Terms And Conditions

  1. General
    1. On behalf of Tesco, dunnhumby has appointed N2O Limited (“the Agency”) to conduct all product sampling, product demonstration, active selling and experiential activity (the “Program”) in and around its stores.
    2. Any supplier, company or organisation engaging the Agency to commission a Campaign shall be referred to herein as “the Client”.
    3. In order to deliver activity, the Agency shall provide a range of services (“the Services”) subject to these terms and conditions (the “Terms”), which shall prevail to the exclusion of any other terms (including purchase order terms supplied by the Client), unless and to the extent otherwise expressly agreed in writing by the Agency’s authorised representative.
    4. The receipt of Services by the Client shall be deemed acceptance of and agreement to these Terms.
    5. These Terms together with a quotation (the “Quotation”) approved and accepted by the Client, form an agreement (“the Agreement”).
    6. The order has been confirmed (“Confirmation of Order”) when the Client has approved and accepted the Quotation for a Campaign and the Agency is in receipt of a purchase order number (or similar) from the Client.
    7. The Agreement shall be effective from the Confirmation of Order and shall continue in full force and effect until the completion of the relevant Services or, subject to earlier termination in accordance with the Terms of this Agreement.
    8. None of the provisions of the Agreement shall be deemed to constitute a partnership or joint venture of any kind between the Parties.
  2. Definitions and Interpretation
    1. In this Agreement the following words will have the following meanings:

      “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;

      “Activity Day” means a day on which the Services are being performed in a Store 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.

      “Agreement” means these terms and conditions together with the Quotation;

      “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 at the Stores;

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

      “Campaign” means face-to-face promotional activity, usually involving product sampling, product demonstration, active selling and or experiential marketing techniques, conducted in the form of events inside or away from Stores;

      “Campaign Specification” means a detailed description of each Campaign which sets out the type of promotional activity to be undertaken, the number and profile of Brand Ambassadors required, any Show Material involved and the list of Stores or venues at which the activity is to take place, together with the Fees. The Campaign Specification resides on the Website.

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

      “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 or in writing before or after the date of this Agreement, 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);

      “dunnhumby” means dunnhumby Limited

      “Employment Liabilities” means all claims, including but not limited to, claims for redundancy payments, unlawful deduction of wages, unfair, wrongful or constructive dismissal compensation, compensation for discrimination, claims for equal pay, compensation for less favourable treatment of part-time workers, and any claims (whether in tort, contract, statute or otherwise), demands, actions, proceedings and any award, compensation, damages, tribunal awards, fine, loss, order, penalty, disbursement, payment made by way of settlement and costs and expenses directly and reasonably incurred in connection with a claim or investigation (including any investigation by the Equality and Human Rights Commission or other enforcement, regulatory or supervisory body), and of implementing any requirements which may arise from such investigation, and any legal costs and expenses;

      “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 highly 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 patent, copyright (including rights in computer software), design right, trade mark or any other form of similar protection, 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;

      “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 and representatives;

      “Products” means the products which are the subject of a Campaign or proposed Campaign from time to time;

      “Quotation” means the document, or screen on the Website, defining the Services to be provided by the Agency 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 Store;

      “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;

      “Show Material” means any marketing collateral, such as uniform, FSUs, leaflets, etc., or Sampling Stock requested or provided by the Client for deployment in Stores as part of a Campaign;

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

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

      “Stores” means those Tesco retail outlets at which a Campaign can be held, as may be agreed between Tesco and the Agency from time to time;

      “Store Equipment” means the sampling stand and associated catering equipment, located in each Store, for use in the performance of a Campaign;

      “Store Rules” means the various policies of Tesco that it implements generally at the relevant Stores, as varied from time to time, 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;

      “Tesco” means Tesco PLC;

      “Taste at Tesco” is the name of the Program managed by the Agency;

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

      “Website” means the Program website (www.tasteattesco.com), which is an online portal in place to facilitate the initial proposal, scheduling, approval and management of Campaigns.

