Terms of Business
Client x NOKAMO
BACKGROUND
These terms and conditions set out the legal terms upon which we, Nokamo Consulting Limited (Company No. 12231685) (“we”, “us”, “Nokamo”) agrees to provide you [client] Company No.[XXXXXXXX](“you”, “your”, the “Client”) with our marketing consultancy services from time to time. These terms will apply to the exclusion of any other terms and conditions that may be implied by law or which you might try to impose on us from time to time. These terms together with each statement of work agreed between you and us from time to time (the “Statement of Work”) will constitute the contract between you and us for the provision of our services (the “Contract”).
Terms of Business
1. APPOINTMENT
1.1 By entering into the Contract you agree to appoint us to provide you with our services, as specifically agreed from time to time in Statements of Work.
1.2 The Contract will take effect from either the date that it is signed by you or (if earlier) the date on which we begin providing our services to you (the “Start Date”).
1.3 The Contract will continue, unless terminated earlier in accordance with clause 11, until either party gives to the other party at least 3 months’ written notice to terminate.
2. SCOPE AND ENGAGEMENT
2.1 The scope of the services that will be provided to you from time to time will be set out in Statements of Work (the “Services”).
2.2 Each Statement of Work will be agreed as follows:
2.2.1 you will ask us to provide you with certain Services and will provide us with as much information as we reasonably
request in order to prepare a draft Statement of Work for the Services requested;
2.2.2 once we have received this information, we will either notify you if we cannot provide the Services requested or, if we can provide the Services, we will provide you with a draft Statement of Work;
2.2.3 we will then discuss the scope of the Statement of Work (including any associated Fees) with you and agree the final version with you; and
2.2.4 once the Statement of Work has been agreed and approved by both you and us, we will begin to provide the agreed Services.
2.3 If there is any inconsistency or conflict between the provisions of any Statement of Work and these terms, the provisions of these terms shall prevail.
2.4 If from time to time you or we believe a change is required to a Statement of Work, the party looking to make this change will inform the other in writing (specifying the change(s) required, the reasons for this and the implications of the change(s)). We will then discuss the proposed changes together (in good faith) and try to agree them, including any resulting change to the Fees. Once a change has been agreed between you and us in writing, we will amend the Statement of Work accordingly.
2.5 Where you decide you want to cancel or terminate a particular Statement of Work:
2.5.1 you should notify us of this in writing as soon as possible;
2.5.2 we will immediately stop performing all Services in relation to that Statement of Work;
2.5.3 we will be entitled to invoice you for any outstanding, properly incurred Fees (including any Third Party Fees
and Expenses) in respect of that Statement of Work, as well as any amounts committed to by us on your behalf prior to cancellation, which will be payable by you in accordance with clause 5;
2.5.4 subject to you paying any amounts due under clause 2.5.3, on your request we will deliver to you all Deliverables relating to the cancelled Statement of Work as developed at the date of cancellation; and
2.5.5 cancellation of any individual Statement of Work will not affect the continuation of the Contract, which will remain in force and effect.
3. SERVICE DELIVERY
3.1 Our Obligations
3.1.1 In consideration for the payment of the Fees by you, we shall perform the Services for, and provide the Deliverables to you in accordance with each Statement of Work where specifically agreed by the parties from time to time. The Services and Deliverables are provided for the Client’s internal and commercial use. The Client is responsible for how they are used, implemented, and relied upon.
3.1.2 For the purposes of the Contract, the “Deliverables” means all the specific outputs we have agreed to create or produce for you as part of the Services, as set out in the Scope of Work (e.g. the brand book) . The Deliverables will not include (a) any Intellectual Property Rights developed independently of the performance of the Services and owned or licensed by us, including all aspects of our Deviant Means Strategic Process,
(b) any alternative ideas, proposals or outlines we develop which you reject and any other materials developed by us for use across multiple clients or (c) any artwork, copy, models, designs, photographs, character, music, voice over, sound recording, logo, or any other materials where the IPR may not be transferable (see clause 3.1.4).
