Framework Agreement
These General Terms and Conditions apply to the provision of services by CultureLab to Client as set out in a Scope of Work. It is hereby agreed as follows:
- Definitions
- Certain capitalised terms are defined as set out in the applicable Scope of Work. The following terms shall have the corresponding meanings for the purposes of this Agreement:
Account means Client’s products and services that are the subject of the Services as referred to in a Scope of Work;
Advertising Regulation means any present or future applicable code of practice or adjudication of the Committee of Advertising Practice, Broadcast Committee of Advertising Practice or the Advertising Standards Authority and includes any applicable modification, extension or replacement thereof in force from time to time, together with other UK laws, statutes and regulations which are directly applicable to the Services;
Affiliate means any company, partnership or other entity which at any time directly or indirectly controls, is controlled by or is under common control with either party including as a subsidiary, parent or holding company;
Agreement means this agreement including the General Terms and Scopes of Work;
approval means approval given in accordance with clause 9.1;
Associate means a party’s employees, officers, agents, sub-contractors or authorised representatives;
Authorised Client Approver means those personnel of Client specified in the applicable Scope of Work who have the authority to contractually bind Client in all matters relating to this Agreement (and any successor notified to CultureLab);
Authorised CultureLab Approver means those personnel of CultureLab specified in the applicable Scope of Work who have the authority to contractually bind CultureLab in all matters relating to this Agreement (and any successor notified to Client);
Business Day means any day other than: (a) a Saturday, Sunday or public holiday in the UK; or (b) any day between 24 December in any year and 1 January in the immediately following year (inclusive);
Client Materials means any Data, client equipment, computer systems, software, documents, copy, Intellectual Property Rights, artwork, logos and any other materials or information owned by or licensed to Client which are provided to CultureLab and/or its Associates by or on behalf of Client;
CultureLab Materials means those Materials specifically created by CultureLab for the purposes of a Project by officers, employees or freelancers of CultureLab (including any Materials adapted, modified or derived from Client Materials), whether or not it is incorporated into Deliverables during the Term;
CultureLab Proprietary Materials means software (including all programming code in object and source code form), methodology, know-how and processes and Materials in relation to which the Intellectual Property Rights are owned by (or licensed to) CultureLab and which are: (a) in existence prior to the date on which it is intended to use them for a Project; or (b) created by or for CultureLab outside of a Project and which are intended to be reused across its business;
Data means Client’s computer data (in machine readable form);
Data Protection Legislation means: (a) the UK Data Protection Act 2028; (b) in EU countries, the EC Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data (95/46/EC) and all local laws or regulations giving effect to this Directive; and (c) in non-EU countries, any similar or equivalent laws, regulations or rules relating to information or data about individuals.
Deliverables means the advertising, creative and other materials which are to be provided by CultureLab as specified in a Scope of Work, including CultureLab Materials, Third Party Materials and CultureLab Proprietary Materials where applicable;
Expenses means reasonable travelling, hotel, subsistence and other expenses incurred by CultureLab in connection with the supply of Services and Deliverables, provided that such Expenses have either received Client’s prior written approval or where applicable are in accordance with any expenses policies which have been supplied to CultureLab and set out in the applicable agreed Scope of Work;
Fees means CultureLab fees for a Project as set out in the applicable Scope of Work or otherwise agreed in writing;
Intellectual Property Rights means the following rights, wherever in the world enforceable, including all reversions and renewals and all applications for registration: (a) any patents or patent applications; (b) any trade marks (whether or not registered); (c) inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; (d) copyright or design rights (whether registered or unregistered); (e) database rights; (f) performer’s property rights as described in Part II, Chapter X of the Copyright Designs and Patents Act 1988 and any similar rights of performers anywhere in the world; (g) any goodwill in any trade or service name, trading style or get-up; and (h) any and all other intellectual or proprietary rights.
Losses means losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses (including reasonable legal and other professional expenses), subject to clause 15.1 and 15.3;
Materials means any artwork, copy, models, designs, photographs, commercial, feature film, character, music, voice over, sound recording, performance, book, painting, logo, or any other material protected by Intellectual Property Rights, but not including any software;
Moral Rights means all rights described in Part I, Chapter IV of the Copyright Designs and Patents act 1988 and any similar rights of authors anywhere in the world;
Project means any project(s) agreed between the parties from time to time under which CultureLab is to perform Services and supply Deliverables to Client, as more fully described in this Agreement and the applicable Scope of Work;
Project Term means the period during which the Services for each Project will be provided between the Project Commencement Date and the Scheduled Completion Date;
Rate Card means CultureLab’s rate card (if applicable) set out in the applicable Scope of Work;
Scope of Work means one or more documents as agreed and signed by the parties from time to time containing a description of the relevant Project;
Services means the Services to be supplied by CultureLab under this Agreement as set out in the relevant Scope of Work, which includes the provision of Deliverables;
Special Terms means any terms specifically designated as varying these General Terms or the terms of any schedule, as set out in the applicable Scope of Work.
