1.1 In consideration of the payment of the fees as set out in this Agreement and/or on the relevant media plan (“Fees”), Agency shall be the exclusive provider of various services detailed in Schedule 1 (“Services”). Agency shall deliver the Services during the Term (as defined below) in the territories listed in Schedule 1 (“Territories”). Any Client requests for changes, or additions, to the Services together with the resulting changes to Fees must be agreed in advance and in writing by the parties. Agency acts in all its contracts as a principal at law. Client acknowledges that any campaign metrics and targets agreed between the parties are estimates only.
1.2 As part of the Services, Agency may use one or more proprietary or third-party technologies (together, “Technology”) and may also purchase data, media, content and/or services through the use of such Technology or one or more technology platforms, media exchanges, demand side platforms, websites or similar networks run by companies such as Google, Facebook, Twitter or others (“Third Party Platforms”).
1.4 The Agency shall use all reasonable endeavours to promptly remove, or require a third party to remove, a Communication if so requested by Client in writing. Client is and remains fully responsible for the continued compliance of Communications with all relevant laws, rules or regulations and Agency shall not be liable in respect of any claims arising in relation to any Communications. Without prejudice to the above, Agency is at all times entitled to remove, or require a third party to remove, a Communication if it determines on reasonable grounds that such Communication is likely to result in an actual or suspected breach of this Agreement and/or relevant laws, rules or regulations.
1.5 Client acknowledges and agrees that a media vendor may, in its sole discretion, refuse to display or continue to display any of the Communications, that a Client website may be excluded from search engine or social media platform at any time at the sole discretion of the search engine or platform, and that social media platforms may be changed by third parties that may adversely affect the visibility of the Client’s social media profiles. It is acknowledged and agreed that Agency shall not be liable for such refusal, exclusion or changes.
2.1 This Agreement shall be deemed to have commenced on the Effective Date and shall continue until terminated in accordance with Clause 2.2 (the “Term”).
2.2 The Agreement will Terminate automatically upon the completion of the agreed scope of works.
3.1 In addition to the payment of the Fees, the Client will pay Agency all charges, media charges and third party costs in respect of the performance of the Services (“ Costs”) as approved by Client in the relevant media plan. Unless otherwise agreed in writing by the parties, the Fees and Third Party Costs shall be fixed and non-reconcilable but exclusive of any applicable value added tax which shall be charged in addition by the Agency. From time to time it is acknowledged that upon Agency’s request the Client may be required to pay third party costs, including but not limited to any relevant media charges directly to third party media vendors.
3.2. Agency will invoice Client in respect of the Fees and Third Party Costs and any pre-approved travel, accommodation or subsistence expenses. All amounts payable under this Agreement shall be due and payable in local currency in the Territory in which the Agency is located. 50% of the invoice total will be due before the project commences and the remaining 50% will be invoiced on completion and payable within 31 working days of the invoice date. Invoices raised in any month may include Third Party Costs or expenses for that current month plus any Third Party Costs for prior periods not already billed.
3.3 In the event of Client failing to comply with any of its payment obligations under this Agreement or Client’s credit limit is revised to a level below what Agency reasonably requires to deliver the Services, Agency reserves the right to partially or fully suspend its provision of the Services in order to discuss the revision of its terms of payment and if necessary agree for payments in advance of committing to any costs or to seek suitable guarantees from Client. If it is not possible to reach agreement on suitable revised terms, following good faith discussion between the parties, Agency will have the right of termination without liability to Client and shall remain entitled to payment of any outstanding Fees, Third Party Costs or Expenses. Agency is entitled to charge an interest at the annual rate of 3% above the base rate of the national bank in each Territory on undisputed overdue amounts due under this Agreement.
3.4 In the event that Client requests Agency to cancel or amend some/all Services in progress Client will reimburse Agency for any charges or expenses incurred by Agency to which Agency is committed and Client shall also pay Agency its remuneration covering the cancelled or amended Services, to be charged in accordance with Agency’s standard hourly rates in force from time to time.
