Terms & Conditions
1.1 The following definitions are used in this Agreement:
“Aspect” means Aspect Limited, a company incorporated and registered in England and Wales with company number 03445712 and whose registered office address is 7 Hampstead West, 224 Iverson Road, London, NW6 2HL;
“Agreement” means these Terms and Conditions (as amended from time to time), the Proposal and the Budget (each as accepted by the Client and as amended by both Aspect’s and the Client’s authorised representatives from time to time in writing) and any terms and conditions implied by law (to the extent not expressly excluded in these Terms and Conditions);
“Budget” means a document outlining the budget and cost breakdown in relation to a Proposal;
“Client” means the third party recipient of services provided by Aspect as identified in a Proposal and corresponding Budget;
“Commencement Date” means the earlier of either (i) the date these Terms and Conditions are signed (ii) confirmation of acceptance of the Agreement by the Client in writing or (iii) Aspect being requested by the Client to perform its Services pursuant to the Proposal and Budget;
“Price” means the price identified by Aspect in the Budget or as subsequently agreed in writing between authorised representatives of each of Aspect and the Client;
“Proposal” means the creative proposal document provided by Aspect to a relevant third party; and
“Services” means the supply of goods and services by Aspect to the Client as set out in the Proposal and the Budget.
1.2 A reference to a statute or statutory provisions is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.3 A reference to ‘writing’ or ‘written’ includes fax and email.
2. SUPPLY OF SERVICES
2.1 The Agreement will be deemed to come into existence on the Commencement Date.
2.2 The Agreement shall apply to the Client and Aspect to the exclusion of any other terms that the Client seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
2.3 Aspect shall supply the Services to the Client in accordance with the Proposal and the Budget in all material respects subject to clause 19.2 below.
2.4 Aspect shall use all reasonable endeavours to meet performance dates for Services as set out in the Budget but any performance dates shall be wholly subject to:
2.4.1 full and timely co-operation by the Client; and
2.4.2 subject to any variations made pursuant to clause 20 below which may include or otherwise result in a reasonable delay in performance of the Services.
2.5 Notwithstanding clause 20, Aspect shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement and Aspect shall notify the Client in such event.
2.6 Any variations made to the Budget and/or Proposal pursuant to clause 2.5 shall not cause Aspect to be in breach of the Agreement or otherwise become liable under it for the same.
2.7 Aspect shall provide the Services using reasonable skill and care in accordance with standard industry practice for similar services.
3. CLIENT OBLIGATIONS
The Client shall:
3.1 ensure the terms of the Proposal and Budget are complete and accurate prior to and on the Commencement Date;
3.2 provide Aspect, its employees, agents, subcontractors and consultants, with or procure the provision of, access to the Client’s premises, relevant venues set out in the Proposal or Budget and other facilities reasonably requested by Aspect;
3.3 provide Aspect with such information and materials as Aspect may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
3.4 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
3.5 keep and maintain all materials, equipment, documents and other property of Aspect (‘Aspect Materials’) at the Client’s own risk, maintain Aspect Materials in good condition until returned to Aspect (where relevant), and not dispose of or use Aspect Materials other than in accordance with Aspect’s written instructions or authorisation; and
3.6 comply with any additional obligations as set out in the Proposal and/or Budget.
4.1 The costs, charges and expenses agreed for the supply of the Services are set out in the Budget and are exclusive of UK VAT and any other sales tax unless otherwise stated.
4.2 UK VAT and any other sales tax at the appropriate rate applicable at the date(s) of invoicing will be charged, and will be payable by the Client.
4.3 Aspect reserves the right to make additional charges at its then current charging rate (available on request) in respect of extra costs, charges and expenses incurred by Aspect and caused by or arising out of:
4.3.1 the Client supplying materials of unsound or unsuitable nature in relation to the Proposal;
4.3.2 the Client delivering materials after the date set out in the Budget or otherwise as agreed in writing pursuant to clauses 2.5 or 20;
4.3.3 changes and additions to the Proposal made by the Client after the Client’s acceptance of the Proposal; and
4.3.4 unforeseeable increases in costs of personnel, materials, equipment or services necessary for the completion of the supply of the Services.
4.4 Where Aspect is required to obtain any licences and/or consents in respect of any copyrights or other intellectual property rights related to the content of any presentation, conference, programme, production, promotion or campaign the Client will indemnify Aspect for all and any charges arising from obtaining such licences and / or consents in the event these do not already form part of the Budget.
5. TERMS OF PAYMENT
5.1 All invoices submitted to the Client will be presented net monthly, i.e. for payment within 30 days from the date of the invoice unless otherwise agreed.
