1. SCOPE OF THIS AGREEMENT
1.1 This Agreement governs all purchases of goods or services by you (”the Client”) and Opticomm Media (“the Agency”) whether such purchases are initiated by electronic data interchange, purchase order, or by written approval of an Agency Quotation (in each case, an ‘Order’)
2. AGENCY’S STATUS
2.1 The Agency acts in all its contracts as a principal at law, excepting the arrangement of door drop media or other distribution of direct mail, where it acts as an agent of the Client.
3. APPROVALS AND AUTHORITY
3.1 The Agency will not commence work on a project without a written brief or instruction from the Client.
3.2 The Agency will not enter into commitments with suppliers without an Order, (in the form of electronic data interchange, purchase order from the Client, or by written acceptance of an Agency quotation).
3.3 Where the Client amends its instructions, these will be confirmed back to the Client in the form of an updated quotation (or schedule). The Client may confirm these changes by signing and returning the revised quotation.
3.4 Agency invoices to the Client will reference the Agency quotation number (or Client’s purchase order number if supplied).
3.5 The Client’s approvals of proofs will be sufficient authority for the Agency to proceed to production.
4. AMENDMENTS TO WORK IN PROGRESS
4.1 In the event of any cancellation or amendment the Client may request, the Agency will take all reasonable steps to comply, provided that they can do so within their contractual obligations to their suppliers.
4.2 In the event of any such cancellation or amendment, the Client will reimburse the Agency for any charges or expenses incurred by the Agency to which it is committed. The Client will pay the Agency for all internal costs incurred by the Agency up to the point of cancellation, as well as any charges imposed on the Agency by third parties arising from the cancellation or amendment.
5. PAYMENT TERMS
5.1 The Agency has the right to invoice the Client on completion of any specific and identifiable part of an Order.
5.2 Payment terms are 30 days from the date of the relevant invoice. Late payment interest will apply at the rate of 3% above the Bank of Scotland base rate for all overdue balances.
6. VALUE ADDED TAX
6.1 The Agency will assess the VAT liability of each supply and will apply the appropriate VAT rate to services and/or printed item(s).
6.2 The Agency will structure all job quotations in order to maximise VAT relief legally and properly available.
6.3 Where the Client disputes the Agency’s assessment of VAT, the Client may ask the Agency to apply for a specific VAT ruling from HMRC.
7.1 The Agency will use reasonable care and skill in the selection and appointment of any suppliers required to deliver goods and services under this Agreement.
7.2 The Client consents to the Agency sub-contracting within its roster of approved suppliers, but all such sub-contractors shall be bound by the terms and conditions of this Agreement.
8.1 The Agency hereby agrees to treat as secret and confidential and not at any time for any reason to disclose to any person, or otherwise make use of, or permit to be made use of, any information relating to the Client’s business affairs or finances where such knowledge or information was received during the Term of the Agreement.
8.2 The obligations of confidence referred to in clause 8.1 shall not apply to any confidential information which:
8.2.1 is in the possession of and is at the free disposal of the Agency or is published or is otherwise in the public domain prior to the receipt of such information by the Agency; or
8.2.2 is or becomes publicly available on a non-confidential basis through no fault of the Agency; or
8.2.3 is received in good faith by the Agency from a third party who on reasonable enquiry by the Agency claims to have no obligations of confidence to the Client in respect of it and imposes no obligations of confidence upon the Agency.
8.2.4 is required to be disclosed by law
9.1 The Agency hereby warrants to the Client that:
9.1.1 All goods and services are fit for purpose, conform to the specifications agreed by the Client, or supplied by the Client, to quality levels and tolerances agreed with the Client, or in absence of such agreement, to accepted trade standards.
9.1.2 it shall do nothing to bring the name or reputation of the Client into disrepute in any way whatsoever;
9.1.3 it shall provide each of its services to the Client with reasonable care and skill.
9.1.4 The Agency undertakes to comply in all respects with the DPA 1998 in relation to material supplied to it by the Client, will only process data on the Client’s instructions and will keep all personal data secure in line with the Seventh Principle of the DPA 1998. In the event that the Agency becomes aware of any breach or possible breach of the Act it will inform the Client as soon as possible.