3.1.3 We shall and shall procure that each of our officers, employees, consultants, agents, representatives and advisers (“Personnel”) shall perform the Services in a professional manner and in accordance with:
3.1.3.1 good industry practice, using all due skill, care and diligence;
3.1.3.2 the provisions of the Contract and the relevant Statement of Work;
3.1.3.3 your brand guidelines and marketing policies (as provided to and/or developed by us); and
3.1.3.4 your reasonable written instructions from time to time.
3.1.4 We shall ensure that, at all times while the Contract is in force, we hold all permits, licences and authorisations necessary to supply the Services and to enable us to comply with our other obligations under the Contract.
3.1.5 For the avoidance of doubt, the Services will not include media planning or buying services except where specifically agreed by the parties from time to time.
3.1.6 We shall co-operate with any third parties that you may from time to time nominate for the purposes of performing the Services, and shall work with your nominated suppliers efficiently and in good faith.
3.2 Your obligations
3.2.1 During the term of the Contract you shall:
3.2.1.1 co-operate with us and provide to us, at our request, such information concerning you, your business and your requirements in respect of the Services that we reasonably require from time to time as part of providing the Services;
3.2.1.2 promptly notify us of who will be responsible and authorised to approve any Statements of Work, Services and Deliverables on your behalf (including where these authorised people have changed); and
3.2.1.3 respond reasonably promptly to any request from us for information or approval.
3.2.2 If our performance of our obligations under the Contract are prevented or delayed by any act or omission by you, your agents, subcontractors, consultants, employees or any third party engaged by you, then, without prejudice to any other right or remedy we may have, we shall be allowed an extension of time to perform our obligations equal to the delay caused by you.
3.3 Approvals and authority
3.3.1 Once a Statement of Work has been agreed by the parties in accordance with clause 2, we shall submit proposed Deliverables and content for the Services, to you for you for written approval.
3.3.2 You will be responsible for reviewing any Deliverables we submit and approving or feeding back on them within 96 hours of us submitting them to you, either to approve the use of those Deliverables or to request any changes that may reasonably be required to them. Client approval constitutes acceptance of responsibility for the Deliverables, including their compliance, accuracy, and suitability for use.
3.3.3 In relation to any Deliverable, we may proceed to produce the Deliverable and enter into contracts with third parties to do so once we have obtained your written approval to do so in accordance with the Statement of Work.
4. FEES AND PAYMENT
4.1 In consideration for the provision of the Services in accordance with the Contract, you shall pay the Fees agreed between you and us for those Services, as set out in the relevant Statement of Work (the “Fees”).
4.2 You will be invoiced upfront for 30% of the agreed Fees, as set out in the relevant Statement of Work.
4.3 In addition to the Fees, you will reimburse us for the following (as set out in the relevant Statement of Work or otherwise agreed between you and us from time to time):
4.3.1 all costs payable by us to third parties relating to the provision of the Services which are not included in the Fees including costs for any photography, web development, stock photographs, videos, music or any other third party support included within the Services (“Third Party Costs”); and
4.4.3 for Expenses monthly in arrears, and shall provide you with supporting documentation for such Expenses (including receipts where required).
4.5 During the term of the Contract, we shall inform you of any changes in the cost of any products, materials and/or services that we obtain from any third party that will be charged to you as Third Party Costs. Unless you object to such changes within 96 hours of being notified of them, we shall be entitled to charge you for those Third Party Costs at the new rates. The Client assumes responsibility for the selection, use, and output of any third-party suppliers, including where introduced or coordinated by Nokamo.
4.6 Except as otherwise agreed between the parties, you shall pay all undisputed invoices submitted by us within 30 days of receipt of that invoice.
4.7 All sums payable under the Contract:
4.7.1 are exclusive of any VAT or any other sales tax or duties, which, where applicable, shall be payable by you to us in addition; and
4.7.2 shall be paid in British pounds sterling to the credit of our bank account, details of which shall be notified to you as and when necessary
4.8 Each party shall pay interest on any sum due under the Contract at 8% a year above the Bank of England’s base rate from time to time, calculated from when the overdue sum became due, until it is paid.
5. PERSONNEL
5.1 We will allocate sufficient Personnel with suitable experience, seniority and qualifications to perform the Services but we will not guarantee that the same individuals will provide Services to you at all times.
