General Terms and Conditions
Although every care is taken to ensure that all information on the 26 Marketing website is accurate and up to date, 26 Marketing cannot accept any responsibility for mistakes or omissions. Detailed specialist advice should be obtained before taking or refraining from any action as a result of the comments made on this website, which are only intended as a brief introduction to the particular subject. We may change the content at any time without notice.
Nothing on this website constitutes or shall constitute in whole or in part, an offer or a contract or part thereof, and 26 Marketing has no authority to make or enter into any such offer or contract.
None of the statements contained in the site are to be relied on as a statement or representation of fact or warranty on any matter whatsoever, and intending purchasers must satisfy themselves by whatever means as to the correctness of any statements made within the site.
MEDIA PLANNING AND BUYING TERMS & CONDITIONS
1. Legal Status
We act in all our contracts as a principal at law.
2. Duration and Scope of Agreement
2.1) These Terms & Conditions will remain in force unless and until varied in Writing in accordance with clause 11 below.
2.2) All Orders placed by You and accepted by Us will be separate Contracts subject to the terms of these Terms & Conditions.
2.3) Any amendments to a Media Schedule agreed between You and Us will be treated as an amendment to the original Order and Contract and not a new Contract.
2.4) Any services provided by Us outside our Media Buying Service will be separately governed by our standard Client Services Terms & Conditions.
3. Terms of Payment
3.1) Our settlement terms are cleared funds in our account by bankers automated clearing (BACS) by 2 working days following the Due Date.
3.2) Failure to settle within 5 days of the Due Date entitles Us to impose an immediate 3 per cent surcharge followed by a 2 per cent surcharge in respect of each succeeding month before settlement.
3.3) No rebate of any commission paid by the Media Owner to Us will be due to You, unless otherwise agreed in the terms of instruction
3.4) Where an invoice remains unpaid for more than three months, we reserve the right to cancel forthwith, without prejudice to any outstanding liabilities, any subsisting Contracts relating to Your Media Activity by giving written notice to You to that effect. We reserve the right to charge a fee for work in progress and any losses suffered by Us as a result of such cancellation.
3.5) Cancellation of a Contract under clause 3.4) will also automatically cancel any media buying services agreement or media buying services contracts with Us.
3.6) You acknowledge and accept that payments may have to be made in advance of Us making bookings and purchasing media placements on behalf of You.
3.7) You 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. You 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 You giving notice to Us shall be referred to a mutually agreed expert for determination.
Late payment on any account may result in credit limits and or your credit status being withdrawn immediately on future activity.
4. Approvals and Authority
4.1) After receiving Your request for a campaign, We will submit to You for specific approval:
i) Media schedules for Media Activity; and
ii) Estimates for the cost of the various other items which may be involved.
4.2) Your approval of Media Schedules (with estimates) will be Our authority to make production contracts for Media Activity under the terms and conditions required by Media Owners. We will notify You of any changes in the rates or conditions of Media Owners of which We are notified and which affect Your Contract.
4.3) Where time is of the essence for the delivery of Media Activity you must specify this in your approval of the Media Schedule.
5. Cancellation and Amendments
5.1) You may request Us in Writing to extend, change, reject, cancel or stop any and all plans, schedules or work in progress, and We shall take all reasonable steps to comply, provided that We can do so within Our contractual obligations to Media Owners.
5.2) Notwithstanding any of the above, you shall remain responsible for any and all associated costs, including, without limitation, the Fee and You will reimburse Us for any reasonable charges or expenses incurred by Us as a direct or indirect result of any such extension, change, rejection, cancellation or stopping.
6. Limitation of Liability
6.1) Notwithstanding anything else to the contrary in these Terms & Conditions, We do not exclude or limit Our liability (even if any other term would otherwise suggest this may be the case) for death or personal injury caused by Our or Our employees’ negligence or for fraudulent misrepresentation.