3.5 In the event of termination, Onelink Media LTD shall be compensated for the Services performed through the date of termination in the amount of 80% of the total invoice value; and the Client shall pay all Expenses, fees, out of pocket together with any Additional Costs incurred through and up to, the date of cancellation.
3.6 The Agency will invoice the Client in the same currency that it is invoiced for the relevant Third Party Costs. The final cost to the Agency of media, materials or services purchased overseas in performing the Services may be more or less than the local currency amount originally notified to the Client for the relevant media, materials or services as a result of fluctuations in the rate of currency exchange. This exchange impact will be the difference between the local currency value of the amount actually payable by the Client versus the local currency value of the payment due to the third party. The Agency will reconcile on an annual basis the losses from fluctuations in currency values and within 60 days from the date of reconciliation the Agency shall invoice the Client in respect of any such losses payable by the Client.
4.1 Client shall be solely responsible for the preparation, content, use, production, approval or supply of any advertising material (including but not limited to designs, artwork, images, drawings, user generated content, video and sound, text links, keywords, graphical links, URL descriptions, links and keywords) together with any other data or information which the Agency is granted access to by or on behalf of the Client and/or approved by Client (“Client Materials”). Where the Agency specifically creates any materials, tools or deliverables in the provision of its Services, Agency grants to the Client a non-exclusive, royalty free licence in the Territory during the Term to use all intellectual property rights (“IPR”) in such materials, tools or deliverables, providing always the Client has complied with its payment obligations under and in accordance with this Agreement. In relation to any third party IPR incorporated and/or provided as part of the Services, unless bespoke licence terms are negotiated and communicated to the Client, it is agreed that the Client shall be granted with a licence to use such third party IPR for the purpose of utilising the Services in the Territory for the duration of the Term only, providing always the Client has complied with its payment obligations under and in accordance with this Agreement.
5.2 Client shall indemnify Agency in respect of any losses, damages, costs and expenses suffered or incurred as a result of any claim or action based on Agency’s use or possession of the Client Materials and/or Data or Client’s use of the Technology or Third Party Platforms.
Each party undertakes that, during the Term and for a period of not less than 5 years following expiry or termination of this Agreement, it will not disclose to any third party, except to its professional representatives or advisers or as may be required by law, the terms and conditions or existence of this Agreement or any confidential information (including, without limitation, systems, operations, plans, intentions, market opportunities, potential and actual customers, surveys, know-how, trade secrets, media rates and prices, financial information and business affairs) concerning the other party. This obligation of confidentiality does not preclude the Agency to use Client’s name and any non-confidential materials produced hereunder in Agency’s portfolio, on Agency’s web site, intranet, and for internal and trade purposes.
Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud or for 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 applicable law. In no event shall either party be liable for any indirect, incidental, special, or consequential damages, or damages for loss or corruption of data, loss of profits, revenue, or use, incurred by either party or any third party, whether in contract or tort, even if foreseeable, foreseen or known. Agency’s maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed the Fees paid or payable to the Agency by the Client in the preceding 12 month period.
Agency will provide Client with any available third party pass through rights and warranties to any Technology and Third Party Platforms which Agency receives. Agency disclaims all other representations, warranties, liabilities or indemnities with respect to the Services, Technology or Third Party Platforms. This Agreement and its Schedules constitute the entire agreement between the parties, and may only be amended by a written agreement by both parties. Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement caused by circumstances beyond its reasonable control, including but not limited to accidents, strikes and other industrial disputes, legislation, delays in connection with the performance of this agreement on the part of Agency’s suppliers. Neither party shall assign or, transfer this Agreement or any rights or duties hereunder without the other’s prior written consent. This Agreement shall be governed by the laws of England and the parties consent to the exclusive jurisdiction of the English Courts.
ONELINK MEDIA LTD (Company Number 12581369) Last Updated October 2022.