TasteAtTesco - Terms & Conditions

Recitals

N2O Limited ("the Agency") is appointed to conduct all product sampling, product demonstration, active selling and experiential activity ("Taste at Tesco") in and around Tesco stores.
The Agency carries on business as a marketing agency and provides a range of marketing services delivered on a standalone basis or as part of a marketing campaign.
The Agency shall provide the Services subject to these terms and conditions, which together with the Quotation and any applicable Campaign Booking Form comprises the Agreement.
The Agreement comes into force on the Commencement Date. The Agreement shall continue in full force and effect until the completion of the relevant Services, or subject to earlier termination in accordance with the Agreement.

Definitions and Interpretation

In this Agreement the following words will have the following meanings:
“Activity Day” means a day on which the Services are being performed as part of a Campaign, e.g. if sampling activity is taking place for two days in each of 100 Stores, this Campaign would comprise 200 Activity Days;

“Adequate Procedures” means adequate procedures, as referred to in section 7(2) of the Bribery Act 2010 and any guidance issued by the Secretary of State under section 9 of the Bribery Act 2010;

“Agency” means N2O Limited whose registered office is at Building 7, Foundation Park, Roxborough Way, Maidenhead, SL6 3UD with company number 03823730;

“Agreement” means these terms and conditions together with the Quotation and any applicable Campaign Booking Form;

“Anti-Corruption Legislation” shall mean the Bribery Act 2010 and any other applicable laws and regulations prohibiting public or commercial bribery, extortion, kickbacks or other unlawful or improper means of conducting business;

“Assigned Personnel” means any employee or other staff of the Agency or any subcontractor who is wholly or mainly assigned in the provision of the Services on behalf of the Agency;

“Brand Ambassadors” means the Personnel of the Agency who provide the Services location;

“Business Day” means a day other than a Saturday or Sunday or Bank Holiday in England;

“Campaign” means a defined period of marketing activity, usually involving, but not restricted to, product sampling, product demonstration, active selling and or experiential marketing;

“Campaign Booking Form” means a detailed description of a Campaign which sets out the Products to be promoted, the date and number of Activity Days, the type of marketing activity to be undertaken, the number and profile of Brand Ambassadors required (if any) and a description of the Show Material involved (if any);

“Car Park Site” means a designated area in a Tesco Store car park not to exceed 5m x 5m, and not exceeding 2.5m in height;

"Client" means any individual, company or organisation engaging the Agency to provide the Services as set out in the Quotation;

“Commencement Date” means the date at which a Client issues a Confirmation of Order;

"Confirmation of Order" means when the client confirms its approval of the Quotation in writing, either by email or hard copy, including the issue of a Purchase Order or otherwise authorises the Agency in writing to commence the Services;

“Confidential Information” means secret or confidential commercial, financial, marketing, technical or other information, know-how, trade secrets and other information in any form or medium whether disclosed orally, visually, in electronic form or in writing before or after the Commencement Date, together with any reproductions of such information in any form or medium or any part(s) of this information (and “confidential” means that the information, either in its entirety or in the precise configuration or assembly of its components, is not publicly available);

“Express Service” means a service offered by the Agency to deliver a Campaign where lead time is less than Standard Lead Time;

“Express Service Fee” means the fee applicable to Campaigns delivered under Express Service;

“Fees” means the charges payable by the Client to the Agency for the performance of the Services in relation to a Campaign, as set out in the Quotation;

“Good Industry Practice” means, in relation to any undertaking and any circumstances, the exercise of the skill, diligence, prudence, foresight and judgment which would be expected from a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances, applying the best standards currently generally applied to product sampling, product demonstration, active selling and experiential marketing;

“Intellectual Property Rights” means any invention, patent, utility models, copyright and related rights (including rights in computer software), design right, data base rights, trade mark or any other form of similar protection (whether registered or unregistered), any application for such protection, and any rights in relation to any Confidential Information, which are subsisting at the relevant time, and all rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world and all rights under licences and consents in respect of any of the rights and forms of protection mentioned in this definition;

"Job Venue" means any venue or location where the Services are performed at or delivered to as set out in the Quotation or Campaign Booking Form as applicable or otherwise agreed with the Client;

"Job Venue Equipment" means a sampling stand and any associated catering equipment, located in each Job Venue, for use in the performance of a Campaign as more specifically set out in the Quotation or Campaign Booking Form (as applicable) or otherwise agreed with the Client;

"Job Venue Rules" means the various policies of a Job Venue, including but not limited to its health and safety policy, environmental policy, information technology security policy, data protection policy, security policy and any other policies which are notified to the Agency from time to time;

"Party" means either the Client or the Agency in relation to this Agreement;

“Personnel” means, in relation to a Party, that Party's officers, employees, agents, subcontractors, consultants and representatives;

“Product” means the products which are to be promoted through the Campaign or proposed Campaign;

“Quotation” means the document setting out the Services to be provided by the Agency, usually in relation to a Campaign, and the Fees to be paid by the Client;

