Terms and conditions for the supply of services

1. Interpretation

In these Conditions:
“Agreement” means the agreement for the supply and acquisition of the Services;
“Brief” has the meaning given in clause 2(a);
“Client” means the recipient of the Services described in the Work Instruction Form;
“Client IPRs” means any Intellectual Property Rights in work created or produced by BPD specifically for the Client in connection with this Agreement;
“Conditions” means the standard Terms and Conditions for the Supply of Services, as amended by BPD from time to time, set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between BPD and the Client, whether in a Work Instruction Form or otherwise;
“Expenses” means the expenses incurred by BPD in providing the Services;
“Fee” means the charge for the Services as set out in the Work Instruction Form or as otherwise agreed in writing between the parties;
“Intellectual Property Rights” or “IPRs” includes any copyright, database right, design right, registered design, or other rights of a similar nature, any patent or invention, and any trade mark, service marks or domain name;
“Media Owner” means the third party provider of any Media Space in connection with the Services;
“Media Space” means the provision by a third party of any form of advertising or promotional media or communication channel in connection with the Services;
“Services” means the services described in the Work Instruction Form or otherwise agreed in writing between the parties;
“Work Instruction Form” means the Work Instruction Form to which these Conditions are annexed;
“BPD” means Bluepost Digital Limited with registered number is 06940558 and whose registered office is at 1 Adam Street, London, WC2N 6LE;
“BPD IPRs” means any Intellectual Property Rights developed, created, written, prepared or used by BPD other than those IPRs which have been developed specifically for the Client in connection with this Agreement.

2. Services

(a) BPD has prepared the Work Instruction Form in reliance on information provided by the Client (the “Brief”). Should the Brief prove to be inaccurate or misleading in any way or should the Client change the Brief, BPD will amend the Work Instruction Form to take this into account and shall be entitled to adjust the Fee to take account of any resultant change in the Services to be provided.
(b) For the avoidance of doubt, in executing the Work Instruction Form the Client accepts that BPD’s Fee is calculated in accordance with the time BPD has spent or will spend in providing the Services to the Client. Unless specifically stated in the Work Instruction Form, BPD’s Fee is not calculated in accordance with any outcome which is intended or expected by the Client resulting from the provision of the Service.
(c) Whilst BPD acknowledges its obligation to perform the Services with reasonable skill and care, the Client understands that BPD cannot guarantee what the outcome of BPD’s provision of the Services will be, as this is beyond the direct control of BPD. The Client further acknowledges that its obligation to pay the Fee and Expenses is in no way conditional upon achievement of any outcomes or objectives set out in the Work Instruction Form.

3. Agency

(a) The Client appoints BPD as its agent for the procurement of Media Space in accordance with the Work Instruction Form. The Client shall be responsible as principal for amounts due to Media Owners for Media Space procured by BPD on its behalf.
(b) The Client’s responsibility for payment for Media Space will be discharged only upon payment by the Client to BPD or by the Client directly to the Media Owner.
(c) BPD shall have no obligation to pay Media Owners for Media Space until such time as payment has been received by BPD from the Client for the full amount due to the Media Owner in relation to the Media Space. BPD shall not be liable for any consequential costs or losses incurred by the Client arising from non-payment by the Client in relation to any Media Space which BPD has procured on behalf of the Client.
(d) BPD will inform Media Owners that it is acting as agent in procuring Media Space on behalf of the Client and will provide the Media Owner with the Client name and such other Client details as the Media Owner may require. BPD does not guarantee that Media Owners will agree to contract with it as agent for the Client and will not be liable for any consequential costs or losses incurred by the Client in the case that any Medial Owner refuses so to contract.