    2. The headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of this Agreement.
    3. 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.
    4. 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.
    5. All references in this Agreement to clauses are to the clauses in this Agreement unless otherwise stated.
  3. Rates & Quotation
    1. Each Quotation is based upon the rates currently in force, which are published on the Website.
    2. Tesco and the Agency reserve the right to vary these rates from time to time.
    3. The Client can obtain indicative costs when they propose a Campaign on the Website; however, a Quotation does not become valid until it is has been checked and approved by the Taste at Tesco Team. Its approval status is indicated on the Website.
    4. Once a Quotation has been approved by the Taste at Tesco Team, it remains valid for a period of 28 days.
    5. The Day Rate for Brand Ambassadors includes use of the Store Equipment with standard branding, standard catering consumables, and a briefing document.
    6. At the Client’s request, food and any other costs 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.
    7. Where required, distribution of Show Material to Stores will be undertaken by the Agency and charged at the prevailing rate for up to 10kgs volumetric weight per Store delivery. Additional volumetric weight is charged at the prevailing rate per kg.
    8. Ideally, Show Material being provided by the Client 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 & pack deliveries in the reduced time available.
    9. Should excess Show Material be sent to the Agency, there will be a charge of £100 per pallet for disposal.
    10. 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.
    11. 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 as published on the Website.
    12. Where additional work is required, this will be set out in a Quotation supplied to the Client for review and approval, and 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.
      3. Additional Web Development work will be charged at £50 per hour.
  4. Campaign Specification and Approval
    1. Campaigns are commissioned by the Client.
    2. The Client can propose a new Campaign on the Website, with or without assistance from the Taste at Tesco Team.
    3. Where required, the Agency will assist the Client with the development of a Campaign concept. This may take the form of a written description, sketch or visual. The Agency will invest up to six (6) hours of effort into Campaign concept development at no charge. Thereafter, creative effort will be chargeable at the rate of £50 per hour.
    4. Prior to the commencement of the Campaign, the Campaign Specification must be approved by the Taste at Tesco Team and, where necessary, other relevant Tesco departments. The Campaign’s approval status is viewable on the Website.
    5. The Taste at Tesco Team will endeavour to give due consideration to all proposed Campaigns, and where Campaigns are declined, provide a written explanation in so far as is practical and appropriate.
  5. Obligations of the Agency
    1. The Agency agrees to provide the Services to the Client in accordance with the provisions of this Agreement.
    2. 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 use its reasonable endeavours at all times 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 in the approved Campaign Specification.
      4. it will comply with and endeavour to ensure that its Personnel comply with:
        • (a) all relevant legislation (including the Data Protection Act 1998, 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
        • (b) the Store Rules; and
        • (c) all laws pertaining to the legal entitlement to work in the United Kingdom.
    3. Notwithstanding, 5.2, the Agency hereby excludes its liability to meet any other performance standards or targets unless otherwise agreed in writing by both Parties.
    4. The Agency shall be under no liability under clause 5.2.1:
      1. if any part of the Fees which are due and payable have not been paid by the due date for payment; or
      2. 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.
    5. The Client understands and accepts that the Agency will comply with any reasonable directions of Tesco which relate to the Services.
    6. Unless otherwise agreed in writing, the Brand Ambassadors shall be responsible for the Show Material in Stores and shall remove and dispose of it at the end of the last Activity Day of the Campaign.
    7. The Agency shall keep the Client informed regularly of and promptly respond to any requests relating to the performance of the Services.
    8. 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 10 Business Days of the cause for complaint arising.
  6. Fees & Payment Terms
    1. In respect of a Campaign, upon Confirmation of Order, the Agency shall raise an invoice in advance of the Services for the Fees set out in the Quotation. Payment of this invoice is due within 30 days of the invoice date or before the first Activity Day of the Campaign, whichever is the earlier, or sooner if agreed between the Parties. For the avoidance of doubt, if the payment is not received before the first Activity Day of the Campaign, the Campaign will be placed on hold until payment is received.
    2. 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 and shall be clearly identified in the Agency’s invoice.
    3. Any material breach of this clause shall entitle the Agency to delay or terminate, without prior notice, each and every Campaign concluded under these Terms between the Agency and the Client.
    4. All queries relating to the Agency’s invoices must be made in writing within 14 days of the date the invoice was raised.
    5. The Agency shall have the right to claim interest on any invoices which are unpaid after the due date at the rate of 8% per annum above the prevailing base rate of the Bank of England which interest shall accrue on a daily basis from the day after the due date until the Client has made payment of the overdue amount together with any accrued interest.
    6. The Client shall not make any payments directly to the Brand Ambassadors. Any such payments made shall not be deemed to be part of the Client’s payment of Fees or of any interest accrued on overdue payments.
    7. The Client shall not make any deduction in respect of any alleged set off or counter claim howsoever arising.
    8. 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.
    9. The Agency provides an Express Service for Campaigns where lead time is less than Standard Lead Time of 40 Business Days under conditions that:
      1. an Express Service Fee of 10% is applicable to any Campaign delivered under Express Service to cover additional costs incurred;
      2. 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.
      3. 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.
      4. 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.
  7. Brand Ambassadors
    1. The Agency maintains a database of Brand Ambassadors for deployment on Campaigns.
    2. 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.
    3. 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 work in association with a Campaign.
  8. Obligations of the Client