6.2) If, due directly or indirectly to war, terrorist action or threatened action, hostilities, strikes, industrial action short of a strike, lock-outs, accident, civil commotion, fire, epidemic, blockage, import or export embargo, natural catastrophe, Act of God or any other matter of similar nature affecting Us, outside suppliers, Media Owners or other relevant parties, We fail to carry out the service contemplated by the Contract (or any part there of) such failure shall not constitute a breach of the Contract and We shall not be liable to any manner howsoever for any costs, expenses, loss or damage which may be incurred by You directly or indirectly as a result of such failure.
6.3) We will not be liable for any indirect or consequential loss (including loss of profits) to You or for any loss to You arising from claims of whatever nature by third parties.
6.4) We have no responsibility for the quality of artwork, reproduction or quality of the fulfilment of the Media Activity.
6.5) We have no responsibility for the failure in delivery of the Media Activity caused by the late or incorrect delivery of Creative Material whether or not this is the fault of You or the Client’s Agent.
6.6) We have no responsibility for the success of the Media Activity.
6.7) We will use our best endeavour to place an order for Media Activity with the Media Owner in accordance with the Media Schedule, but, even if time is stated to be of the essence, should the Media Schedule not be completed to time or specification, Clause 6.3 will still be applicable.
6.8) We will take all reasonable precautions to safeguard Your property entrusted to Our care, but We will not be responsible in any manner howsoever, for its loss, damage, destruction or unauthorised use except where the same is the direct result of Our negligence or wilful default.
6.9) Any claims against Us arising as a result of damage, delay or loss of goods in transit must be submitted in writing to Us and the carrier so as to reach Us and the carrier within three days of delivery and claims for non-delivery within twenty-eight days of despatch of the goods. All other claims must be made within ten days of delivery.
6.10) Subject to clause 6.1 above, Our maximum aggregate liability under or in connection with any Contract under these Terms & Conditions shall not exceed the fees paid by You to Us in respect of that Contract.
6.11) 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. Indemnities
7.1) You will fully and effectually indemnify Us and keep Us so indemnified at all times against all proceedings, threatened proceedings, claims, demands, penalties, fines and civil liabilities of whatever nature (and all costs and expenses incurred in connection therewith and all costs incurred in connection with any criminal liabilities, proceedings, threatened proceedings) including, but not limited to, infringement of intellectual property rights and breaches of Advertising Standards, which may at any time be incurred by, imposed on or asserted against Us in any way relating to or arising directly or indirectly in any manner in connection with the Media Activity.
7.2) You will remain liable to pay Us for Our Media Buying Service where the Media Activity cannot be fulfilled due to any act or omission by the You or your Agent and where Our contract with the Media Owner cannot be cancelled.
7.3) The indemnity under clause 7.1 shall extend to any application by Us of clause 8.2
8. Copyright & Other Rights
8.1) Not withstanding anything else in these Terms & Conditions, We shall retain the right to use any general know-how, expertise and experience gained in providing the Media Buying Services. In addition, We shall retain ownership in all intellectual property rights in and to all underlying, pre-existing computer software tools and knowledge used in the provision of Media Buying Services for You under these Terms & Conditions (“Pre-existing Intellectual Property”) and We shall be entitled to use such Pre-existing Intellectual Property as We see fit, including, without limit, to provide services to Our other clients.
8.2) We shall be entitled to use Creative Material produced for You (whether by Us or any third party) and the subject of Media Activity placed by Us for the purpose of promoting Our own business, for example, by including the same on Our web site and/or entering into industry awards; and
8.3) We shall retain all intellectual property rights in any work produced by Us, during the provision of the services or otherwise, which is not included or incorporated into the Media Buying Services provided for You, including without limitation any work contained in a pitch or presentation made to You, whether in competition with another media company or not, in the event that You choose not to proceed with Our Media Schedule beyond concept stage.
9. Ownership, Insurance and Custody of Material
9.1) Subject to Clause 6.8 We will keep in Our care materials entrusted to Us as Your property, but will not be required to recover positives, posters and other similar items from Media Owners and other suppliers once We have parted with them which You hereby authorises Us so to do. We shall be entitled to destroy all such material left in Our custody for more than one year, or after giving notice to You at such earlier time as We consider reasonable.
9.2) You will insure Your property when in the possession of, and when in transit between Us, the Media Owner, printers, production companies and other outside suppliers and sub-contractors.