Term means the period commencing on the Effective Date and ending on the effective date of termination of this Agreement in accordance with clause 19;
Third Party Costs has the meaning set out in clause 12.1;
Third Party Materials means those Materials which are either commissioned by CultureLab from third parties during the Term and incorporated into the Deliverables, or which have been created by a third party and which are in existence at the time it is desired to make use of them for inclusion in the Deliverables, but which excludes software which is owned or licensed by a third party.
- Certain capitalised terms are defined as set out in the applicable Scope of Work. The following terms shall have the corresponding meanings for the purposes of this Agreement:
- Appointment & Scope of Works
- During the Term, CultureLab shall perform the Services and (where relevant) shall supply the Deliverables to Client in the Territory in relation to the Accounts in accordance with agreed Scopes of Work.
- The parties may agree new Projects from time to time by agreeing a new Scope of Work in writing. Once a Scope of Work has the signature of both the Authorised CultureLab Approver and Authorised Client Approver, such Scope of Work shall automatically form part of this Agreement and be subject to its terms.
- A Scope of Work may include one or more schedules which incorporate additions and amendments to these General Terms to reflect the different types of Services to be provided for the relevant Project. Any such schedules shall form part of this Agreement only for the duration of the relevant Project set out in the Scope of Work.
- Term
- This Agreement shall commence on the Effective Date of the first Scope of Work entered into between the parties and shall continue until terminated in accordance with clause 19.
- Each Project shall commence on the Project Commencement Date and shall continue until the Scheduled Completion Date, subject to earlier termination in accordance with the terms of clause 19.
- Client’s Obligations
- Client will: (a) give CultureLab full and clear instructions in a timely manner as to its requirements for the Services and Deliverables to be included in a Scope of Work, including full details of the dates by which each stage of the proposed Services and Deliverables are to commence and finish; (b) ensure that the terms of each Scope of Work are complete and accurate; (c) co-operate with CultureLab in all matters relating to the Services. CultureLab shall be entitled to rely on any Scopes or decisions made, or information provided by Client whether or not such Scopes or decisions are made orally, in writing or are contained in a Scope of Work; (d) promptly review any such materials or items and either approve or provide reasonable feedback to CultureLab on any matters that Client considers may cause the Deliverables to be inconsistent with any part of the specifications in any material respect either in accordance with any specific timescales for such approvals or feedback set out in the Scope of Works or otherwise within such period as CultureLab may reasonably require. Client acknowledges that any delay in providing any such approval or feedback is likely to cause delays to the timetable during which the Services may be provided and may lead to increases in the Fees. Client accepts responsibility for final approval and checking of any Deliverables before they are used to ensure compliance with the specifications, this Agreement and the relevant Scope of Work; (e) provide to CultureLab in such format as may be agreed or be requested by us such documents, records and/or other information (on whatever medium stored) and access to such persons as may from time to time be employed or engaged to provide any services to Client as CultureLab may from time to time reasonably require in order to assist CultureLab in providing the Services; (f) give CultureLab clear briefings and ensure that all the facts given about the Accounts are accurate and shall ensure that its other suppliers and agencies act in willing co-operation with CultureLab; (g) maintain all necessary licences, permissions and consents which may be required for the Services; (h) promptly inform CultureLab if Client considers that any Deliverables submitted to Client by CultureLab for approval are false or misleading or in any way contrary to law or applicable Advertising Regulation; (i) will promptly supply to CultureLab (at no charge) any Client Materials reasonably required by CultureLab or otherwise necessary to provide the Services and Deliverables and shall ensure that it has all rights and licences in place to enable use by CultureLab of all Client Materials; and (i) promptly settle invoices in accordance with the terms of clause 11.
- Client acknowledges that CultureLab’s ability to provide the Services is dependent upon the full and timely cooperation of Client as well as the accuracy and completeness of any instructions, information or data that is provided to CultureLab (including any such items contained within any Client Materials).
- If Client considers any Services or Deliverables have not been provided in compliance with the Scope of Work or otherwise in accordance with this Agreement, Client must notify CultureLab of that fact within one week of the date on which those Services or Deliverables have been delivered. If Client does not so notify CultureLab within this period then such Services or Deliverables shall be deemed to have been provided in compliance with this Agreement and the Scope of Work. If CultureLab make any reasonable adjustments to the Services or the Deliverables pursuant to this Clause, Client may, within one week of such adjustments being made, submit feedback in relation thereto and CultureLab shall make further adjustments if so requested. Any subsequent adjustments or changes to the Services and/or the Deliverables shall be charged at CultureLab’s then applicable standard rates.