5.2 We warrant to you that we are, and shall remain throughout the term of the Contract, the employer of all individuals who may work for
us in providing the Services. We shall be solely responsible for the remuneration, insurance and other obligations in respect of all these individuals and we shall at all times comply with all applicable legal requirements in respect of such Personnel.
5.3 Except in respect of any transfer of our employees to you pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246), you shall not, without our prior written consent, at any time during the Contract or for a period of 12 months after the Contract is terminated or expires, solicit or entice away from us or employ or attempt to employ any person who is, or has been, engaged as our employee, consultant or subcontractor in the provision of the Services.
6. INTELLECTUAL PROPERTY
6.1 For the purposes of the Contract “Intellectual Property Rights” includes patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights.
6.2 It is the intention of the parties that:
6.2.1 the Client shall own all Deliverables produced by Nokamo;
6.2.2 the Client shall own any work or materials authored, created or performed by a third party and either commissioned for, or used in relation to, the Services comprised in the Deliverables (“Third Party Materials”) to the extent an assignment of such materials is available on commercially reasonable terms; and
6.2.3 where no assignment of Third Party Materials is available on commercially reasonable terms the Client shall receive a licence of such materials for use by the Client and its licensees of the Deliverable in the media and for the period specified in the Statement of Work.
6.3 Nokamo hereby irrevocably, unconditionally and absolutely assigns to the Client, with full title guarantee, and without restriction, all right, title and interest in and to all existing and future Intellectual Property Rights (including future copyright and design right) subsisting in or relating to all of the Deliverables excluding any Deliverables or parts of them, which are Third-Party Materials not assigned to the Client (“Assigned Materials”), whether created, developed or produced before, on or after the Contract. Such assignments shall be completed upon Nokamo receiving payment in full for the Services resulting in the relevant Deliverables.
6.4 To the extent that clause 6.3 is not effective to assign legal title to the Intellectual Property Rights in or to the Assigned Materials,
then we shall assign to you such Intellectual Property Rights as and when requested by you by executing any assignment documents reasonably requested by you. Until such time as those Intellectual Property Rights are assigned to you, we shall hold all such Intellectual Property Rights on trust for you and you shall have an exclusive worldwide, royalty-free licence under those Intellectual Property Rights and to use the Assigned Materials for any purpose.
6.5 Nokamo shall, at any time on request, provide to the Client such information on the rights acquired in respect of each Third-Party Material (including Assigned Material and Third-Party Material in respect of which a licence has been obtained), in a Schedule or such other format as the Client may reasonably request, and warrants that any usage rights information provided to the Client shall be accurate and complete.
6.6 Nokamo shall procure that its Personnel, subcontractors and its subcontractors’ Personnel and all artists, photographers, actors, models and other third parties used by Nokamo in connection with the provision of the Services shall unconditionally and irrevocably waive all of their moral rights described in Chapter 4 of Part 1 of the Copyright Designs and Patents Act 1988 (or any similar or equivalent legislation anywhere in the world) in respect of the Deliverables. Any such waivers shall be made in favour of Nokamo, the Client and the Client’s licensees, sub-licensees, assignees and successors in title
to the Deliverables or the Client’s business. Nokamo shall promptly provide copies of any waivers to the Client, on request.
6.7 Nokamo shall procure from all artists, photographers, actors, models, performers of music, owners of any other Intellectual Property Rights in materials incorporated into the Deliverables and all other third parties used by Nokamo in connection with Deliverables, all necessary consents, releases, and approvals (in a
form, and including such terms, as may be requested by the Client) to use their work or images for the Client’s minimum commercial purposes and such wider purposes as the Client may have notified to Nokamo under clause 3.3.2. Nokamo shall obtain such consents, releases and approvals in writing before beginning production of the relevant Deliverables and provide copies of them to the Client on request.
6.8 You grant us a non-exclusive, non-transferable, royalty-free licence to use any and all materials, documents, records, research, photography, logos, designs, software or other property (including all Intellectual Property Rights therein) belonging to you, which are provided to us by you or on your behalf (“Client’s Property”) and the Deliverables to the extent necessary to enable us to provide the Services during the term of the Contract.