“Regulator” means, in relation to a Party, any statutorily recognised supervisory or government agency, body or authority having regulatory or supervisory authority over a Party's assets, resources or business, including any organisation reporting to such bodies, to the extent that such entity has jurisdiction over that Party;

“Sampling Stock” is Product to be used by Brand Ambassadors during sampling activity, which may be purchased or delivered to a Job Venue as specified in the Campaign Booking Form (as applicable) or otherwise agreed with the Client;

“Services” means the services specified in the Quotation provided by the Agency to the Client, as may be varied by mutual written consent by the Client and the Agency from time to time whether performed before or after the Commencement Date as provided in clause 4.5;

“Show Material” means any marketing collateral, such as uniform, FSUs (Free Standing units), leaflets, etc., or Sampling Stock requested or provided by the Client for deployment as part of a Campaign as set out in the Quotation or Campaign Booking Form (as applicable) or otherwise agreed with the Client;

“Standard Lead Time” means the required minimum of 40 Business Days between Commencement Date and the first Activity Day of a Campaign;

“Taste at Tesco” is the name of the product sampling, product demonstration, active selling and experiential activity managed by the Agency;

“Taste at Tesco Team” means the Assigned Personnel responsible for the management of Campaigns; and

“Tesco” means Tesco PLC.
The headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of this Agreement.
Words expressed in the singular shall include the plural and vice versa. Words referring to a particular gender include every gender. References to a person include an individual, company, corporation, firm or partnership.
The words and phrases "other", "including" and "in particular" shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.
All references in this Agreement to clauses are to the clauses in this Agreement unless otherwise stated.

Contract Formation and Term

The Agreement shall commence on the Commencement Date and shall continue in full force and effect until the completion of the relevant Services or, unless terminated earlier in accordance with clause 11 of these Terms.

Rates & Quotation

Each Quotation is based upon the Agency's rates in force at the time the Quotation is raised.
The Agency reserves the right to vary these rates from time to time by notice to the Client.
Upon request from the Client, the Agency will prepare a Quotation based around the Agency's understanding of the Client's requirements, setting out the Services to be supplied and the Fees.
The Agency will forward the Quotation to the Client for approval and the Quotation will remain valid for a period of twenty eight (28) days.
The Agency will not generally commence work until or after the Commencement Date, but any Services performed before the Commencement Date which are identified on the Quotation are chargeable as part of the Services.
Following the Commencement Date, where additional work is required that was not set out in the original Quotation, a revised or entirely new Quotaetion describing this additional work will be supplied to the Client for approval, and will remain valid for a period of twenty eight (28) days, and such additional work will be charged as follows:
1. additional campaign management work will be charged at £40 per hour;
2. additional creative work will be charged at £50 per hour; and
3. additional web development work will be charged at £50 per hour.
The day rate for Brand Ambassadors includes use of the Job Venue Equipment and a briefing document.
At the Client's request, food and any other items required for sampling will be purchased from the store and re-charged to the Client at the retail sales value at the time it was purchased.
Where Show Material is required:
1. the Agency will distribute to Job Venues and charge the prevailing rate for up to 10kgs volumetric weight per Job Venue delivery. Additional volumetric weight is charged at the prevailing rate per kg.
2. when provided by the Client, Show Material should arrive at the Agency's warehouse between ten (10) and twenty (20) Business Days before the first Activity Day of the Campaign. Show Material arriving less than five (5) Business Days from the first Activity Day of the Campaign will attract an additional distribution fee of £200 to cover the extra resource required to pick and pack deliveries in the reduced time available.
3. any excess sent to the Agency will be charged at £100 per pallet for disposal.
4. if the Client postpones any Activity Days, and Show Material is already with the Agency, there will be a charge of £100 per pallet per week for storage or £100 per pallet for disposal.
The Agency will provide a mandatory sales uplift report for each Campaign, which will be delivered to the Client within ten (10) Business Days of the last Activity Day provided the relevant EPOS data is available, and this sales uplift report will be charged to the Client at the prevailing rate.
The Agency will only commence a Campaign on approval of the Campaign Booking Form by the Taste at Tesco Team and, where necessary, relevant Tesco departments.
The Agency may assist the Client with the development of a Campaign concept to get the Campaign Booking Form approved. This may take the form of a written description, sketch or visual.
The Taste at Tesco Team will consider all proposed Campaigns, and where a Campaign is declined will provide a written explanation so far as is practical and appropriate.

Obligations of the Agency

The Agency agrees to provide the Services to the Client in accordance with the provisions of this Agreement.
The Agency warrants, represents and undertakes that:
1. it will provide the Services in accordance with Good Industry Practice;
2. it will use techniques and standards fit for purpose;
3. It will comply with and endeavour to ensure that its Personnel comply with:
  1. a) all relevant legislation (including the Applicable Data Protection Law (as that term is defined in clause 14.1 of this Agreement), the Health & Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1992), regulations, codes of practice, guidance notes and other requirements of any relevant government or governmental agency or Regulator; and
  2. b) all laws pertaining to the legal entitlement to work in the United Kingdom.
Notwithstanding, clause 5.2, the Agency hereby excludes its liability to meet any other performance standards or targets unless otherwise agreed in writing by both Parties.
The Agency shall be under no liability under clause 5.2:

if any part of the Fees which are due and payable have not been paid by the due date for payment; or
in respect of any defect arising from any Show Materials or instructions supplied by the Client which are incomplete, incorrect or inaccurate or arising from their late arrival or non-arrival or any other acts, omissions, negligence or default of the Client, its servants or agents.