    1. When proposing a Campaign, the Client is required to provide all of the necessary information that together forms the Campaign Specification. The Client is solely responsible for the accuracy of all such information provided.
    2. Upon Confirmation of Order, the Client is approving the Campaign Specification at that time and understands that the Agency will deliver Services according to it. The Client may request changes to the Specification after the Confirmation of Order but understands and accepts that these changes may incur additional charges, which will be quoted at that time.
    3. The Client shall not instruct any Brand Ambassadors to undertake any activities outside the scope of the approved Campaign Specification.
    4. Any subsequent changes to the details of the Campaign Specification must be agreed between the Agency and Client in writing and the Agency will communicate any agreed changes to the Brand Ambassadors.
    5. 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.
    6. 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 Specification, 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 Tesco or any of the Designated Stores;
      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.
    7. 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 undertaken by Brand Ambassadors.
    8. If the Agreement specifies that the Client will collect Show Material or Store Equipment from Stores 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.
    9. The Client shall not make direct contact with Tesco or its servants, agency, 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 12.2.2 will apply.
  9. Cancellation and Delay
    1. 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.
    2. In respect of any changes to the Campaign Specification (including rescheduling of Activity Days, substitution of Stores and changes to the Show Material) requested 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 10 Business Days or less prior to the first Activity Day.
    3. Where Confirmation of Order has been received by the Agency for a Campaign, and 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 10 Business Days, or less, prior to the first Activity Day, the Client is liable to pay the total Fees set out in the Quotation.
      2. if the Client gives written notice to the Agency between 11 and 20 Business Days prior to the first Activity Day, the Client is liable to pay 50% of the Fees set out in the Quotation.
      3. if the Client gives written notice to the Agency between 21 and 30 Business Days prior to the first Activity Day, the Client is liable to pay 25% of the Fees set out in the Quotation.
      4. 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.
      5. all such charges, if not already invoiced, will be invoiced upon receipt of the written notice and will be due immediately.
    4. 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.
    5. In the event that Show Material is delivered into the Agency’s warehouse too late to be delivered to the Stores 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.
  10. Car Park Bookings
    1. For Campaigns that are booked in Tesco Car Park Sites, the Agency may agree in the Campaign Specification that the Campaign services will be provided by an agency other than N2O.
    2. Where Campaign services are to be provided by an agency other than N2O, the Client will undertake to comply with, and will be responsible for ensuring their employees, agents and subcontractors comply with, this clause in addition to the rest of the Agreement.
    3. Where agreed as part of the Campaign Specification, the Agency will grant the Client the personal, non-assignable right to use Tesco Car Park Sites for the Campaign, subject to these Terms.
    4. Unless otherwise specified, the right to use Tesco 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.
    5. The Client shall, and shall undertake that its employees, agents and subcontractors shall:
      1. not bring any items on to the Car Park Site without the consent of the Agency except as is strictly necessary pursuant to clause 5.2.4(a);
      2. 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. not 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; and
      4. not 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.
      5. provide all Sampling Stock;
      6. install the Show Material and any other equipment or advertising media at its own cost at the Car Park Site;
      7. 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;
      8. 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;
      9. comply with retailer information included in the Taste at Tesco Campaign Booking Form – Car Park document;
      10. comply with any applicable health and safety laws and regulations and, when on Tesco premises, comply with the Store Rules; and
      11. display all appropriate notices concerning food content/allergies etc.
    6. The Client shall not:
      1. offer for sale, or sell, any products or services whatsoever on the Car Park Site; or
      2. encroach on the area surrounding the Car Park Site for the purposes of conducting any promotional activities whatsoever.
  11. Force Majeure
    1. 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, acts of God, war, riots, civil unrest, fire, severe weather conditions, strikes, lock-outs, other industrial disputes, 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.
  12. Termination
    1. Notwithstanding clause 9, this Agreement may be terminated by either Party without any liability to the other by giving at least 31 Business Days written notice prior to the first Activity Day.
    2. Without prejudice to any other rights or remedies which the parties may have, 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 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;
      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 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 condition 11.2.4. to condition 11.2.11. (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; or
      13. control of the other Party is acquired by any person or connected persons not having control of that other Party 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; or
      14. the Agency reasonably considers the Show Material provided by the Client, or produced by the Agency for the Client in accordance with the Campaign Specification, to be offensive, false, misleading, deceptive or in breach of any warranty in this Agreement; or
      15. the Agency considers that the Show Material provided by the Client, or produced by the Agency for the Client in accordance with the Campaign Specification, 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.
    3. 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 invoices 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; and
      4. 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.
  13. Limitation of Liability
    1. 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; and
      3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
    2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
    3. 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.
    4. Subject to clause 13.3.1 and 13.3.2 above:
      1. the Agency shall not be liable for:
        1. loss of profits; or
        2. any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
      2. The Agency’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Services shall be limited to the amount of the Fees.
