Our general terms of business for any client that engages us to deliver work are as follows;
This agreement is made on the date that it is agreed for work to proceed between;
3ManFactory a company registered in England and Wales with the company number 07642302 whose registered office is 2 Riversway Business Village, Navigation Way, Preston, UK (the “Agency”)
any individual, company, or organisation engaging our services (the “Client”)
The Client has agreed to appoint the Agency to provide marketing services, and the Agency has agreed to such appointment, in accordance with the terms and conditions of this Agreement.
NOW IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 The words defined below shall have the meanings assigned to them in this agreement.
1.2 All other defined words and phrases shall have the meaning given to them when they first appear in that form.
2 APPOINTMENT AND TERM
2.1 The Client appoints the Agency to carry out and the Agency agrees to provide the Services in accordance with The Solution for the Client in the Territory in accordance with the terms and conditions of this Agreement, including any Proposal(s) prepared by the Agency and Approved by the Client in accordance with Clause 2.2.
2.2 Details of any specific Campaigns proposed by the Agency from time to time shall be set out in a Proposal in accordance with Schedule 5 which once agreed between and signed by both parties, shall be incorporated into and form part of this Agreement. Each Proposal shall set out details of the Services to be provided by the Agency in relation to the relevant Campaign.
2.3 This Agreement shall commence on the date that it is agreed for work to proceed (the “Commencement Date”) and continue for an initial period of 12 months unless otherwise specified in The Solution from the Commencement Date (the “Initial Period”), unless terminated sooner by either party in accordance with Clause 18. After that Initial Period the Agreement shall continue in full force and effect (subject to Clause 18) unless and until terminated by either party giving not less than 3 months’ notice in writing to the other party. Notice to terminate cannot expire until the Initial Period has elapsed.
3.1 The Client shall not engage any third party to provide services in the Territory during the Term that conflict with or are similar to the offering detailed by the Agency in The Solution.
3.2 Unless specifically requested by the Client, the Agency are free to work with any other company or organisation without restriction.
4 RESPONSIBILITIES OF THE AGENCY
4.1 The Agency shall perform the Services with reasonable skill and care, to a standard to be reasonably expected from a competent and professional supplier of marketing services.
4.2 The Agency agrees with the Client:
· 4.2.1 to work diligently to protect and promote the interests of the Client at all times;
· 4.2.2 to act loyally and faithfully towards the Client in all matters;
· 4.2.3 to advise the Client of all its key meetings, discussions and correspondence with representatives of the media concerning the Client; and
· 4.2.4 to co-operate where appropriate with any other agencies engaged by the Client during the Term.
4.3 When specified by the Agency, contact reports providing each party with a written record of all matters of substance discussed at meetings or in telephone conversations between the parties will be supplied by the Agency to the Client within 2 Working Days following the meeting or conversation. In such cases, if the subject matter of a contact report is not questioned by the Client within 2 Working Days of its receipt, it will be taken to be an accurate record of the meeting or telephone conversation to which it refers. Contact reports are provided at the Agency’s discretion regarding matters including but not limited it; changes in strategic direction, Agency to Client requests and requests for feedback and/or project sign off.
4.4 The Agency may appoint sub-contractors to perform any of the Services. The Agency acknowledges that such sub-contracting shall not release the Agency from any of its contractual obligations under this Agreement and the Agency shall remain fully responsible for the performance of such Services.
4.5 The Agency shall use reasonable care and skill in the selection and appointment of suppliers and the agreement of the terms and conditions of such appointment. Should the Client request, the Agency will obtain more than one quote for a particular supply and discuss these with the Client before placing an order. The Agency shall obtain the Client’s consent before commissioning services from any company in which the Agency has a financial interest, such consent not to be unreasonably withheld or delayed.
5 RESPONSIBILITIES OF THE CLIENT
5.1 The Client undertakes promptly to provide the Agency with all information, assistance and materials that the Agency requests from time to time to facilitate the proper and timely performance of the Services. In particular (but without limitation) the Client agrees to:
· 5.1.1 to manage and deliver any tasks or work required of the Client in a timely and responsible fashion;
· 5.1.2 notify the Agency of any inquiries related to the Campaign(s) from any of the media;
· 5.1.3 advise the Agency well in advance of any major events in the Client’s business such as the launch of a new product or service and/or the opening of any new premises;
· 5.1.4 to permit the Agency (by its representatives) to attend meetings, when reasonably necessary, with any advertising and/or marketing services agencies and other advisers engaged by the Client.