The Client understands and accepts that the Agency must comply with any reasonable directions of the Job Venue which might affect the performance of the Services.
The Agency shall keep the Client informed regularly of and promptly respond to any requests relating to the performance of the Services.

Fees & Payment Terms

After Confirmation of Order and before the Services are delivered, the Agency shall raise an invoice for the Fees set out in the Quotation. Payment of this invoice is due within seven (7) days of the invoice date or before the Services are delivered whichever is the earlier.
The Agency may agree to invoice in instalments for the Services subject to a credit assessment of the Client, undertaken by the Agency's credit assessor. Where so approved, the Agency will a) invoice 50% of the Fees on Confirmation of Order for payment within seven (7) days of the invoice date or before the Services are delivered whichever is the earlier and b) invoice the remaining 50% on completion of the performance of the Services for payment within thirty (30) days of the invoice date, subject to clause 9.3.
For the avoidance of doubt, where payment is not received by the due date, the performance of the Services will be placed on hold until payment is received.
VAT (where applicable) will be payable by the Client in addition to the Fees subject to presentation to the Client by the Agency of a valid VAT invoice.
Any material breach of this clause shall entitle the Agency to suspend, delay or terminate, without prior notice, all Services concluded under these Terms between the Client and the Agency.
The Client shall not make any payments directly to Brand Ambassadors. Any such payments shall not be deemed to be part of the Client's payment of Fees or of any interest accrued on overdue payments.
The Client shall not make any deduction in respect of any alleged set off or counter claim howsoever arising.
If at the request of the Client the Agency agrees to provide services not included within the Services, the Client shall pay the Agency such additional charges as are quoted by the Agency and agreed between the Parties.
Where 97% or more of the scheduled Activity Days are staffed by the Agency, the Client accepts that the Fees will be invoiced in full as administering the difference is uneconomic.
The Agency provides an Express Service for Campaigns where lead time is less than Standard Lead Time of 40 Business Days under conditions that:

an Express Service Fee of 10% is applicable to any Campaign delivered under Express Service to cover additional costs incurred;
the Client has provided the following information to the Agency at Commencement Date:

(a) PO number; and
(b) signed off visual or visuals of proposed assets to be used if required; and
(c) completed activity booking form.

the following minimum lead times are adhered to:

(a) 15 Business Days for an aisle activity;
(b) 25 Business Days for a foyer activity;
(c) a period for experiential activity will be dependent on Campaign requirements.

in exceptional cases, the Agency may accept bookings for Campaigns with shorter lead times than those stated in clause 6.9.3 but the Client accepts this is entirely at the discretion of the Agency.

Brand Ambassadors

When requesting Brand Ambassadors, the Client must provide the following minimum information:
1. any special experience, training, qualifications or authorisation which the Client considers are necessary, or which Brand Ambassadors are required to have by law or by the requirements of any professional body in order to perform the Services;
2. if the Assignment involves working with vulnerable persons, including without limitation persons under the age of 18, or persons in need of care or attention by reason of old age, infirmity or any other circumstances;
3. if the Brand Ambassadors are called upon to operate any special machinery or equipment, in which case the Client is responsible for ensuring that Brand Ambassadors ability, qualifications and skills are adequate to operate any such special machinery or equipment and the Client will be responsible for any liability whatsoever which may arise.
The Agency will use its reasonable endeavours to ensure that Brand Ambassadors provided to deliver the Services will have all relevant skills, qualifications and experience to perform the Services including any particular skills specified by the Client in accordance with clause 7.1.
All communication with Brand Ambassadors is to be undertaken by the Agency and the Client shall not make direct contact with any Brand Ambassadors in connection with the Services, except where expressly agreed otherwise.7.3. All communication with Brand Ambassadors is to be undertaken by the Agency and the Client shall not make direct contact with any Brand Ambassadors in connection with the Services, except where expressly agreed otherwise.
The Client shall not instruct nor allow any Brand Ambassadors to undertake any activities outside the scope of the Services set out in the approved Quotation.
In the event that a Brand Ambassador assigned to a Campaign is reasonably deemed unsatisfactory, the Agency will, at its own expense, take remedial action and where reasonably deemed necessary, terminate the Brand Ambassador’s participation and provide a replacement as quickly as reasonably possible.
The Agency is responsible for the payment of Brand Ambassadors and any reimbursement of disbursements to which he or she is entitled by reason of carrying out an Assignment.