10. Confidential Information
10.1) Save as required by law or regulatory body, We acknowledge a duty not to disclose without Your permission during or after the fulfilment of the Contract any confidential information resulting from studies or surveys commissioned and paid for by You. You, in turn, acknowledge Our right to use as We see fit any general marketing or advertising intelligence in the field of Your product or service which we have gained in the course of Our appointment.
10.2) During or after the continuance of Contracts under these Terms & Conditions, we acknowledge Our responsibility to treat in complete confidence all the marketing and sales information and statistics with which You may supply us in the course of any work for You. Reports and information submitted by Us to You shall be treated as confidential. In particular the rates We negotiate with Media Owners and with You are to be treated as confidential.
10.3) When You provide Us with personal data which is or should be subject to the Data Protection Act(s) (Personal Data) You warrant that the Personal Data is to be used for a purpose for which You have a current and valid Data Protection registration and that You have proper consent for that use from each person. You will remain the data controller as defined by the Act. In turn We undertake to only use the Personal Data for the use which You have intended and we will execute reasonable care in the security of the Personal Data which We will retain only as long as reasonably required for proper execution of the Order to which it relates. Where We pass the Personal Data to a third party for part of the fulfilment of the Order We will require a similar undertaking from the third party.
All information supplied through media schedules or reports, including analysis, media rates, sizes & positions remain the intellectual property of 26 Marketing and is submitted in good faith & the understanding that the information provided cannot be used by any third party other than if granted permission from 26 Marketing.
11. Variation, Termination and Continued Applicability
11.1) Any variation to these Terms & Conditions will only be valid if agreed in Writing and signed by a director of both parties.
11.2) Termination of a Contract may be effected at any time under and subject to Clause 2 and 5 above.
11.3) Both parties may terminate Contracts under these Terms & Conditions immediately upon notice if:
i) the other commits a material breach of these Terms & Conditions and, if remediable, such breach is not remedied within 30 days of the date of written notice sent to that party by the party not in default, specifying the nature of the breach and requiring that the same be remedied within such 30 day period; or
ii) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
iii) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is give by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 111106); or
iv) a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
v) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
vi) the other party ceases, or threatens to cease, to trade; or
vii) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001); or
viii) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
11.4) We reserve the right to terminate all Contracts under these Terms & Conditions and/or suspend performance of all services provided to You (at our absolute discretion) in the event that You fail to fulfil Your obligations to pay under 3 above.
11.5) Where there is no new Media Buying Services activity arising from Contracts under these Terms & Conditions the parties agree that all the terms of these Terms & Conditions will remain in force in respect of any Orders already placed by You.
11.6) Except for cancellation under clause 3.6, termination of these Terms & Conditions does not terminate any separate agreement or contracts for marketing services You may have with Us.
11.7) On termination of a Contract for any reason:
i) You will immediately pay to Us all of Our outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted, We may submit an invoice, which shall be payable immediately on receipt; and
ii) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
12. Assignment and Rights of Third Parties
12.1) You shall not, without Our prior Written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of Our rights or obligations under the Contract.
12.2) Contracts under these Terms & Conditions are made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and are not intended to benefit, or be enforceable by, anyone else.
13. Assignment and Rights of Third Parties
Notice given under these Terms & Conditions shall be in Writing, sent for the attention of the Owner/Finance Director at the registered office (or such other address or person as the relevant party may notify to the other party) and shall be delivered personally, or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove the envelope containing the notice was properly addressed and posted.
14. Law and Jurisdiction
All Contracts between You and Us are to be governed by and construed in accordance with English law and any litigation for enforcement or redress shall be brought in the Courts of England.
15. Definitions
15.1 The definitions shall have the following meanings:
Advertising Standards – the codes of conduct and rulings (as appropriate) of the Advertising Standards Authority, the British Code of Advertising Practice, the IBA Court of Advertising Standards and Practice for Radio and Television, the Institute of Practitioners in Advertising and the other codes of standards laid down voluntarily within the industry to ensure that all advertising placed is legal, decent, truthful and honest.