· 5.2 The Client warrants that:
· 5.2.1 to the best of its knowledge and belief, all information provided by it to the Agency is accurate and complete; and
· 5.2.2 that the Client is entitled to provide such information, and any photography, artwork, literature or other materials provided by or on behalf of the Client for use by the Agency without recourse to any third party.
5.3 The Client agrees not to discuss the Campaign(s) to any reasonably significant extent with any representative of the media other than through or with the knowledge of the Agency.
6.1 The Agency’s Fees for the Services are set out in The Costs.
6.2 If it is agreed that work shall be undertaken outside the Territory, or that the Agency shall provide services that are outside the scope of the Services, or that the scope of an agreed Campaign shall be extended, the Agency reserves the right to charge a further fee for any such additional work. Any such additional fee shall be subject to the Client’s prior written Approval, such Approval is not to be unreasonably withheld, conditioned or delayed.
7 OPERATING EXPENSES AND PROGRAMME COSTS
7.1 In addition to the Fees, the Agency shall charge the Client for the items set out in Clauses 7.2, 7.3 and 7.4 below.
7.2 House/Office Costs: If general costs including postage and packaging, telephone calls and faxes, general stationery and photocopying, general subscriptions, newspapers and storage (“House/Office Costs”) incurred by the Agency in the performance of the Services, other than Expenses and Programme Costs (as defined in this Agreement) exceed reasonable levels, this will be communicated for approval to the Client in order that the Client be billed at a rate of cost plus 15%.
7.3 Expenses: Other expenses including couriers, media monitoring, specialist subscriptions, travel, accommodation and subsistence [in accordance with the Client’s travel policy, if any] (“Expenses”) incurred specifically in the performance of the Services, other than House/Office Costs and Programme Costs (as defined in this Agreement) shall be charged to the Client together with a 15% handling charge.
7.4 Programme Costs: Costs for goods and services bought from third party suppliers on behalf of the Client, (other than House/Office Costs and Expenses) including photography, reproduction, artwork, design, printing, advertising, market research, exhibition and display materials, press distribution and major mailings, artiste/celebrity fees, evaluation, venues, legal advice and any other third party costs approved by the Client in advance (“Programme Costs”) shall be charged to the Client subject to a 15% handling charge.
8 PAYMENT TERMS
8.1 Fees and Operating Expenses shall be invoiced in accordance with the payment schedule set out in the Proposal.
8.2 The Client is required to pay any agreed Programme Costs in full prior to the Agency paying the respective third party.
8.3 Subject to Clauses 8.4 and 8.6, all invoices rendered by the Agency shall be due and payable within 28 days of the invoice date.
8.4 The Client reserves the right to withhold payment of any invoice or part of an invoice which is not in accordance with this Agreement. On receipt of any such invoice the Client shall immediately notify the Agency in writing of the reason for such withholding and pay the undisputed part of such invoice in accordance with Clause 8.3.
8.5 Subject to Clause 8.4, all sums referred to in this Agreement shall be payable in full without deduction, withholding or set-off and are exclusive of VAT and any other duty or tax which shall (if and to the extent applicable) be payable by the Client.
8.6 If the Agency is required to make a cost commitment or payment in order to complete an agreed activity, the Client shall be required to provide the Agency with sufficient funds prior to the payment or commitment being made.
8.7 The Client shall be liable to pay interest on any overdue amount at an annual rate of 2% above the prevailing base rate of Barclays Bank plc, which interest shall accrue on a daily basis from the date payment becomes due until the date that the Agency has received payment of the overdue amount together with all accrued interest. This right extends to any part of an invoice of which payment is withheld pursuant to Clause 8.4 should it subsequently be established that the amount in question was invoiced in accordance with this Agreement.
8.8 The Agency, and/or persons or companies acting on its behalf, or as agents, reserve the right to charge and recover all costs incurred in connection with the pursuance and/or recovery of outstanding monies and property from the Client.