Obligations of the Client

The specification of the Services is as set out in the Quotation, and where applicable, the Campaign Booking Form. The Client may request changes to the specification of the Services after the Commencement Date but understands and accepts that these changes may not be possible, or if they are possible, may incur additional charges.
When requesting a Campaign, the Client is required to provide all of the necessary information that together forms the Campaign Booking Form. The Client is solely responsible for the accuracy of all such information provided.
When requesting a Campaign, any subsequent changes to the details of the Campaign Booking Form must be agreed between the Parties in writing and, where necessary, the Agency will communicate any agreed Assignment changes to the Brand Ambassadors.
Where the Client provides its own Sample Stock, Show Material, etc., the Client must have adequate insurance cover in place including public liability insurance of at least £5,000,000. The Agency reserves the right to request a copy of the insurance certificate setting out this cover.
The Client warrants to the Agency that the content of any Show Material provided by the Client, or produced by the Agency for the Client in accordance with the Campaign Booking Form, will:
1. comply with all legislation, regulations and codes of practice of any competent authority or body relating to advertising standards applicable from time to time;
2. be free from any content which may lead to adverse comment on or commercial damage to the Agency or Job Venue involved in the performance of the Services;
3. in respect of any component of the Show Material which contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any copy by which any living person is or can be identified, the authority of such living person to make use of such name, representation and/or copy has been obtained; and
4. not infringe the Intellectual Property Rights of any third party.
The Client hereby undertakes to comply with all obligations, duties and regulations (whether statutory or otherwise and without prejudice to the generality of the foregoing, those relating to the place, nature or system of work) in any way arising from or directly or indirectly connected with the Campaign.
In the event that the Client wishes to make a complaint about any Services provided by the Agency, the Client should inform the Agency within ten (10) Business Days of the cause for complaint arising.
If the Agreement specifies that the Client will collect Show Material or Job Venue Equipment from the Job Venue at the end of a Campaign, the Client will do so within five (5) Business Days of the last Activity Day. If the Client fails to do so, the Agency shall be entitled to destroy or (at the Agency's sole discretion) dispose of all such materials, and shall have the right to invoice the Client for any costs arising from such destruction or disposal.
The Client shall not make direct contact with Tesco or its servants, agencies, subcontractors or employees in connection with the Services. If the Agency is notified of any such direct communication regarding the Services the Client will be in material breach of this Agreement and clause 11.3.2 will apply.
For Campaigns booked in Car Park Sites where Services are to be provided by an agency other than the Agency, as agreed by the Agency in the Campaign Booking Form, the Client will undertake to comply with, and will be responsible for ensuring its employees, agents and subcontractors comply with, this clause in addition to the rest of the Agreement.
1. The Client will be granted, by the Agency, the personal, non-assignable right to use Car Park Sites for the Campaign, subject to these Terms.
2. Unless otherwise specified, the right to use Car Park Sites applies only during the opening hours of the corresponding store. The Client may not leave any equipment on the Car Park Site overnight.
3. The Client shall, and shall undertake that its employees, agents and subcontractors shall:
  1. a) not bring any items on to the Car Park Site without the consent of the Agency except as is strictly necessary pursuant to clause 5.2.3(a);
  2. b) keep the Car Park Site clean and tidy and clear of rubbish, and leave it in a clean and tidy condition at the end of each day, on termination of this Agreement and at the end of the Campaign;
  3. c) provide all Sampling Stock;
  4. d) install the Show Material and any other equipment or advertising media at its own cost at the Car Park Site;
  5. e) give the Agency reasonable notice of when it requires access to the Car Park Site. The Client accepts that it shall only have access to the Car Park Site when it is convenient to Tesco;
  6. f) limit its Campaign activity and all promotional activities to the Car Park Site and ensure that its staff do not cause any intrusion upon any consumers outside the Car Park Site;
  7. g) comply with retailer information included in the Taste at Tesco Campaign Booking Form - Car Park document;
  8. h) comply with any applicable health and safety laws and regulations and, when on Tesco premises, comply with the Job Venue Rules; and
  9. i) display all appropriate notices concerning food content/allergies etc.
4. The Client shall not:
  1. a) offer for sale, or sell, any products or services whatsoever on the Car Park Site
  2. b) encroach on the area surrounding the Car Park Site for the purposes of conducting any promotional activities whatsoever;
  3. c) use the Car Park Site in such a way as to cause any nuisance, damage or disturbance to the Agency, Tesco or any occupiers or users of any adjoining or neighbouring property; or
  4. d) do anything on or in relation to the Car Park Site that will or might constitute a breach of any statutory requirement affecting the Car Park Site or vitiate any insurance effected in respect of the Car Park Site from time to time.