6.9 In respect of the Client’s existing trade marks (the “Trade Marks”):
6.9.1 the Client grants Nokamo a non-exclusive, non-transferable, royalty-free licence for the term of the Contract to use, and permit its subcontractors to use, the Trade Marks in the creation of the Deliverables and performance of the Services in accordance with the Contract;
6.9.2 Nokamo shall only use the Trade Marks in accordance with the Client’s brand guidelines. No Deliverables incorporating the Trade Marks shall be supplied to any person other than the Client or disposed of in any way other than as specified by the Client;
6.9.3 Nokamo acknowledges that it will not gain any right, title or interest in any Trade Marks or associated goodwill, which shall vest automatically in the Client and Nokamo shall not make any use of them except in accordance with the terms of the Contract; and
6.9.4 Nokamo shall include on all Deliverables all relevant acknowledgements of the Client’s rights in and to the Trade Marks in the format set out in the Client’s brand guidelines (or as otherwise notified by the Client from time to time).
6.10 Nokamo grants to the Client fully paid-up, non-exclusive, royalty-free, licence to use and copy, modify, sub-licence, distribute, display
and otherwise engage the Pre-existing Materials contained in any Deliverables contained in any Work Products solely to the extent necessary to enable them to receive the Services and use the Deliverables for the intended purposes.
7. CONFIDENTIALITY AND DATA
7.1 Confidentiality
7.1.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 7.1.2.
7.1.2 Each party may disclose the other party’s confidential information:
7.1.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause
7.1.2; and
7.1.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.1.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
7.1.4 On termination of the Contract, each party shall:
7.1.4.1 destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s confidential information; and
7.1.4.2 erase all the other party’s confidential information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable).
8. DATA PROTECTION
8.1.1 For the purposes of this Clause 8, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR (as defined in has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018).
8.1.2 Both parties will comply with all applicable requirements of UK GDPR. This Clause 8.1.2 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under UK GDPR.
8.1.3 The parties have determined that for the purposes of UK GDPR Nokamo is the processor of personal data and the Client is the controller for the purposes of the Contract.
8.1.4 The Client consents to, (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by Nokamo in connection with the processing of the Client’s personal data, provided these are in compliance with the then-current version of Nokamo’s privacy policy available at https://nokamo.com/legals (“Privacy Policy”). In the event of any inconsistency or conflict between the terms of the Privacy Policy and the Contract, the Privacy Policy will take precedence.
8.1.5 Without prejudice to Clause 8.1.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Nokamo or lawful collection of the same by Nokamo for the duration and purposes of the Contract.
8.1.6 Without prejudice to Clause 8.1.2, Nokamo shall, in relation to the Client’s personal data:
8.1.6.1 process that Client personal data only on the documented instructions of the Client unless Nokamo is required by any applicable laws to otherwise process that Client personal data (“Purpose”);
8.1.6.2 implement the appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client personal data and against accidental loss or destruction of, or damage to, Client personal data, which the Client has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
8.1.6.3 ensure that any personnel engaged and authorised by Nokamo to process Client personal data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
8.1.6.4 assist the Client insofar as this is possible (taking into account the nature of the processing and
the information available to Nokamo), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations
under UK GDPR with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
8.1.6.5 notify the Client without undue delay on becoming aware of a personal data breach involving the Client’s personal data;
8.1.6.6 at the written direction of the Client, delete or return Client personal data and copies thereof to the Client on termination of the Contract unless Nokamo is required by any applicable law to continue to process that Client personal data; and
8.1.6.7 maintain records to demonstrate its compliance with this Clause 8.
8.1.7 The Client provides its prior, general authorisation for
Nokamo to:
8.1.7.1 appoint processors to process the Client Personal Data, provided that Nokamo:
8.1.7.2 shall ensure that the terms on which it appoints such processors comply with UK GDPR, and are consistent with the obligations imposed on Nokamo in this clause 8;
8.1.7.3 shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Nokamo; and
8.1.7.4 shall inform the Client of any intended changes concerning the addition or replacement of
the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to Nokamo’s reasonable satisfaction, that the objection is due to an actual or likely breach of UK GDPR, the Client shall indemnify Nokamo for any losses, damages, costs (including legal fees) and expenses suffered by Nokamo in accommodating the objection.