5.2 Unless otherwise agreed Aspect will invoice 45% on Agreement, 45% payable two weeks before the project is delivered and 10% immediately after project delivery.
5.3 Aspect reserves the right to charge interest on all invoices presented to the Client which are not paid by the relevant due date at the annual rate of 4% above the base rate from time to time of National Westminster Bank plc. Such interest will accrue on a daily basis from the date on which payment became due up to the date on which Aspect receives the full outstanding amount together with all accrued interest.
5.4 Where a surcharge is levied by a supplier against Aspect due to late payment by Aspect arising from late payment by the Client, the Client shall immediately reimburse to Aspect the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.
6. INTELLECTUAL PROPERTY
6.1 ‘Intellectual Property Rights’ in this clause means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
6.2 All Intellectual Property Rights in and to any data, information or products created or produced by Aspect under this Agreement shall remain the property of Aspect, but Aspect grants to the Client a royalty-free, non-exclusive licence for the full term of the relevant Intellectual Property Right or otherwise for the term of this agreement if specific Intellectual Property Rights are set out in the Proposal. The said licence shall be unlimited in its locale and substantive content and shall include rights to the worldwide use of and the right to alter the copyright work which is governed by the respective Intellectual Property Rights. The Client, or its nominee, shall have the right to assign or sub-licence the said licence.
6.3 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on Aspect obtaining a written licence from the relevant licensor on such terms as will entitle Aspect to license such rights to the Client.
6.4 All Aspect Materials are the exclusive property of Aspect.
7.1 Aspect hereby grants to the Client a non-exclusive licence to use any Aspect Material supplied by it in accordance with these terms.
7.2 The Client may only use Aspect Materials provided by Aspect for the purpose described in the Proposal.
7.3 The Client may not allow Aspect Materials to be used by any third party without the written agreement of Aspect however the Client shall not be restricted from using Aspect Materials, or allowing a third party to use it, solely in connection with any advertising or promotional activity or the arranging and conduct of shareholder or investor meetings. The Client will allow such third parties to use Aspect Materials at the Client’s own risk. Aspect’s liability in such instance shall be limited in accordance with Paragraph 9 of the Terms and Conditions.
7.4 In the event of any claim by a third party for infringement of intellectual property rights the Client will give to Aspect sole and complete control of any action to defend their respective rights to use the material subject to the claim and will provide Aspect with all necessary assistance. The Client undertakes not to do anything without Aspect’s written consent which might prejudice or compromise in any way any defence or other action which Aspect might take.
8.1 Neither party shall divulge or communicate to any person, persons or company any of the trade secrets, secret or confidential information, operations, processes or dealing concerning the organisation, business, finances, transactions or affairs of the other party or its customers or clients (hereinafter called the “Confidential Information”) which may come to its knowledge during the provision of the Services or production of the presentation, conference, programme, production, promotion or campaign, and neither party shall use or attempt to use any such information in any manner which may cause loss to the other.
8.2 The provisions of clause 8.1 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
8.2.1 trivial or obvious;
8.2.2 already in the other’s possession on the date of its disclosure;
8.2.3 in the public domain other than as a result of a breach of this clause 8; or
8.2.4 required by law to be disclosed to a relevant or regulatory authority.
8.3 Notwithstanding the provisions of clause 8.1 above, Aspect reserves the right to use all or part of any Aspect Material produced for or acquired on behalf of the Client for demonstrating Aspect’s expertise to potential third party clients.
9. CLIENT PROPERTY
Aspect will take reasonable care of any Client’s property held by it but will do so at the Client’s risk and Aspect will not be liable for any loss or damage however caused other than by Aspect’s negligence. The insurance of such property shall be the responsibility of the Client.
10. FORCE MAJEURE
10.1 Aspect shall not be liable to the Client for any delay in the performance of its obligations under this contract, caused by a delay in any performance of the Client or otherwise caused by any national emergency, war, prohibitive governmental regulation, delay or non-performance by suppliers or subcontractors or any other cause beyond Aspect’s reasonable control, which renders the prompt performance of this Agreement impossible.
10.2 Where the Services are so delayed, and the delay exceeds 14 days, Aspect shall have the right by written notice to the Client to terminate this Agreement forthwith in whole or in part and shall have no liability for the whole or part so terminated.
10.3 The Client will be liable to pay for all Services supplied up to and including the date of termination.
11. LIMITATION OF LIABILITY
11.1 Nothing in this Agreement shall limit or exclude Aspect’s liability for:
11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
11.1.2 fraud or fraudulent misrepresentation; or
11.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
11.2 Subject to clause 11.1, Aspect shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
11.2.1 loss of profits;
11.2.2 loss of sales or business;
11.2.3 loss of agreements or contracts;
11.2.4 loss of anticipated savings;
11.2.5 loss of use or corruption of software, data or information;
11.2.6 loss of damage to goodwill; and
11.2.7 any indirect or consequential loss.