Cancellation and Delay

If any delay or failure in the performance of the Services results from a failure or delay on the part of the Client in complying with its obligations under this Agreement, the Client shall remain liable to pay the total Fees and any other sums due to the Agency in accordance with this Agreement.
In respect of any changes to the Services (including rescheduling of Activity Days, substitution of Job Venues and changes to the Show Material) requested ten (10) Business Days or less prior to the first Activity Day, it will be at the Agency's sole discretion to determine whether the changes are possible. The Agency reserves the right to refuse to make any such changes requested ten (10) Business Days or less prior to the first Activity Day.
If, following Confirmation of Order for a Campaign, the Client subsequently cancels or delays all or part of a Campaign, for whatever reason, the following charges will apply:
1. if the Client gives written notice to the Agency ten (10) Business Days, or less, prior to the first Activity Day, the Client is liable to pay the total Fees;
2. if the Client gives written notice to the Agency between eleven (11) and twenty (20) Business Days prior to the first Activity Day, the Client is liable to pay 50% of the Fees;
3. if the Client gives written notice to the Agency between twenty one (21) and thirty (30) Business Days prior to the first Activity Day, the Client is liable to pay 25% of the Fees;
4. if the Client gives written notice to the Agency between thirty one (31) and forty (40) Business Days prior to the first Activity Day, the Client is liable to pay 10% of the Fees;
5. where significant management time is required to reschedule activity, the Agency shall have the right to charge a reasonable fee for management time, which will be quoted at that time; and
6. all such charges, if not already invoiced, will be invoiced upon receipt of the written notice and will be due immediately.
In the event that Show Material is delivered into the Agency's warehouse within five (5) Business Days of the first Activity Day, it may be necessary to upgrade the courier service to ensure the Show Material arrives in time. These additional courier costs will be notified to the Client at the time as soon as they are deemed necessary and recharged at cost.
In the event that Show Material is delivered into the Agency's warehouse too late to be delivered to the Job Venues in time for the Activity Days, the Agency reserves the right to proceed with the performance of the Activity Days without the Show Material and no reduction or discount in the Fees will be applicable.

Force Majeure

The Agency shall not be liable in respect of any failure or delay to perform any of its obligations under this Agreement to the extent that such delay or failure is caused by any circumstances beyond the reasonable control of the Agency (including, without limitation, failure of a utility service or transport network, acts of God, war, riots, civil unrest, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, severe weather conditions, strikes, lock-outs, other industrial disputes, default of suppliers or subcontractors, or terrorist attacks), and shall be entitled at its own option (to be notified to the Client in writing by an authorised representative) either to terminate the Agreement (where the Agency shall be relieved of all liabilities hereunder) or to, with the agreement of the Client, extend the timeframe of its performance of the Services by a period roughly equivalent to that during which performance by the Agency had been prevented by the circumstances therein previously referred to.

Termination

The Client may terminate the Services at any time, but shall pay any termination charges in accordance with clause 9.3. The Agency may terminate the Services without liability by giving at least forty one (41) Business Days' notice with such notice to expire on the first intended Activity Day.
Termination of this Agreement for any reason, whether under this clause 11 or not, shall be without prejudice to the accrued rights and liabilities of the Parties on the date of termination
Either Party may terminate the Agreement without liability to the other immediately on giving written notice to the other if:
1. the other Party fails to pay any undisputed amount due under the Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
2. the other Party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that Party being notified in writing of the breach; or
3. the other Party repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement; or
4. the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply); or
5. the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party; or
6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party; or
7. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other Party; or
8. a floating charge holder over the assets of that other Party has become entitled to appoint or has appointed an administrative receiver; or
9. a person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party; or
10. a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days; or
11. any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.3.4. to clause 11.3.10. (inclusive); or
12. the other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
Notwithstanding the foregoing, the Agency may terminate the Agreement without liability to the Client immediately on giving written notice if:
1. control of the Client is acquired by any person or connected persons not having control of the Client on the date of the Agreement. For the purposes of this clause, "control" and "connected persons" shall have the meanings ascribed thereto by sections 1124 and 1122 respectively of the Corporation Tax Act 2010;
2. the Agency reasonably considers the Show Material provided by the Client, or produced by the Agency for the Client in accordance with the Campaign Booking Form, to be offensive, false, misleading, deceptive or in breach of any warranty in this Agreement; or
3. the Agency considers that the Show Material provided by the Client, or produced by the Agency for the Client in accordance with the Campaign Booking Form, does not comply with the requirements of the Advertising Standards Authority and the Code of Advertising Practice Committee and/or the relevant legislation and provisions of the British Code of Advertising Practice, as updated from time to time.
Upon termination of the Agreement for any reason other than a breach by the Agency, subject to any rights of set-off or withholding:
1. the Client shall immediately pay to the Agency all of the Agency's outstanding unpaid and undisputed Fees and interest (if applicable) and, in respect of Services supplied but for which no invoice has been submitted, the Agency may submit an invoice, which shall be payable immediately on receipt;
2. the Client shall, within a reasonable time, return all of the Agency's equipment and any other goods or materials belonging to the Agency. If the Client fails to do so, then the Agency may enter the Client's premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safekeeping;
3. the Agency shall, within a reasonable time, return all of the Client's material, goods and Confidential Information belonging to the Client. Until they have been returned, the Agency shall be solely responsible for their safe keeping;
4. the Parties will immediately destroy or return, as requested in writing by each Party, the Confidential Information in their possession and, in the case of destruction, certify to the other Party that it has done so; and
5. the accrued rights and liabilities of the Parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.