Client (You, Your) – Whoever acts as principle in commissioning Media Buying Services.
Client’s Agent – any third party engaged by the Client to participate in production of Creative Material and/or to place orders for Media Activity on the Client’s behalf.
Creative Material – whatever the Media Owner requires in fulfilling an order for Media Activity.
Due Date – Where credit terms have been agreed in writing – 25th day of the month following the month in which the Media Activity was or should have been fulfilled; otherwise 1 week prior to the Media Activity.
Media Buyer (Our, Us, We) – 26 Marketing
Media Activity – includes, but is not limited to: space in any printed or electronic publication or medium; space and airtime on any broadcast medium.
Media Owner – any third party responsible for the fulfilment of the Media Activity.
Media Buying Service – scheduling Media Activity; agreeing the price and placing orders with the Media Owners for the fulfilment of Media Activity as required by the Client.
Media Schedule – a plan of proposed purchases of Media Activity showing the media, timing and estimated cost.
Order – any order placed by You or Your Agent and accepted by Us for the delivery of Media Buying Services and fulfilment of a Media Schedule including any subsequent amendments.
Written (Writing) – written communication in English in either hard copy, or e-mail form.
MARKETING SERVICES TERMS & CONDITIONS
1. Definitions
‘Budget Proposal’ means the summary details outlining the Work to be carried out by 26 Marketing for the Client together with an estimate of the fee that 26 Marketing will charge the Client in relation thereto.
‘Client’ means the client specified in the Budget Proposal.
‘Contract’ means the agreement between the Client and 26 Marketing consisting of the Budget Proposal, the Client’s acceptance of the Budget Proposal and these terms and conditions.
‘Work’ means any work carried out by 26 Marketing for the Client (including the provision of any goods or services) pursuant to the Contract, or otherwise.
2. Application of Conditions
Except where otherwise agreed in writing between 26 Marketing and the Client, these conditions shall apply to all Marketing Services Contracts for Work between the Client and 26 Marketing.
3. Formation of the Contract
No binding contract for the performance of the Work will come into existence until 26 Marketing have received the Clients written acceptance of a Budget Proposal. 26 Marketing reserve the right to amend any Budget Proposal if it has not been accepted by the Client within 60 days of the date of the Budget Proposal. 26 Marketing will only commence the work on receipt of such acceptance.
4. Intellectual Property
All Intellectual Property Rights in any Work, including any design, drawing, illustration, document, photograph or other work created, commissioned, acquired or used by 26 Marketing in the implementation of any Contract between 26 Marketing and the Client shall be owned by and remain with 26 Marketing and/or their subcontractors or suppliers as the case may be.
5. Ownership of Material
5.1) Title in the Work, and/or any goods or materials incorporated therein shall, notwithstanding delivery to the Client, remain with 26 Marketing and shall not pass to the Client until the Client has paid in full the sum due under the Contract by the Client to 26 Marketing. During such time as title in the Work and/or goods or materials incorporated therein remains with 26 Marketing, the Client shall use all reasonable endeavours to, where possible, keep the Work and/or goods or materials incorporated therein separate from the property of the Client and in such a way as to identify them as clearly belonging to 26 Marketing and shall take all steps necessary to ensure that the Client is not deemed to be the reputed owner of the Work and/or any goods or materials incorporated therein.
5.2) The risk of damage to or destruction of any Work delivered by 26 Marketing to the Client shall pass to the Client upon delivery and the client shall ensure that such Work including any goods or materials incorporated therein is adequately insured from the time of delivery, notwithstanding that ownership of the time has not yet passed. Where the Contract includes an obligation on 26 Marketing to affix to or otherwise incorporate any goods or materials into property of the Client, the client shall adequately insure all such property including such goods and material in the joint names of the Client and 26 Marketing against all normal risks.
5.3) Where any third party creates or supplies any work in connection with the implementation of the Contract between 26 Marketing and the Client, or creates any methodology proposal, system modelling, artwork, illustration, negative, film, digital material or electronically held data, the ownership of the Work and all Intellectual Property Rights in such item shall be as agreed between 26 Marketing and such third party and the client shall have no right thereto.