8.9 The cost to the Agency of materials or services purchased overseas for the Services may be more or less than the cost anticipated at the date when the Agency ordered the relevant materials or services (or obtained the Client’s approval for such costs) as a result of fluctuations in the rate of currency exchange. If so, the Agency shall charge the Client at the rate of currency exchange in operation on the date the Agency pays for the relevant materials or services, which shall be deemed to be the closing mid-point rate in London for that day as subsequently quoted in the next published edition of The Financial Times.
9 APPROVALS AND AUTHORITY
9.1 Any reference in this Agreement to the Client’s “Written Approval” shall mean Written Approval by directors or employees of the Client authorised to approve the Agency’s work and/or expenditure and whose names are set out in The Solution (the “Account Management”). The Client shall notify the Agency in writing of any change to the Authorised Persons during the term of this Agreement. The Agency shall not be responsible for any delay in the performance of the Services resulting from the unavailability of an Authorised Person to provide Written Approval.
9.2 For the purposes of this Agreement, Written Approval shall mean approval signified by:
· 9.2.1 any email, letter or purchase order from the Client bearing the signature of an Authorised Person; or
· 9.2.1 any email, letter or purchase order from the Client bearing the signature of an Authorised Person; or
· 9.2.2 oral approval given by an Authorised Person or email emanating from the individual business email address of an Authorised Person provided such oral or email approval is confirmed in writing within two Working Day(s) by way of a contact report from the Agency to the Client; or
· 9.2.3 the signature of an Authorised Person on the Agency’s documentation.
9.3 After obtaining general Written Approval of Campaign plans, the Agency shall submit to the Client for approval where appropriate:
· 9.3.1 draft press releases, articles, photographs and captions; and
· 9.3.2 copy, layouts, artwork, designs, and/or scripts; and
· 9.3.3 digital assets, multimedia assets; and
· 9.3.4 estimates of the cost of the various items of the Campaign.
9.4 Written Approval by the Client of drafts and proofs shall be taken by the Agency as authorisation to proceed to publication and Written Approval of estimates provided by suppliers shall be the Client’s authorisation for the Agency to enter into contracts with such suppliers on the basis of such estimates.
9.5 The Agency shall take all reasonable steps to comply with any requests from the Client to amend or halt any plans or to cancel any schedules or work in progress, insofar as this is possible within the scope of its contractual obligations to its suppliers. Any amendments or cancellation shall be implemented by the Agency provided that the Client shall be responsible for any costs or expenses incurred or to which the Agency is committed prior to, or as a result of, the cancellation or amendment. The Client shall also pay the Agency’s Fees covering the cancelled or amended Services, as well as any charges imposed on the Agency by third parties arising from the cancellation or amendment.
9.6 The Client undertakes to notify the Agency forthwith if the Client considers that any statement made in any document submitted by the Agency to the Client for approval is incorrect or misleading in any way, or is likely to give rise to any claim or action against Agency, whether for defamation or otherwise.
9.7 The Client shall keep the Agency fully indemnified against any costs, claims, proceedings or demands arising out of or in connection with any press releases, publications or other material prepared for the Client by the Agency and approved by the Client prior to publication or transmission.
10 USE OF WORK
10.1 Work carried out as part of the Services shall not be used by the Client for any purpose other than that for which it was commissioned. Draft or incomplete work shall not be used or published as finished work without the Agency’s prior written approval.
11.1 No modifications or alterations to any work created for the Client may be made without the Agency’s prior written consent. Any agreed modifications or alterations shall only be carried out by the Agency or under its supervision and shall be paid for at a rate agreed between the parties in writing in advance. Reprints obtained by the Client shall not differ in any way from the originals supplied without the Agency’s prior written consent.
12 RELATIONSHIP EVALUATION
12.1 The parties will conduct a full two-way evaluation and review of their relationship a minimum of once every 12months, including (without limitation) the performance of staff from both parties. Any resulting changes agreed to the Services, the remuneration or any other aspect of this Agreement shall be agreed in writing, failing which the arrangements in place at the time of the evaluation, including (without limitation) those concerning the Agency’s remuneration, will continue to apply.
13.1 The Agency shall maintain Records in respect of all expenditure that is reimbursable by the Client under this Agreement.
13.2 The Agency will allow the Client by its own personnel or by an Independent Auditor access to all the Records during the Term and for 12 months afterwards. Any such access for the purposes of auditing or otherwise inspecting the Records shall be on not less than 14 days written notice at any time during normal business hours provided that, in the absence of exceptional circumstances, the Agency shall not be obliged to allow such access or inspection more than once during any 12-month period.