9.2 The Client warrants that any data supplied to the Agency for use in any marketing campaigns has been appropriately obtained and registered under the DPA 1998.
9.3 Unless otherwise specifically agreed by the parties in writing, the Agency shall not be responsible for checking the property or data received from, or on behalf of, the Client and shall be entitled to assume that such property or data meets the Client’s requirements in all respects.
9.4 The Agency shall use all reasonable care and skill in the execution of each order from the Client under this Agreement which involves data entry or data processing, but the Agency is unable to guarantee total accuracy in relation thereto.
9.5 Where the Agency provides space on its file transfer system (FTP site) for the client, it is the responsibility of the client to distribute the access details within the client’s organisation as required. It is also the responsibility of the client to ensure that access details to the FTP site are only available to authorised client personnel. It is the client’s responsibility to submit a change request to the agency to amend access details where the client suspects any possible security breach.
10.1 Subject to Clause 11, the Client will indemnify and keep indemnified the Agency against all reasonable costs, expenses, damages or losses suffered by or payable by the Agency arising from:
10.1.1 any claim that the Agency has infringed the intellectual property rights of any third party as a result of any information or data supplied by the Client pursuant to this Agreement;
10.1.2 any claim that the Agency has infringed the DPA 1998 as a result of any act or omission of the Client, or use of information or data supplied by the Client, pursuant to this Agreement.
10.2 Subject to Clause 11, the Agency will indemnify and keep indemnified the Client against all costs, expenses, damages or losses suffered by or payable by the Client arising from:
10.2.1 any claim that the Client has infringed the intellectual property rights of any third party as a result of any information or data supplied by the Agency pursuant to this Agreement;
10.2.2 any claim that the Client has infringed the DPA 1998 as a result of any act or omission of the Agency, or use of information or data supplied by the Agency, pursuant to this Agreement.
11. LIMITATION OF LIABILITY
11.1 Nothing in this Agreement shall exclude or in any way limit the Agency’s liability for fraud, or for death or personal injury caused by its negligence. Subject to this but including any liability arising under any indemnity under this Agreement:
11.1.1 The 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 total remuneration payable to the Agency specified in the Order.
11.1.2 The Agency will not be liable under this Agreement for any loss of actual or anticipated income or profits, loss of contracts, or for any special, 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.
11.1.3 The Agency will not be liable for any delay in posting or delivery in relation to this Agreement, provided always that there is no default or negligence on the part of the Agency in relation to such delay.
12. FORCE MAJEURE
12.1 Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement due to unforeseen circumstances beyond its reasonable control. Some examples of unforeseen circumstances (but not an exhaustive list) are war, riot, explosion, abnormal weather, an act of God, fire, flood, strikes, lock-out, government action or regulation (UK or otherwise), accidents, or the failure of the Client to provide information, materials or facilities.
13.1 Any claim by the Client that the products or services do not meet the agreed specification (as described in either a quotation or a Project Specification document) shall be notified to the Agency within 7 days of delivery. Where the defect is not apparent on reasonable inspection, the Agency shall be notified as soon as practicable following the discovery of the defect. The Agency will in the first instance make good and resupply as soon as reasonably possible.
13.3 In the event that there is disagreement between the Agency and the Client over whether the products or services supplied meets the agreed specification the dispute will be referred to an independent arbitrator acceptable to both parties, whose decision shall be final.
14 OWNERSHIP AND RISK
14.1 Ownership of any products or services supplied under this Agreement shall remain with the Agency until the Client has paid the Agency in full.
14.2 Risk in any goods supplied under this Agreement will pass to the Client when such goods are delivered to the Client (or a third party nominated by the Client in writing).
15.1 Neither party shall assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it, without the prior written consent of the other party.
16. ENTIRE AGREEMENT
16.1 These Terms and Conditions constitutes the entire Agreement and understanding of the parties and supersedes any terms and conditions contained in a Client’s Order, or which are referred to by the Client in correspondence and negotiations.
16.2 No variation of this Agreement shall be valid unless it is in writing and signed by a director of the Agency.