5.4) Ownership of the physical media comprising any preliminary or interim Work created, commissioned or otherwise acquired by 26 Marketing in connection with the implementation of any Contract between 26 Marketing and the Client shall remain with 26 Marketing and the Client shall have no right thereto.
6. Copyright License
Where 26 Marketing has delivered any Work to the client in which property to the physical media has passed to the Client in accordance with Condition 5 above the client shall be entitled to copy, reproduce in any material form and use such physical media for such purposes or in such manner only as shall previously have been agreed in advance in writing by 26 Marketing.
7. Payment
7.1) Payment of all sums due to 26 Marketing under any Contract between 26 Marketing and the Client shall be made within 14 days of the date of invoice or within such shorter periods as may be specified under the relevant Contract and without any deduction, set-off or counterclaim whatsoever. Time of payment of the price shall be of the essence of the Contract. If payment of any sum is not made within such a period, 26 Marketing shall be entitled at its option, and without prejudice to any other rights competent to it in respect of such non payment, to take all or any of the following steps, namely:
7.2) To charge interest on the amount outstanding from the end of such 14 day period (or such shorter period as is specified under the relevant contract) until the date of actual payment at a daily rate equivalent to 2.5% over the base lending rate current from time to time of the Bank of England; and
7.3) To suspend performance of the contract under which such sum is due, and of any other contract between 26 Marketing and the Client including , in particular, to withhold delivery of any physical media, design, drawing, Illustration, document, photography or film or such works until payment in full shall have been made.
8. Time for Completion of Work
8.1) Absence of a specific written agreement to the contrary, estimated only. Any forecast or estimate as to time for completion of the Work made by 26 Marketing, or in relation to completion of any stage of the Work is given in good faith having regard to the information made available by the client, and represents 26 Marketing interpretation of the Client’s instructions. Any such estimates and confirmation or variation of them in subsequent reports and correspondence shall not be deemed in any circumstances to be undertakings, warranties or contractual conditions.
8.2) 26 Marketing shall not be liable for any loss or damage, whether direct, indirect or consequential (including loss of profit, loss of business or goodwill) which is or might be occasioned to the Client or to any person with whom he is in contractual relations arising out of or in any way due to any delay in completion of any Work, however caused.
8.3) The Client shall provide 26 Marketing with such particulars or instructions as are requested by 26 Marketing and shall respond to 26 Marketing in respect of matters submitted for its approval within such time as is reasonably necessary in order to allow Work to be completed by any estimated completion date.
9. Estimates
9.1) If the Client, at any stage prior to completion of the Work requires an alteration or addition to the Work being carried out under a particular Contract as agreed in accordance with the Budget Proposal, they shall notify 26 Marketing who shall be entitled to amend the Budget Proposal accordingly. In addition, if 26 Marketing acting reasonably, consider the additional or amended Work requires to be carried out in addition to any /or as an alternative to what is agreed in the Budget Proposal, they shall be entitled to amend the Budget Proposal accordingly.
9.2) Notice of any increases to Budget Proposals shall be given to the client by 26 Marketing in writing prior to any additional expense being incurred, and the Client shall confirm that it is satisfied for the Work to proceed on that basis.
9.3) 26 Marketing reserve the right to make a surcharge where the Client requires Work to be executed by 26 Marketing or its sub-contractors or suppliers as a matter of urgency.
10. Liability
10.1) Unless otherwise expressly excepted in writing by 26 Marketing, and only insofar as such warranties may be excluded by law, no warranty is given by 26 Marketing that any Work including without limitation any design, drawing, illustration, document, photography, film, script, digital material or other work or any other goods are fit for any particular purpose of the Client.
10.2) Any claim by the Client which is based on any defect in the design, materials, or workmanship of any Work supplied by 26 Marketing or the failure of such Work to correspond with any agreed specification (if any) or any fitness for purpose warranty provided by 26 Marketing in a particular Contract or any warranty implied by law shall be notified to 26 Marketing within seven days from the date of delivery. If the Work is refused in good faith the Client will be deemed to have made a claim within the requisite 7 day period. If delivery of the Work is not refused and the Client does not notify 26 Marketing accordingly, the Client shall not be entitled to reject the Work, and 26 Marketing shall be under no liability in respect of such defect or failure and the Client shall be bound to pay the price as if the Work had been delivered in accordance with the relevant Contract.