8.1.7.5 transfer Client Personal Data outside of the UK as required for the agreed purposes, provided that Nokamo shall ensure that all such transfers are effected in accordance with UK GDPR.
8.1.8 Either party may, at any time on not less than 30 days’ notice, revise this clause 8 (Data protection) by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
9. COMPLIANCE
9.1 Subject to clauses 9.3 and 9.5, we use reasonable skill and care, but Client is responsible for final approval and compliance of all Deliverables in use (including the Client’s Property) and their broadcast, publication or otherwise making available to the public (where applicable), in all material respects as delivered by us and in accordance with the plans therefore as agreed between you and us. The Deliverables shall:
9.1.1 comply with all applicable laws in the United Kingdom and any other applicable laws, regulations, regulatory policies, guidelines or codes in each
case from time to time in force, including all such guidelines and codes issued by statutory, regulatory and industry bodies;
9.1.2 not infringe the Intellectual Property Rights or proprietary rights of any third party (except where infringement arises from Client materials, Client instructions, AI-generated content, modifications by the Client or third parties); and
9.1.3 not be defamatory, libellous, obscene or otherwise offensive.
9.2 Subject to clauses 9.3 and 9.5, we will indemnify you against all liabilities, costs, expenses, damages and losses suffered or incurred or paid by us arising out of or in connection with any clear negligence claim relating to any failure by us to comply with clause 9.1.
9.3 You acknowledge and agree that we are not liable for ensuring that any new brand, trading names or content proposed by you or included in the Client’s Property complies with clause 9.1. You accept that you are solely responsible for ensuring that such content does not infringe upon the Intellectual Property Rights of any third party. You shall indemnify us against all liabilities, costs, expenses, damages and losses suffered or incurred or paid by us arising out of or in connection with any claim relating to any such content or Client’s Property provided by you as part of any Services and/or Deliverables.
9.4 We shall take any legal and other advice (including pre- clearance advice from Clearcast and Radio Advertising Clearance Centre, as appropriate) as we consider necessary to ensure our compliance with clause 9.1. We shall provide a copy of all legal and other advice obtained to you on request.
9.5 You acknowledge and agree that we are not liable for any act or omission by a third party engaged by you in accordance with clause 3.1.6.
9.6 If either you or we become aware that there is risk that any Service or Deliverable is not in compliance with clause 8.1, each shall promptly notify the other, and, without prejudice to any other right or remedy either of us may have, we shall make any modifications which may be necessary to remedy that defect
in the Deliverables or Services and agree what remedial actions may be required to address the defect.
10. LIABILITY
10.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for: death or personal injury caused by negligence; fraud or fraudulent misrepresentation or breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
10.2 Subject to clause 10.1, our total liability to you in respect of the Contract (including in contract, tort, negligence, breach of statutory duty or otherwise) shall not exceed:
10.2.1 an amount equal to 2x the Fees (up to a maximum of £1,000,000) paid or payable by you to us under the Contract in respect of clauses 6 (Intellectual Property), 7.1 (Confidentiality), 8 (Data Protection) and 9 (Compliance).
10.2.2 an amount equal to the Fees (up to a maximum of £1,000,000) paid or payable by you to us under the Contract for any other matters.
10.3 Subject to clause 10.1, neither party shall have any liability to the other under the Contract for any:
10.3.1 loss of profits;
10.3.2 loss of sales or business;
10.3.3 loss of agreements or contracts;
10.3.4 loss of anticipated savings;
10.3.5 loss of use or corruption of software, data or information;
10.3.6 loss of or damage to goodwill; or
10.3.7 indirect or consequential loss.