- If Client does not fulfil its obligations under or in connection with this Agreement (including its payment obligations), then to the extent that such failure prevents CultureLab from performing any Services and/or providing any Deliverables in accordance with this Agreement, CultureLab will be relieved of its obligations to Client, and CultureLab shall not be liable for any Losses incurred by Client as a result of any such failure.
- Client Warranties
- Client warrants and undertakes that: (a) it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party; (b) Client Materials will not, when used in accordance with this Agreement and any written instructions given by Client, infringe third party copyright; (c) to the best of its knowledge and belief, Client Materials will comply with all applicable laws and regulations including all Advertising Regulations; and (d) Client Materials are accurate and complete in all material respects.
- Client releases CultureLab from any liability under or in connection with this Agreement and hereby indemnifies CultureLab against any Losses incurred by CultureLab to the extent that such Losses arise as a result of: (a) the Deliverables infringing third party Intellectual Property Rights, breaching Advertising Regulations or other laws and regulations, where CultureLab had previously notified Client of a specific risk that the Deliverables infringed third party Intellectual Property Rights or breached Advertising Regulations or other laws and regulations and CultureLab had obtained the prior approval of the Authorised Client Approver to use such Deliverables notwithstanding such notified risk; and (b) the incorporation of Client Materials into the Deliverables provided that CultureLab has incorporated and used such Client Materials in the Deliverables in accordance with any instructions given by Client from time to time.
- CultureLab Obligations
- CultureLab shall: (a) apply such time, attention, and reasonable skill and care as may be necessary or appropriate for its proper performance of the Services and provision of the Deliverables in accordance with the timescales set out in the applicable Scope of Work or any other delivery date(s) agreed by the parties in writing; (b) comply with all lawful and reasonable directions regarding the Services and Deliverables communicated to it from time to time by Client (provided such directions do not materially deviate from or add to the Scope of Work and any such material amendment must be agreed in accordance with clause 8.1); (c) subject to clause 8.1, take all reasonable steps to comply with requests from Client to amend, halt or cancel any plans or work in progress affecting the Services in so far as this is possible within the scope of CultureLab’s contractual arrangements with Third Parties provided that Client will be responsible for and will pay to CultureLab on demand any costs, claims or expenses incurred by CultureLab to Third Parties prior to or as a result of any such cancellation or amendment
- CultureLab Warranties
- CultureLab warrants and undertakes that: (a) it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party; (b) the personnel who perform the Services are and shall be competent and suitable, whether as to qualifications, experience or otherwise, to provide the Services; (c) subject to clause 5.2, the use of the Deliverables by Client in accordance with this Agreement and for the purposes set out in the Scope of Work will not infringe the copyright of any third party within the Territory;
- CultureLab hereby indemnifies Client against any Losses incurred by Client as a result of breach by CultureLab of its warranty and undertaking in clause 7.1.
- All warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise are hereby excluded to the fullest extent permitted by law, including any condition of satisfactory quality or fitness for a particular purpose.
- Amendments and Cancellations
- In the event that either party wishes to make any amendment to a Project, any such amendment shall be subject to the agreement of both parties in writing.
- In the event of any amendment to a Project by Client, the Fees payable to CultureLab in respect of the amended Project shall not decrease below the level of Fees that would have been payable had the Project not been amended, save with the prior written consent of CultureLab.
- Pending approval (in accordance with clause 9) of any amendments to a Project, CultureLab shall (unless otherwise agreed) continue to perform and be paid for the Services as if such change had not been requested.
- Subject to clauses 8.5, 8.6 and 19.2 Client may request CultureLab to cancel any Project or part thereof, including any plans, schedules or work in progress in respect of any Project. CultureLab will take all reasonable steps to comply with any such request provided that CultureLab is able to do so within its contractual obligations to suppliers.
- In the event of any such cancellation, Client will reimburse CultureLab for all Fees up to the date of cancellation, together with any third party charges or other expenses or costs incurred by CultureLab or to which CultureLab is committed as well as any charges or other expenses or costs imposed on CultureLab by third parties arising from the cancellation including all sums agreed to be paid by CultureLab to a production company, provided that CultureLab shall use reasonable endeavours to mitigate any such third party charges or expenses where possible.
- In addition to the above, in the event of cancellation of a Project or part thereof, including any and all plans or work in progress, by Client, Client shall pay either: (a) the cancellation fees set out in the Scope of Work to CultureLab; or, if no such cancellation fees are set out in the Scope of Work; or (b) CultureLab’s entire Fees for the Project that has been cancelled (notwithstanding the fact that the Services may not have been performed).
