ANNEX 1 – STANDARD TERMS AND CONDITIONS

TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS AND SERVICES

1.  DEFINITIONS

Agreement” means these Terms and Conditions and the terms contained on BECAUSE’s purchase order in relation to the Order;

"IP Rights" means patents, trade marks, service marks, trade names, registered and unregistered designs, trade or business names, copyright (including, but not limited to, rights in software), database rights, design rights, rights in confidential information and any other intellectual property rights whatsoever irrespective of whether such intellectual property rights have been registered or not which may subsist in any part of the world;

BECAUSE” means Because Experiential Marketing;

Order” means the BECAUSE purchase order together with all the documents attached and referred to therein;

Services” means all services commissioned by BECAUSE which are the subject of the Order, including any commissioned Work (as defined below);

Supplier” means the person, firm or company to whom the Order is directed;

Supplier Staff” means all employees, consultants, agents and subcontractors which the Supplier engages in relation to the Order;

"Work" means all creative work, data, designs, models, drawings, prints, samples, transparencies, specifications, reports, manuscripts, working notes, documentation, process information, manuals, photographs, negatives, scripts, copy, recordings, film, music, discs, software, printed work or material or any other similar items stated in the Order, including all drafts and preparatory work.

2.  THESE TERMS AND CONDITIONS APPLY

2.1    An Order constitutes an offer by BECAUSE to purchase the Services at the price stated in the Order and subject to these Terms and Conditions and any other terms stated in the Order.  In the event of any conflict or inconsistency, any terms set out in the Order shall take precedence over these Terms and Conditions.

2.2    These Terms and Conditions shall apply to the Agreement to the exclusion of any other terms and conditions, including those of the Supplier, unless BECAUSE agrees otherwise in writing or unless expressly varied in the Order. BECAUSE's offer is conditional upon these Terms and Conditions and any other conditions stated in the Order being accepted by the Supplier as the sole basis for supply.

3.  INTELLECTUAL PROPERTY

3.1    All IP Rights in all Works supplied by or on behalf of the Supplier in connection with the Agreement shall vest in BECAUSE immediately upon their creation. By accepting the Order, the Supplier assigns all IP Rights in all Works to BECAUSE, by way of present assignment of future copyright where applicable, for the full duration of such rights, in all jurisdictions and with full title guarantee and including the right to sue for past infringements and at no additional cost to BECAUSE will execute an assignment of such IP Rights in a form stipulated by BECAUSE, either during the term of the Agreement or at any time thereafter.

3.2    Where any legal rights as referred to above require the consent of a third party to their use by or transfer to BECAUSE, the Supplier will inform BECAUSE in writing accordingly, and will procure the right for BECAUSE to use such rights or have the rights transferred to it (as the case may be) at no cost to BECAUSE except insofar as may have been specifically agreed by BECAUSE.

3.3    The Supplier warrants and undertakes to BECAUSE that: (i) the use by BECAUSE, any third party authorised by it, or use by client of BECAUSE for whom Works are supplied, shall not infringe the IP Rights or other rights of any third party or any applicable laws, regulations or codes or practice; (ii) all Works created by it or on its behalf for BECAUSE or its client shall be original, shall not have previously been presented to any third party and that it has imposed contractual obligations on any sub-contractor consistent with the Supplier’s own obligations to BECAUSE under this Agreement.

3.4    The Supplier shall not (and shall procure that its employees, agents and sub-contractors shall not) assert any moral rights in relation to the Works or IP Rights. The Supplier shall provide copies of such waivers from its employees, agents and sub-contractors, if required by BECAUSE.

3.5    Any IP Rights and physical property / title in any material supplied by or on behalf of BECAUSE or its clients to the Supplier in connection with the Agreement shall remain the property of BECAUSE or the client of BECAUSE. All such material must be returned to BECAUSE on fulfillment or termination of the Agreement at the Supplier’s cost.

4.  CONFIDENTIALITY

4.1    In consideration of each party giving the other information of any nature whatsoever in any form whether written, mechanical or oral (including, without limitation, drawings, formulae, test results, reports, project reports and testing procedures, practices, instruction and training manuals, tables of operating conditions, market forecasts, specifications, tables lists and particulars of customers and suppliers, marketing methods and procedures, know-how and advertising copy) relating to the business of the disclosing party, each party agrees to keep all such information obtained from the other ("Confidential Information") strictly confidential and not disclose the Confidential Information to any third party.

4.2    This obligation of confidentiality shall not apply to information which the recipient can prove in writing was at the time of disclosure (a) in the public domain, or (b) lawfully in the recipient's possession, and not acquired directly or indirectly from a party associated with the other party, or a third party under an obligation of confidentiality, or (c) furnished to the recipient without restriction by any third party having a bona fide right to do so, or (d) becomes public knowledge by acts other than those of the recipient.

4.3    All Confidential Information (including copies) received from one party shall be immediately returned by the other party upon request.

5.  INDEMNITY

The Supplier shall indemnify BECAUSE in full against all liability, loss, costs, claims damages and expenses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) as a result or in connection with: any breach of any warranty given by the Supplier in relation to the Order:

5.1.1    any claim made against BECAUSE for actual or alleged infringement of a third party's IP Rights arising out of, or in connection with, the supply or use of the Services;  

5.1.2    any act or omission of the Supplier or its employees, agents or subcontractors in manufacturing, supplying, delivering and or installing the Order,

5.1.3    any act or omission of any of the Supplier’s employees, agents or subcontractors in connection with the performance of Services.