Limitation of Liability

This clause sets out the entire financial liability of the Agency, including any liability for the acts or omissions of its Assigned Personnel, to the Client in respect of:
1. any breach of the Agreement;
2. any use made by the Client of the Services, the deliverables or any part of them;
3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
It is the Client's responsibility to ensure that the Services are suitable for its needs. In particular, and without limitation, the Agency expressly disclaims all implied warranties, conditions and other forms and representations as to merchantability, satisfactory quality or fitness for a particular purpose, or quality of services. The Agency does not warrant use of the Services or any part will achieve any specific results or outcome, or will result in any economic advantage, increase in profits or reduction in costs. The Agency expressly disclaims all warranties and makes no representations that (i) the Services or any part thereof will be error-free or (ii) information and materials located or obtained through use of the Services are timely, accurate, relevant or complete.
Nothing in this Agreement limits or excludes the liability of the Agency:
1. for death or personal injury resulting from negligence; or
2. for any damage or liability incurred by a Party as a result of fraud or fraudulent misrepresentation by the other Party.
In no event shall the Agency be liable for any tortious loss (including negligence and negligent misstatement) , misrepresentation, breach of statutory duty or for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise and whether or not the Agency is advised of the possibility of loss, liability, damage or expense):
1. loss of revenue;
2. loss of actual or anticipated profits (including for loss of profits on contracts);
3. loss of sales or business;
4. loss of opportunity;
5. loss of or damage to goodwill or reputation;
6. any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in clauses 12.5.1 - 12.5.6).
Subject to clauses 12.4 and 12.5 above, the aggregate liability of the Agency to the Client, whether in contract or tort (including negligence and negligent misstatement) or for misrepresentation, breach of statutory duty or otherwise arising under or connection with this Agreement (including liability for recovery of sums paid by the Client in respect of the Services shall not exceed the aggregate Fees payable under the Agreement.
The Client will indemnify the Agency against all damages, losses, demands, costs, expenses and claims made against, incurred or suffered by the Agency (including, for the avoidance of doubt, any claim or threatened claim by or on behalf of any of the Agency's Personnel or any Brand Ambassador) as a result directly or indirectly of:
1. any act or omission carried out by the Agency, its employees, its agents or its subcontractors in accordance with the instructions provided by the Client; or
2. any breach by the Client of any of its other obligations under this Agreement and/or any other act, omission, neglect or default on the part of the Client, its agents, subcontractors or employees. For the avoidance of doubt, the Client shall retain responsibility for all Show Material, Job Venue Equipment, etc. provided by the Client; or
3. the cancellation by the Client of any part of the Agreement pursuant to clause 9; or
4. any claim brought against the Agency or its servants, agents, subcontractors or employees by any third party in relation to the Client’s product.
Notwithstanding clause 12.4, in the event that the Job Venue suspends or terminates any Services or Campaign for any reason, then subject to the Client having complied with its obligations under the Agreement and subject to the other terms of the Agreement, the Agency's total liability shall be limited to the amount of the daily fee specified in the Agreement multiplied by the number of days of the Campaign that were outstanding in respect of the relevant Services.

Confidentiality

Subject to clause 13.2, neither Party shall use, disclose or communicate to any person (other than as permitted by this Agreement or with the written consent of the disclosing Party) any Confidential Information and the receiving Party shall use all reasonable endeavours to prevent the unauthorised use, publication or disclosure of that Confidential Information to any third party.
The Client and the Agency may disclose Confidential Information to Personnel to the extent necessary for the performance of such Party's obligations under this Agreement provided such disclosure is subject to obligations equivalent to those set out in this Agreement. Each Party shall use all reasonable endeavours to procure that any such Personnel complies with such obligations. Each Party will be responsible to the other Party in respect of any disclosure or use of the other's Confidential Information by a person to whom it makes, or permits, such disclosure or use.
The obligations of confidentiality in this clause do not extend to any Confidential Information which the Party that wishes to disclose or use can show:
1. is or becomes generally available to the public other than as a result of a breach of the obligations of confidentiality under this Agreement; or
2. was in its written records prior to the Commencement Date and not subject to any confidentiality obligations; or
3. was or is disclosed to it by a third party entitled to disclose the same; or
4. the parties agree in writing it is not Confidential Information or it may be disclosed; or
5. is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.