- Approvals and Authority
- For the purposes of this Agreement, any reference to approval to be given by Client shall mean Client giving approval by one of the following methods: (a) Client issuing a purchase order bearing the signature of an Authorised Client Approver; or (b) email from the individual business email address of an Authorised Client Approver; or (c) the signature of an Authorised Client Approver on CultureLab’s documentation.
- For the purposes of this Agreement, any reference to approval to be given by CultureLab shall mean CultureLab giving approval by one of the following methods: (a) email from the individual business email address of an Authorised CultureLab Approver; or (b) the signature of an Authorised CultureLab Approver on Client’s documentation.
- Where a party is asked to give approval under or in connection with this Agreement, such approval shall not be unreasonably withheld or delayed.
- CultureLab will seek Client’s prior approval of: (a) any estimates or quotations for any third party costs to be paid by Client; and (b) any creative treatments, including scripts, storyboards, copy, layouts, design, artwork, proposed marketing activity, and Client’s approval of such estimates and creative treatments will be deemed CultureLab’s authority to enter into contracts with relevant third parties and to prepare draft Deliverables.
- CultureLab will seek Client’s prior approval of any draft Deliverables and such approval will be deemed CultureLab’s authority to proceed with the use of the relevant Deliverables.
- In the event that Client does not approve of any matter requiring approval it shall notify CultureLab of its reasons for disapproval within 5 Business Days of CultureLab’s request. If Client does not notify CultureLab of its disapproval in accordance with this clause 9.6, it shall be deemed approved.
- In the event of any delay or failure of the Authorised Client Approver giving approvals (or disapprovals) requested under or in connection with this Agreement, CultureLab will not be liable for any resulting delays or adverse impact caused to the delivery of the Project.
- Project Management
- Unless otherwise agreed in the Scope of Work, contact reports providing each party with a written record of matters of substance discussed at meetings or in telephone conversations between the parties will be supplied by CultureLab to Client within a reasonable time frame and in any event not less than 5 Business Days after such discussions. If the subject matter of a contact report is not questioned by Client within 5 Business Days of its receipt, it will be taken to be a correct record of the meeting or telephone conversation to which it refers.
- Fees
- CultureLab will invoice Client in respect of all Fees, Expenses and Third Party Costs.
- Notwithstanding any other provision of this Agreement, Client shall be obliged to pay Fees for a Project notwithstanding that each party may not have signed the applicable Scope of Work.
- The Fees, Expenses and Third Party Costs will be invoiced in accordance with the Payment Terms set out in the applicable Scope of Work and shall be payable subject to clause 12.4.
- All sums stated in this Agreement or in any Scope of Work, quotation or estimate exclude VAT and any other applicable sales tax (unless otherwise stated) which shall also be payable by Client at the rate prevailing from time to time.
- The terms of remuneration set out in this Agreement do not cover the performance of services which are outside of a Scope of Work nor do they cover the performance of services outside the Territory. If any such services are required the terms relating to their provision together with the applicable fees will be agreed in writing by the parties.
- In the event that Client fails to make any payment in full when due to CultureLab under this Agreement, then without prejudice to its other rights and remedies under or in connection with this Agreement or otherwise in law, CultureLab shall be entitled to charge Client interest on such overdue sum at the rate of 4% above the base rate of the Bank of England in force from time to time calculated from the due date up to the date of payment.
- Client reserves the right to withhold payment of any invoice or part of an invoice where Client (acting reasonably and in good faith) has a bona fide reason to challenge the validity or accuracy of such invoice. On receipt of any such invoice Client shall: (a) immediately notify CultureLab in writing of the reason for such withholding; (b) pay the undisputed part of such invoice in accordance with clause 11.3; and (c) work promptly and in good faith with CultureLab to resolve any such dispute over the relevant invoice.
- If any payment of the Fees, Expenses or Third Party Costs is subject to tax (whether by way of direct assessment or withholding at its source), CultureLab shall be entitled to receive from Client such amounts as shall ensure that the net receipt to CultureLab of the Fees, Expenses and Third Party Costs after tax in respect of the payment is the same as it would have been were the payment not subject to such tax.
- If Client is overdue with any payment hereunder, then without prejudice to CultureLab’s other rights or remedies: (a) CultureLab shall have the right to suspend performance of the Services on 7 days’ written notice until CultureLab has received payment of the overdue amount together with any accrued interest; and (b) CultureLab shall have the right to terminate the applicable Scope of Work immediately upon 7 days’ written notice to Client.
- Where a surcharge is levied by a supplier against CultureLab due to late payment and this results from late payment by Client, Client shall immediately reimburse to CultureLab the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.
- Where a late copy charge is levied by a media owner against CultureLab due to copy being delivered late, and this does not result from CultureLab’s negligent or wilful act or omission, then Client shall immediately reimburse the amount of such late copy charge to CultureLab.