13.3 The Client and Agency shall meet together with the Independent Auditor not less than 3 Working Days prior to the start of any audit and agree the scope of that audit in writing. Should any audit or inspection of the Records by the Client reveal that the Client has been overcharged the Agency shall reimburse to the Client the amount of the overcharge within 14 days.
13.4 Once the Records for any period have been inspected by the Client in accordance with this Agreement, the Client shall not inspect the Records for that period again unless there are reasonable grounds to suspect fraudulent activity has occurred. For the avoidance of doubt, this right of audit shall not extend to payroll and personnel records, or records relating to any of the Agency’s other clients.
13.5 The Agency will afford to the Client all reasonable assistance in the carrying out of such audit. The Client and its auditor will ensure that any information obtained in the course of the audit concerning the Agency’s business is kept in the strictest confidence and not used for any purpose other than the proper conduct of the audit.
14 COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS
14.1 It is the intention of the parties that the Client should own the Rights in any Agency Materials. To that end, the Agency shall forthwith on the Client’s written request from time-to-time sign an unconditional assignment with full title guarantee of all Rights in the Agency Materials as are owned by the Agency and capable of assignment, together with the right to sue for damages for past infringement, provided that at the time of any such request the Client has fulfilled all its obligations to the Agency under this Agreement including, without limitation, those relating to notice and payment. The Agency shall also waive any Moral Rights it may have in the Agency Materials.
14.2 The Agency shall inform the Client as soon as possible if it intends to incorporate any Third Party Material in the Campaign(s). The Agency will use its reasonable endeavours to obtain an unconditional written assignment to the Client of all Rights in any such Third Party Materials at pre-agreed cost to the Client. The Agency shall notify the Client in writing if no such assignment of the Rights in such Third Party Materials can be obtained on reasonable terms. The Client shall then decide whether it still wishes the relevant Third Party Materials to be used in the Campaign(s), and if so, the Agency shall negotiate with the owner of such Rights to obtain such usage rights as the Agency reasonably believes will be required at the time of such negotiations. The Agency shall grant to the Client (at the Client’s expense) only such Rights in any Third Party Materials as the Agency is permitted by the relevant Third Party to grant to the Client.
14.3 The Agency shall ensure that all Moral Rights in the Agency Material and Third Party Material are waived, but if this is not possible in respect of any Third Party Material, the Agency will discuss this with the Client in advance of concluding the relevant commissioning contract and proceed as agreed.
14.4 Notwithstanding Clause 14.1 above, the Agency may use any of the Materials for the purposes of internal training or, with the Client’s prior consent (such consent not to be unreasonably withheld or delayed), in the promotion of the Agency. concluding the relevant commissioning contract and proceed as agreed.
15 CONFIDENTIAL INFORMATION
15.1 The parties acknowledge a duty not to disclose during or after the Term, without the other’s prior written permission any confidential information either concerning the other’s business, its business plans, customers or associated companies or resulting from studies or surveys commissioned and paid for by the Client. The parties also acknowledge that the terms and conditions of this Agreement including (without limitation) those relating to the Agency’s remuneration are confidential information and cannot be disclosed without the prior written approval of the other party, except to an Independent Auditor pursuant to an audit in accordance with Clause 13 of this Agreement.
15.2 During and after the Term, the Agency acknowledges its responsibility to treat in complete confidence all the marketing and sales information and statistics relating to the Client’s business with which the Client may supply the Agency in the course of any work for the Client.
15.3 From now on in this Clause 15 “Information” shall be used to describe the categories of information referred to in sub-Clauses 15.1 and 15.2.
15.4 The Agency shall, where so requested by the Client, impose obligations in terms equivalent to those in sub-Clauses 15.1 and 15.2 on its own personnel and obtain written assurances from any third parties to whom Information has to be disclosed in order to enable the Agency to carry out its obligations under this Agreement.
15.5 For the avoidance of doubt, the restrictions in this Clause 15 shall not prevent:
· 15.5.1 the disclosure or use of Information in the proper performance of the Agency’s duties;
· 15.5.2 the disclosure of Information if required by law; or
· 15.5.3 the disclosure of Information which has come into the public domain otherwise than through unauthorised disclosure.