4. Fees and Expenses

(a) Unless specifically stated in the Work Instruction Form, the Fees for Services shall be quoted and charged on the basis of time and application of know-how. Unless stated nothing in these Conditions or the Work Instruction Form shall be construed to mean that Fees are charged for any specific outcome resulting from the provision of the Services.
(b) The Client shall pay BPD for the Services the Fee, together with any Expenses which shall be charged and invoiced at cost.
(c) The Fees, all Expenses and all other sums payable under this Agreement are exclusive of value added tax (VAT) or other applicable sales tax which shall be payable in addition at the prevailing rate, where applicable.
(d) Where any sum payable by the Client under this Agreement is to be paid in a currency other than Pounds Sterling the sum in question will be converted into the currency of payment by reference to the relevant exchange rate as set out in the Financial Times newspaper on the last day of the month in question.
(e) BPD will invoice the Client for the Fee monthly in arrears and for the Expenses monthly in arrears. Payment must be received no later than 30 days after the date of each invoice.
(f) Without prejudice to BPD’s other rights and remedies, interest at the rate of 4% per annum above the base rate of the Bank of England from time to time may be charged on any overdue amount from the due date until the date payment is received. BPD reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998, as amended
(g) If the Client fails to pay, when due, any sum payable or fails to observe any of its material obligations under this Agreement, it shall be deemed to be a material breach pursuant to clause 10. In such case BPD may (without limiting any other right or remedy) withhold performance of all Services to the Client during the 30 day period set out in clause 10(d)(ii), and will resume work immediately once the Client’s payment is received into BPD’s account. If, after that 30 day period, the sums remain outstanding, BPD shall be entitled to terminate this Agreement in accordance with clause 10.

5. Term

This Agreement shall continue until terminated in accordance with the provisions of clause 10.

6. The Client’s Obligations

The Client shall:
(a) provide at its own expense to BPD such information, materials, equipment, machinery and assistance as BPD shall reasonably require to provide the Services;
(b) ensure that any facts or opinions or other material it provides to BPD which will be the basis of any representation or statement to be contained in any material will be accurate, complete and not misleading in any way and (where appropriate) will be authorised for public use;
(c) be responsible for the soundness and the insurance of any material, equipment and machinery it supplies to BPD in connection with this Agreement;
(d) comply with the Data Protection Act 1998 in relation to any personal data (as defined in that Act) and ensure that any personal data provided to BPD pursuant to this Agreement shall be entirely consistent with and appropriate to the Services to be provided and to the specified and lawful purposes for which the Client has notified under the Act in respect of that personal data;
(e) indemnify, and keep indemnified, BPD from and against any and all damages, losses, expenses or liability (including reasonable legal fees and costs) incurred by BPD as a result of, or in connection with, any act or omission of the Client in breach of this Agreement; or any information, representation, reports, data or material supplied prepared or specifically approved by the Client pursuant to clause 7 below.

7. Approvals and Authority

(a) BPD will submit to the Client for specific approval draft promotional materials, articles, synopses, comment pieces, copy, layout, photographs, artwork and scripts and other relevant materials.
(b) The Client’s written (which for the purposes of this clause includes email) approval of drafts and proofs (which will not be unreasonably withheld or delayed) will be deemed to be authority to BPD to publish and to contract with relevant suppliers. BPD will take all reasonable steps to comply with any requests from the Client to change, reject, or cancel any work-in-progress, provided this is possible within the scope of its contractual obligations.
(c) Where any such cancellations or amendments are requested by the Client, the Client shall reimburse BPD for any charges or expenses incurred prior to, or as a result of, the cancellations or amendments and which BPD cannot otherwise recover.

8. Copyright and Other Intellectual Property Rights

(a) Ownership of all Client IPRs shall vest in the Client on payment of the Fee and Expenses in respect of such Services. BPD will (at the cost of the Client) execute all deeds, documents and instruments as may be necessary to vest in the Client such Client IPRs. Pending receipt by BPD for the Fee and Expenses in respect of Services provided by BPD pursuant to the Agreement, BPD hereby grants to the Client a non-exclusive, royalty free licence to use the Client IPR’s in those Services solely for its own internal business purposes.
(b) The Client will not own any BPD IPRs. BPD grants to the Client a paid up, irrevocable, royalty-free, perpetual world-wide non-exclusive licence to use any BPD IPRs in the Services produced by BPD pursuant to this Agreement only to the extent necessary for the Client to be able to use and exploit those Services for the purposes of this Agreement.
(c) The Client will not own any Intellectual Property Rights developed, written or prepared by a third party and licensed to BPD. BPD will use all reasonable endeavours to procure that IPRs owned by third parties are licensed to the Client for its use and exploitation for the purposes of this Agreement.

9. Liability

(a) Subject always to clause 9(c), the liability of BPD under this Agreement, whether arising from contract, negligence or otherwise, shall be limited as follows:
(i) for loss or damage to physical property, or loss caused by gross negligence, the limit for any one or series of connected events shall be £1 million;
(ii) for any other liability, the aggregate liability in any calendar year shall be limited to a sum equivalent to the Fee payable to BPD in the 12 month period immediately preceding the relevant claim.
(b) In no circumstances shall BPD be liable to the Client, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof, (i) for any loss of profit, business, contracts, revenues or anticipated savings or (ii) for any special, indirect, incidental or consequential damage of any nature whatsoever.
(c) Nothing in this Agreement shall operate to exclude or limit BPD’s liability for death or personal injury caused by its negligence or for any other liability which cannot be excluded or limited at law.