11.3 Subject to clauses 11.1 and 11.2, Aspect’s total liability to the Client, whether in contract, tort (including negligence), for indemnities, breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the total Price under the Budget in the relevant Agreement.
11.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
12. MATERIAL PROVIDED BY THE CLIENT
The Client shall be solely responsible for ensuring:
12.1 that the content of any promotion, production or programme developed by Aspect on behalf of the Client is lawful and does not contain any slanderous misleading or defamatory material; and
12.2 that the Client is duly authorised to use any material that it provides and that it obtains any necessary clearances or licences from any third party.
The Client shall indemnify Aspect and hold Aspect harmless against all or any losses, costs and expenses that may be incurred by Aspect and all claims, damages and demands that may be made against Aspect arising out of:
13.1 any breach by the Client of any of this agreement; or
13.2 any negligence on the part of the Client; or
13.3 any claim by a third party or customer of the Client
14. TRAVEL ARRANGEMENTS
14.1 In arranging travel and attendance at events, meetings or projects, Aspect will, subject to the Proposal and Budget, supply all relevant information in good faith but will not have liability with respect to such arrangements.
15. CANCELLATION, POSTPONEMENT, CHANGES TO ORIGINAL FORMAT
15.1 In the event of cancellation or postponement for whatever reason by either the Client or Aspect, the Client undertakes to reimburse Aspect in full for any costs which have been incurred or committed by or on behalf of Aspect as part of Aspect or the Client fulfilling its obligations under the Agreement. Such costs include but are not limited to all and any external costs and costs incurred or committed in relation to executive time.
15.2 In such circumstances where the project delivery format needs to change for whatever reason from the original agreement, the Client undertakes to reimburse Aspect in full for any costs which have been incurred or committed by or on behalf of Aspect as part of Aspect or the Client fulfilling its original obligations.
16. SUSPENSION AND TERMINATION
Without limiting its other rights and remedies under this Agreement, Aspect shall be entitled:
16.1 to suspend its performance of the Services if and for so long as the Client shall be in breach of any of its obligations including failure to make any payment at the agreed time;
16.2 to terminate this Agreement immediately on written notice if the Client has not rectified any breach of this Agreement within 27 days of Aspect giving the Client written notice of such breach; and
16.3 to terminate this Agreement without notice in the event of the bankruptcy, insolvency or liquidation of the Client at any time or in the event of a receiver being appointed over all or any part of the Client’s assets.
17. CONSEQUENCES OF TERMINATION
On termination of this Agreement for any reason:
17.1 the Client shall immediately pay to Aspect all of Aspect’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Aspect shall submit an invoice, which shall be payable by the Client immediately on receipt;
17.2 the Client shall return all of Aspect Materials which have not been fully paid for. If the Client fails to do so, then Aspect may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement.
17.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry; and
17.4 the following clauses shall survive termination and shall continue in full force and effect: 1, 5, 6, 7.4, 8, 11, 12, 13, 17, 19, 21, 22, 25, 26, 27 and 28..
18. ASSIGNMENT AND OTHER DEALINGS
18.1 Aspect may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.
18.2 The Client shall not, without the prior written consent of Aspect, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement.
19. ENTIRE AGREEMENT
19.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21. THIRD PARTIES
No one other than a party to this Agreement shall have any right to enforce any of its terms.
The waiver or non-enforcement by Aspect of any breach or non-observance of the Agreement or any of the Terms and Conditions shall not prevent the subsequent enforcement of the Agreement in full and shall not be deemed a waiver of any subsequent breach.
Any notice which either party is required by the Agreement to serve on the other party shall be sufficiently served if sent by registered or first class post to the other party at its registered office address and shall be deemed to be delivered 72 hours after posting.
It is the Client’s responsibility to effect all or any policies of insurance that it considers appropriate in connection with the Services.
Neither party shall during the continuation of any relationship between them and for a period of 12 months after expiry or termination of such relationship, howsoever caused, solicit the other party’s staff or personnel who have been employed or engaged in the provision of the Services or the performance of the Agreement. For the purposes of this clause “solicit” means the soliciting of such person with a view to engaging such person as an employee, director, sub-contractor or independent contractor.
26. INVALIDITY AND SEVERABILITY
If any provision in these terms shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect any other provisions and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision, which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
27. GOVERNING LAW
This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.