15.6 The Client acknowledges that nothing in this Agreement shall affect the Agency’s right to use as it sees fit any general intelligence gained by the Agency in the course of its appointment.
15.7 Following consultation with the Client, the Agency may advertise or publicly announce that it is undertaking work for the Client pursuant to this Agreement, subject to obtaining the Client’s prior approval, such approval not to be unreasonably withheld or delayed.
16.1 If there is an error in the Agency Materials or the Third Party Materials as published, or publication is delayed or does not occur as planned, the Agency will not be liable unless this is caused by its default or neglect.
16.2 Should either party or its employees sustain any loss or liability, costs (including legal costs) or damages as a result of the other’s breach of this Agreement, the party in breach shall indemnify the other subject to the provisions of Clause 16.5.
16.3 The Agency warrants that to the best of its knowledge and belief the publication of the Agency Materials and/or the Third Party Materials shall not infringe any third party rights or be in any other way contrary to law in the United Kingdom other than as contained in any legal or other advice provided to the Agency and communicated to the Client.
16.4 The Agency warrants that its personnel working on the Services are and shall be competent and suitable in every respect, whether as to qualifications, experience or otherwise, to perform the Services.
16.5 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, or any other liability to the extent such liability may not be excluded or limited as a matter of law.
Subject to this:
· 16.5.1 the Agency shall not be liable for: (i) any loss or damage suffered by the Client arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of the Client or arising from any cause beyond the Agency’s reasonable control; or (ii) any delay in or omission of publication or transmission or for any error in any press or other publication unless such delay, omission or error is due to its own default or neglect;
· 16.5.2 the Agency shall not be liable 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; and
· 16.5.3 the Agency’s maximum aggregate liability to the Client under or in connection with this Agreement whether such claim arises in contract or in tort (including negligence), or otherwise shall in no circumstances exceed the annual/project fee but which does not exceed the Professional Indemnity cover of the Agency e.g. £1 million.
16.6 This Agreement states the full extent of the Agency’s obligations and liabilities in respect of the Materials and the performance of the Services. The parties agree that any condition, warranty, representation or other term concerning the Materials and/or the performance of the Services which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by law.
16.7 The Client shall effect insurance as is suitable having regard to its particular circumstances and the terms of this Clause 16.
16.8 Warranty and Indemnity: The Client warrants that to the best of its knowledge, information and belief, all information supplied to the Agency before, during and after the Term shall be accurate and not in any way contrary to English law. The Client shall indemnify and keep indemnified the Agency from and against any and all proceedings, claims, damages, losses, costs, expenses (including legal costs and expenses) and liabilities which the Agency may incur or sustain as a direct or indirect result of or in connection with any information, representation, reports, data or material supplied or prepared by the Client. Such material shall include but not be limited to press releases, articles, copy, scripts, advertisements, designs, artwork and detailed plans or programmes.
16.9 Client’s Property: The Agency shall take reasonable care of any property belonging to the Client and made available to the Agency for the purpose of this Agreement and shall mark or otherwise identify the Property as being the property of the Client. Subject to the foregoing, such property shall be at all times at the sole and entire risk of the Client, and the Agency shall not be subject to any other liability for it.
16.10 With regard to materials created in the course of providing the Services:
16.10.1 such materials retained by the Agency shall, at all times, whilst in the Agency’s possession, be insured by the Agency against loss or damage; and
16.10.2 the Client shall insure such materials against loss or damage when in transit between the Agency and the Client or any third parties for the purposes of production or publication and when in the possession of those third parties.
17 EMPLOYMENT RESTRICTION
17.1 During the Term and for six months after termination of this Agreement, neither party shall, without the written consent of the other, solicit or entice (either directly or indirectly) or attempt to solicit or entice (or authorise the taking of such action by any other person) any person who is employed by the other or has been employed by the other during the preceding six months, and who has been involved with the Services under this Agreement, to terminate their employment with the other party.
17.2 If the Agency consents to a member of the Agency’s staff joining the Client pursuant to Clause 17.1, the Agency may charge a fee in consideration for such consent. Such fee shall be equivalent to 20% of the gross annual salary that shall be paid by the Client to that employee by the Client. The Agency shall invoice the Client immediately upon the commencement of the employment of the relevant employee by the Client and such invoice shall be payable by the Client immediately upon presentation.
