THIS AGREEMENT is made

BETWEEN:

‘The Client’; and

Asensio Ltd (trading as ‘Asensio’) whose registered address is 80 Hart Lane, Hartlepool, TS26 0LA (‘the Supplier’).

 

NOW IT IS HEREBY AGREED AS FOLLOWS:

In this Agreement the following terms and phrases shall have the following meaning, unless the context requires otherwise:

Commencement Date: From the issue date of the first Retainer invoice.

Retainer: The agreed fee paid in advance in order to reserve time for Marketing Management Time in the month stated in the Supplier Invoice for use when required.

Termination Date: The contract will continue until this Agreement is terminated by either party serving not less than 30 days notice in writing on the other. The final day of this contract is the Termination Date.

 

1. Basis

1.1 The Supplier will keep the Client informed of progress on those Projects and Deliverables which are agreed from time to time to be supplied in the Retainer through meetings and reports when so requested by the Client. The time taken to meet with the Client or to create these reports will be counted against the time supplied in the Retainer.

1.2 The Supplier warrants to the Client that by entering into this Agreement it will not be in breach of any obligations to, or agreements with, any Third Party.

1.3 If the Supplier is unable at any time to perform its duties as set out in this Agreement the Supplier may delegate performance of the Retainer to such suitably qualified and experienced personnel as it may from time to time deem appropriate. The Supplier must notify the Client if this power to delegate is exercised and provide details of the name of the Delegate. The Supplier will be responsible for remunerating the Delegate from the Retainer.

1.4 If the Supplier is unable at any time to perform its duties it will notify the Client as soon as reasonably practicable, enacting subclause 1.3 if appropriate or providing notice on the Client if agreed.

1.5 The Retainer pays for Marketing Management Time only and cannot be used against any Third Party costs, including but not limited to: printing services, web hosting, website design and development, animation, film production or any online or offline media spends unless otherwise agreed in writing.

 

2. Fees, Invoicing and Status

2.1 An agreed fee per month (together with value added tax if relevant) will be payable by the Client to the Supplier for the Retainer and the fee will be payable monthly in advance by the agreed day of the month in which the time is to be retained.

2.2 Unless otherwise agreed, the Supplier will submit an invoice to the Client at the end of the previous month/beginning of the month in which time is to be retained. It will detail the Retainer, the month the Marketing Management Time is to be used and the fees due in respect thereof. The invoice will show the value added tax separately if relevant. If the Supplier becomes VAT registered during the period of the Retainer the Client accepts the responsibility of paying this.

2.3 In the event there are periods when the Client decides not to use time provided and agreed as part of the Retainer in a given month. or does not provide necessary instructions or information required by the Supplier to perform agreed duties within the Retainer, it is understood that, since payment is made to reserve (retain) Marketing Management Time only, the fee is still payable and any payment made will not be refunded.

2.4 The Client has a responsibility to pay their invoice by the agreed date. Late payment may attract statutory interest. This is 8% plus the Bank of England base rate for business to business transactions. The Supplier has the right to temporarily suspend services for late payment, whilst continuing to charge the monthly Retainer each month as well as statutory interest, until such time as arrears are paid. The contract will continue until the Termination Date.

 

3. Additional Work

3.1 In addition to Deliverables provided, if the Client requests any Deliverable outside the scope of the Retainer, a separate agreement may be entered into between the parties which shall set out the time and materials the Supplier shall charge under such agreement.

3.2 The Supplier’s day rate for additional Projects or Deliverables will be reviewed every 12 months on the anniversary of the Commencement Date. 

4. Confidentiality

4.1 Each party will treat as confidential all information obtained from the other party in connection with this Agreement which is designated as confidential or which is by its nature clearly confidential. The recipient party will not disclose such confidential information to any person (except only to those employees, agents, sub-contractors, suppliers and other representatives on a need-to-know basis) or use such confidential information for the purposes other than the Retainer without the other party’s prior written consent.

4.2 This confidentiality provision will not extend to information which was in the possession of the recipient party (with full right to disclose) before receiving it; or is already or becomes public knowledge (otherwise than as a result of a breach of this clause); or is independently developed by the recipient party without access to or use of such information.