- Each party shall pay all monies which are payable by it to the other without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party.
- Third Party Services & Costs
- CultureLab will invoice Client in respect of all third party costs incurred by CultureLab on behalf of Client in performing the Services, subject to Client approving all such costs in advance in writing, including: (a) all production work required to produce the Deliverables including illustrations, film production, artwork, photography, model fees, recordings, the services of performers, animation, print and post production work and other content; and (b) all costs incurred in taking legal or other advice or searches and enquiries, as agreed between the parties from time to time (collectively defined as Third Party Costs).
- CultureLab will advise Client promptly of any changes in the estimated cost of items of Deliverables.
- The actual cost to CultureLab of Third Party Costs in respect of materials or services purchased overseas for the Deliverables may be more or less than the cost anticipated at the date when CultureLab ordered the relevant materials or services (or obtained Client’s approval for such Third Party Costs) as a result of, amongst other things, fluctuations in the rate of currency exchange. If so, CultureLab will charge Client at the prevailing rate of currency exchange in operation on the date CultureLab pays for the relevant Third Party Costs.
- In the event that any Third Party Costs require payment in advance or sooner than the Payment Terms set out in clause 11.3, CultureLab will notify Client as soon as reasonably practicable in advance and Client shall pay such costs within the period set out in the relevant invoice.
- Third Party Suppliers: Business Terms & Selection
- CultureLab enters into contracts with third party suppliers in respect of Services and Deliverables in accordance with such suppliers’ standard or individual conditions and contracts (Third Party Contracts).
- Provided that CultureLab has notified Client of any significant restrictions or contract terms contained in such Third Party Contracts: (a) Client hereby acknowledges that its right to use or otherwise benefit from any Services or Deliverables acquired under such Third Party Contracts shall be as set out in such Third Party Contracts; (b) any charges or liabilities (to the extent caused by an act or omission of Client or its Affiliates or any third party acting for or on its behalf) for which CultureLab is liable under such Third Party Contracts (including cancellation payments) shall be the responsibility of Client; and (c) Client hereby indemnifies and shall keep CultureLab indemnified against any Losses caused by any act or omission of Client which puts CultureLab in breach of any such Third Party Contracts.
- CultureLab shall provide Client with a copy of any relevant Third Party Contract if requested to do so and if authorised by the relevant third party.
- Confidentiality
- Each of the parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (Confidential Information).
- Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential.
- Confidential Information shall exclude information which: (a) at the time of receipt by the recipient is in the public domain; (a) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents; and/or (b) is lawfully received by the recipient from a third party on an unrestricted basis.
- Each of the parties undertake to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure.
- Neither party shall at any time, whether during the Term or at any time thereafter, without the prior written approval of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement.
- Each of the parties undertakes to disclose the other party’s Confidential Information only to those of its Associates to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement.
- Client acknowledges that nothing in this Agreement shall affect CultureLab’s right to use as it sees fit any general marketing or advertising intelligence gained by CultureLab in the course of its appointment.
- Neither party shall be in breach of this clause 14 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
- Each party hereby indemnifies the other party from and against all Losses arising out of or in connection with the other party’s breach of this Clause 14.
- The terms of and obligations imposed by this Clause 14 shall survive the termination of this Agreement for any reason.
- Liability
- Subject to clause 15.2 CultureLab’s maximum aggregate liability under or in connection with this Agreement (including all Scopes of Work and any indemnity contained in this Agreement), whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the total value of the Scope of Work(s) which gave rise to the liability.
- Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.
- Subject to clause 15.2 (and including for the avoidance of doubt any indemnity contained in this Agreement), in no event will either party be liable under or in connection with this Agreement for: (a) loss of actual or anticipated income or profits; (b) loss of goodwill or reputation; (c) loss of anticipated savings; (d) loss of data; or (e) any 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.
- Indemnification
- Where one party (Indemnifying Party) agrees to indemnify and keep the other party (Indemnified Party) indemnified under this Agreement, such indemnity is subject to the Indemnified Party complying with the following process in the event that a third party claim arises: (a) the Indemnified Party must promptly notify the Indemnifying Party in writing of such claim; (b) the Indemnified Party should make all reasonable efforts to mitigate their losses; (c) the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party; (d) the Indemnified Party must give the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence of the claim; (e) the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such claim as the Indemnifying Party may reasonably require at the Indemnifying Party’s cost and expense; and (f) if within 90 days after the Indemnifying Party’s receipt of notice of any such claim, the Indemnifying Party fails to take action to defend or settle such claim, the Indemnified Party may at the Indemnifying Party’s expense undertake the defence, compromise or settlement of the claim as it sees fit.