18.1 Either party may terminate this Agreement by service of notice in accordance with Clause 2.
18.2 If payment is not made by the Client to the Agency in accordance with Clause 8 above and the Client shall not have remedied the breach within 14 days of written notice to do so, the Agency shall have the right to terminate this Agreement immediately by service of notice in writing.
18.3 In addition to the Agency’s rights under Clause 18.2, either party may terminate this Agreement forthwith upon written notice to the other in the event of:
· 18.3.1 any material breach of this Agreement by the other party, which breach is not remedied (if capable of remedy) within 30 days after the service of a written notice specifying the nature of the breach and the steps required for its remedy;
· 18.3.2 the other party becoming insolvent, entering into liquidation, whether voluntary or compulsory, passing a resolution for its winding up, having a receiver or administrator appointed over the whole or any part of its assets, making any composition or arrangement with its creditors or taking or suffering any similar action in consequence of debt; or ceases or threatens to cease to carry on business.
18.4 The termination of this Agreement shall be without prejudice to the accrued rights of either party in respect of any prior breach of this Agreement, including (without limitation) the liability of the Client to the Agency for all Fees, Operating Expenses and Programme Costs due in respect of Services performed up to the effective date of termination.
19 PRCA PROFESSIONAL CHARTER
19.1 As a registered member of the Public Relations Consultants Association (PRCA), the Agency shall abide by the Professional Charter which can be viewed at http://www.prca.org.uk/ProfessionalCharterCodesofConduct, as updated from time to time, and shall be subject to the PRCA Arbitration and Disciplinary Procedures.
20 FORCE MAJEURE
20.1 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 cause or circumstance whatsoever beyond its reasonable control (hereinafter, an “event of force majeure”) provided the same arises without the fault or negligence of such party. Each party shall use its reasonable endeavours to minimise the effects of any event of force majeure.
20.2 Immediately upon becoming aware of any event of force majeure, the affected party shall notify the other party of the manner and extent to which its obligations are likely to be prevented or delayed and the date(s) for performance of the obligation(s) affected shall be postponed for so long as is made necessary by the event of force majeure.
20.3 If any event of force majeure continues for a period of or exceeding two months, either party may terminate this Agreement with immediate effect on giving written notice to the other party and neither shall be liable to the other for such termination.
21 COMPLIANCE WITH THE DATA PROTECTION ACT AND OTHER LAWS
21.1 In performing its obligations under this Agreement, each party shall comply with the requirements of all legislation in force from time to time including, without limitation, the Data Protection Act 1998.
21.2 If the Agency is engaged to create Financial Promotions (as defined in Clause 21.3.2 below) from time to time pursuant to this Agreement, it does so on the basis set out in sub-Clauses 21.3 to 21.6 below.
21.3 For the purposes of this Clause 21:
· 21.3.1 “authorised person” shall have the meaning set out in as section 31 of the Financial Services and Markets Act 2000 (rather than the meaning set out in Clause 9 of this Agreement); and
· 21.3.2 “Financial Promotion” means any material created by the Agency for the Client pursuant to this Agreement that comprises or includes an invitation or inducement to engage in investment activity (as those terms are from time to time interpreted for the purposes of the FSMA);
· 21.3.3 “FSMA” the Financial Services and Markets Act 2000 together with any rules, orders, regulations, codes of practice and delegated legislation made thereunder from time to time.
21.4 The Client shall be responsible for ensuring that it, and every Financial Promotion, complies with the FSMA and all relevant rules, regulations and guidance issued by Financial Services Authority from time to time (including without limitation the “Conduct of Business Sourcebook”, as amended from time to time).
21.5 The Client warrants in relation to each Financial Promotion that:
· 21.5.1 the Client is an authorised person and that such Financial Promotion will be seen and approved by the Client for the purposes of section 21 of the FSMA prior to being communicated to any person; or
· 21.5.2 if the Client is not required to be an authorised person, that such Financial Promotion will be approved by an authorised person for the purposes of section 21 of the FSMA prior to being communicated to any person; or
· 21.5.3 such Financial Promotion is otherwise permitted by the FSMA.
