Terms & Conditions
1 “Intellectual Property Rights” means any and all copyright, design rights, database and compilation rights, patents and Marks (and related goodwill), whether or not registered, trade secrets and other intellectual property rights, howsoever arising and in whatever media, and any applications for their protection or registration and all renewals and extensions anywhere in the world;
“Marks” means any and all names, brands, logos, trade marks, service marks, trade names and domain names;
1.2 Except where the context otherwise requires, words denoting the singular include the plural and vice versa, words denoting any gender include any other genders, and words denoting persons include firms and corporations and vice versa.
1.3 Unless otherwise stated, a reference to: (a) a clause or a Schedule is a reference to a clause of or schedule to this Agreement. Clause headings are for ease of reference only and do not affect the construction of this Agreement; (b) "include" and "including" shall be construed without limitation; and (c) any Act of Parliament shall be deemed to include any amendment, replacement or re-enactment thereof then in force and to include any bye-laws, statutory instruments, rules, regulations, orders, notices, directions, consents, licences, conditions or permissions made thereunder.
2 Client Obligations
2.1 The Client agrees:
(a) to provide the Client logo and files according to specification as expressly set out in the guidelines, and comply with any of its other obligations.
(b) to pay the Fees promptly and in accordance with this Agreement
3. Payment
3.1 FOM shall invoice the Client upon receipt of Confirmation of Commission. Invoices are payable on presentation. All Fees and other charges are subject to VAT, where applicable.
4. Warranties
4.1 Each party warrants to the other that it has the full right, power and authority to enter into and perform this Agreement.
4.2 The Client warrants that it has sufficient rights (including Intellectual Property Rights) in its content to grant to FOM the rights set out in this Agreement and has obtained and will maintain and renew, as appropriate, all necessary licences, authorisations and consents which are necessary for FOM to provide the service.
4.3 FOM warrants that it has sufficient rights (including Intellectual Property Rights) to grant to the Client the rights set out in this Agreement.
4.4 Except as expressly provided this Agreement, each party expressly excludes any further representations, warranties, conditions or other terms, express or implied, by statute, including but not limited to implied warranties, conditions or other terms of satisfactory quality, fitness for a particular purpose or reasonable care and skill.
5. Intellectual Property Rights
5.1 All Intellectual Property Rights in any methodologies and technologies provided by FOM shall remain in FOM or its licensors. All Intellectual Property Rights created, whether alone or jointly, by FOM shall, on demand by the Client and following payment in full of the Fees, by way of present and future assignment be assigned with full title guarantee to the Client.
5.2 FOM grants the Client a royalty-free, worldwide, non-exclusive licence to use any methodologies and technologies provided by FOM for the purposes of this commission only.
5.3 Nothing in this Agreement shall be taken to prevent FOM from using any expertise acquired or developed during the performance of this Agreement in the provision of services to third parties.
6. Indemnity
The Client will indemnify and keep FOM indemnified on demand against any liability, damage, expense, claim or cost (including reasonable legal costs and expenses) suffered by FOM relating to any of the Client Content, save to the extent that the liability, damage, expense, claim or cost arises as a result of any breach by FOM as part of any of its obligations under this Agreement.
7. Limitation of Liability
7.1 Subject to clause 18.3 neither party shall be liable in contract, tort (including negligence) or otherwise arising in connection with this Agreement for: (i) consequential, indirect or special loss or damage; or (ii) any loss of goodwill or reputation; or (iii) any economic losses (including loss of revenues, profits, contracts, business or anticipated savings) in each case, even if the relevant party has been advised of the possibility of such loss or damage and howsoever incurred.
7.2 The parties agree that the maximum liability of either party in contract, tort (including negligence) or otherwise arising in connection with this Agreement shall be limited to twice the aggregate Fees paid by the Client.
7.3 Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their servants, agents or employees acting in the course of their duties.
8. Force Majeure
8.1 Neither party will be liable for any failure or delay in performing its obligations under this Agreement to the extent that the failure or delay is the result of any cause or circumstance beyond the reasonable control of that party including acts of god, war, civil commotion or industrial dispute, a failure of external telecommunications systems, and that failure could not have been prevented or overcome by that party acting reasonably and prudently.