- Intellectual Property Rights
- CultureLab acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services and Deliverables) shall remain vested in Client or its licensors. Client hereby grants to CultureLab a non-exclusive licence during the applicable Project Term to use Client Materials solely for the purposes of providing the Services and Deliverables.
- Client hereby grants CultureLab a royalty free license to use in whole or in part and in conjunction with such added matter as CultureLab may determine Client Materials and/or any other Intellectual Property Rights owned by Client in connection with the provision of the Services and/or any Deliverables as is required in order to allow CultureLab to provide the Services and/or any Deliverables in accordance with this Agreement.
- Client warrants that it has the right to grant the licence referred to in Clause 17.2 and shall indemnify and keep CultureLab indemnified against any and all claims, Losses, costs, expenses and liabilities that CultureLab may suffer or incur as a result of any claim that CultureLab’s use of any of Client Materials in accordance with this Agreement infringes the rights (to include Intellectual Property Rights) or other rights of any third party.
- Subject to the remaining provisions of this clause 17 and subject to CultureLab receiving payment of all Fees attributable to CultureLab Materials, CultureLab hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in CultureLab Materials which are capable of being assigned together with the right to sue for past infringement of the Intellectual Property Rights in CultureLab Materials. If Client wishes to use the Deliverables outside of the Territory, then such use shall be subject to agreement of further fees.
- Client acknowledges that all Intellectual Property Rights in CultureLab Proprietary Materials shall be owned by and remain the property of and vested in CultureLab. Subject to CultureLab receiving payment of all Fees attributable to CultureLab Proprietary Materials licensed under this clause, CultureLab hereby grants to Client a licence to use such CultureLab Proprietary Materials as are included in the Deliverables, in the Territory, for the period of time and for the purposes set out in the Scope of Work.
- Prior to delivery of the Deliverables, CultureLab shall obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that Client can use such Third Party Materials for the purposes set out in the Scope of Work. CultureLab shall notify Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Materials, and Client hereby indemnifies and keeps CultureLab indemnified against any Losses suffered by CultureLab as a result of Client or its Affiliates breaching any such restrictions.
- CultureLab agrees, at Client’s request and expense, to take all such actions and execute all such documents as are necessary (in Client’s reasonable opinion) to enable Client to obtain, defend or enforce its rights in the Deliverables, and shall not do or fail to do any act which would or might prejudice Client’s rights under this clause 17.
- To the extent permitted by law and subject to CultureLab receiving payment of all Fees attributable to CultureLab Materials, CultureLab shall ensure that all Moral Rights in CultureLab Material included in the Deliverables are waived (or where not lawfully possible to waive Moral Rights, CultureLab agrees not to assert any Moral Rights in respect of CultureLab Materials). Subject to CultureLab receiving payment of all Fees attributable to CultureLab Materials, CultureLab shall use its reasonable endeavours to ensure that all Moral Rights in Third Party Materials are waived (or where not lawfully possible to waive Moral Rights, to procure that Moral Rights are not asserted in respect of Third Party Materials), but if CultureLab cannot obtain such waiver of (or agreement not to assert) such Moral Rights in respect of any Third Party Materials, CultureLab will notify Client and shall obtain Client’s approval prior to incorporating such Third Party Materials into the Deliverables.
- Notwithstanding any of the above and save as otherwise expressly provided for in a Scope of Work, subject to clause 14, CultureLab: (a) reserves the right to mention that CultureLab has provided the Services or produced any relevant Deliverables on CultureLab’s website or in other promotional materials and to write about or mention the work undertaken on websites, in credentials pitches, in showreels in magazine articles and/or in books. As such, Client grants CultureLab an irrevocable, non-exclusive, royalty free, perpetual, licence to use and display the Deliverables or extracts from them on our website and to refer to you and the Services we have provided in general; and (b) shall retain all know-how obtained in connection with the Services and Deliverables.
- During the Term, if CultureLab is asked to take part in a competitive pitch or other similar process for Client, then notwithstanding any of the previous provisions of this clause 17, CultureLab shall retain ownership of all Intellectual Property Rights in any Materials forming part of the pitch process, save to the extent that CultureLab is successful in such pitch and the parties agree that such Materials will be used in a Project set out in a Scope of Work in accordance with this Agreement.
- For the avoidance of doubt, CultureLab shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by Client or by a third party on Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of Client and/or its Associates.
- Client acknowledges that during the course of providing the Services, CultureLab may propose a number of ideas or strategies that Client may choose not to pursue or develop further as part of the Services (any such ideas and strategies being Declined Ideas or Strategies). It is agreed that CultureLab shall retain all rights (including Intellectual Property Rights) arising out of or in connection with any Declined Ideas or Strategies and CultureLab reserves the right to use any such Declined Ideas or Strategies with other clients.