21.6 For the purposes of Clauses 21.5.1 and 21.5.2, a Financial Promotion shall not be treated as having been “communicated to any person” by virtue solely of its having been communicated to the personnel and/or professional advisers of the Client and/or the Agency for the purposes of the performance of this Agreement.
21.7 If the Client authorises the Agency to publish, transmit or release any price sensitive information (“Financial Information”) from time-to-time pursuant to this Agreement, it does so on basis set out in Clauses 21.8 to 21.10 below.
21.8 The Client acknowledges and agrees it is solely responsible for the preparation of the Financial Information, and for any errors or omissions contained therein, and that the Financial Information has not been proofed or approved by the Agency.
21.9 The Client warrants and agrees that the Financial Information (and any part of it):
· 21.9.1 is accurate and not false, misleading or deceptive;
· 21.9.2 does not conceal any material facts; and
· 21.9.3 complies (and its publication, transmission or release shall comply) with all applicable laws, regulations and codes of practice whether in force in England or elsewhere, including without limitation the FSMA.
21.10 Without prejudice to any other indemnity under this Agreement, the Client hereby agrees to indemnify the Agency (including its directors, officers and employees) against all losses, damages, liabilities and expenses (including legal expenses) which the Agency may incur or sustain directly or indirectly as a result of any claims, demands, civil or criminal proceedings or disciplinary action brought against the Agency by the Financial Services Authority or any other person or organisation which arise as a result of or in connection with any of the Financial Information, any publication, transmission or release of the Financial Information or any breach by the Client of the terms set out in this Clause 21.
22.1 The following Clauses shall survive the end of the Term:
· Clause 14 Copyright and other Intellectual Property Rights
· Clause 15 Confidential Information
· Clause 16 Liability
· Clause 17 Employment Restriction
· Clause 21 Compliance
· Clause 23 Notices
· Clause 24 Dispute Resolution
· Clause 25 General
23.1 Any notice, invoice or other communication which either party is required or permitted by this Agreement to serve on the other party shall be sufficiently served if sent to the other party at its specified address at Clause 1 (or such other address as is notified to the other party in writing) as follows:
· 23.1.1 by hand;
· 23.1.2 by registered or first class post or recorded delivery; or
· 23.1.3 by email confirmed by registered or first class post or recorded delivery.
23.2 Notices sent by registered post or recorded delivery shall be deemed to be served three (3) working days following the day of posting. Notices sent by fax shall be deemed to be served on the day of transmission if transmitted before 4.00p.m. on a working day, but otherwise on the next following working day. In all other cases, notices are deemed to be served on the day when they are actually received.
24 DISPUTE RESOLUTION
24.1 Subject to Clause 24.3, if any claim or dispute arises under or in connection with this Agreement, the parties shall attempt to settle such claim or dispute by negotiation prior to commencing legal proceedings.
24.2 If any claim or dispute cannot be settled by negotiation within  days after either party has made a written offer to the other party to negotiate a settlement to such claim or dispute, the parties may attempt to resolve the claim or dispute, if appropriate, in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure. If the parties have not settled any claim or dispute by mediation within 42 days from the initiation of the mediation, the dispute shall be referred to and finally resolved by the courts in accordance with Clause 25.7
24.3 Nothing in this Agreement shall restrict or exclude the right of either party to seek injunctive relief against the other party or to resolve any dispute in accordance with Clause 25.7 without prior negotiation or mediation.
25.1 A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
25.2 The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to 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 right later to enforce or to exercise it.
25.3 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.
25.4 Any valid alteration to or variation of this Agreement must be in writing and signed on behalf of each of the parties by a duly authorised officer.
25.5 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, such consent not to be unreasonably conditioned, withheld or delayed.
25.6 This Agreement and the documents referred to in it (the ‘Contractual Documentation’) constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement, whether oral or in writing. The parties agree that neither of them have been induced to enter into any Contractual Documentation in reliance upon any warranty, representation, statement, agreement or undertaking of any kind (whether negligently or innocently made) of any person other than as expressly set out in this Agreement. The only remedy available to the parties in connection with any statements, 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.
25.7 This Agreement shall be governed by and construed in accordance with the law of England and Wales and each party hereby irrevocably agrees to submit to the exclusive jurisdiction of the Courts of England and Wales over any claim or matter arising under or in connection with this Agreement or the legal relationships established by this Agreement.