9. Confidentiality and Data
9.1 During the Term of this Agreement and for two (2) years thereafter, each party will treat as confidential all information that it obtains concerning, but not limited to, the business, finances, technology and affairs of the other, ("Confidential Information").
9.2 Each of the parties will use at least the same degree of care (and not less than a reasonable degree of care) it uses to prevent the disclosure of its own confidential information of like importance, to prevent the disclosure of Confidential Information of the other party.
9.3 Each party will promptly notify the other party of any actual or suspected misuse or unauthorised disclosure of the other party's Confidential Information.
9.4 The provisions of this clause 9 shall cease to apply to: (i) information that has come into the public domain other than by breach of this clause or breach of any other duty of confidence; (ii) information that is obtained from a third party without breach of this clause or breach of any other duty of confidence; and (iii) information that is required to be disclosed by a regulatory or government body or court of competent jurisdiction with power to compel the disclosure.
9.5 In the event of termination or expiration of this Agreement, each party shall return or on request of the other party, destroy the Confidential Information of that party.
9.6 Each party will comply with its obligations pursuant to the Data Protection Act 1998.
10. Data Protection
Where, in providing the services under this Agreement FOM is acting as a data processor, it will process data in accordance with the principles in the Data Protection Act 1998.
11. No Partnership
Nothing in this Agreement shall be deemed to create a partnership or joint venture or contract of employment of any kind between the parties nor shall it be deemed to create any agency between the parties.
12. Entire Agreement
Each party confirms that this Agreement sets out the entire agreement and understanding between the parties and that it supersedes all previous agreements, arrangements and understandings between them relating to the subject matter of the Agreement. Each party confirms that it has not relied upon any statement, representation or understanding that is not an express term of this Agreement and shall not have any remedy in respect of any statement, representation or understanding which is not an express term unless made fraudulently.
13. Waiver, Invalidity and Cumulative Rights
13.1 No failure or delay by any party in exercising any right, power or remedy under this Agreement will operate as a waiver of any right, power or remedy, nor will any single or partial exercise by either party of any right, power or remedy preclude any further exercise of any other right, power or remedy.
13.2 To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, then that provision shall be deemed not to be a part of this Agreement, and it shall not affect the validity, lawfulness or enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
13.3 The rights and remedies of the parties under this Agreement are cumulative and in addition to any rights and remedies provided by law. Any variation to this Agreement must be in writing and agreed by the parties.
14. Third Party Rights
Nothing in this Agreement shall create or confer any rights or other benefits, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, in favour of any person other than the parties to this Agreement.
15. Costs
Each party shall, at the cost and expense of the other party, use all reasonable endeavours to do all such further acts and things and execute or procure the execution of all such other documents as that party may from time to time reasonably require, for the purpose of giving that party the full benefit of the assets, rights and benefits to be transferred to the other party under this Agreement.
16. No Assignment
Neither party shall be entitled to assign, transfer, charge or licence the whole or any part of its rights and/or obligations under this Agreement to any third party without consent of the other party.
17. Governing Law and Jurisdiction
This Agreement shall be construed in accordance with the laws of England and each party hereby irrevocably submits to the exclusive jurisdiction of the courts of England.
18. Mail Out of Email Communication
To distribute email communication using the FOM Mail Out system, the Client must have clearly obtained the permission of the recipient, through:
18.1
a) An email newsletter subscribe form on the Client’s website.
b) Recipients having opted to willingly receive information from the Client.
c) Completing an offline form, survey or competition and have expressed that they would like to be contacted.
d) The recipients are current customers or clients and have had contact with them within the last two years.
18.2.
It is not permitted to distribute to the following:
a) An email list obtained from a third party.
b) Recipients that have not had contact with the Client within the past two years.
c) Copied email addresses from the web.
18.3
Clauses 7.1 and 7.2 notwithstanding, the Client shall be liable in contract, tort (including negligence) or otherwise for (i) consequential, indirect or special loss or damage; or (ii) any loss of goodwill or reputation; or (iii) any economic losses (including loss of revenues, profits, contracts, business or anticipated savings) in the event that FOM’s Mail Out system, or any third party system it uses, is suspended or terminated due to the Client not adhering to the actions specified in clauses 18.1 and 18.2. The parties further agree that no limit shall be placed on damages that might be sought by FOM in the event of a breach of clause 18.1 or 18.2