- The terms of and obligations imposed by this clause 17 shall survive the termination of this Agreement for any reason.
- Production Services
- If the Services include the production of any audio, visual or audio-visual content or work of any nature including any film, commercial, programme or clip or the production or design of any website or application (each of the foregoing being a Production) then, unless stated otherwise in the Scope of Work, the following provisions of this Clause 18 shall apply.
- CultureLab shall: (a) manage and oversee all day to day production activities required in order to produce the Production in accordance with the specifications including any storyboarding, character design, modelling, set design and asset creation, pre-visualisation, animation, photography, lighting, compositing, rendering, grading and all other required pre-production, production and/or post-production activities; (b) employ and/or engage suitably qualified and experienced personnel (including where relevant any director, actors and crew) to produce the Production and obtain from such persons such rights to use their work (including where relevant assignments of copyright and waivers of moral rights) as may be necessary to allow you to use or exploit the Production in the manner intended; (c) make arrangements with appropriate Third Parties to ensure that where applicable any necessary: (i) filming location and/or studio space is found and useable for the purposes of producing the Production and that any necessary permits or consents required for filming at any such locations are obtained; (ii) set design is carried out and that any required props or other items (other than those to be provided by you) are available for use when needed; and (d) where any music or clips from any other programme or film are to be included within the Production, obtain any required clearances or licences from third parties which are needed in order to lawfully use such music or clips in the Production.
- Where applicable, shooting dates for the Production will be as set out in the Scope of Work or as otherwise agreed in advance of the shoot. Where any shoot is cancelled or postponed either by Client or as a result of any change being requested by Client to the specifications or due to some other request from Client that requires CultureLab to cancel or postpone the shoot, CultureLab reserve the right to charge Client additional sums in order to reimburse CultureLab for any Third Party Costs that CultureLab may incur as a result of such cancellation or postponement and a reasonable amount for any additional work that this may create for CultureLab. CultureLab reserves the right to postpone, extend or re-schedule video or photography shoots due to unfavourable weather conditions in which circumstances reasonable accommodation and related expenses for extended stays will be charged to Client.
- Once produced, CultureLab will deliver the Production to Client in the format specified in the Scope of Work (or otherwise in the format that CultureLab considers to be most appropriate). After delivery, Client will be required to provide written sign off of acceptance of the Production within the timeframe specified in the Scope of Work (or otherwise in accordance with clause 4.3). If you make any public use of the Production at any time, or if you do not notify any defects to CultureLab within one week after delivery of the Production, then Client will be deemed to have accepted the Production and CultureLab shall no longer be required to remedy, or otherwise be liable for any defects.
- Termination
- Either party may terminate this Agreement at any time without cause by giving not less than 3 months written notice to the other party
- Client may terminate or cancel a Project subject to clause 8 and payment of all Third Party Costs and Fees as referred to in clause 8 at any time.
- Either party may terminate this Agreement or any Project immediately upon written notice to the other party: (a) under clause 22.4; or (b) in the event of any material breach of this Agreement by the other party which breach is not remediable or, if remediable, is not remedied within 30 days after the service by the party not in default of a written notice on the defaulting party, specifying the nature of the breach and requiring such breach to be remedied; or (c) if the other party suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or (d) if the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal or enters into any compromise or arrangement with its creditors (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or (e) if a petition is filed, or a notice is given, or a resolution is passed or an order is made for or in connection with the winding up of that other party (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or (f) if an application is made to Court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party.
- Consequences of Termination
- Termination of a Project in accordance with the terms of this Agreement by either party shall not serve to terminate this Agreement which shall continue in full force and effect.
- Upon termination of this Agreement under clauses 19.1 and/or 19.3 all outstanding Projects shall also be terminated and the Parties shall not enter into any further Scope of Works.
- Upon termination of this Agreement or a Project for any reason: (a) Client shall pay CultureLab all Fees, Expenses and Third Party Costs due to CultureLab (in accordance with clause 8 where relevant) including during the notice period; and (b) subject to clause 20.3 each party shall on the reasonable request of the other party promptly deliver or dispose of any and all materials and property belonging or relating to the other party (including all Confidential Information) and all copies of the same, which are then in its possession, custody or control and which relate to all affected Projects, and shall on the request of the other party certify in writing that the same has been done.
- If prior to termination of the Agreement, CultureLab has (at the request of Client) prepared detailed plans or proposals for future Deliverables in respect of which CultureLab has not been paid, CultureLab shall be entitled to receive remuneration from Client based on CultureLab’s time spent preparing such plans or proposals and the Rate Card.
- Provisions of this Agreement which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination shall remain in full force and effect notwithstanding termination of this Agreement. Notwithstanding the generality of the foregoing, clauses 5, 7, 14, 15, 17, 20, 21, 23, 25, 29 and 30 shall survive termination of this Agreement.