Data Protection

In this clause, “Applicable Data Protection Law” shall mean (a) the Data Protection Act 1998; or (b) from 25 May 2018, the General Data Protection Regulation ((EU) 2016/679), and any applicable legislation that supersedes, replaces or applies the operation of the General Data Protection Regulation (GDPR) in the UK. The terms Data Controller, Data Processor, Personal Data, Sensitive Personal Data and Processing shall be as defined in the Applicable Data Protection Law, and “Data” shall mean the Personal Data and Sensitive Personal Data provided by the Client to the Agency pursuant to this Agreement. The Parties acknowledge that the Client is a Data Controller and that the Agency is a Data Processor.
Each Party shall comply at all times with Applicable Data Protection Law and shall not perform its obligations under this Agreement in such a way as to cause the other to breach any of its applicable obligations under Applicable Data Protection Law.
The Client represents and warrants to the Agency that the Client has obtained all the necessary consents from data subjects to process the Data and to outsource the processing of any Data to the Agency and the Client covenants that it shall notify the Agency in writing if there are any material changes to the Data that the Agency processes under this Agreement.
The Client acknowledges and agrees that pursuant to its obligation under Article 28(1) of the GDPR to only appoint processors providing sufficient guarantees to implement appropriate technical and organisational measures to meet the requirements of the GDPR, it has assessed the Agency's applicable technical and organisational measures and considers them to be sufficient, taking into account the nature, scope, context and purpose of the processing undertaken pursuant to this Agreement.
Where the Agency processes Data on behalf of the Client, with respect to such processing, the Agency shall:
1. process the Data only in accordance with this Agreement and the documented instructions of the Client;
2. implement appropriate technical and organisational measures to protect the Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm and risk which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the Data and having regard to the nature of the personal data which is to be protected;
3. only permit the Data to be processed by persons who are bound by enforceable obligations of confidentiality and take steps to ensure such persons only act on the Agency's instructions in relation to the processing;
4. remain entitled to appoint third party sub-processors. Where the Agency appoints a third party sub-processor, it shall, with respect to data protection obligations:
  1. a) ensure that the third party is subject to, and contractually bound by, at least the same obligations as the Agency; and
  2. b) remain fully liable to the Client for all acts and omissions of the third party, and all sub-processors engaged by the Agency as at the Commencement Date of this Agreement shall be deemed authorised;
5. in addition to the sub-processors engaged pursuant to clause 14.5.4(a) (above), be entitled to engage additional or replacement sub-processors, subject to:
  1. a) the provisions of clause 14.5.4(a) and (b) being applied; and
  2. b) the Agency notifying the Client of the additional or replacement sub-processor, and where the Client objects to the additional or replacement processor, the Parties shall discuss the objection in good faith;
6. notify the Client without undue delay after becoming aware that it has suffered a Data breach;
7. at the Client's cost and not more than once in any twelve (12) month period, permit the Client (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit the Agency's data processing activities to enable the Client to verify and/or procure that the Agency is complying with its obligations under this clause 14;
8. on the Client's reasonable request and at the Client's cost, assist the Client to respond to requests from data subjects who are exercising their rights under the Applicable Data Protection Law (insofar as it is reasonably possible for the Agency to do so);
9. on the Client's reasonable request and at the Client's cost, assist the Client to comply with the Client's obligations pursuant to Articles 32-36 of the GDPR (or such corresponding provisions of Applicable Data Protection Law), comprising (if applicable): (a) notifying a supervisory authority that the Client has suffered Data breach; (b) communicating a Data breach to an affected individual; (c) carrying out an impact assessment; and (d) where required under an impact assessment, engaging in prior consultation with a supervisory authority; and
10. unless applicable law requires otherwise, upon termination of the agreement delete all Data provided by the Client to the Agency (unless this is not technically possible, prohibited by law or would involve disproportionate effort).
The Client shall indemnify and hold harmless on demand the Agency for any loss, damage, expenses or fine incurred as a result of any unsuccessful claim by a data subject when such claim holds both the Client and the Agency as jointly and severally liable under the Applicable Data Protection Law.

Bribery and Corruption

The Client acknowledges that the Agency is committed to eliminating all risk of bribery and corruption in its supply chain and will comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010. The Client acknowledges and agrees that the Agency shall not be under any obligation to carry out any action or make any omission under this Agreement to the extent that the Agency reasonably believes it would be in breach of any Anti-Corruption Legislation.
The Client warrants, acknowledges and agrees that neither it nor any third party has breached any Anti- Corruption Legislation in order for the Agency to enter into this Agreement.
Breach of this clause by the Client shall be deemed a material breach under clause 11.3.2.

Intellectual Property

The Client will obtain, or procure the obtaining, for the Agency of all necessary permissions, consents and releases from authors, artists, photographers, models and any other persons and Intellectual Property Right holders as may be required in connection with this Agreement to enable the Agency to carry out the Services.
The Client represents, warrants and undertakes that the Agency's use and possession of any materials generated by or obtained from the Client under this Agreement shall not infringe any third party's Intellectual Property Rights.
The Client agrees to grant permission to the Agency to use their corporate and brand logos and any other Intellectual Property Rights in connection with the performance of the Services. The Client will provide the Agency with any brand guidelines as soon after the Commencement Date as possible so that the Agency can perform the Services in a timely manner.
The Client hereby indemnifies and shall keep the Agency fully and effectively indemnified from and against all costs, losses, charges, damages, expenses (including, without limitation, legal expenses on a full indemnity basis) incurred by or awarded against the Agency arising out of any claims or allegations made against the Agency by any third party alleging that the use by the Agency of any Intellectual Property Rights created by the Agency and incorporating Intellectual Property Rights provided by the Client or provided for use by the Agency by the Client in accordance with this Agreement (which includes the provision and use by the Agency of any Show Material) infringes such third party's rights (including, without limitation, its Intellectual Property Rights).
Where the Quotation or Campaign Booking Form expressly identifies that the Client owns the copyright or other Intellectual Property Rights in any creative concepts or designs the Agency creates solely in the performance of the Services, subject to payment in full by the Client of all Fees, the Agency, by present assignment of current and future rights, hereby assigns to the Client the copyright or other Intellectual Property Rights so identified. Any such creative concepts or designs developed for the Client by the Agency as part of the performance of the Services remains the Intellectual Property Rights of the Agency until the Fees have been paid in full.
If, and to the extent that any of the creative concepts or designs comprise or include any third party materials, the Agency shall (unless otherwise agreed in writing by the Client) procure at the cost of the Client licence for the Client to use such third party materials solely for the purposes of the Services.
Any creative Campaign concepts developed for the Client by the Agency as part of Taste at Tesco remain the intellectual property of Tesco and cannot be used in connection with any other retailer without Tesco's prior written approval.

