and conditions set out herein between Talon and you. You acknowledge and accept that we Talon may change, add or remove portions of these terms and conditions. Neither Party intends to discriminate in its contracts and will not accept advertising intended to discriminate on the basis of race, gender, age or ethnicity. Any notice given under this Agreement shall be in writing, copied via email, and served to the relevant Party at its registered office or such other address and at the email address(es) as that Party may have specified to the other Party. Nothing in this Agreement shall create or be deemed to create a partnership or joint venture relationship between the Parties and neither Party shall have authority to bind the other in any way unless expressly provided otherwise in this Agreement.
7.2 Partner shall (i) not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with its rights and obligations under this Agreement without Talon’ prior written consent. Talon may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with its rights under this Agreement. This Agreement constitutes the entire agreement and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter and (ii) not to take or omit to take any action which may affect Talon’s current and/or future relationship with media owners; or cause or permit to be done anything which may cause Talon to be excluded from the current or any future process of booking media placements.
7.3 Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty that is not set out in herein. Neither party shall during the Term and for a period of 12 months after termination of this Agreement (except with the prior written consent of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away): (i) from the employment of that party, any employee of the other party who is employed or engaged in any services which are relevant to this Agreement; or (ii) any customer of the other party who is in receipt of any services which are relevant to this Agreement. For the avoidance of doubt a party shall not be in breach of this section as a result of running a national advertising campaign open to all comers and not specifically targeted at any of the staff or the customers of the other party. If any provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. Any modification to or deletion of a provision under this clause shall not affect the validity and enforceability of the rest of this Agreement. No one other than a Party to this Agreement shall have any right to enforce any of its terms.
7.4 Where there is any dispute between the Parties in relation to this Agreement, each Party shall use reasonable endeavours to resolve the dispute via meetings and/or correspondence between senior representatives for a period of no less than forty-five (45) business days before issuing legal proceedings. This Agreement, 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 the laws of England. Each Party irrevocably agrees that the courts of London, England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
7.5 This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
8.1 The definitions shall have the following meanings:
“Confidential Information” means all information, data, experiences, and inventions relating to Atlas, or the Disclosing Party, which are confidential in nature or expressed to be confidential, and manufacturing techniques, drawings, manuals, trade secrets, patents, know-how and any information concerning the this Agreement, the business or affairs, customers, clients or suppliers of the other Party or any member of its group of companies which may have or may in future come to its knowledge, together with the existence and contents of this Agreement, which are directly and/or indirectly disclosed to the Receiving Party by the Disclosing Party whether orally or in writing (or in any other form) and shall include without limitation marketing methods, proposed brand names or design, equipment etc.;
“Deliverable(s)” means all copy, layouts, artwork, storyboards, scripts, presentations, drawings, documents, charts, graphics, photographs, films and/or other materials created or produced by or on behalf of Partner for its client, on/ for out-of-home;
“Fees” means the amount payable by Partner to Talon as set out herein;
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks 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, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property 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 Owner” means any third party with whom Talon contracts or places an order either directly or indirectly for the purchase of Media Placements;
“Media Placements” means the promotional space which is purchased either directly or indirectly from third parties by Talon in connection with the provision of the out of home media buying services;
“Net Media Cost” means the actual cost of media bookings made by Talon at Partner’s request (and notified to Partner by Talon), after the deduction of VAT and/or similar sales tax; and
“Partner” means you.
In this Agreement all Schedules are incorporated into and form part of this Agreement and any reference to this Agreement will include its Schedules and annexes (if any) and any permitted variation; the use of the singular includes the plural and vice versa and a reference to one gender includes a reference to the other gender; a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form; a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns; and a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established.