4.3 Each party will ensure that all persons to whom it discloses any confidential information of the other party are aware prior to disclosure of the confidential nature of the information that they owe a duty of confidence to the other party and will ensure they agree a non-disclosure agreement with all such persons. These obligations of confidentiality will survive any termination of this Agreement.

4.4 Each party will establish and maintain adequate security measures to safeguard information and data of the other party in its possession from unauthorised access, use or copying.

 

5. Intellectual Property Rights

5.1 Subject to the Supplier receiving payment of all relevant Retainer fees for Deliverables, the Supplier grants to the Client a licence to use the Deliverables in their territory. This includes all design and creative work.

5.2 If the Client wishes to use the Deliverables:
(a) either outside of their territory; and/or
(b) after the termination date; and/or
(c) outside of the purposes and/or media set out in the scope of work;

then the Client shall notify the Supplier of any intended use and will pay the Supplier a fee to be agreed by the parties.

5.3 All Intellectual Property Rights in the Supplier Proprietary Deliverables shall be owned by and remain the property of and vested in the Supplier. Subject to the Supplier receiving payment of all relevant Retainer fees attributable, the Supplier hereby grants to the Client a licence to use such Supplier Proprietary Deliverables.

5.4 The Supplier will be entitled during and after the term of this Agreement to publish and use all Deliverables which have been broadcast, published, distributed or otherwise made available to the public for the purposes of promoting the Suppler’s work and its business. This will include use of the Client’s relevant Intellectual Property such as name, logo and any registered trade marks. 

5.5 The Agency shall obtain licences or consents in respect of Third Party Materials in order that the Client can use Third Party Materials for the purposes agreed upon. The Supplier shall notify the Client of any restrictions on usage in respect of such Third Party Materials, and the Client shall comply with any such restrictions and shall indemnify the Supplier against any Losses suffered by the Supplier as a result of the Client breaching any such restrictions.

5.6 The Supplier shall use reasonable endeavours to ensure that all Moral Rights in the Supplier Materials and Third Party Materials included in the Deliverables are waived (or where not lawfully possible to waive Moral Rights, that Moral Rights are not asserted) and if the Supplier cannot obtain such waiver of (or agreement not to assert), the Supplier will notify the Client and shall obtain the Client’s approval prior to incorporating such materials into the Deliverables.

 

6. Force Majeure

6.1 If either party to this Agreement is prevented or delayed in the performance of any of their respective obligations under this Agreement by “force majeure”, then such party shall be excused the performance for so long as such cause of prevention or delay shall continue.

6.2 For the purpose of this Agreement, “force majeure” shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of such party and includes, but is not limited to, the following:

6.2.1 strikes, lockouts or other industrial action;

6.2.2 civil commotion, riot, invasion in war;

6.2.3 fire, explosion, flood, earthquake, subsidence, epidemic or other natural physical disaster;

6.2.4 impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

6.2.5 political interference with normal operations;

6.2.6 pandemic or epidemic; and

6.2.7 temporary loss of electrical or internet services.

 

7. Entire Agreement

7.1 This Agreement contains the entire agreement and understanding of the parties relating to the subject matter of this Agreement and extinguishes all previous agreements between the parties relating to the subject matter hereof.

 

8. Survival of Causes of Action

8.1 No action, regardless of form, may be brought by either party more than 3 months after the Termination Date, except that an action for non-payment may be brought by the Supplier within 2 years of the Termination Date.

 

9. Vacation and Waiver

9.1 This Agreement can only be varied with the consent of both the Supplier and the Client.

9.2 Failure of any party to insist upon strict performance of any provision of this Agreement or the failure of any party to exercise any right or remedy to which it is entitled hereunder shall not constitute a waiver thereof and shall not cause a diminution of the obligations under this Agreement.

9.3 No waiver of any of the provisions of this Agreement shall be effective unless it is expressly stated to be such and signed by

all the parties to this Agreement.

9.4 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

 

10. Communications

10.1 Any communication or notice to be given pursuant to the terms of this Agreement can be in writing, delivered by hand, sent by email or sent by post to the address of the addressee as set out in this Agreement or such other address (being in Great Britain) as the addressee may from time to time have notified for the purpose of this Clause.

 

11. Jurisdiction

11.1 This Agreement is governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the Courts of England and Wales to settle any dispute or claim arising from this Agreement.

 

IT IS AGREED