No Partnership or Agency

Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

Entire Agreement

This Agreement forms the entire agreement between the Client and the Agency relating to the Services and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and undertakings between them, whether written or oral relating to the subject matter (if any) relating to the Services. Each Party acknowledges that in entering into this Agreement it has not relied on any representation, warranty or other assurance or warranty save as set out in this Agreement.
More particularly (but without limitation), no printed standard terms that may appear on any purchase order, invoice or despatch order relating to the Services or provided by the Client, shall have any effect.
Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
Nothing in this clause shall limit or exclude any liability for fraud.

Variations

No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
The Agency reserves the right to review and to amend these Terms from time to time without prior notice.

Non-Solicitation

The Client and the Agency shall not, during the term of this Agreement and for a period of six (6) months thereafter, offer employment to any Personnel of the other who were engaged in connection with the provision of the Services.
If the Client, or the Client's employee, agent or subcontractor engages, in any capacity, any person who at the time of such engagement was employed or engaged by the Agency, the Client will be liable for a recruitment fee as set out in clause 20.2.1, without entitlement to rebate. Interest will run from the date of employment or engagement calculated at the rate of 2% per calendar month or part thereof.

Agency Personnel

It is intended between the Parties that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) will not apply to this Agreement and that all Agency Personnel engaged in the provision of the Services shall remain employed or engaged at all times by the Agency.

Waiver

Failure by either Party to exercise or enforce any rights under this Agreement shall not be construed as a waiver of those rights, nor shall it operate to bar their subsequent exercise or enforcement. No waiver of any term of this Agreement shall be effective unless written and signed by the Party against whom enforcement of the waiver is sought. All rights, remedies, undertakings and obligations in this Agreement are cumulative.

Survival of Obligations

Notwithstanding any provision of this Agreement to the contrary, the provisions of clauses 6 (Fees and Payment Terms), 11.1, 11.5 (Termination), 12 (Limitation of Liability), 13 (Confidentiality), 14 (Data Protection), 15 (Bribery and Corruption), and any other clauses which expressly or impliedly survive termination of this Agreement for any reason whatsoever shall continue in full force and effect after termination.

Modern Slavery Act

In performing its obligations under the Agreement, the Agency shall:
1. comply with all applicable laws relating to anti-slavery and human trafficking from time to time in force including the Modern Slavery Act 2015;
2. to the extent required by applicable laws have and maintain throughout the term of this Agreement its own policies and procedures to ensure its compliance;
3. not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK; and
4. in its contracts with its subcontractors and customers require that such persons shall comply with the obligations in clauses 24.1.1 to 24.1.3.

Notices

All notices between the Parties with respect to the Agreement shall be in writing and signed by or on behalf of the Party giving it. Any notice shall be duly given (i) on delivery if delivered by hand, (ii) forty eight (48) hours after sending if sent by first class post or special or recorded delivery (or other “proof of delivery” or “proof of posting” service that Royal Mail may from time to time offer) or (iii) on sending if sent by email.
Notices shall be sent to the addresses given below (or such other address as the addressee may from time to time have notified for the purpose of this clause):
1. in the case of notices delivered by hand, post or recorded delivery, to the address of the addressee given at the start of this Agreement; and
2. in the cases of notices sent by email to the email addresses set out in the Quotation.

Assignment

The Client shall not, without the prior written consent of the Agency, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Agreement.
The Agency shall not, without the prior written consent of the Client, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent on condition that the Agency shall remain fully responsible and liable for such third party or agent.
Each Party to this Agreement that has rights under the Agreement is acting on its own behalf and not for the benefit of another supplier, company or organisation.

Third Party Rights

A person who is not a Party to this Agreement or a permitted assignee has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.

Severability

If any of the terms of this Agreement are or become invalid, illegal or unenforceable, the remaining provisions shall continue to have full force and effect. The parties will negotiate in good faith to substitute a valid and enforceable provision that achieves the same effect as intended by the invalid, illegal or unenforceable provision.

Governing Law and Jurisdiction

This Agreement and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of England and Wales.
The Client and the Agency irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Terms And Conditions