5.1.4    any claim made against BECAUSE by a third party for death, personal injury or damage to property arising out of, or in connection with, defective Goods, to the extent that the defect in the Goods is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.

6.  INVOICING, PAYMENT AND SET-OFF

6.1    Unless otherwise agreed in writing or as set out in the Order, the Supplier shall invoice BECAUSE within one calendar months of delivery of the Goods or performance of the Services and each invoice shall quote the number of the Order. 

6.2    BECAUSE shall pay the Supplier’s invoice within 30 days of the date on which the invoice is issued or, if later, after acceptance of the Goods or Services to which that part of the invoice relates. 

6.3    Payment shall be in pound sterling unless agreed in writing between BECAUSE and the Supplier. 

6.4    BECAUSE shall be entitled to set off against the price any sums owed to BECAUSE by the Supplier under this agreement or any other contract between the parties.

7.  TIME OF THE ESSENCE

7.1    Goods are to be delivered carriage paid at the specified delivery address on the date or within the period stated in the Order during BECAUSE’s usual business hours (9.00am – 6.00pm).

7.2    The time of performance of the Services is of the essence of the Agreement.  If an Order is not delivered, in whole or in part, by the specified delivery date, then, without limiting any other right or remedy BECAUSE may have, BECAUSE may: refuse to take any subsequent attempted delivery of the Order; cancel the Order in whole or in part; withhold payment in respect of all Goods still remaining to be delivered; terminate this agreement with immediate effect; obtain substitute products from another supplier and recover from the Supplier any costs and expenses reasonably incurred by BECAUSE in obtaining such substitute products; and claim damages for any other costs, expenses or losses resulting from the Supplier's failure to deliver the Order on the Delivery Date.

8.  ASSIGNMENT AND SUBCONTRACTING

8.1    The Supplier shall not, without the written consent of BECAUSE or unless otherwise agreed in advance by BECAUSE, assign or subcontract all or any part of the Order, including the provision of Services.

9.  TERMINATION

9.1    BECAUSE may terminate this Agreement forthwith by notice in writing to the Supplier if the Supplier:

9.1.1    is in material breach of any of the Terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 7 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or

9.1.2    passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or

9.1.3    becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or

9.1.4    has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or

9.1.5    ceases, or threatens to cease, to carry on business.

9.2    The parties’ rights, duties and responsibilities shall continue in full force during the agreed period of notice and whether there is a period of notice.

10. SURVIVAL OF OBLIGATIONS ON TERMINATION

The obligation in this Agreement which by their nature survive termination, including but not limited to clauses 3, 10 11 and 12 shall survive termination of this Agreement.

11. WAIVER

11.1    No whole or partial waiver of any breach of this Agreement shall be held to be a waiver of any other or any subsequent breach.  The whole or partial failure of BECAUSE to enforce at any time the provisions of this Agreement shall in no way be construed to be a waiver of such provisions nor in any way affect the validity of this Agreement or any part of it or the right of either party to enforce subsequently each provision.

12. SEVERANCE

12.1    If any part of this Agreement is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.  In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Agreement, the parties shall promptly commence good faith negotiations to remedy such invalidity.

13. ENTIRE AGREEMENT

13.1    This Agreement and the documents referred to herein is the complete and exclusive statement of the agreement between the parties relating to the subject matter of this Agreement which supersedes all previous communications, agreements and other arrangements, written or oral.  It is expressly agreed that no variation of this Agreement shall be effective unless in writing and signed by both parties.

14. NOTICES

14.1    Any notice, invoice or other communication which either party is required by this Agreement to serve on the other party shall be sufficiently served if sent to the other party at its specified address on the Order (or such other address as is notified to the other party in writing) as follows:

14.1.1    by hand;

14.1.2    by registered or first-class post or recorded delivery; or

14.1.3    by facsimile transmission confirmed by registered or first-class post or recorded delivery.  Notices sent by registered post or recorded delivery shall be deemed to be served two (2) working days following the day of posting.  Notices sent by facsimile transmission shall be deemed to be served on the day of transmission if transmitted

14.1.4    before 4.00pm 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 received.

15. APPLICABLE LAW

15.1    BECAUSE and the Supplier intend that the terms of the Contract may be directly enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any client of BECAUSE who is to benefit from the supply of Goods or Services.

15.2    This Agreement shall be construed in accordance with and governed by the law of England and Wales and both parties hereby irrevocably agree that the Courts of England and Wales shall have non-exclusive jurisdiction to resolve any controversy or claim of whatever nature arising out of or relating to this Agreement or any alleged breach of it.

16. DISPUTE RESOLUTION

16.1    In this clause “Mediation” shall mean mediation in accordance with the mediation procedure of CEDR.  Either party shall at its absolute discretion refer any difference which in any way relates to or arises out of this Agreement to Mediation under the auspices of CEDR as a condition precedent to exercise any right to litigation save that the right to seek and obtain injunctive relief for any reason and/or to issue and pursue proceedings for non-payment of an invoice is expressly excluded from this condition precedent.

16.2    The mediator shall be agreed upon by the parties but failing such agreement within 10 days of one party requesting the appointment of a mediator and providing details of their proposed mediator, the mediator shall be appointed by the chief executive officer of the chosen ADR organisation from amongst trained mediators proposed by that organisation.  Unless agreed otherwise the parties shall share equally the costs of the Mediation.  The use of Mediation will not be construed to affect adversely the rights of either party should the Mediation not resolve the dispute in question.