- Non-Solicitation
- During the Term and for a further period of 6 months after its termination, neither party shall (except with the prior written approval of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party either in the provision or receipt of any Services or Deliverables, other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.
- Force Majeure
- Neither party shall be liable for any delay in performing or failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any act, event, non-happening, omission or accident beyond its reasonable control (a Force Majeure Event).
- Force Majeure Events shall include but not be limited to the following events affecting either party or its Associates: (a) strikes, lock-outs or other industrial action (other than strikes, lock-outs or other industrial action of any Associates of the party seeking to rely on the Force Majeure Event); (b) civil commotion, riot, invasion, war (whether declared or not), terrorism, or threat of or preparation for war or terrorist attack; (c) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster; (d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and/or (e) compliance with any law or governmental order, rule, regulation or direction.
- The party whose performance is affected by a Force Majeure Event shall, as soon as reasonably practicable after becoming aware of the Force Majeure Event, provide a written notice to the other party, giving details of the Force Majeure Event, its likely duration and the manner and extent to which its obligations are likely to be prevented or delayed.
- If any Force Majeure Event occurs, the date(s) for performance of the affected obligation(s) shall be postponed for so long as is made necessary by the Force Majeure Event, provided that if any Force Majeure Event continues for a period of or exceeding 3 months, the non-affected party shall have the right to terminate this Agreement immediately on written notice to the affected party. Each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.
- If any production of the Deliverables is cancelled, delayed or disrupted due to an act or threatened act of terrorism or military action: (a) CultureLab shall use its reasonable endeavours to recover any Third Party Costs relating to the cancelled, delayed or disrupted Deliverables and will account to Client for any such Third Party Costs it is able to recover; and (b) Client will be liable to CultureLab and will reimburse CultureLab for any Third Party Costs relating to the cancelled, delayed or disrupted Deliverables which CultureLab is not able to recover or which CultureLab is committed to pay, as well as any Losses suffered by CultureLab as a result of such act or threatened act of terrorism or military action.
- Notices
- A notice given to a party under or in connection with this Agreement shall be by email to the email address of each of the parties provided in the relevant Scope of Work(s).
- A notice will be deemed to be delivered when received by the other party. This clause does not apply to the service of any proceedings or other documents in any legal action or other method of dispute resolution.
- Assignment and Sub-Contracting
- CultureLab shall be entitled to sub-contract its performance of the Services and/or Deliverables provided that any sub-contracting shall not relieve CultureLab from its obligations to Client under this Agreement
- Neither party may assign, transfer or charge or otherwise dispose of this Agreement or any of its rights or obligations arising hereunder without the prior written approval of the other party.
- Third Party Rights
- A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
- Data Protection
- Each party shall comply with any applicable Data Protection Legislation and for the purposes of this clause, personal data and process shall have the meanings given under Data Protection Legislation.
- Client warrants and undertakes that it has all necessary rights to provide personal data to CultureLab and to require CultureLab to process personal data on its behalf.
- Anti-Bribery
- Both parties: (a) shall comply with the Bribery Act 2010 and any guidance issued by any governmental department relating to such legislation (Bribery Act); (b) shall not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the Bribery Act if such activity, practice or conduct had been carried out in the UK; (c) shall maintain in place throughout the Term (and enforce where appropriate) its own policies and procedures to ensure compliance with the Bribery Act; and (d) shall promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement;
- General
- The failure of either party to enforce or exercise at any time any term or any right under this Agreement does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect that party’s later right to enforce or to exercise it.
- If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
- This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties acknowledges and agrees that: (a) by entering into this Agreement it has not relied on, and shall have no remedy in respect of, any Scope, representation, warranty or understanding other than the Scopes, representations, warranties and understandings expressly set out in this Agreement; and (b) its only remedies in connection with any Scopes, representations, warranties and understandings expressly set out in this Agreement shall be for breach of contract as provided in this Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.
- No modification or variation of this Agreement shall be valid unless it is in writing and signed by each of the parties to this Agreement. Unless expressly set out in this Agreement, no modification or variation of this Agreement shall: (a) be valid if made by email; (b) be construed as a general waiver of any provisions of this Agreement; or (c) affect any rights, obligations or liabilities under this Agreement which have already accrued up to the date of such modification or waiver. The rights and obligations of the parties under this Agreement shall remain in full force and effect, except and only to the extent that they are so modified or varied.
- Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
- Governing Law and Jurisdiction
- This Agreement (including any non-contractual disputes) shall be governed by and construed in accordance with the laws of England and Wales.
- Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute between them arising under or in connection with this Agreement (save in respect of enforcement of judgments where their jurisdiction shall be non-exclusive).