10.3) Where any valid claim in respect of any defect in the quality or condition of goods or the their failure to meet an agreed specification or any accepted fitness for purpose warranty is notified to 26 Marketing in accordance with paragraph b of this Condition or where the Client has acting in good faith, refused to accept delivery of the Work, 26 Marketing shall at their discretion either repair or replace the Work (or such part of it as is considered to be defective) free of charge or refund to the Client the price of the Work, (or an appropriate proportion of such price). Any such replacement of refund payment will be effected within 28 days after the Client has made, or is deemed to have made a claim in accordance with paragraph b of this Condition. If, however, 26 Marketing acting reasonably, consider that the Work or parts whereof have been returned to 26 Marketing without just cause and / or that a claim has been made by the Client under paragraph b of this Condition, without justification, the Client will be notified and if applicable the Work or parts thereof will be returned to the Client in its original state at the Client’s risk and expense.
10.4) The Client acknowledges that 26 Marketing may, in carrying out Work for the Client, be acting as an agent for the Client and / or any third parties providing goods and / or services relating to the Work. The Client will indemnify 26 Marketing for any loss or damage suffered by 26 Marketing through acting as an agent for the Client, provided that 26 Marketing were acting within the scope of their express and / or implied authority from the Client in carrying out the Work.
10.5) Subject to the provisions of Condition 8.2), 26 Marketing accept liability, in respect of any loss, or damage (excluding consequential loss, loss of profit, loss of business or goodwill) arising far a result of the provision of Work under a Contract by 26 Marketing up to an amount equal to the price paid by the Client in terms of the Contract at the date the liability arose, save where such loss or damage relates to death or personal injury in which case no limit shall apply. Except as otherwise expressly provided in these terms and conditions , and except in respect of death or personal injury caused by 26 Marketing or where required by law, 26 Marketing shall not be liable to the client by reason of any representation or any implied warranty, condition or other terms, or any duty at common law or under the express terms of any Contract , for any consequential loss or damage (including loss of profit, loss of business or goodwill), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of 26 Marketing it’s agents or otherwise) which arise out of or in connection with the supply of the Work by 26 Marketing or its use or resale by the Client, except as expressly provided in these conditions.
10.6) For the avoidance of any doubt nothing in this Clause shall exclude or omit liability for death or personal injury caused by 26 Marketing in any way.
11. Approvals, Alternations and Additions
11.1) The Client is responsible for approving the Work on presentation by 26 Marketing to the Client of completed Work. The Client shall accept the Work if it accords in all material respects with the Budget Proposal and /or any agreed specification for the Work. 26 Marketing accept no responsibility for any errors or defects inherent in the Work following acceptance of the Work by the Client. Any increased cost arising from alterations or additions to specifications or to Work previously approved shall be chargeable to the Client.
11.2) In the event that there is any dispute between the parties in relation to the Work to be carried out under any Contract including, without limitation, approval by the Client of any Work carried out by 26 Marketing, such dispute will be referred to a third-party expert to be appointed by agreement between the parties, to resolve the matter.
12. Incomplete Work
Where on the instructions of the Client any Work is created by 26 Marketing or any services are supplied by it to the Client, then 26 Marketing shall be entitled to be paid I full in respect of the creation of the Work or the supply of such services, irrespective of whether such Work or services results in the production of completed material or whether any use is made of material or services provided.
13. Sub-Contractors and Assignation
26 Marketing may employ any person, company or firm as its agent or sub-contactor to perform all or any of its obligations or duties under any Contract with the Client, or to secure the production of provision of any Work required in connection with the performance of any Contract between 26 Marketing and the Client. The Client acknowledges that 26 Marketing may, in carrying out Work for the Client, be acting as an agent for both and /or either of the Client and /or any third parties. The Client shall not be entitled to assign its rights or transfer its obligations under the Contract without the prior written consent of 26 Marketing.