10.4 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
11. TERMINATION
11.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
11.1.1 the other party commits a material breach of any term of the Contract which is not remedied (if remediable) within a period of 30 days after being notified in writing to do so;
11.1.2 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
11.1.3 the other party commences, becomes subject to or takes step towards any insolvency process (including bankruptcy, liquidation, administration, voluntary arrangement or moratorium) other than for the purposes of a solvent reorganisation of their group;
11.1.4 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
11.1.5 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
11.2 On expiry or termination per clause 1.3 or 11.1 of the Contract:
11.2.1 we shall immediately cease all further performance of the Services or within 3 months per clause 1.3;
11.2.2 we shall cease all further use of the Trade Marks, the Deliverables, the Client’s Property and any other Client Intellectual Property Rights;
11.2.3 we shall be entitled to invoice you for all outstanding properly incurred Fees, Third-Party Fees and Expenses, which shall be payable by you in accordance with the provisions of clause 4;
11.2.4 you shall pay to us any sums payable by us to any third party under any legally binding commitment relating to the provision of the Services that was entered into by us, before the date of expiry or termination, with your consent, to the extent that we are unable to cancel or otherwise mitigate that commitment (except to the extent that those sums are already covered by any Fees, Third-Party Fees or Expenses paid or payable by you under the Contract); and
11.2.5 subject to the Fees for the same being paid in full, we shall promptly deliver to you, in accordance with
your instructions, all Deliverables and all of the Client’s Property, in our possession or control at the date of termination or expiry or within 3 months.
11.3 On termination per clause 1.3 or 11.1 or expiry of the Contract:
11.3.1 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry shall be unaffected;
11.3.2 all existing Statements of Work shall terminate automatically or by the end of the 3 month period; and
11.3.3 any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.4 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed, the party not affected may terminate the Contract by giving 90 days’ written notice to the affected party.
12. NON- SOLICITATION
12.1 You shall not, without our prior written consent at any time from the date of the Contract to the expiry of 6 months after the termination or expiry of the Contract, solicit or entice away from us or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of us in the provision of the Services.
13. MISCELLANEOUS
13.1 Notice Methods - Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other
next working day delivery service at its registered office or its principal place of business (in any other case) or sent by email to the designated email address for such notices or the main email address used by that party under the Contract.
13.2 Receipt of Notices - Any notice shall be deemed to have been received:
13.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
13.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service (“Business Day” being a day other than a Saturday, Sunday or bank holiday in England); or
13.2.3 if sent by email, at 9.00 am on the next Business Day after transmission.
13.3 Proceedings - This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13.4 Assignment & Dealings - Neither party shall assign, novate, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). Nothing in the Contract shall prevent Nokamo from subcontracting any part of the Services to third parties where it reasonably decides to do so for any Statement of Work.
13.5 Entire Agreement - The Contract (together with the Statements of Work) constitute the entire agreement between the parties.
Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
13.6 Severance - If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the
validity and enforceability of the rest of the Contract. In such circumstances, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.7 No Partnership or Agency - Nothing in the Contract 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.
13.8 Waiver - No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.9 Variation - No variation of the Contract (including any Statement of Work) shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.10 Third Party Rights - A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.11 Governing Law & Jurisdiction - The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with English law. Each party irrevocably agrees that the English courts will have courts of England and Wales will have exclusive jurisdiction to settle any such dispute or claim.
14 Artificial Intelligence.
Client acknowledges and agrees that generative AI technology platforms (“AI Platforms”) may be used to produce the Deliverables. AI Platforms provide a level of rights and protections that may not be comprehensive or sufficient to protect the Client from infringements.
The Client assumes full responsibility for the use, publication, and exploitation of any Deliverables (including AI Content), and for ensuring such use complies with all applicable laws and does not infringe third-party rights.
The Client acknowledges and agrees that where Agency uses AI produced images, text and/or other content (“AI Content”) for the Deliverables:
Agency makes no representations or warranties with respect to any AI Content and Agency’s warranties and indemnity obligations shall not apply to any AI Content;
Client may not have ownership rights in and to AI Content (and in those instances where Client does, such rights may not be exclusive); and
Client shall bear all risk associated with the use of AI Content and shall indemnify, defend and hold Agency harmless from and against all claims (including claims of infringement), losses, liabilities, damages and expenses (including, reasonable attorneys’ fees) arising out the use of AI Content.
Client further understands and acknowledges that to the extent that Client furnishes any images, text and/or other content which are to be input into or used by the AI Platform for the purpose of generating further imagery, text and/or content, Agency takes no responsibility for any use which the AI Platform makes of such Client furnished images, text and/or content.
The Agency’s maximum aggregate liability under these Terms & Conditions is no greater than the total Fees paid to the Agency under the relevant Statement of Work. Neither party shall be liable for any indirect or consequential losses.
The Contract is entered into on the date stated at the beginning of it.