10. Termination

(a) This Agreement may be terminated by either party at any point during the first month without notice and thereafter giving one months’ notice to the other in writing. The Fee payable during each month of the notice period shall be either the average monthly fee charged during the three months immediately prior to notice of termination being given, or the actual monthly retainer set out in the Work Instruction Form, whichever is the greater
(b) The notice period terms stated on individual BPD work instructions supersede those outlined in clause 10(a) of this agreement.
(c) On termination for whatever reason, the Client will be responsible for all Fees payable to BPD and all Expenses incurred by BPD on behalf of the Client up to the date the termination takes effect.
(d) Either party may at any time terminate this Agreement (without limiting any other remedy) with immediate effect by giving written notice of its election to do so to the other party, should the other party:
(i) have an Administrator or Receiver appointed over the whole or any part of its assets or any order made or resolution passed for its administration or winding up (unless as part of a reconstruction or amalgamation) or compounds with or convenes a meeting of its creditors or suffers anything analogous to any of the foregoing under the law of any jurisdiction; or
(ii) materially breach any provision of this Agreement and fail to remedy such breach within 30 days after receipt of notice detailing the breach and requiring it to be remedied.
(e) In the event that BPD terminates this Agreement due to non-payment of Fee by the Client pursuant to clause 4(e), the Client shall pay BPD three times the monthly Fee in lieu of notice to terminate this Agreement.
(f) On the satisfaction by the Client in full of its payment obligations BPD will give the Client all reasonable co-operation and assistance to enable the Client to take over any contracts and arrangements with third parties upon BPD being duly released from any obligations thereunder; and will transfer to Client all originals and copies of all documents and other items provided to BPD by the Client during this Agreement and any unused materials purchased on behalf of the Client.

11. Notices

Any notice to be given under this Agreement will be in writing and sent to the registered or usual business address of the appropriate party or to such other address as such party may have specified by prior written notice to the other party. Such notice shall be deemed given upon personal delivery or transmission by Email; when sent by confirmed facsimile; on the next working day following posting by special delivery; or 3 days after posting if sent by ordinary first class post.

12. Failures, Delay

Neither party will be liable for its failure or delay in performance of its obligations under this Agreement due to any circumstances beyond its reasonable control (including, without limitation, any form of industrial action).

13. Waiver

Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision.

14. Offer of Employment

Each party hereby agrees not to induce any employee or contractor of the other to leave the other’s employment or contract for services of any kind to such persons at any time during the period of this Agreement or within twelve months after its termination howsoever arising. Should either party recruit a member of staff from the other party, the recruiting party shall pay to the other party a sum by way of liquidated damages representing four (4) times the monthly salary of the individual in question (which amount shall be calculated by reference to the current day rate of the individual multiplied by 30).

15. Severability

If any provision of this Agreement is declared by any judicial or other competent authority to be unenforceable the remaining provisions of this Agreement shall remain in full force and effect.

16. Entire Agreement

(a) These Conditions together with the Work Instruction Form constitutes the entire Agreement between BPD and the Client with respect to the Services and supersedes all previous oral or written undertakings and agreements which may have subsisted in relation to its subject matter.  All other terms and conditions, express or implied, by statute or otherwise are excluded to the fullest extent permitted by law. Additions to or modifications of this Agreement will only be effective if in writing and signed by a duly authorised representative of the parties.
(b) BPD shall, if requested by the Client, endeavour to quote any purchase order number provided by the Client on its invoices. However the absence of any such purchase order number does not in any way affect the Client’s obligation to pay sums due under this Agreement. Any terms and conditions contained in any purchase order are specifically excluded from this Agreement.

17. Rights of Third Parties

For the avoidance of doubt nothing in this Agreement shall confer on any third party any benefit or the right to enforce any term of this Agreement. The provisions of the Contacts (Rights of Third Parties) Act 1999 shall not apply to any part of this Agreement.

18. Authority

The Client warrants that the person signing this Agreement on its behalf is duly authorised to do so and that the Client is acting on its own behalf and not for the benefit of another person.

19. Assignment

This Agreement is personal to the Client, who shall not, without BPD’s prior written consent, transfer, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.

20. Governing Law

This Agreement will be governed by and construed in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English Courts.