    5. The Client will indemnify the Agency against all damages, losses, demands, costs, expenses and claims made against, incurred or suffered by the Agency 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, Store Equipment, etc. provided by the Client; or
      3. the cancellation by the Client of any part of the Agreement pursuant to clause 11; or
      4. any claim brought against the Agency or its servants, agents, subcontractors or employees or Tesco by any third party in relation to the Client’s product.
    6. Notwithstanding clause 13.4, in the event that Tesco suspends or terminates any Services or Campaign for any reason in any of the Stores, 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.
  14. Confidentiality
    1. Subject to clause 14.2, 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.
    2. The Client and the Agency may disclose Confidential Information to an employee, consultant, subcontractor or agent 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 employee, consultant, subcontractor or agent 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.
    3. 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.
      6. The Client agrees that the Agency may disclose details of any revenue received by it pursuant to the Agreement to the owner, operator or licensee of the Tesco Stores.
  15. Data Protection
    1. In this clause, the terms data controller, data processor, personal data, sensitive personal data and processing shall be as defined in the Data Protection Act 1998 as amended, re-enacted, extended, or such other future repeal or statutory re-enactment thereof from time to time (the “Act”), 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.
    2. 15.2. The Agency shall:
      1. use the Data only on the instructions of the Client to perform its obligations under this Agreement;
      2. keep the Data confidential and provide appropriate technical and organisational measures against unauthorised or unlawful processing, accidental loss or destruction of or damage to the Data;
      3. take all reasonable steps to ensure the reliability of any of its staff who have access to Data processed in connection with this Agreement;
      4. provide such information as is reasonably necessary to enable the Client to satisfy itself of the Agency’s compliance with this clause and allow the Client, its employees or authorised agents or advisers upon reasonable prior written notice to the Agency, reasonable access to any relevant premises, during normal business hours, to inspect the procedures and measures referred to in this clause;
      5. if it appoints any third party, or other agent, contractor or professional adviser to which Data will be disclosed to enable the third party to perform its appointment, require the third party to enter into a written contract which requires such third party to comply with the obligations set out in this clause; and
      6. promptly inform the Client of any request for disclosure of Data from a data subject or any other third party and provide reasonable assistance to the Client in complying with any such request and/or enquiry, or investigation or assessment of processing initiated by the Information Commissioner in respect of the Data as soon as is possible but in any event within five (5) Business Days of receipt of the request or any other period as agreed in writing with the Client from time to time.
    3. The Agency will, on termination or expiry of this Agreement or any part of it, and at any time on the request of the Client either return or destroy the Data (including all copies of it) immediately.
  16. Bribery and Corruption
    1. 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.
    2. 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.
    3. Breach of this clause by the Client shall be deemed a material breach under clause 12.2.2.
  17. Intellectual Property
    1. 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.
    2. 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.
    3. The Client agrees to grant permission to the Agency to use their corporate and brand logos and any other Intellectual Property in connection with the performance of the Services.
    4. 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 or provided for use by the Agency by the Client in accordance with this Agreement infringes such third party’s rights (including, without limitation its Intellectual Property Rights).
    5. Any creative campaign concepts developed for the Client by the Agency as part of Taste at Tesco remains the Intellectual Property of Tesco and cannot be used in connection with any other retailer without Tesco’s prior written approval.
  18. Other Agreements
    1. 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.
    2. More particularly (but without limitation), no printed standard terms that may appear on any purchase order, invoice or despatch order relating to the Services shall have any effect.
    3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
    4. Nothing in this clause shall limit or exclude any liability for fraud.
  19. Variations
    1. This Agreement may only be amended by one or more further written agreements between the Client and the Agency, which expressly amend this Agreement.
    2. The Agency reserves the right to review and to revise these Terms without prior notice.
  20. Non Solicitation
    1. The Client and the Agency shall not, during the term of this Agreement and for a period of 6 months thereafter, offer employment to any employees of the other who were engaged in connection with the provision of the Services.
    2. 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 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.
      1. the recruitment fees are payable at the rate of £5,000 or 25% of the first year’s remuneration of the person concerned (plus VAT), whichever is the greater, and, for the avoidance of all doubt, it is stated that the purpose of this clause is to compensate the Agency for any loss it may suffer as a result of such actions.
  21. Employees
    1. It is intended between the parties that the Transfer of Undertakings (Protection of Employment) Regulations 2006 will not apply to this Agreement and that all persons employed in the provision of the Service shall remain employed at all times by the Agency.
    2. The Client and the Agency acknowledge and agree that on expiry or termination of this Agreement the employment of all individuals wholly or mainly engaged in connection with the provision of the Services prior to the date of such expiry or termination will not transfer to the Client or a successor supplier in accordance with the Regulations.
  22. Waiver
    1. 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.
  23. Assignment
    1. 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.
    2. 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.
    3. 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.
  24. Third Party Rights
    1. 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.
    2. 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.
  25. Severability
    1. 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.
  26. Governing Law and Jurisdiction
    1. 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.
    2. 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).