14. Confidentiality
14.1) Each party shall use all reasonable precautions to safeguard information and data in its possession relating to the other’s business affairs. Access to such information and data will be restricted to employees, representatives agents or sub-contractors of both parties who require it for the purpose of implementing any Contract between 26 Marketing and the Client, or providing any Work required in connection with its implementation.
14.2) Any personal data provided by the Client to 26 Marketing which is or should be subject to the Data Protection Act(s) (Personal Data) the Client warrants that the Personal Data is to be used for a purpose for which the Client has a current and valid Data Protection registration and that the Client has proper consent for that use from each person. The Client will remain the data controller as defined by the Act. In turn 26 Marketing undertake to only use the Personal Data for the use which the Client has intended and will execute reasonable care in the security of the Personal Data which 26 Marketing will retain only as long as reasonably required for proper execution of the Order to which it relates. Where 26 Marketing passes the Personal Data to a third party for part of the fulfilment of the Order 26 Marketing will require a similar undertaking from the third party.
15. Force Majeure
Neither 26 Marketing nor it’s agents or sub-contractors shall be under any liability whatsoever to the Client for non-performance, part-performance, defective performance or delay in performance of any Contract between 26 Marketing and the Client, or the provision of any Work there under, resulting directly or indirection form any cause beyond the reasonable control of 26 Marketing including strikes, lockouts, riots acts of war, acts of God, fire, explosion , storm, flood, earthquake, failure of power supplies or transport facilities or actions or regulations of any government or local authority or systems or telecommunications failure. If the method or mode of performance contemplated or anticipated by 26 Marketing is affected by force majeure, then 26 Marketing shall be under no obligation to perform any Contract with the Client in any other way or by any other method, but may rely on the provisions of this condition to exempt it from liability for non-performance, part-performance, defective performance or delay. If as a result of force majeure performance is made more difficult or more expensive for 26 Marketing, then 26 Marketing may either decline to perform or may delay performance of any Contract with the Client and may rely on provisions of this condition to exempt it from liability or may perform such Contract in which event the additional expense of performance shall be payable by the Client.
16. Termination
In the event that:
16.1) the Client becomes apparently insolvent (with the meaning of the Bankruptcy (Scotland) Act 1985) or makes any voluntary arrangement with its creditors, or
16.2) a petition is presented or a resolution is passed to wind up the Client (other than for the purposes of reconstruction or amalgamation as a solvent company on terms approved by 26 Marketing or
16.3) a receiver is appointed over the whole or any part of the assets of the Client or an administration order is made in respect of the Client or
16.4) the Client shall otherwise cease or threaten to cease trading or
16.5) any diligence, distress, execution or other process be levied or enforced against any property of the Client; or
16.6) anything analogous to the events described above happens to the Client in any jurisdiction in the world; then, in any such event, 26 Marketing shall (without prejudice to another right or remedy available to it) be entitled to cancel any Contract between itself and the Client or suspend any further Work under any such Contract without any liability to the Client and if any goods or services have been delivered or supplied or Work carried out but not paid for the priced of such goods and services which have been delivered or supplied or Work which has been carried out but not paid for, shall become immediately due and payable, notwithstanding any pervious agreement or arrangement on the contrary.
17. Exclusion of other Terms
These terms and conditions shall prevail notwithstanding any printed or other terms and conditions contained in any order, Budget Proposal, acceptance of estimate, confirmation of Contract or as may be otherwise brought to 26 Marketing‘s notice. No agreement, representation, promise, undertaking or statement of any type shall alter, supersede or operate as a waiver of these terms and conditions.
18. Severance
The invalidity for any reason whatever of any provisions of these terms and conditions shall in no way affect the remainder of these terms and conditions, which will in all other aspects remain valid and enforceable.
19. Waiver
The fact that 26 Marketing defers giving any notice to the Client or delays in enforcement of any of its rights or remedies under these terms and conditions shall not be taken to prejudice the right of 26 Marketing to give such notice or enforce its rights or remedies at any later date whether by reason of that event of the happening of a similar event or events.
20. Law and Jurisdiction
These terms and conditions shall be governed by and interpreted in accordance with English Law.
